Nevada Reports 1969 (85 Nev.) PDF

85 Nev.
1, 1 (1969)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
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VOLUME 85
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85 Nev. 1, 1 (1969) Nall v. State
LONNIE J. NALL, aka LONNIE J. CAPEL, aka LARRY JOHNNY EVANS,
Appellant, v. THE STATE OF NEVADA, Respondent.
No. 5594
January 3, 1969 448 P.2d 826
Appeal from extortion conviction. Eighth Judicial District Court, Clark County; Alvin N.
Wartman, Judge.
Defendant was convicted in the trial court of extortion and he appealed. The Supreme
Court, Zenoff, J., held that where prosecution proved that defendant's fingerprints were on
extortion note and on hotel registration card and also that his handwriting matched
handwriting on hotel registration card and it was manifest that coconspirator had built bomb
and defendant had planted it in hotel, coconspirator's guilty plea to charge of extortion did not
preclude defendant's guilt and evidence of plea was properly excluded in defendant's trial, and
that trial court did not err when it moved proceedings to open land where contents of bomb
could be taken out without danger of injury to court or jurors.
Affirmed.
85 Nev. 1, 2 (1969) Nall v. State
James D. Santini, Public Defender, and Anthony M. Earl, Deputy Public Defender, Clark
County, for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, and
Addeliar D. Guy and H. Leon Simon, Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Where prosecution proved that defendant's fingerprints were on extortion note and on hotel registration
card and also that his handwriting matched handwriting on hotel registration card and it was manifest that
coconspirator had built bomb and defendant had planted it in hotel, coconspirator's guilty plea to charge of
extortion did not preclude defendant's guilt and evidence of plea was properly excluded in defendant's trial.
2. Criminal Law.
Where prosecution received delay in trial because its most important witness could not be present on
original trial date and other delays were instituted by defendant, defendant was not entitled to reversal of
conviction on ground that he had been denied a speedy trial because it began 70 days after filing of
charging information. NRS 178.495.
3. Criminal Law.
Defendant was not entitled to complain of trial delays instituted by him, on appeal wherein he contended
he had been denied a speedy trial because his trial began 70 days after filing of charging information. NRS
178.495.
4. Indictment and Information.
Amendment of original information adding charge of extortion was properly allowed where plentiful
evidence of extortion was adduced at preliminary examination and defendant stated he needed no
additional time to prepare for trial. NRS 173.100.
5. Criminal Law.
In prosecution involving homemade bomb and extortion note discovered in hotel room, trial court did not
err when it moved proceedings to open land where contents of bomb could be taken out without danger of
injury to court or jurors.
6. Criminal Law.
Where defendant, charged with extortion in connection with planting of homemade bomb in hotel room,
continually suggested throughout trial there were no explosives in the bomb, prosecution was properly
given opportunity to show presence of gun powder.
OPINION
By the Court, Zenoff, J.:
On May 14, 1967 a homemade bomb and an extortion note were discovered in a room in
the Sahara Hotel in Las Vegas.
85 Nev. 1, 3 (1969) Nall v. State
The bomb was prevented from exploding. Appellant and two others were each charged with
two counts of attempting to destroy a building and, by a later amended information, one count
of extortion. A jury found appellant guilty of extortion but was unable to agree on the other
charges.
[Headnote 1]
1. Appellant contends that the plea of guilty to the charge of extortion by a co-conspirator
should not have been excluded by the trial court. The exclusion was not error. When the
co-conspirator pleaded guilty, he stated that he conspired with others. The prosecution proved
that appellant's fingerprints were on the extortion note and on the hotel registration card and
also that appellant's handwriting matched the handwriting on the hotel registration card. It
was manifest that the co-conspirator had built the bomb and appellant had planted it. Since
the co-conspirator's guilty plea did not preclude appellant's guilt, the evidence of the plea was
properly excluded. State v. White, 52 Nev. 235, 285 P. 503 (1930).
[Headnotes 2, 3]
2. Appellant contends that he was denied a speedy trial because his trial began 70 days
after the filing of the charging information. NRS 178.495 required trial within 60 days unless
good cause for delay was shown. The prosecution received a delay in trial because its most
important witness, an FBI fingerprint expert, could not be present on the original trial date.
The other delays were instituted by the appellant and of these he cannot complain. Barker v.
State, 84 Nev. 224, 438 P.2d 798 (1968).
[Headnote 4]
3. An amendment of the original information adding the charge of extortion was allowed
by the trial court. Since plentiful evidence of extortion was adduced at the preliminary
examination and since the appellant stated he needed no additional time to prepare for trial,
the requirements of NRS 173.100 were met.
[Headnotes 5, 6]
4. The trial court did not err when it moved the proceedings to open land where the
contents of the bomb could be taken out without danger of injury to the court or jurors.
Appellant had continually suggested throughout the trial that there were no explosives in the
bomb, so the prosecution was properly given an opportunity to show the presence of gun
powder.
85 Nev. 1, 4 (1969) Nall v. State
powder. Conducting the examination away from a congested area as a safety measure is not
improper.
Affirmed.
Thompson, C. J., Collins, Batjer, and Mowbray, JJ., concur.
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85 Nev. 4, 4 (1969) Jones v. State
ARNESTOR JONES, Jr., Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 5605
January 3, 1969 448 P.2d 702
Appeal from a robbery conviction. Eighth Judicial District Court, Clark County; Thomas
J. O'Donnell, Judge.
Defendant was convicted of robbery. The trial court rendered judgment, and the defendant
appealed. The Supreme Court, Zenoff, J., held that in prosecution for robbery of man in
parking lot, bartender was properly permitted to testify that defendant robbed bartender in bar
and forced bartender at gunpoint to go to parking lot from bar and that defendant then robbed
man in parking lot in order to show identity of robber, over objection that bartender testified
concerning another crime.
Affirmed.
James D. Santini, Public Defender, and Anthony M. Earl, Deputy Public Defender, Clark
George H. Spizzirri and A. Leon Simon, Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Evidence of other crimes may be admitted if relevant to prove motive, intent, identity, absence of mistake
or accident, or common scheme or plan, if probative value of such evidence out-weights its prejudicial
effect.
2. Criminal Law.
Trial court's finding that probative value of testimony relating to other crimes exceeded prejudice so that
testimony is admissible will not be reversed on appeal unless it is manifestly erroneous.
3. Criminal Law.
In prosecution for robbery of man in parking lot, bartender was properly permitted to testify that
defendant robbed bartender in bar and forced bartender at gunpoint to go to parking lot
from bar and that defendant then robbed man in parking lot in order to show identity
of robber, over objection that bartender testified concerning another crime.
in bar and forced bartender at gunpoint to go to parking lot from bar and that defendant then robbed man in
parking lot in order to show identity of robber, over objection that bartender testified concerning another
crime.
4. Criminal Law.
Where prosecution sought to introduce evidence of another crime in robbery prosecution in order to show
identity of robber, a hearing in absence of jury to determine probative and prejudicial effects of proffered
evidence was not an indispensable necessity.
5. Criminal Law.
It was presumed on appeal that trial court found that probative weight of evidence relating to another
crime admitted in robbery prosecution to show identity of robber outweighed its prejudice.
OPINION
Appellant robbed a man at 1:50 a.m. on November 24, 1967 in the parking lot of the
Hideaway Bar in Las Vegas. The bartender of the Hideaway Bar testified that he saw the
robbery because he was forced at gunpoint to come to the parking lot from the tavern by the
appellant after appellant had robbed the bartender and emptied the establishment's cash
register, and that he was well-acquainted with appellant and positively identified the appellant
as the robber. Appellant appeals from a conviction finding him guilty of robbing the man in
the parking lot.
Appellant contends that the admission of the proof of the robbery inside the tavern was
error because another offense was proven whose probative value was outweighed by
prejudice, which was not within one of the exceptions to the rule excluding evidence of other
offenses, and which was not the subject of a hearing in the absence of the jury to establish
whether the proof of the prior offense should be admitted. We disagree.
[Headnotes 1-3]
Evidence of other crimes may be admitted if relevant to prove motive, intent, identity, the
absence of mistake or accident, or a common scheme or plan if the probative value of such
evidence outweighs its prejudicial effect. Since the admission of evidence of other crimes is
justified by necessity the probative value of another offense is diminished when the other
proof of guilt is substantial. Tucker v. State, 82 Nev. 127, 412 P.2d 970 (1966). In this case
the only source of identification was the bartender and some of his testimony was
contradicted by defense witnesses.
by defense witnesses. The trial court's finding that probative value exceeded prejudice will
not be reversed unless it is manifestly erroneous. Brown v. State, 81 Nev. 397, 404 P.2d 428
(1965); Overton v. State, 78 Nev. 198, 370 P.2d 677 (1962); Nester v. State, 75 Nev. 41, 334
P.2d 524 (1959). The evidence of the other offense was shown by clear and convincing proof
and was properly admitted to show the identity of the robber. Tucker v. State, supra.
[Headnotes 4, 5]
The hearing in the absence of the jury to determine the probative and prejudicial effects of
the proffered evidence is not an indispensable necessity. The court repeatedly cautioned the
jury that the evidence of another offense was relevant only to identity. It is presumed that the
trial court found that the probative weight of the evidence outweighed its prejudice. Wyatt v.
State, 77 Nev. 490, 367 P.2d 104 (1961).
Affirmed.
Thompson, C. J., Collins, Batjer, and Mowbray, JJ., concur.
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85 Nev. 6, 6 (1969) Madison Nat'l Life v. District Court
MADISON NATIONAL LIFE INSURANCE COMPANY, INC., OF WISCONSIN,
Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA, in and for the County of Washoe, and THE HON. ROSCOE H. WILKES, Judge
Thereof, Respondents.
No. 5563
January 6, 1969 449 P.2d 256
Application for Writ of Prohibition.
Original proceedings in prohibition to prohibit Second Judicial District Court and acting
judge thereof from proceeding further with enforcement and execution of order issued by that
court and judge. The Supreme Court, Collins, C. J., held that neither Second Judicial District
Court nor duly constituted judge of Seventh Judicial District Court, as acting judge of Second
Judicial District Court, had jurisdiction to hold open session on attorney's petition for counsel
fees in Ely, where judge resided, when action in which the legal services were performed was
filed in Second Judicial District Court, although parties to that action stipulated to holding of
hearing in Ely, and therefore order directing payment of counsel fees, entered following
hearing in Ely, was void.
and therefore order directing payment of counsel fees, entered following hearing in Ely, was
void.
Application granted.
Oliver C. Custer, of Reno for Petitioner.
Richard P. Wait, of Reno, for Respondents.
1. Courts.
Neither Second Judicial District Court nor duly constituted judge of Seventh Judicial District Court, as
acting judge of Second Judicial District Court, had jurisdiction to hold open session on attorney's petition
for counsel fees in Ely, where judge resided, when action in which the legal services were performed was
filed in Second Judicial District Court, although parties to that action stipulated to holding of hearing in
Ely, and therefore order directing payment of counsel fees, entered following hearing in Ely, was void.
NRS 1.050, 3.040, subd. 2, 3.220; NRCP 77(b).
2. Courts.
Statute providing that every court of justice except justice's or municipal court shall sit at county seat of
county in which it is held prohibits a district court from sitting as a court other than at the county seat of
county within the district. NRS 1.050; NRCP 77(b).
OPINION
By the Court, Collins, C. J.:
Madison National Life Insurance Company seeks to prohibit the Second Judicial District
Court of Nevada and the Honorable Roscoe H. Wilkes, acting judge thereof, from proceeding
further with the enforcement and execution of an order issued by that court and judge on
March 11, 1968. We agree that the enforcement should be prohibited and direct that the
Alternative Writ of Prohibition be made permanent.
On December 27, 1967, Richard P. Wait, Esquire, filed his petition seeking compensation
for legal services rendered in that case entitled State of Nevada, ex rel Louis T. Mastos,
Insurance Commissioner of the State of Nevada vs. Mark Twain Life Insurance Company,
Action No. 229574, Department No. 2, Second Judicial District Court of Nevada, In and for
Washoe County. Subsequent to this petition, Mark Twain Insurance Company and Madison
National Life Insurance Company merged while the former was in receivership. That action
had previously been assigned to Judge Wilkes by order of the Supreme Court of Nevada on
June 16, 1966, pursuant to the authority of NRS 3.040(2). Judge Wilkes, who resides in Ely,
Nevada, is the duly constituted judge of the Seventh Judicial District Court of Nevada, in
and for White Pine County.
who resides in Ely, Nevada, is the duly constituted judge of the Seventh Judicial District
Court of Nevada, in and for White Pine County.
On January 26, 1968, by stipulation of the parties to action number 229574, Judge Wilkes
held a hearing in Ely, Nevada, in open court on Wait's petition for counsel fees. On March 11,
1968, he ordered that counsel fees in the amount of $16,460 be paid Wait by Madison
National Life Insurance Company from the assets of Mark Twain Life Insurance Company.
[Headnote 1]
Petitioner seeks to prevent execution upon or enforcement of that order on the ground that
neither the Second Judicial District Court nor Judge Wilkes as an acting judge thereof had
jurisdiction to act outside that district and therefore the order entered following the hearing in
Ely, Nevada, is void. We agree.
While many issues were urged upon us in this matter, we think the decisive issues are
these:
1. Was the hearing in Ely, Nevada, on the petition for compensation an attempt by Judge
Wilkes to sit as an acting judge of the Second Judicial District Court?
2. Was the hearing in Ely, Nevada, a violation of NRS 1.050 and thus void?
1. The hearing held by Judge Wilkes was in open court but in Ely, Nevada. The order
issued was entitled In the Second Judicial District Court. The court minutes indicate the
case was filed in the Second Judicial District Court, Washoe County, Reno, Nevada. Under
no circumstances can it be considered that the hearing was held or the order entered while
Judge Wilkes was sitting as a judge of his own Seventh Judicial District Court.
This court held in Ex parte Gardner, 22 Nev. 280, 39 P. 570 (1895): . . . it is not possible
for one court to reach out and draw to itself jurisdiction of an action pending in another court,
even when done with the consent of parties. . . .
Had the matter been one that Judge Wilkes could have heard and disposed of in chambers,
1
perhaps the result would have been different.
____________________

1
See NRCP 77(b), which provides: TRIALS AND HEARINGS; ORDERS IN CHAMBERS. All trials upon
the merits shall be conducted in open court and so far as convenient in a regular court room, except private trial
may be had as provided by statute. All other acts or proceedings may be done or conducted by a judge in
chambers, without the attendance of the clerk or other court officials and at any
have been different. See Roberts Mining & Milling Co. v. District Court, 56 Nev. 299, 50
P.2d 512 (1935). But the judge and counsel having chosen to hold an open session of the
Second Judicial District Court, we must resolve the question with that fact in mind.
2. The open session of the Second Judicial District Court held in Ely, Nevada, was also in
violation of NRS 1.050, which provides:
COURTS, WHERE HELD. Every court of justice except justice's or municipal court,
shall sit at the county seat of the county in which it is held. Justices' courts shall be held in
their respective townships, precincts or cities, and municipal courts in their respective cities.
[Headnote 2]
District courts are courts of justice. NRS 1.010. We hold that NRS 1.050 prohibits a
district court from sitting as a court other than at the county seat of a county within the
district.
While District Court Rule 23(1) provides, With the consent of the judge first having
jurisdiction of the cause, any issue of law and any motion of any nature or kind may be heard
orally by stipulation of the parties, at any time or place agreed on in the state; or such
question of law or motion may be submitted on briefs to such judge, and the decision may be
filed thereafter at any time; and NRCP 77(b) defines what must be done in open court and
what may be done in chambers, both rules, to stand, must be in harmony with NRS 1.050.
Accordingly, any proceeding which requires evidence, testimony or fact finding under NRCP
77(b) must be heard in open court where the particular court sits. Any issue of law or other
motion may be an in chambers matter and may be heard or submitted as authorized in NRCP
77(b) and DCR 23(1).
Under this construction, the rules are in harmony with the statute.
Because there was fact finding in an open session of the Second Judicial District Court
held in Ely, Nevada, the order was void.
Respondent contends that NRS 3.220 authorizes the action taken by Judge Wilkes in this
case. However, this statute refers to the extraterritorial power of judges rather than the
extraterritorial power of courts.
____________________
place either within or without the district; but no hearing, other than one ex parte, shall be conducted outside the
district without the consent of all parties affected thereby.
The above-entitled court and judge are permanently prohibited from executing upon or
enforcing the order of March 11,1968.
Let the writ issue.
Zenoff, Batjer, Mowbray, and Thompson, JJ., concur.
____________
85 Nev. 10, 10 (1969) Oliver v. State
HOSIE OLIVER, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 5574
January 7, 1969 449 P.2d 252
Appeal from judgment. Eighth Judicial District Court, Clark County; John F. Mendoza,
Judge.
Defendant was convicted in the trial court of illegal possession of narcotics, and he
appealed. The Supreme Court, Batjer, J., held that testimony of police officers that, after
arresting defendant for traffic violations, defendant removed his left hand from his pocket and
made a throwing motion to his right, whereupon a white object appeared at defendant's right
and fell to sidewalk, and that they retrieved object, which was subsequently found to contain
marijuana, was sufficient to support inference that defendant had possession of object thrown.
Affirmed.
James D. Santini, Public Defender, George D. Frame, Deputy Public Defender, Clark
Addeliar D. Guy, Deputy District Attorney, for Respondent.
1. Poisons.
Testimony of police officers that, after arresting defendant for traffic violations, defendant removed his
left hand from his pocket and made a throwing motion to his right, whereupon a white object appeared at
defendant's right and fell to sidewalk, and that they retrieved object, which was subsequently found to
contain marijuana, was sufficient to support inference by jury that defendant had possession of object
thrown.
2. Criminal Law.
It is not necessary to negative possibility of an opportunity for tampering with an exhibit nor to trace its
custody by placing each custodian upon the stand, and a statement that exhibit is the
identical object or reasonably resembles it and that it is in same condition as at time
offense occurred makes exhibit admissible.
each custodian upon the stand, and a statement that exhibit is the identical object or reasonably resembles it
and that it is in same condition as at time offense occurred makes exhibit admissible.
3. Criminal Law.
Evidence concerning change of custody of marijuana cigarette from time it was retrieved by officers after
defendant had thrown it away to time when it was presented to trial court was more than enough to identify
it as same cigarette.
4. Searches and Seizures.
Marijuana cigarette, which was retrieved by officer from sidewalk after defendant had thrown it from his
person subsequent to being arrested for traffic violations, was not procured incident to a search, but was
abandoned property, and, therefore, was not subject to suppression on ground of illegal search and seizure.
OPINION
By the Court, Batjer, J.:
On January 29, 1967, at approximately 2 p.m., two Las Vegas police officers entered a
club at F and Jackson Streets in Las Vegas. They testified that they had in their possession
two warrants for the arrest of appellant, Hosie Oliver, for traffic violations and failure to
appear. They placed the appellant under arrest and all three left the club and started toward
the police car which was parked at the curb near the front door. No attempt was made by the
officers to search the appellant. Just outside the door the appellant turned to the right, took
several steps along the sidewalk and yelled up the street. As he did so both officers observed
him remove his left hand from his pocket and make a throwing motion to his right.
Simultaneously, a white object was seen to appear at the right side of appellant, fly into the
wall and fall to the sidewalk. Officer Simpson walked directly to the object, picked it up and
examined it. He concluded that it was a cigarette containing marijuana and arrested appellant
for illegal possession of narcotics.
A jury found the appellant guilty of the charge and this appeal was taken from the
judgment entered against him.
As his first assignment of error the appellant contends that the marijuana cigarette was
improperly admitted into evidence because the prosecution did not establish with a sufficient
degree of certainty that the appellant possessed the cigarette before it was observed in flight
by the arresting officers and that it was not properly identified at the time of trial as the same
marijuana cigarette. These contentions are wholly without merit. It would be hard to imagine
a situation where the degree of certainty of possession and identification could be
stronger.
degree of certainty of possession and identification could be stronger.
[Headnotes 1-3]
The arresting officers testified in detail about their observations. The white object was
immediately retrieved by one of the officers and because it appeared to be a cigarette
containing marijuana the appellant was forthwith put under arrest for illegal possession of
narcotics. During the subsequent course of investigation the contents of the cigarette was
chemically analyzed and found to be marijuana. The chain of custody from the moment the
cigarette was retrieved by the officer until it was admitted into evidence by the trial court
more than complies with the rule laid down by this court in Carter v. State, 84 Nev. 592, 446
P.2d 165 (1968), when it said: A proper foundation was laid for the broken glass. The chain
of custody was established. It is not necessary to negative the possibility of an opportunity for
tampering with an exhibit nor to trace its custody by placing each custodian upon the stand.
The statement that the exhibit is the identical object or reasonably resembles it and that it is in
the same condition as at the time the offense occurred makes the exhibit admissible.
In Stamps v. State, 83 Nev. 230, 428 P.2d 187 (1967), this court said: Evidence of the
throwing of a yellow object, coupled with the finding of a yellow balloon containing heroin in
the area where the thrown object would have landed, will support the inference by the jury
that defendant had possession of the object thrown.
Appellant next cites as error the admission into evidence of the cigarette because he claims
it was procured pursuant to an illegal search and seizure following an illegal arrest.
[Headnote 4]
Here we do not reach the question whether there was an illegal search and seizure
following an illegal arrest, or whether the appellant is precluded by reason of NRS 174.465
(now NRS 174.125) from seeking, for the first time on appeal, suppression of evidence
obtained as a result of an illegal search and seizure.
The marijuana cigarette was not procured incident to a search, but it was abandoned
property when it was retrieved by the police officers. In Stamps v. State, supra, this court held
that where police officers discovered evidence in a public area where it was voluntarily
thrown, there was no search, and said: Looking at that which is open to view is not a
search.
The appellant's assignments of error are without merit and the judgment of the trial court is
affirmed.
Collins, C. J., Zenoff, Mowbray, and Thompson, JJ., concur.
____________
85 Nev. 13, 13 (1969) Berryman v. Int'l Bhd. Elec. Workers
JAMES BERRYMAN, CECIL ADAMS, JESSE PATE, GERALD MERKT, ROY
PINCOLINI, MARVIN BLANGERES, HOWARD KISTNER, M. K. YOCHUM, TED
MORRISSETT, WM. BEAMAN, FRANCIS TERRY, JOHN WILLIAMS, ROBERT
JONES, WM. ROCKWELL, GEORGE LARKIN, JAMES LEONARD, ROY WELTY, Sr.,
PERL A. DECKER, WM. D. EMBLEM, C. HUGHES, ROBERT COWING, and THOMAS
CULLEN, Appellants, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, Respondent.
No. 5600
January 7, 1969 449 P.2d 250
Appeal from the granting of a summary judgment. Second Judicial District Court, Washoe
County; Grant L. Bowen, Judge.
Employees suspended from union activities by union's international executive council
sought injunction against enforcement of the discipline. The trial court granted summary
judgment for defendants and plaintiffs appealed. The Supreme Court, Zenoff, J., held that
evidence sustained finding that plaintiff union members who had taken part in wildcat strike
had engaged in unjustified work stoppages in violation of their contract and union
constitution.
Affirmed.
[Rehearing denied February 20, 1969]
Breen & Young, Jerry Carr Whitehead, David R. Hoy, and Jerome M. Polaha, of Reno, for
Appellants.
Bissert & Logar, of Reno, and Neyhart, Grodin & Beeson, Russ Building, 100 Bush
Street, San Francisco, California, for Respondent.
1. Labor Relations.
Where members of international union's executive council lived in far-flung areas of United States,
delegation by council to resident and secretary of council the duty of compiling record of
testimony in disciplinary proceeding against union members who had instituted
wildcat strike was reasonable and permissible.
resident and secretary of council the duty of compiling record of testimony in disciplinary proceeding
against union members who had instituted wildcat strike was reasonable and permissible.
2. Labor Relations.
Union disciplinary tribunals are not governed by the strict procedural requirements of court of law.
3. Labor Relations.
Informal procedure for resolving intraunion conflicts is limited only by requirements of due process and
fairness must be afforded.
4. Labor Relations.
As long as merits are fully disclosed in union disciplinary hearing with accusor and accused on roughly
equal footing, accused cannot complain that he was denied counsel at disciplinary hearing, that he was not
informed in advance of witnesses to be called by union or that degree of fairness was diminished because
prosecutor was also a witness.
5. Labor Relations.
Evidence sustained finding that plaintiff union members who had taken part in wildcat strike had engaged
in unjustified work stoppages in violation of their contract and union constitution, in proceeding for
injunction restraining enforcement of discipline imposed by union against members.
6. Judgment.
Where absence of undecided material genuine issues of fact was manifest from examination of motion for
summary judgment, no affidavits in opposition to motion were filed, and issues of law were properly
resolved, summary judgment was properly granted. NRCP 56(e).
OPINION
Appellants are members of the International Brotherhood of Electrical Workers. They
instituted a wildcat strike and were subjected to a union disciplinary hearing before the
Union's International Executive Council and suspension from union activities for prescribed
periods of time. They sought an injunction against enforcement of the discipline, but the
union was granted summary judgment from which the disciplined members appeal.
[Headnote 1]
1. The constitution of the I.B.E.W. provided for trial of the charged parties by the I.E.C.
The president and the secretary of the I.E.C. were delegated by the parent board to compile a
record of testimony. Appellants complain that the delegation was unlawful and contrary to
the basic rules of the union constitution and that the entire board should have conducted
the hearings.
delegation was unlawful and contrary to the basic rules of the union constitution and that the
entire board should have conducted the hearings. This court has inferentially approved the
method of delegation. Berryman v. Int'l Bhd. Elec. Workers, 82 Nev. 277, 416 P.2d 387
(1966). But to set the matter at rest we adhere to the doctrine that the power of delegation in
this instance is reasonable and permissible. The members of the I.E.C. live in far-flung areas
of the United States and it would be unreasonable to require that they convene in the Reno
area or any other area to conduct these hearings. Love v. Grand Int. Div. Bro. Loco. Eng., 215
S.W. 602, 605 (Ark. 1919). The I.B.E.W. constitution required trial by the entire membership
of the I.E.C. This requirement was fulfilled because the record of the hearings was sent to
each member who then made his decision on the merits.
[Headnotes 2-5]
2. Union disciplinary tribunals are not governed by the strict procedural requirements of a
court of law. An informal procedure for resolving intra-union conflicts is limited only by the
classic requirement that due process and fairness must be afforded. As long as the merits are
fully disclosed with the accuser and the accused on a roughly equal footing the accused
cannot complain that he was denied counsel at a disciplinary hearing, Smith v. General Truck
Drivers, 181 F.Supp. 14 (S.D. Cal. 1960); Cornelio v. Metropolitan District Council, 243
F.Supp. 126 (E.D. Pa. 1965), Aff'd, Per Curiam, 358 F.2d 728 (3rd Cir. 1966), that he was not
informed in advance of the witnesses to be called by the union or that the degree of fairness
was diminished because the prosecutor was also a witness. Parks v. I.B.E.W., 314 F.2d 886,
cert. den., 372 U.S. 976 (1963). We find no fault in the hearings before the union board. To
say the least they were extensive beyond need. The finding by the board that the appellants
engaged in unjustified work stoppages in violation of their contract and the union constitution
is substantially justified by the voluminous record.
[Headnote 6]
3. Appellants contend that summary judgment should not have been granted because there
were material issues of fact which would have to be the subject of a trial. Absence of
undecided material genuine issues of fact is manifest from an examination of the motion for
summary judgment and its opposition. Appellants filed no affidavits in opposition as
required by NRCP 56{e).1 Therefore, the issues of law having been properly resolved by
the trial court, the summary judgment for respondent was properly granted.
required by NRCP 56(e).
1
Therefore, the issues of law having been properly resolved by the
trial court, the summary judgment for respondent was properly granted. Dredge Corp. v.
Husite Co., 78 Nev. 69, 369 P.2d 676 (1962); Foy v. Norfolk & Western Ry. Co., 377 F.2d
243 (4th Cir. 1967).
Affirmed.
Collins, C. J., Batjer, Mowbray, and Thompson, JJ., concur.
____________________

1
NRCP 56(e). Form of Affidavits; Further Testimony; Defense Required. 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. Sworn or
certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served
therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to
interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided
in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response,
by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine
issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
____________
85 Nev. 16, 16 (1969) Lujan v. State
HENRY LUJAN, Appellant, v. THE STATE
No. 5463
January 8, 1969 449 P.2d 244
Appeal from the Eighth Judicial District Court, Clark County; William P. Compton,
Judge.
Defendant was convicted before the trial court of selling narcotics, and he appealed. The
Supreme Court, Collins, C. J., held that buyer of narcotics is not an accomplice to act of
selling, and thus testimony of informer who bought narcotics need not have been
corroborated to support conviction.
Affirmed.
Charles L. Kellar, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, Jerry J.
Kaufman, Deputy District Attorney, Clark County, for Respondent.
85 Nev. 16, 17 (1969) Lujan v. State
1. Criminal Law.
In absence of evidence on issue of entrapment or request for instruction concerning entrapment, no
serious issue of entrapment was presented in prosecution for sale of narcotics.
2. Poisons.
Uncorroborated testimony of one addict, if believed by jury, will sustain conviction for selling narcotics.
3. Poisons.
Even if informer witness was drug addict, his uncorroborated testimony was sufficient to sustain
conviction for sale of narcotics.
4. Criminal Law.
Buyer of narcotics is not accomplice to act of selling, and thus testimony of informer who bought
narcotics need not have been corroborated to support conviction for sale of narcotics.
Motion made during trial to set aside indictment on ground that detective was present in grand jury room
while witnesses testified came too late and was properly refused. NRS 172.320, 174.160, 174.170.
Motion to set aside indictment must be made before demurrer or plea or it is waived. NRS 172.320,
174.160, 174.170.
7. Grand Jury.
Grand jury may require persons other than district attorney to be present when witnesses are being
examined. NRS 172.320.
8. Poisons.
Sentence for sale of narcotics of not less than 20 nor more than 40 years and fine of $10,000 was proper.
OPINION
Appellant was found guilty by a jury of selling narcotics. He was sentenced to a term of
imprisonment of not less than 20 nor more than 40 years and fined $10,000. We affirm the
conviction and sentence.
James Alexander, a police informer, was given $20 with which to make a narcotics buy.
He was searched by the police, furnished money and a pickup truck. He proceeded to a house
where appellant resided, and entered. Police watched the house while he remained in it for
approximately one hour. When he emerged and drove away, the police followed. He stopped
and turned a lid of marijuana over to them.
At the trial, Alexander testified that appellant, one Robert Ramirez, and a person known as
Frank were in the house when he entered. Alexander asked appellant to sell him the
marijuana, which he agreed to do, and the transaction was completed.
85 Nev. 16, 18 (1969) Lujan v. State
Appellant contends no sale of marijuana took place at all but that Alexander only inquired
if he knew anyone who wanted to purchase a color television set.
The following issues are before us on this appeal:
1. Is appellant the victim of an unlawful entrapment?
2. If Alexander is an addict-informer, does the law require corroboration of his testimony?
3. Is Alexander an accomplice so that his uncorroborated testimony will not support
conviction?
4. Were the rights of appellant prejudiced when the court permitted the testimony of Karl
Albright who was present at the grand jury proceedings?
5. Was appellant sentenced in excess of the statutory limits?
[Headnote 1]
1. There clearly can be no serious issue of entrapment in this case. No evidence was
offered by appellant indicating entrapment nor was any instruction requested concerning it.
Indeed, appellant's defense was that no sale of marijuana occurred at all.
[Headnotes 2, 3]
2. Even if Alexander were an addict, which the lower court found he was not, the
uncorroborated testimony of one addict, if believed by the jury, will sustain a conviction.
Crowe v. State, 84 Nev. 358, 441 P.2d 90 (1968); Tellis v. State. 84 Nev. 587, 445 P.2d 938
(1968).
[Headnote 4]
3. A buyer of narcotics is not an accomplice to the act of selling. Thus, Alexander's
testimony need not have been corroborated to support the conviction. Tellis v. State, supra.
[Headnote 5]
4. During the trial, appellant moved to set aside the indictment against him on the ground
that Detective Albright was present in the grand jury room while various witnesses testified.
He was there with permission of the grand jury. He was not present during the grand jury's
deliberations which resulted in appellant's indictment. The lower court properly refused to
grant the motion.
[Headnote 6]
The motion came too late. A motion to set aside an indictment as permitted by NRS
174.160 must be made before demurrer or plea or it is waived. NRS 174.170, Ex parte Esden,
55 Nev. 169, 28 P.2d 132 (1934); State v. Rothrock, 45 Nev. 214
85 Nev. 16, 19 (1969) Lujan v. State
45 Nev. 214, 200 P.525 (1921). State v. Hamilton, 13 Nev. 386 (1878). State v. Harris, 12
Nev. 414 (1877).
[Headnote 7]
Moreover, the grand jury may require persons other than the district attorney to be
present when witnesses are being examined. NRS 172.320. The record indicates that was the
situation here.
[Headnote 8]
5. The sentence of not less than 20 nor more than 40 years and a fine of $10,000 was
proper. Tellis v. State, supra.
The judgment of conviction and sentence are affirmed.
Zenoff, Mowbray, and Thompson, JJ., and Craven, D. J., concur.
____________
85 Nev. 19, 19 (1969) Nevada State Bank v. Snowden
NEVADA STATE BANK, a Nevada Corporation, Appellant, v. JAMES L. SNOWDEN, Jr.,
ELIZA SNOWDEN, GWENDOLYN L. BENNETT and REVEREND MARION BENNETT,
Respondents.
No. 5555
January 10, 1969 449 P.2d 254
Appeal from the Eighth Judicial District Court, Clark County; John Mowbray, Judge.
Action on note and guarantees. The lower court rendered judgment for defendant
guarantors, and plaintiff appealed. The Supreme Court, Collins, C. J., held that error in
admitting parol evidence to vary a written instrument cannot be raised for first time on
appeal, absent a proper objection at trial where point is specifically called to trial court's
attention for ruling.
Affirmed.
Galane & Wines and Stanley W. Pierce, of Las Vegas, for Appellant.
Charles L. Kellar, of Las Vegas, for Respondents Gwendolyn L. Bennett and Reverend
Marion Bennett.
1. Appeal and Error.
Error in admitting parol evidence to vary a written instrument cannot be raised for first time on appeal,
absent a proper objection at trial where point is specifically called to trial court's attention for ruling.
Unless specifically objected to at trial, objections to substantive error in absence of constitutional
considerations are waived and no issue remains for reviewing court's consideration.
3. Guaranty.
A written continuing guarantee in amount of $3,500, which was undated and did not state to whom it ran,
was not contractually binding.
OPINION
This appeal is from a judgment of the lower court, sitting without a jury, in favor of
Reverend and Mrs. Bennett. Snowdens have not appealed. We affirm that judgment.
James L. Snowden desired to borrow money from the Nevada State Bank. To get the loan
he prevailed upon the Bennetts to execute a written continuing guarantee for $1,500 on
August 15, 1962. Snowden was granted a loan of $1,500, and paid it in full. This guarantee
remained in the bank's possession and was not specifically cancelled by the Bennetts.
At about the same time Marion Bennett alone signed another written continuing guarantee
on behalf of Snowden in the amount of $3,500. This guarantee was undated and did not state
to whom the guarantee ran, although it too was in possession of the Nevada State Bank.
Snowden borrowed another $2,564.66 from the bank, which was not repaid. The bank
brought the present action against the Snowdens on the note and against the Bennetts on both
of the continuing guarantees.
Judgment against the Snowdens was taken by default. Bennetts defended the action, and
upon trial a judgment was rendered in favor of Bennetts and against the bank. This appeal
followed.
At the trial, without objection from the bank's counsel, Marion Bennett was orally
permitted to testify that, notwithstanding the written continuing guarantee, his agreement with
the bank was that he would not be liable for more than $1,500 borrowed by Snowdens under
their first note. He said the guarantee was for a one-time loan and that when it was paid his
obligation was ended. The trial court found in accordance with that contention.
Appellant contends that notwithstanding his failure at the trial to object or motion to strike
oral testimony varying a written instrument, the parole evidence rule is not a rule of evidence
but a substantive rule of law which can be raised for the first time on appeal.
[Headnote 1]
There is little doubt that if a timely objection had been made at trial, the oral testimony
offered to vary a written instrument would have been inadmissible. Chamberlain v. Stern, 11
Nev. 268 (1876); Gage v. Phillips, 21 Nev. 150, 26 P. 60 (1891); Burns v. Loftus, 32 Nev. 55,
104 P. 246 (1909); Tallman v. First National Bank, 66 Nev. 248, 208 P.2d 302 (1949).
Likewise, this court has already held the parole evidence rule to be a rule of substantive law
rather than a rule of evidence. Tallman v. First National Bank, supra; and see Crumley v.
Walter M. Ballard Corp., 224 P.2d 455, 457 (Cal.App. 1950).
However, we are not convinced that absent a proper objection at trial, where the point is
specifically called to the attention of the trial court for ruling, the error can be raised for the
first time on appeal. Humphries v. Haydon, 179 S.W.2d 895 (Ky. 1944); Anderson v. Owens,
205 F.2d 940 (9th Cir., 1953).
[Headnote 2]
The analogies which are available in Nevada law seem to compel the rule that unless
specifically objected to at trial, objections to a substantive error in the absence of
constitutional considerations are waived and no issue remains for this court's consideration.
Lathrop v. Smith, 71 Nev. 274, 288 P.2d 212 (1955); Duran v. Mueller, 79 Nev. 453, 386
P.2d 733 (1963); Wagon Wheel v. Mavrogan, 78 Nev. 126, 369 P.2d 688 (1962); Downing v.
Marlia, 82 Nev. 294, 417 P.2d 150 (1966).
The trial court having accepted Bennetts' oral testimony against the bank's reliance on the
written guarantee, we will not disturb that holding.
[Headnote 3]
We do not believe the substantially incomplete written continuing guarantee for $3,500 is
contractually binding at all.
Accordingly, the judgment is affirmed.
Zenoff and Thompson, JJ., and Gezelin, D. J., and Wilkes, D. J., concur.
____________
85 Nev. 22, 22 (1969) Rainsberger v. State
JACK RAINSBERGER, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 5576
January 10, 1969 449 P.2d 254
Appeal from a warrant of execution. Eighth Judicial District Court, Clark County; Howard
W. Babcock, Judge.
The Supreme Court, Zenoff, J., held that question whether warrant of execution signed by
judge who was not successor in office of judge who heard the plea of guilty was valid or not
was moot where time for execution had passed.
Remanded for a new warrant.
Samuel S. Lionel, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, and Earl
P. Gripentrog, Chief Criminal Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Question whether warrant of execution signed by judge who was not successor in office of judge who
heard the plea of guilty was valid or not was moot where time for execution had passed. NRS 176.495,
subd. 3.
OPINION
Appellant contends that the warrant of execution rendered on April 9, 1968 directing death
by administration of lethal gas on May 2, 1968 is invalid because the judge who signed the
warrant was not the successor in office of the judge who heard the plea of guilty as required
by NRS 176.495 (3).
Whether the warrant was valid or not is moot. The time set for execution has passed and a
new warrant will be required.
The new warrant should be drawn and signed by the judge of Department Three of the
Eighth Judicial District Court in accordance with NRS 176.495 (3).
Collins, C. J., Batjer and Thompson, JJ., concur.
____________
85 Nev. 23, 23 (1969) Cummings v. United Resort Hotels, Inc.
PHIL CUMMINGS, Administrator of the Estate of AIME PEROT, Also Known as AIME
JEAN PEROT; HENRI PEROT and JANE PEROT, Husband and Wife, Appellants, v.
UNITED RESORT HOTELS, INC., a Nevada Corporation, and KARAT, INC., a Nevada
Corporation, Doing Business as STARDUST HOTEL; and KHALIL BEN MAATALLAH,
Respondents.
No. 5595
January 10, 1969 449 P.2d 245
Appeal from an order granting a motion for summary judgment. Eighth Judicial District
Court; Alvin N. Wartman, Judge.
Suit against employer for wrongful death of employee. The lower court granted employer's
motion for summary judgment and plaintiffs appealed. The Supreme Court, Batjer, J., held
that death of employee resulting when he was stabbed in locker room, while preparing to
report to work, by fellow employee suffering from severe mental illness, of which employer
had actual or constructive knowledge arose out of employment and act relieving employer
from liability if employer had secured industrial insurance was applicable, and that where
employer had secured industrial insurance, all parties were within provisions of act, though
neither plaintiffs nor employer had reported injury and death of employee to industrial
commission and employer could be fined because of his failure to notify commission.
Affirmed.
Foley Brothers, of Las Vegas, for Appellants.
Deaner, Butler & Adamson, and Cromer and Barker, of Las Vegas, for Respondents.
1. Workmen's Compensation.
Employer's failure to give required notice of employee's injury and death to industrial commission did not
preclude employer from benefits and protection of act relieving employer from tort liability if employer
had secured industrial insurance. NRS 616.010 et seq., 616.270, 616.360, 616.500.
Failure of plaintiffs, in suit against employer for wrongful death of employee, and also of employer, to
file timely notice of employee's injury and death to industrial commission did not, for that reason alone,
bring plaintiffs within act giving common-law action against employer for failure to provide and secure
industrial insurance. NRS 616.375.
Where employer had secured industrial insurance, all parties were within provisions of act protecting
employer who has acquired industrial insurance from liability, though plaintiffs, in suit against employer
for wrongful death of employee, and employer had not reported injury and death of employee to industrial
commission. NRS 616.010 et seq., 616.270, 616.340, 616.345, 616.375, 616.650.
Death of employee resulting when he was stabbed in locker room, while preparing to report to work, by
fellow employee suffering from severe mental illness, of which employer had actual or constructive
knowledge arose out of employment and act relieving employer from liability if employer had secured
industrial insurance was applicable. NRS 616.270.
OPINION
On February 26, 1965, Aime Perot, an employee of United Resort Hotels, Inc., a Nevada
corporation, while on its premises in the Stardust Hotel's locker room and preparing to report
to work, was stabbed to death with a knife by Khalil Ben Maatallah, a fellow employee.
Perot's parents and the administrator of his estate brought this action for his wrongful death.
Following the filing of interrogatories by the parties, the respondent moved for a summary
judgment which was granted by the district court. The motion for summary judgment was
supported by affidavits and opposed by counter affidavits.
The assailant Maatallah, was suffering from a severe mental illness at the time of the
assault, and the record indicates that the respondent employer had actual or constructive
knowledge of his propensities for violence.
As affirmative defenses, the respondents, United Resort Hotels, Inc., and Karat, Inc., pled
that all parties were subject to the provisions of the Nevada Industrial Insurance Act, and that
the injury sustained by Perot was received in the course of and arose out of his employment.
The appellants claim that the district court erred in granting summary judgment because
there remained a genuine issue as to material facts and that the respondents were not entitled
to judgment as a matter of law.
In support of their position, appellants contend that the district court was wrong when it
ruled as a matter of law that appellants exclusive remedy was under the Nevada Industrial
Insurance Act (NRS Chapter 616), because the respondent employer had failed to provide and
secure workman's compensation, and because an injury as a result of an assault by an insane
co-employee, on the premises of the employer does not as a matter of law arise out of the
employment.
insane co-employee, on the premises of the employer does not as a matter of law arise out of
the employment.
The appellants first urge that they should be allowed to maintain this action under NRS
616.375
1
because of the respondent employer's failure to report the accident and injury as
required by NRS 616.340
2
and NRS 616.345
3
. We find these contentions to be without
merit.
NRS 616.375 gives the[ employee the right to bring an action at law against an employer
who fails to provide and secure compensation under NRS Chapter 616. Appellant maintains
that non-compliance with NRS 616.340 and NRS 616.345, amounts to failure to provide and
secure compensation. The affirmative defense that the respondent, United Resort Hotels,
Inc., had in fact secured industrial insurance pursuant to NRS Chapter 616, is undisputed.
____________________

1
NRS 616.375. 1. If any employer within the provisions of NRS 616.285 fails to provide and secure
compensation under this chapter, any injured employee or his dependents may bring an action at law against
such employer for damages as if this chapter did not apply.
2. The injured employee or his dependents may in such action attach the property of the employer at any
time upon or after the institution of such action, in an amount fixed by the court, to secure the payment of any
judgment which is ultimately obtained. The provisions of chapters 31 and 71 of NRS shall govern the issuance
of, and proceedings upon, such attachment.
3. In such action as in this section provided, the employer shall not escape liability for personal injury or
accident sustained by an employee of such employer, when the injury sustained arises out of and in the course of
the employment, because of any of the defenses set forth in subsection 1 of NRS 616.300, and in such case the
same presumptions as set forth in subsection 2 of NRS 616.300 shall apply.

2
NRS 616.340. 1. It shall be the duty of every employer within the provisions of this chapter, immediately
upon the occurrence of an injury to any of his employees, to render to the injured employee all necessary first
aid, including cost of transportation of the injured employee to the nearest place of proper treatment where the
injury is such as to make it reasonably necessary for such transportation.
2. The employer shall forthwith notify the commission of the accident, giving:
(a) The name of the injured employee.
(b) The nature of the accident.
(c) Where and by whom the injured employee is being treated.
(d) The date of the accident.

3
NRS 616.345. 1. Every employer within the provisions of this chapter, and every physician and surgeon
who attends an injured employee within the provisions of this chapter, shall file with the commission, under
rules and regulations as the commission may from time to time make, a full and complete report of every known
injury to an employee arising out of and in the course of his employment and resulting in loss of life or injury to
the person.
2. Reports shall be furnished to the commission in form and detail as the commission may from time to
time prescribe, and shall contain special answers to all questions required by the commission under its rules and
regulations.
affirmative defense that the respondent, United Resort Hotels, Inc., had in fact secured
industrial insurance pursuant to NRS Chapter 616, is undisputed. However, the record
indicates that neither the appellants nor respondents reported the injury and death of Perot to
the Nevada Industrial Commission.
[Headnote 1]
Although the respondent employer might be subject to a fine as provided in NRS 616.650,
4
for failure to comply with the provisions of NRS 616.345, this oversight does not strip it of
the benefits and protection of NRS Chapter 616, and does not subject it to the provisions of
NRS 616.375. Furthermore, pursuant to NRS 616.360 and NRS 616.500, someone on Perot's
behalf was obligated to give notice of his injury and death to the Nevada Industrial
Commission. The appellants by their inaction cannot preclude the employer respondent from
the benefits and protection of NRS Chapter 616.
[Headnote 2]
The failure on the part of both parties to file a timely notice does not, for that reason alone,
bring the appellants within NRS 616.375, and give them a common law action against the
respondent employer.
[Headnote 3]
We find that the employer respondent had provided and secured industrial insurance, and
that all parties were within the provisions of NRS Chapter 616 at the time of the assault on
Perot. The effect of the failure to file timely notice of such injury is not a question to be here
decided, nor is the Nevada Industrial Commission an indispensable party in this case.
Appellant next contends that NRS 616.2705 is not applicable in this case because the
assault did not arise out of Perot's employment. In reaching its decision the district court
correctly found that the assault with resulting injury and death arose out of Perot's
employment.
____________________

4
NRS 616.650. Any person, firm or corporation, agent or officer of any firm or corporation, or any
attending physician or surgeon who fails or refuses to comply with the provisions of NRS 616.345 shall be fined
not more than $200.

5
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. 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.
correctly found that the assault with resulting injury and death arose out of Perot's
employment.
It is not controverted that the assault upon Perot was perpetrated while he was in the
course of his employment, but appellants contend that the resultant injury did not arise out of
his employment.
The appellants rely on the case of McColl v. Scherer, 73 Nev. 226, 315 P.2d 807 (1957) in
support of their position that the injury to Perot did not, as a matter of law, arise out of his
employment. The McColl case is clearly distinguishable because there the assault was
perpetrated by a customer who was a member of the general public and not, as here, by an
insane fellow employee.
[Headnote 4]
We find, as a matter of law, that the death arose out of the employment, since Perot was
assaulted in the course of his employment by an insane fellow employee. The risk to Perot of
injury or death from assault by Maatallah was far greater than that incurred by the public in
general. The respondent employer is entitled to the defense of the exclusive coverage of NRS
616.270 and is relieved from other liability for recovery of damages for such personal injury
and death.
In Pacific Employers Ins. Co. v. Industrial Acc. Com'n., 293 P.2d 502 (Cal.App. 1956),
where an employee, who in the opinion of a physician, was a paranoic schizophrenic,
mentally unbalanced and suffering from delusions of persecution, shot and killed a fellow
employee, the court held the injury arose out of the employment, and said: It is undoubtedly
the law that when a workman is not exposed to a peculiar risk because of his employment but
is only exposed to a risk common to the general public, and is injured by that source, the
injury is not compensable. More specifically, it is well settled that injuries resulting from
assaults by fellow workmen when the attack results from personal animosity unconnected
with the employment, are not compensable. But this rule is inapplicable if the employment
increases or contributes to the risk of assault. . . . [T]he weight of authority and certainly the
better reasoned cases, hold that when a fellow employee goes insane and kills or attacks a
fellow employee the injury or death is compensable.
In the case of Howard v. Harwood's Restaurant Co., 128 A.2d 727 (N.J. 1957), that court
said: In addition to the matters stated there, it may be noted that the ordinary employer has
the right of delectus personae. He selects and engages the employees; he places them for the
performance of his work in the various departments or locations and he arranges the
contact or association the employees have with each other during the course of the work,
either expressly or as the result of the natural requirements of the operation.
his work in the various departments or locations and he arranges the contact or association the
employees have with each other during the course of the work, either expressly or as the
result of the natural requirements of the operation. In the usual case, the employee has no
choice as to his fellow employees or the nature or proximity of their contact with him. Such
matters are regulated by the employer or by the demands of his business. Thus it may be said
that a workman's fellow employees with all their idiosyncrasies and weaknesses, physical and
mental, are a condition of the employment. . . . Insanity is a condition which must be
recognized as an incident of everyday life; it can erupt into irrational and purposeless violence
at any time during the working day. An employee who is injured in the course of his work by
the insane act of a fellow worker, in our judgment, clearly sustains an injury which arises out
of the employment.
In Anderson v. Security Building Co., 123 A. 843, 844, 40 A.L.R. 1119 (Conn. 1924), it is
held as follows: When an employer puts an employee at work on a machine, although the
employer may have exercised all reasonable care to provide that it is safe, . . . which, without
fault on his part, has a latent defect, which causes it to break down and injure the employee,
the injury is unquestionably one arising out of a condition of his employment. It is
immaterial, under the act, whether the employer knew or ought to have known of the
existence of the dangerous condition. So where a fellow servant by his negligence injures
another employee, compensation is due for the injury, since it arose from a condition of the
employment, to wit, the possibility of such negligence of a fellow servant. The knowledge of
the employer as to the liability of the fellow servant to be negligent is immaterial. Such
liability is a condition attending the employment. The situation here presented of an insane
man running amuck, is in no way analogous to a case where a fellow employee assaults
another employee solely to gratify his feeling of anger or hatred; in such case the injury
results from the voluntary act of the assailant, and cannot be said to arise either directly out of
the employment, or as an incident of it.' . . . Whenever an employer puts his employees at
work with fellow servants the conditions actually existing, apart from the possibility of
willful assaults by a fellow servant independent of the employment, which result in injury to a
fellow employee, are a basis for compensation under the implied contract of that act. So in
this case, although the employer may not have had knowledge actual or constructive that
Markus, a fellow servant of the plaintiff, was insane and liable to run amuck, yet such
liability of Markus to run amuck was in fact a condition under which the plaintiff was
employed on the night in question, and, if such condition of Markus caused an injury to
the plaintiff, as it did, then the injury to the plaintiff arose out of his employment as truly
as if it had arisen from the negligence of Markus in doing his work."
plaintiff, was insane and liable to run amuck, yet such liability of Markus to run amuck was
in fact a condition under which the plaintiff was employed on the night in question, and, if
such condition of Markus caused an injury to the plaintiff, as it did, then the injury to the
plaintiff arose out of his employment as truly as if it had arisen from the negligence of
Markus in doing his work.
Other cases that have allowed recovery under industrial insurance act where the accidents
have resulted from the conduct of insane fellow employees are: John H. Kaiser Lumber Co. v.
Industrial Commission, 195 N.W. 329 (Wis. 1923); Petroleum Casualty Co. v. Kincaid, 93
S.W.2d 499 (Texas App. 1936); Charbazian v. Regina Novelty Corp., 14 N.Y.S.2d 654
(1939); Chadwick v. White Provision Co., 60 S.E.2d 551 (Ga.App. 1950); Zimmerman v.
Elizabeth City Freezer Locker, 94 S.E.2d 813 (N.C. 1956). See also Whaley v. Patent Button
Co., 202 S.W.2d 649 (Tenn. 1947).
When the district court entered its order for summary judgment there remained no real or
material issue of fact to be tried by a court or jury and as a matter of law the respondent
employer was entitled to judgment.
The district court's order for summary judgment is sustained and the judgment below is in
all respects affirmed.
____________
85 Nev. 29, 29 (1969) Brunzell v. Woodbury
EVERETT S. M. BRUNZELL, Appellant, v. W. VERNE WOODBURY and ANDREA
WOODBURY, His Wife, WILLIAM R. THORNTON, a Married Man, and DORIS H.
THORNTON, a Single Women, Respondents.
No. 5601
January 10, 1969 449 P.2d 158
Appeal from an order and judgment entered granting motion for summary judgment.
Second Judicial District Court; John E. Gabrielli, Judge.
Suit for deficiency on a note after foreclosure on security for note. The lower court granted
summary judgment to plaintiffs and defendant appealed. The Supreme Court, Batjer, J., held
that where there was no contention that real estate foreclosure was made in any manner other
than in accordance with trustee's powers of sale and according to applicable law, or that
there was fraud, oppression, or unfairness in procedure and foreclosure sale, inadequate
price was insufficient ground for setting aside sale.
with trustee's powers of sale and according to applicable law, or that there was fraud,
oppression, or unfairness in procedure and foreclosure sale, inadequate price was insufficient
ground for setting aside sale. The Court further held that defendant who executed note and
deed of trust was personally obligated thereby, even if acting only as agent, where
instruments neither named principal nor indicated that defendant signed in representative
capacity, even though vendors may have known that defendant was acting as agent.
Affirmed.
Goldwater, Taber, Hill and Mortimer, and Robert E. Rose, of Reno, for Appellant.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Respondents.
1. Mortgages.
Where there was no contention that real estate foreclosure was made in any manner other than in
accordance with trustee's powers of sale and according to applicable law, or that there was fraud,
oppression or unfairness in procedure at foreclosure sale, inadequate price was insufficient ground for
setting aside sale.
2. Mortgages.
Opinion of debtor as to value of security could not be substituted for the accepted mode for determining
value.
3. Mortgages.
Person who executed note and deed of trust was personally obligated thereby and could be held
accountable for deficiency, even if acting only as agent, where instrument neither named principal nor
indicated that agent signed in representative capacity, even though vendors may have known that person
was acting as agent.
4. Principal and Agent.
Agent who signs his name to instrument is personally obligated if instrument neither names person
represented nor shows that agent signed in representative capacity.
5. Mortgages.
Vendors were not estopped from asserting that person who signed note and deed of trust was personally
liable for deficiency resulting from allegedly inadequate price received from trustee's foreclosure sale,
where there was no contention of fraud, oppression, or unfairness at foreclosure sale.
OPINION
This is an appeal from a summary judgment granted in favor of the respondents for a
deficiency on a promissory note in the amount of $34,557.26, together with interest at the
rate of 7 percent per annum, and attorney's fees in the amount of $5,000.
amount of $34,557.26, together with interest at the rate of 7 percent per annum, and attorney's
fees in the amount of $5,000. The appellant seeks to have the judgment of the lower court
reversed on the ground that there remain genuine issues of material fact to be presented to a
trier of fact and that the respondents are not entitled to judgment as a matter of law.
On March 23, 1966, appellant and respondents entered into an agreement wherein the
respondents agreed to sell to the appellant certain land in Reno, Washoe County, Nevada.
According to the terms of the agreement the total purchase price was $136,000, of which
$95,000 was to be paid on closing of the escrow, and the balance of $41,000 was to be
evidenced by a promissory note secured by a deed of trust. It was further agreed that the
purchaser's liability under the promissory note would be limited to such deficiency as might
exist after foreclosure of the deed of trust and sale of the subject property.
On April 5, 1966, a promissory note and a deed of trust securing the note were executed by
the appellant. There is no contention of, nor is there any, ambiguity in either instrument.
On April 5, 1967, the principal and interest due under the terms of the promissory note
remained unpaid, and on May 18, 1967, the respondents instituted proceedings to foreclose
the deed of trust. On September 13, 1967, the property was sold to Wilhelm Berger, a
stranger to the original transaction, for the sum of $11,500. From this amount was deducted
$927.95 to pay expenses incurred in connection with the sale, and the remaining $10,572.05
was disbursed to the respondents. On October 16, 1967, the respondents filed suit to obtain a
deficiency judgment.
The appellant contends that the price paid by the purchaser at the foreclosure sale was
grossly inadequate, resulting in an excessive deficiency. He makes no contention that the
foreclosure was made in any manner other than in accordance with the trustee's powers of
sale and according to the applicable law, nor does he contend that there was fraud, oppression
or unfairness in procedure at the foreclosure sale. The cases of Nevada Land & Mtge. v.
Hidden Wells, 83 Nev. 501, 435 P.2d 198 (1967), and Golden v. Tomiyasu, 79 Nev. 503, 387
P.2d 989 (1963), and cases cited therein dispose of his contention which we find to be
without merit.
In Golden v. Tomiyasu, supra, this court held that a sales price representing 28.5 percent
of the value of the property was not inadequate and went on to adopt the rule laid down in
Oller v. Sonoma County Land Title Company, 137 Cal.App.2d 633, 290 P.2d SS0 {1955),
that: ". . . inadequacy of price, however gross, is not in itself a sufficient ground for
setting aside a trustee's sale legally made; there must be in addition proof of some
element of fraud, unfairness, or oppression as accounts for and brings about the
inadequacy of price."
633, 290 P.2d 880 (1955), that: . . . inadequacy of price, however gross, is not in itself a
sufficient ground for setting aside a trustee's sale legally made; there must be in addition
proof of some element of fraud, unfairness, or oppression as accounts for and brings about the
inadequacy of price.
[Headnote 1]
In this case, although there is no independent evidence of the value of the property at the
date of sale, the sales price of $11,500 was approximately 25 percent of the debt. There is
nothing in the record to indicate this price was inadequate, but this is of no consequence since
we find that inadequate price standing alone is insufficient grounds for setting aside the sale.
In McMillan v. United Mortgage Co., 82 Nev. 117, 412 P.2d 604 (1966), this court held
that the mode for determining the value of the security is to exhaust the security by sale, and
went on to say: In any event, the creditor's opinion of value may not be substituted for the
mode of determining that fact.
[Headnote 2]
Here we will not substitute the opinion of the appellant for the accepted mode for
determining the value of the security. In accord: Smith v. General Investment, Inc., 150 So.2d
862 (Miss. 1963).
Appellant next contends that when he executed the promissory note and deed of trust, he
was not acting as a principal but only as an agent for a disclosed principal and, therefore,
cannot be held accountable for the deficiency. There was no evidence on the face of the
promissory note or deed of trust that the appellant was acting as an agent. He contends,
however, that this is immaterial because his contemporaneous agreement with third parties
clearly shows that he was acting as their agent and not acting as a principal, and that this was
known by the respondents.
[Headnote 3]
We find the appellant's position untenable. The respondents were never parties to this
separate agreement, and they have no legal cause of action against the third parties who were
in no way parties to the deed of trust or the promissory note.
[Headnote 4]
Elementary in our scheme of jurisprudence is the principle of law that an agent who signs
his own name to an instrument is personally obligated if the instrument neither names the
person represented nor shows that the agent signed in a representative capacity. It has been
adhered to by a great majority of the courts in this country and has been the law of this
state since early statehood.
the courts in this country and has been the law of this state since early statehood.
In the case of Gillig & Co. v. Lake Bigler Road Co., 2 Nev. 214 (1866), this court held that
unless the intention to bind the principal appears on the face of the written instrument, parol
evidence is inadmissible to charge him on it.
In Van Haaren v. Whitmore, 38 P.2d 829 (Cal.App. 1934), the court, citing other cases in
the field, held: The rule is well established that extrinsic evidence is not admissible to avoid
the liability of the maker of a promissory note who signs in his individual capacity, even
though he was acting in a representative capacity for another at the time, when the note is not
uncertain, doubtful or ambiguous. Crocker National Bank v. Say, 209 Cal. 436, 288 P. 69;
Williams v. Silverstein, 213 Cal. 269, 276, 2 P.(2d) 165. Where, as here, it is contended that
the note is not that of the defendants, but of another, it must appear from the instrument itself
that the true object and intent of it are to bind the principal and not the person who signed the
note, before he can escape personal liability. Hobson v. Hassett, 76 Cal. 203, 18 P. 320, 9
Am.St.Rep. 193. When the parties have deliberately put their agreement in writing, in such
language as imports a legal consideration, it is conclusively presumed that the whole
engagement and the extent and manner of their undertaking is there expressed.
Also, in Barnett Bros. v. Lynn, 203 P. 387 (Wash. 1922), that court held that if a party
knew when the contract was entered into for the benefit of third parties, the contract should
have been made to clearly indicate. The absence to so show conclusively indicated that they
intended to look only to the parties named in the contract for its performance.
[Headnote 5]
Appellant's third contention that the respondents are estopped from asserting that the
appellant is personally liable for the deficiency resulting from the inadequate price received
from the trustee's foreclosure sale is entirely without merit.
Here no material issue of fact remained to be tried. As a matter of law the respondents
were entitled to an order granting them summary judgment. Short v. Hotel Riviera, Inc., 79
Nev. 94, 378 P.2d 979 (1963).
The judgment of the district court is hereby affirmed with costs.
____________
85 Nev. 34, 34 (1969) Willard v. Buck
BILL WILLARD, dba PUBLIC RELATIONS ADVERTISING,
Appellant, v. HAROLD BUCK, Respondent.
No. 5592
January 15, 1969 449 P.2d 471
Appeal from a judgment that no contract existed between the litigants. Eighth Judicial
District Court, Clark County; Thomas J. O'Donnell, Judge.
Suit to recover compensation from candidate for office for advertising services allegedly
rendered for him under oral contract. The trial court entered judgment against plaintiff on
basis that he had failed to prove existence of contract by preponderance of evidence, and
plaintiff appealed. The Supreme Court, Zenoff, J., held that proof was sufficient to give rise
to presumption that candidate intended to pay for nongratuitous services that he had requested
and received, and trial court, if evidence would be equally weighed and did not overcome
such presumption, would be required to find for plaintiff.
Reversed for redetermination by trial court in accordance with this opinion.
Thompson, J., dissented.
Denton & Monsey, and Margaret Ann Willoughby, of Las Vegas, for Appellant.
Morse, Graves, Parraguirre & Rose, Ltd., and John Taylor, of Las Vegas, for Respondent.
1. Work and Labor.
When nongratuitous services are rendered for one who is not relative, and these services are voluntarily
accepted, inference or presumption arises that beneficiary promises to pay for these services, particularly
where beneficiary requests them.
2. Work and Labor.
Burden of proof is on beneficiary who voluntarily accepts nongratuitous services rendered by one not a
relative to rebut inference or presumption that he promises to pay for nongratuitous services.
3. Work and Labor.
In suit against candidate for office for compensation for advertising services, allegedly rendered for him
under oral contract proof was sufficient to give rise to presumption that candidate intended to pay for
nongratuitous services that he had requested and received.
4. Work and Labor.
Where proof, in suit to recover from candidate compensation for advertising services,
was sufficient to raise presumption that candidate intended to pay for nongratuitous
services requested and received by him, trial court, if evidence would be equally weighed
and did not overcome such presumption, would be required to find for plaintiff.
OPINION
Appellant Willard supervised the campaign advertising for respondent Buck's unsuccessful
1963 bid for the office of Las Vegas City Commissioner. Willard contends that he is entitled
to compensation for his services under an alleged oral contract with Buck. Buck contends that
Harry Kaye was the person who promised to pay for the campaign expenses. The district
court held that Willard had failed to show the existence of a contract with Buck by a
preponderance of the evidence and therefore ruled in favor of Buck.
[Headnotes 1, 2]
It is well-established that when nongratuitous services are rendered for one who is not a
relative, and these services are voluntarily accepted, an inference or presumption arises that
the beneficiary promises to pay for these services. Morrill v. United States, 228 F.Supp. 734
(D.Me. 1964); Keeton v. Bozark, 339 S.W.2d 123 (Ark. 1960); Williams v. Dougan, 346
P.2d 241 (Cal.App. 1959); In re Martin's Estate, 155 N.W.2d 401 (Iowa 1968); Smith v.
Sypret's Estate, 421 S.W. 2d 9 (Mo. 1967); Cronn v. Fisher, 422 P.2d 276 (Ore. 1966);
Gename v. Benson, 153 N.W.2d 571 (Wis. 1967); In re Voss' Estate, 121 N.W.2d 744 (Wis.
1963); In re Kuepper's Estate, 107 N.W.2d 621 (Wis. 1961); Fieldhouse Landscape, Inc. v.
Gentile, 107 N.W.2d 491 (Wis. 1961); cf. Bangle v. Holland Realty Inv. Co., 80 Nev. 331,
393 P.2d 138 (1964); Annotation, 7 A.L.R.2d 8 (1949); 3 A. Corbin, Contracts 566 (1960).
This rule is particularly applicable when, as in this case, the beneficiary requests the services.
The burden of proof is on the beneficiary to rebut the inference or presumption.
[Headnotes 3, 4]
It appears that there was sufficient proof given here to raise the presumption that Buck
intended to pay for the services he requested and received. The trial court apparently believed
that the evidentiary presentations proving and disproving a contract between Willard and
Buck were equally persuasive and that therefore the appellant had not proven a contract
by a preponderance of the evidence.
the evidentiary presentations proving and disproving a contract between Willard and Buck
were equally persuasive and that therefore the appellant had not proven a contract by a
preponderance of the evidence. It does not appear that either counsel or the court were aware
of the operation of the presumption. If the trial court believes that the evidence was equally
weighted, the presumption has not been overcome and the court must find for Willard. If the
trial court believes that respondent has shown by a preponderance of the evidence that
Willard's claims were to be paid by Harry Kaye, then it must find for Buck.
We therefore remand to the trial court for a reconsideration of the evidence and
appropriate findings in light of the rule announced here. Another trial is not required.
Collins, C. J., Batjer and Mowbray, JJ., concur.
Thompson, J., dissenting:
Willard, a public relations and advertising man, commenced this action against Buck to
recover money claimed to be due for services rendered under an oral agreement to handle the
campaign advertising for Buck's unsuccessful 1963 bid for the office of Las Vegas City
Commissioner. The district court ruled in favor of the defendant Buck on the premise that
Willard had failed to prove an oral agreement with Buck obligating the latter to pay. I would
affirm that determination since the record contains substantial evidence to support it. Slobe v.
Kirby Stone, Inc., 84 Nev. 700, 447 P.2d 491 (1968).
The evidence was conflicting and the trial judge was free to resolve the conflicts. Had he
accepted Willard's testimony in full he could have ruled for him without fear of reversal by
us. However, he apparently rejected Willard's version and preferred the evidence submitted in
defense, which established that Willard would rely upon one Harry Kaye for the payment of
expenses and fees incurred in the handling of Buck's campaign. I am not willing to assume, as
do my Brothers, that the trial court was unaware of the legal presumption mentioned in the
majority opinion, and decided the case without considering it.
____________
85 Nev. 37, 37 (1969) Ryczkowski v. Chelsea Title
EVELYN B. RYCZKOWSKI and GEORGE J. BROWN and EVELYN B. RYCZKOWSKI,
Co-Trustees, Brown Trust, Appellants, v. CHELSEA TITLE AND GUARANTY
COMPANY, a New Jersey Corporation, Respondent.
No. 5604
January 15, 1969 449 P.2d 261
Appeal from judgment of the Second Judicial District Court, Washoe County; Emile J.
Gezelin, Judge.
Suit by landowners against title insurer for failure to list on policy a recorded easement as
an incumbrance upon their title. The lower court entered judgment for insurer, and
landowners appealed. The Supreme Court, Thompson, J., held that easement, which was
granted by landowners' predecessor in title and recorded at time when predecessor was owner
only of equitable interest in land under unrecorded sales contract and had not yet acquired
title by patent from state, was wild document not within chain of title and was excluded from
coverage of title insurance policy, which did not cover loss or damage by reason of
easements, claims of easements, or incumbrances not shown by public records.
Affirmed.
Nada Novakovich, of Reno, for Appellants.
Breen and Young, and David R. Hoy, of Reno, for Respondent.
1. Insurance.
Easement, which was granted by landowners' predecessor in title and recorded at time when predecessor
was owner only of equitable interest in land under unrecorded sales contract, and had yet acquired title by
patent from state, was wild document not within chain of title and was excluded from coverage of title
insurance policy, which did not cover loss or damage by reason of easements, claims of easements, or
incumbrances not shown by public records. NRS 321.240, 321.300, 321.310.
2. Abstracts of Title; Insurance.
Instrument executed by owner which is recorded before acquisition or after relinquishment of title by
owner is outside chain of title, and, thus, title searcher is not liable for its failure to discover such an
instrument and title insurer is not liable under policy excluding easements, liens or incumbrances not
shown by public records.
3. Public Lands.
Patent from state is first instrument by which title passes from sovereign to an individual. NRS
321.300.
OPINION
By the Court, Thompson, J.:
[Headnote 1]
This is an action for damages by the record owners of land against the title insurance
company for its failure to list on the policy of title insurance a recorded easement as an
encumbrance upon the owners' title. The controlling issue is whether that recorded easement,
granted by a predecessor in interest while the equitable owner of state land and before his
acquisition of patent thereto, falls within the coverage of a policy of title insurance written for
the present owners who are successors in interest of the patentee. The title insurance policy
does not insure against loss or damage by reason of easements, claims of easement, or
encumbrances which are not shown by the public records. Although the easement was
physically of record, the district court ruled that since the easement was recorded before the
grantor of the easement acquired title to the land by patent, the recorded easement was a
wild document, not within the chain of title, and excluded from the coverage of the title
insurance policy. Accordingly, judgment was entered for the title insurance company. We
affirm that ruling on the authority of Snow v. Pioneer Title Insurance Company, 84 Nev. 480,
444 P.2d 125 (1968).
The facts presenting the legal issue are these: In 1946 one J. J. Cleary entered into a land
sale contract with the State of Nevada (NRS 321.240) and, in 1952, acquired title from the
state by patent (NRS 321.310). The patent contained the land sale contract number in the
upper right-hand corner of the document. The land sale contract, however, was not recorded.
In 1949, while enjoying his equitable interest in the land, and before acquiring legal title
thereto by patent, Cleary granted a power line easement over a portion of the property to the
Sierra Pacific Power Company, which document the company caused to be recorded. The
easement embraced about 2.1 acres upon which the company placed its poles and power
lines. Title to the patented land thereafter passed from Cleary to various persons and finally,
in 1964, to the present owners. Title Guaranty (now defunct) was engaged to search the
record for defects in title, and Chelsea Title to insure title to the land.
defects in title, and Chelsea Title to insure title to the land. The title search by Title Guaranty
stopped with the 1952 recorded patent from the state. Consequently, the 1949 power company
easement was not discovered, and was not listed in the title insurance policy issued by
Chelsea as an encumbrance upon the owners' title. Hence, this litigation.
[Headnote 2]
Snow v. Pioneer Title Insurance Company, supra, established the rule for Nevada that an
instrument executed by an owner which is recorded before acquisition or after relinquishment
of title is outside the chain of title.
1
Consequently, the title searcher is not liable for its
failure to discover such an instrument, and the title insurer is not liable since such an
instrument falls within the exclusion of the insurance policy of easements, liens or
encumbrances not shown by the public records. We there noted that such rule is preferred in
the states which use the grantor-grantee indexing system, and is justified by the practical
considerations which attend title record searching.
[Headnote 3]
The 1952 patent from the state to Cleary was the original source of title and the first link in
the chain of title for the purposes of title searching. Thompson, Abstracts and Titles, 2d ed.,
817, 125.
2
A patent is the first instrument by which title passes from the sovereign to an
individual. NRS 321.300; South End Mining Co. v. Tinney, 22 Nev. 221, 38 P. 401 (1894);
Stimson Land Co. v. Rawson, 62 F. 426 (Wash. Cir. 1894). Accordingly, the power company
easement which was executed and recorded before the issuance of patent by the state was a
wild document, not within the chain of title, and not shown by the public records. Snow
v. Pioneer Title Insurance Company, supra.
Since Snow v. Pioneer Title Insurance Company, supra, is dispositive of this case, we do
not consider other arguments advanced to support the judgment below, nor other
contentions seeking to invalidate it.
____________________

1
The chain of title is constituted by conveyances made by successive holders of the record title but made by
them while respectively holders thereof. Philbrick, Limits of Record Search and Therefore of Notice, 93
U.Pa.L.Rev. 125, 178.

2
The owners suggest that the original source of title was not the 1952 patent, but was the 1946 land sale
contract, and contend that when patent issued it related back to the 1946 contract. The suggestion is
meaningless since the 1946 contract was not placed on record. In any event, none of the cases cited by them for
the relation back doctrine involves the issue with which we are here concerned.
advanced to support the judgment below, nor other contentions seeking to invalidate it.
Affirmed.
Collins, C. J., Zenoff, Batjer, and Mowbray, JJ., concur.
____________
85 Nev. 40, 40 (1969) Southwest Gas v. District Court
SOUTHWEST GAS CORPORATION, Appellant, v. THIRD JUDICIAL DISTRICT
COURT; HON. JOHN F. SEXTON and Any and All Visiting Judges; and T. DAVID
HORTON, Lander County District Attorney, Respondents.
No. 5596
January 21, 1969 449 P.2d 259
Original proceedings in prohibition.
Original application for writ of prohibition to preclude district court from proceeding
further with class action count of petition. The Supreme Court, Mowbray, J., held that
gratuitous attempt by Lander County District Attorney to represent, in a class action, other
counties, with or without their consent, was prohibited by statute providing that district
attorney shall prosecute all actions for the recovery of debts, fines, penalties, and forfeitures
accruing to his county.
Writ issued.
C. H. McCrea and Lawrence V. Robertson, of Las Vegas, for Appellant.
T. David Horton, District Attorney, Lander County, for Respondents.
1. District and Prosecuting Attorneys.
Gratuitous attempt by Lander County District Attorney to represent, in a class action, other counties, with
or without their consent, was prohibited by statute providing that district attorney shall prosecute all actions
for the recovery of debts, fines, penalties, and forfeitures accruing to his county. NRS 34.320,
34.330, 252.110; Const. art. 4, 32.
2. District and Prosecuting Attorneys.
Powers of district attorney are not gauged by those of an attorney-at-law, but they are such only as are
given him by statute; his powers are not more general than are those of the assessor and treasurer, in
matters appertaining to the collection of taxes.
assessor and treasurer, in matters appertaining to the collection of taxes. NRS 34.320, 34.330,
252.110; Const. art. 4, 32.
3. Courts.
Jurisdiction not only contemplates power of court to act, but also contemplates that one seeking to invoke
jurisdiction of court has the authority to do so.
OPINION
By the Court, Mowbray, J.:
The District Attorney of Lander County has filed in the Third Judicial District Court a tax
collection action in three counts against Southwest Gas Corporation. The second count is a
class action brought on behalf of all the counties in the State where Southwest has assets. The
District Attorney did not obtain authority from the other counties to file the class action, but
did so strictly on his own, for the reason that if he were successful on behalf of his own
county of Lander, the other counties where Southwest had assets would enjoy a tax revenue
windfall.
Southwest moved to dismiss Count Two, the class action, on the ground that the District
Attorney had no authority to file it. The trial court denied the motion, and we are now faced
with this application for a writ of prohibition to preclude the Third Judicial District Court
from proceeding further with Count Two. Southwest claims that it has no plain, speedy, and
adequate remedy at law, as the order denying the motion cannot be appealed, and that the
district court is without jurisdiction to hear Count Two. NRS 34.320 and NRS 34.330.
[Headnote 1]
Article 4, section 32, of the Constitution of the State of Nevada has given the State
Legislature the power to fix the duties of the District Attorney.
1
The Legislature has done so
in NRS 252.110,2 where it is provided that the district attorney shall prosecute all actions
for the recovery of debts, fines, penalties, and forfeitures accruing to his county.
____________________

1
Nevada Constitution, Art. 4, 32. County officers: Power of legislature; election, duties and compensation;
duties of county clerks. The Legislature shall have power to increase, diminish, consolidate or abolish the
following county officers: County Clerks, County Recorders, Auditors, Sheriffs, District Attorneys, County
Surveyors, Public Administrators and Superintendents of Schools. The Legislature shall provide for their
election by the people, and fix by law their duties and compensation. County Clerks shall be ex-officio Clerks of
the Courts of Record and of the Boards of County Commissioners in and for their respective counties.
in NRS 252.110,
2
where it is provided that the district attorney shall prosecute all actions for
the recovery of debts, fines, penalties, and forfeitures accruing to his county. The statute is
patently clear that the district attorney has the power to act solely on behalf of his own
county, and for no other county, to recover debts, fines, penalties, and forfeitures.
[Headnote 2]
As this court said in State v. California Mining Co., 15 Nev. 308, 310 (1880): The powers
of a district attorney are not gauged by those of an attorney-at-law, but they are such only as
are given him by the statute. His powers are not more general than are those of the assessor
and treasurer, in matters appertaining to the collection of taxes. (Emphasis added.) See also
State v. Farrell, 151 P.2d 636 (Ore. 1944).
[Headnote 3]
The Lander County District Attorney's gratuitous attempt to represent the other counties,
with or without their consent, is prohibited by statute. Since he had no authority to act, he had
no authority to include Count Two in the suit which he filed for Lander County. Jurisdiction
not only contemplates the power of the court to act, but also contemplates that one seeking to
invoke the jurisdiction of the court has the authority to do so. We conclude that the motion to
dismiss Count Two should have been granted, since the district court does not have
jurisdiction to hear that claim for relief.
The writ shall issue.
Collins, C. J., Batjer and Thompson, JJ., and Compton, D. J., concur.
____________________

2
NRS 252.110. Duties. The district attorney shall:
. . . . .
3. Prosecute all recognizances forfeited in the district court and all actions for the recovery of debts, fines,
penalties and forfeitures accruing to his county.
____________
85 Nev. 43, 43 (1969) Cipolla v. Cipolla
AUGUSTINE R. CIPOLLA, Appellant, v.
MABEL CIPOLLA, Respondent.
No. 5603
January 22, 1969 449 P.2d 258
Appeal from judgment of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Proceedings on motion to vacate default judgment in divorce action. The lower court
denied relief and husband appealed. The Supreme Court, Mowbray, J., held that where
husband lived with wife for 19 months after wife had commenced divorce action and wife
proved up default divorce without any notice or knowledge thereof by husband, husband's
motion to set aside default judgment which was made 5 days after he was delivered copy of
judgment was timely and should have been granted.
Reversed.
Richards & Demetras, of Reno, for Appellant.
Nelson, Santos, Bull & Hickey, of Reno, for Respondent.
Divorce.
Where husband lived with wife for 19 months after wife had commenced divorce action and wife proved
up default divorce without any notice or knowledge thereof by husband, husband's motion to set aside
default judgment which was made 5 days after he was delivered copy of judgment was timely and should
have been granted. NRCP 60(b).
OPINION
This is an appeal from an order denying appellant's motion to set aside a default judgment.
Mabel Cipolla sued Augustine R. Cipolla for a divorce on July 8, 1966. Augustine was
served on July 11, 1966, with copies of the complaint and summons. In accordance with a
restraining order which Mabel secured when she filed her complaint, Augustine moved from
the family dwelling. A week later, Mabel asked him to return home. He did, and they lived
together continuously until March 1, 1968. On the morning of that day, Mabel, without any
notice to Augustine, left the house and went to the courthouse. There, with her attorney, she
entered a default against Augustine and received an immediate divorce.
85 Nev. 43, 44 (1969) Cipolla v. Cipolla
immediate divorce. She returned to their home and handed Augustine a copy of the divorce
decree, which permanently enjoined him from entering the premises where he and Mabel had
lived since she had filed her complaint, a period in excess of 19 months.
Five days later, on March 6, Augustine filed a motion to set aside the default judgment
[NRCP 60(b)],
1
asserting, among other grounds, surprise. He supported his motion with his
affidavit alleging a meritorious defense existing at the time the complaint was filed. Hotel
Last Frontier v. Frontier Prop., 79 Nev. 150, 380 P.2d 293 (1963). He further asserted that
they had lived together continuously since Mabel had filed her complaint. Mabel did not file a
counteraffidavit.
Certainly, under the record presented, the motion to set aside the default judgment should
have been granted. The motion was timely filed. Augustine had every reason to be surprised,
as indeed he was. Smith v. Smith, 82 Nev. 384, 419 P.2d 295 (1966). To condone the manner
in which Mabel obtained her default judgment against Augustine would reduce the judicial
process to a mockery.
Reversed.
Collins, C. J., Zenoff, Batjer, and Thompson, JJ., concur.
____________________

1
NRCP 60(b). Mistakes; Inadvertence; Excusable Neglect; Fraud, Etc. On motion and upon such terms as
are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for
the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) fraud, misrepresentation or
other misconduct of an adverse party which would have theretofore justified a court in sustaining a collateral
attack upon the judgment; . . .
____________
85 Nev. 44, 44 (1969) Lamoureux v. Sheriff
CHRISTOPHER DRAKE LAMOUREUX, KEITH WARREN JOHNSON and WILLIAM
ARNOLD KITCHEN, Appellants, v. SHERIFF OF WASHOE COUNTY, NEVADA,
Respondent.
No. 5762
January 24, 1969 449 P.2d 471
Appeal from the Second Judicial District Court, Washoe County; Emile J. Gezelin, Judge.
The lower court denied pretrial petition for writ of habeas corpus, and an appeal was taken.
The Supreme Court held that order denying application for writ of habeas corpus had to be
affirmed, where sole issue on appeal was sufficiency of evidence presented before grand
jury to support indictment, where transcript of grand jury proceedings was not before
Supreme Court, and where Supreme Court was unable to ascertain that the transcript was
designated as part of the record on appeal.
85 Nev. 44, 45 (1969) Lamoureux v. Sheriff
order denying application for writ of habeas corpus had to be affirmed, where sole issue on
appeal was sufficiency of evidence presented before grand jury to support indictment, where
transcript of grand jury proceedings was not before Supreme Court, and where Supreme
Court was unable to ascertain that the transcript was designated as part of the record on
appeal.
Affirmed.
[On rehearing. Appeal dismissed March 31, 1969]
Samuel Francovich and Springer & Newton, of Reno, for Appellants.
Harvey Dickerson, Attorney General, State of Nevada, William Raggio, District Attorney,
and Virgil D. Dutt, Deputy District Attorney, Washoe County, for Respondent.
Habeas Corpus.
Order denying application for writ of habeas corpus had to be affirmed by Supreme Court, where sole
issue on appeal was sufficiency of evidence presented before grand jury to support indictment, where
transcript of grand jury proceedings was not before Supreme Court, and where Supreme Court was unable
to ascertain that the transcript was designated as part of the record on appeal.
OPINION
Per Curiam:
This is an appeal from denial of a pre-trial petition for writ of habeas corpus in the Second
Judicial District Court of the State of Nevada. The sole issue on appeal is sufficiency of the
evidence presented before the grand jury to support the indictment charging appellants with
possession of narcotics. The transcript of the grand jury proceedings is not before this court,
nor are we able to ascertain that it was designated as a part of the record on appeal. We are
therefore wholly unable to decide the issues presented.
The order denying the application for a writ of habeas corpus is affirmed.
____________
85 Nev. 46, 46 (1969) City of Boulder City v. Miles
CITY OF BOULDER CITY a Municipal Corporation, Appellant, v. GORDON W. MILES
and DOROTHY H. MILES Husband and Wife, and PORTER-BATCHELOR
CONSTRUCTION COMPANY, a Co-Partnership Consisting of JOHN BATCHELOR, J. D.
PORTER and C. DELL PORTER, Respondents.
No. 5583
January 29, 1969 449 P.2d 1003
Appeal from judgment of the Eighth Judicial District Court, Clark County; John F. Sexton,
Judge.
Action by homeowners to recover from city damages to house allegedly occasioned by
faulty compression of the soil, consolidated with action for declaratory relief that
homeowners were no longer obligated to building contractor pursuant to home purchase
contract, wherein building contractor denied liability to homeowners and filed a cross claim
against city. From judgments of the lower court the city appealed. The Supreme Court,
Mowbray, J., held that where homeowner sought to recover from city damages to his house
occasioned by faulty compression of the soil, the six-month period in which to file claim
against city commenced to run when actual damage to house occurred, and not from last day
that city worked on homeowner's lot.
Affirmed.
George E. Franklin, Jr., of Las Vegas, for Appellant.
Foley Brothers, of Las Vegas, for Respondents Gordon W. Miles and Dorothy H. Miles.
Calvin C. Magleby, of Las Vegas, for Respondent Porter-Batchelor Construction
Company.
1. Declaratory Judgment.
It is permissible to couple coercive and declaratory relief.
2. Municipal Corporations.
The statutory six-month period for filing claim against city commences to run when actual damages are
first incurred, rather than when act causing the damage took place. NRS 268.020.
3. Action.
One does not have a claim against another without having incurred damages.
4. Action.
A cause of action accrues only when the forces wrongfully put in motion produce an injury.
Where homeowner sought to recover from city damages to his house occasioned by faulty compression of
the soil, the six-month period in which to file claim against city commenced to run when actual damage to
house occurred, and not from last day that city worked on homeowner's lot. NRS 268.020.
Where contractor who constructed house which was allegedly damaged by faulty compression of the soil
by city was protected by contract with purchasers for construction costs of the house, and it was not until
court declared that purchasers were not obligated to pay pursuant to the contract that contractor sustained
damage, time for contractor to file claim against city did not commence until court's ruling. NRS
268.020.
OPINION
This appeal comes to us on an agreed statement, signed by counsel. NRCP 76. Two of the
respondents, Gordon W. Miles and Dorothy H. Miles, hereinafter referred to as Mileses,
were awarded judgment against the appellant, City of Boulder City, hereinafter referred to as
City, for $9,548.20 plus interests and costs. Respondent Porter-Batchelor Construction
Company, hereinafter referred to as Porter-Batchelor, recovered judgment against City on
its cross claim for $37,976.89 plus costs.
The facts are these: City purchased a tract of land from the United States Government and
subdivided the property into residential lots, which were sold at public auction on August 23,
1962. In subdividing the tract, it was necessary for City to grade extensively and compact
intensively the soil. The final soil compaction test was completed on July 5, 1961.
Porter-Batchelor purchased several of the lots at the time of the auction. Later, in September
1962, Porter-Batchelor agreed in writing with Mileses to construct a house on one of the lots,
for Mileses' residence. The home was finished on January 28, 1963, and Mileses moved in
several days later.
In the latter part of February 1963, the walls of the house commenced cracking. Repairs
were attempted by Porter-Batchelor, but to no avail. The cracks became larger and the walls
separated. Mileses advised City officials orally on April 4, 1963, of the damage to their home,
which they asserted was due to the faulty compaction of the lot by City. City's manager
inspected the damages to the home. He engaged a soil-testing firm to investigate Mileses'
complaint and report to City's council at its regular meeting on June 24, 1963.
City's council at its regular meeting on June 24, 1963. All the parties attended the meeting,
but they could not reach a settlement agreement.
On this appeal we are not concerned with the question of fault nor with the amount of
damages awarded. Our sole concern is whether the city claim statute, NRS 268.020, precludes
liability of City to the respondents. That statute provides in part that all claims against an
incorporated city must be presented to the city council in writing within 6 months from the
time the acts from which the claim originated shall occur. Mileses did file a written claim
with City, but City urges that the claim was not timely filed. As to Porter-Batchelor, the
question is whether, in the context of this case, the claim statute applies at all.
[Headnote 1]
Mileses filed their written claim with City on August 23, 1963, and it was rejected.
Thereafter, on December 12, 1963, they commenced this suit against City and
Porter-Batchelor as defendants. As against City, they sought to recover damages occasioned
by the faulty compression of the soil. As against Porter-Batchelor, they sought declaratory
reliefthat they were no longer obliged to pay that company pursuant to the home purchase
contract. It is, of course, permissible to couple coercive and declaratory relief. Dredge Corp.
v. Wells Cargo, Inc., 80 Nev. 99, 389 P.2d 394 (1964); Annot., 155 A.L.R. 501 (1945). See
also Nevada Management Co. v. Jack, 75 Nev. 232, 338 P.2d 71 (1951).
City responded by denying liability, mainly on the premise that Mileses did not file their
claim within the 6-months time limit provided by the claim statute. Porter-Batchelor
responded by denying liability to Mileses, and by cross claim against City requested that,
should the court declare that Mileses were no longer obliged to pay Porter-Batchelor on the
home purchase contract, then Porter-Batchelor should be given judgment against City for the
balance due on that contract.
As already indicated, the court found that City was responsible for the damage sustained
by Mileses, declared that Mileses were no longer obligated on their contract of purchase to
Porter-Batchelor, and gave Porter-Batchelor judgment on its cross claim against City for the
balance due upon the Miles-Porter-Batchelor contract.
We turn to discuss the claim statute issue with respect to each respondent.
[Headnotes 2-5]
1. As between Mileses and City: City argues that, since Mileses have predicated their
complaint for damages on City's failure to compact their lot properly, their claim must fall,
because they did not present it in writing within 6 months after July 5, 1961, which was the
last date City worked on the lots. In support of this position, City relies upon NRS 268.020,
which states in part that the written claim must be presented within 6 months from the time
the acts from which the claim originated shall happen.
It is the contention of Mileses that the 6-month period commenced to run when the actual
damages were first incurred, rather than when the acts causing damage took place. We agree.
It is true that in most cases damages caused by the wrongful act of another occur
contemporaneously with the wrongful act. But it is also true that no one has a claim against
another without having incurred damages. And the reason for the rule is quite clear. Though
an act may endanger the person or property of another, no actionable wrong is committed if
the danger is averted. It is only the injury to a person or the damage to property arising from a
wrongful or negligent act which constitutes an invasion of a personal right protected by law
and, therefore, an actionable wrong. A cause of action accrues only when the forces
wrongfully put in motion produce an injury. Otherwise, in certain cases, as in this case, a
purported cause of action might be barred before liability arose. Adams v. Arkansas City, 362
P.2d 829 (Kan. 1961); Durant v. Grange Silo Co., 207 N.Y.S.2d 691 (N.Y.App. 1960); City
of Los Angeles v. McNeil, 326 P.2d 29 (Cal.App. 1958); City of Amarillo v. Gray, 304
S.W.2d 742 (Tex.App. 1957); Harper-Turner Oil Co. v. Bridge, 311 P.2d 947 (Okla. 1957);
Great Am. Indem. Co. v. Lapp Insulator Co., 125 N.Y.S.2d 147 (N.Y.App. 1953); Schmidt v.
Merchants Despatch Transp. Co., 200 N.E. 824 (N.Y. 1936); Annot., 104 A.L.R. 450 (1936).
Since Mileses did present their written claim to City within 6 months after the damage to
their home was incurred, we hold that the claim was presented timely.
[Headnote 6]
2. As between Porter-Batchelor and City: Porter-Batchelor had no claim to assert against
City, since it was protected by its contract with Mileses for the construction costs of the home
built for Mileses.
home built for Mileses. It was not until the court in the instant case declared that Mileses
were not obliged to pay Porter-Batchelor pursuant to that contract that Porter-Batchelor
sustained damage by reason of City's fault in not properly compacting the lot on which the
home was built. Porter-Batchelor protected itself in the only way that it couldby filing a
cross claim against the codefendant, City. Until the claim of Mileses for declaratory relief was
adjudicated, it could not be known whether Porter-Batchelor had a claim over against City. It
is our opinion that the claim statute, NRS 268.020, does not reach this particular situation.
The judgments below are affirmed.
____________
85 Nev. 50, 50 (1969) Adams v. Adams
ELAINE ADAMS, Appellant, v.
JACK C. ADAMS, Respondent.
No. 5590
January 29, 1969 450 P.2d 146
Appeal from an order substituting a special administrator and construing the original
decree of divorce. Eighth Judicial District Court, Clark County; Llewellyn A. Young, Judge.
After entry of divorce decree and death of husband, husband's son moved for leave to be
substituted as special administrator for deceased and for construction of decree of divorce.
The lower court held in favor of husband's son, and wife appealed. The Supreme Court,
Batjer, J., held that where divorce decree at time of entry changed tenancy of parties in
residence from that of community estate to that of tenants in common, no claim or right of
husband to construction of decree remained and on his death his son could not be substituted
as special administrator for him.
Reversed.
[Rehearing denied March 10, 1969]
Calvin C. Magleby, of Las Vegas, for Appellant.
Dorsey & Taylor, of Las Vegas, for Respondent.
1. Courts.
Trial court of general jurisdiction has inherent power to construe its judgments and decrees.
85 Nev. 50, 51 (1969) Adams v. Adams
2. Divorce.
Divorce decree that directed that at time community property of husband and wife was sold proceeds
should be divided equally among them changed tenancy of parties in the property from that of a community
estate to that of tenants in common.
3. Parties.
Where divorce decree at time of entry changed tenancy of parties in residence from that of community
estate to that of tenants in common, no claim or right of husband to construction of decree remained and on
his death his son could not be substituted as special administrator for him. NRCP 25(a).
OPINION
Appellant Elaine Adams and respondent Jack C. Adams, were married on March 2, 1954,
in Las Vegas, Nevada. On June 29, 1964, a grant, bargain and sale deed was executed to Jack
C. Adams and Elaine Adams, husband and wife, as joint tenants.
On August 20, 1964, appellant filed a complaint for divorce alleging therein that there was
certain community property owned by the parties. Respondent filed his answer and admitted
the existence of the community property.
On the same day the court ordered, as part of its final decree: That at such time as the
community property of the parties hereto, to-wit: residence dwelling located at 1200
Tumbleweed Ave., Las Vegas, Nevada, is sold, the proceeds be divided equally between the
parties hereto.
The property described in the decree of divorce was never sold. On October 19, 1967, Jack
Adams died, and on December 18, 1967, his son, Donald S. Adams, moved under NRCP
25(a)
1
for leave to be substituted a special administrator for deceased party and for
construction of the decree of divorce. On January 8, 1968, the lower court ordered his
substitution, and on March 7, 1968, entered its order stating that the interest of the
defendant {respondent) was of such a nature as to survive the death of the defendant
{respondent).
____________________

1
NRCP 25(a): (1) If a party dies and the claim is not thereby extinguished, the court may order substitution
of the proper parties. The motion for substitution may be made by any party or by the successors or
representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as
provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons.
Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by
service of a statement of fact of the death as provided herein for the service of the motion, the action shall be
dismissed as to the deceased party.
85 Nev. 50, 52 (1969) Adams v. Adams
interest of the defendant (respondent) was of such a nature as to survive the death of the
defendant (respondent).
This appeal is taken from the substitution of Donald S. Adams for Jack C. Adams, and the
order construing the decree of divorce.
[Headnote 1]
A trial court of general jurisdiction has the inherent power to construe its judgments and
decrees, Grenz v. Grenz, 78 Nev. 394, 374 P.2d 891 (1962); Murphy v. Murphy, 64 Nev. 440,
183 P.2d 632 (1947); Lindsay v. Lindsay, 52 Nev. 26, 280 P. 95, 67 A.L.R. 824 (1929).
However, we find that here the decree of divorce is not ambiguous in the disposition of the
property and therefore there is no basis for construction by the lower court.
[Headnote 2]
The lower court specifically found that the subject property was community property. We
find as a matter of law that the decree of divorce, upon its entry, changed the tenancy of the
parties in the property from that of a community estate to that of tenants in common. Bank v.
Wolff, 66 Nev. 51, 202 P.2d 878 (1949).
In Johnson v. Gardner, 233 Fed. 756 (D.C.D. Nev. 1916), the court held that [t]he divorce
terminated the community, as well as the marriage, and put an end to any right which either
spouse may have had in or to the property of the other. (Citations omitted). Thereafter the
interest of the former husband and wife in the property was that of tenants in common.
[Headnote 3]
NRCP 25(a) authorizes substitution for a deceased party only if his claim is not
extinguished. At the time the court granted Donald S. Adams's motion for substitution, there
existed no claim or right of the deceased defendant to be litigated, decided or construed. Here
the right to construction of the decree of divorce was extinguished before death rather than by
reason thereof, rendering the order of substitution entered by the lower court void.
Furthermore we find that under no other rule, statute or theory of the law is the respondent
entitled to relief from the clear meaning of the original decree of divorce.
Upon our finding that the order substituting the special administrator for the deceased
defendant is void, we do not reach of decide the appellant's remaining specifications of error.
85 Nev. 50, 53 (1969) Adams v. Adams
The orders appealed from are reversed, and the lower court is directed to enter an order
denying respondent's motion.
____________
85 Nev. 53, 53 (1969) Jones v. State
MURRAY JONES, Jr., Appellant, v. THE
STATE OF NEVADA Respondent.
No. 5606
January 29, 1969 450 P.2d 139
Appeal from judgment of the Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
The trial court found defendant guilty of robbery, rape and two counts of infamous crime
against nature and he appealed. The Supreme Court, Mowbray, J., held that even though
witnesses may have identified defendant at police lineup at which defendant did not have
counsel, their identification testimony was not precluded where defendant at time of lineup
made intelligent waiver of his right to counsel or in-court identification was based upon
observations of suspect other than lineup identification.
Affirmed.
James D. Santini, Public Defender, and Anthony M. Earl, Deputy Public Defender, for
Appellant.
James L. Buchanan, II, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Even though witnesses may have identified defendant at police lineup at which defendant did not have
counsel, their identification testimony was not precluded where defendant at time of lineup made intelligent
waiver of his right to counsel or in court identification was based upon observations of suspect other than
lineup identification. U.S.C.A.Const. Amends. 6, 14.
2. Criminal Law.
Record sustained trial court's findings that accused made intelligent waiver of his right to counsel during
his lineup and that victims' identification of accused was of independent origin and not defendant on police
lineup.
85 Nev. 53, 54 (1969) Jones v. State
3. Criminal Law.
Where there was no showing of bad faith on part of prosecution, witness' unanticipated voluntary
comment as to defendant's parole status did not vitiate conviction.
OPINION
A jury found Murray Jones guilty of robbery and rape and two counts of the infamous
crime against nature. He was sentenced to 15 years' imprisonment on the robbery charge, and
he received life sentences on each of the other three offenses, all sentences to run
concurrently.
He has appealed to this court, and he asserts two principal grounds as reversible error: (1)
The victims of his assault should have been barred from identifying him during his trial
because they had identified him at a police lineup when he was without counsel and his
in-court identification by the victims was not of an independent origin, but was based on that
police lineup; and (2) the trial judge erred in denying his motion for a mistrial when his
father, Murray Jones, Sr., in answer to a question by the prosecution, volunteered information
that indicated the appellant was on parole. We find both contentions without merit, and we
affirm the guilty verdicts on all four counts.
About midnight on September 4, 1967, Murray Jones broke into a residence in Las Vegas.
The home was occupied by a mother and daughter and by a young woman and her son who
roomed with the family.
Shortly after midnight the young woman, who had retired earlier, awoke and found Jones
at the foot of the bed. She screamed. He brandished a knife and threatened to kill her. Her
screams summoned the other members of the household. Jones then ordered the mother,
daughter, and the young woman to produce their purses. They did, and he took the contents.
He then directed his four hostages into a closet in the bedroom.
He called for the young woman, and after he disrobed her he raped her. He threatened to
kill them all if they made any noise or resisted his attacks. After the rape, he summoned the
daughter. He disrobed her, and then for the next 45 minutes to an hour forced the two women
to engage with him in various sex orgies, two of which were the bases for the charges of the
infamous crime against nature.
85 Nev. 53, 55 (1969) Jones v. State
As the hour wore on, and during one of Jones's unguarded moments, the young woman
grabbed his knife and plunged it into his back behind his shoulder blade. He lunged for her,
but she managed to escape. She ran from the home and screamed for help. The neighbors
responded immediately by calling the police, who arrived soon after Jones had left the home.
1. On the afternoon of September 5, the two women who had been assaulted identified
Jones at a lineup at the City of Las Vegas police station. He was without counsel when they
did so. Earlier in the day he had been given the full Miranda warning and had requested
counsel. Later, he agreed to the lineup and signed a waiver of his right to counsel for that
purpose. The waiver was first read to him and explained by his parole officer; then Jones read
it before signing it.
At the commencement of Jones's trial, his counsel advised the court that he would object
to the victims' in-court identification of Jones, because Jones was denied his right to counsel
during the police lineup, upon which his in-court identification would be based. United States
v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967); and Stovall v.
Denno, 388 U.S. 293 (1967).
In Wade, supra, and the companion cases of Gilbert and Stoval, supra, the Supreme Court
of the United States has firmly held that a police lineup is a critical stage of the prosecution
and that during a lineup a defendant is as much entitled to the aid of counsel as at the trial
itself. U.S.C.A. Const. Amends. 6 & 14. And the absence of counsel during the lineup will
preclude the witnesses who identified the defendant at the lineup from later identifying him in
court.
The reasons for the rule are well set forth by Mr. Justice Brennan, who wrote the majority
opinions, in Wade, Gilbert, and Stovall, and it would serve no purpose to restate them in this
opinion.
[Headnote 1]
There are, however, certain exceptions. One is that the preclusion will not be enforced if
the defendant did make at the time of the lineup an intelligent waiver of his right to counsel.
Another is a finding by clear and convincing evidence that the in-court identification is based
upon observations of the suspect other than the lineup identification. Wade, at page 241, says:
Application of this test in the present context requires consideration of various factors; for
example, the prior opportunity to observe the alleged criminal act, the existence of any
discrepancy between any pre-lineup description, any identification prior to lineup of
another person, the identification by picture of the defendant prior to the lineup, failure to
identify the defendant on a prior occasion, and the lapse of time between the alleged act
and the lineup identification."1
In Jones's case, when counsel advised the court that he would object to the anticipated
in-court identification of Jones by the victims, the trial judge excused the jury and
conducted a full and complete evidentiary hearing.
85 Nev. 53, 56 (1969) Jones v. State
discrepancy between any pre-lineup description, any identification prior to lineup of another
person, the identification by picture of the defendant prior to the lineup, failure to identify the
defendant on a prior occasion, and the lapse of time between the alleged act and the lineup
identification.
1

In Jones's case, when counsel advised the court that he would object to the anticipated
in-court identification of Jones by the victims, the trial judge excused the jury and conducted
a full and complete evidentiary hearing. Witnesses, including the victims, were sworn, and
they testified and were cross-examined. The events leading up to the signing of the waiver by
Jones were fully explored. The basis for the victims' identification of Jones was established.
[Headnote 2]
At the conclusion of the evidentiary hearing, the trial judge found that Jones had made an
intelligent waiver of his right to counsel during his lineup and that the victims' identification
of Jones was of an independent origin and not dependent on the police lineup. The record
supports the findings of the trial judge.
2. The prosecution asked Mr. Murray Jones, Sr.:
Q. Where was he [Jones, Jr.] going . . .?
A. To Phoenix, Arizona, to see his mother and his sister. So, I says, Well, you can't go
down.' He says, Yes, because my parolee told me I could go.' He knew before he was going
and
[Headnote 3] 205 P.2d S03 {1949).
At this juncture, defense counsel moved for a mistrial on the grounds that Mr. Jones, Sr.'s mention of parolee
was prejudicial error and Jones was entitled to a new trial. The trial judge excused the jury and heard counsel's
argument. He denied the motion, and he admonished the jury. There is nothing in the record to indicate the
statement was anything but what it appeared to bea voluntary comment by a witness. Every effort must be
made to avoid such remarks, but in this case the remark could not have been anticipated or avoided by the
examiner. Nor is there the slightest showing of bad faith on the part of the prosecution. State v. Varga, 66 Nev.
102,
____________________

1
The victims in this case observed Jones for almost an hour and at distances at times as close as 6 inches.
Can it reasonably be doubted that such a close confrontation with Jones during this period of time and under the
facts of this case would etch indelibly Jones's countenance in the minds of the two victims for the remainder of
their lives?
85 Nev. 53, 57 (1969) Jones v. State
205 P.2d 803 (1949). It was permissible for the court to deny the motion for a mistrial.
The judgment is affirmed.
____________
85 Nev. 57, 57 (1969) Noah v. Metzker
GEORGE J. NOAH, Executor of the Last Will and Testament of BILLIE JANE NOAH,
Deceased, Appellant, v. J. K. METZKER, and JOHN A. DERMODY, Respondents.
No. 5702
January 29, 1969 450 P.2d 141
Appeal from an order of the Second Judicial District Court, Washoe County, granting
summary judgment; Grant L. Bowen, Judge.
Suit by lessor against lessees. The lower court entered summary judgment in defendants'
favor, and plaintiff appealed. The Supreme Court, Thompson, J., held, among other things,
that lease requirement that executed original of assignments was to be delivered to lessor was
satisfied by delivery of assignments to lessor's attorney.
Affirmed.
Barry, Hall & McGehee, of Reno, and Peter B. Van Gerder, of Sacramento, California, for
Appellant.
Goldwater, Taber, Hill and Mortimer, of Reno, for Respondents.
1. Attorney and Client.
Notice to attorney of any matter relating to business of client in which attorney is engaged is notice to
client.
Lease requirement that executed original of assignments was to be delivered to lessor was satisfied by
delivery of assignments to lessor's attorney.
3. Landlord and Tenant.
Lease requirement that lessees be not in default at date of assignment of their interest in leased property
was satisfied where accrued ad valorem tax was paid when assignments were made, notwithstanding that
tax was in default at time of recordation of assignments.
Lease provision relieving lessees from all further liability if they should assign their
interest in leased property is valid and operates to defeat the general rule that the original
lessees shall remain liable on the lease covenants.
OPINION
Billie Jane Noah, a lessor of commercial real property in Reno, commenced suit against
several defendants including J. K. Metzker and John Dermody, two of the three original
lessees thereof.
1
As against Metzker and Dermody, she sought to invalidate lease
assignments made by them in order to secure their personal liability for occurrences which
subsequently transpired. Since the lease specifically precluded their personal liability
following valid assignments of their leasehold interests, the main issue below, presented by a
defense motion for summary judgment, was the legality of the lease assignments made by
Metzker and Dermody. That issue tendered a question of lawthe meaning of the lease
provision governing assignments. Extrinsic evidence was not offered since each litigant
deemed that provision to be clear and without ambiguity. The district court ruled for Metzker
and Dermody and entered summary judgment in their favor. That court concluded that their
lease assignments were effectuated in substantial compliance with the controlling lease
provision with the result that their personal liability for the occurrences which thereafter
followed was obliterated. That court also considered subordinate issues and resolved them in
favor of Metzker and Dermody. We affirm the district court's resolution of this litigation, and
will confine our discussion to the main issuethe legality of the lease assignmentssince it
is dispositive.
The relevant facts are these: On April 1, 1960 Noah, as lessor, entered into a lease
indenture with C. W. Baker, Metzker and Dermody, as lessees. Article 6 provided that the
lessor would subordinate her interest in the property to a contemplated encumbrance to be
placed thereon as security for funds to be advanced by a responsible lender to finance the
construction of a building. It also provided that the lessees would assume personal liability
for repayment of the secured loan.
Article 15 allowed the lessees to assign their interest in the leased property upon
condition that, at the date of assignment, lessees were not in default and had paid all
charges accruing under the lease at the date of assignment.
____________________

1
Billie Jane Noah died pending this appeal and the executor of her estate was substituted as the appellant.
leased property upon condition that, at the date of assignment, lessees were not in default and
had paid all charges accruing under the lease at the date of assignment. That article also
provided that the assignment would be in writing, duly executed and notarized; would be
recorded; and that the assignees would be personally bound to discharge the lease obligations.
An executed original of the assignments, containing the address of the assignees, was to be
delivered to the lessor. Failure to comply with these provisions rendered the assignments
void. Finally, Article 15 provided that any assignment made in the manner herein provided
shall operate to release the lessees from all further liability, hereunder accruing subsequent to
the time when said assignment becomes effective. . . . The lessor's consent to lease
assignments was not required.
On September 13, 1960 Metzker assigned his interest in the lease to Sterling Builders,
Inc., and on November 14, 1961 Dermody assigned his interest to the same corporation. On
the dates of those assignments the lessees were not in default in any of their obligations under
the lease. On October 21, 1963 counsel for Metzker and Dermody mailed executed originals
of their assignments to counsel for lessor, and one day later the Metzker and Dermody
assignments were recorded.
2
As of the date of recordation. October 22, 1963, payment of the
ad valorem tax was delinquent.
On November 4, 1963 Noah, lessor, and Court Corporation, then the lessee, executed a
deed of trust as trustors to Land Title Insurance Agency, Inc., trustee, in favor of First
National Bank of Nevada, beneficiary, as security for a construction loan of $793,000
advanced by the bank. The lessor subordinated her interest in the property to the lien of the
deed of trust. Thereafter, the lessee defaulted upon its lease obligations to lessor and upon its
promissory note to the bank. The bank subsequently foreclosed on the deed of trust and
purchased the property at the trustee's sale.
[Headnotes 1-3]
1. It is the lessor's contention that the lease assignments by Metzker and Dermody are
void since executed originals were not delivered to her personally, and payment of the ad
valorem tax was in default at the time of recordation of the assignments. The contention is
not sound. Executed originals of the assignments were mailed to the lessor's attorney and
received by him in the regular course of mail. Notice to the attorney of any matter relating
to the business of the client in which the attorney is engaged is notice to the client.
____________________

2
Other assignments (Sterling Builders, Inc. to C. W. Baker, and C. W. Baker to Court Corporation) also were
mailed to counsel for lessor.
attorney of any matter relating to the business of the client in which the attorney is engaged is
notice to the client. Aldabe v. Adams 81 Nev. 280, 286, 402 P.2d 34 (1965); Milner v.
Dudrey, 77 Nev. 256, 264, 362 P.2d 439 (1961). Thus, the delivery of the assignments to
counsel was the legal equivalent of delivery to the lessor, and the lease requirement in this
regard was satisfied. Neither did the lease require the absence of default at the time of
recordation of the assignments. In point of time, the absence of default provision referred to
the date of assignment, not the date of recordation.
3
Since the accrued ad valorem tax was
paid at the time the Metzker and Dermody assignments respectively were made, the lessor's
contention on this point is without force. Indeed, we find nothing in the lease from which it
can be said to follow as a matter of law that the district court erred in its conclusion on this
aspect of the case.
[Headnote 4]
2. Since the assignments were effective, Metzker and Dermody were relieved from all
further liability under the lease by the express provision of Article 15. Such a provision is
valid and operates to defeat the general rule that the original lessees shall remain liable on the
lease covenants. Bornel, Inc. v. City Products Corporation, 432 P.2d 489 (Wyo. 1967); Rose
v. Love, 368 S.W.2d 889 (Tex.Civ.App. 1963); cf. S. S. Kresge Co. v. Sears, 87 F.2d 135 (1
Cir. 1936).
Affirmed.
____________________

3
That proviso: . . . at the date of such . . . assignment the said lessees . . . shall have paid all . . . taxes . . .
which shall have accrued under this lease at the date of any such . . . assignment. . . .
____________
85 Nev. 60, 60 (1969) Stone v. State
CHARLES EDGAR STONE, Appellant, v. THE
No. 5582
February 3, 1969 450 P.2d 136
Appeal from an order of the district court denying a petition for a writ of mandamus.
Eighth Judicial District Court, Clark County; John P. Mendoza, Judge.
Proceeding on petition for writ of mandamus demanding that state be required to dismiss
criminal complaint on file against petitioner and that outstanding warrant of arrest be
quashed.
85 Nev. 60, 61 (1969) Stone v. State
quashed. The lower court dismissed petition and appeal was taken. The Supreme Court,
Batjer, J., held that petitioner who had been incarcerated in federal penitentiary after Nevada
warrant of arrest had been issued and who failed to file motion or request with Nevada county
authorities demanding speedy trial had not been denied right to speedy trial and was not
entitled to writ of mandamus and that release at habeas corpus hearing of petitioner from
custody in New Mexico where he was held pursuant to Nevada warrant charging petitioner
with being fugitive from justice, due to defect of proof concerning petitioner's identity and
presence in Nevada at time alleged crimes were committed, did not act as bar to petitioner's
further prosecution under criminal complaint in Nevada.
Affirmed.
James D. Santini, Public Defender, Earle W. White, Jr., Deputy Public Defender, Clark
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, and Alan
R. Johns, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Whether defendant has been denied right to speedy trial depends upon circumstances of case.
U.S.C.A.Const. Amends. 6, 14.
2. Criminal Law.
Defendant incarcerated in federal penitentiary must make request to demanding state that he be returned
for trial as prerequisite to being afforded speedy trial.
3. Criminal Law; Mandamus.
Petitioner who had been incarcerated in federal penitentiary after Nevada warrant of arrest had been
issued and who failed to file motion or request with Nevada county authorities demanding speedy trial had
not been denied right to speedy trial and was not entitled to writ of mandamus requiring Nevada to dismiss
complaint and requiring warrant of arrest to be quashed. 18 U.S.C.A. 2311-2313; U.S.C.A.Const.
Amends. 6, 14; NRS 178.558.
4. Criminal Law.
After defendant has made effective request for speedy trial, incarceration in federal penitentiary no longer
constitutes good cause for delay in bringing defendant to trial. U.S.C.A.Const. Amends. 6, 14.
5. Habeas Corpus.
Discharge by writ of habeas corpus does not operate as acquittal and is not bar to subsequent
proceedings.
6. Habeas Corpus.
Release at habeas corpus hearing of petitioner from custody in New Mexico where he was held pursuant
to Nevada warrant charging petitioner with being fugitive from justice, due to defect of
proof concerning petitioner's identity and presence in Nevada at time alleged crimes
were committed did not act as bar to further prosecution under criminal complaint in
Nevada.
85 Nev. 60, 62 (1969) Stone v. State
charging petitioner with being fugitive from justice, due to defect of proof concerning petitioner's identity
and presence in Nevada at time alleged crimes were committed did not act as bar to further prosecution
under criminal complaint in Nevada. NRS 34.590; 1953 N.M.Comp. 22-11-1 et seq.
OPINION
On December 3, 1966, the appellant, Charles Edgar Stone, while he was being held in jail
in Quay County, New Mexico, under warrant of arrest issued by the State of Nevada charging
him with being a fugitive from justice, filed a petition for a writ of habeas corpus to test his
detention. The matter came on for hearing on January 23, 1967, in a district court of that
state. Timely notice was given, but no representative from the State of Nevada was present at
the hearing. On January 24, 1967, an order was filed in that court releasing the appellant upon
the finding that there was no evidence to indicate that he was in the State of Nevada on the
date the alleged crimes were committed.
Shortly after his release appellant was arrested by federal authorities for violation of the
Dyer Act. He was thereupon convicted and sentenced to four years in the federal penitentiary
at Leavenworth, Kansas. After his incarceration in the federal penitentiary a detainer warrant
was issued by the State of Nevada and lodged against him.
Without ever filing a motion or request with the authorities in Clark County demanding
that he be afforded a speedy trial, the appellant filed his petition for a writ of mandamus in
the lower court demanding that the State of Nevada be required to dismiss the criminal
complaint on file against him and that the outstanding warrant of arrest be quashed.
As the basis for his petition, the appellant alleged that he was being denied his
constitutional right to a speedy trial; that NRS 169.165
1
(now NRS 178.558) is inapplicable
and unconstitutional and, that the New Mexico determination in the habeas corpus proceeding
is res judicata in Nevada.
Petitioner now urges these same points in this appeal.
____________________

1
NRS 169.165. The right to a speedy trial guaranteed by the constitution of the State of Nevada and by this
chapter is satisfied, in the case of a defendant who before being brought to trial in this state is held in custody in
another state for a crime committed in that state, by a trial within a reasonable time after his release from such
custody, and no motion to discharge such person from custody in this state may be granted if the requirements of
this section are met.
85 Nev. 60, 63 (1969) Stone v. State
[Headnote 1]
Whether or not a defendant has been denied his right to a speedy trial depends upon the
circumstances of each case. Scott v. State, 84 Nev. 530, 444 P.2d 902 (1968); Barker v. State,
84 Nev. 224, 438 P.2d 798 (1968).
In Klopfer v. North Carolina, 386 U.S. 213 (1967), it was held that, by virtue of the
Fourteenth Amendment, the right guaranteed by the Sixth Amendment of the United States
Constitution, to a speedy trial is enforceable against the states.
In Smith v. Hooey, 37 U.S.L.W. 4095 (U.S. Jan. 20, 1969), the petitioner, Richard M.
Smith, was incarcerated in the federal penitentiary at Leavenworth, Kansas. Although he had
made repeated requests to the State of Texas for a speedy trial, he was denied the same for
more than six years. Finally the petitioner filed in the trial court a verified motion to dismiss
the charge against him for want of prosecution. No action was taken on the motion. Smith
then brought a mandamus proceeding in the Supreme Court of Texas, asking for an order to
show cause why the pending charge should not be dismissed. Mandamus was refused. In
deciding the case, the United States Supreme Court said: Upon the petitioner's demand,
Texas had a constitutional duty to make a diligent good faith effort to bring him before the
Harris County court for trial. (Emphasis added.)
[Headnote 2]
As a prerequisite to being afforded a speedy trial, a defendant incarcerated in a federal
penitentiary, must make a request to the demanding state that he be immediately returned for
trial.
[Headnote 3]
Not until the appellant makes a request to this state for his return for a speedy trial does the
State of Nevada have a constitutional duty to make a diligent good-faith effort to bring him
before the Clark County court for trial.
Here the appellant, Stone, wants to start at the top of the ladder. Without ever making a
request upon the State of Nevada, to be returned to this state for the purposes of a speedy
trial, he summarily files his petition for a writ of mandamus demanding that the complaint
against him be dismissed.
We find that because of the appellant's failure to request an immediate trial he has not been
denied his constitutional right to a speedy trial.
85 Nev. 60, 64 (1969) Stone v. State
[Headnote 4]
After a defendant has made an effective request for a speedy trial, incarceration in a federal
penitentiary no longer constitutes good cause for delay in bringing him to trial. We do not
reach the question of whether NRS 169.165 (now NRS 178.558) is applicable to the appellant
in his present state as a federal prisoner in a federal penitentiary, or whether that statute is an
unconstitutional enactment.
We next turn to appellant's contention that the order of the New Mexico court making the
writ of habeas corpus permanent and releasing him from custody is res judicata and a bar to
any further prosecution of him under the criminal complaint filed in this state. We reject that
contention.
[Headnote 5]
A discharge by writ of habeas corpus, being merely from custody and not from penalty,
does not operate as an acquittal and is not a bar to subsequent proceedings. See People v.
Toman, 199 N.E. 124, 102 A.L.R., 379 (Ill. 1935); Letwick v. State, 198 S.W.2d 830 (Ark.
1947); Ex parte Barron, 222 S.W.2d 241 (Mo. 1949); State v. Adams, 115 S.E.2d 158 (W.Va.
1960); People v. Sain, 187 N.E.2d 241 (Ill. 1962), cert. den., 374 U.S. 807 (1963); People v.
Doherty, 247 N.Y.S.2d 759 (1964).
[Headnote 6]
The determination by the New Mexico court that the appellant must be released is not res
judicata in New Mexico, nor is it res judicata in Nevada (See NRS 34.590).
2

The appellant was released from custody in the State of New Mexico because there was a
defect of proof concerning his identity and his presence in the State of Nevada at the time the
alleged crimes were committed. If, subsequent to his release, there had been sufficient proof
presented to the New Mexico authorities of his identity and presence in the State of Nevada,
he could have been again arrested in that jurisdiction and subjected to further legal process.
____________________

2
NRS 34.590. No person who has been discharged by the order of the judge upon habeas corpus issued
pursuant to the provisions of this chapter shall be again imprisoned, restrained or kept in custody for the same
cause, except in the following cases:
1. If he shall have been discharged from custody on a criminal charge and be afterwards committed for the
same offense by legal order or process.
2. If after a discharge for defect of proof, or for any defect of the process, warrant or commitment in a
criminal case, the prisoner be again arrested on sufficient proof and committed by legal process for the same
offense.
85 Nev. 60, 65 (1969) Stone v. State
subjected to further legal process. (See New Mexico Statutes, 1953, Chapter 22, Article 11,
Sec. 28.)
A fortiori if the appellant was subject to further legal process in the state of his release he
is indeed subject to legal process on the merits in this state.
In State v. Wall, 244 N.W. 811 (Minn. 1932), the court there held that the earlier release
on habeas corpus by Kansas on an extradition proceeding was not res judicata in Minnesota
because it wasn't res judicata in Kansas, and they went on to adopt the following language
from Kurtz v. State, 22 Fla. 36 (1886): The courts in a habeas corpus proceeding of this
kind, where the prisoner is arrested for extradition, cannot go into a trial of the merits of the
cause. The proceeding is only an initiatory step to a trial in another State. As to the guilt of
the prisoner, they are not allowed to inquire. Their judicial powers are limited to a
determination on the sufficiency of the papers and the identity of the prisoner. If the prisoner
is discharged, it will not absolve him from being re-arrested on a new warrant issued by the
Governor.
Had the appellant been released from custody by a district court here in the State of
Nevada upon a writ of habeas corpus because of defect of proof of identification, he could
have been again charged and rearrested pursuant to NRS 34.590, upon sufficient proof of
identity, and he could have been re-committed by legal process for the offenses charged in the
criminal complaint.
For the reasons stated we find that the appellant has not been denied his constitutional
right to a speedy trial, nor was his discharge from custody in New Mexico by a writ of habeas
corpus a bar to proceeding against him on the complaint filed in this state. The order of the
district court dismissing his petition for a writ of mandamus is affirmed.
____________
85 Nev. 66, 66 (1969) Adair v. City of North Las Vegas
BERNIECE ADAIR, GERTRUDE BELVEAL, MELBA RUTH BRADLEY, JOHN
CHOUDRUK, JOSEPHINE DEWEY, ERMA GWARTNEY, WILLIAM HANNA, JOYCE
HEDRICK, MILDRED KIRK, SHIRLEY LANDERS, JEAN McCOY, FRED MOSS,
PAMELA PEASE, HEWIG PORGER, LOIS YOUNG, and JOHN A. ZUMSTEIN,
Appellants, v. THE CITY OF NORTH LAS VEGAS, NEVADA, a Municipal Corporation;
WILLIAM L. TAYLOR, Mayor, and C. R. CLELAND, JOHN MYERS, JACK PETITTI,
and WENDELL G. WAITE, City Councilmen, Respondents.
No. 5610
February 3, 1969 450 P.2d 144
Appeal from judgment of the Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Appeal from final judgment of the lower court denying petition by several citizens and
taxpayers for writ of mandamus to compel a citywide election upon an urban renewal project
previously adopted by city council, and to force disclosure by the city of certain records
concerning that project. The Supreme Court, Thompson, J., held, inter alia, that since, prior to
hearing of the city council on the project, no effort was made by petitioner-taxpayers to
mandate production of records pertaining to the project, and since such remedy was available
to enforce claimed right of inspection, instant mandamus proceeding filed many months after
the hearing, could not be utilized to invalidate the hearing and action taken by the city council
at conclusion thereof.
Affirmed.
Edward G. Marshall, of Las Vegas, for Appellants.
Jeffrey Ian Shaner, of North Las Vegas, for Respondents.
A citywide election upon urban renewal project under 1967 statutory amendment was not required since
the amendment did not become effective until 2 1/2 months after approval of the project by the city council
under the then existing statute. NRS 218.530, 279.270.
2. Mandamus.
Since, prior to city council hearing on urban renewal project, no effort was made by petitioner-taxpayers
to mandate production of records pertaining to the project, and since such remedy was available to enforce
claimed right of inspection, instant mandamus proceeding, filed many months after the
hearing, could not be utilized to invalidate the hearing and action taken by the city
council at conclusion thereof.
proceeding, filed many months after the hearing, could not be utilized to invalidate the hearing and action
taken by the city council at conclusion thereof. NRS 239.010.
3. Estoppel.
A known remedy is waived by not being timely asserted.
OPINION
This appeal is from a final judgment of the district court denying a petition by several
citizens and taxpayers of the City of North Las Vegas for a writ of mandamus to compel a
city wide election upon an urban renewal project previously adopted by the city council, and
to force disclosure by the city of certain records concerning that project. It is our opinion that
the district court ruled correctly, and we affirm its determination.
By 1967 amendment to NRS 279.270, any tentatively approved urban renewal project
must be submitted to the registered voters of the municipality at a regular or special election
called for that purpose. This amendment was approved by the Governor on March 21, 1967,
and became effective on July 1, 1967. Prior to amendment the law merely required approval
of projects by the local governing body following public hearing after public notice thereof by
newspaper publication.
On April 17, 1967, the City Council of North Las Vegas approved the Rose Garden Urban
Renewal Project following a public hearing held on that date, which hearing had been
publicly advertised from March 23 to April 13. Before this hearing, various citizens had
requested, and been refused, permission to inspect certain documents in the possession of city
officials. These documents consisted primarily, but not exclusively, of appraisal studies,
neighborhood analysis maps, and correspondence with federal officers relating to urban
renewal development in the City of North Las Vegas. The urban renewal plan itself was of
public record and open to public inspection.
[Headnote 1]
1. A city wide election upon the urban renewal project under the 1967 amendment to NRS
279.270 was not required since the amendment did not become effective until two and
one-half months after project approval by the City Council under the then existing statute. A
law shall take effect and be in force on July 1 following its passage, unless such law . . .
shall specifically prescribe a different effective date."
be in force on July 1 following its passage, unless such law . . . shall specifically prescribe a
different effective date. NRS 218.530. The 1967 amendment to NRS 279.270, approved
March 21, 1967, did not prescribe a different effective date, and did not become operative
until July 1 of that year. The City Council's approval of the Rose Garden Urban Renewal
Project, accomplished in accordance with the then existing statutory procedures, was valid.
Butters v. City of Des Moines, 209 N.W. 401 (Iowa 1926).
[Headnote 2]
2. NRS 239.010 provides that non-confidential public records shall, during office hours,
be open to inspection by any person. A custodian of such records who refuses one the right to
inspect is guilty of a misdemeanor.
1

A request to inspect records pertaining to the urban renewal project was made before the
public hearing on April 17 took place. Some of those records were made available for
inspection, but others (preliminary appraisal studies, neighborhood analysis maps,
correspondence with federal officers) were not. It is the city's position that the last mentioned
records were not public records within the intendment of NRS 239.010. On the other hand,
the complaining citizens contend that the non-produced records were essential to enable them
to prepare for the public hearing, and should be deemed to be public records within the
contemplation of the statute. By reason of this deprivation they now assert that the hearing
was unfair, and seek to have it annulled.
[Headnote 3]
In the context of this case it is not necessary to decide whether the particular records
sought to be inspected fall within the statute, since no effort was made to mandate their
production prior to the hearing.
____________________

1
The statute reads: 1. All public books and public records of state, county, city, district, governmental
subdivision and quasi-municipal corporation officers and offices of this state (and all departments thereof), the
contents of which are not otherwise declared by law to be confidential, shall be open at all times during office
hours to inspection by any person, and the same may be fully copied or an abstract or memorandum prepared
therefrom, and any copies, abstracts or memoranda taken therefrom may be utilized to supply the general public
with copies, abstracts or memoranda of the records or in any other way in which the same may be used to the
advantage of the owner thereof or of the general public.
2. Any officer having the custody of any of the public books and public records described in subsection 1
who refuses any person the right to inspect such books and records as provided in subsection 1 is guilty of a
misdemeanor.
within the statute, since no effort was made to mandate their production prior to the hearing.
That remedy was available to force the claimed right of inspection, but was not utilized. Since
the avowed purpose was to secure information to enable them to prepare for the hearing, the
instant mandamus proceeding, filed many months after the hearing, cannot be utilized to
invalidate that hearing and the action taken by the City Council upon conclusion thereof. A
known remedy was waived by not being timely asserted. Franck v. J. J. Sugarman-Rudolph
Co., 241 P.2d 1045, 1049 (Cal.App. 1952); Beaulaurier v. Washington State Hop Producers,
111 P.2d 559, 562 (Wash. 1941).
2

If, for some reason, it is still important to the complaining citizens to inspect all records
pertaining to the Rose Garden Urban Renewal Project, and if all such records are public
records, legal avenues are open to them. Our holding today means only that the city's refusal
to produce certain records for inspection before the public hearing held on April 17, does not
invalidate the council action taken thereon.
Affirmed.
____________________

2
The instant matter is not unlike one in which a party, having the right to secure his opponent's deposition,
fails to do so and, after defeat at trial, seeks to annul the result since he did not have the deposition information
available for trial use. Judicial relief would not be available in such a case.
____________
85 Nev. 69, 69 (1969) Barnes v. State
CARROLL EUGENE BARNES, Appellant, v. THE
No. 5494
February 10, 1969 450 P.2d 150
Appeal from the Eighth Judicial District Court, Clark County; John Mowbray, Judge.
The trial court found defendant guilty of second-degree murder, and he appealed. The
Supreme Court, Collins, C. J., held that where police officer, after stopping suspect in armed
robbery case, received affirmative response to his question of whether suspect was armed, the
officer was justified in believing the suspect armed and dangerous and in seizing revolver
from suspect's person, irrespective of whether there was probable cause for an arrest.
from suspect's person, irrespective of whether there was probable cause for an arrest.
Affirmed.
Harvey Dickerson, Attorney General, State of Nevada, and George E. Franklin, Jr.,
District Attorney, and Alan R. Johns, Deputy District Attorney, Clark County, for
Respondent.
1. Arrest.
Defendant who was reasonably within area of robbed office and who met reasonable description of the
robber was properly stopped for legitimate police investigation.
2. Arrest.
Once a suspect has been detained, the police officer, if he has reason to believe the suspect is armed and
presently dangerous, may take necessary measures to determine whether the person is in fact carrying a
weapon and to neutralize the threat of physical harm.
3. Arrest.
Where police officer, after stopping suspect in armed robbery case, received affirmative response to his
question of whether suspect was armed, the officer was justified in believing the suspect armed and
dangerous and in seizing revolver from suspect's person, irrespective of whether there was probable cause
for an arrest.
4. Homicide.
Substantial evidence supported jury's verdict finding defendant guilty of second-degree murder. NRS
200.160.
5. Criminal Law.
In view of fact that defendant was found guilty of second-degree murder, a noncapital offense, error
could not be predicated on fact that some persons were excluded from the jury because of their nonbelief in
capital punishment. NRS 175.105.
OPINION
This appeal is from a conviction of appellant of murder in the second degree. We affirm
the conviction.
On the evening of May 18, 1966, the decedent, Tommy J. Tyree, and a friend, Clyde Van
Voras, both cowboys, were drinking and apparently looking for female companionship. They
met a Negro named Max L. Haynes who arranged a date for the deceased. Van Voras
testified that he set up his own date. Van Voras and his date left the bar where they had
been drinking and proceeded to an apartment house nearby.
nearby. Haynes took the decedent to the same apartment house to meet the girl Haynes had
set up for him. At the apartment house the arrangement proved unsatisfactory, and the
cowboys decided to leave. An argument ensued, and, as Van Voras testified, he knocked
Haynes down and kicked him a few times, and the cowboys then departed.
At this point there are two versions of what occurred.
Van Voras testified that he and the decedent ran for a couple blocks and walked a few
more blocks away from the apartment. When they were about six blocks away, Haynes and
the appellant, who the cowboys had not seen before this point, suddenly appeared from
around a corner. Van Voras had a knife in one hand and a board in the other; the decedent,
Tyree, had a knife; and Haynes was armed with a knife. Haynes came at Van Voras and they
began fighting. Van Voras heard a shot and looked around to see the decedent sort of fold
over, and saw that appellant was holding a gun in his hand. Other shots were fired by
appellant, and appellant then pointed the gun at Van Voras and said, I will kill you, too.
Appellant pulled the trigger, but the gun was apparently empty. Appellant and Haynes then
ran from the scene. Van Voras called the police.
Appellant testified that he is a professional prize fighter and he had gotten up at about five
o'clock on the morning of the shooting to do his road work. He had just gotten dressed when
he heard a ruckus outside on the street. He looked out the window and saw a man being
beaten by two other men using a stick and a plaited piece of leather with a metal ball
attached to the end. He armed himself with a pistol which was in his bedroom. He went
outside and the fight was still going on. He tried to stop the two cowboys from beating
Haynes, told them to leave, and when Tyree started to attack him fired two warning shots to
attract his attention to the weapon. Tyree still came forward, and appellant shot him in the leg
and when that didn't stop him he shot again. That shot stopped him. He fired a couple more
shots to back Van Voras off from Haynes, and then appellant and Haynes departed. Haynes
was apprehended by police officers almost immediately, but appellant got away.
On the morning of July 7, 1966, Officers Walker and Pearce of the Las Vegas Police
Department received notice from the police dispatcher that there had been a robbery of the
Western Union office in Las Vegas. The robber was described as a male Negro, 23 to 25
years old, wearing a yellow short-sleeve shirt and black pants and carrying a gun. About 15
minutes after they received notice of the robbery, they observed appellant about five or six
blocks from the place of the robbery.
they received notice of the robbery, they observed appellant about five or six blocks from the
place of the robbery. He was wearing a yellow short-sleeve shirt and black pants. The officers
approached him, and Officer Pearce asked if he was carrying a gun. Appellant answered,
Yes, I am. Officer Pearce asked him where it was and he said it was in his waistband under
his shirt. Appellant started to reach for the gun, and Officer Pearce told him, I will remove
the weapon from you, just hold your hands still. The officer then removed the weapon from
appellant's waistband and advised him that he was under arrest for carrying a concealed
weapon.
1. Appellant's first assignment of error is that the gun introduced in evidence during the
trial was obtained as a result of an unlawful search and seizure and should have been
suppressed by the trial court. We do not agree with that contention.
[Headnote 1]
In a recent decision of this court, Robertson v. State, 84 Nev. 559, 445 P.2d 352 (1968),
we held that a police officer may stop the occupants of an automobile for legitimate police
investigation so long as there is probable cause for that action (citing cases). We think that
same rule applies to individuals where, as here, appellant was reasonably within the area of
the robbed office and met a reasonable description of the robber.
[Headnotes 2, 3]
Once the suspect has been detained, if the officer has reason to believe that the suspect is
armed and presently dangerous to the officer or to others, he may take necessary measures to
determine whether the person is in fact carrying a weapon and to neutralize the threat of
physical harm. Terry v. Ohio, 392 U.S. 1 (1967). In Terry, the court said:
Our evaluation of the proper balance that has to be struck in this type of case leads us to
conclude that there must be a narrowly drawn authority to permit a reasonable search for
weapons for the protection of the police officer, where he has reason to believe that he is
dealing with an armed and dangerous individual, regardless of whether he has probable cause
to arrest the individual for a crime. The officer need not be absolutely certain that the
individual is armed; the issue is whether a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that of others was in danger. Clearly,
when a officer asks a suspect in an armed robbery case whether he is armed, and the suspect
answers in the affirmative, the officer is justified in believing the person is armed and
presently dangerous.
the affirmative, the officer is justified in believing the person is armed and presently
dangerous. This justifies seizure of the weapon in question, whether there is probable cause
for arrest or not.
[Headnote 4]
2. Appellant next assigns as error a contention that as a matter of law the killing of Tyree
by appellant was justifiable homicide and cites NRS 200.160. There was substantial evidence
to support the jury's verdict. We will not disturb that finding. Elias v. State, 73 Nev. 108, 310
P.2d 621 (1957).
[Headnote 5]
3. Appellant's final contention of error concerns exclusion of some persons from the jury
because of their nonbelief in capital punishment as authorized by NRS 175.105. Appellant
was found guilty of second degree murder, a noncapital offense. This same contention was
recently resolved against appellant's position in this court's decision in Howard v. State, 84
Nev. 599, 446 P.2d 163 (1968).
The judgment of conviction is affirmed.
Zenoff, Batjer, and Thomspon, JJ., and Waters, D. J., concur.
____________
85 Nev. 73, 73 (1969) Stiff v. Holmes
BILLIE STIFF, Appellant, v. RUTH F. HOLMES, Individually and as Guardian ad Litem of
PATRICIA R. McDONOUGH, Respondent.
No. 5571
February 10, 1969 450 P.2d 153
Action under automobile guest statute by minor plaintiff against defendant motorist. The
lower court rendered judgment for the plaintiff and the defendant motorist appealed. The
Supreme Court, Collins, C. J., held that trial court's failure to inform jury that instructions on
duty of motorist to be vigilant and to maintain vehicle under such control that to avoid
collision he can stop as quickly as might be required of him by events that would be
anticipated by ordinarily careful driver in like position and on range of vision rule were
given for purpose of explaining difference between ordinary and gross negligence was
error.
purpose of explaining difference between ordinary and gross negligence was error.
Reversed and remanded for new trial.
Richard P. Wait, of Reno, for Appellant.
Echeverria & Osborne and John T. Coffin, of Reno, for Respondent.
1. Automobiles.
In an action against a motorist under automobile guest statute, it is entirely proper to instruct jury on
meaning of negligence and not just on meaning of gross negligence. NRS 41.180.
2. Automobiles.
Gross negligence within meaning of automobile guest statute, means nothing more nor less than great
negligence. NRS 41.180.
3. Automobiles.
Jury in action against motorist under automobile guest statute should be instructed on meaning of
ordinary negligence as well as gross negligence but purpose of the instruction must be made clear so that
the jury will not be confused as to the standard of care applicable to the defendant motorist. NRS 41.180.
4. Automobiles.
Trial court's failure in action against motorist under automobile guest statute to inform jury that
instructions on duty of motorist to be vigilant and to maintain vehicle under such control that to avoid
collision he can stop as quickly as might be required of him by events that would be anticipated by
ordinarily careful driver in like position and on range of vision rule were given for purpose of explaining
difference between ordinary and gross negligence was error. NRS 41.180.
5. Automobiles.
Rule that a driver must see objects and stop within range of his headlights does not apply to holes, bumps
or depressions in the road against which the lights do not shine and which may not be more noticeable than
a shadow on surface of road.
6. Automobiles.
Giving of instruction on range of vision rule was error in action brought against motorist under guest
statute where motorist could not observe that off ramp of freeway ended in 45-foot embankment drop-off
until well after limits of illumination by headlights of his automobile has passed over them. NRS 41.180.
OPINION
Billie Stiff appeals from a denial of her motion for a new trial. We agree with her
specifications of error, reverse the order and remand the action for a new trial.
On June 15, 1963, appellant Billie Stiff, in her jeep station wagon, drove a group of girls
including the plaintiff Patricia McDonough to Reno from Lovelock for a Rainbow Girls' State
Convention. Appellant returned to Lovelock that same day. On Monday, June 17, appellant
returned to Reno to pick up the girls and take them back to Lovelock. She left Lovelock about
six o'clock, and upon arriving in Reno attended the Grand Assembly Ceremonies that
evening. After the ceremonies the girls gathered up their belongings and, after a stop at the
Sparks Nugget Coffee Shop, they proceeded, at about 2:00 a.m., to drive back to Lovelock.
Respondent Patricia McDonough was riding as a guest in the back seat and not as a
passenger for compensation under Nevada's guest statute.
Prior to June 18, 1963, defendant Bing Construction Co. had entered into a contract with
the Nevada State Highway Department for a highway construction project on Interstate 80,
east of Sparks, Nevada. This project included construction of interchanges and overpasses at
Happy Valley, Nevada.
At the time of the accident on June 18, 1963, construction on this project was almost
complete. The main traveled lanes of traffic were open to the public. As one progressed east
on Interstate 80 and approached the Happy Valley interchange there existed an off-ramp
which served as an exit for eastbound traffic. A motorist using that off-ramp would make a
six-degree turn and travel up a 2.68 percent grade to the top of the ramp. The distance from
the throat to the top of the ramp was approximately 750 feet. From the top one could turn
north and travel over the highway or turn south into the Happy Valley area, or could angle to
the left and go down an on-ramp back onto Interstate 80.
The ramp was recently paved and in such a nearly completed stage that vehicular traffic
would have no difficulty in driving up it. It was not open to the general public as of June 17,
1963, and at the end of the working day four small A-frame barriers, at least three of which
were equipped with flashers, were placed approximately four feet apart across the throat of
the off-ramp adjacent to the main traveled lanes of traffic on Interstate 80. There were no
signs indicating that the road was closed and nothing other than the four A-frame barriers to
impede traffic from using the off-ramp. There were no white lines on the main traveled lanes
of traffic, nor were there any markings or guard rails on the ramp, and there was no stop sign
at the top of the ramp.
Appellant testified that she was driving 35 to 40 miles per hour from the time she left
Sparks, Nevada.
hour from the time she left Sparks, Nevada. Because of her speed she was driving in the
right-hand lane close to the shoulder. She entered the off-ramp without realizing she had left
the main-traveled lane of Interstate 80. She was not aware of any danger until she heard one
of the girls in the front seat scream, at which point she applied her brakes but was unable to
prevent her automobile from going over the embankment at the end of the off-ramp, 40 to 50
feet to the railroad tracks below.
Officer Ciardella, who investigated the accident, testified that after the accident there were
three A-frame barriers upright at the throat of the ramp; one was at the right edge of the
off-ramp and two at the left edge. He noticed portions of a broken barricade between
Interstate 80 and the ramp but could not say whether it was damaged during the accident in
question.
There was testimony by employees of Bing Construction Company that in the past
members of the general public had used the off-ramp in the evening, moving aside the
A-frame barriers and failing to replace them. Appellant and others in the car testified that they
saw no barriers; that they did not have a sensation of going up hill or turning to the right, and
that the jeep in which they were traveling did not strike an A-frame barrier or any other object
prior to going over the embankment.
The posted speed limit through the construction zone was 45 miles per hour, but because
of the increased danger at the Happy Valley interchange, the speed limit was 25 mph as
indicated by a sign at the throat of the off-ramp.
1. Appellant contends it was prejudicial error for the lower court to instruct the jury on the
duty of ordinary care of a driver in a case such as this, where the driver's liability must be
predicated upon intoxication, gross negligence or willful misconduct. NRS 41.180.
Specifically, appellant objects to instruction 21, which reads:
It is the duty of the driver of a motor vehicle, using a public highway to be vigilant at all
times and to keep the vehicle under such control that to avoid a collision he can stop as
quickly as might be required of him by events that would be anticipated by an ordinarily
careful driver in like position.
and instruction 22, which reads:
It is the duty of the driver of a motor vehicle, using a public highway in the nighttime to
be vigilant at all times and to drive at such a rate of speed and to keep the vehicle under
such control that, to avoid a collision, he can stop within the distance the highway is
illuminated by its lights."
at such a rate of speed and to keep the vehicle under such control that, to avoid a collision, he
can stop within the distance the highway is illuminated by its lights.
Some courts have held ordinary negligence instructions on a host-guest situation are
confusing and should not be given. See Lewis v. Oliver, 271 P.2d 1055 (Colo. 1954).
[Headnotes 1, 2]
But we prefer the rule stated in Rogers v. Southern Pacific, 227 P.2d 979 (Ore. 1951),
where the court said:
[I]t is entirely proper in a gross negligence case to instruct the jury on the meaning of
negligence. In its simplest definition gross negligence means nothing more nor less than
great negligence.' How it is possible to reach the conclusion that a party has been guilty of
gross negligence without an understanding of the meaning of the term negligence is
something difficult to conceive.
See also Nist v. Tudor, 407 P.2d 798 (Wash. 1965); Ratzburg v. Foster, 398 P.2d 458
(Mont. 1965); Southern v. Hunt, 132 S.E.2d 132 (Ga.App. 1963); Osborn v. Chapman, 384
P.2d 117 (Wash. 1963); cf. Scott v. Smith, 73 Nev. 158, 311 P.2d 731 (1957), where this
court held that a city speed ordinance establishing the standard of due care as to speed, was
admissible evidence in a gross negligence case.
[Headnote 3]
We doubt a jury could determine whether a party was guilty of gross negligence without
an understanding of the meaning of ordinary negligence. Fossi v. George, 228 P.2d 798 (Ore.
1951). But the purpose of the instruction must be made clear so that the jury will not be
confused as to the standard of care applicable to the defendant. Smith v. Laflar, 20 P.2d 391
(Ore. 1933); Osborn v. Chapman, supra; and see Wells, Inc. v. Shoemake, 64 Nev. 57, 177
P.2d 451 (1947).
[Headnote 4]
Nowhere in the instructions given by the lower court was the jury told that instructions 21
and 22 were given only for the purpose of explaining the difference between ordinary and
gross negligence. We think this was error.
2. Appellant also contends it was prejudicial error for the court to give instruction 22,
quoted above, known as the range of vision rule, or the assured clear distance rule. While
we would not otherwise decide the point, because there will be a new trial we feel the lower
court erred in giving the instruction in this case.
Nevada has no statute imposing the rule. It has been approved, however, by court decision.
See Rocky Mountain Produce Trucking Co. v. Johnson, 78 Nev. 44, 369 P.2d 198 (1962);
Tracy v. Pollock, 79 Nev. 361, 385 P.2d 340 (1963).
[Headnote 5]
The rule that a driver must see objects and stop within the range of his headlights should
not apply to holes, bumps or depressions in the road against which the lights do not shine and
which may not be more noticeable than a shadow on the surface of the road. See Jacobs v.
Jacobs, 74 So. 992 (La. 1917); Gayle v. Department of Highways, 205 So.2d 775 (La.App.
1967), cert. denied 207 So.2d 538; Granger v. Travelers Ins. Co., 167 So.2d 211 (La.App.
1964), cert. denied 168 So.2d 268; Applegate v. Harshman, 186 N.E.2d 763 (Ohio App.
1962); City of Summerville v. Woodard, 104 S.E.2d 507 (Ga. 1958); Crawford v. City of
Wichita, 39 P.2d 911 (Kan. 1935); Martin v. J. A. Mercier Co., 238 N.W. 181 (Mich. 1931).
[Headnote 6]
The rule should not apply in certain circumstances which are clearly demonstrated here.
The off-ramp suddenly, without warning, ended in a 45-foot embankment drop-off. A
motorist could not observe such condition until well after the limits of the illumination by the
headlights of his automobile had passed over them. There was nothing for the headlights to
illuminate.
There is no evidence to support respondent's contention that the range of vision rule
should apply because appellant struck the barrier at the commencement of the off-ramp.
Accordingly, if upon retrial the same evidence is presented, instruction 22 should not be
given.
The cause is remanded for a new trial.
____________
85 Nev. 79, 79 (1969) Lanigir v. Arden
LOUISE LANIGIR, ANN CHAIX, MARGE ARDEN, THEODORE ARDEN, a Minor,
WILLIAM ARDEN, PHILLIP ARDEN, MARY DITTMAN, LYDIA RUSS, IVY LANIGIR,
JOSEPHINE GERBIG and THOMAS ARDEN, Appellants, v. JOHN ARDEN, BETTY
ARDEN, aka NONEY M. ARDEN, Respondents.
No. 5580
February 10, 1969 450 P.2d 148
Appeal from the Second Judicial District Court, Washoe County; John E. Gabrelli, Judge.
Appeal from a judgment of the lower court of an accounting between parties as cotenants
in certain lands, in which court ordered that cotenant in possession have a lien on the land.
The Supreme Court, Collins, C. J., held, inter alia, that cotenants out of possession were not
entitled to offset the fair rental value of the property against a claim by cotenants in
possession for contribution for maintenance and improvements of the premises, since to
allow a claim for excess fair rental value would tend to do away with general rule that, absent
agreement or ouster, a cotenant in possession is not obligated to compensate cotenant out of
possession for use of the land.
Affirmed in part; reversed in part and remanded for further limited findings;
respondents' motion to dismiss denied.
Vargas, Bartlett & Dixon, and Robert W. Marshall, of Reno, for Appellants.
Belford & Anglim, of Reno, for Respondent Betty Arden.
Leslie B. Gray, of Reno, for Respondent John Arden.
1. Tenancy in Common.
Generally, in absence of an agreement to pay, or ouster by cotenant in possession, tenant in common who
occupies all or more than his proportionate share of common premises is not liable, because of such
occupancy alone, to his cotenant for rent or for use and occupation of the premises, but an exception to that
rule exists where cotenant in possession seeks contribution from cotenant out of possession for funds
expended for betterment of common estate; in such case he must deduct, as an offset, the value of the use
of the premises.
2. Tenancy in Common.
Cotenants out of possession were not entitled to offset the fair rental value of the property against a claim
by cotenants in possession for contribution for maintenance and improvements of the premises, since to
allow a claim for excess fair rental value would tend to do away with general rule that, absent
agreement or ouster, a cotenant in possession is not obligated to compensate
cotenant out of possession for use of the land.
would tend to do away with general rule that, absent agreement or ouster, a cotenant in possession is not
obligated to compensate cotenant out of possession for use of the land.
Where Supreme Court, in earlier opinion, only indirectly mentioned issue of an accounting for sale of
lands, and in that case fair rental value was not specified as error, nor was it an issue on appeal it could not
be implied from prior opinion that the Court there considered the issue of offset for fair rental value or that
it decided, contrary to general authority, that it should not be allowed, so issue before trial court and
Supreme Court presently touching upon right of cotenants out of possession to offset fair rental value
against claim of cotenants in possession for maintenance and improvement to the premises was not a part of
the law of the case in Court's first opinion.
OPINION
This is an appeal from a judgment of accounting between appellants and respondents as
co-tenants in certain land located in Washoe County, Nevada. The lower court ordered that
respondent Betty Arden, now Betty Bowen, have a lien on the land in the amount of
$31,170.54.
This cause was previously before this court in Lanigir v. Arden, 82 Nev. 28, 409 P.2d 891
(1966).
The original action in the district court was a suit by nine brothers and sisters and the
successors in interest of one deceased brother (appellants herein) against the remaining
brother and his former wife (respondents herein) to quiet title to certain real property in
Washoe County, Nevada. The lower court ruled in favor of defendant-respondent Betty Arden
and gave her a decree quieting title to the property. On appeal from that decision, this court
reversed, stating that:
[T]he heirs of the estate of Philip Arden each own an undivided one-eleventh interest as
tenants in common . . . except Theodore Arden, deceased, whose one-eleventh interest
descended to his heirs, and John Arden whose one-eleventh interest was conveyed to Betty
Arden. . . .
The issues to be decided in this appeal are:
I. Are co-tenants out of possession entitled to offset the fair rental value of the property
against a claim by co-tenants in possession for contribution for maintenance and
improvements on the land?
II. Did this court in Lanigir v. Arden, supra, hold that appellants in this case are not
entitled to offset the fair rental value of the premises in question against a claim for
contribution by respondents in this case for maintenance and improvements of the
premises?
appellants in this case are not entitled to offset the fair rental value of the premises in question
against a claim for contribution by respondents in this case for maintenance and
improvements of the premises?
[Headnote 1]
1. The majority rule is that in the absence of an agreement to pay, or ouster by the
co-tenant in possession, a tenant in common who occupies all or more than his proportionate
share of the common premises is not liable, because of such occupancy alone, to his co-tenant
for rent or the use and occupation of the premises. See Hunter v. Shultz, 49 Cal.Rptr. 315
(Cal. App. 1966); 86 C.J.S. Tenancy in Common, Sec. 46 (1954); 20 Am.Jur.2d Cotenancy
and Joint Ownership, Sec. 41 (1965); 51 A.L.R.2d 388, 409.
An exception to that rule is that where the co-tenant in possession seeks contribution from
the co-tenant out of possession for funds expended for the betterment of the common estate,
he must deduct, as an offset, the value of the use of the premises. See 51 A.L.R.2d 388 at
454; 136 A.L.R 1022. Accord; Rose v. Holbrook, 287 S.W.2d 914 (Ky. 1956); Richardson v.
Kuhlmyer, 250 S.W.2d 355 (Mo. 1952); Potter v. Garrett, 52 So.2d 115 (Fla. 1951); Roberts
v. Roberts, 150 S.W.2d 236 (Tex. 1941); 20 Am.Jur.2d Cotenancy and Joint Ownership, Sec.
44; 68 C.J.S. Partition, Sec. 141.
The problem in this case is, however, whether appellants are entitled to an affirmative
judgment in their favor if the fair rental value of the property exceeds the amount due
respondents for contribution for maintenance and improvements. The lower court found that
the amount due appellants from the sale of a portion of the lands by respondents was
$8,863.64, and that the amount due respondents for appellants' share of maintenance and
improvements equalled $40,934.18, thus the lien judgment in favor of Betty Bowen of
$31,170.54. Appellants claimed fair rental value of the premises during possession by
respondents to be $37,440.91, which should have resulted in a judgment in their favor of
$6,270.37.
[Headnote 2]
We hold that an offset for fair rental value should be an offset and nothing more. As stated
in 51 A.L.R.2d 388 at 454, a co-tenant out of possession when faced with a claim for
contribution for improvements may charge the claimant defensively, with at least a part of
the reasonable value of his occupancy. To allow a claim for the excess fair rental value
would tend to do away with the general rule that absent agreement or ouster a co-tenant
in possession is not obligated to compensate the co-tenant out of possession for use of
the land.
would tend to do away with the general rule that absent agreement or ouster a co-tenant in
possession is not obligated to compensate the co-tenant out of possession for use of the land.
2. On the prior appeal in this case, this court stated:
John and Betty Arden are accountable to the plaintiffs below for all sums received from
those who purchased parcels of the inherited real property, and are also entitled to credit for
the improvements of and payments made upon the property described in the judgment below.
. . . We therefore reverse the judgment below, and remand this cause for further
proceedings in accordance with the views expressed herein.
Respondent contends, and the lower court agreed, that that portion of our opinion
precluded consideration of appellants' claim of offset for fair rental value regardless of the
merits of such claim. See In re Forsyth's Estate, 45 Nev. 385, 204 P. 887 (1922); Bromberg v.
Finnell, 80 Nev. 189, 391 P.2d 31 (1964), cert. denied 379 U.S. 988.
The doctrine of the law of the case in Nevada was stated in State v. Loveless, 62 Nev. 312,
150 P.2d 1015 (1944), which reads:
All the propositions assumed by the court to be within the case and all the questions
presented and considered, and deliberately decided by the court, leading up to the final
conclusion reached are as effectually passed upon as the ultimate questions solved. . . . The
judgment is authority upon all points assumed to be within the issues which the record shows
the court deliberately considered and decided in reaching it. (Emphasis added.)
See also Wright v. Carson Water Co., 22 Nev. 304, 42 P. 196 (1895).
[Headnote 3]
In our earlier opinion we only indirectly mentioned the issue of an accounting for sale of
lands. In that case fair rental value was not specified as error, nor was it an issue on appeal.
Thus, it cannot be implied from that opinion that we considered the issue of offset for fair
rental value or that we decided, contrary to general authority, that it should not be allowed.
The issue before the trial court and this court now touching upon the right to offset the fair
rental value against a claim for maintenance and improvements to the premises was not a part
of the law of the case in our first opinion.
The cause is remanded to the lower court to determine the amount of the offset for fair
rental value of the premises to which appellants are entitled against the amount found to be
due respondents for maintenance and improvements.
due respondents for maintenance and improvements. In other respects the judgment is
affirmed.
The motion of respondents to dismiss the appeal is denied.
____________
85 Nev. 83, 83 (1969) Smith v. Warden
BOBBY FRED SMITH, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 5636
DAVID C. LUSE, aka DAVID CLAUDE LUSE, Appellant, v. WARDEN,
No. 5713
February 10, 1969 450 P.2d 356
Consolidated appeals from post-conviction judgments of the First Judicial District Court,
Ormsby County, Frank B. Gregory, Judge, and the Second Judicial District Court, Washoe
County, John E. Gabrielli, Judge, respectively.
The Supreme Court, Thompson, J., held that probationers did not have right under Sixth
Amendment to have appointed counsel present since probation revocation hearing is not
critical stage in criminal process, and that disparity in wealth between any probationer who
could afford to retain counsel and probationers who could not did not necessarily create an
invidious discrimination or deny equal protection.
Judgments affirmed.
[Rehearings denied March 5, 1969]
James C. Martin, of Carson City, for Appellant Bobby Fred Smith.
Melvin, Schaengold, of Reno, for Appellant David C. Luse, aka David Claude Luse.
Harvey Dickerson, Attorney General, and Robert R. Groves, Deputy Attorney General, of
Carson City, for Respondent.
1. Criminal Law.
Transformation of privilege to enjoy assistance of counsel into right to counsel occurs when critical stage
in criminal process is reached. U.S.C.A.Const. Amends. 6, 14.
2. Criminal Law.
Probation revocation hearing is not critical stage in criminal process and therefore probationers did not
have right under Sixth Amendment to have appointed counsel present. U.S.C.A.Const. Amend. 6.
3. Constitutional Law.
Disparity in wealth between any probationer who could afford to retain counsel and probationers who
could not did not necessarily create an invidious discrimination or deny equal protection. U.S.C.A.Const.
Amends. 6, 14.
Due process of law is not denied probationers without counsel in revocation hearing. U.S.C.A.Const.
Amend. 14.
OPINION
We recently ruled that an indigent person on probation is not entitled to appointed counsel
at a revocation hearing in which sentence has been imposed after a felony conviction, but the
execution thereof had been suspended during good behavior on probation. In re DuBois, 84
Nev. 562, 445 P.2d 354 (1968). We there distinguished the United States Supreme Court
decision of Mempa v. Rhay, 389 U.S. 128 (1967), which requires counsel, unless waived, in a
case where sentencing of the convicted felon is deferred subject to probation. Mempa
considered the imposition of sentence to be a critical stage in the criminal proceeding, and
mainly for that reason concluded that the Sixth Amendment affords a probationer the right to
counsel at a revocation hearing where sentence will be imposed if revocation occurs. Since in
Nevada the convicted defendant is represented by counsel, absent waiver, at the time sentence
is imposed, we deemed the precise holding of Mempa inapplicable to the procedure followed
in this state.
Today, in consolidated cases, we are asked to overturn In re DuBois. Each appellant is
indigent. Each was convicted of a felony, sentenced, and placed on probation. In each
instance probation was later revoked at a hearing in the absence of counsel. Each prisoner
sought post-conviction relief, and these consolidated appeals are from district court
judgments denying relief.
It would appear that DuBois is dispositive and renders this consolidated appeal unworthy
of serious consideration. However, a new contention is pressedone concerning the possible
application of the equal protection clause to the issue at handa contention not urged when
we decided DuBois, and one which we now must consider.
a contention not urged when we decided DuBois, and one which we now must consider.
The contention is simply this. A probationer with money may retain counsel to represent
him at a revocation hearing. To deny appointed counsel to an indigent probationer is to deny
him equal protection of the law. The rich and the poor must be treated alike insofar as the
right to counsel is concerned. This argument was approved by the Oregon Supreme Court in a
lucid opinion, Perry v. Williard, 427 P.2d 1020 (Ore. 1967), and is not lightly to be cast aside.
We do not, however, choose to accept it in Nevada, for reasons which to us seem sound.
The Sixth Amendment right to counsel cases decided by the United States Supreme Court
center upon the need for counsel at critical stages of the criminal proceeding in order to insure
fundamental fairness in the treatment of an accused or of one upon whom suspicion is
focused. Consequently, that court has ruled that the right to counsel attaches when a police
investigation is no longer a general inquiry into an unsolved crime but has begun to focus
upon a particular suspect in police custody (Escobedo v. Illinois, 378 U.S. 478 (1964)); at
pre-trial lineup conducted for identification purposes (United States v. Wade, 388 U.S. 218
(1967); Gilbert v. California, 388 U.S. 263 (1967)); at the time when a plea is entered (White
v. Maryland, 373 U.S. 59 (1963); Hamilton v. Alabama, 368 U.S. 52 (1961)); at trial (Gideon
v. Wainwright, 372 U.S. 335 (1963)); when sentence is imposed (Mempa v. Rhay, 389 U.S.
128 (1967)); and on a convicted person's first appeal granted as a matter of right (Douglas v.
California, 372 U.S. 353 (1963)). All of those cases rest upon the guarantees of fair procedure
inherent in the Due Process Clause of the Fourteenth Amendment through which the Sixth
Amendment is made applicable to the states, with only Douglas v. California giving
equivalent emphasis to equal protection.
[Headnotes 1-4]
In our judgment the Equal Protection Clause is not apposite, and its application to the
problem at hand can lead only to mischievous results. A disparity in wealth between a
probationer who can afford to retain counsel and one who cannot does not necessarily create
an equal protection problem. Something more must be present. There must be a deviation
from commonly held notions of fundamental fairness which creates an invidious
discrimination. Thus, a court concerned with this problem must distinguish between the
privilege of one to have counsel present and the constitutional right to enjoy the
assistance of counsel.
counsel present and the constitutional right to enjoy the assistance of counsel. The
transformation of privilege into right occurs when a critical stage in the criminal process is
reached. This is how we read the High Court's declarations in the Sixth Amendment right to
counsel cases. To date, at least, a probation revocation hearing is not such a critical stage
unless sentence is to be imposed if revocation occurs. Mempa v. Rhay, supra. Since, in
Nevada sentencing does not happen at that time, we adhere to the belief that a probationer
does not have a right under the Sixth Amendment to have appointed counsel present. Nor
does a disparity in wealth necessarily create an invidious discrimination and deny equal
protection to probationers. Finally, we cannot say that due process of law is denied a
probationer without counsel within the framework of our existing statutory scheme. Shum v.
Fogliani, 82 Nev. 156, 413 P.2d 495 (1966).
The judgments below are affirmed.
____________
85 Nev. 86, 86 (1969) Wadsworth v. Dille
CHARLES E. WADSWORTH, Appellant, v. NEIL JAY DILLE and W. M. K. TRANSIT
MIX, INC., a Nevada Corporation, Respondents.
No. 5227
February 13, 1969 450 P.2d 362
Appeal from judgment of the Eighth Judicial District Court, Clark County; Clarence
Sundean, Judge.
Automobile accident case in which plaintiff appealed from an adverse judgment of the trial
court. The Supreme Court, Thompson, J., held that it was not inclined to independently
search record or ascertain whether or not instruction on contributory negligence should have
been given in automobile accident case, although it was within its power to do so, and since
alleged error in giving of such instruction was not preserved for review by appropriate
objection the Supreme Court would decline to rule.
Affirmed.
Robert W. Austin, of Las Vegas, for Respondents.
1. Trial.
Instruction on contributory negligence in automobile accident case was the kind of instruction that should
provoke an objection if a basis exists therefor. NRCP 51.
Supreme Court was not inclined to independently search record or ascertain whether or not instruction on
contributory negligence should have been given in automobile accident case, although it was within its
power to do so, and since alleged error in giving of such instruction was not preserved for review by
appropriate objection the Supreme Court would decline to rule. NRCP 51.
OPINION
The plaintiff had stopped his car for a red light at an intersection and, while so stopped,
was bumped from the rear by an employee driver of the cement company's truck. Among the
jury instructions given in the personal injury action which followed was an instruction
concerning contributory negligence. Plaintiff's counsel did not object to the giving of that
instruction. He apparently believed that the defendants' version of the collision supplied a
basis for an instruction regarding the plaintiff's contributory fault, and that the issues of
negligence and contributory negligence were fact questions for the jury to resolve. The jury
returned a defense verdict, and we are now requested to set it aside and order another trial
mainly upon the ground that the record contains nothing to suggest contributory negligence
and an instruction on that doctrine should not have been given.
[Headnotes 1, 2]
NRCP 51 reads: . . . No party may assign as error the giving . . . [of] an instruction unless
he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to
which he objects and the grounds of his objection. . . . Had the plaintiff objected the trial
court would have been given an opportunity to evaluate the evidence and rule upon the
propriety of the contributory negligence instruction. That opportunity was effectively
precluded by the silence of plaintiff's counsel. The point which the plaintiff-appellant now
wishes to be considered for the first time should have been urged and ruled upon below,
especially when it strikes at the heart of the case. It is the kind of instruction that should
provoke an objection if a basis exists therefor (Fireman's Fund Insurance Company v.
Shawcross, 84 Nev. 446, 442 P.2d 907 {196S)), and we are not now inclined to
independently search the record to ascertain whether or not the instruction should have
been given, although it is within our power to do so.
(1968)), and we are not now inclined to independently search the record to ascertain whether
or not the instruction should have been given, although it is within our power to do so. Since
the alleged error was not preserved for appellate review by appropriate objection (Duran v.
Mueller, 79 Nev. 453, 386 P.2d 733 (1963); Wagon Wheel Saloon and Gambling Hall, Inc. v.
Mavrogan, 78 Nev. 126, 369 P.2d 688 (1962)), we decline to rule at this time.
Affirmed.
____________
85 Nev. 88, 88 (1969) Wilson v. State
BEN WILSON, Appellant, v. THE STATE
No. 5621
February 13, 1969 450 P.2d 360
Appeal from judgment of conviction of the Eighth Judicial District Court, Clark County;
Thomas J. O'Donnell, Judge.
Defendant was convicted before the lower court of assault with deadly weapon with intent
to do bodily harm, and he appealed. The Supreme Court, Thompson, J., held that evidence
was sufficient to permit jury to infer that defendant, who held straightedge razor against
victim's throat but fled when police arrived, had specific intent to inflict bodily harm, even
though he may also have intended to frighten and intimidate victim.
Affirmed.
R. Ian Ross, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, of Carson City, George E. Franklin, Jr., District
Attorney, Alan R. Johns, and Addeliar D. Guy, Deputy District Attorneys, Clark County, for
Respondent.
1. Assault and Battery.
Offense of assault with deadly weapon with intent to do bodily harm requires proof of specific intent to
inflict bodily harm. NRS 200.400, subd. 2.
2. Criminal Law.
Where statute makes an offense to consist of an act combined with particular intent, intent is just as
necessary to be proved as act itself. NRS 200.400, subd. 2.
Since assaultor's state of mind is subjective matter, trier of fact must resort to inferences from attendant
circumstances to ascertain intent to inflict bodily injury. NRS 200.400, subd. 2.
Assaultor's intention to frighten and intimidate his victim does not preclude intention to bodily injure
victim; both may exist simultaneously.
Evidence in prosecution for assault with deadly weapon with intent to do bodily harm was sufficient to
permit jury to infer that defendant, who held straightedge razor against victim's throat but fled when police
arrived, had specific intent to inflict bodily harm, even though he may also have intended to frighten and
intimidate victim. NRS 200.400, subd. 2.
Where district court appointed counsel to represent indigent defendant on appeal of his conviction,
district court would be required to give counsel certificate entitling him to compensation for services
rendered and expenses incurred. NRS 7.260, subd. 3.
OPINION
A jury convicted Wilson of an assault with a deadly weapon with intent to do bodily harm.
We are asked to void that conviction upon the ground that the evidence before the jury was
insufficient to support a finding that Wilson intended to injure his victim. In our judgment it
was permissible for the jury to return a guilty verdict and we affirm the conviction.
The victim was at a laundromat reading a newspaper and waiting for his clothes to be
washed. An object was placed against the back of his head, and a straightedge razor against
his throat. He was told not to look around. His wallet was taken, rifled, and thrown on top of
the coke machine. He was then told to stand up and go with the assaultors to the liquor store
next door. As they were leaving the laundromat the police arrived, and the assaultors
dispersed. A police officer identified Wilson as the man who was holding the straightedge
razor to the victim's throat. Wilson was subsequently apprehended and prosecuted. It is the
appellant's contention that such evidence does not establish an intention to harm his
victim.
such evidence does not establish an intention to harm his victim. He suggests that no more is
shown than an intention to frighten and intimidate. All the victim had to do was follow
orders, and he would not be hurt.
[Headnotes 1-3]
This statutory offense
1
requires proof of a specific intent to inflict bodily injury. Armijo
v. People, 402 P.2d 79 (Colo. 1965). Indeed, when the statute makes an offense to consist of
an act combined with a particular intent, the intent is just as necessary to be proved as the act
itself. State v. O'Connor, 11 Nev. 416 (1876); State v. Glovery, 10 Nev. 24 (1874). Since the
assaultor's state of mind is a subjective matter, the trier of the fact must resort to inferences
from attendant circumstances to ascertain intent. State v. Hall, 54 Nev. 213, 13 P.2d 624
(1932); State v. Thompson, 31 Nev. 209, 101 P. 557 (1909); Moyer v. People, 440 P.2d 783
(Colo. 1968); Peterson v. People, 297 P.2d 529 (Colo. 1956).
[Headnotes 4, 5]
The assaultor's intention to frighten and intimidate his victim does not preclude an
intention to bodily injure him. Both may exist simultaneously. Under the evidence it was
permissible for the jury to infer that Wilson possessed the specific intent required by the
statute.
[Headnote 6]
Since the appellant is an indigent and his counsel was appointed by the district court to
prosecute this appeal, we direct that court to give counsel the certificate specified in NRS
7.260(3).
Affirmed.
____________________

1
NRS 200.400(2) reads: An assault with a deadly weapon, instrument or other thing, with an intent to inflict
upon the person of another a bodily injury, where no considerable provocation appears, or where the
circumstances of the assault show an abandoned and malignant heart, shall subject the offender to imprisonment
in the state prison not less than 1 year nor more than 6 years, or to a fine of not more than $5,000, or to both fine
and imprisonment.
____________
85 Nev. 91, 91 (1969) Kroc v. Sheriff
JAMES EDWARD KROC, Appellant, v. SHERIFF OF
CLARK COUNTY, NEVADA, Respondent.
No. 5787
February 13, 1969 450 P.2d 788
Appeal from the denial of a writ of habeas corpus. Eighth Judicial District Court; Alvin N.
Wartman, Judge.
The Supreme Court, Batjer, J., held that where sister state in which defendant had been
convicted after he had been released in Nevada under bail bond permitted his return to
Nevada only to afford him a speedy Nevada trial, defendant was not entitled to release on bail
and refusal to permit release on bail previously posted was justified.
Affirmed.
Alfred Becker, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, George
E. Holt, Deputy District Attorney, Clark County, for Respondent.
Bail.
Where sister state, in which defendant had been convicted after he had been released in Nevada under
bail bond, permitted his return to Nevada only to afford him a speedy Nevada trial, defendant was not
entitled to release on bail and refusal to permit release on bail previously posted was justified. NRS
178.484, subd. 1, 179.187, subd. 1; Cal.Pen.Code, 1555.2.
OPINION
On the 29th of November, 1967, a grand jury in Clark County indicted the appellant,
James Edward Kroc, for the crimes of assault with a deadly weapon with intent to do bodily
harm and robbery. Bail was allowed and on December 4, 1967, the appellant was released on
bond. Thereafter, in the early part of 1968, he was convicted in the State of California on the
crime of burglary and was sentenced to a prison term in that state. On June 6, 1968, the State
of Nevada, without first forfeiting his bail, initiated proceedings to return him to this state for
trial. On September 13, 1968, the governor of the State of Nevada signed an executive
agreement requesting the State of California to allow the appellant to be returned to this
state.
this state. He was returned on October 30, 1968, and through his attorney he requested release
on the bail which he had previously posted. The request was denied by the sheriff of Clark
County for the reason that the State of California maintained a hold on the appellant to
assure his return to that state to complete his unexpired prison term.
On November 4, 1968, the appellant filed a petition for a writ of habeas corpus alleging
that he was being illegally restrained and requesting his immediate release from custody. The
appellant's petition as well as his motion for reconsideration were denied by the lower court.
In this appeal, Kroc contends that as a matter of right he is entitled to be released on bail,
and that the lower court erred in denying his petition for a writ of habeas corpus.
We find that the appellant is not entitled to bail under NRS 178.484(1),
1
nor under the
rule, announced by this court, that all offenses are bailable as a matter of right, and that such
right is absolute in non-capital cases. Ex parte Wheeler, 81 Nev. 495, 406 P.2d 713 (1965).
The appellant is present in this state by virtue of an agreement entered into between the
Governor of the State of Nevada and the Governor of the State of California. That agreement
was executed pursuant to the provisions of the Uniform Criminal Extradition Act, which act
has been adopted by both states. Kroc is still a constructive prisoner of the State of California
on loan to the State of Nevada, for the sole purpose of affording him a speedy trial.
By agreement, the State of California has retained its jurisdiction over the appellant for the
purpose of returning him to that state to serve the remainder of his prison term.
The State of Nevada could not have acquired control of the appellant without the consent
of the State of California. While he was a prisoner in the State of California the appellant was
not entitled to release on bail. The governor of that state could not have released Kroc on bail,
nor could he have agreed to his release on bail. The appellant is not entitled to release on bail
while awaiting trial in this state.
In support of his contention the appellant relies on the case of Ex parte Drake, 233 P.2d
931 (Cal.App. 1951). We find the holding in that case wholly inapplicable. There the court
specifically noted that: Mississippi has not adopted the Uniform Criminal Extradition Act,
and the provisions thereof are not applicable in this proceeding.
____________________

1
NRS 178.484(1). A person arrested for an offense not punishable by death shall be admitted to bail.
At all times while the appellant is physically present in Nevada this state is under a
compulsion by virtue of the conditions of the executive agreement and the provisions of the
Uniform Criminal Extradition Act to return the appellant to California, NRS 179.187(1). The
appellant's return can not be guaranteed if he is free on bail. The rules of comity between the
states require fulfillment of this obligation.
In the case of Ponzi v. Fessenden, 258 U.S. 254 (1921), decided several years before the
UCEA was promulgated, the United States Supreme Court set the stage for the underlying
principals of the uniform act. Ponzi, while serving sentence under a federal commitment, was
taken before a state court on a writ of habeas corpus, with the consent of the Attorney General
of the United States, and tried and convicted of a state law violation. There it was contended
that the United States had exclusive jurisdiction and custody of Ponzi, and hence the state
court had no jurisdiction to try him while he was in federal custody. Chief Justice Taft
discussed at length the respective jurisdictions and the two sovereignties, and used the
following language: One accused of crime has a right to a full and fair trial according to the
law of the government whose sovereignty he is alleged to have offended, but he has no more
than that. (Emphasis added.) He should not be permitted to use the machinery of one
sovereignty to obstruct his trial in the courts of the other, unless the necessary operation of
such machinery prevents his having a fair trial. He may not complain if one sovereignty
waives its strict right to exclusive custody of him for vindication of its laws in order that the
other may also subject him to conviction of crime against it. (cases cited omitted) Such a
waiver is a matter that addresses itself solely to the discretion of the sovereignty making it
and of its representatives with power to grant it.
In the case of Lunsford v. Hudspeth, 126 F.2d 653 (10th Cir. 1942), the court said: As an
easy and flexible means of administering justice and of affording each sovereignty the right
and opportunity to exhaust its remedy for wrongs committed against it, there has evolved the
now well established rule of comity which is reciprocal, whereby one sovereignty having
exclusive jurisdiction of a person may temporarily waive its right to the exclusive jurisdiction
of such person for purposes of trial in the courts of another sovereignty. Thus the offender is
accorded a speedy trial and the administration of justice is expedited by the availability of
evidence, which might through lapse of time be lost, but such a waiver is a matter addressed
solely to the discretion of the sovereignty, or its representatives having power to grant it.
having power to grant it. Ponzi v. Fessenden, supra, and Ex parte Aubert, D.C., 51 F.2d 136.
The privileges granted by this flexible rule of comity should and must be respected by the
sovereignty to which it is made available, and this respectful duty is reciprocal, whether
federal or state, because neither sovereignty has the power to override it. Under the free
exercise of this rule, no right or immunity granted by the constitution, laws, or treaties of the
United States, is invaded or impaired. There was no voluntary relinquishment of jurisdiction
over the appellant by California.
Adoption of the Uniform Criminal Extradition Act by both Nevada and California is a
barrier against the rule espoused by Kroc that the State of California has waived jurisdiction
over him through its voluntary release.
The appellant further contends that his extradition to Nevada constitutes a pardon of his
criminal offense in California. This contention is answered by West. Cal. Penal Code
1555.2 (West 1956), which reads as follows: Nothing in this chapter shall be deemed to
constitute a waiver by this State of its right, power or privilege to try any demanded person
for crime committed within this State, or of its right, power or privilege to regain custody of
such person by extradition proceedings or otherwise for the purpose of trial, sentence or
punishment for any crime committed within this State; nor shall any proceedings had under
this chapter which result in, or fail to result in, extradition be deemed a waiver by this State of
any of its rights, privileges or jurisdiction in any manner whatsoever. (Emphasis added.)
The orders of the lower court denying the appellant's application for a writ of habeas
corpus and denying a reconsideration of the application are affirmed.
____________
85 Nev. 95, 95 (1969) Sanchez v. State
LOUIE SANCHEZ Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 5577
February 18, 1969 450 P.2d 793
Appeal from a conviction of first-degree burglary. Eighth Judicial District Court, Clark
County; Clarence Sundean, Judge.
The trial court rendered judgment, and the defendant appealed. The Supreme Court,
Zenoff, J., held that in prosecution of defendant, who was apprehended while removing
television set from hotel, photographic copy of list containing notations of television sets
removed from hotel for repairs by designated maintenance employees and showing that on
date of apprehension of defendant with television set the set was owned by and assigned to
hotel room to which defendant had a key was properly admitted as business record under
statute.
Affirmed.
James D. Santini, Public Defender, and Robert G. Legakes, Deputy Public Defender, Clark
Addeliar D. Guy, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
In burglary prosecution of defendant, who was apprehended while removing television set from hotel,
photographic copy of list containing notations of television sets removed from hotel for repairs by
designated maintenance employees and showing that on date of apprehension of defendant with television
set the set was owned by and assigned to hotel room to which defendant had a key was properly admitted
as business record under statute. NRS 51.030, subd. 2, 51.060.
2. Criminal Law.
If, after conscientious examination of record, court-appointed counsel of defendant believes that appeal
by defendant is frivolous, then counsel must file opening brief on merits of all arguable issues raised by
record together with acknowledgment that he does not believe there is merit to appeal, and thereafter the
state may either answer in normal course or move to dismiss appeal as frivolous, but motion to dismiss
must be accompanied with points and authorities in support of claim of frivolity.
3. Criminal Law.
Neither trial court nor counsel may decide whether appeal by defendant is frivolous, and only Supreme
Court can do that.
4. Criminal Law.
An appeal which presents only frivolous assertions of error is substantially irregular within meaning of
statute providing that if appeal is irregular in any substantial particular it may be dismissed. NRS
177.205, subd. 1.
5. Criminal Law.
Court-appointed counsel of defendant must brief case on merits in support of position of defendant,
taking care not to brief against defendant in attempt to prove that appeal by defendant is frivolous.
OPINION
Louie Sanchez appeals from a conviction of first-degree burglary. At five o'clock in the
morning of November 3, 1967 he was apprehended in the basement of the Mint Hotel in Las
Vegas while pushing a television set out of the hotel. Sanchez admitted the taking of the set
from the hotel but claimed that a man had given him ten dollars and told him to bring his
television set down from his hotel room. Sanchez had the keys to two Mint Hotel rooms on
his person, one of which was to the room which contained the stolen television set.
[Headnote 1]
1. Two photographic copies of lists containing the serial numbers of the television sets the
hotel owned and the rooms which contained them were sought to be introduced at trial, but
were objected to as not being the best evidence and not taken in the course of business. The
purpose of the offer of the evidence was to show that the television set seized by Sanchez
belonged in Room 1510 of the hotel. Counsels' objection to one of the two exhibits was
sustained and therefore his assignment of error as to that exhibit is unfounded. The other
exhibit was a copy in daily use and contained notations of sets removed for repairs by
designated maintenance employees. It shows that on the date of the theft the stolen television
set was owned by and assigned to a room of the hotel to which Sanchez was found to have a
key and to which he admits entering to remove the set. The only assignment of error that
bears discussion is whether the exhibits offered as business records are admissible within the
purview of NRS 51.030{2).1 Little consideration need be given to that assignment.
admissible within the purview of NRS 51.030(2).
1
Little consideration need be given to that
assignment. NRS 51.060 permits admission of photographic copies of originals when made in
the regular course of business as these were.
2

2. We welcome the opportunity to dispose of the question of the responsibility of counsel
in what they consider to be a frivolous appeal. The public defender in this case acknowledged
at the outset that he did not find any merit or reversible error in this appeal. Nevertheless he
submitted a brief on all issues raised by the record which might arguably support an appeal as
required by Anders v. California, 386 U.S. 738 (1967). See also United States v. Gregg, 393
F.2d 722 (4th Cir. 1968); Merkel v. Beto, 387 F.2d 854 (5th Cir. 1968); Smith v. United
States, 384 F.2d 649 (8th Cir. 1967); State v. Elliott, 418 P.2d 263 (Ore. 1966), vacated and
remanded, Elliott v. Oregon, 387 U.S. 571 (1967), reaff'd, State v. Elliott, 442 P.2d 609 (Ore.
1968); People v. Feggans, 432 P.2d 21 (Cal. 1967); Commonwealth v. Baker, 239 A.2d 201
(Pa. 1968).
[Headnote 2]
We will remove some of the circuitous requirements of Anders, supra, in order that the
litigants, counsel and this court can expeditiously get to the point of each case with a
minimum of procedural steps and still afford the maximum of constitutional protection to the
defendant. Appointed counsel for a defendant who demands an appeal need not file a request
to withdraw if he feels there is no reversible error to argue on appeal.
____________________

1
NRS 51.036(2): In any court of Nevada, any writing or record, whether in the form of an entry in a book or
otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as
evidence of such act, transaction, occurrence or event, if made in the regular course of any business, and if it was
the regular course of such business to make such memorandum or record at the time of such act, transaction,
occurrence or event or within a reasonable time thereafter.

2
NRS 51.060: Admissibility of reproduced records in evidence. If any business . . . in the regular course of
business or activity has kept or recorded any memorandum, writing, entry, print, representation or combination
thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all
of the same to be recorded, copied or reproduced by any photographic . . . process which accurately reproduces
or forms a durable medium for so reproducing the original, the original may be destroyed. . . . Such
reproduction, when satisfactorily identified, is as admissible in evidence as the original in any judicial or
administrative proceeding whether the original is in existence or not . . . .
withdraw if he feels there is no reversible error to argue on appeal. If after a conscientious
examination of the record counsel believes that the appeal is frivolous, then he must file the
opening brief on the merits of all arguable issues raised by the record together with an
acknowledgment that he does not believe there is merit to the appeal. Thereafter the state may
either answer in normal course or move to dismiss the appeal as frivolous, but a motion to
dismiss must be accompanied with points and authorities in support of the claim of frivolity.
[Headnote 3-5]
Some cautions should be noted. Neither the district court nor counsel may decide whether
the appeal is frivolous. Lane v. Brown, 372 U.S. 477 (1963); Eskridge v. Washington, 357
U.S. 214 (1958). Only this court can do that. NRS 177.205(1) allows dismissal if the appeal
is irregular in any substantial particular. An appeal which presents only frivolous assertions of
error is substantially irregular. People v. Sumner, 69 Cal.Rptr. 15 (Ct.App. 1968). We rely on
that authority alone without further discussion encompassing our inherent powers. Due
concern must be given to the fine distinction between a frivolous appeal and an appeal raised
upon points that are found to be without merit, Sumner, supra, at 19, but the distinction in any
given case is for this court to decide. It should also be noted that appellant's counsel must
brief the case on the merits in support of appellant's position taking care not to brief against
his client in an attempt to prove the appeal frivolous. Suggs v. United States, 391 F.2d 971
(D.C. Cir. 1968).
In this case we do not dismiss the appeal as frivolous because NRS 51.030 and NRS
51.060 have never been interpreted by this court. Also, proof of the ownership of the stolen
property was a crucial necessity in the state's case sought to be established by the evidence in
dispute. These factors create an appealable issue even though we find it is without merit.
Therefore we affirm the court below.
____________
85 Nev. 99, 99 (1969) Hamm v. Carson City Nugget, Inc.
ANNA E. HAMM and GLADYS G. MELLO, Appellants, v. CARSON CITY NUGGET,
INC; CARSON CITY NUGGET CASINO, INC., Respondents.
No. 5613
February 18, 1969 450 P.2d 358
Appeal from summary judgment of the Second Judicial District Court, Washoe County;
John E. Gabrielli, Judge.
Action for wrongful death by heirs of pedestrians who were killed by automobile being
driven by drunken driver against tavern keeper who unlawfully sold liquor to offending
driver. The lower court entered summary judgment in favor of tavern keeper, and heirs
appealed. The Supreme Court, Thompson, J., held that heirs of pedestrian did not have claim
for wrongful death against tavern keeper.
Affirmed.
Echeverria and Osborne, of Reno, for Appellants.
Vargas, Bartlett & Dixon, and Steven T. Walther, of Reno, for Respondents.
On appeal from summary judgment in wrongful death action Supreme Court drew every intendment in
favor of plaintiffs against whom summary judgment was granted.
2. Common Law.
Common law is rule of decision in Nevada courts unless in conflict with constitution or statutory
commands. NRS 1.030.
3. Intoxicating Liquors.
Heirs of pedestrians who were killed by automobile being driven by drunken driver did not have claim
for wrongful death against tavern keeper who unlawfully sold liquor to offending driver. NRS 202.100.
4. Intoxicating Liquors.
Violation of statute providing that person in charge of a saloon or bar who sells intoxicating liquor to any
person who is drunk is guilty of misdemeanor does not impose civil liability on one in charge of saloon or
bar nor is such violation negligence per se. NRS 202.100.
OPINION
The issue on this appeal is whether the heirs of pedestrians who were killed by a car being
driven by a drunken driver have a claim for relief for wrongful death against the tavern keeper
who unlawfully sold liquor to the offending driver.
The district court ruled that the tavern keeper was not liable as a matter of law and entered
summary judgment in his favor.
That court reasoned that civil liability in this situation should be created by legislative act, if
at all, and not by court pronouncement. We affirm that determination.
[Headnote 1]
It is not useful to recite the pleadings and the relevant facts to be gleaned from the
deposition of the drunken driver since, in phrasing the issue, we have drawn every intendment
in favor of the plaintiffs against whom summary judgment was granted (Catrone v. 105
Casino Corp., 82 Nev. 166, 414 P.2d 106 (1966)), and have assumed that the offending driver
was inebriated while in the tavern purchasing and drinking liquor.
Our resolution of the issue at hand requires consideration of common law doctrine, the
effect, if any, of Nevada's criminal statute prohibiting the sale of liquor to a drunk, and public
policy.
[Headnote 2]
1. Since the problem has not been decided in Nevada we must look elsewhere for
guidance. The common law is the rule of decision in our courts unless in conflict with
constitutional or statutory commands. NRS 1.030; Davenport v. State Farm Mutual, 81 Nev.
361, 404 P.2d 10 (1965). In years gone by the common law denied liability in this situation. A
liquor vendor was not responsible to innocent third persons for injury or death due to the
inebriated person's conduct. The proximate cause of damage was deemed to be the patron's
consumption of liquor, and not its sale. Cole v. Rush, 289 P.2d 450 (Cal. 1955); Beck v.
Groe, 70 N.W.2d 886 (Minn. 1955); State v. Hatfield, 78 A.2d 754 (Md.App. 1951); Collier
v. Stamatis, 162 P.2d 125 (Ariz. 1945); Seibel v. Leach, 288 N.W. 774 (Wis. 1939), are
illustrative cases.
The common law rule has been eroded in recent years. Some courts now recognize a
common law right of action on the premise that the serving of liquor initiates a foreseeable
chain of events for which the tavern owner may be held liable. Waynick v. Chicago's Last
Dept. Store, 269 F.2d 322 (7 Cir. 1959); Rappaport v. Nichols, 156 A.2d 1 (N.J. 1959);
Jardine v. Upper Darby Lodge No. 1973, 198 A.2d 550 (Pa. 1964); Elder v. Fisher, 217
N.E.2d 847 (Ind. 1966). This recent trend has been rejected by other courts who continue to
prefer the old doctrine. Carr v. Turner, 385 S.W.2d 656 (Ark. 1965); Lee v. Peerless Ins. Co.,
183 So.2d 328 (La. 1966). Whatever choice we make for Nevada is supportable by case
authority elsewhere. In the final analysis the controlling consideration is public policy and
whether the court or the legislature should declare it.
There are persuasive arguments either way. Those favoring an extension of liability
suggest that if someone is to be saddled with the risk it is better to place it where there is
some opportunity to anticipate and prevent it, that is, with the tavern owner. They see the
issue as one of fact for the judge or jury to decide whether a reasonable tavern keeper might
foresee that the drinking patron was developing a propensity to do harm. They note the
carnage on our highways caused by intoxication and hope to reduce it by imposing a civil
liability upon the tavern owner.
Those opposed to extending liability point out that to hold otherwise would subject the
tavern owner to ruinous exposure every time he poured a drink and would multiply litigation
needlessly in a claims-conscious society. Every liquor vendor visited by the patron who
became intoxicated would be a likely defendant in subsequent litigation flowing from the
patron's wrongful conduct. They urge that if civil liability is to be imposed, it should be
accomplished by legislative act after appropriate surveys, hearings, and investigations to
ascertain the need for it and the expected consequences to follow. We prefer this point of
view. Judicial restraint is a worthwhile practice when the proposed new doctrine may have
implications far beyond the perception of the court asked to declare it.
2. The plaintiffs-appellants assert a claim for relief based upon a violation of a criminal
statute. NRS 202.100 provides in part that it is unlawful for one in charge of a saloon or bar
to sell intoxicating liquor to any person who is drunk. One who does so commits a
misdemeanor.
1
This prohibitory statute differs from the dram shop acts which specifically
provide for civil liability.
____________________

1
NRS 202.100(1) and (4) read:
1. It shall be unlawful for the proprietor, bartender or person in charge of any saloon or bar to sell or give, or
to permit to be sold or given, any intoxicating liquor to any person who is drunk, or to any person known by such
proprietor, bartender or person in charge to be an habitual drunkard or dipsomaniac, or to any habitual drunkard
or dipsomaniac, after being notified by the wife, father or mother, son or daughter of such habitual drunkard or
dipsomaniac, or by any peace officer, not to sell or give liquor to such habitual drunkard or dipsomaniac. The
proprietor, bartender or person in charge of any saloon or bar may post behind the bar, where the same may be
readily seen by the bartender, but may not be seen by the persons in front of the bar, a list of names of habitual
drunkards, or persons to whom intoxicating liquors are not to be sold.
2. . . .
3. . . .
4. Any person violating any provision of this section, or who, as a result of the use of intoxicating liquors,
shall abuse or fail properly to support or care for his wife or any minor child lawfully in his custody, shall be
guilty of a misdemeanor.
differs from the dram shop acts which specifically provide for civil liability.
Some states without a dram shop act have held that a violation of the prohibitory statute is
either evidence of negligence, or negligence per se. Ramsey v. Anctil, 211 A.2d 900 (N.H.
1965); Rappaport v. Nichols, 156 A.2d 1 (N.J. 1959); Davis v. Shiappacossee, 155 So.2d 365
(Fla. 1963). Others hold that the purpose of such a statute is to regulate the business of selling
intoxicants, and not to enlarge civil remedies. Collier v. Stamatis, 162 P.2d 125 (Ariz. 1945);
Carr v. Turner, 385 S.W.2d 656 (Ark. 1965); Lee v. Peerless Ins. Co., 183 So.2d 328 (La.
1966).
[Headnotes 3, 4]
In other contexts we have recognized that a violation of a penal statute is negligence per
se. Southern Pacific Co. v. Watkins, 83 Nev. 471, 435 P.2d 498 (1967); Ryan v. Manhattan
Big Four Mining Co., 38 Nev. 92, 145 P. 907 (1914). We decline to so rule in this case since
to do so would subvert the apparent legislative intention. The statute before us is but one of
many in the statutory scheme regulating the sale of tobacco and intoxicating liquor to minors
and drunkards. The section immediately preceding NRS 202.100 (NRS 202.070) does impose
a limited civil liability upon the proprietor of a saloon who sells liquor to a minor. By
providing for civil liability in one section and failing to do so in the section immediately
following, the legislature has made its intention clear. Accordingly, we must conclude that a
violation of NRS 202.100 does not impose civil liability upon one in charge of a saloon or
bar, nor is such a violation negligence per se.
Affirmed.
____________
85 Nev. 102, 102 (1969) Watkins v. State
FREDDIE LEE WATKINS, Appellant, v. THE
No. 5634
February 18, 1969 450 P.2d 795
Appeal from a conviction of second-degree burglary. Eighth Judicial District Court, Clark
The trial court rendered judgment, and the defendant appealed. The Supreme Court
Zenoff, J., held that in prosecution of defendant who allegedly was observed attempting to
remove stereo tape player from parked automobile, admission in evidence of knife, which
was evidently used to pry open door of automobile, was not reversible error, though knife was
never positively established as owned by defendant, where there was abundant evidence to
show that defendant was the only person who could have left the knife in the automobile.
Affirmed.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, and Jerry
J. Kaufman, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
In second-degree burglary prosecution of defendant who allegedly was observed attempting to remove
stereo tape player from parked automobile, admission in evidence of knife, which was evidently used to pry
open door of automobile, was not reversible error, though knife was never positively established as owned
by defendant, where there was abundant evidence to show that defendant was the only person who could
have left the knife in the automobile.
2. Criminal Law.
Where defense counsel was of opinion that appeal by defendant was frivolous, the state would be
justified in presenting motion to dismiss appeal after filing of opening brief, and matter would then be
before Supreme Court in chambers to decide the motion, and, if Supreme Court denied the motion, counsel
thereafter would proceed in usual manner.
OPINION
This case must be read as a companion to Sanchez v. State, 85 Nev. 95, 450 P.2d 793
(1969), because the discussion there regarding frivolous appeals governs here.
Watkins appeals from a conviction of second-degree burglary. As in Sanchez, supra,
Watkins' court-appointed counsel stated in his opening brief that he could not represent that
the errors he claimed to have occurred warranted reversal, but that he would argue all errors
which might have merit.
that he would argue all errors which might have merit. The state answered with a brief in
opposition and the case was then submitted on the briefs.
On October 22, 1967 a man was arrested in the parking lot of the Thunderbird Hotel in Las
Vegas while sprawled in the front seat of a parked Cadillac attempting to remove the
automobile's stereo tape player. He wrestled with two security guards and escaped with an
accomplice. He was later arrested, identified and convicted.
Watkins contends that a knife found in the car and introduced in evidence was never
linked to him. The knife was relevant because it was evidently used to pry open the
automobile's door. The owner of the automobile testified that it was not there when he parked
the car and it did not belong to him. The car was locked and there was evidence the door had
been pried open. The knife was directly related to the showing of unlawful entrance required
to be shown as an element of burglary. While the knife was never positively established as
owned by Watkins there was abundant evidence to show that Watkins was the only person
who could have left it there.
[Headnotes 1, 2]
While there may be error, it is apparent that there is no arguable basis for a finding of
reversible error in the admission of the testimony and evidence concerning the knife. We
consider this case an example of a frivolous appeal and commend appellant's counsel for his
candor and his zeal in expediting the appeal and complying with the procedural requirements.
Henceforth the state would be justified by the preliminary acknowledgment of defense
counsel that the appeal was without merit in presenting a motion to dismiss the appeal after
filing of the opening brief. The matter then would be before us in chambers to decide the
motion. Counsel thereafter would either proceed in the usual manner if we deny the motion,
but if we dismiss the appeal as frivolous, then no further time is taken of the court or counsel
and justice will not be delayed.
Since no motion to dismiss was made in this case we merely affirm the trial court.
____________
85 Nev. 105, 105 (1969) Owens v. City of North Las Vegas
EUGENE OWENS, Appellant, v. THE CITY OF NORTH
LAS VEGAS, NEVADA, Respondent.
No. 5635
February 18, 1969 450 P.2d 784
Babcock, Judge.
Habeas corpus proceeding challenging legality of assault and battery conviction on alleged
ground that assault and battery occurred while petitioner was resisting illegal search of his
home. The trial court denied relief, and petitioner appealed. The Supreme Court, Mowbray,
J., held that building inspector's search, pursuant to search warrant, of petitioner's home for
building code violations met constitutional standard of reasonableness.
Affirmed.
Edward G. Marshall, of Las Vegas, for Appellant.
Jeffrey Ian Shaner, of North Las Vegas, for Respondent.
Where validity of search, pursuant to search warrant, of defendant's home by building inspector to check
for building code violations was challenged, question was not whether search was authorized by state law
but whether search was reasonable under Federal Constitution. NRS 179.020; U.S.C.A.Const. Amend. 4.
A search not expressly authorized by state law may be justified as a constitutionally reasonable one.
Administrative searches and inspections, such as inspection of home for existence of building code
violations, are significant intrusions upon interests protected by Fourth Amendment to Federal Constitution
and, when authorized and conducted without warrant procedure, lack traditional safeguards which Fourth
Amendment guarantees to every individual. U.S.C.A.Const. Amends. 4, 14.
Where violations of building code were observed on home's exterior by inspector who made affidavit for
search warrant, probable cause to search home pursuant to warrant to check for building code violations
was established. U.S.C.A.Const. Amends. 4, 14.
Where Federal Constitution requires that warrant to search be obtained, probable cause is standard by
which particular decision to search is tested against constitutional mandate of reasonableness.
Where considerations of health and safety are involved, facts that would justify inference of probable
cause to make inspection are different from those that would justify inference when criminal investigation
has been undertaken. U.S.C.A.Const. Amends. 4, 14.
There can be no ready test for determining reasonableness of search other than by balancing need to
search against invasion which search entails.
Building inspector's search, pursuant to search warrant, of petitioner's home for building code violations,
in resisting which petitioner committed assault and battery, met constitutional standard of reasonableness.
OPINION
The municipal court of the City of North Las Vegas found Eugene Owens guilty of two
misdemeanors: (1) Assault and battery and (2) obstructing a police officer in an attempt to
serve a search warrant. Owens appealed his convictions to the Eighth Judicial District Court,
and he demanded a jury trial. The jury found Owens guilty of the first offense, but acquitted
him of the second one. He was fined $100. Owens then filed in the district court a petition for
a writ of habeas corpus, challenging the legality of his conviction. The district judge denied
the petition. Owens now appeals to this court from the order denying his application for
habeas.
Both charges grew out of Owens' refusal to permit the city building inspector to enter his
home to check for violations of the city building code. Chronologically the facts are these: In
October 1966 the City advised Owens by registered letter that an inspector from the City
would soon visit his home to check for structural deficiencies in violation of the city building
code. The inspection was in connection with an urban renewal program. The inspector arrived
on October 25, but the appellant's wife refused him permission to inspect the premises.
Another visitation was attempted on June 20, 1967, but to no avail. On June 30, the inspector
noted violations of the building code on the exterior of the residence and reported them to the
city attorney. The city attorney advised the inspector to secure a search warrant to inspect
Owens' residence. The inspector appeared before the justice of the peace, made his affidavit
specifying the violations of the code which he had observed about the exterior of Owens'
premises, described his unsuccessful attempts to inspect the interior of the residence, and
set forth the reasons for his belief that an inspection of the interior of the premises would
reveal similar deficiencies.
his unsuccessful attempts to inspect the interior of the residence, and set forth the reasons for
his belief that an inspection of the interior of the premises would reveal similar deficiencies.
The justice of the peace issued the search warrant.
On the day the warrant was issued, but before it was served, Owens called upon the chief
of police and put him on notice that he would not honor the warrant and that he would resist
any attempts to effectuate its service. This he did on June 26, but the warrant was served and
the interior of the residence inspected, where 27 violations of the city building code were
noted.
[Headnotes 1, 2]
1. The thrust of appellant's principal argument is that the search warrant was invalid and
that, therefore, Owens had every right to resist the officer when service of the warrant was
made. The alleged invalidity is based on appellant's contention that the four grounds for the
issuance of search warrants, as provided in NRS 179.020,
1
in effect at the time of the search,
are exclusionary of any other grounds and that, since the inspector's affidavit included
grounds other than the four set forth in NRS 179.020, the search warrant was invalid. In other
words, because the search warrant was not specifically authorized by our state statutes, the
search was invalid. Appellant's contention is wholly without merit, because it misses the
point. The question is not whether the search was authorized by our state law. The question
is, rather, whether the search was reasonable under the Fourth Amendment to the United
States Constitution. Just as a search authorized by state law may be an unreasonable one
under the Fourth Amendment, so may a search not expressly authorized by state law be
justified as a constitutionally reasonable one.
____________________

1
NRS 179.020. Grounds for issuing search warrant. A search warrant may be issued upon any of the
following grounds:
1. When the property was stolen or embezzled.
2. When the property or things were used as the means of committing a felony.
3. When the property or things are in the possession of any person with the intent to use them as a means of
committing a public offense, or in the possession of another to whom he may have delivered them for the
purpose of concealing them or preventing their being discovered.
4. When the property or things to be seized consist of any item or constitute any evidence which tends to
show that a felony has been committed, or tends to show that a particular person has committed a felony.
The property or things described in this section may be taken on the warrant from any place, or from any
person in whose possession it may be.
be justified as a constitutionally reasonable one. Cooper v. California 386 U.S. 58 (1967);
Sibron v. New York, 88 S.Ct. 1889 (1968).
2. We turn now to consider that precise questionnamely: Was the search of Owens'
home a constitutionally reasonable one? The Supreme Court of the United States, in Camara
v. Municipal Court, 387 U.S. 523 (1967), answers that question. Prior to Camara, the High
Court had repeatedly held that a warrantless search of a residence by a municipal fire, health,
and housing inspector was constitutionally permissible, because such inspection programs
touch at most upon the periphery of the important interests safeguarded by the Fourteenth
Amendment's protection against official intrusion. Frank v. Maryland, 359 U.S. 360 (1959).
In Frank, the Court ruled that such inspections were merely to determine whether peripheral
conditions existed which did not comply with the minimum standards prescribed in local
regulatory ordinances. The majority ruled that, since the inspector did not ask that the
property owner open his doors to a search for evidence of criminal action which could he
used to secure the owner's criminal conviction, the historic interests of self-protection,
jointly protected by the Fourth and Fifth Amendments, were not involved, but only the less
intense right to be secure from intrusion into personal privacy. Id. at 365. See also Ohio ex
rel. Eaton v. Price, 364 U.S. 263 (1960). But in overruling Frank and the other cases
permitting warrantless searches of homes by municipal fire, health, and building inspectors,
Mr. Justice White, who wrote for the majority in Camara, supra, stated at 530:
We may agree that a routine inspection of the physical condition of private property is a
less hostile intrusion than the typical policeman's search for the fruits and instrumentalities of
crime . . . But we cannot agree that the Fourth Amendment interests at stake in these
inspection cases are merely peripheral.' It is surely anomalous to say that the individual and
his private property are fully protected by the Fourth Amendment only when the individual is
suspected of criminal behavior. For instance, even the most law-abiding citizen has a very
tangible interest in limiting the circumstances under which the sanctity of his home may be
broken by official authority, for the possibility of criminal entry under the guise of official
sanction is a serious threat to personal and family security.
[Headnote 3]
It is now the law of the land that administrative searches and inspections, such as in this
case, are significant intrusions upon the interests protected by the Fourth Amendment and that
such inspections and searches, when authorized and conducted without a warrant procedure,
lack the traditional safeguards which the Fourth Amendment guarantees to every individual.
[Headnote 4]
3. Appellant next argues that, since the Fourth Amendment provides that no warrants shall
issue but upon probable cause, the search in his case was constitutionally impermissible,
because the inspector, when he executed his affidavit, lacked probable cause to believe that
Owens' dwelling contained violations of the minimum standards prescribed by the code being
enforced. We do not agree. Exterior violations of the building code were observed by the
person who made the affidavit for a search warrant. This alone establishes probable cause to
search pursuant to a warrant. In Camara, the High Court acknowledged that some
accommodation between public need and individual rights is essential and held that in
determining whether a particular inspection is reasonableand thus in determining whether
there is probable cause to issue a warrant for that inspectionthe need for the inspection
must be weighed in terms of the reasonable goals of code enforcement. Mr. Justice White, in
weighing the standard for probable cause in the case of criminal investigations against the
standard required in administrative inspection programs, said at 534:
[Headnote 5]
In cases in which the Fourth Amendment requires that a warrant to search be obtained,
probable cause' is the standard by which a particular decision to search is tested against the
constitutional mandate of reasonableness. To apply this standard, it is obviously necessary
first to focus upon the governmental interest which allegedly justifies official intrusion upon
the constitutionally protected interests of the private citizen. For example, in a criminal
investigation, the police may undertake to recover specific stolen or contraband goods. But
that public interest would hardly justify a sweeping search of an entire city conducted in the
hope that these goods might be found. Consequently, a search for these goods, even with a
warrant, is 'reasonable' only when there is 'probable cause' to believe that they will be
uncovered in a particular dwelling.
warrant, is reasonable' only when there is probable cause' to believe that they will be
uncovered in a particular dwelling.
Unlike the search pursuant to a criminal investigation, the inspection programs at issue
here are aimed at securing citywide compliance with minimum physical standards for private
property. The primary governmental interest at stake is to prevent even the unintentional
development of conditions which are hazardous to public health and safety. Because fires and
epidemics may ravage large urban areas, because unsightly conditions adversely affect the
economic values of neighboring structures, numerous courts have upheld the police power of
municipalities to impose and enforce such minimum standards even upon existing
structures.
11

[Headnotes 6-8]
Where considerations of health and safety are involved, the facts that would justify an
inference of probable cause to make an inspection are different from those that would
justify an inference when a criminal investigation has been undertaken. Experience may show
the need for periodic inspections of certain facilities without a further showing of cause to
believe that substandard conditions dangerous to the public are being maintained. The
passage of a certain period without inspection might of itself be sufficient in a given situation
to justify the issuance of a warrant. The test of probable cause required by the Fourth
Amendment can take into account the nature of the search that is being sought. There can be
no ready test for determining reasonableness other than by balancing the need to search
against the invasion which the search entails.
4. Finally, since our opinion emphasizes the controlling standard of reasonableness, we
wish to make it clear that nothing in this opinion is intended to foreclose prompt inspections,
even without a warrant, which the law has always permitted in emergency situations. See
North Am. Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908) (seizure of
unwholesome food); Jacobson v. Massachusetts, 197 U.S. 11 (1905) (compulsory smallpox
vaccination); Compagnie Francaise de Navigation a Vapeur v. Louisiana State Bd. of Health,
186 U.S. 380 (1902) (health quarantine); Kroplin v. Truax, 165 N.E.
____________________

11
See Abbate Bros. v. City of Chicago, 11 Ill.2d 337, 142 N.E.2d 691; City of Louisville v. Thompson, 339
S.W.2d 869 (Ky.); Adamec v. Post, 273 N.Y. 250, 7 N.E.2d 120; Paquette v. City of Fall River, 338 Mass. 368,
155 N.E.2d 775; Richards v. City of Columbia, 227 S.C. 538, 88 S.E.2d 683; Boden v. City of Milwaukee, 8
Wis.2d 318, 99 N.W.2d 156.
498 (Ohio 1929) (summary destruction of tubercular cattle). We appreciate that in most
routine inspections there is no great urgency to inspect at a certain time on a given day.
Likewise, most citizens will permit routine inspections without a warrant. As a practical
matter, in view of the Fourth Amendment's requirement that a warrant describe the property
to be searched, warrants should normally be sought only after the entry has been refused,
absent some compelling reason for securing immediate entry.
In conclusion, we hold that the search of Owens' home met the standard of reasonableness
as we have defined it in this opinion and that therefore his jury conviction was lawful.
The order denying Owens' application for habeas is affirmed.
____________
85 Nev. 111, 111 (1969) Maskaly v. State
JOSEPH CARL MASKALY, Appellant, v. THE
No. 5742
February 18, 1969 450 P.2d 790
Appeal from a denial of a writ of habeas corpus. Second Judicial District Court, Washoe
County; Emile J. Gezelin, Judge.
Accused, who had been indicted for unlawful possession of marijuana, brought habeas
corpus proceeding. The lower court rendered judgment adverse to accused, and he appealed.
The Supreme Court, Zenoff, J., held that evidence before grand jury that police found accused
and 16 others in one room of residence, and that several of the individuals were smoking or
carrying marijuana, that there was a plate of marijuana cigarettes and residue on a table in
middle of room, and that there was a strong odor of burning marijuana in the air, and that
there was a package of marijuana cigarettes in one corner of the room was sufficient to show
that accused probably had unlawful possession or control of marijuana.
Affirmed.
Daniel J. Olguin, of Reno, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and Virgil D.
Dutt, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law; Indictment and Information.
Either in a preliminary hearing or in proceedings before a grand jury there must be evidence adduced
which establishes probable cause to believe that an offense has been committed and that defendant has
committed it.
2. Habeas Corpus.
Contention of accused that he was not arrested with 16 other participants at marijuana party was not
sustained, where it was uncontroverted in transcript of grand jury proceedings that many of those placed at
scene of raid were in group arrested and booked with accused, and that, though accused was not
specifically identified at site of raid, he was adequately identified as a member of group transported from
raid site to police station.
Evidence before grand jury that police found accused and 16 others in one room of residence, and that
several of the individuals were smoking or carrying marijuana, that there was a plate of marijuana
cigarettes and residue on a table in middle of room, and that there was a strong odor of burning marijuana
in the air, and that there was a package of marijuana cigarettes in one corner of the room was sufficient to
show that accused probably had unlawful possession or control of marijuana so as to be indictable by grand
jury. NRS 453.030.
4. Poisons.
Two or more persons may have joint possession of a narcotic if jointly and knowingly they have its
dominion and control.
Quantity of evidence sufficient to show probable cause before grand jury differs depending on type of
evidence.
Evidence before grand jury need show only reasonable probability that accused committed offense.
OPINION
This is an appeal from a denial of a writ of habeas corpus. Maskaly contends that the
indictment which charges him with unlawful possession of marijuana in violation of NRS
453.030 is not supported by sufficient evidence to show that he probably committed the
offense charged.
Appellant was arrested with 16 other persons at a private residence in Sparks, Nevada on
August 4, 1968. Police entered the residence pursuant to a valid search warrant and found the
17 individuals all in one room. Evidence before the grand jury established that several of the
individuals were smoking or carrying marijuana, that there was a plate of marijuana cigarettes
and residue on a table in the middle of the room, that there was a strong odor of burning
marijuana in the air, and that there was a package of marijuana cigarettes in one corner
of the room.
that there was a strong odor of burning marijuana in the air, and that there was a package of
marijuana cigarettes in one corner of the room. Uncontroverted evidence also established that
the 17 persons were arrested and transported to the Sparks Police Station where they were
booked. Appellant was one of those booked.
Appellant contends that there was no evidence before the grand jury to show probable
cause to believe that he committed the offense charged. He argues first that there is
insufficient evidence to show that he was one of those arrested at the residence since the
evidence that he was booked after a narcotics raid did not specifically refer to the raid which
produced the evidence out of which the offense charged arose. He then contends that there
was insufficient evidence to show that he had possession or control of marijuana.
[Headnote 1]
It is well established that either in a preliminary hearing or in proceedings before a grand
jury there must be evidence adduced which establishes probable cause to believe that an
offense has been committed and that the defendant has committed it. Mathews v. Sheriff, 84
Nev. 649, 446 P.2d 651 (1968); Azbill v. State, 84 Nev. 345, 440 P.2d 1014 (1968); Wallace
v. State, 84 Nev. 532, 445 P.2d 29 (1968); Wehrheim v. Warden, 83 Nev. 322, 429 P.2d 834
(1967); Fairman v. Warden, 83 Nev. 332, 431 P.2d 660 (1967); Morton v. State, 82 Nev. 223,
414 P.2d 952 (1966); Shelby v. District Court, 82 Nev. 204, 414 P.2d 942 (1966); State v.
Eddington, 83 Nev. 359, 432 P.2d 87 (1967); Beasley v. Lamb, 79 Nev. 78, 378 P.2d 524
(1963); State v. Fuchs, 78 Nev. 63, 368 P.2d 869 (1962); Overton v. State, 78 Nev. 198, 370
P.2d 677 (1962); Ex parte Stearns, 68 Nev. 155, 227 P.2d 971 (1951).
[Headnote 2]
1. Appellant's first contention that he was not arrested with the 16 other participants at the
narcotics party lacks merit. It is uncontroverted in the transcript of the grand jury proceedings
that many of those placed at the scene of the raid were in the group arrested and booked with
appellant. While appellant was not specifically identified at the site of the raid, he was
adequately identified as a member of the group transported from the raid site to the police
station.
[Headnotes 3, 4]
2. Appellant's second contention is also without merit. There was sufficient evidence to
show that he had unlawful possession or control of marijuana.
possession or control of marijuana. He was placed in a room where smoking of marijuana
was the sole diversion and in which was located a plentiful supply of the narcotic for the
ostensible purpose of consumption by those present. Proof of actual physical possession is not
required. Two or more persons may have joint possession of a narcotic if jointly and
knowingly they have its dominion and control. Doyle v. State, 82 Nev. 242, 415 P.2d 323
(1966). The facts in this case are quite similar to those in Fairman v. Warden, supra, which
upheld a finding of probable cause.
[Headnotes 5, 6]
The evidence of commission of the offense charged may not support a conviction (Cf. City
of Reno v. District Court, 83 Nev. 201, 427 P.2d 4 (1967); Johnson v. Florida, 391 U.S. 596
(1968)), but we are concerned only with probable cause. While the quantity of evidence
sufficient to show probable cause differs depending on the type of evidence, Ex parte
Hutchinson, 76 Nev. 478, 357 P.2d 589 (1960), and the offense charged, State v. Wyatt, 84
Nev. 731, 448 P.2d 827 (1968), we deem the evidence sufficient here to show probable cause
for believing that appellant committed the offense charged. His claim that he did not
participate in the activities of the party is reminiscent of the plea of the man charged with
adultery that when he registered at a hotel as man and wife with a woman not his wife and
proceeded to the privacy of a hotel bedroom to spend the night with her, he did not in to
commit adultery. The court in that case noted that under such circumstances when a man
proceeds to the privacy of a bedroom with a woman, it is presumed he saith not a pater
noster' there. Kerr v. Kerr, 118 N.Y.S. 801 (1909). The requirement here of only reasonable
probability precludes any conclusion other than that Maskaly probably was involved in the
charged offense.
Affirmed.
____________
85 Nev. 115, 115 (1969) Adamson v. Bowker
WALTER J. ADAMSON, Special Administrator of the Estate of DOUGLAS HENRY
ADAMSON, Deceased, Appellant, v. RYALL A. BOWKER; CLAUDE L. KEEMA,
Sheriff of Lyon County, State of Nevada; LEE W. LITTELL, Deputy Sheriff of Lyon
County, State of Nevada; CLAIR PURSEL, Deputy Sheriff of Lyon County, State of
Nevada; PHOENIX ASSURANCE COMPANY OF NEW YORK and DR. STANLEY
TEBBE, Respondents.
No. 5562
February 21, 1969 450 P.2d 796
Appeal from the granting of a summary judgment. First Judicial District Court, Lyon
County; Richard L. Waters, Jr., Judge.
Action against sheriff, deputy sheriffs, their bonding company and county physician for
wrongful death allegedly resulting from tortious acts committed against decedent while in
jail. The trial court granted defendants' motion for summary judgment and refused to grant
plaintiff leave to amend his complaint and plaintiff appealed. The Supreme Court, Batjer, J.,
held that affidavit of physician, who in answer to hypothetical question stated that supplying
decedent with drugs during his incarceration in county jail would not have prolonged his life,
and depositions of county physician and deputy sheriff, concerning treatment furnished
decedent in county jail, were not refuted by hearsay, incompetent testimony or mere
suppositions and conclusions and, in absence of other refutation, must be deemed true and
were properly relied upon to support summary judgment for defendants.
Affirmed.
Barry, Hall & McGehee, of Reno, for Appellant.
Goldwater, Taber, Hill & Mortimer, Vargas, Bartlett & Dixon, and Albert F. Pagni, of
Reno, for Respondents.
1. Judgment.
Evidence that would be inadmissible at trial of case is inadmissible on motion for summary judgment.
NRCP 43(a).
2. Judgment.
On motion for summary judgment, trial judge may not consider hearsay or other inadmissible evidence
whether it be in form of direct testimony or deposition or answers to interrogatories. NRCP43 (a).
3. Judgment.
Trial court, on motion for summary judgment, is not limited to consideration of affidavit and depositions
relied on by moving party, but is required to consider all pleadings, depositions, answers to interrogatories
and admissions on file together with affidavits. NRCP 56(c, e).
4. Judgment.
Affidavit of physician, who in answer to hypothetical question stated that supplying decedent with drugs
during his incarceration in county jail would not have prolonged his life, and depositions of county
physician and deputy sheriff, concerning treatment furnished decedent in county jail were not refuted by
hearsay, incompetent testimony or mere suppositions and conclusions and, in absence of other refutation,
must be deemed true and were properly relied upon to support summary judgment for defendants sued for
wrongful death allegedly resulting from tortious acts against decedent while in jail. NRCP 43(a), 56(c, e).
5. Pleading.
After responsive pleading has been served, granting of leave to file amended pleading is within discretion
of trial court. NRCP 15(a).
6. Pleading.
Where record was devoid of any allegations, statement or information about nature or substance of
proposed amendment to plaintiffs pleadings and examination of record indicated futility of amendment,
denial of motion to amend pleadings was not improper. NRCP 15(a).
Where there is no showing of nature or substance of proposed amendment or what appellant expects to
accomplish by it, reviewing court cannot say trial court abused its discretion in denying leave to amend.
NRCP 15(a).
OPINION
Douglas Henry Adamson died in the Lyon County hospital, Yerington, Nevada, on March
8, 1965. After his death his brother, Walter J. Adamson, the appellant, as special
administrator, brought an action alleging that the respondents committed tortious acts against
Douglas Henry Adamson during his lifetime and that their wrongful acts caused his death.
The respondent, Phoenix Assurance Company of New York, who furnished the bonds for the
public officers of Lyon County, moved that it be dismissed from the complaint. After its
motion was denied it cross-claimed against the other respondents whom it had bonded.
On February 20, 1965, Lee W. Littell and Clair Pursel, who, at that time, were deputy
sheriffs of Lyon County, arrested Douglas Henry Adamson at the home of the appellant on a
charge of grand larceny. The deputy sheriffs were acting under the authority of a warrant of
arrest issued out of the Justice's Court of Mason Valley Township, on a complaint signed by
Ryall A. Bowker, one of the defendants in the court below.
At the time of the arrest, Vera Adamson, the wife of the appellant, informed the deputies
that her brother-in-law was ill and needed medical attention. She also warned them that
incarceration would cause his condition to deteriorate. In her deposition, Vera Adamson
stated that, because her brother-in-law's supply of tedral was low at the time of his arrest, she
contacted Stanley Tebbe, M.D., and requested that the prescription for tedral be refilled. Dr.
Tebbe had previously ministered to Douglas Henry Adamson and is the county physician for
Lyon County. The prescription for tedral was not filled until February 25, 1965.
Douglas Henry Adamson was released from jail on February 25, 1965, and was
hospitalized on March 3, 1965, five days before his death. An autopsy revealed that he died of
cardiac hypertrophy with atrial thrombi and focal subacute infarction, acute pericarditis and
pulmonary emboli.
All defendants below, with the exception of Ryall A. Bowker, moved for summary
judgment based on all the records and pleadings, the depositions of Walter J. Adamson and
Vera Adamson and the affidavit of Lynn B. Gerow, M.D. The affidavit of Dr. Gerow was
given in answer to a hypothetical question posed by the respondents, and the appellant admits
that the assumed facts appearing in the question were favorable to the appellant's position. In
answer to a question: Whether or not the failure of defendants to provide medical care and
medication during the period of time that Douglas Henry Adamson was incarcerated in the
Lyon County jail was the cause of the death of Douglas Henry Adamson. Dr. Gerow stated:
[I]t is affiant's opinion that the conditions described by Dr. Decker were the reason the
decedent died; decedent had arterio-sclerotic heart disease for a rather lengthy period of time
and this disease was complicated by hypertension, acute pericarditis and pulmonary emboli.
It is the opinion of this affiant that the medicine prescribed by Dr. Tebbe for the decedent
would not have prolonged his life even though he would have been able to take it regularly
during the time he was incarcerated. There are numerous gross and miscroscopic conditions
also described by Dr.
and miscroscopic conditions also described by Dr. Decker, which would bear out the cause of
death described in the autopsy protocol, and none of these causes would have responded to
the medication prescribed, namely, aspirin and tedral.
The appellant contends that the trial court erred when it granted respondents' motion for
summary judgment and refused to grant him leave to amend his complaint. We disagree and
find no error by that court.
1. The affidavit of Dr. Gerow specifically recites that Douglas Henry Adamson died of
natural causes and that any failure to have supplied him with tedral and aspirin during his
incarceration would not have prolonged or preserved his life. The appellant did not file a
counter-affidavit nor did he produce any other evidentiary material to establish that there
remained a genuine issue of fact to be determined at trial on the question of wrongful death.
We next turn to consider the remainder of the allegations in the appellant's pleadings. Dr.
Gerow's affidavit in no way touches upon the other allegation of tortious conduct attributed to
the respondents. However, in answers to interrogatories propounded by the appellant, Lee W.
Littell, one of the respondents, testified under oath, that on the day he arrested Douglas Henry
Adamson he called Dr. Tebbe who came to the office of the Sheriff of Lyon County, and
there, in the presence of Littell and Clair Pursel, examined the suspect before he was placed
in jail. In their depositions both Littell and Dr. Tebbe testified to Dr. Tebbe's examination of
the deceased before his incarceration and they both testified on their personal knowledge
about the treatment and care furnished the deceased during his stay in the Lyon County jail.
Neither the depositions of Dr. Stanley Tebbe and Lee W. Littell nor the answers to
interrogatories given by Littell were ever refuted or controverted by the appellant. The
depositions and answers were on file in the case and a part of the record when the
respondents' motion for summary judgment was heard by the trial court. It might be argued
that the depositions of the appellant and Vera Adamson should be deemed to refute the
deposition of Dr. Tebbe and the deposition and answers to interrogatories of Lee W. Littell.
Close examinations of the depositions of the appellant and Vera Adamson reveals testimony
which is either hearsay or incompetent or merely suppositions and conclusions and could not
be considered by the trial court to controvert the testimony of the respondents.
[Headnotes 1, 2]
The admissibility of evidence on a motion for summary judgment is subject to NRCP
43(a),
1
and evidence that would be inadmissible at the trial of the case is inadmissible on a
motion for summary judgment. The trial court may not consider hearsay or other inadmissible
evidence whether it be in the form of direct testimony given in court or whether it appears in
a deposition or answers to interrogratories. Lake v. Konstantinu, 189 So.2d 171 (Fla.App.
1966). In American Securit Co. v. Hamilton Glass Co., 254 F.2d 889 (7th Cir. 1958), the
court said: . . . [T]estimony contained in depositions used in a summary judgment
proceeding is subject to the rules of evidence, as referred to in rule 43(a) governing
admissibility.
[Headnote 3]
The trial court is not limited to a consideration of the affidavit and depositions relied on by
the moving party but is required by NRCP 56(c)
2
to consider all pleadings, depositions,
answer to interrogatories and admissions on file together with affidavits when ruling on a
motion for summary judgment.
We find that the trial court, in reaching its decision properly found that the depositions and
pleadings of the appellant, when viewed in the light most favorable to his position, presented
no genuine issue as to any material fact.
NRCP 56(e)
3
unequivocally provides that when there has been a motion for summary
judgment supported by affidavits or other evidentiary material, the adverse party may not
rest upon the allegations of his pleading but he must by affidavit or other evidentiary
matter set forth specific facts showing that there is a genuine issue for trial.
____________________

1
NRCP 43(a). In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise
provided by these rules or by statutes. All evidence shall be admitted which is admissible under the statutes of
the State, or under the rules of evidence.

2
NRCP 56(c): . . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .

3
NRCP 56(e): 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. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall
be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by
depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and
supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his
pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial. If it does not so respond, summary judgment, if appropriate, shall
be entered against him.
been a motion for summary judgment supported by affidavits or other evidentiary material,
the adverse party may not rest upon the allegations of his pleading but he must by affidavit or
other evidentiary matter set forth specific facts showing that there is a genuine issue for trial.
Tobler & Oliver Constr. Co. v. Board of Trustees, 84 Nev. 438, 442 P.2d 904 (1968). Here
the appellant filed no counter-affidavits or depositions to controvert the testimony of the
respondents.
In the case of Western Mercury, Inc. v. Rix Company, 84 Nev. 218, 438 P.2d 792 (1968),
this court said: We now hold requested admissions deemed true by the court because not
answered, can support summary judgment and the unverified answer can be disregarded.
[Headnote 4]
The affidavit of Dr. Gerow, as well as the deposition of Dr. Tebbe and the deposition and
answers to interrogatories of Lee W. Littell, not having been refuted, were entitled to be
deemed true by the trial court and relied upon to support the summary judgment.
[Headnote 5]
2. We now consider appellant's contention that the lower court should have granted him
leave to further amend his pleadings. After a responsive pleading has been served the granting
of leave to file an amended pleading is within the discretion of the trial court.
NRCP 15 (a)
4
provides that leave to amend a pleading shall be freely given when justice
so requires. Determining the propriety of a motion to amend, within this rule, brings into
focus the lower courts discretionary power. Under the rules of civil practice adhered to before
the adoption of the Nevada Rules of Civil Procedure, this court, in Edmonds v. Perry, 62 Nev.
41, 140 P.2d 566 (1943), said: Allowance or refusal of leave to amend pleadings in actions
at law is discretionary with the trial court, the exercise of which is not reviewable except in
cases of gross abuse of discretion."
____________________

4
NRCP 15(a): A party may amend his pleading once as a matter of course at any time before a responsive
pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not
been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a
party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall
be freely given when justice so requires. A party shall plead in response to an amended pleading within the time
remaining for response to the original pleading or within 10 days after service of the amended pleading,
whichever period may be the longer, unless the court otherwise orders.
except in cases of gross abuse of discretion. Since the adoption of the Nevada Rules of Civil
Procedure we have emphasized that NRCP 15(a) mandates that leave to amend shall be freely
given when justice so requires. Weiler v. Ross, 80 Nev. 380, 395 P.2d 323 (1964); Good v.
District Court, 71 Nev. 38, 279 P.2d 467 (1955). In Foman v. Davis, 371 U.S. 178 (1962), the
United States Supreme Court said: Rule 15(a) declares that leave to amend shall be freely
given when justice so requires;' this mandate is to be heeded.
We are now called upon to determine whether justice required the lower court to allow the
appellant to amend his pleadings. We find that it did not.
In Foman v. Davis, supra, Justice Goldberg writing for the court said: If the underlying
facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to
be afforded an opportunity to test his claim on the merits. In the absence of any apparent or
declared reasonsuch as undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment, futility of amendment, etc.the
leave sought should, as the rules require, be freely given.' Of course, the grant or denial of an
opportunity to amend is within the discretion of the District Court, but outright refusal to
grant the leave without any justifying reason appearing for the denial is not an exercise of
discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal
Rules. We subscribe completely to this interpretation of the intent and purpose of NRCP
15(a).
[Headnotes 6, 7]
However, in the case before us, the record is devoid of any allegations, statement or
information about the nature or substance of the appellant's proposed amendment. Where
there is no showing of the nature or substance of the proposed amendment or what the
appellant expects to accomplish by it, a reviewing court cannot say a trial court abused its
discretion in denying leave to amend. Roach v. Stastny, 104 F.2d 559 (7th Cir. 1939).
We have no way of knowing whether or not the underlying facts or circumstances relied
upon by the appellant may be a proper subject of relief.
Even though the trial court has failed to state any justifying reason for its denial of the
appellant's motion to amend his pleadings we sustain the order of that court because of the
absence of any information concerning the nature or substance of the appellant's
proposed amendment and because an examination of the record indicates the futility of
amendment.
absence of any information concerning the nature or substance of the appellant's proposed
amendment and because an examination of the record indicates the futility of amendment.
We affirm the summary judgment as entered in this cause by the trial court.
____________
85 Nev. 122, 122 (1969) Boisen v. Boisen
JAMES E. BOISEN, Appellant, v. KATHY M.
BOISEN, Respondent.
No. 5641
March 7, 1969 451 P.2d 363
Appeal from a judgment awarding a divorce. Sixth Judicial District Court, Pershing
County; Llewellyn A. Young, Judge.
The lower court granted a divorce to the wife and husband appealed. The Supreme Court,
Zenoff, J., held that evidence supported finding of wife's residency notwithstanding her
failure to state at trial that she intended to make state her permanent home when she arrived
there and that evidence sustained award of custody of minor child to mother notwithstanding
some of her conduct was suspect.
Affirmed.
Diehl, Recanzone & Evans, of Fallon, for Appellant.
Roland W. Belanger, of Lovelock, for Respondent.
1. Divorce.
In considering court's jurisdiction to entertain action for divorce, both residence and intent to remain a
resident were factual matters for trial court's determination to same extent as any other matters of fact.
2. Domicile.
Evidence supported finding of wife's residency notwithstanding her failure to state at trial that she
intended to make state her permanent home when she arrived there.
3. Divorce.
Husband who did not controvert wife's proof of residence and who counterclaimed for divorce was
estopped from raising, on appeal, issue of wife's residency. NRCP 8.
4. Divorce.
Evidence sustained finding that wife had not committed adultery.
5. Parent and Child.
Evidence sustained award of custody of minor child to mother notwithstanding some of her conduct was
suspect.
OPINION
Appellant husband appeals from a judgment granting his wife a divorce based on extreme
cruelty although the husband counterclaimed charging her with adultery. Custody of their
18-month-old child was awarded to the wife together with $50.00 per month for child
support.
The parties were married in Wisconsin on May 28, 1966. They lived together in a rented
house in Wisconsin until January 1967. When he went to Kentucky for four months for
National Guard exercises she lived with her parents and their other 15 children. When he
returned they lived with his parents and nine brothers and sisters. The wife repeatedly told the
husband to get a place of their own or else she was getting out because the interference of his
family in the care of the baby was too much for her. Apparently the couple differed repeatedly
and often. He insisted they stay so that they could save money.
On June 21, 1967 without prior announcement she went to California with a married man
and his daughter and after a brief stay there they arrived at Lovelock, Nevada. There they
lived in separate apartments which were located in close proximity.
The district court found that the husband's refusal to move his wife from his parents' home
constituted a threat to the wife's health; that this was sufficient to establish the grounds of
extreme cruelty; further, that the child would be better off with the mother than with the
grandparents and numerous teenage aunts and uncles. The district court also found that the
wife had not committed adultery.
1. On appeal the husband claims that the district court did not have jurisdiction to grant
the wife a divorce. He contends that she did not testify that she intended to remain a resident
of Nevada for at least an indefinite period when she came to Nevada and that therefore the
intent which must accompany presence to establish bona fide residence was not proven. See
Aldabe v. Aldabe, 84 Nev. 392, 441 P.2d 691 (1968), and cases cited therein.
[Headnotes 1, 2]
It is well-settled that [b]oth . . . residence and . . . intent, however, were factual matters
for the court's determination to like extent as any other matters of fact. Moore v. Moore, 75
Nev. 189, 192, 336 P.2d 1073, 1074 (1959). See also Baker v. Baker, 76 Nev. 127, 350 P.2d
140 (1960); Covington v. Second Judicial Dist. Ct., 56 Nev. 313, 50 P.2d 517 (1935);
Drespel v. Drespel, 56 Nev. 368, 45 P.2d 792 (1935). The wife testified that she left
Wisconsin to go to Nevada because she wanted to get a divorce, that at the time of the trial
she intended to stay here an indefinite period of time, and that she was physically present at
her Nevada residence from September 1, 1967 to March 4, 1968, the day of the trial. This
evidence was sufficiently substantial to support the wife's allegation of bona fide residency in
her complaint and the district court's finding of bona fide residence. Sutherland v. Sutherland,
75 Nev. 304, 340 P.2d 581 (1959); Wilson v. Wilson, 66 Nev. 405, 212 P.2d 1066 (1949);
Walker v. Walker, 45 Nev. 105, 198 P. 433 (1921); cf. Plunkett v. Plunkett, 71 Nev. 159, 283
P.2d 225 (1955); Blouin v. Blouin, 67 Nev. 314, 218 P.2d 937 (1950); Annot., 159 A.L.R.
496, 505 (1945); Annot., 106 A.L.R. 6, 26 (1937). Her omission of the customary self-serving
answer at the trial that her intention was to make Nevada her permanent home when she
arrived here is not necessarily fatal to jurisdiction with the presence of the physical facts that
evidenced such intention.
[Headnote 3]
We also note that at no time before appeal except in his answering pleadings did the
husband contest the assertion of jurisdiction by the wife. At trial he did not controvert her
proof of residence. When the woman from whom the wife rented her apartment in Lovelock
testified that in her opinion the wife was a bona fide resident of Nevada, this was not objected
to as being an inadmissible opinion or a conclusion of law. In addition, the husband
counterclaimed for a divorce asserting his claim assuming the jurisdiction of the court over
his wife as a resident. While the husband was permitted to plead in the alternative, NRCP 8,
his assertion of jurisdiction by the counterclaim coupled with his complete acquiescence in
the wife's claim to jurisdiction at trial estopped him from raising the issue for the first time on
appeal. Grant v. Grant, 38 Nev. 185, 147 P. 451 (1915).
Accordingly we hold that the district court's finding was supported by substantial evidence
and that in any event the husband was estopped from raising the issue for the first time on
appeal.
husband was estopped from raising the issue for the first time on appeal.
[Headnote 4]
2. The district court found from conflicting testimony that the wife had not committed
adultery. The evidence supporting the court's finding was substantial and we therefore will
not disturb it.
[Headnote 5]
3. The district court had the alternative of awarding the custody of the baby to the father
who would make the baby live with grandparents and several other of their children or to
leave it with the mother on whose behalf several witnesses testified regarding the mother's
tender care of and devotion to the child. Although the conduct of the mother in driving across
the country with another man is suspect, the court's award of custody to the mother was
grounded on substantial evidence and with good reason which we will not disturb.
Affirmed.
____________
85 Nev. 125, 125 (1969) Houlden v. Discount Motors, Inc.
WILBERT JOHN HOULDEN, Individually and as Sole Heir of PATRICIA ANN
HOULDEN and UNNAMED BABY HOULDEN, Appellant, v. DISCOUNT MOTORS,
INC., a Nevada Corporation, Respondent.
No. 5644
March 7, 1969 451 P.2d 366
Appeal from a judgment finding respondent not causally negligent. Eighth Judicial District
Court, Clark County; Clarence Sundean, Judge.
Action against automobile dealer which allegedly sold automobile with worn-out brakes so
that motorist was unable to stop before striking pedestrian. The lower court entered judgment
in favor of defendant and plaintiff appealed. The Supreme Court, Zenoff, J., held that
evidence preponderated towards conclusion that motorist did not apply brakes.
Affirmed.
Foley Brothers, and James F. Pico, of Las Vegas, for Appellant.
Singleton, De Lanoy, Jemison & Reid, of Las Vegas, for Respondent.
1. Automobiles.
Evidence would support finding that motorist, to whom automobile was sold by dealer being sued for
pedestrian's injuries on theory that dealer had sold automobile with worn-out brakes so that motorist was
unable to stop before striking pedestrian, did not apply brakes prior to accident.
2. Trial.
Objection to instruction that automobile dealer is not an insurer of safe condition of vehicles he sells was
waived where objection was withdrawn during settling of instructions.
3. Evidence.
Refusal to allow expert witness to give his opinion, based on his examination of brake linings after
accident approximately one month after sale, as to whether linings were worn out on date of sale of
automobile was not abuse of discretion where witness was qualified to testify only regarding maintenance
and repair of brakes and not as to expected life of brake linings.
OPINION
The driver of a 1956 automobile, Robert Muldowney, drove into Wilbert Houlden and his
pregnant wife at between 35 and 45 miles per hour as they walked on the highway in a
crosswalk towards the Desert Inn Hotel near Las Vegas. The wife was killed, the baby was
delivered dead, and Houlden was severely injured. Muldowney was subsequently convicted
of involuntary manslaughter. His insurance company paid Houlden $20,000.
Houlden sought additional recovery from Discount Motors, Inc., for allegedly selling
Muldowney the car with worn-out brake linings. Houlden contended that had the brakes been
adequate Muldowney would have been able to stop and the accident would have been
prevented. A jury trial ended in a verdict finding Muldowney causally negligent and Discount
Motors, Inc., not causally negligent. Houlden appeals from judgment in favor of Discount
Motors.
[Headnote 1]
1. Respondent Discount Motors, Inc., defends this appeal simply on the ground that the
evidence does not support the contention that Muldowney applied the brakes before he struck
the Houldens so the question of defective brakes is immaterial to liability.
to liability. The only evidence that the brakes may have been applied at all did not come from
Muldowney who was not sure whether he used the brakes or not. Two persons, Mr. and Mrs.
Tullis, testified that they did not see the impact but almost simultaneously heard a screeching
of brakes and then a thud. Muldowney said that he did not see the Houldens until they were
within 20 feet of him. Before that, he was able to stop the car at the previous intersection and
also to stop within 100 feet after the accident. A bus driver who saw the entire incident said
he never saw Muldowney's brake lights go on and that his speed did not diminish until after
the collision. Since the evidence clearly preponderated towards the conclusion that
Muldowney did not apply his brakes, the judgment must be affirmed if no harmful error
occurred at the trial.
[Headnote 2]
2. Appellant objected to Instruction No. 25 which states that a car dealer is not an insurer
of the safe condition of a vehicle sold. Unhappily, perhaps from the confusion and fatigue
after a difficult trial, appellant withdrew his objection to the instruction during the settling of
the instructions in chambers. Without the objection, we will not consider it. Wadsworth v.
Dille, 85 Nev. 86, 450 P.2d 362 (1969).
[Headnote 3]
3. The only issue other than the sufficiency of the evidence to show causation properly
raised on appeal was whether appellant's expert witness should have been allowed to give his
opinion on whether the brake linings were worn-out on the day of the sale of the car, May 23,
1963, based on the witness' examination of the linings the day after the accident, June 17,
1963. The district court refused the offer because it felt the witness was not qualified to
testify on the life expectancy of the brake linings. We cannot say that this was an abuse of
discretion because it appeared that the witness was qualified to testify only regarding
maintenance and repair of brakes and not as to the expected life of brake linings.
The jury considered evidence sufficiently substantial upon which to rest a verdict. Whether
the brakes worked or not, if the driver did not use them until it was too late no fault can be
laid to their condition.
Affirmed.
____________
85 Nev. 128, 128 (1969) Craig v. State
ROBBIE OLAN CRAIG aka RAYMOND TERRY,
No. 5648
March 7, 1969 451 P.2d 368
Appeal from conviction of possession of a firearm, appellant having previously been
convicted of a felony. Eighth Judicial District Court, Clark County; Clarence Sundean, Judge.
The Supreme Court, Zenoff, J., held that reference in information to commission of crimes
of robbery and burglary at time and place of arrest should have been to previous felony
convictions for robbery and burglary but because count in which reference was made was
merely averment of facts affecting punishment under habitual offender statute, defendant was
not improperly charged with an offense.
Affirmed.
Keith C. Hayes, of Las Vegas, for Appellant.
Gripentrog, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Fact that defendant and his court-appointed counsel did not agree as to how defense should be conducted
did not establish inadequate representation.
Reference in information charging possession of a firearm to commission of crimes of robbery and
burglary at time and place of arrest should have been to previous felony convictions for robbery and
burglary but because count in which reference was made was merely averment of facts affecting
punishment under habitual offender statute, defendant was not improperly charged with an offense. NRS
267.010, subd. 1.
3. Jury.
Defendant had no right to jury trial to determine whether habitual offender penalty should be imposed.
NRS 207.010, subd. 1.
OPINION
Appellant fled from a North Las Vegas home in which he incurred a superficial wound
from the accidental discharge of a pistol while tussling with a young woman.
85 Nev. 128, 129 (1969) Craig v. State
a pistol while tussling with a young woman. Police were called. They conducted a search of
the area. Appellant was found crouched under a bush. When arrested he had a pistol in a
holster strapped to his body under his shirt. He was convicted of possession of a firearm,
having previously been convicted of a felony. An additional sentence of ten years under the
habitual offender statute, NRS 207.010(1), was imposed.
1. Appellant complains that the lawyer assigned to his case from the public defender's
office did not adequately represent him. He contends that the assigned lawyer labored under a
conflict of interests.
[Headnote 1]
It is apparent that the appellant's choice of words employed is unfortunate. There was a
conflict of personalities because appellant did not agree with his counsel on how the defense
should be conducted, but his counsel had no conflict of interests. There was clearly adequate
defense counsel within the meaning of Hollander v. State, 82 Nev. 345, 418 P.2d 802 (1966).
[Headnote 2]
2. The third count of the information charged that appellant had been convicted of two
offenses which were felonies under the laws of Nevada. This count included a reference to a
commission of the crimes of robbery and burglary at the time and place of the arrest. The
wording is unfortunate because it should refer to the previous felony convictions enumerated
in count three which were for robbery and burglary and which occurred in California. But
because count three was merely an averment of facts affecting punishment under the habitual
offender statute, appellant's contention that an offense was improperly charged fails.
Hollander v. State, 82 Nev. 345, 418 P.2d 802 (1966).
[Headnote 3]
3. Appellant's contention that he had a right to a jury trial to determine whether the
habitual offender penalty should be imposed has been recently considered and rejected by this
court and no reason appears for a departure from this precedent. Howard v. State, 83 Nev. 53,
422 P.2d 548 (1967).
Other alleged errors were either not shown by the record or were clearly immaterial.
Craig is an indigent and has been represented by court-appointed counsel. Accordingly, we
direct the district court to give counsel the certificate specified in NRS 7.260(3) to enable
him to receive compensation as provided in NRS 7.260{4) for services on appeal.
85 Nev. 128, 130 (1969) Craig v. State
enable him to receive compensation as provided in NRS 7.260(4) for services on appeal.
Affirmed.
Collins, C. J., Batjer, Mowbray and Thompson, JJ., concur.
____________
85 Nev. 130, 130 (1969) Craig v. State
ROBBIE OLAN CRAIG, Appellant, v. THE
No. 5649
March 7, 1969 451 P.2d 365
Appeal from a conviction of armed robbery. Eighth Judicial District Court, Clark County;
John P. Sexton, Judge.
The Supreme Court, Zenoff, J., held that evidence was sufficient to prove theft of money,
that defendant was not prejudiced by fact that he was identified at a preliminary hearing
without a lineup, and that failure of information to charge that money had been taken from
presence of custodian of money was not reversible error, where hotel desk clerk-cashier was
person in whose presence money had been taken, and person in general charge of the money
was standing nearby and observed robbery.
Affirmed.
Keith C. Hayes, of Las Vegas, for Appellant.
Gripentrog, Deputy District Attorney, Clark County, for Respondent.
1. Robbery.
Evidence which, in armed robbery prosecution, substantiated prosecution's claim that defendant took
money by force of arms and that money belonged to designated hotel but which did not reveal amount of
money stolen from hotel was sufficient to prove theft of money.
2. Criminal Law.
No constitutional compulsion to hold a lineup exists, and, therefore, defendant convicted of armed
robbery would not be heard to contend that he had been prejudiced because he was identified at his
preliminary hearing without a lineup.
85 Nev. 130, 131 (1969) Craig v. State
3. Criminal Law.
If lineup is held, it must afford safeguards required by Wade case and must not deny due process of law.
4. Criminal Law.
Failure of information in armed robbery prosecution to charge that money had been taken from presence
of custodian of money was not reversible error, where hotel desk clerk-cashier was person in whose
presence the money had been taken, and person in general charge of the money was standing nearby and
observed robbery.
OPINION
Appellant was chased from the scene of an armed robbery at the Fremont Hotel in Las
Vegas on August 13, 1966 at about 10:00 p.m. He was captured, charged with and convicted
of the robbery. He claims error occurred at his trial.
[Headnote 1]
1. Appellant complains that the prosecution was required to prove the amount of money
which was stolen. The testimony of four witnesses substantiates the prosecution's claim that
the appellant took money by force of arms and that the money belonged to the Fremont Hotel.
Theft of money was proven. Nothing more as to that was required.
[Headnotes 2, 3]
2. Appellant also contends that he was prejudiced because he was identified at his
preliminary hearing without a lineup. The exact nature of the prejudice appellant urges is
unclear. But in any event there is no constitutional compulsion to hold a lineup. Rather only
that if one is held it must afford the safeguards required by United States v. Wade, 388 U.S.
218 (1967), and Gilbert v. California, 388 U.S. 263 (1967), and must not deny due process of
law as contemplated by Stovall v. Denno, 388 U.S. 293 (1967), and Simmons v. United
States, 390 U.S. 377, 384 (1968). See Biggers v. Tennessee, 390 U.S. 404 (1968); Burton v.
State, 84 Nev. 191, 437 P.2d 861 (1968); Barker v. State, 84 Nev. 224, 438 P.2d 798 (1968);
Calbert v. State, 84 Nev. 148, 437 P.2d 628 (1968); Hummel v. Sheriff, 83 Nev. 370, 432
P.2d 330 (1967). See also Wise v. United States, 383 F.2d 206 (D.C.Cir. 1967); United States
v. Trivette, 284 F.Supp. 720 (D.C. 1968); United States v. Wilson, 283 F.Supp. 914 (D.C.
1968); United States v. O'Connor, 282 F.Supp. 963 (D.C. 1968).
85 Nev. 130, 132 (1969) Craig v. State
[Headnote 4]
3. Finally, appellant complains that the information must charge that the money was taken
from the presence of the custodian of the money and that it does not so charge. The person in
whose presence it was charged that the money was taken was the desk clerk and cashier. The
person in general charge of the money was standing nearby and observed the robbery. We
discern no error which would be deemed reversible under the doctrine of Thorne v. State, 81
Nev. 112, 399 P.2d 201 (1965).
Other errors complained of are either not preserved or clearly without merit.
Craig is an indigent and has been represented by court-appointed counsel. Accordingly, we
direct the district court to give counsel the certificate specified in NRS 7.260 (3) to enable
him to receive compensation as provided in NRS 7.260(4) for services on appeal.
Affirmed.
____________
85 Nev. 132, 132 (1969) Havas v. Carter
VICTOR HAVAS, dba COURTESY MOTORS, Appellant, v. RICHARD CARTER and
INSURANCE AGENCY, INC., a Nevada Corporation, Respondents.
No. 5609
March 10, 1969 451 P.2d 711
Appeal from order of the Eighth Judicial District Court, Clark County, granting a Rule
41(b) motion for dismissal; Alvin N. Wartman, Judge.
Action by insured to recover proceeds of automobile theft policy. The trial court granted
insurer's motion for dismissal at close of insured's case and insured appealed. The Supreme
Court, Thompson, J., held that evidence that automobile was upon insured's sales lot at time
of closing and that automobile and salesman disappeared was insufficient to warrant grant of
insurer's motion for dismissal under theft policy which excluded coverage for loss occasioned
by embezzlement.
Reversed.
Calvin C. Magleby and Dorsey & Taylor, of Las Vegas, for Appellant.
Morse, Graves, Parraguirre & Rose, of Las Vegas, for Respondents.
1. Trial.
On motion for dismissal at close of plaintiff's case, trial court was obliged to draw all permissible
inferences for plaintiff and could not pass upon credibility of witnesses or weigh evidence. NRCP 41(b).
2. Insurance.
Evidence that automobile was upon insured's sales lot at time of closing and that automobile and
salesman disappeared made prima facie case of theft within policy and did not warrant grant of insurer's
motion for dismissal in action by automobile owner to recover under theft policy which excluded coverage
for loss occasioned by embezzlement. NRCP 41(b).
OPINION
Victor Havas brought suit on a theft insurance policy against Insurance Agency, Inc., to
recover the fair value of a 1962 Cadillac automobile allegedly stolen from his used car lot.
The policy excluded coverage for loss by embezzlement. Trial was to the court without a jury.
At the close of the plaintiff's case in chief the court granted the defendants' Rule 41(b)
1
motion for dismissal, stating: The best that can be said for the plaintiff's case is that one
explanation is as good as another as to what happened to the automobile. If this be the case,
the plaintiff has not borne his burden. However, it is the court's opinion that under the
plaintiff's case, primarily through cross-examination by the defendants' counsel, it has been
established that there was reasonable inference that the automobile was embezzled.
[Headnote 1]
At that point during trial the court was obliged to draw all permissible inferences for the
plaintiff, could not pass upon the credibility of witnesses or weigh the evidence. Bates v.
Cottonwood Cove Corp., 84 Nev. 388, 441 P.2d 622, 624 (1968). Tested by this standard, the
court erred in dismissing the case, and we reverse.
____________________

1
NRCP 41(b) in pertinent part reads: 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.
[Headnote 2]
The relevant facts are these: Havas closed his used car lot at 11 o'clock on the evening of
April 13, 1965. When he returned the next morning to reopen, one 1962 Cadillac was missing
along with the keys to the car which had been kept in the used car lot office. The car had been
on the lot the night before at closing time. Also missing was one Paul Merritt, car salesman,
who occupied an apartment in another building on the lot. Merritt has not been heard from
since, nor has the automobile been located. There is no evidence in the record to suggest that
the automobile was entrusted to employee Merritt during the night when the lot was closed.
From these facts two permissible inferences for the plaintiff may be drawnthat Merritt
stole the car, or that some unidentifiable person did so. In either event, a prima facie case of
theft was before the court, and it was error to dismiss the action out of hand. Whether other
defenses are available to the defendant insurance company is an issue not presently before us.
Reversed.
____________
85 Nev. 134, 134 (1969) Thompson v. State
TOMMY THOMPSON, Appellant, v. THE STATE
No. 5616
March 11, 1969 451 P.2d 704
Appeal from a conviction of robbery. Eighth Judicial District Court, Clark County;
Clarence Sundean, Judge.
The Supreme Court, Zenoff, J., held that even though identification occurs prior to
indictment, suspect, who is in police custody and whose identity is sought to be established
from a group of pictures at a police station house in lieu of lineup is entitled to have counsel
present at such identification where at time thereof prosecutorial process has shifted from
investigatory to accusatory stage.
Affirmed.
Collins, C. J., and Mowbray, J., dissented.
James D. Santini, Public Defender, and Robert N. Peccole, Assistant Public Defender,
Clark County, for Appellant.
George E. Holt, and George H. Spizzirri, Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Even though identification occurs prior to indictment, suspect, who is in police custody and whose
identity is sought to be established from a group of pictures at a police station house in lieu of lineup, is
entitled to have counsel present at such identification where at time thereof prosecutorial process has
shifted from investigatory to accusatory stage.
2. Criminal Law.
Right to counsel attaches when prosecutorial process shifts from investigatory to accusatory stage and
focuses on accused.
3. Criminal Law.
Admitting testimony of witnesses who identified defendant at trial and who testified, in presence of jury,
that they had identified defendant at photographic display at police house at time when defendant was in
custody but was not present nor represented by counsel was error but such error was harmless in light of
other evidence and showing that in-court identification was independent of pretrial identification.
4. Criminal Law.
Rule that admitting evidence of identification at lineup where accused was neither afforded counsel nor
waived his constitutional right thereto is, constitutional error per se and requires reversal unless error is
harmless beyond a reasonable doubt applies to situation where accused is identified from a group of
pictures at a police station house at a time when he is in custody but is not represented by counsel.
5. Criminal Law.
Generally, clear and convincing proof that in-court identification is independent of illegal pretrial lineup
will often be sufficient to support finding that admission of evidence of illegal pretrial lineup is harmless
error.
6. Criminal Law.
A substitute for counsel required to be present when accused is exhibited for identification purposes can
be provided by local law enforcement agencies.
7. Criminal Law.
Presence of counsel at pretrial photographic identification proceedings while suspect is in custody would
not be mandatory if local law enforcement authorities would preserve competently, in legal sense,
photographs that are displayed to witnesses and provide and follow guidelines of proper photographic
identification procedures.
8. Criminal Law.
Each case involving method of initial identification by photographs must be considered on its own facts,
and convictions based on eyewitness identification at trial following pretrial identification by photographs
will be set aside on that ground only if photographic identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.
as to give rise to a very substantial likelihood of irreparable misidentification.
Photographic display in lieu of lineup did not deny defendant due process even though he was not present
or represented by counsel where witnesses testified that all photographs were similar, were of persons of
the same race and size, that police officers imposed no suggestive influence and that their opportunity for
observation was very extensive.
OPINION
This appeal presents the question of whether counsel is required to be present when a
suspect who is in police custody is identified from a group of pictures at a police station
house in lieu of a lineup.
A gas station in Las Vegas was robbed a few minutes after midnight on December 1, 1967.
Two women who were in the station's waiting room and the station attendant who was robbed
gave the police a description of the robber. Appellant was observed by a police officer in a
restaurant at about 3:00 a.m. that morning as matching the broadcast description of the
robber. He was arrested and incarcerated.
At about 10:00 a.m. that same morning, the station attendant and the two women who
observed the robbery went to the police station. There they were shown a group of eight
pictures, one of which was of appellant. All were about the same size. However, the picture
of appellant was larger than the others, and it had the date, December 1, 1967, on it. All three
witnesses identified appellant from his picture. Appellant was not apprised of this
identification procedure. There was never any physical lineup held in which appellant was
obliged to exhibit himself for identification. No defense counsel was present. There was
never any waiver of counsel.
Appellant was convicted upon the testimony of the station attendant, the two women who
were bystanders, the arresting police officer, and a girl friend of appellant. The girl friend
denied that he was with her at the time of the robbery as he claimed. During the trial, the
station attendant unequivocally identified appellant as the robber. Immediately a hearing was
held in the absence of the jury to ascertain whether the in-court identification was based on
the photographic display shown the witnesses while he was in custody. The district court
concluded that the state had proven by clear and convincing evidence that the in-court
identification was based on the prolonged and thorough observation of the robber at the
holdup.
that the state had proven by clear and convincing evidence that the in-court identification was
based on the prolonged and thorough observation of the robber at the holdup. But the
attendant said he was unable to say whether the photographs, except appellant's, shown him at
trial were the ones shown him at the photographic identification. The attendant never testified
about the photographic identification in the presence of the jury.
The two women who were in the gas station waiting room during the robbery testified that
they closely observed appellant for about five to ten minutes prior to the robbery because
their attention was attracted by his unusually long blonde hair and nervous mannerisms as he
paced about the station and the waiting room prior to the robbery. They very adamantly
identified him at trial. They testified extensively about the photographic identification in the
presence of the jury. No hearing was held to determine to what extent their identification was
based on the photograph of appellant which they were shown the morning of the robbery.
Neither of the two women could say that the photographs, other than the one of appellant,
were the ones they were shown at the station house.
[Headnotes 1, 2]
1. In-court Identifications.
Appellant first contends that United States v. Wade, 388 U.S. 218 (1967), gave him the
right to have counsel present when he was identified by the attendant from the group of
photographs. He argues that the selection of his photograph by the attendant from the group
of eight photographs at the police station where he was in custody was tantamount to a
physical lineup in which he could have participated. We agree.
We can discern no substantial difference between a lineup of photographs of persons and a
lineup of the persons themselves insofar as the constitutional safeguards required by Wade,
supra, are concerned. The photographic display is even more subject to prejudicial distortion
than is a lineup. In the former the accused is not even present to observe the conditions of his
identification. See Note, 63 Nw.U.L.Rev. 251, 258 & n. 37 (1968). Both serve the same
purpose in the circumstances of this case and the same protections accordingly are required.
Wade, supra, held, in part, that an accused has a right to have appointed counsel present
when he is exhibited in a lineup and also that no witness who identified the accused in a
lineup conducted in the absence of his counsel may identify the accused in court at his trial
unless it is judicially determined that the in-court identification is not tainted by and is
independent of the pretrial lineup identification.
the accused in court at his trial unless it is judicially determined that the in-court
identification is not tainted by and is independent of the pretrial lineup identification. There
was no waiver of counsel as in Jones v. State, 85 Nev. 53, 450 P.2d 139 (1969). Wade, supra,
requires a showing by the prosecution with clear and convincing evidence that the in-court
identification is the result of observation at the scene of the offense charged. We are satisfied
here that the prosecution has carried its burden in the hearing conducted by the district court
and that the in-court identification was independent of the pretrial identification. Shepard v.
State, 213 So.2d 11 (Fla.App. 1968); Tyler v. State, 245 A.2d 592 (Md.Spec. App. 1968);
State v. Cannito, 162 N.W.2d 260 (Neb. 1968); State v. Carrothers, 443 P.2d 517 (N.M.
Ct.App. 1968); State v. Williams, 163 S.E.2d 353 (N.C. 1968); c.f. Jones v. State, 215 So.2d
437 (Ala. 1968). See also People v. Caserta, 224 N.E.2d 82 (N.Y. 1966).
The fact that Wade, supra, involved a post-indictment lineup is not determinative. The
right to counsel attaches when the prosecutorial process shifts from the investigatory to the
accusatory stage and focuses on the accused. Miranda v. Arizona, 384 U.S. 436, 466, 470
(1966); Escobedo v. Illinois, 378 U.S. 478 (1964); Rivers v. United States, 400 F.2d 935 (5th
Cir. 1968); Wise v. United States, 383 F.2d 206, 209 & n. 9 (D.C. Cir. 1967), cert. den., 390
U.S. 964 (1968); United States v. Wilson, 283 F.Supp. 914 (D.C. 1968). The shift had
occurred in this case at the time of the photographic display.
[Headnotes 3-5]
2. Evidence of Pretrial Identifications.
It is also contended that error was committed when the two women witnesses who
identified the appellant at his trial also testified that they had identified appellant at the
photographic display. We agree.
Gilbert v. California, 388 U.S. 263 (1967), held that admission of evidence at trial of an
identification at a lineup where the accused was neither afforded counsel nor waived it is
constitutional error per se and requires reversal unless the error is harmless beyond a
reasonable doubt as required by Chapman v. California, 386 U.S. 18 (1967). See also Guyette
v. State, 84 Nev. 160, 438 P.2d 244 (1968); People v. Ross, 429 P.2d 606 (Cal. 1967);
Commonwealth v. Padgett, 237 A.2d 209 (Pa. 1968). As a practical matter, clear and
convincing proof that an in-court identification is independent of the illegal pretrial lineup
will often be sufficient to support a finding that admission of evidence of the illegal pretrial
lineup is harmless error.
finding that admission of evidence of the illegal pretrial lineup is harmless error.
As indicated above, we see no substantial distinction between a lineup and a substituted
photographic display while the suspect is in custody. For that reason we hold that Gilbert,
supra, applies in this case. The admission of the testimony in the presence of the jury
regarding the photographic display was error per se. But we further hold that because of the
overwhelming evidence of guilt and of the trustworthiness of the identification, the error
committed by the admission of evidence of the pretrial identification was harmless beyond a
reasonable doubt.
[Headnotes 6, 7]
3. Substitutes for Presence of Counsel.
Although we hold that Wade, supra, and Gilbert, supra, apply in this case, it is clear that a
substitute for counsel can be provided by local law enforcement agencies. The difficulty in
procuring appointed local counsel for such identifications can be a substantial burden. Wade,
supra, explicitly provides for a substitute for such exigencies.
Legislative or other regulations, such as those of local police departments, which
eliminate the risks and abuse and unintentional suggestion at lineup proceedings and the
impediments to meaningful confrontation at trial may also remove the basis for regarding the
stage as critical.' Wade, supra, 388 U.S. at 239.
We would not require counsel at photographic identification proceedings while the suspect
is in custody if local law enforcement authorities would but preserve competently in the legal
sense the photographs that are displayed to witnesses, provide guidelines for proper
photographic identification procedures, and follow these guidelines. If the pictures are
preserved and presented in court at subsequent proceedings with the same foundation as other
similar evidence, defense counsel will be able to intelligently cross-examine the witnesses at
trial. The guidelines would provide against improper suggestion which could not be cured by
cross-examination.
In this case no one was sure that the photographs, other than appellant's, were the same
photographs which were used at the pretrial identification. The difficulties of
cross-examination and the possibilities of irreparable suggestion are apparent.
[Headnotes 8, 9]
4. Due Process of Law.
Appellant also contends that the photographic display denied him due process of law. We
have decided the applicable due process standard many times before.
process standard many times before. Burton v. State 84 Nev. 191, 437 P.2d 861 (1968).
Barker v. State, 84 Nev. 224, 438 P.2d 798 (1968); Calbert v. State, 84 Nev. 148, 437 P.2d
628 (1968); Hummel v. Sheriff, 83 Nev. 370, 432 P.2d 330 (1967). Other states have
considered this question when confronted by photographic displays similar to the one in this
case. State v. Woodard, 246 A.2d 130 (N.J. Super. 1968); Vios v. State, 246 A.2d 313
(Md.Spec.App. 1968); Barnes v. State, 245 A.2d 626 (Md.Spec.App. 1968). The United
States Supreme Court enunciated the general standard applicable to lineups long ago. Stoval
v. Denno, 388 U.S. 293 (1967). None of these cases have found a violation of due process.
See also Wise v. United States, 383 F.2d 206 (D.C.Cir. 1967), cert. den. 390 U.S. 964 (1968);
United States v. Trivette, 284 F.Supp. 720, 724 & n. 12 (D.C. 1968); United States v. Wilson,
283 F.Supp. 914, 916 & n. 11 (D.C. 1968); United States v. O'Connor, 282 F.Supp. 963, 964
& n. 4 (D.C. 1968).
Simmons v. United States, 390 U.S. 377, 384 (1968), dealt with a photographic display
similar to the one in this case and establishes the applicable due process standard. [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. See also Biggers
v. Tennessee, 390 U.S. 404 (1968) (Douglas, J., dissenting).
Although we do not have all of the photographs used at the police station when appellant
was identified, the witnesses did testify that all were similar, were of persons of the same race
and size, that the police officers imposed no suggestive influence, and that their opportunity
for observation of the robber was very extensive. Thus we hold that there is no very
substantial likelihood of irreparable misidentification. Therefore there was no denial of due
process of law.
Affirmed.
Batjer and Thompson, JJ., concur.
Collins, C. J., concurring in part, dissenting in part:
I concur in the result announced by the court's opinion and certain of the reasoning leading
to that result.
I dissent, however, from extension of the doctrine of United States v. Wade, 388 U.S. 218
(1967) to a pretrial examination of photos or mug shots of a suspect then in custody. If the
rule in Wade is to be thus extended, it should be done by the United States Supreme
Court, but not this court.
in Wade is to be thus extended, it should be done by the United States Supreme Court, but not
this court.
The majority opinion seems anxious to once more outleap the United States Supreme
Court. I feel no legal compulsion to join in that leap.
The record in this case leaves no doubt the true identification of appellant by both the
victim and the two women was from their observations at the scene of the crime, independent
of pretrial identification. The majority opinion agrees. We should stop there and at least wait
until a pretrial identification from mug shots presents a serious question of prejudice before
we undertake pronouncement of another constitutional rule in the evidence field.
Mowbray, J., concurs with the views expressed above by Chief Justice Collins.
____________
85 Nev. 141, 141 (1969) Wicker v. Wicker
SHIRLEY A. WICKER, Appellant, v.
DONALD D. WICKER, Respondent.
No. 5657
March 11, 1969 451 P.2d 715
Appeal from judgment of the Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
Suit against plaintiff's former husband seeking enforcement of a Wisconsin divorce
judgment, arrearages in alimony, and an order directing him to bring current the premium
payments due on life insurance policies, and requesting an increase in alimony, wherein the
former husband responded by requesting a decrease of the monthly alimony award. From a
judgment of the lower court the plaintiff appealed. The Supreme Court, Thompson, J., held
that where Wisconsin divorce judgment with regard to insurance policies was stated by that
court to be an adjudication of property, Nevada was bound to accord full faith and credit to
such property division and was powerless to alter it; and that under the evidence the trial
court abused its discretion in reducing the alimony and providing for its future termination.
Reversed in all but that part entering judgment for accrued but unpaid alimony.
Flangas & Stone, of Las Vegas, for Appellant.
Elwin C. Leavitt, of Las Vegas, and E. R. Miller, Jr., of Ely, for Respondent.
1. Divorce.
In suit against plaintiff's former husband seeking enforcement of Wisconsin divorce judgment district
court properly entered judgment for alimony arrearages.
2. Divorce.
Wisconsin divorce judgment was entitled to full faith and credit, and hence Nevada court must defer to
law of Wisconsin to determine effect of its judgment regarding property and alimony. U.S.C.A.Const. art.
4, 1; 28 U.S.C.A. 1738.
3. Divorce.
Under Wisconsin law division of an estate in divorce decree is fixed for all time and is not subject to
modification or revision after time for appeal has passed.
4. Divorce.
Where Wisconsin divorce judgment with regard to insurance policies was stated by that court to be an
adjudication of property Nevada was bound to accord full faith and credit to such property division and
was powerless to alter it; the doctrine of res judicata also forbade relitigation of that issue. U.S.C.A.Const.
art. 4, 1; 28 U.S.C.A. 1738.
5. Divorce.
Under Wisconsin law, alimony award is subject to modification in that state at any time subsequent to
decree. W.S.A. 247.32.
6. Divorce.
Since Wisconsin judgment for alimony was inconclusive and reexaminable in Wisconsin, it was not
required to receive greater credit in Nevada, and Nevada court could reexamine the alimony award, but to
justify modification a substantial or material change in circumstances must be established, and such
evaluation and consequences to follow call for exercise of judicial discretion. W.S.A. 247.32.
7. Divorce.
A husband's remarriage, by itself, is not a ground for modification of alimony award in his favor.
8. Divorce.
Under evidence regarding respective circumstances of divorced husband who had remarried and divorced
wife whose earning ability had deteriorated, trial court abused its discretion in reducing $300 per month
alimony, awarded by Wisconsin divorce judgment, and providing for its future termination.
OPINION
In this case the district court assumed an authority to readjust the property and alimony
provisions of a final divorce judgment entered in Wisconsin.
judgment entered in Wisconsin. Since the court was powerless to alter the property
distribution and abused its discretion with respect to the alimony award, we reverse those
aspects of its order, and affirm only that part entering judgment for accrued but unpaid
alimony.
Shirley Wicker filed suit against her former husband seeking enforcement of a 1962
Wisconsin divorce judgment, arrearages in alimony, an order directing him to bring current
the premium payments due on life insurance policies, and requesting an increase in alimony.
The Wisconsin decree awarded her alimony of $300 a month and, as a full and complete
division of the property and estate of the parties, directed the husband to make her the
irrevocable beneficiary of three life insurance policies and to pay the premiums thereon. The
former husband responded by requesting a decrease of the monthly alimony award.
[Headnote 1]
The district court granted Shirley Wicker judgment for alimony arrearages as it was bound
to do. Biel v. Godwin, 69 Nev. 189, 245 P.2d 997 (1952). However, it further ordered that the
former husband need only maintain one of the three insurance policies to insure payment of
alimony arrearages and 18 months of future alimony; that he need not reinstate and maintain
the other two policies, and that the duty to maintain the one was to cease when all sums
ordered by the Nevada court were paid in full. Finally, as to alimony, the court ordered the
former husband to continue to pay $300 a month for a period of six months, and $150 a
month for the next 12 monthsat which point the obligation to pay further alimony was to
cease altogether. For reasons hereafter expressed, the provisions of its order relating to
property and future alimony are clearly erroneous.
[Headnote 2]
1. The validity of the Wisconsin judgment is not challenged in any respect, and is entitled
to full faith and credit. U.S. Const. art. IV, 1; 28 U.S.C. 1738. We must, therefore, defer to
the law of Wisconsin to determine the effect of its judgment regarding property and alimony.
Kraemer v. Kraemer, 79 Nev. 287, 382 P.2d 394 (1963); Summers v. Summers, 69 Nev. 83,
241 P.2d 1097 (1952).
[Headnotes 3, 4]
The Wisconsin judgment with regard to the insurance policies was stated by that court
to be an adjudication of property.
Under Wisconsin law the division of an estate in a divorce decree is fixed for all time
[Trowbridge v. Trowbridge, 114 N.W.2d 129, 132 (Wis. 1962)], and is not subject to
modification or revision after the time for appeal has passed. Sholund v. Sholund, 148
N.W.2d 726 (Wis. 1967); Trowbridge v. Trowbridge, supra; Anderson v. Anderson, 98
N.W.2d 434 (Wis. 1959). Nevada is bound to accord full faith and credit to that property
division, and is powerless to alter it. The doctrine of res judicata also forbids relitigation of
that issue in this state. Kraemer v. Kraemer, supra.
[Headnote 5]
2. With respect to alimony, it is the law of Wisconsin that such an award is subject to
modification in that State at any time subsequent to the decree. Wis. Stat. 247.32;
Trowbridge v. Trowbridge, supra. Since the judgment for alimony is inconclusive and
re-examinable in Wisconsin, it need receive no greater credit in Nevada, and may be
re-examined here. Zentzis v. Zentzis, 158 N.W. 284, 286 (Wis. 1916). However, to justify
modification a substantial or material change in circumstances must be established. Miner v.
Miner, 103 N.W.2d 4 (Wis. 1960). This evaluation and the consequences to follow calls for
an exercise of judicial discretion. We do not hesitate to find an abuse of such discretion here
and proceed to relate the relevant facts to show that such is the case.
[Headnote 6]
Both sought modificationthe former wife asking for more alimony and the former
husband seeking to decrease that obligation. At the time of the divorce in 1962 the husband, a
doctor, was earning $12,000 a year. In 1967 when this action was commenced his income
was approximately twice that amount, and this was a substantial decrease from the prior year
because of the copper strike in Ely. He owns a home in Ely subject to an encumbrance, a
house in McGill, a cabin at Cherry Creek, a 1967 Buick and a 1962 Landrover, and stock
valued at about $400. He has remarried and is the sole support of his second wife and three
children. In sum, his ability to earn money has dramatically improved since 1962. He has
voluntarily incurred new obligations.
The former wife's circumstances have worsened. At the time of the divorce she had been
making $300 per month, but continuing and increasing physical and emotional illness forced
a steady reduction in work time as the years went on. In each of the years 1965 and 1966 she
earned little over $1,000 per year, in 1967, $800, and for the first three months of 1968, only
$80. She was able to pay living expenses only by receiving loans from relatives.
loans from relatives. She testified to having severe headaches and constant pain in the neck,
back, hips, and right shoulder and knee, trouble in focusing eyes, pain and swelling in the
sinuses, and frequent earaches, all of which make sustained employment practically
impossible, although she has attempted to find work. She admitted that these afflictions
became aggravated following an automobile accident in 1963, but that some of the symptoms
were present at the time of the divorce, and that her health at that time was generally not
good. She is making monthly payments of $110 on the purchase of a two bedroom house. She
has outstanding debts in the sum of $3,147.21, and monthly expenses in the sum of $674.73.
These expenses were itemized for the court, and they are not unreasonable.
[Headnotes 7, 8]
A comparison of their respective circumstances shows, on the one hand, a practicing
physician with assured employment and a capacity to earn a substantial income; and, on the
other, a deteriorating physical specimen with little or no employment. There is no real
indication in the record that the doctor is unable to support his present family and also
provide for his former wife as ordered by the Wisconsin court. His remarriage, by itself, is not
a ground for modification in his favor. Ashburn v. Ashburn, 45 N.W.2d 298 (Mich. 1951). In
these circumstances the court abused its discretion in reducing alimony and providing for its
future termination since all of the evidence denies that result.
It does not automatically follow, however, that the former wife is entitled to increased
alimony. For the time being, the alimony provision of the Wisconsin judgment shall stand
without change.
____________
85 Nev. 145, 145 (1969) Glosen v. Sheriff
CHARLES JAMES GLOSEN and ROBERT E. PEARSON, Appellants, v. SHERIFF OF
WASHOE COUNTY, NEVADA, Respondent.
No. 5754
March 11, 1969 451 P.2d 841
Appeal from orders of the Second Judicial District Court, Washoe County, denying habeas
corpus; John E. Gabrielli, Judge.
The lower court denied petitions and appeals were taken. The Supreme Court, Thompson,
J., held that statute defining sale is broad and thus it was not essential for state to show that
petitioner, who was indicted for sale of marijuana and who had arranged transaction, initiated
by policewoman's request, and was codefendant's agent in arranging sale of marijuana by
codefendant to policewoman, profited from the transaction, and that evidence on issue of
whether petitioners were entrapped or whether policewoman furnished petitioners
opportunity to commit crime of sale of marijuana, which crime was consummated with
requisite criminal intent was sufficient for jury.
Affirmed.
Samuel B. Francovich, of Reno, for Appellant Robert E. Pearson.
J. Rayner Kjeldsen, of Reno, for Appellant Charles James Glosen.
Harvey Dickerson, Attorney General, of Carson City, William J. Raggio, District Attorney,
and Virgil D. Dutt, Deputy District Attorney, Washoe County, for Respondent.
1. Grand Jury; Poisons.
In prosecution for sale of marijuana, proof beyond reasonable doubt that substance sold was in fact
marijuana must be offered at trial and is generally supplied by expert witness who has tested the substance
but that quantum of proof is not required before grand jury. NRS 172.155, 453.030.
Standard of probable cause to believe that offense of sale of marijuana has been committed and that
person against whom indictment is sought committed it is satisfied if person against whom indictment is
sought either directly, or by necessary implication, represents such substance he is selling as marijuana.
Grand jury could indict petitioner for sale of marijuana without allegedly incompetent hearsay evidence,
policewoman's identification of petitioner from police mug shot, where policewoman had testified that
petitioner had sold her marijuana. NRS 172.155, 453.030.
4. Poisons.
Statute defining sale is broad and thus it was not essential for state to show that petitioner, who was
indicted for sale of marijuana and who had arranged transaction, initiated by policewoman's request, and
was codefendant's agent in arranging sale of marijuana by codefendant to policewoman, profited from the
transaction. NRS 453.020, subd. 16, 453.030.
5. Habeas Corpus.
Evidence on issue of whether petitioners were entrapped or whether policewoman furnished petitioners
opportunity to commit crime of sale of marijuana, which crime was consummated with requisite criminal
intent was sufficient to hold him to answer.
OPINION
Glosen and Pearson were jointly indicted for the sale of marijuana and sought freedom by
petitions for habeas corpus in the district court, which were denied. They have appealed.
Glosen's main contention is that insufficient evidence was presented to hold him for trial.
Pearson urges that he should not be forced to trial since he was acting as an agent of an
employee of the police department in arranging for Glosen's sale of marijuana to such
employee, and cannot be considered as having sold the marijuana himself. Each claims that
the evidence before the grand jury establishes entrapment as a matter of law. We affirm the
rulings of the district court.
The story related to the grand jury is a simple one. A policewoman met Pearson at a bar
where he was employed as a bartender. She inquired if he could get some marijuana for her.
He replied that he could, telephoned Glosen, and within a few minutes Glosen came to the
bar. Glosen asked the policewoman if she was the person who wanted marijuana and she
indicated that she was. She then gave Glosen fifty dollars, he left, returned soon and delivered
a bag containing marijuana to her. Such was the testimony of the policewoman. She also
identified Glosen from a police mug shot of him.
Two other witnesses testified, a police sergeant who explained part of the chain of custody
of the particular marijuana involved, and one who had tested the substance and found it to be
marijuana. The record does not reflect that the latter witness was competent to express an
opinion.
1. The Glosen appeal. It is a felony to sell marijuana. NRS 453.030. An indictment for an
unlawful sale may be returned when the evidence establishes probable cause to believe that
an offense has been committed and that the person against whom an indictment is sought
committed it. NRS 172.155.
Glosen's contention that the evidence is legally insufficient is directed mainly to
discrepancies in the chain of custody testimony, and to the opinion evidence of the witness
who was not shown to be an expert.
shown to be an expert. We need not consider this contention since the testimony of the
policewoman alone established probable cause.
[Headnotes 1, 2]
Of course, proof beyond a reasonable doubt that the substance sold was in fact marijuana
must be offered at trial [In re John, a Minor, 84 Nev. 635, 446 P.2d 989 (1968)], and is
generally supplied through an expert witness who has tested the substance. That quantum of
proof is not required before a grand jury. The standard of probable cause is satisfied if the
person against whom an indictment is sought either directly, or by necessary implication,
represents that the substance he is selling is marijuana. Such a representation was made to the
policewoman in this case. The grand jury was entitled to believe it.
[Headnote 3]
Additionally, Glosen argues that the policewoman's identification of him from a police
mug shot was incompetent evidence since the photograph was hearsay. Whether hearsay or
not, this bit of evidence was not needed. The grand jury could indict without it since she had
testified that Glosen sold her marijuana.
[Headnote 4]
2. The Pearson appeal. This man also was indicted for the sale of marijuana. So far as we
know he did not receive a profit from the transaction. He did arrange for the sale by Glosen to
the policewoman. Our statute defining sale is broad. A sale includes, barter, exchange, a
gift, or offer therefor, and each such transaction made by any person, whether as principal,
proprietor, agent, servant, or employee. NRS 453.020(16). Thus, it is not essential for the
state to show that Pearson profited from the transaction. Although his participation was
initiated by the policewoman's request, he acted as Glosen's agent in arranging for the
transaction. If the Texas case of Durham v. State, 280 S.W.2d 737 (Tex.Crim. App. 1955),
may be read as holding otherwise, we decline to follow it.
[Headnote 5]
3. Entrapment. Glosen and Pearson each insists that the record shows entrapment as a
matter of law. We do not so view the record. It was permissible for the grand jury to find that
the policewoman furnished the accused an opportunity to commit a crime which was
consummated with the requisite criminal intent.
the policewoman furnished the accused an opportunity to commit a crime which was
consummated with the requisite criminal intent. State v. Busscher, 81 Nev. 587, 407 P.2d 715
(1965).
Affirmed.
____________
85 Nev. 149, 149 (1969) Brown v. Board of County Comm'rs
STANLEY H. BROWN, Petitioner, v. BOARD OF COUNTY COMMISSIONERS OF
WASHOE COUNTY AND DONALD J. QUESTA, Auditor and Treasurer of Washoe
County, Respondents.
No. 5710
March 12, 1969 451 P.2d 708
Original petition for writ of mandamus.
Original proceeding by appointed counsel of indigent defendant to recover more than
amount allowed by statute as compensation for his services. The Supreme Court, Thompson,
J., held that although attorney, appointed to represent indigent defendant in noncapital
criminal case, was by reason of complexity and length of indigent's trial forced to associate
counsel in other matters, was not able to see other clients for over two months, lost several
regular clients, and was compelled to return retainers in excess of $1,000, attorney was not
entitled to recover more than statutory limit of $300 as compensation.
Petition denied.
Echeverria & Osborne, and Byron K. Meredith, of Reno, for Petitioner.
William J. Raggio, District Attorney, and Wilbur H. Sprinkel, Deputy District Attorney,
Washoe County, for Respondents.
In absence of statute providing for compensation, lawyer, upon court order, is obliged to represent an
indigent without recompense.
Lawyer does not owe free representation to any and every indigent who chooses to demand it of him.
Lawyer's duty to represent an indigent without recompense is owed to court and it is court's call that
lawyer is obliged to answer.
Lawyer's duty to represent indigent without recompense is incident of license to practice law, and power
to deal with it reposes in judicial branch of government.
Although attorney, appointed to represent indigent defendant in noncapital criminal case, was by reason
of complexity and length of indigent's trial forced to associate counsel in other matters, was not able to see
other clients for over two months, lost several regular clients, and was compelled to return retainers in
excess of $1,000, attorney was not entitled to recover more than statutory limit of $300 as compensation.
NRS 7.260.
OPINION
The issue, presented to us by an original proceeding for a writ of mandate, is whether NRS
7.260 limiting compensation to $300 for a court appointed attorney in a non-capital criminal
case, is unconstitutional if applied to the circumstances before the court. It is not contended
that the statute is unconstitutional per se.
The petitioner, attorney Stanley Brown, seeks to compel the County Commissioners to
provide funds from which the county auditor may draw his warrant in the sum of $11,624.23
payable to petitioner, and from which the County Treasurer may pay the same. Brown was
appointed to represent an indigent defendant in a non-capital criminal case prosecuted by the
State of Nevada. He practices alone. By reason of the complexity and length of the trial, he
was forced to associate counsel in other matters; was unable to see other clients for over two
months; lost several regular clients, and was compelled to return retainers in excess of
$1,000. He filed several petitions for compensation with various departments of the district
court, and orders were entered thereon awarding compensation in the total amount of
$11,624.23. These court orders were tendered to the County Auditor and referred by him to
the County Commissioners who denied the claims as being in excess of the statutory limit of
$300. This proceeding ensued.
[Headnote 1]
1. In the absence of a statute providing for compensation a lawyer, upon court order, is
obliged to represent an indigent without recompense. United States v. Dillon, 346 F.2d 633 (9
Cir. 1965); Dolan v. United States, 351 F.2d 671 (5 Cir. 1965); cases collected Annot. 18
A.L.R.3d 1074 (1968).
Essential service without regard to financial reward is one of the great traditions of the legal
profession. I will never reject, from any consideration personal to myself, the cause of the
defenseless or oppressed, reads the oath of an attorney.
[Headnotes 2-4]
Of course, a lawyer does not owe free representation to any and every indigent who
chooses to demand it of him. His duty is owed to the court and it is the court's call that he is
obliged to answer. State v. Rush, 217 A.2d 441, 447 (N.J. 1966). It follows that the duty thus
imposed is an incident of the license to practice law, and the power to deal with it reposes in
the judicial branch of government which is charged with the responsibility for the terms and
conditions of the right to practice. Whether that power carries with it an authority to direct
compensation for professional services beyond limits legislatively imposed is the question
before us.
1

2. In 1879 this court ruled that the legislative limit for compensation could not be
enlarged by court order. At that time the statute provided that court appointed counsel was
entitled to receive such fee as the court may fix not to exceed fifty dollars. Washoe County
v. Humboldt County, 14 Nev. 123 (1879). The court there noted that in the absence of statute
the attorney would be obliged to honor the court appointment and to defend without
compensation. Id. at 128.
During the past decade new constitutional concepts of criminal justice and the complexity
of our social problems have dramatically increased the burden upon the legal profession. The
announced goal is equal justice for the rich and poor alike. The presence and assistance of
counsel now is required at all critical stages of a criminal proceeding, and sometimes to press
collateral post-conviction applications. The enlargement of federally protected rights
demands a greater degree of specialized knowledge and proficiency on the part of assigned
counsel.
____________________

1
Statutes enacted to cover this situation fall generally into two groups, those allowing a reasonable sum as
compensation to be determined by the court [Hill v. Superior Court, 293 P.2d 10 (Cal. 1956); Spencer v.
Gladden, 369 P.2d 129 (Ore. 1962); Conway v. Sauk County, 120 N.W.2d 671 (Wis. 1963)], and those fixing a
maximum limit within which the court may exercise its discretion [Washoe County v. Humboldt County, 14
Nev. 123 (1879); People v. Zuniga, 202 N.E.2d 31 (Ill. 1964)]. And even those states which allow a reasonable
compensation to be fixed by the court recognize that what may be reasonable for the representation of a indigent
defendant may be far from what is considered reasonable as between counsel and a solvent client in a private
transaction. Hill v. Superior Court, supra; State v. Horton, 170 A.2d 1 (N.J. 1961).
assigned counsel. The cost of criminal justice is increasing. As a consequence, many
jurisdictions have adopted a public defender system for the indigent accused, thereby placing
the cost upon the taxpayer. The federal government has enacted the criminal justice act which
provides greater relief for assigned counsel than exists under state statutes similar to ours. It is
apparent that the members of the bar should not be required to absorb the full costs of the
defense of the indigent. A permanent solution of this problem properly rests with the
legislative branch of our government since it is charged with the responsibility of
appropriating public funds for public purposes, and we invite legislative action.
3. In extraordinary circumstances the Illinois Supreme Court ruled that court appointed
attorneys representing indigents were entitled to receive compensation in excess of the
statutory limit. People v. Randolph, 219 N.E.2d 337 (Ill. 1966). The court found that its
inherent power to appoint counsel necessarily includes the power to enter an appropriate
order ensuring that counsel do not suffer an intolerable sacrifice and burden and that the
indigent defendants' right to counsel is protected. Id. at 340.
The circumstances before the Illinois court were indeed extraordinary. The court appointed
counsel were engaged in defending four indigent inmates who were indicted for the alleged
murders of three prison guards during the course of a riot at the prison. The trial occurred in a
county some distance from the homes and offices of counsel, and they were forced to
maintain two residences, spend large out-of-pocket sums for investigation costs and expert
witness fees, and were totally unable to carry on their private practice of law. The first nine
weeks of the trial were consumed in selecting a jury. When the petition for fees and motion to
withdraw as counsel was presented to the trial court, the state had examined 16 witnesses and
intended to call 60 to 100 more during its case in chief. One of the attorneys was on the brink
of insolvency, and the others were unable to continue payment of current trial costs. In short,
court appointed counsel were faced with financial ruin if compelled to continue the trial
without relief. Further, had counsel been permitted to withdraw the trial would have had to
start anew. In these extreme circumstances the court came to the relief of counsel and
distinguished its prior decision of People v. Zuniga, 202 N.E.2d 31 (Ill. 1964), which
disallowed an award of fees in excess of the statutory maximum, pointing out that in the latter
case there had been no showing of undue hardship, or that the indigent's right to counsel
had in any way been impaired.
no showing of undue hardship, or that the indigent's right to counsel had in any way been
impaired.
[Headnote 5]
In the case at hand the petitioner's situation does not meet the extraordinary
circumstances test of the Randolph case. His showing below implies no more than a
reduction in income, but by no means can be classified as indicating financial ruin. For this
reason we decline to apply the rationale of the Randolph decision to the circumstances of this
case.
The obligation of counsel to assume the burden of defending indigents necessarily
involves personal sacrifice. It is to be presumed that courts charged with the appointment of
counsel will never so burden one, or a few, members of the bar to the exclusion of others. We
commend the petitioner for his services in this case. His willingness to assist the court is in
the highest tradition of our profession, and brings honor to him, and to the bar as well. Our
commendation may be an inadequate exchange for his personal sacrifice. Nonetheless, it is
sincerely offered, and we repeat our invitation for legislative correction. This burden should
be passed to the taxpayers, and the members of the bar, as taxpayers, will, of course, share in
it.
Petition denied.
Collins, C. J., Zenoff and Mowbray, JJ., concur.
Batjer, J., concurring:
I concur with the other members of the court in this opinion. The legislature of this state
has long ago determined that lawyers appointed to represent indigents should be compensated
for their services. The inequity that presently exists in the statutory compensation should be
alleviated by the legislature.
I agree with the holding in the case of People v. Randolph, 219 N.E.2d 337 (Ill. 1966), but
I would go further and hold that courts have the inherent power to enter an appropriate order
ensuring that counsel do not suffer an intolerable sacrifice and burden. No particular segment
of our population should be required to bear an unreasonable financial burden that belongs to
society as a whole.
In the event the legislature falls to provide a system of reasonable compensation for
lawyers appointed to defend indigents, this court should invoke its inherent power.
____________
85 Nev. 154, 154 (1969) Hanley v. State
THOMAS BURKE HANLEY, Appellant, v. THE
Nos. 5744 and 5745
March 12, 1969 451 P.2d 852
Case No. 5744: Appeal from order denying petition for writ of habeas corpus; Eighth
Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.
Case No. 5745: Appeal from order denying petition for writ of habeas corpus; Eighth
Judicial District Court, Clark County; John F. Mendoza, Judge.
The lower court denied petitions and petitioner appealed. On consolidated appeal, the
Supreme Court, Mowbray, J., held that evidence received at preliminary hearing established
probable cause to believe that murder had been committed and that petitioner had induced or
hired another to commit the murder but failed to show evident proof or great presumption of
guilt necessary for denial of bail.
Case No. 5744: Affirmed.
Case No. 5745: Remanded to district court with instructions to fix bail.
Harry E. Claiborne and Albert M. Dreyer, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General; and George E. Franklin, Jr., District Attorney, and
Earl Gripentrog, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
If evidence produced at preliminary hearing will establish reasonable inference that accused killed victim
or aided or abetted one who did, whether present or not, or directly or indirectly counseled, encouraged, or
hired another who did so, probable cause to order him to answer charge of murder in district court has been
established. NRS 195.020.
2. Homicide.
Person may be held to answer for inducing or hiring another to commit crime even absent proof that
person hired did the actual killing. NRS 195.020.
3. Habeas Corpus.
Supreme Court's sole function on appeal from denial of habeas corpus, predicated on assertion that there
was insufficient evidence presented at preliminary hearing to establish necessary probable cause to hold
petitioner to answer in district court, is to determine whether all the evidence received at
preliminary hearing, taken together, establishes probable cause to believe that
offense has been committed and that defendant committed it.
determine whether all the evidence received at preliminary hearing, taken together, establishes probable
cause to believe that offense has been committed and that defendant committed it. NRS 171.206,
172.155.
4. Criminal Law.
Evidence received at preliminary hearing taken together established probable cause to believe that
murder had been committed and that petitioner had induced or hired another to commit the murder. NRS
195.020.
5. Bail.
Quantum of proof necessary to establish constitutional and statutory presumption of guilt necessary for
denial of bail is considerably greater than that required to establish probable cause necessary to hold person
answerable for an offense. NRS 178.484; Const. art. 1, 7.
6. Bail.
Record failed to show evident proof that accused had hired and paid two men to murder victim or great
presumption of guilt necessary for denial of bail. NRS 178.484; Const. art. 1, 7.
OPINION
I. CASE NO. 5744
Thomas Burke Hanley has been charged with the murder of Ralph Alsup, and he is
awaiting arraignment in the district court, pending the outcome of this appeal from the district
judge's order denying Hanley's application for a writ of habeas corpus. This petition for
habeas is predicated upon Hanley's assertion that there was insufficient evidence presented at
the preliminary hearing to establish the necessary probable cause to hold him to answer in the
district court.
About 11 o'clock in the evening of January 19, 1966, Alsup returned to his residence in
Clark County after attending a political meeting in Las Vegas. He never reached his house,
because as he entered the gate leading into his yard he was ambushed at rather close range by
an unknown assailant, who felled him with a blast from a shotgun. Mrs. Alsup, who was in
their home preparing to retire for the evening, heard the explosion and rushed to her
husband's aid. Alsup died almost immediately. The sheriff's authorities were called, and they
conducted their usual investigation. The chief medical examiner for the county, Dr. James
Clarke, did an autopsy on Alsup's remains.
NRS 171.206
1
requires the magistrate to hold a defendant to answer if it appears from the
preliminary examination that there is probable cause to believe an offense has been
committed and that the defendant has committed it. Appellant does not question that
sufficient proof of the corpus delecti of the crime, i.e., the fact of death and the criminal
agency of another causing death, has been established. Sefton v. State, 72 Nev. 106, 295 P.2d
385 (1956); State v. Fouquette, 67 Nev. 505, 221 P.2d 404 (1950). The issue presented for
our determination is whether the evidence adduced at the hearing establishes probable
cause to believe Hanley guilty of the offense charged.
Before we turn to consider the evidence for the sole purpose of making that determination,
it would be well to reiterate the guidelines this court laid down in Beasley v. Lamb, 79 Nev.
78, 80, 378 P.2d 524, 525 (1963), where we said:
. . . it is not our function, nor was it the function of the magistrate at the preliminary
hearing, or the district court upon the habeas corpus proceeding, to pass upon the sufficiency
of the evidence to justify conviction. State v. Fuchs, 78 Nev. 63, 368 P.2d 869. Nor do the
words sufficient cause,' [the present statute has substituted probable cause'] as employed in
the statute, require the state to negate all inferences which might excuse or explain the
accused's conduct. Goldblatt v. Harris, 74 Nev. 74, 322 P.2d 902.
[Headnote 1]
If the evidence produced at the preliminary hearing will establish a reasonable inference
that Hanley killed Alsup or aided or abetted one who did, whether present or not, or directly
or indirectly counseled, encouraged, or hired another who did so, probable cause to order him
to answer has been established. NRS 195.020
2
; Beasley v. Limb, supra.
____________________

1
NRS 171.206. Procedure following preliminary examination. If from the evidence it appears to the
magistrate that there is probable cause to believe that an offense has been committed and that the defendant has
committed it, the magistrate shall forthwith hold him to answer in the district court; otherwise the magistrate
shall discharge him. The magistrate shall admit the defendant to bail as provided in this Title. After concluding
the proceeding the magistrate shall transmit forthwith to the clerk of the district court all papers in the
proceeding and any bail taken by him.

2
NRS 195.020. 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
Deputy Sheriff Walter Butt testified that he found footprints of one person starting
approximately 1 mile from Alsup's home which led to a pickup truck parked in Alsup's yard;
that from the tracks made around the truck it appeared the person had been waiting for a
period of time at that location; that the same tracks returned to the point of origin where, from
the markings in the desert, it appeared a vehicle had been parked; that in the vicinity of the
return path parts of a shotgun, i.e., a gun barrel, a stock, and a clip, were found.
Alexander Marathon testified that this shotgun belonged to Hanley. Sheriff's Crime Lab
Commander Lee McCullough identified photographs of the scene of the homicide, and he
testified that, from the physical evidence presented, it was his opinion that Alsup was shot by
a person standing near the right front fender of the pickup truck.
Alexander Marathon testified that he had known Hanley for several years and that from
December 28, 1965, through January 6, 1966, he had lived in Hanley's home in Las Vegas.
He testified regarding a conversation he had with Hanley in Hanley's house shortly after
Christmas 1965, as follows:
Q. (By Mr. Gripentrog) First of all, where did the conversation take place?
A. At Tom's home, 1621 Ogden.
Q. Who was present?
A. Tom was by himself at the time and asked me if I was willing to make some money, if
I was interested in making some money, and I said, Concerning what?'
He said, Well, we have somebody that is a good friend of mine that has to be eliminated.'
And then he went on to tell me that it was Ralph Alsup, Sr., and I told him I wasn't interested
for the simple reason Ralph had always been good to me. I didn't want to get involved in it
because I doI had been in trouble before and I just didn't want nothing to do with it.
Q. That statement was that he wanted to eliminate Ralph Alsup; is that
A. Yes, sir.
Q. Did he mention to you how much money you would stand to make if you eliminated
A. Yes, it was $5,000.
____________________
or otherwise procures another to commit a felony, gross misdemeanor or misdemeanor is a principal, and shall
be proceeded against and punished as such. The fact that the person aided, abetted, counseled, encouraged,
hired, commanded, induced or procured, could not or did not entertain a criminal intent shall not be a defense to
any person aiding, abetting, counseling, encouraging, hiring, commanding, inducing or procuring him.
Marathon identified photos of the other defendants, Carl Black and Norman Call. He
claims that the following conversation occurred in the Hanley home on December 28, 1965,
when he, Hanley, Black, Call, Mary Lou Hanley, Barbara Simons and an Alphonse Bass were
present:
Q. [By Mr. Gripentrog] What was said by Mr. Hanley?
A. Well, as I remember, the conversation started that
Mr. Black started the conversation, said, Tom, we've arranged for a trigger man to take care
of Alsup. All we need is the money and the job will be taken care of.
Q. What did the defendant Hanley say at that time?
A. Well, he said, Okay.'
He said, Do you think you fellows can handle it properly?' And Mr. Black assured him
that the job would be done the proper way.
Mr. Gale: Mr. Black assured'I will move to strike that as being a conclusion of the
witness.
The Court: Is that the statement that was made?
The Witness: Mr. Black said that the job would be done properly.
The Court: That will be stricken.
Q. (By Mr. Gripentrog) What else was said at this time?
A. Well, there was a discussion of money. There was five thousand dollars involved.
They were guaranteed three thousand in advance and two thousand when the job was
completed.
Mr. Gale: I would move They were guaranteed' be stricken as a conclusion of this
witness.
The Court: Only what was said. Is that what was said?
The Witness: Well, he told Tom, Mr. Black, that he would receive three thousand dollars
in front, and after Mr. Alsup was dead he would get the remaining two thousand dollars.
The Court: The other part will be stricken'guaranteed.'
Q. (By Mr. Gripentrog) And what was said next?
A. They wanted to know what type of equipment would be used and at that time they said
a shotgun would be the weapon.
Q. Who said a shotgun would be the weapon?
A. Mr. Tom Hanley.
Q. Mr. Black asked what type of equipment would be used?
A. He was told what type of equipment would be used.
Q. By the defendant Hanley?
A. Yes, sir.
Q. And what else was said?
A. Well, at the time the meeting broke up and they were supposed to meet around the first
of the year to go ahead and discuss the rest of the details.
[Headnote 2]
Appellant concedes that the testimony adduced at the hearing tends to establish that
appellant hired and paid two men to murder the deceased and that the component parts of a
shotgun which belonged to Hanley were found from 1 to 3 days after the murder at varying
distances from a path of footprints leading to and from the scene of the crime. Appellant
urges that this is insufficient to show probable cause that Hanley committed the offense
charged, because the State failed to prove that the gun found was the one used to kill Alsup,
and that there is a total absence of evidence showing that Call or Black or anyone connected
with them shot Alsup. Therefore, the issue we must decide is whether a person may be held to
answer for inducing or hiring another to commit a crime, in the absence of any proof that the
person hired did the actual killing. We conclude that he may be held to answer. In Gray v.
United States, 260 F.2d 483, 484 (D.C.Cir. 1958), the court held: As said in Meredith v.
United States, 4 Cir., 1956, 238 F.2d 535, 542,
conviction of the principal actor is not a prerequisite to conviction of the aider and
abettor. It need only be established that the act constituting the offense was in fact committed
by someone. * * *'
Accord, Colosacco v. United States, 10 Cir., 1952, 196 F.2d 165, 167.
See also Cross v. United States, 354 F.2d 512 (D.C.Cir. 1965); State v. Jones, 7 Nev. 408
(1872); and State v. Cushing, 61 Nev. 132, 120 P.2d 208 (1941).
In Jones, which was a trial, as were the other cited cases, and not a preliminary hearing, the
court said, at 418:
The third instruction was properly rejected because, under the statute of this state, it is not
essential to the conviction of accessories before the fact that the prosecution first prove the
guilt of the principal. It was only necessary to show that a larceny had been committed, and
that the defendants, if they were present, aided and assisted, or if not present, that they
advised or encouraged it.
And again, in Cushing, our court held, at 146: "The holding of our supreme court to that
effect is recognized in 22 C.J.S.,Criminal Law sec.
The holding of our supreme court to that effect is recognized in 22 C.J.S.,Criminal Law
sec. 105 p. 179 wherein it is said in note 59 to the text: In Nevada, under such a statute as is
contemplated by the text [statutes which abolish the distinction between principals and
accessories], while the prosecution must show that a felony has been committed and that the
accused instigated its commission, still it has been held not necessary to prove by whom the
felony was committed.'
. . . While the state might not, in a given case, be able to prove the identity of the
principal offender, that fact should not become a shield to all who may have been concerned
as accessories before the fact. As stated in People v. Mangiapane, 219 Mich. 62, 188 N.W.
401, 402: The effect of our statute is to permit the prosecution of one who aids and abets,
without regard to the conviction or acquittal of one who, under the common law, would have
been called the principal. That is what the statute intended to accomplish in abrogating the
common-law rule.' See People v. Smith, 271 Mich. 553, 260 N.W.911.
And finally, in interpreting the federal statute (similar to ours) which did away with the
distinction between principals and accessories before and after the fact, the court held, in Von
Patzoll v. United States, 163 F.2d 216 (10th Cir. 1947), at 218:
18 U.S.C.A., 550 provides, whoever directly commits any act constituting an offense
defined in any law of the United States, or aids, abets, counsels, commands, induces, or
procures its commission, is a principal.'
This statute does away with the subtle distinctions recognized, with respect to felonies at
common law, between principals and accessories before and at the fact and makes them all
principals, whether the offense is a felony or a misdemeanor.
Conviction of the principal is not a prerequisite to the conviction of the aider and abettor.
And the acquittal of the principal presents no impediment to the trial and conviction of a
person charged with aiding and abetting the commission of the crime. This because one who
aids or abets the commission of a crime is guilty as a principal of a substantive, independent
offense.
The proof must establish that the offense was committed by some one and that the person
charged as an aider and abettor, aided and abetted in its commission. However, it is not
necessary to identify the actual perpetrator of the crime.
not necessary to identify the actual perpetrator of the crime. He may be unknown. (Footnotes
omitted.)
[Headnotes 3, 4]
We have not been asked to pass on the guilt or innocence of the appellant, Hanley. This
will be the duty of the court or the jury before whom Hanley will stand trial. Our sole
function at this juncture is to determine whether all the evidence received at the preliminary
hearing, taken together, establishes probable cause to believe that an offense has been
committed and that the defendant committed it. NRS 172.155. We so conclude, and we
order that the appeal from the order denying appellant's petition for a writ of habeas corpus in
this case be denied.
II. CASE NO. 5745
This appeal has been consolidated with Case No. 5744 above. In this case Hanley filed in
the district court his petition for a writ of habeas corpus seeking bail pending his trial. The
district judge denied the writ and refused bail; hence, this appeal. Article 1, section 7, of the
Constitution of the State of Nevada provides:
Bail; capital offenses. All persons shall be bailable by sufficient sureties; unless for
Capital Offenses when the proof is evident, or the presumption great.
Likewise, the Nevada Legislature in 1967 provided, in NRS 178.484:
Right to bail before conviction.
1. A person arrested for an offense not punishable by death shall be admitted to bail.
2. A person arrested for an offense punishable by death may be admitted to bail unless
the proof is evident or the presumption great by any competent court or magistrate authorized
by law to do so in the exercise of discretion, giving due weight to the evidence and to the
nature and circumstances of the offense.
[Headnote 5]
The quantum of proof necessary to establish the presumption of guilt mentioned in the
Constitution and the statute is considerably greater than that required to establish the probable
cause necessary to hold a person answerable for an offense. As this court said in Howard v.
Sheriff, 83 Nev. 48, 52, 422 P.2d 538, 540 (1967): The evident proof or great presumption
required by the Constitution before bail may be denied one accused of a capital offense,
contemplates more than a mere inference of guilt of some crime {either first degree
murder or a lesser included offense) which may suffice to hold one for trial in the district
court. Cf. Beasley v. Lamb, 79 Nev. 7S
denied one accused of a capital offense, contemplates more than a mere inference of guilt of
some crime (either first degree murder or a lesser included offense) which may suffice to hold
one for trial in the district court. Cf. Beasley v. Lamb, 79 Nev. 78, 378 P.2d 524 (1963).
[Headnote 6]
A review of the record in this case, as set forth in Case No. 5744 above, fails to show the
evident proof or the great presumption of guilt which must be present if bail is to be denied.
We therefore order that this case be remanded to the district court and that Hanley be released
on bail on a reasonable sum which shall be fixed by the district judge.
____________
85 Nev. 162, 162 (1969) Eagle Thrifty v. Hunter Lake P.T.A.
EAGLE THRIFTY DRUGS & MARKETS, INC., Petitioner, v. HUNTER LAKE PARENT
TEACHERS ASSOCIATION, et al., Respondents.
No. 5454
March 13, 1969 451 P.2d 713
Rehearing of appeal.
Suit to enjoin rezoning applicant from pursuing application before city council. The lower
court granted a preliminary injunction, and applicant appealed. On rehearing, the Supreme
Court, Thompson, J., held that where trial court was not entitled to enjoin city from
entertaining zoning applicant's request to review planning commission recommendation that
zoning application be denied board was not entitled to enjoin the applicant from seeking such
review.
Opinion on appeal [84 Nev. 466, 443 P.2d 608] overruled and order of district court
granting a preliminary injunction reversed.
Sidney W. Robinson and Frank Cassas, Jr., of Reno, for Petitioner.
Laurance M. Hyde, Jr., and Jerry Carr Whitehead, of Reno, for Respondents.
1. Zoning.
Zoning is a legislative matter. NRS 278.250, 278.260.
2. Administrative Law and Procedure.
Equity cannot directly interfere with, or in advance restrain, the discretion of an administrative body's
exercise of legislative power.
3. Zoning.
Where city code granted zoning applicant right to seek change of land use after six months following
denial of application by zoning board, code neither limited number of successive applications which might
be presented nor required applicant to show change of circumstances since last denial as precondition to
submitting another application and code permitted unsuccessful applicant to seek city council review, trial
court was not entitled to enjoin city council from entertaining applicant's request to review board's denial of
fourth application. NRS 278.250, 278.260.
4. Zoning.
Where trial court was not entitled to enjoin city from entertaining zoning applicant's request to review
planning commission recommendation that zoning application be denied, board was not entitled to enjoin
the applicant from seeking such review. NRS 278.250, 278.260.
5. Injunction.
Where zoning applicant acted in good faith in making successive unsuccessful requests to planning
commission for rezoning of its land and administrative steps pursued by applicant were not litigation,
trial court was not authorized to enjoin applicant from seeking city council review of denial on theory that
applicant was engaged in vexatious litigation. NRS 278.250, 278.260.
6. Zoning.
Zoning power is one of the tools of government which, in order to be effective, must not be subjected to
judicial interference unless clearly necessary.
OPINION ON REHEARING
On the appeal of this case we held that injunctive relief may be granted to restrain the
making or pursuit of an application for rezoning where such application has repeatedly been
denied on its merits and no change of circumstances has intervened. Eagle Thrifty v. Hunter
Lake P.T.A., 84 Nev. 466, 443 P.2d 608, 610, 611 (1968), two Justices dissenting. We
granted rehearing to reconsider that holding because of our concern that it may unjustifiably
intrude upon the legislative zoning authority of the City of Reno.
The Regional Planning Commission had denied a 1967 application by Eagle Thrifty to
rezone for commercial use about three and one-half acres of land on the northwest corner of
Hunter Lake and Mayberry Drives in Reno, Nevada.
of Hunter Lake and Mayberry Drives in Reno, Nevada. This was the fourth such application
for the rezoning of that property made by Eagle Thrifty, and on each occasion the commission
declined to recommend a zoning change. As authorized by Reno Municipal Code Sec.
16.12.330, Eagle Thrifty sought to have the Reno City Council review the recommendation of
the commission. Its attempt to do so was blocked by court injunction issued at the request of
the Hunter Lake P.T.A. The appeal from the district court's ruling centered upon the propriety
of court intervention in these circumstances, and a divided court upheld court injunctive
relief. Upon further reflection a majority of this court believes that error occurred in so ruling.
[Headnote 1]
1. Zoning is a legislative matter [McKenzie v. Shelly, 77 Nev. 237, 362 P.2d 268 (1961)],
and the legislature has acted. It has authorized the governing body to provide for zoning
districts [NRS 278.250] and to establish the administrative machinery to amend, supplement
and change zoning districts. NRS 278.260. The City of Reno did so and, among other things,
granted one the right to seek a change of land use after six months following a denial of an
application for the same or similar change of land use. Reno Municipal Code Sec. 16.12.320.
All the applicant need do is apply and pay the required fee. The code does not limit the
number of successive applications which may be presented. Neither does the code require the
applicant to show a change of circumstances since the last denial of his application as a
precondition to submitting another one. Finally, the code allows an unsuccessful applicant
before the planning commission to seek City Council review. This is precisely what Eagle
Thrifty did, but council review was frustrated by court intervention and injunction.
[Headnotes 2-4]
2. Judicial intrusion upon the legislative zoning authority of the City is sought to be
sustained on two grounds. Initially, the P.T.A. asserts that the City Council would be
powerless to grant a zoning change absent a change of circumstances, and reasons that it
therefore was proper to preclude council review since such review would be meaningless.
The cases relied upon to support this assertion [Whittle v. Board of Zoning Appeals, 125
A.2d 41 (Md.App. 1956); Holly Development, Inc. v. Board of County Commissioners, 342
P.2d 1032 (Colo.
1959); Marks v. Zoning Board of Review of City of Providence 203 A.2d 761 (R.I. 1964), are
illustrative] concern court review of discretion following the exhaustion of established
administrative or legislative procedures. None suggests the propriety of court intervention to
block the completion of those procedures. In Nevada it is established that equity cannot
directly interfere with, or in advance restrain, the discretion of an administrative body's
exercise of legislative power. Public Service Commission v. Court, 61 Nev. 245, 123 P.2d
237 (1942). This means that a court could not enjoin the City of Reno from entertaining Eagle
Thrifty's request to review the planning commission recommendation. This established
principle may not be avoided by the expedient of directing the injunction to the applicant
instead of the City Council.
[Headnote 5]
The second ground upon which the P.T.A. asks us to sustain court intervention is that
Eagle Thrifty has pursued a course of vexatious conduct and should be denied further access
to the procedures allowed by the code. Our attention is directed to a series of vexatious
litigation cases wherein court relief was made available. Those cases warrant no discussion
since the administrative steps pursued by Eagle Thrifty are not litigation. The order from
which this appeal is taken recognized the good faith of Eagle Thrifty in pursuing its legal
right of review. The district court wrote: In this connection the Court does not cast any
reflection on Eagle Thrifty's various applications hereinthey are authorized by the
ordinance. The fault, if any, lies in the ordinance itself.
[Headnote 6]
3. We recently stated that [T]he zoning power is one of the tools of government which,
in order to be effective, must not be subjected to judicial interference unless clearly
necessary. Coronet Homes, Inc. v. McKenzie, 84 Nev. 250, 256, 439 P.2d 219, 223 (1968).
We perceive no need for court intervention in this case. Although some may believe that the
procedural provisions of the city code do not afford sufficient protection to affected property
owners near the area of the proposed zone change in the circumstances presented by this
record, any correction must come from the City Council. It is not our business to write a new
city ordinance.
Accordingly, we overrule our opinion on appeal, Eagle Thrifty v. Hunter Lake P.T.A., 84
Nev. 466, 443 P.2d 608 {196S), and reverse the order of the district court granting a
preliminary injunction.
(1968), and reverse the order of the district court granting a preliminary injunction.
Zenoff and Batjer, JJ., concur.
Justice Mowbray with whom Chief Justice Collins concurs adheres to the view expressed
in the opinion on appeal.
____________
CHARLES J. GLOSEN and JACK M. CROWN, Appellants,
v. SHERIFF OF WASHOE COUNTY, NEVADA, Respondent.
No. 5753
March 14, 1969 451 P.2d 843
Appeal from order denying petition for writ of habeas corpus. Second Judicial District
Court, Washoe County; John E. Gabrielli, Judge.
The lower court denied petitions and appeals were taken. The Supreme Court, Mowbray,
J., held that testimony of agent, that petitioner had stated that cigarettes which he gave her to
smoke contained marijuana was sufficient, standing alone, to establish probable cause that
illegal dispensing of narcotics had occurred.
Affirmed.
[Rehearing denied April 2, 1969]
J. Rayner Kjeldsen, of Reno, for Appellant Glosen.
Seymour K. Patt, of Reno, for Appellant Crown.
Harvey Dickerson, Attorney General; and William J. Raggio, District Attorney, and Virgil
D. Dutt, Deputy District Attorney, Washoe County, for Respondent.
1. Poisons.
Statute defining sale is broad and thus it was not essential for state to show that petitioner, who was
indicted for illegal sale of marijuana and cocaine, profited from transaction in which he participated as
seller's agent in arranging for transaction initiated by policewoman's request. NRS 453.030.
Testimony of agent, that accused had stated that cigarettes which he gave her to smoke contained
marijuana was sufficient, standing alone, to establish probable cause that illegal
dispensing of narcotics had occurred and to justify holding accused to answer
indictment.
standing alone, to establish probable cause that illegal dispensing of narcotics had occurred and to justify
holding accused to answer indictment. NRS 453.030.
OPINION
Charles J. Glosen and Jack M. Crown were both indicted by the Washoe County Grand
Jury for the illegal sale, on two separate occasions, of narcotics (marijuana and cocaine).
Crown was also indicted on a separate charge of illegally dispensing a narcotic drug. All
offenses charged are felonies. NRS 453.030.
As provided in subsection 2 of NRS 172.155, the appellants filed a petition in the district
court for a writ of habeas corpus on the grounds that the evidence presented to the grand jury
was insufficient to establish probable cause that the offenses had been committed. We affirm
the order of the district court which denied their petition for habeas.
Briefly, the facts are these. A female narcotic agent employed by the Reno City Police met
Crown at his residence on June 24, 1968. During the evening, Crown produced several
cigarettes which he identified as marijuana. He smoked his, according to the agent, but she
butted hers and stuffed them in her shoe. Later that same evening she delivered them to the
Reno Police Department Narcotic Bureau. The agent returned to Crown's residence the
following day and asked Crown if he would secure some marijuana for her. He promised to
do so and made a phone call for that purpose. In the evening of the same day, on a Reno street
corner, the agent and Crown met appellant Glosen, who had the marijuana which the agent
had previously ordered through Crown. The agent gave $20, the price of the marijuana, to
Crown, who handed it to Glosen. Glosen then hand-delivered the marijuana to Crown, who
gave it to the agent. As soon as this transaction was consummated, the agent inquired whether
she could purchase some cocaine. Glosen said he could get her some for another $20. The
agent agreed to the price and handed Crown an additional $20. He gave it to Glosen, who left
for a few moments and then returned with the cocaine. Once again he gave it to Crown, who
handed it to the agent. When asked by a member of the grand jury why she went through the
routine of giving the money to Crown rather than handing it to Glosen, the agent replied,
Well, sir, because I just can't see letting the other person go when I can kill two birds with
one stone."
person go when I can kill two birds with one stone. Such was the testimony of the agent
before the grand jury.
Only two other persons testifiedReno Police Sergeant Tom Benham and Chief Chemist
Lloyd Whalen of the Nevada Food and Drug Laboratory. Benham testified regarding the
custody of the marijuana and cocaine, which the agent delivered to him and he in turn
delivered to Whalen for a chemical analysis. Benham and the narcotic agent identified a mug
shot of Glosen before the grand jury. Whalen confirmed the representations of Glosen and
Crown that the substances received and purchased by the agent were narcotics.
1. The Glosen appeal. Glosen advances the same arguments in challenging the
sufficiency of the evidence in this case as he did in Case No. 5754, Glosen & Pearson v.
Sheriff, 85 Nev. 145, 451 P.2d 841 (1969). It would serve no useful purpose to restate his
arguments, or our reasons for rejecting them, in this opinion.
Glosen has added two arguments which do not appear in the Glosen-Pearson appeal. He
asserts in this appeal that he has been denied his constitutional right to a speedy trial and,
further, that the narcotic agent was biased because she was a policewoman. We find these
additional contentions to be without merit, and we affirm, as to Glosen, the order of the
district court denying the petition for habeas.
[Headnote 1]
2. The Crown appeal. Crown argues that he cannot, as a matter of law, he held to answer
the two charges involving him in the sale of the marijuana and cocaine, because he did not
receive any part of the consideration paid by the agent for the narcotics. This court answered
that argument in Glosen & Pearson v. Sheriff, supra, wherein we said, at 148: This man
[Pearson] also was indicted for the sale of marijuana. So far as we know he did not receive a
profit from the transaction. He did arrange for the sale by Glosen to the policewoman. Our
statute defining sale' is broad. A sale' includes barter, exchange, a gift, or offer therefor, and
each such transaction made by any person, whether as principal, proprietor, agent, servant, or
employee. NRS 453.020(16). Thus, it is not essential for the state to show that Pearson
profited from the transaction. Although his participation was initiated by the policewoman's
request, he acted as Glosen's agent in arranging for the transaction.
[Headnote 2]
Finally, Crown contends that the agent's testimony is insufficient to hold him to answer the
indictment charging him with dispensing narcotics illegally.
dispensing narcotics illegally. Quite the contrary is true. The testimony of the agent that
Crown stated that the cigarettes which he gave her to smoke contained marijuana is sufficient,
standing alone, to establish probable cause that a violation of NRS 453.030 occurred. Glosen
& Pearson v. Sheriff, supra. The district court order denying a petition for habeas is affirmed
as to Crown, also.
____________
85 Nev. 169, 169 (1969) Williams v. State
BILLY WILLIAMS, Appellant, v. THE
No. 5597
March 17, 1969 451 P.2d 848
Appeal from the Second Judicial District Court, Washoe County; John W. Barrett, Judge.
Defendant was convicted in the trial court of robbery, and he appealed. The Supreme
Court, Collins, C. J., held that instructions requested as to absence of criminal responsibility
on ground of lunacy and that lunatics are not capable of committing crimes were properly
denied in absence of contention that defendant was not criminally responsible under proper
test as to whether he had capacity and reason sufficient to enable him to distinguish right
from wrong as to particular act in question and had knowledge and consciousness that act he
was doing was wrong and would deserve punishment.
Affirmed.
Michael V. Roth, of Reno, for Appellant.
Harvey Dickerson, Attorney General; William J. Raggio, District Attorney, and Virgil D.
1. Criminal Law.
Test of criminal responsibility is whether a man has capacity and reason sufficient to enable him to
distinguish right from wrong as to particular act in question and has knowledge and consciousness that act
he is doing is wrong and will deserve punishment and test applies whether alleged absence of criminal
responsibility is attributed to lunacy, idiocy, or insanity.
2. Criminal Law.
Instructions requested as to absence of criminal responsibility on ground of lunacy and that lunatics are
not capable of committing crimes were properly denied in absence of contention that defendant was not
criminally responsible under proper test as to whether he had capacity and reason sufficient to enable him
to distinguish right from wrong as to particular act in question and had knowledge and consciousness that
act he was doing was wrong and would deserve punishment. NRS 193.190, 193.200, 193.210,
194.010.
3. Criminal Law.
Any error in permitting officer to testify he recognized valise found by another officer at scene where
defendant was first stopped on ground that it tended to inject evidence of prior offense was rendered
harmless where on objection and motion of defense counsel testimony was stricken and jury was instructed
to disregard it.
4. Criminal Law.
Doubt as to sanity of a defendant that will require submitting question thereof to a jury is doubt in mind
of trial court rather than counsel or others and determination whether doubt exists rests largely within
discretion of trial judge. NRS 178.405, 178.410.
5. Criminal Law.
Doubt as to sanity of defendant so as to justify submitting question thereof to jury may be suggested to
court or may be inquired into by court on its own motion. NRS 178.405, 178.410.
6. Criminal Law.
If court determines that doubt as to a defendant's sanity exists, court must suspend trial and inquire into
sanity. NRS 178.405, 178.410.
7. Criminal Law.
Evidence supported court's finding that no doubt existed regarding defendant's sanity and supported
court's failure to submit issue of sanity to jury. NRS 178.405, 178.410.
8. Criminal Law.
Testimony that defendant when first stopped and questioned whipped out gun, wounded officer and fled
was admissible at his trial for robbery as indicative of guilty mind and flight could be shown, including the
gunning down of officer.
OPINION
This appeal is from a conviction of robbery and a sentence to life imprisonment for being
an habitual criminal. We affirm the conviction for robbery and the resulting habitual criminal
sentence.
On September 6, 1967, at approximately 8:30 p.m., while Mr. E. F. Loomis, his wife and
two children, were watching television in a bedroom of their home, their attention was
directed to a man standing in the doorway of the bedroom.
television in a bedroom of their home, their attention was directed to a man standing in the
doorway of the bedroom. He had on a black mask and was holding a gun. He ordered the
Loomis family to lie on the floor, and ordered Mr. Loomis to give him some money. Mr.
Loomis retrieved his trousers from a nearby chair and threw them to him. Mr. Loomis was
then ordered to open the safe which was located in the bedroom. This order was complied
with and from the safe the intruder was given several rolls of quarters and one roll of fifty
cent pieces.
The intruder then left and Mr. Loomis called the Reno Police Department, giving them a
description. The intruder was described as a short Negro male, approximately 125 pounds,
wearing baggy clothes and a dark foul-weather cap around his face, with a large hole in it for
the eyes and nose.
Between 8:30 and 8:45 p.m. officers Merel Kennedy and John Flynn received a call from
the police dispatcher that there had been a robbery at the Loomis residence. Shortly thereafter,
they were patrolling the area around the Loomis home in their patrol wagon, when at the
intersection of Silver and Sierra Streets, some four blocks from the Loomis residence, they
observed a short Negro male walking down the street with a valise in his hand. This person
was not dressed in the manner described by Mr. Loomis. The officers called to him,
whereupon he put the valise down and waited for the officers to approach him. Officer Flynn
asked for some identification, and the individual stated that he had none. He was asked where
he was from, and he replied Oakland. As the officer was about to ask a third question, the
suspect jumped to the right and pulled a weapon. Shots were exchanged, and Officer Flynn
was wounded. The suspect fled the scene. Officer Kennedy gave chase but lost him.
The sound of gunfire attracted the attention of Frank Cole, a member of the Washoe
County Sheriff's department. He went to the scene and observed that the suspect in his haste
had left behind the valise he had been carrying. This Officer Cole took into his possession
and inventoried its contents. In the valise were the clothes worn by the individual who robbed
the Loomis residence. It also contained one black and one brown shoe. When appellant was
later arrested, he was found to be wearing one black shoe and one brown shoe.
The appellant, Billy Williams, was arrested by other police officers sometime later when
he was observed walking along the banks of the Truckee River between Sierra and Virginia
Streets. At that point on the river bank the city streets are much higher than the river bank.
much higher than the river bank. Officer Brian Milich had to climb down a tree to get the
appellant. The officer searched appellant, and in his right rear pocket found a neckerchief
containing six dollars worth of quarters and twenty dollars worth of half dollars. Appellant
was pulled with a rope from the river bank. It was subsequently discovered that he had a
bullet wound in his shoulder.
Appellant assigns as error the following points which relate exclusively to the robbery
conviction:
I. Refusal of appellant's offered instructions Nos. I and II concerning unsound mind and
lunacy.
II. Admissibility of Officer Gault's testimony in that it concerns evidence of other crimes.
III. The trial court's failure to order a hearing to determine if, at the time of trial, appellant
was sane.
IV. Admissibility of Officer Flynn's testimony concerning appellant's involvement in the
shooting incident which resulted from questioning of appellant by police officers.
1. Appellant requested, but the lower court refused, the following instructions:
I. Nevada law provides that lunatics, idiots and insane persons are not capable of
committing crimes. It is expressly provided by statute that idiots and lunatics are not of sound
mind. If soundness of mind and legal insanity are synonymous, the express provisions of our
statute exempting idiots and lunatics from criminal responsibility would be superfluous
because they would necessarily be included within the provisions exempting the insane.
II. Idiots, lunatics and insane persons are not capable of committing crimes. This is
because they are not capable of manifesting the mens rea necessary to constitute a criminal
act. A lunatic has been defined as a person of deranged or unsound mind; a person whose
mental facilities are in a condition called lunacy. Lunacy has been defined as any form of
mental unsoundness except idiocy.
There are certain Nevada statutes which bear upon the question of the mental capability of
accused persons to be held responsible for criminal acts. They are: NRS 193.190 which states
that, In every crime or public offense there must exist a union, or joint operation of act and
intention, . . .; NRS 193.200 which states, Intention is manifested by the circumstances
connected with the perpetration of the offense, and the sound mind and discretion of the
person accused. (Emphasis added.)
Appellant contends in the absence of a sound mind there can be no intent and therefore no
crime or public offense.
NRS 193.210 provides that, A person shall be considered of sound mind who is neither
an idiot nor lunatic, nor affected with insanity. . . .
Another Nevada statute defines persons who are capable of committing crime. NRS
194.010 0 provides, All persons are liable to punishment except those belonging to the
following classes:
1. . . .
2. . . .
3. Idiots
4. Lunatics and insane persons.
Appellant does not contend he was insane under the M'Naghten rule at the time of
commission of the robbery. M'Naghten's case is the approved test of insanity in Nevada.
Jackson v. State, 84 Nev. 203, 438 P.2d 795 (1968); Mears v. State, 83 Nev. 3, 422 P.2d 230
(1967); Bean v. State, 81 Nev. 25, 398 P.2d 251 (1965), cert. denied 384 U.S. 1012 (1966).
Appellant contends, however, that the M'Naghten rule does not apply where the defense is
lunacy, and submitted proposed instructions I and II quoted above.
Neither this court nor the legislature has provided a definition of lunacy.
[Headnotes 1, 2]
We are convinced that the rule in M'Naghten's case is the test of criminal responsibility in
the State of Nevada, whether the alleged absence of criminal responsibility is sought to be
attributed to lunacy, idiocy, or insanity. In State v. Lewis, 20 Nev. 333, 351, 22 P. 241, 247
(1889), the court said:
[I]f a man has capacity and reason sufficient to enable him to distinguish right from wrong
as to the particular act in question, and has knowledge and consciousness that the act he is
doing is wrong and will deserve punishment, he is, in the eye of the law, of sound mind and
memory, and should be held criminally responsible for his acts. . . . (Emphasis added.)
That quotation was recently approved by this court in Criswell v. State, 84 Nev. 459, 443
P.2d 552 (1968). Under NRS 193.210, three types of persons can be said to have unsound
minds: (1) idiots; (2) lunatics; and (3) those affected with insanity. We hold M'Naghten's rule
is the proper test in determining criminal responsibility of a defendant alleged to have been
suffering from any of those three conditions at the time of his commission of a crime.
been suffering from any of those three conditions at the time of his commission of a crime.
The instructions requested were therefore legally erroneous and no error occurred in their
refusal.
[Headnote 3]
2. Appellant contends it was prejudicial error for the court to allow Officer Gault of the
San Diego Sheriff's office to testify he recognized the brown valise found by Officer Cole at
the scene where Williams was first stopped, because it tended to inject evidence of a prior
offense. Any error, if it was error, was rendered harmless when, upon objection and motion of
defense counsel, the testimony was stricken and the jury instructed to disregard it.
3. The lower court, at no time during the trial, ordered a hearing pursuant to NRS
178.405, to determine if appellant was sane.
NRS 178.405 reads:
When an indictment or information is called for trial, or upon conviction the defendant is
brought up for judgment, if doubt shall arise as to the sanity of the defendant, the court shall
order the question to be submitted to a jury that must be drawn and selected as in other
cases. (Emphasis added.)
NRS 178.410 reads:
The trial of the indictment or information or the pronouncing of the judgment, as the case
may be, shall be suspended until the question of insanity shall be determined by the verdict of
the jury.
[Headnotes 4-6]
The doubt mentioned in NRS 178.405 means doubt in the mind of the trial court, rather
than counsel or others. People v. Jensen, 275 P.2d 25 (Cal. 1954). A determination whether
doubt exists rests largely within the discretion of the trial judge. Hollander v. State, 82 Nev.
345, 418 P.2d 802 (1966); People v. Aparicio, 241 P.2d 221 (Cal. 1952); People v. Gilberg,
240 P. 1000 (Cal. 1925). This issue may be suggested to the court or it may be inquired into
by the court of its own motion. If the court determines a doubt to exist, it must suspend the
trial and inquire into the sanity of the accused. People v. Vester, 26 P.2d 685 (Cal. 1933); and
see Krause v. Fogliani, 82 Nev. 459, 421 P.2d 949 (1966).
[Headnote 7]
The record demonstrates the court below made that inquiry and thereafter concluded there
was no doubt regarding appellant's sanity.
appellant's sanity. There is substantial evidence to support that conclusion. We see no error in
the court's decision.
4. Appellant contends it was prejudicial error to allow Officer Flynn to testify about the
shooting incident when appellant was stopped for questioning, because it admitted evidence
of a separate and distinct offense than the robbery charge for which he was on trial.
[Headnote 8]
Appellant, when stopped and questioned, whipped out a gun, wounded the officer, and
fled. Evidence of the flight was admissible as indicative of a guilty mind. People v. Hagan, 21
Cal.Rptr. 116 (Cal.App. 1962); People v. Hall, 249 P. 859 (Cal. 1926). All the circumstances
of the flight may be shown, including the gunning down of the officer. People v. Hall, supra;
People v. Weatherford, 178 P.2d 816 (Cal.App. 1947). There was no error in admission of the
testimony.
The conviction of robbery and sentence is affirmed.
____________
85 Nev. 175, 175 (1969) Marcum v. Sheriff
CHARLES P. MARCUM, Appellant, v. SHERIFF,
No. 5749
March 17, 1969 451 P.2d 845
This is an appeal from the denial of a writ of habeas corpus applied for after a preliminary
hearing. Eighth Judicial District Court, Clark County; John P. Mendoza, Judge.
The trial court denied the writ and appeal was taken. The Supreme Court, Batjer, J., held
that magistrate properly foreclosed cross-examination at preliminary examination of state's
witness on issue of entrapment of accused, alleged possessor of narcotics.
Affirmed.
James D. Santini, Public Defender, Clark County, for Appellant.
R. Jones, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Purpose of preliminary examination is to determine whether there is probable cause to believe that an
offense has been committed and that defendant committed it. NRS 171.206.
2. Criminal Law.
A preliminary hearing is not a trial. NRS 171.206.
3. Criminal Law.
Entrapment is an affirmative defense to be resolved at trial rather than at preliminary hearing. NRS
171.206.
4. Criminal Law.
Magistrate properly foreclosed cross-examination at preliminary examination of state's witness on issue
of entrapment of accused, alleged possessor of narcotics. NRS 171.206.
5. Criminal Law.
A preliminary examination is not a substitute for trial. NRS 171.206.
6. Criminal Law.
At preliminary examination the state must offer some competent evidence whether public offense has
been committed and that accused committed it so as to convince magistrate that trial should be held. NRS
171.206.
7. Criminal Law.
Issue of innocence or guilt is not before magistrate in preliminary examination. NRS 171.206.
8. Criminal Law.
Full and complete exploration of all facets of criminal case is reserved for trial and is not the function of a
preliminary examination.
9. Criminal Law.
Greater restriction upon examination of witnesses is permissible in preliminary examination stage of
criminal process than at the trial. NRS 171.206.
10. Criminal Law.
At preliminary examination the credibility of witness is one of matters to be weighed by magistrate.
NRS 171.206.
11. Criminal Law.
Record in preliminary examination established that limitation on his cross-examination of police
detective did not interfere with defendant's right to impeach the state's witness. NRS 171.206.
OPINION
At the preliminary hearing the appellant was held to answer upon the charge of possession
and sale of narcotics. The only evidence offered by the state of Nevada was the testimony of
Charles R. Foxx, a detective in the Las Vegas police department.
Foxx testified that on February 1, 1968, he accompanied an unidentified informer (the
detective was unable to remember the informer's name) to a residence in Las Vegas where the
informer stated he could make a contact for Foxx to buy narcotics. On this initial trip the
detective remained in the car and the informer entered the building alone. The following day
detective Foxx was introduced to the appellant, at which time the detective represented
himself as a panderer and told the appellant that he needed a large quantity of marijuana for
the girls that worked for him. The appellant advised Foxx that he did not have any LSD or
marijuana at that time but that he would have some available at a later date. Foxx testified
that he made several trips to the appellant's home and on one occasion showed him $1,000
that he had previously obtained from a cashier at the Las Vegas Club.
At about 6:00 p.m., on February 15, 1968, detective Foxx went to the appellant's
apartment. Prior to his entrance into the building fellow officers of the Las Vegas police
department had surrounded the building and were ready to enter at the detective's signal.
When the detective entered the apartment there were three kilos of marijuana on the table
which a Tommy Joe Phelps, present at the time, had brought in from Los Angeles. Detective
Foxx bought the marijuana and some pills from appellant and paid him $300 with three 100
dollar bills. The serial numbers on two of the $100 bills had been recorded earlier.
After the appellant took possession of the money, detective Foxx threw an ashtray through
the window as a signal to his fellow officers, drew his revolver, and announced that all were
under arrest. Immediately thereafter the waiting police officers entered the apartment and
assisted the detective.
The appellant does not request that the case be dismissed, but only that the matter be
remanded for a continuation of the preliminary hearing to allow him a further opportunity to
cross-examine the state's witness.
It is contended that error was committed by the magistrate when he restricted the
appellant's cross-examination of the state's witness on the issues of entrapment and
impeachment. We disagree and affirm the judgment of the trial court.
Specifically, the appellant contends that the following restrictions on cross-examination
denied him the right to perfect his defense at the preliminary hearing:
1. The court prohibited further questions on the unknown identity of the informant who
took Foxx to the home of the appellant.
2. The court stopped inquiry on how much money Foxx told the appellant he had with
which to make purchases.
3. The court stopped the inquiry concerning the detective's affection for the appellant and
the appellant's affection for the detective.
4. The court prohibited any questions on how Foxx simulated smoking marijuana
cigarettes during one of his visits to the appellant's residence prior to the sale.
5. The court stopped inquiry on how Foxx was able to obtain money from the cashier at
the Las Vegas Club and why this source was used instead of obtaining the money from the
coffers of the Las Vegas police department.
6. The court would not let the defense find out whether or not the detective had given the
appellant a portrait of the zigzag man, a symbol of marijuana smoking.
[Headnotes 1, 2]
NRS 171.206 requires the magistrate to forthwith hold a defendant to answer in the district
court if it appears from the evidence produced at the preliminary examination That there is
probable cause to believe an offense has been committed and the defendant has committed
it. Beasley v. Lamb, 79 Nev. 78, 378 P.2d 524 (1963). A preliminary hearing is not a trial.
State v. Holt, 47 Nev. 233, 219 P. 557 (1923); Overton v. State, 78 Nev. 198, 370 P.2d 677
(1962).
[Headnotes 3, 4]
The appellant argues that the state's evidence raised the probability of entrapment and that
he should have been permitted a far wider latitude of cross-examination to explore and
establish this defense. This argument must be rejected because entrapment is an affirmative
defense to be resolved at trial. Wyatt v. State, 77 Nev. 490, 367 P.2d 104 (1961); State v.
Fuchs, 78 Nev. 63, 368 P.2d 869 (1962). The line of cross-examination pursued by the
appellant appears to be immaterial and irrelevant to that defense and it was permissible for
the magistrate to foreclose further inquiry.
[Headnotes 5-9]
A preliminary examination is not a substitute for trial. State v. Fuchs, supra. Its purpose is
to determine whether a public offense has been committed and whether there is sufficient
cause to believe that the accused committed it. The state must offer some competent evidence
on those points to convince the magistrate that a trial should be held. The issue of innocence
or guilt is not before the magistrate. That function is constitutionally placed elsewhere. The
full and complete exploration of all facets of the case is reserved for trial and is not the
function of a preliminary examination.
of all facets of the case is reserved for trial and is not the function of a preliminary
examination. It follows that a greater restriction upon the examination of witnesses is
permissible at the preliminary examination stage of the criminal process than at the trial.
The appellant further contends that the limitation placed on his cross-examination
interfered with his right to impeach the state's witness. We find no merit in this contention.
[Headnotes 10, 11]
At a preliminary examination the credibility of a witness is one of the matters to be
weighed by the magistrate. Here the appellant's right to test the credibility of the state's
witness in an attempt to impeach him was in no way wrongfully curtailed. As a matter of fact
the questions asked by counsel for the appellant for the purpose of impeachment were
extremely repetitious.
The judgment of the trial court is affirmed and the matter is remanded for further
proceedings.
____________
85 Nev. 179, 179 (1969) Sanders v. Sheriff
ERNEST VICTOR SANDERS, Appellant, v. SHERIFF,
WASHOE COUNTY, STATE OF NEVADA, Respondent.
No. 5780
March 13, 1969 451 P.2d 718
Appeal from a denial of petition for Writ of Habeas Corpus in the Second Judicial District
Court, Washoe County; Thomas O. Craven, Judge.
The lower court denied the petition for pretrial writ of habeas corpus, and the petitioner
appealed. The Supreme Court, Collins, C. J., held that where person is arrested for cause
without warrant, which arrest is not challenged, a formal complaint and warrant issued
thereafter, not signed by person with personal knowledge of the offense, which state the
essential elements of the crime give the magistrate jurisdiction to hold a preliminary hearing.
Affirmed.
Richards & Arrascada, of Reno, for Appellant.
1. Criminal Law.
Under statute providing that when person arrested without warrant is brought before magistrate,
complaint shall be filed forthwith, the complaint is intended solely to put defendant on formal written
notice of charge he must defend: it need not show probable cause for arrest on its face and may be drawn in
words of statute so long as essential elements of crime are stated; it must be made under oath before a
magistrate. NRS 171.102, 171.178, subd.2.
2. Criminal Law.
Where person is arrested for cause without warrant, which arrest is not challenged, a formal complaint
and warrant issued thereafter, not signed by person with personal knowledge of the offense, which state the
essential elements of the crime give the magistrate jurisdiction to hold a preliminary hearing. NRS
171.102, 171.178, subd. 2.
OPINION
This appeal is from denial of a pretrial writ of habeas corpus. We affirm the ruling.
About midnight on June 18, 1968, appellant approached Eddith Grisham, credit manager
at Harolds Club in Reno, Nevada, seeking to cash what apparently was a payroll check in the
amount of $196.40, drawn on Campbell Office Machine Company. The check was made
payable to Arthur P. Kenville, and upon Mrs. Grisham's request the appellant endorsed that
name and a Santa Clara, California, telephone number on the back of the check. Appellant
presented several credit cards for identification. Mrs. Grisham checked with the telephone
operator in Santa Clara and was informed that there was no telephone listing under the name
given. One of the credit cards presented to Mrs. Grisham was a telephone credit card. She
dialed the number on that card and reached Mrs. Arthur Kenville, who informed Mrs.
Grisham that her husband was not in Reno, that he did not work for Campbell Office
Machine Company, and that several months prior a number of credit cards had been stolen
from her purse. Mrs. Grisham then called the police department, and when Officer George A.
Randall arrived she informed him of the information she had obtained. Officer Randall
testified that he took appellant to the police station where he called Mrs.
the police station where he called Mrs. Grisham by telephone to fill in the details of the
situation and immediately thereafter he placed appellant under arrest, without a warrant being
issued.
On July 2, 1968, a formal, written criminal complaint was filed by Officer Raymond D.
Oster charging appellant with uttering a forged check and with forgery, and on that same day
a warrant was issued for appellant's arrest. A preliminary hearing was held August 12, 1968,
whereupon the magistrate found that there was probable cause to hold appellant to answer the
charge of forgery.
On September 24, 1968, a Petition for Writ of Habeas Corpus was filed. The writ was
issued and a hearing was held on the Petition on October 3, 1968. At the hearing on the
Petition, it was disclosed that Officer Oster had no personal knowledge of the case; he did not
participate in the arrest of appellant nor did he investigate the case. He signed the complaint
on the basis of the police report which he had in his possession at that time. Officer Oster was
the liaison officer between the police department and the district attorney's office.
Appellant contends the issue to be:
Can a complaint signed under oath by an officer or other person not familiar with the
facts of the case confer jurisdiction in the Justice Court to hold a preliminary examination and
bind the defendant over for trial on the charge of forgery as alleged?
The issue for us to decide is this:
Where a person is arrested for cause without a warrant, which arrest is not challenged, may
he complain that a formal complaint and warrant issued thereafter, not signed by a person
with personal knowledge of the offense, which states the essential elements of the crime,
deprives the magistrate of jurisdiction to hold a preliminary hearing?
[Headnote 1]
First, we must set at rest what is not at issue in this case. The original arrest without a
warrant is not challenged. There is no question of search or seizure or suppression of
evidence as a result of a claimed unlawful arrest.
NRS 171.178(2) provides:
When a person arrested without a warrant is brought before a magistrate, a complaint
shall be filed forthwith. Nothing is said in that statute about the issuance of a warrant of
arrest. None is needed because the defendant is then lawfully under arrest. Under these
circumstances, the complaint is intended solely to put the defendant on formal written
notice of the charge he must defend.
solely to put the defendant on formal written notice of the charge he must defend. It need not
show probable cause for arrest on its face and may simply be drawn in the words of the
statute so long as the essential elements of the crime are stated. It must be made under oath
before a magistrate. NRS 171.102.
This rule of law is well explained in Byrnes v. United States, 327 F.2d 825 (9th Cir. 1964),
which holds:
The complaint need only charge the crime, and need not show probable cause, on its
face, to give jurisdiction to the United States Commissioner. This is not like an affidavit for a
warrant of arrest. That must show probable cause. Giordenello v. United States, 1958, 357
U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503. Upon arraignment, if there has been no indictment,
the Commissioner must by preliminary examination (unless it is waived) satisfy himself there
is probable cause to believe that a crime has been committed and the person arrested has
committed the crime. Fed. R. Crim. P.5(c). But the face of the complaint gives him
jurisdiction if it follows the statutory language and if it relates the essential facts constituting
the offense charged.
The record in this case shows that is exactly what happened when Officer Oster signed a
complaint under oath on July 2, 1968, based upon knowledge obtained from police reports,
charging appellant with uttering a forged check and with forgery.
[Headnote 2]
The justice court thus had jurisdiction to hold a preliminary hearing upon that formal
written complaint, and when it found probable cause to believe appellant committed the
crimes charged, to hold him to answer in the district court.
The ruling of the lower court is affirmed.
____________
FREDDIE LEE WATKINS, Appellant, v. THE
No. 5587
March 19, 1969 451 P.2d 718
Appeal from judgment of the Eighth Judicial District Court, Clark County; William P.
Compton, Judge.
Affirmed.
OPINION
Per Curiam:
Appellant was convicted by a jury of second degree burglary. This appeal was taken to
satisfy the requirement of Anders v. California, 386 U.S. 738 (1967). Counsel, as an active
advocate, set forth all those points from the record below which arguably supported the
appeal. We have also carefully reviewed the record and find but two minor points of harmless
error. See our discussion in Watkins v. State, 85 Nev. 102, 450 P.2d 795 (1969).
Accordingly, the conviction is sustained.
____________
85 Nev. 183, 183 (1969) Di Bari v. Sheriff
NICHOLAS DI BARI, Appellant, v. SHERIFF,
No. 5768
March 19, 1969 451 P.2d 847
Appeal from denial of pretrial writ of habeas corpus, Second Judicial District Court,
Washoe County; Emile J. Gezelin, Judge.
The lower court entered an order denying writ and the petitioner appealed. The Supreme
Court, Collins, C. J., held that failure of police officer, who had signed written complaint
charging defendant with robbery without personal knowledge of commission of offense,
to state by affidavit or sworn testimony before magistrate the source and reliability of
information about crime, did not establish lack of probable cause for the warrantless
arrest of defendant by another police officer, and magistrate did have jurisdiction to hold
preliminary hearing.
charging defendant with robbery without personal knowledge of commission of offense, to
state by affidavit or sworn testimony before magistrate the source and reliability of
information about crime, did not establish lack of probable cause for the warrantless arrest of
defendant by another police officer, and magistrate did have jurisdiction to hold preliminary
hearing.
Affirmed.
Richards and Arrascada, of Reno, for Appellant.
Arrest; Criminal Law.
Failure of police officer, who had signed written complaint charging defendant with robbery without
personal knowledge of commission of offense, to state by affidavit or sworn testimony before magistrate
the source and reliability of information about crime did not establish lack of probable cause for the
warrantless arrest of defendant by another police officer, and magistrate had jurisdiction to hold
preliminary hearing. NRS 171.106.
OPINION
This is an appeal from denial of a pretrial writ of habeas corpus. We affirm that order.
Di Bari was arrested without a warrant by the Reno police department on August 16, 1968
for the crime of robbery. On August 22, a formal written complaint was filed in the justice
court, charging him with that robbery. The record does not show whether a warrant was
issued on this complaint. The complaint was signed, under oath, before a magistrate by
Officer Aldon Eustace, who was not the arresting officer and whose knowledge about the
offense was related to him by a superior and from police reports he read. No other affidavits
or other sworn testimony relating to probable cause was submitted to the magistrate as
authorized in NRS 171.106.
A preliminary hearing was held upon the complaint, and appellant was bound over to the
district court for trial.
Appellant contends that because the officer who signed the complaint had no personal
knowledge of the commission of the offense, nor stated by affidavit or sworn testimony
before the magistrate with whom he filed the written complaint the source and reliability of
his information about the crime, there was no probable cause for the arrest, and the
magistrate acquired no jurisdiction to hold a preliminary hearing.
source and reliability of his information about the crime, there was no probable cause for the
arrest, and the magistrate acquired no jurisdiction to hold a preliminary hearing.
This same issue was urged to us upon identical facts in Sanders v. Sheriff, 85 Nev. 179,
451 P.2d 718 (1969). The decision on that case is decisive of this issue.
The order of the court below is affirmed.
____________
85 Nev. 185, 185 (1969) Richfield Oil Corp. v. Harbor Ins. Co.
RICHFIED OIL CORPORATION, a Foreign Corporation, and HUMPHREY, INC.,
Appellants, v. HARBOR INSURANCE COMPANY, and HARTFORD ACCIDENT AND
INDEMNITY COMPANY, Respondents.
No. 5556
March 31, 1969 452 P.2d 462
Appeal from a judgment of the Eighth Judicial District Court, Clark County; William P.
Compton, Judge.
Action by fire insurer of fruit transporter against oil corporation and corporation's agent to
recover for damages sustained when transporter's building was destroyed by fire. Insurer of
construction company's truck which was in process of being loaded with oil when fire
occurred was named as third-party defendant. The trial court found for insurer of fruit
transporter and for third-party defendant insurer, and appeal was taken. The Supreme Court,
Wilkes, D. J., held that where agent, who was showered by petroleum product after he
removed bung from drum, immediately ran to gasoline engine and extended finger to engine
at which time whoof occurred, after which agent and immediate area were engulfed in
flames, and where fire destroyed fruit transporter's building, oil corporation and its agent were
negligent, and that where drum and gasoline engine were wholly within control of agent and
where no act on part of driver of truck occurred other than that he was there, waiting for
loading to commence, existence of flammable vapors and ignition thereof constituted
intervening cause wholly disassociated with loading of truck and as such were too remote to
constitute loading within construction company's policy.
Affirmed.
Elwin C. Leavitt, of Las Vegas, for Appellants.
Foley Brothers, of Las Vegas, for Respondent Harbor Insurance Company.
Singleton, DeLanoy, Jemison & Reid, and George W. Johnson, of Las Vegas, for
Respondent Hartford Accident and Indemnity Company.
Court will not substitute its judgment for that of trial judge as to weight given to evidence in cases tried
without jury.
2. Explosives.
Where defendant oil corporation's agent, who was showered by petroleum product after he removed bung
from drum, immediately ran to gasoline engine used to power transfer pump and extended finger to engine
at which time whoof occurred, after which agent and immediate area were engulfed in flames, and where
fire destroyed plaintiff fruit transporter's building, oil corporation and its agent were negligent.
3. Insurance.
Loading and unloading clause in truck policy is extension of term use as contained in phrase arising
out of use of automobile.
4. Insurance.
In construing loading and unloading clause of insurance contract, intention of parties should control and
terms of clause should be taken and understood in their plain, ordinary and popular sense.
5. Insurance.
In determining intent of parties to truck policy containing loading and unloading clause, court should
consider all salient facts, including existence or lack thereof of causal connection or some reasonable
connection between loading or unloading and accident or injury; who had control of goods which were
subject to loading or unloading; whether loading or unloading was active factor in resulting accident or
injury; whether any independent factor or intervening cause occurred and closeness or remoteness of
connection, if such connection be found between truck and accident.
If no findings of fact were included as regards third-party defendant, nor were any requested, court may
presume that trial court found necessary facts to support its judgment.
7. Insurance.
Where defendant oil corporation's agent, who was showered by petroleum product after he removed bung
from drum, immediately ran to gasoline engine used to power transfer pump and extended finger to engine
at which time whoof occurred, after which agent and immediate area were engulfed in flames and
plaintiff fruit transporter's building was destroyed, and where drum and gasoline engine were wholly within
control of defendant oil corporation's agent and where no act on part of driver of
construction company's truck occurred other than that he was there waiting for
loading to commence, "loading" clause of construction company's policy did not cover
fire.
oil corporation's agent and where no act on part of driver of construction company's truck occurred other
than that he was there waiting for loading to commence, loading clause of construction company's policy
did not cover fire.
In absence of express findings, law implies findings in favor of judgment.
Findings are not jurisdictional and absence of findings may be disregarded by appellate court if record is
so clear that court does not need their aid.
Where criterion used in determining damages was not objected to at trial, criterion used could not be
considered on appeal.
Issues first raised on appeal cannot be considered.
OPINION
By the Court, Wilkes, D. J.:
Prior to the event upon which this action is based Respondent Harbor Insurance Company
had issued a fire insurance policy to Pacific Fruit Express Company covering Pacific's
building in Las Vegas, Nevada. After the building burned Harbor paid Pacific $5,708.06 for
the loss. Harbor was subrogated to the rights of Pacific by an agreement and instituted this
action against Richfield Oil corporation, Fred Humphrey and others alleging negligence.
Richfield and Humphrey answered Harbor and also filed a Third Party Complaint wherein
Hartford Accident and Indemnity Company was named as Third Party Defendant. Hartford
answered this Complaint. Richfield and Humphrey asserted that if liability was established
the responsibility to respond in damages was that of Hartford, and not Harbor.
On August 17, 1964, George Evans, an employee of Bilt-Rite Construction Company,
while acting within the scope of his employment, drove a pick-up truck alongside the loading
dock at Richfield's Bulk Plant in Las Vegas, Nevada, for the purpose of making a purchase of
a petroleum product. The plant was being operated by Humphrey, Inc., a commission agent of
Richfield. Mr. Bernard Spink, the plant manager of Humphrey, was there to serve customers
at the time and was in charge of the bulk plant. He set about to take care of Bilt-Rite's needs.
Spink commenced the process of transferring a petroleum product from a gasoline drum
on the dock into another such barrel situated in the truck.
barrel situated in the truck. As he removed the bung from the drum on the dock the product
spewed up and out of the drum showering Spink and the area. Sprink immediately ran along
the dock to a small gasoline powered engine and was seen to extend his finger to the engine at
which time a whoof occurred. Spink and the immediate area were engulfed in flames which
soon spread. Richfield's plant was destroyed and Pacific's building on some adjacent ground
was also burned.
The gasoline powered engine was used to power a transfer pump which in turn was used to
transfer liquid petroleum products from drum to drum at the bulk plant. The small engine was
stopped by pressing a metal strap to the spark plug as is commonly the case with gasoline
powered lawn mowers. When this is done a spark is or may be produced.
Appellants complain that Harbor has not met the burden of establishing negligence on the
part of Appellants. We feel that this assignment of error is without merit.
[Headnote 1]
The Court has repeatedly held that where a question of fact is left to the determination of
the trial court, the appellate court will not interfere with the trial court's determination if there
is substantial evidence to support it. Austin v. Smith, 73 Nev. 155, 311 P.2d 971 (1957);
Cram v. Durston, 68 Nev. 503, 237 P.2d 209 (1951); Fialkoff v. Nevil, 80 Nev. 232, 391 P.2d
740 (1964); Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962); Foster v. Bank of
America, 77 Nev. 365, 365 P.2d 313 (1961). Nor in cases tried without a jury will the
Supreme Court substitute its judgment for that of the trial judge as to the weight given to the
evidence. Gersenhorn v. Stutz, 72 Nev. 293, 304 P.2d 395 (1956).
[Headnote 2]
In this case there was evidence that the bulk plant was a flammable area; that the gasoline
engine is a spark producing device; that a spark producing device used in a flammable area
can cause ignition at any time; that the use of a portable gasoline driven transfer pump in a
flammable area is not an accepted procedure; that the pump was stopped by pressing a piece
of metal on top of the spark plug which generated a spark; that upon the petroleum product
spewing out of the drum Appellant's agent Bernard Spink was seen to immediately run to the
gasoline driven engine and extend his finger to the same at which time there occurred a
whoof resulting in the area becoming engulfed in flames; that a spark is being generated in
a gasoline engine at all times and is capable of producing a spark at any time which can ignite
vapors. This is but a part of the total evidence.
but a part of the total evidence. The trial court's finding of negligence is supported by
substantial evidence. We will not disturb this finding.
Appellants next contend that they are not liable in this case for the reason that Hartford is
primarily liable under The loading and unloading clause of its policy of automobile insurance
1
issued to Bilt-Rite Construction Company and which provided coverage for the pick-up
truck.
Two doctrines have evolved concerning the construction to be given the phrases arising
out of the . . . use and loading and unloading. Wagman v. American Fidelity & Casualty
Company, 109 N.E.2d 592 (N.Y.App. 1952).
By the more narrow construction, referred to as the coming to rest doctrine, unloading
has been held to embrace only the operation of taking the goods from the vehicle to a place of
rest out of the vehicle. Loading would embrace only the operation of taking the goods from
a place of rest to the place of rest within or on the vehicle. Stammer v. Kitzmiller, 276 N.W.
629 (Wisc. 1937); American Casualty Co. v. Fisher, 23 S.E.2d 395, 144 A.L.R. 533 (Ga.
1942).
The majority of the courts have adopted a broader construction and have held that the
phrases in question comprehend not only the immediate transfer of the goods but also that any
occurrence during, or arising out of the process is covered. Raffel v. Travelers Indemnity Co.,
106 A.2d 716 (Conn. 1954); American Auto. Ins. Co. v. Master Bldg. Supply & Lbr. Co., 179
F.Supp. 699 (D.C.Md. 1959); Spurlock v. Boyce-Harvey Machinery, Inc., 90 So.2d 417
(La.App. 1956); Allstate Ins. Co. v. Valdez, 190 F.Supp. 893 (D.C. Mich. 1961); Wagman v.
American Fidelity & Casualty Company, supra; August A. Busch & Co. v. Liberty Mut. Ins.
Co., 158 N.E.2d 351 (Mass. 1959); see also Annot., 95 A.L.R.2d 1114, 1134.
Whether adopting one of the specific theories described above, or speaking to the
individual circumstances of an accident or injury, the decisions in this area almost universally
refer, at least implicitly, to the need for some causal relationship between the unloading
process and an accident or injury before coverage under a policy exists.
____________________

1
COVERAGE CPROPERTY DAMAGE LIABILITYAUTOMOBILE: To pay on behalf of the
insured all sums which the insured shall become legally obligated to pay as damages because of injury to or
destruction of property, including the loss of use thereof, caused by accident and arising out of the ownership,
maintenance or use of any automobile. (Emphasis added.)
3. DEFINITIONS: (e) Use: Use of an automobile includes the loading and unloading thereof.
before coverage under a policy exists. American Auto. Ins. Co. v. American Fidelity & Cas.
Co., 235 P.2d 645 (Cal.App. 1951); Raffel v. Travelers Indemnity Co., 106 A.2d 716 (Conn.
1954); Nichols & Co. v. Travelers Ins. Co., 179 N.E. 2d 593 (Mass. 1962); see also, Annot.,
95 A.L.R.2d 1114, 1146.
When these decisions are examined closely it can be seen that the causal relation
requirement is actually only another means of, or a part of, any interpretation of the scope of
coverage since it means some connection must exist between the accident or injury and some
use, more specifically the loading or unloading as the case may be, of the insured
vehicle. Johnson, Drake & Piper, Inc. v. Liberty Mutual Insurance Co., 258 F.Supp. 603
(D.C.Minn. 1966).
Thus, while a causal relation rule or test may appear simpler and more precise than the
wide confusion and divergence generated by the choice between the variations of the coming
to rest and complete operation rules, the decisions employing or emphasizing this factor
have generally merely found another term to define besides loading or unloading.
Probably the recent emphasis on the causal relation factor results from a desire to avoid the
inconsistency in the case law as regards loading-unloading clauses. Unfortunately, the
product of these attempts has been an equally wide divergence among the authorities as to
what constitutes a causal relation on a sufficient causal relation, i.e., those jurisdictions
wishing to establish broad coverage under loading-unloading clauses require little in the
way of causal relation and those jurisdictions favoring a narrow scope of coverage seek more
definite causal relation. Johnson, Drake & Piper, Inc. v. Liberty Mutual Insurance Co., supra.
Even though the cases favoring a narrow scope of coverage find such coverage only if the
loading or unloading is the efficient and predominating cause of the accident or injury or is
an active factor in causing the loss or there is absent some independent factor or
intervening cause wholly disassociated with and remote from the use of the truck it is
generally conceded that the issue of causal relation is not one of proximate cause as in tort
law, or whether the vehicle caused the accident or injury, but one in the field of contract
law, i.e., coverage under the wording of an insurance policy. St. Paul Mercury Ins. Co. v.
Huitt, 336 F.2d 37 (6th Cir. 1964); Travelers Ins. Co. v. Employers Cas. Co., 380 S.W.2d 610
(Tex. 1964); Johnson, Drake & Piper, Inc. v. Liberty Mutual Insurance Co., supra.
[Headnotes 3, 4]
It thus appears to this court that the loading and unloading clause is a phrase of
extension of the term use as contained in the phrase arising out of the . . . use of any
automobile. The problem is that of construing the language of the insurance contract. In so
construing such a contract the intention of the parties should control and the terms of the
clause should be taken and understood in their plain, ordinary and popular sense. Allstate Ins.
Co. v. Valdez, supra; State Automobile & Casualty Under. v. Casualty Under., Inc., 124
N.W.2d 185 (Minn. 1963); Holland v. Crummer Corp., 78 Nev. 1, 368 P.2d 63 (1962); Silver
Dollar Club v. Cosgriff Neon, 80 Nev. 108, 389 P.2d 923 (1964).
[Headnote 5]
In determining the intent of the parties a court should consider all the salient facts,
including for example: (1) The existence or lack thereof of a causal connection or some
reasonable connection between the loading or unloading and the accident or injury; (2) who
had control of the goods which were the subject of the loading or unloading; (3) whether the
loading or unloading was an active factor in the resulting accident or injury; (4) did any
independent factor or intervening cause occur; and, (5) the closeness or remoteness of the
connection, if such connection be found, between the truck and the accident.
[Headnotes 6, 7]
In the instant case the petroleum product spewing from the drum lacks causal connection
with the loading of the truck and even if this were doubtful certainly the act of Appellant's
agent in turning off the gasoline pump motor and the consequent spark and ignition is devoid
of causal connection. The drum containing the explosive product and the gasoline motor
which was the source of ignition were wholly within the control of the Appellant's agent
Bernard Spink and not the truck driver. The most that can be said of the truck and its driver
were that they were waiting for the loading to commence. No act on the part of the driver
occurred other than that he was there. The existence of flammable vapors and the ignition
thereof constituted an intervening cause wholly disassociated with the loading of the truck
and as such were too remote from the loading to be said to be within the contemplation of the
contracting parties.
[Headnotes 8, 9]
The trial court's findings of fact related to the issues existing between the original parties
and no findings of fact are included as regards the Third Party Defendant, Hartford, nor
was any requested.
between the original parties and no findings of fact are included as regards the Third Party
Defendant, Hartford, nor was any requested. Under these circumstances this court may
presume that the trial court found the necessary facts to support its judgment. On the material
matters relating to the Third Party Defendant there is substantial evidence to support its
contentions and the judgment of the court. In the absence of express findings, the law implies
findings in favor of the judgment. Chisholm v. Redfield, 75 Nev. 502, 508, 347 P.2d 523
(1959); Edwards v. Jones, 49 Nev. 342, 352, 246 P. 688 (1926); Moore v. Rochester W. M.
Co., 42 Nev. 164, 179, 174 P. 1017 (1918). Findings are not jurisdictional and the absence of
findings may be disregarded by the appellate court if the record is so clear that the court does
not need their aid. Hurwitz v. Hurwitz, 136 F.2d 796 (D.C.Cir. 1943); United States v.
Pendergrast, 241 F.2d 687 (4th Cir. 1957); Asch v. Housing & Redevelop. Authority of St.
Paul, 97 N.W.2d 656 (Minn. 1959); Graham v. United States, 243 F.2d 919 (9th Cir. 1957);
Merrill v. Merrill, 362 P.2d 887 (Idaho 1961); Janzen v. Goos, 302 F.2d 421 (8th Cir. 1962).
[Headnotes 10, 11]
Lastly appellant contends that the method used in determining damages was erroneous.
Evidence was presented and received relative to the cost of repairs which would be necessary
to restore the building to its former condition less depreciation. This was the only evidence
offered at the trial.
We are not at all convinced that the court erred in this regard. Many courts in insurance
cases favor this method as the test for arriving at the actual cash value of a building. Burkett
v. Georgia Home Ins. Co., 58 S.W. 848 (Tenn. 1900); see also, Annot., 61 A.L.R.2d 706.
In any event appellant offered no evidence in opposition and the objections made to
respondents proof of damages were immateriality, lack of foundation, lack of reasonableness
and that there was no showing that the building was restored. No objection was made to the
criterion used.
This court has consistently refused to review issues first raised on appeal. Karns v. State
Bank & T. Co., 31 Nev. 170, 101 P. 564 (1909); State v. Jukich, 49 Nev. 217, 242 P. 590
(1926); Kelley v. State, 76 Nev. 65, 348 P.2d 966 (1960); State v. Shaddock, 75 Nev. 392,
344 P.2d 191 (1959).
The judgments of the district court are hereby affirmed.
____________
85 Nev. 193, 193 (1969) All Nite Garage v. A.A.A. Towing, Inc.
ALL NITE GARAGE, INC., Appellant, v. A.A.A.
TOWING, INC., of Reno, Respondent.
No. 5639
April 2, 1969 452 P.2d 902
Appeal from a judgment allowing damages and attorney fees. Second Judicial District
Court, Washoe County; Emile J. Gezelin, Judge.
Proceeding on a motion by owner of truck which had been attached against attaching
creditor for damages for loss of use. The trial court entered a judgment in favor of the truck
owner and the attaching creditor appealed. The Supreme Court, Batjer, J., held, inter alia, that
creditor corporation, whose counsel knew on date it caused attachment of tow truck which
debtor had sold to purchaser that purchaser claimed ownership of truck but apparently relying
on misinterpretation of law caused tow truck to continue to be held for 23 more days, was
liable under statute to purchaser for damages caused by loss of use of tow truck.
Affirmed.
Daniel J. Olguin, and J. Rayner Kjeldsen, of Reno, for Appellant.
Robert L. Schouweiler, of Reno, for Respondent.
1. Attachment.
Liability of corporation, which caused property to be attached and filed a third-party undertaking, to
owner of property was not only contractual, but mandatory by virtue of statute, and wrongful attachment
was not a condition precedent to recovery of damages by owner. NRS 31.070, subds. 1, 2.
2. Attachment.
Only if corporation, causing tow truck to be attached by sheriff and filing a third-party undertaking
pursuant to statute after which tow truck was retained by sheriff until trial court ordered its release to legal
owner thereof, had been able to show a bar by estoppel would legal owner be precluded from recovery of
damages under statute. NRS 31.070.
3. Attachment.
Creditor corporation, whose counsel knew on date it caused attachment of tow truck which debtor had
sold to purchaser that purchaser claimed ownership of truck but apparently relying on misinterpretation of
law caused tow truck to continue to be held for 23 more days, was liable on the undertaking to purchaser
for damages caused by loss of use of tow truck. NRS 31.070.
4. Automobiles.
Under statute, purchaser of tow truck from debtor corporation had 60 days from date of purchase of tow
truck, which creditor of seller caused to be attached before expiration of such period, to
make application for transfer of registration before license plates had to be
surrendered.
of seller caused to be attached before expiration of such period, to make application for transfer of
registration before license plates had to be surrendered. NRS 482.399, subd. 4.
5. Attachment.
Evidence in action by purchaser of tow truck against creditor corporation for damages for the attachment
thereof by creditor corporation sustained finding that purchaser had been authorized by State of Nevada
Department of Motor Vehicles to operate the tow truck, purchased from debtor corporation, without
re-registration and free of penalty until executed title forms had been obtained from seller. NRS
482.415.
6. Corporations.
Corporation was not required to file statutory notice of doing business under fictitious or assumed name.
NRS 602.080, subd. 1.
7. Fraudulent Conveyances.
Business of towing disabled or abandoned automobiles was an enterprise of service and not an enterprise
whose principal business was the sale of merchandise from stocks, and therefore sale of tow truck was not
within provisions of Uniform Commercial Code-Bulk Transfers. NRS 104.6102, subd. 3.
Sale of tow truck by debtor corporation, engaged in garage business, to corporation also engaged in
towing business was not made in connection with a bulk transfer of inventory and transfer was not a
violation of Uniform Commercial Code-Bulk Transfers. NRS 104.6102, subd. 2.
9. Attachment.
Purchaser of debtor's tow truck claiming ownership of tow truck which had been attached by creditor was
not required to prove malice or want of probable cause before being entitled to recover damages from
attaching creditor, which had filed a third-party undertaking, for loss of use of truck during period it was
held by sheriff before court ordered truck to be released. NRS 31.070.
10. Attachment.
Owner of truck which creditor corporation caused to be attached proved to a reasonable certainty that it
was entitled to recover on third-party undertaking in the amount of $973.82 for loss of use of truck for 23
days together with attorney fees in the amount of $750 together with interest and costs. NRS 31.070.
OPINION
On June 1, 1967, the respondent filed its articles of incorporation with the Secretary of
State of the State of Nevada, and entered into an agreement with Hershel Roaden individually
and as the president of Marsh Tow Service, Inc., a Nevada corporation, doing business as
Roaden's Garage and Body Shop, hereinafter referred to as Marsh Towing Service, for the
purchase of certain equipment, including a 1962 GMC tow truck.
truck. The respondent also purchased the name Roaden's Garage and Body Shop, and its use
for a period of five years.
On June 9, 1967, the appellant filed a complaint alleging that Marsh Towing Service was
indebted to it in the amount of $1,235, together with attorney fees. Prior to that date Kevin T.
Shyne, the president of the respondent corporation had contacted the appellant and advised
one of its officers that the respondent had bought certain assets from Marsh Towing
Service. On the strength of an affidavit of attachment filed with the complaint a writ of
attachment was issued and delivered to the sheriff. That writ was returned on June 20, 1967,
entirely unsatisfied. In the meantime, counsel for the respondent notified counsel for the
appellant that his client had purchased equipment from Marsh Towing Service and would
proceed with a counteraction if an attempt was made to attach any of the purchased
equipment. He also advised counsel for the appellant that he held $1,000 from Hershel
Roaden, and offered that amount as full settlement of appellant's claim. Counsel for the
appellant acknowledged receipt of the letter of June 19, 1967, and rejected the $1,000 offer of
settlement.
On June 23, 1967, the appellant caused another writ of attachment to be issued, and on
July 5, 1967, the sheriff attached the 1962 GMC tow truck. The respondent, through its
president, filed a verified claim to possession of the truck. Pursuant to the provisions of NRS
31.070(1) (2),
1
the appellant, through its president, furnished a third-party undertaking and
the tow truck was retained by the sheriff until after a hearing was held on July 27, 1967,
at which time the trial court released it to the respondent as legal owner.
____________________

1
NRS 31.070. 1. If the property levied on is claimed by a third person as his property by a written claim
verified by his oath or that of his agent, setting out his right to the possession thereof, and served upon the
sheriff, the sheriff must release the property if the plaintiff, or the person in whose favor the writ of attachment
runs, fails within 5 days after written demand to give the sheriff an undertaking executed by at least two good
and sufficient sureties in a sum equal to double the value of the property levied on. If such undertaking be given,
the sheriff shall hold the property. The sheriff, however, shall not be liable for damages to any such third person
for the taking or keeping of such property if no claim is filed by any such third party.
2. Such undertaking shall be made in favor of and shall indemnify such third person against loss, liability,
damages, costs and counsel fees by reason of such seizing, taking, withholding or sale of such property by the
sheriff. By entering into such an undertaking the sureties thereunder submit themselves to the jurisdiction of the
court and irrevocably appoint the clerk of the court as agent upon whom any papers affecting liability on the
undertaking may be served. Liability on such undertaking may be enforced on motion to the court without the
necessity of an independent action. The motion and such reasonable notice of the motion as the court prescribes
may be served on the clerk of the court, who shall forthwith mail copies to the sureties if their addresses are
known.
and the tow truck was retained by the sheriff until after a hearing was held on July 27, 1967,
at which time the trial court released it to the respondent as legal owner.
By motion, pursuant to NRS 31.070(2), respondent moved against the appellant for
damages and attorney fees. On April 11, 1968, the trial court entered its findings of fact,
conclusions of law and judgment and awarded the respondent damages in the amount of
$973.82, and attorney fees in the amount of $750, together with interest and costs.
It is from that judgment that this appeal is taken upon the grounds that the respondent had
unclean hands and should have been estopped from recovering damages and fees because
of its violations of the laws in connection with the transfer of ownership and use of the 1962
GMC tow truck, and in particular: (1) That the respondent was in violation of the laws of the
State of Nevada requiring the registration of motor vehicles after transfer of ownership; (2)
that respondent violated the statutory requirement of filing notice of doing business under a
fictitious or assumed name; and (3) that the conveyance of ownership from Marsh Towing
Service, doing business as Roaden's Garage and Body Shop, to the respondent, was in
violation of the Uniform Commercial Code.
Although the trial court found that the actions of the appellant in causing the tow truck to
be attached were wrongful, it nevertheless found that the respondent's right to recover was
predicated on NRS 31.070. In Cooper v. Liebert, 81 Nev. 341, 402 P.2d 989 (1965), this
court said: We hold that NRS 31.070 is a complete and valid remedy to third persons whose
property has been attached, that the remedy therein provided is exclusive . . . . The
third-party undertaking, furnished pursuant to NRS 31.070 was executed by the appellant as a
principal. Had the third-party undertaking not been posted with the sheriff it would have been
mandatory for him to have released the tow truck pursuant to the provisions of NRS 31.070.
In the undertaking, the appellant unconditionally agreed to indemnify the respondent against
loss, liability, damages, costs and counsel fees, sustained by reason of the seizing, taking and
withholding of the tow truck in an amount not to exceed the sum of $7,353.40.
[Headnotes 1, 2]
The appellant's liability growing out of the third-party undertaking was not only
contractual, but it was mandatory under the statute. A wrongful attachment was not a
condition precedent to recovery by the respondent. Only if the appellant had been able to
show a bar by estoppel would the respondent have been precluded from recovery.
been precluded from recovery. In an attempt to show grounds for estoppel the appellant
argues that it was misled by acts of the respondent which it contends were unlawful, and that
because of such misleading behavior, the 1962 GMC tow truck was attached on July 5, 1967,
and held until July 28, 1967, when it was released by order of the trial court.
1. The trial court found that the respondent was not in violation of the law on July 5,
1967, and that the appellant was not misled concerning the ownership of the tow truck on the
date of the attachment. We agree.
[Headnote 3]
The appellant simply misinterpreted the meaning of the pertinent statutes and case law,
and in reliance on those misinterpretations caused the tow truck to be held from July 5, 1967
until July 28, 1967. The respondent was damaged when those misinterpretations resulted in
the loss of the use of its equipment. The appellant proceeded at its peril. NRS 31.070 was
enacted to protect a third-party from this type of conduct.
In the case of Peterson v. Wiesner, 62 Nev. 184, 146 P.2d 789 (1944), this court said: If
appellant thought the property belonged to the Worthys, that would not relieve him of liability
for causing it to be attached.
The letter dated June 19, 1967 from respondent's counsel to appellant's counsel, was
cautionary in nature, and indicated the respondent's ownership of the tow truck. By his
affidavit, counsel for the appellant admitted that on July 5, 1967, he knew that the respondent
claimed ownership of the tow truck. Nevertheless, even after a formal third-party claim was
filed, the appellant apparently relying upon a misinterpretation of the law caused the tow
truck to continue to be held.
In stating the rule of law applicable to a situation similar to the one before us, this court
has held that where an officer has attached the property of a stranger, the attachment plaintiff
is liable to the owner of the property not only when he directs the wrongful levy but also
when he subsequently adopts or ratifies the officer's acts, independently of any bond, and
jointly with the attaching officer. McIntosh v. Knox, 40 Nev. 403, 165 P. 337 (1917).
2. Next the appellant claims that the respondent should be estopped from recovery
because it had violated NRS 482.205, NRS 482.399, NRS 482.400, NRS 482.410 and NRS
482.415. With the exception of NRS 482.399(4) and NRS 482.415, the statutes cited by the
appellant are completely inapplicable.
[Headnote 4]
NRS 482.399(4) allows a transferee of ownership in a motor vehicle up to 60 days to make
application for a transfer of registration before the license plates are to be surrendered. Here
the attachment and the release of the tow truck had both occurred before the lapse of 60 days
from June 1, 1967.
[Headnote 5]
The trial court, in its findings of fact, specifically found that the respondent was authorized
by the State of Nevada Department of Motor Vehicles to operate the tow truck without
re-registration and free of penalty until executed title forms were obtained from Marsh
Towing Service. There is evidence in the record to substantiate the trial court's finding and no
evidence to contradict it. NRS 482.415. We do not feel justified in holding that the
conclusion thus reached was reversible error.
[Headnote 6]
3. The appellant's contention that the respondent violated pertinent provisions of NRS
Chapter 602, which requires filing notice of doing business under a fictitious or assumed
name is answered by reading NRS 602.080(1)
2
which exempts corporations from the
provisions of that chapter.
[Headnote 7]
4. The business of towing disabled or abandoned vehicles is an enterprise of service and
not an enterprise whose principal business is the sale of merchandise from stocks, and is
therefore not within the provisions of the Uniform Commercial Code-Bulk Transfers. NRS
104.6102(3).
3

The Uniform Commercial Code-Bulk Transfers does not include any specific phrase
concerning the business of towing disabled or abandoned vehicles, however, the comments of
the drafters of the law indicate that no enterprise whose principal business is service rather
than the sale of merchandise is covered by the bulk transfers article. Nichols v. Acers
Company, 415 S.W.2d 683 (Texas 1967).
[Headnote 8]
The 1962 GMC tow truck is equipment (NRS 104.9109(2)), and its transfer to the
respondent was not made in connection with a bulk transfer of inventory {NRS
104.6102{2)).4 Clearly the transfer of ownership of the tow truck from Marsh Towing
Service to the respondent was not a violation of Article 6, Uniform Commercial Code-Bulk
Transfers.
____________________

2
NRS 602.080(1). The provisions of this chapter shall not apply to corporations.

3
NRS 104.6102(3). The enterprises subject to this article are all those whose principal business is the sale
of merchandise from stock, including those who manufacture what they sell.
in connection with a bulk transfer of inventory (NRS 104.6102(2)).
4
Clearly the transfer of
ownership of the tow truck from Marsh Towing Service to the respondent was not a violation
of Article 6, Uniform Commercial Code-Bulk Transfers.
[Headnote 9]
The appellant's contention that the respondent came to court with unclean hands and
should have been estopped to assert his claim for damages fails completely. That contention
was based on the respondent's alleged violation of existing laws and we have found
absolutely no such violations. Here the respondent was not a defendant in the original
complaint, but a third-party claiming that it had been deprived the possession and use of its
tow truck. The respondent need not prove malice or want of probable cause before being
entitled to recover damages. Peterson v. Weisner, supra.
The appellant was strictly obligated within the requirements of NRS 31.070 and the
third-party undertaking to indemnify the respondent, and because the appellant failed to
establish any bar by estoppel the entry of judgment against it for damages, fees, interest and
costs was proper.
[Headnote 10]
To justify the judgment the respondent was obligated to prove not only the fact of damage
but the amount. This the respondent did to a reasonable certainty. The amount of the damage
was not arrived at by mere conjecture but through substantial evidence.
The appellant's assignments of error are without merit.
The judgment of the trial court is affirmed with costs.
Collins C. J., Zenoff, Mowbray, and Thompson, JJ., concur.
____________________

4
NRS 104.6102(2). A transfer of a substantial part of the equipment (NRS 104.9109) of such an enterprise
is a bulk transfer if it is made in connection with a bulk transfer of inventory, but not otherwise.
____________
85 Nev. 200, 200 (1969) City of No. Las Vegas v. Cluff
CITY OF NORTH LAS VEGAS, NEVADA, a Municipal Corporation, WILLIAM L.
TAYLOR, Mayor, C. R. CLELAND, JOHN E. MYERS, JACK R. PETITTI and WENDELL
G. WAITE, Councilmen, Appellants, v. GERALD CLUFF, VIRGIL BENDIX, EVERETT
WALLACE, LOU TABAT and WILLIAM TURNER, Individually and as Members of a
Petitioners' Committee, Respondents.
No. 5824
April 2, 1969 452 P.2d 461
Appeal from a declaratory judgment. Eighth Judicial District Court, Clark County; Roscoe
H. Wilkes, Judge.
Declaratory judgment action seeking determination of validity of proposed ordinance. The
lower court ordered that proposed ordinance be submitted to city voters and appeal was taken.
The Supreme Court, Zenoff, J., held that where parties were not at odds and no one was
refusing to place proposed ordinance on ballot, validity of ordinance, which would provide
minimum wages and fringe benefits and maximum hours for city's firemen, and which city
residents had proposed to submit to city voters, could not be ruled on in advance of its
enactment.
Reversed.
Jeffrey Ian Shaner, North Las Vegas City Attorney, for Appellants.
I. R. Ashleman, of Las Vegas, for Respondents.
Sidney R. Whitmore, Las Vegas City Attorney, as Amicus Curiae.
Where parties to declaratory judgment action were not at odds and no one was refusing to place proposed
ordinance on ballot, validity of ordinance, which would provide minimum wages and fringe benefits and
maximum hours for city's firemen, and which city residents had proposed to submit to city voters, could not
be ruled on in advance of its enactment. Const. art. 6, 4.
2. Action.
Supreme Court is confined to controversies in the true sense and parties must be adverse and issues ripe
for determination.
Supreme Court does not have constitutional permission to render advisory opinions. Const. art. 6, 4.
4. Mandamus.
If city residents had requested writ of mandamus to order submission to city voters of proposed
ordinance, Supreme Court would have had controversy subject to adjudication.
Supreme Court will not entertain declaratory action with respect to effect and validity of statute in
advance of its enactment.
OPINION
Respondents, residents of the City of North Las Vegas, initiated a petition to submit a
proposed ordinance to the voters of North Las Vegas. The ordinance would provide minimum
wages and fringe benefits and maximum hours for the city's firemen and was to be retroactive
to November 1, 1968 as to the wages. All procedural requirements for initiating the petition
were met. The city and respondents sought by a declaratory judgment action a determination
of the proposed ordinance's validity.
The district court ordered that the proposal be submitted to the people thus ruling
impliedly that it was valid, although the proposal has not yet been submitted to the voters.
[Headnote 1]
The question here is whether or not the validity of a proposed legislative act can be ruled
upon in advance of its enactment. The answer is that it cannot.
[Headnotes 2-4]
This court is confined to controversies in the true sense. The parties must be adverse and
the issues ripe for determination. Kress v. Corey, 65 Nev. 1, 189 P.2d 352 (1948). We do not
have constitutional permission to render advisory opinions. Nev. Const. art. 6, 4. No court
to our knowledge has ever held that a declaratory judgment regarding the validity of a
legislative act can be declared before the statute's enactment. The parties here are not at odds
and no one is refusing to place the proposed ordinance on the ballot. We are not asked to
grant a writ of mandamus to order the submission of the proposal. If such a request had been
made, we would have had a controversy subject to adjudication. State v. City of Reno, 36
Nev. 334, 136 P. 110 (1913); cf. Caine v. Robbins, 61 Nev. 416, 131 P.2d 516 (1942). It is
much like asking a declaration that the government has no power to enact legislation that may
be under consideration but has not yet shaped up into an enactment.
up into an enactment. Public Serv. Comm'n v. Wycoff Co., 344 U.S. 237, 245 (1952).
[Headnote 5]
It is well-settled that the court will not entertain a declaratory action with respect to the
effect and validity of a statute in advance of its enactment. Hodgman v. City of Taunton, 80
N.E.2d 31 (Mass. 1948); Anderson v. Byrne, 242 N.W. 687 (N.D. 1932); Drockton v.
Cuyahoga County, 240 N.E.2d 896 (Com. Pleas Ohio 1968); 2 W. Anderson, Actions for
Declaratory Judgments 621 at 1415 (2d ed. 1951).
This opinion is restricted to proposed legislative acts exclusive of proposed constitutional
amendments. Insofar as the latter are concerned, we have ruled only that the requirements of
form and procedure must be met. Lundberg v. Koontz, 82 Nev. 360, 418 P.2d 808 (1966).
The district court erroneously entered a declaratory judgment. We reverse.
____________
85 Nev. 202, 202 (1969) Matusik v. Large
ANDREW L. MATUSIK, Appellant, v. A. O. LARGE
and BILLIE PEARL LARGE, Respondents.
No. 5619
April 3, 1969 452 P.2d 457
Appeal from judgment of the First Judicial District Court, Churchill County; Richard L.
Waters, Jr., Judge.
Suit by judgment to creditor to set aside sale of well-drilling rig as conveyance made to
defraud creditors. The trial court rendered judgment in favor of buyers, and judgment creditor
appealed. The Supreme Court, Mowbray, J., held that where seller had advertised rig for sale
in monthly publication for $15,500 but received only firm offer of $8,000, disparity between
true value of rig transferred and $6,100 paid was not so great as to shock conscience and
strike understanding at once with conviction that such transfer could never have been made in
good faith and thus sale was not fraudulent as to judgment creditor of seller.
Affirmed.
Daniel R. Walsh, of Carson City, for Appellant.
Roland W. Belanger, of Lovelock, for Respondents.
Creditor who relies on Uniform Fraudulent Conveyance Act to show constructive fraud necessary to set
aside conveyance bears burden of proof both with respect to insolvency of vendor existing at time or
resulting from conveyance and with respect to absence or inadequacy of consideration. NRS 112.050.
2. Witnesses.
Deadman statute did not preclude admission, in suit by judgment creditor to set aside sale of
well-drilling rig as conveyance made to defraud creditors, of testimony of deceased judgment debtor
himself as preserved by court reporter in transcript of deceased's testimony given during judgment debtor
examination. NRS 48.010.
3. Evidence.
Declarations of third persons are admissible against party wherever privity of estate exists between
declarant and the party, with term privity of estate generally denoting succession in rights.
4. Evidence.
Whenever party claims under, or in, interest or right of another, declarations of such other person
pertaining to subject of claim are admissible against him.
Exclusion, in judgment creditor's action to set aside sale on grounds that it was conveyance made to
defraud deceased seller's creditors, of seller's sworn testimony given at judgment debtor examination for
limited purpose of establishing his insolvency at time of sale of truck-mounted well-drilling rig, though
error, did not affect judgment in favor of buyers in that finding of insolvency at time of transfer was not
sufficient to set aside sale if fair consideration was given by buyer. NRS 112.050.
Satisfaction of antecedent debt due buyer and assumption of debts comprising encumbrances were fair
consideration necessary to sustain validity of judgment debtor's sale of truck-mounted well-drilling rig.
NRS 112.040.
Assumption of liability or debt of vendor by vendee may be considered when determining whether
consideration paid was fair or whether conveyance was fraudulent.
Where seller had advertised truck-mounted well-drilling rig for sale in monthly publication for $15,500
but received only firm offer of $8,000, disparity between true value of rig sold and $6,100 paid was not so
great as to shock conscience and strike understanding at once with conviction that transfer could never
have been made in good faith, and thus sale was not fraudulent as to judgment
creditor of seller.
have been made in good faith, and thus sale was not fraudulent as to judgment creditor of seller. NRS
112.040, 112.050.
OPINION
The principal issue presented for our consideration on this appeal is whether the trial court
erred in refusing to set aside a sale of a truck-mounted well-drilling rig purchased by the
respondents, A. O. Large and Billie Pearl Large, from C. C. Davidson, now deceased. The
appellant, Andrew L. Matusik, claims that the sale was a conveyance of Davidson's assets
made to defraud his creditors.
1. The Matusik-Davidson Litigation.
In 1961, Matusik sued Davidson in California and received a judgment in the sum of
$28,038.76. The judgment was only partially satisfied; so Matusik sued Davidson on the
California judgment here in Nevada in 1962. When he commenced the Nevada action,
Matusik attached Davidson's well-drilling rig, the subject of this case. Davidson moved to
have the rig released. Matusik did not resist the motion, and the district judge ordered the rig
returned to Davidson. Davidson sold the rig to A. O. Large in April 1964. In September 1964,
Matusik obtained a Nevada judgment against Davidson in the principal amount of
$16,038.76, representing the balance due on the California judgment. A writ of execution was
issued and returned unsatisfied by the sheriff. In January 1965, Matusik's counsel examined
Davidson as a judgment debtor. NRS 21.270; NRCP 69(a). The examination revealed that
Davidson was penniless and that he had sold his rig and equipment to A. O. Large. Davidson
died on January 26, 1965.
2. The Matusik-Large Litigation.
Matusik sued A. O. Large and Davidson in September 1965, approximately 8 months after
he learned of the purchase by Large of Davidson's rig, asking the court to set aside the sale on
the grounds that it was a conveyance made to defraud Davidson's creditors. When Matusik
learned that Davidson was deceased, he dismissed the action against him and, upon counsels'
stipulation, added Billie Pearl Large as a party defendant. The Matusik-Large case was heard
in March 1966 before the court sitting without a jury, and judgment was entered in favor of
the defendants, from which adverse ruling Matusik has appeared to this court.
3. Burden of Proof.
In 1931, Nevada adopted the Uniform Fraudulent Conveyance Act. NRS 112.050 defines a
fraudulent conveyance thus:
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.
[Headnote 1]
A creditor such as the appellant in this case who relies on this statute to show the
constructive fraud necessary to set aside a conveyance bears the burden of proof both with
respect to insolvency of the vendor existing at the time or resulting from the conveyance and
with respect to the absence or inadequacy of consideration. Neubauer v. Cloutier, 122
N.W.2d 623 (Minn. 1963).
4. Insolvency.
Appellant offered during the trial, as Exhibit H, the transcript of Davidson's testimony
which Davidson gave during his judgment debtor examination in January 1965. It was offered
to establish Davidson's insolvency at the time of or resulting from the sale of the rig to Large.
It was rejected by the trial judge for two reasons: (1) The dead man statute, NRS 48.010,
1
precluded its admission; (2) Large had no opportunity to cross-examine Davidson when he
was examined by Matusik's counsel, and therefor Large could not be bound by the testimony.
Clearly, the dead man statute is not applicable in this case. Our court has on numerous
occasions stated the reason for the rule. In Tallman v. First Nat'l Bank, 66 Nev. 248, 256, 208
P.2d 302, 305 (1949), this court said:
The reason for the rule is well stated in Bright v. Virginia & Gold Hill Water Co., 9 Cir.,
270 F. 410, 412, as follows:
The whole object of the Code provision is to place the living and the dead upon terms of
perfect equality, and, the dead not being able to testify, the living shall not.' [Headnote 2]
[Headnote 2]
____________________

1
NRS 48.010. All persons capable of perception and communication may be witnesses; when witnesses
incompetent.
1. All persons, without exception, otherwise than as specified in this chapter, who, having organs of sense,
can perceive, and perceiving can make known their perceptions to others, may be witnesses in any action or
proceeding in any court of the state. Facts which, by the common law, would cause the exclusion of witnesses,
may still be shown for the purpose of affecting their credibility. No person shall be allowed to testify:
(a) When the other party to the transaction is dead.
[Headnote 2]
And, again, in discussing the application of the rule, the court said in Hough v. Reserve
Gold Mining Co., 55 Nev. 375, 386, 35 P.2d 742, 744 (1934): While the rule of the statute,
which aims at equality, is salutary in a general way, it sometimes operates harshly in
particular cases by preventing a party from proving his case. A statute of this character should
be construed so as not to exclude testimony unless clearly inhibited by its terms. In other
words, it ought to be construed in view of the mischief it might cause. Since the testimony
sought to be introduced was the testimony of the decedent himself as it was preserved by the
court reporter, the dead man statute was not applicable.
[Headnotes 3-5]
Normally, in a judgment debtor examination, the only parties present are the debtor and
the creditor, and the creditor examines the debtor with the sole design of adducing
information regarding the debtor's assets which might be available to satisfy the obligation
due the creditor. Other partiessuch as, in this case, an earlier vendee of the debtorare not
present. Davidson testified at the time of his examination that he had $15.30 and was living
on his social security check. His testimony regarding the sale of the rig to Large was to the
effect that the rig comprised the only asset he had at the time of the sale. The declarations of a
third person are admissible against a party wherever privity of estate exists between the
declarant and the party, the term privity of estate generally denoting in this respect a
succession in rights. Thus, whenever a party claims under, or in, the interest or right of
another, the declarations of such other person pertaining to the subject of the claim are
admissible against him. We conclude, therefore, that Davidson's sworn testimony given at his
judgment debtor examination was admissible for the limited purpose of establishing his
insolvency at the time of the sale of the rig. However, the trial court's ruling does not affect
the court's judgment, for the reason that a finding of insolvency at the time of the vendor's
transfer is not sufficient to set aside the sale if fair consideration was given by the vendee.
The Supreme Court of Minnesota, in construing conveyances by an insolvent under the
Uniform Fraudulent Conveyance Act, has said in Johnson v. O'Brien, 144 N.W.2d 720, 722
(Minn. 1966):
What we said in Thompson v. Schiek, 171 Minn. 284, 287, 213 N.W. 911, 912, applies
with equal force in the instant case: " 'Payment of an honest debt is not fraudulent under
the general statutes against fraudulent conveyances although it operates as a preference,
the rule being that a preference by an insolvent debtor of one of his creditors can be
avoided only by appropriate proceedings under the bankruptcy law and is not open to
attack in an action brought by another creditor.'"
Payment of an honest debt is not fraudulent under the general statutes against fraudulent
conveyances although it operates as a preference, the rule being that a preference by an
insolvent debtor of one of his creditors can be avoided only by appropriate proceedings under
the bankruptcy law and is not open to attack in an action brought by another creditor.'
See also Nicklaus v. Peoples Bank & Trust Co., 258 F.Supp. 482 (E.D. Ark. 1965);
Geisert v. Corriveau, 140 F.Supp. 29 (E.D. Mich. 1956); Workman v. Bryce, 310 P.2d 228
(Wash. 1957).
5. Fair Consideration.
Large had loaned money to Davidson on prior occasions, which loans Davidson had
partially repaid. In April 1964, Davidson owed Large $1,600. The consideration paid by
Large for the rig was approximately $6,100. Large agreed to pay an encumbrance due on the
rig and another one due on Davidson's automobile, totaling $4,074, plus $426 cash to
Davidson.
[Headnote 6]
Appellant argues that the satisfaction of the antecedent debt due Large and the assumption
of the debts comprising the encumbrances may not be considered as part of the fair
consideration which is necessary to sustain the validity of the sale. We do not agree. NRS
112.040
2
defines fair consideration as including the satisfaction of an antecedent debt. The
record clearly establishes that the debt due Large was a valid and existing one. Davidson had
made previous payments to Large on the obligation.
The court commented in Cole v. Commissioner of Internal Revenue, 297 F.2d 174, 175
(8th Cir. 1961): In Bangs Milling Co. v. Burns, 152 Mo. 350, 53 S.W. 923, 930, the
Supreme Court of Missouri said:
. . . The sole purpose and object of the statute on the subject of fraudulent conveyances
are to secure the appropriation of the debtor's property to the payment of his debtsnot all of
his debts, however, but such part thereof as he can and prefers to pay; else all preferences
would be prohibited; and when, therefor, the result of any given conveyance is to appropriate
the property conveyed, at a fair valuation, to the payment of an honest indebtedness, or a part
thereof, it cannot fall within the condemnation of the statute, for, as said above, what the
law directly sanctions it will not by indirection condemn.
____________________

2
NRS 112.040. Fair consideration. Fair consideration is given for property, or obligation,
1. When in exchange for such property, or obligation, as a fair equivalent therefor, and in good faith,
property is conveyed or an antecedent debt is satisfied. . . .
fall within the condemnation of the statute, for, as said above, what the law directly sanctions
it will not by indirection condemn. So long as the entire property conveyed is subjected to the
payment of some honest debt of the grantor, the conveyance is honest and lawful; so long as
nothing is taken from the creditors of the grantor, the transaction cannot be fraudulent against
them; and, so long as the property is subject to the payment of an honest debt, it cannot be
said to be withdrawn from the creditor of the grantor. . . .'
See, also: Wall v. Breedy, 161 Mo. 625, 642, 61 S.W. 864, 866; Citizens' Bank of Hayti
v. McElvain, 280 Mo. 505, 219 S.W. 75; Burston v. Fennewald, 222 Mo.App. 128, 2 S.W.2d
824, 828; Friedel v. Bailey, 329 Mo. 22, 44 S.W.2d 9, 15; Allison v. Mildred (Mo.), 307
S.W.2d 447, 456.
See also Carraco Oil Co. v. Roberts, 397 P.2d 126 (Okla. 1964).
[Headnote 7]
It is equally well established that the assumption of a liability or debt of the vendor by the
vendee may be considered when determining whether the consideration paid was fair. The
court in Commercial Nat'l Bank v. McCandlish, 23 F.2d 986, 988 (D.C.Cir. 1928), held:
The assumption of a liability at the request of the promisor is a valuable consideration, as,
for example, a guaranty of the promisor's debt. . . .' 15 C.J. 320.
The issue then narrows down to a determination of whether the total consideration paid,
approximately $6,100, was so far below the actual value of the property conveyed that it
failed to meet the test of fair consideration. In this regard a good standard or test was
recently enunciated by the Montana Supreme Court in White v. Nollmeyer, 443 P.2d 873,
883 (Mont. 1968):
On the issue of fair consideration for the transfers, the test to be applied is whether the
disparity between the true value of the property transferred and the price paid is so great as to
shock the conscience and strike the understanding at once with the conviction that such
transfer never could have been made in good faith.
[Headnote 8]
The record shows that Large did advertise the rig for sale in a monthly publication for
$15,500. However, the only firm offer he received was $8,000, and that was on terms. At the
time of trial, Large still had the rig in his possession. Considering the special use for such
equipment and its general marketability, we cannot hold as a matter of law that the disparity
between the true value of the property transferred and the price paid [was] so great as to
transfer never could have been made in good faith."
between the true value of the property transferred and the price paid [was] so great as to
transfer never could have been made in good faith.
We affirm the judgment of the district court.
____________
85 Nev. 209, 209 (1969) Maryland Casualty Co. v. Frank
MARYLAND CASUALTY COMPANY, of Baltimore, Maryland, a Corporation, Appellant,
v. MYRON FRANK, PAUL A. WALTERS and JOHN FRASER, Doing Business as
PARKING SERVICE INVESTMENT CO., Respondents.
No. 5664
April 8, 1969 452 P.2d 919
Appeal from a summary judgment. Second Judicial District Court, Washoe County; Emile
J. Gezelin, Judge.
Action on fire policy. The lower court rendered summary judgment for the insured and fire
insurer appealed. The Supreme Court, Zenoff, J., held that city order condemning
fire-damaged premises as unsafe was merely unchallenged recognition of loss by fire rather
than cause of loss and fire insurer was not entitled to invoke exception clause in fire policy
which holds insurer harmless from recovery for any loss caused by order of any civil
authority.
Affirmed.
Goldwater, Taber, Hill & Mortimer and Robert E. Rose, of Reno, for Appellant.
Gordon W. Rice, of Reno, for Respondents.
Order condemning property as unsafe which is unchallenged before local authorities is conclusive in
court.
2. Insurance.
City order condemning property as unsafe was sufficient to support finding that property was total loss
for insurance purposes.
3. Insurance.
City order condemning fire-damaged premises as unsafe was merely unchallenged recognition of loss by
fire rather than cause of loss and fire insurer was not entitled to invoke exception clause
in fire policy which holds insurer harmless from recovery for any loss caused by order
of any civil authority.
cause of loss and fire insurer was not entitled to invoke exception clause in fire policy which holds insurer
harmless from recovery for any loss caused by order of any civil authority.
OPINION
The insurance company appeals from a summary judgment awarded its insured, the
respondent, on a claim which arose out of a fire that damaged the insured's property in Reno
to such extent that the city condemned the building and ordered it demolished.
The insurance company contended that it was liable only for the amount necessary to
restore the insured building to its condition before the fire and accordingly offered $3,522.
Respondents contend that the building was a total loss, that no city building permit could
issue to permit repairs, that the city's demolition order was conclusive proof of total loss, and
that therefore they were entitled to the cash value of the building before the fire.
Neither party appealed from the condemnation order. The respondent insured had no
policy obligation to repair or to appeal the condemnation order. Appellant could have
exercised its policy option to repair the property if it could secure approval from the city or
could have contested the condemnation order. It did neither and the damaged structure was
demolished. It was conceded by appellant that the policy covered the type of loss involved
here if indeed the loss were caused by fire.
There is an exception clause in the policy which holds the insurance company harmless
from recovery for any loss caused by order of any civil authority. The insurance company
contends that the loss here was caused by the order of a civil authority, to wit, the city's
condemnation order.
[Headnotes 1, 2]
This court in Goldring v. Kline, 71 Nev. 181, 284 P.2d 374 (1955), put to rest any
contention that the validity of a condemnation order can be questioned in court when it was
not contested before the proper board of appeals at the local government level. See also Ripps
v. City of Las Vegas, 72 Nev. 135, 297 P.2d 258 (1956). A condemnation order unchallenged
before the local authorities is conclusive in court. It is also sufficient to support a finding of
total loss. American Home Fire Assur. Co. v. Mid-West Ent. Co., 1S9 F.2d 52S {10th Cir.
Home Fire Assur. Co. v. Mid-West Ent. Co., 189 F.2d 528 (10th Cir. 1951); Rutherford v.
Royal Ins. Co., 12 F.2d 880 (4th Cir. 1926); A. H. Jacobson Co. v. Commercial Union Assur.
Co., Ltd., 83 F.Supp. 674 (D.Minn. 1949); Taylor v. Aetna Cas. & Sur. Co., 341 S.W.2d 770
(Ark. 1961); Fidelity and Guar. Ins. Corp. v. Mondzelewski, 115 A.2d 697 (Del. 1955);
Monteleone v. Royal Ins. Co., 18 So. 472 (La. 1895); Larkin v. Glens Falls Ins. Co., 83 N.W.
409 (Minn. 1900); Feinbloom v. Camden Fire Ins. Ass'n, 149 A.2d 616, 619 (N.J. Super.
1959); Chauvin v. Superior Fire Ins. Co., 129 A. 326 (Pa. 1925); 6 J. Appleman, Insurance
Law 3821-22 (1942); Annot., 90 A.L.R.2d 790, 792-99 (1963); Annot., 49 A.L.R. 817
(1927).
[Headnote 3]
The effort to present the testimony of a city employee to dispute the finality of the
condemnation order does not breathe life into an issue already dead. The loss was not one
caused by order of civil authority. The loss was caused by the fire, and the condemnation
order was merely an unchallenged recognition of the loss. Fienbloom v. Camden Fire Ins.
Ass'n, supra.
Affirmed.
____________
85 Nev. 211, 211 (1969) Sheriff v. Thompson
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.
DONALD BALLARD THOMPSON, Respondent.
No. 5671
April 8, 1969 452 P.2d 911
Appeal from a grant of a writ of habeas corpus. Eighth Judicial District Court, Clark
The lower court granted writ, and appeal was taken. The Supreme Court, Zenoff, J., held
that authenticated complaint and accompanying affidavit setting out facts underlying filing of
complaint substantially charged offense of embezzlement for purposes of extradition statute.
Reversed.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney and
Janson F. Stewart, Deputy District Attorney Clark County for Appellant.
Raymond E. Sutton, of Las Vegas, for Respondent.
1. Extradition.
Asylum state, in which one who flees from one state to another to evade justice is found, is
constitutionally required to surrender him to the demanding state. U.S.C.A.Const. art. 4, 2.
2. Extradition.
Federal statute does not provide scope of extradition coextensive with Constitution. 18 U.S.C.A. 3182;
U.S.C.A.Const. art. 4, 2.
3. Extradition.
States are left with authority to implement some constitutional authority for extradition by their own
legislation. U.S.C.A.Const. art. 4, 2.
4. Extradition.
Federal statute and Constitution require extradition only if fugitive fled demanding state to avoid
prosecution. 18 U.S.C.A. 3182; U.S.C.A.Const. art. 4, 2.
5. Extradition.
To be subject to extradition, a criminal need not do within the demanding state every act necessary to
complete his crime, but he must at least effect an overt act there, coupled with an intent that this act be a
material step towards accomplishment of that crime.
6. Extradition.
Federal extradition statute and Constitution require that crime for which extradition is sought must have
been committed in demanding state before accused fled from that state. 18 U.S.C.A. 3182;
U.S.C.A.Const. art. 4, 2.
7. Extradition.
Where defendant did not flee California to escape prosecution for crime committed there, he was not
subject to extradition under federal extradition statute. 18 U.S.C.A. 3182.
8. Extradition.
Uniform Criminal Extradition Act gives Nevada executive department authority to extradite independent
of federal law. NRS 179.177-179.235.
9. Extradition.
As respects power of extradition under Uniform Criminal Extradition Act, accused need not be present in
demanding state at time crime was allegedly committed within that state. NRS 179.189.
10. Extradition.
Uniform Criminal Extradition Act as enacted in Nevada exceeds authority conferred by both U.S.
Constitution and effectuating federal legislation. NRS 179.189; 18 U.S.C.A. 3182; U.S.C.A.Const. art.
4, 2.
11. Extradition.
Uniform Criminal Extradition Act, as enacted in Nevada, is constitutionally valid. NRS 179.189.
12. Extradition.
Purpose of documents required by Uniform Criminal Extradition Act, as enacted in Nevada, is to
establish probable cause for believing that an offense has been committed in demanding state by accused.
NRS 179.183.
13. Extradition.
In determining whether documents required by Uniform Criminal Extradition Act are sufficient to
establish probable cause for believing that offense has been committed in demanding state by accused,
legal technicalities are disregarded. NRS 179.183.
14. Extradition.
Authenticated complaint and accompanying affidavit of investigating detective setting forth facts
underlying complaint met requirements of Uniform Criminal Extradition Act relating to probable cause for
believing that offense had been committed in demanding state by accused. NRS 179.183.
15. Extradition.
Affidavit sworn to by investigating detective setting out facts underlying filing of complaint and
authenticated complaint substantially charged embezzlement under California law, for purposes of
extradition. Cal. Pen. Code, 484, 503, 506, 778, 952, 955, 959; NRS 179.183.
16. Criminal Law.
Under California law, absence of accused from state at time he formed intent to embezzle does not
prevent successful prosecution. Cal. Pen. Code, 778.
17. Habeas Corpus.
Where it appeared that defendant should be extradited, writ of habeas corpus granted him would be
quashed and he would be remanded to custody.
OPINION
In this appeal we are to determine whether respondent Thompson should be extradited to
the State of California to stand trial for the crime of grand theft.
On February 26, 1967 Thompson entered into a written contract with Mr. and Mrs. B. W.
Williams of Sunnyvale, California, in which Thompson agreed to sell approximately $6,000
worth of rare coins owned by Mr. Williams. Thompson was a guest at the Williams' home in
California from February 25 through February 27, 1967. He was then entrusted with the coins
and left. About one-half of these coins were subsequently returned.
On February 27, 1968 a criminal complaint was filed in the municipal court for the
Sunnyvale Judicial District, Santa Clara County, California, charging Thompson with grand
theft under California's theft statute which consolidates the offenses of larceny, embezzlement
and obtaining money under false pretenses, Cal. Pen. Code 484 (West 1955).
1
See also
Cal. Pen. Code 490a (West 1955).
2
This was accompanied by a comprehensive affidavit of
the investigating detective who swore out the complaint setting forth the facts underlying the
filing of the complaint. An arrest warrant was issued pursuant to the complaint and affidavit.
An application for requisition was made to the Governor of California and on March 12,
1968 the Governor of California requested from the Governor of Nevada the extradition of
Thompson. On March 14, 1968 the Governor of Nevada executed an executive warrant
providing for Thompson's arrest and surrender to the California authorities. Thompson was
arrested but was granted a writ of habeas corpus by the district court and was released from
custody. The state here contends the writ was improperly granted. We agree.
[Headnote 1]
Article IV, 2 of the United States Constitution provides for the extradition of one who
flees from one state to another to evade justice.3 The asylum state in which such fugitive is
found is constitutionally required to surrender him to the demanding state.
____________________

1
484. THEFT DEFINED
(a) Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of
another, or who shall fraudulently appropriate property which has been entrusted to him, or who shall knowingly
and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor
or real or personal property, or who causes or procures others to report falsely of his wealth or mercantile
character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains
possession of money, or property or obtains the labor or service of another, is guilty of theft. . . . For the purpose
of this section, any false and fraudulent representation or pretense made shall be treated as continuing, so as to
cover any money, property or service received as a result thereof, and the complaint, information or indictment
may charge that the crime was committed on any date during the particular period in question.

2
490a. THEFT' SUBSTITUTED FOR LARCENY, EMBEZZLEMENT OR STEALING
Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law
or statute shall hereafter be read and interpreted as if the word theft' were substituted therefor.
to evade justice.
3
The asylum state in which such fugitive is found is constitutionally
required to surrender him to the demanding state. This constitutional provision, however, is
not self-executing. Kentucky v. Dennison, 65 U.S. (24 How.) 66, 104 (1860). For this reason
in 1793 Congress enacted what is now 18 U.S.C. 3182 providing for extradition of fugitives
from justice.
4

[Headnotes 2-5]
However, the federal statute does not provide a scope of extradition coextensive with the
constitution. Innes v. Tobin, 240 U.S. 127 (1916). The states are left with the authority to
implement some of the constitutional authority by their own legislation. Innes v. Tobin,
supra. However, it is well settled that the federal statute and the constitution require
extradition only if the fugitive fled the demanding state to avoid prosecution. South Carolina
v. Bailey, 289 U.S. 412 (1933); Innes v. Tobin, supra; Munsey v. Clough, 196 U.S. 364
(1905); Hyatt v. Corkran, 188 U.S. 691 (1903); United States v. Flood, 374 F.2d 554 (2d Cir.
1967); Smith v. Idaho, 373 F.2d 149 (9th Cir. 1967). While a criminal need not do within the
demanding state every act necessary to complete his crime, he must at least effect an overt act
there, coupled with an intent that this act be a material step towards accomplishing that crime.
Strassheim v. Daily, 221 U.S. 280 (1911).
____________________

3
Section 2. PRIVILEGES AND IMMUNITIES OF CITIZENS; EXTRADITION OF FUGITIVES. . . .
A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be
found in another State, shall on Demand of the executive Authority of the State from which be fled, be delivered
up, to be removed to the State having Jurisdiction of the Crime.

4
3182. FUGITIVES FROM STATE OR TERRITORY TO STATE, DISTRICT OR TERRITORY
Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of
the executive authority of any State, District or Territory to which such person has fled, and produces a copy of
an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person
demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief
magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the
State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify
the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and
shall cause the fugitive to be delivered to such agent when he shall appear.
[Headnotes 6, 7]
This appeal was submitted on the asserted ground that Thompson would be tried in
California for embezzlement, that the requisite intent to appropriate to his own use the
Williams' coins was not formed until he had left California, and that therefore there was no
overt act coupled with criminal intent in California. The cases cited above which construe 18
U.S.C. 3182 and Article IV, 2 of the United States Constitution require that the crime for
which extradition is sought must have been committed in the demanding state before the
accused fled from that state. Since it is apparent that Thompson did not flee California to
escape prosecution for a crime committed there, he is not subject to extradition under 18
U.S.C. 3182.
[Headnote 8]
We turn to the question of whether the Uniform Criminal Extradition Act as enacted in
Nevada, NRS 179.177-179.235, empowers the Nevada executive department with the
authority to extradite Thompson independent of the federal law.
5
We hold that it does.
[Headnotes 9, 10]
The first inquiry which must be answered under the Uniform Act is whether the accused
had to be present in the demanding state at the time the crime was allegedly committed in that
state. We hold that such presence is not required by the Uniform Act. NRS 179.189
empowers the Governor of Nevada to surrender upon demand of the executive authority of
any other state any person properly charged with committing an act in this state, or in a third
state, intentionally resulting in a crime in the demanding state, even though the accused was
not in the demanding state at the time of the commission of the crime and has not fled
therefrom. Since NRS 179.189 clearly exceeds the authority conferred by both the United
States Constitution and its effectuating federal legislation, we are faced with the problem of
whether it is valid. We hold that it is.
[Headnote 11]
California enacted the provisions of the Uniform Act and upheld the extension of
extradition authority beyond the federal law against constitutional challenge. In re Cooper,
349 P.2d 956 {Cal.
____________________

5
The Uniform Act was enacted in Nevada on April 17, 1967. Ch. 415 (1967) Nev. Stat. 1098. It became
effective on July 1, 1967. NRS 218.530. It supersedes the old extradition statutes which adopted the federal
standard for extradition.
P.2d 956 (Cal. 1960), cert. denied, 364 U.S. 294 (1960). The provision in question was
impliedly approved by the United States Supreme Court in New York v. O'Neill, 359 U.S. 1,
11-12 (1959). The High Court stated that [c]omity among States, an end particularly to be
cherished when the object is enforcement of internal criminal laws, is not to be defeated by an
a priori restrictive view of state power. As in New York v. O'Neill, supra, we find nothing in
the United States Constitution which prohibits this exertion of state power, and we also find
no forbidding limitation imposed by the Constitution of Nevada. Therefore we hold that NRS
179.189 is constitutionally valid.
Having decided that an accused need not be present in the demanding state at the time of
the commission of the offense charged insofar as the power of extradition is concerned, we
turn to the second and final inquiry which must be made. Both the federal law and NRS
179.183 require the presentation of certain documents by the demanding state which
substantially charge the person demanded with having committed a crime under the law of
that state. All of the required documents were presented in this case. The only issue we need
decide is whether the February 27, 1968 complaint when taken together with the
accompanying affidavit substantially charged a crime in California. The district court held
that the complaint was too vague because it alleged a six-month period during which the
putative crime occurred. An amended complaint was filed on May 17, 1968 limiting the time
of the offense in response to the district court's objection, but we disregard it because it does
not appear to have the required certification of the Governor of California.
[Headnotes 12-16]
The purpose of the documents required by NRS 179.183 is to establish probable cause for
believing that an offense has been committed in the demanding state by the accused. Kirkland
v. Preston, 385 F.2d 670 (D.C.Cir. 1967). Legal technicalities are disregarded. Here the
authenticated complaint and accompanying affidavit were unquestionably sufficient to meet
these requirements. Hogan v. O'Neill, 255 U.S. 52 (1921); Compton v. Alabama, 214 U.S. 1
(1909); Appleyard v. Massachusetts, 203 U.S. 222 (1906); In re Strauss, 197 U.S. 324 (1905);
Munsey v. Clough, 196 U.S. 364 (1905); United States v. Flood, supra; Smith v. Idaho, supra;
In re Cooper, supra. The affidavit and complaint substantially charge an offense under the
general California theft statute, Cal. Pen. Code 484, and in particular substantially charge
embezzlement as defined by Cal.
embezzlement as defined by Cal. Pen. Code 503 and 506 (West 1955).
6
See also Cal.
Pen. Code 952, 955 and 959 (West 1956).
7
The absence from California of the accused at
the time he formed the intent to embezzle does not prevent successful prosecution under the
laws of California. Cal. Pen. Code 778 (West 1956); Ex parte Hedley, 31 Cal. 108 (1866).
8

[Headnote 17]
Since it appears that Thompson should be extradited, the writ of habeas corpus granted
to him is quashed and he is remanded to custody.
____________________

6
503. DEFINITION
Embezzlement' defined. Embezzlement is the fraudulent appropriation of property by a person to whom it
has been intrusted.
506. PERSON CONTROLLING OR INTRUSTED WITH PROPERTY OF ANOTHER:
MISAPPROPRIATIONS. . . .
Every . . . agent . . . or person otherwise intrusted with or having in his control property for the use of any
other person, who fraudulently appropriates it to any use or purpose not in the due and lawful execution of his
trust . . . is guilty of embezzlement . . . .

7
952. STATEMENT OF OFFENSE
In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a
statement that the accused has committed some public offense therein specified. Such statement may be made in
ordinary and concise language without any technical averments or any allegations of matter not essential to be
proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public
offense, or in any words sufficient to give the accused notice of the offense of which he is accused. In charging
theft it shall be sufficient to allege that the defendant unlawfully took the labor or property of another.
955. PLEADING TIME OF OFFENSE
The precise time at which the offense was committed need not be stated in the accusatory pleading, but it
may be alleged to have been committed at any time before the finding or filing thereof, except where the time is
a material ingredient in the offense.
959. SUFFICIENCY OF ACCUSATORY PLEADING
The accusatory pleading is sufficient if it can be understood therefrom:
. . .
6. That the offense was committed at some time prior to the filing of the accusatory pleading.

8
778. OFFENSES COMMENCED WITHOUT BUT CONSUMMATED WITHIN STATE
When the commission of a public offense, commenced without the State, is consummated within its
boundaries by a defendant, himself outside the State, through the intervention of an innocent or guilty agent or
any other means proceeding directly from said defendant, he is liable to punishment therefor in this State in any
competent court within the jurisdictional territory of which the offense is consummated.
writ of habeas corpus granted to him is quashed and he is remanded to custody.
Collins C. J., Batjer, Mowbray, and Thompson, JJ., concur.
____________
85 Nev. 219, 219 (1969) Baer v. Amos J. Walker, Inc.
LOUIS BAER and BAER RANCHES, INC., Appellants,
v. AMOS J. WALKER, INC., Respondent.
No. 5689
April 8, 1969 452 P.2d 916
Appeal from a judgment. Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Suit on note against corporation and its manager. The trial court entered judgment in favor
of plaintiff, and appeal was taken. The Supreme Court, Zenoff, J., held that evidence was
insufficient to support finding that corporation was manager's alter ego.
Affirmed in part and reversed in part.
Nelson, Bull & Hickey, of Reno, for Appellants.
Stewart & Horton, of Reno, for Respondent.
1. Continuance.
Where defendants' counsel was retained only three days before trial and he requested additional time to
prepare, it was within trial court's discretion to refuse a continuance.
Where no affidavit was filed in support of motion for continuance, movants had no standing to attack
district court's discretionary ruling.
3. Corporations.
Corporate cloak is not lightly thrown aside; however, adherence to fiction of separate entity must not
sanction a fraud or promote injustice.
4. Corporations.
Evidence, in suit on note against corporation and its manager, was insufficient to support finding that
corporation was manager's alter ego.
Whether the Supreme Court will overlook a breach of its procedural rules is within its discretion.
Appeal would not be dismissed because of appellants' failure to observe certain rules of the Supreme
Court where respondent had suffered no prejudice.
OPINION
This is an appeal from a judgment rendered in a suit to compel payment of a $5,000
promissory note by Louis Baer, individually, and by Baer Ranches, Inc., as Baer's alter ego.
Baer claimed that someone forged his signature on the note. The case was tried without a
jury. The trial court found the signature on the note to be authentic.
[Headnotes 1, 2]
1. Appellants requested a continuance at the time set for trial. The trial court denied it. It
appeared that appellants' counsel was retained only three days before trial and he requested
additional time to prepare. Under even more exigent circumstances we have held that it was
within the trial court's discretion to refuse a continuance. Benson v. Benson, 66 Nev. 94, 204
P.2d 316 (1949). In any event, no affidavit was filed in support of the motion for continuance,
and therefore appellants have no standing to attack the district court's discretionary ruling.
Piazza v. Reid, 83 Nev. 123, 424 P.2d 413 (1967).
2. Appellants contend that there is no evidence to support the district court's finding that
Baer Ranches, Inc., was Baer's alter ego. We agree.
[Headnotes 3, 4]
The corporate cloak is not lightly thrown aside. Nevada Tax Comm'n v. Hicks, 73 Nev.
115, 310 P.2d 852 (1957). However, adherence to the fiction of a separate entity must not
sanction a fraud or promote injustice. McCleary Cattle Co. v. Sewell, 73 Nev. 279, 317 P.2d
957 (1957). Baer transferred all of his personal assets to the corporation in 1956. He received
in return 50 percent of the corporation's common stock while his wife received the other 50
percent. Thereafter they made annual gifts of the stock to their children, ostensibly to deplete
their estates in order to reduce the federal estate tax. In 1959 Baer divorced his wife and she
received all of his stock. In 1960 they remarried and she conveyed the entirety of her stock to
the corporation in exchange for a residence owned by the corporation.
owned by the corporation. After this transaction in 1960, only Baer's children owned stock in
the corporation. Baer had no control over the corporation after 1960 except what was given to
him by a management contract which was subject to the supervision of the corporation's
board of directors composed of his three adult children who were also the sole stockholders in
the corporation.
We fail to find any evidence of fraud or injustice. Baer relinquished legal control over the
corporation seven years before the note in issue was signed. There is no proof that Baer had
actual control. This situation is distinguishable from the usual case in which a stockholder or
officer is sought to be held liable for his corporation's debts. 1 W. Fletcher, Private
Corporations 41.3 at 193 (Rev. Vol. 1963). Here the corporation is sought to be held liable
for a manager's debts. There is no proof that the credit of the corporation was relied upon by
the respondent. Therefore, we hold that there is insufficient proof that Baer Ranches, Inc.,
was Baer's alter ego.
[Headnotes 5, 6]
3. Respondent at oral argument asked for a dismissal of the appeal because of appellants'
failure to observe certain rules of this court. He relies on Pyramid Motor Freight Corp. v.
Ispass, 330 U.S. 695 (1947). Whether this court will overlook a breach of its procedural rules
is within its discretion. Pyramid Motor Freight Corp. v. Ispass, supra, is not persuasive
otherwise. We decline to dismiss. Respondent has suffered no prejudice because of
appellants' alleged error.
Other issues raised are clearly without merit.
The judgment of the district court holding Baer Ranches, Inc., liable for Baer's debts is
reversed. In all other respects the judgment is affirmed.
____________
85 Nev. 222, 222 (1969) Salla v. City of Winnemucca
PETE SALLA, FRANK DENDARY, R. E. CALLE, and JUAN GARIJO, Appellants, v.
CITY OF WINNEMUCCA, COUNTY OF HUMBOLDT, NEVADA; CITY COUNCIL
OF THE CITY OF WINNEMUCCA, HUMBOLDT COUNTY, NEVADA, Respondents.
No. 5763
April 8, 1969 452 P.2d 969
Appeal from a judgment validating a municipal improvement district. Sixth Judicial
District Court, Humboldt County; Llewellyn A. Young, Judge.
Action by residents of municipality challenging city council's order establishing street
improvement district. The lower court upheld council's action and residents appealed. The
Supreme Court, Zenoff, J., held that dividing property affected by improvement into units
based on whether area contained mixture of intensively developed industrial, commercial and
residential land or whether area was undeveloped or residential only met statutory
requirement that, in combination of projects, the projects be separate and distinct by reason of
substantial difference in their character and location before owners of property in different
project area can properly voice their distinctive protests.
Affirmed.
Peter Echeverria and E. A. Hollingsworth, of Reno, for Appellants.
John M. Doyle, City Attorney, and James A. Callahan, Special City Attorney, of
Winnemucca, for Respondents.
Each street within street improvement district can be deemed a separate project within statute providing
that separate and distinct projects within combined projects shall be considered as a unit for purpose of
petition, remonstrance and assessment. NRS 271.225, 271.265, 271.265, subd. 9, 271.295, subd. 2.
Dividing property affected by street improvement district into units based on use to which property was
put was proper where proposed district encompassed more than one street. NRS 271.295, subd. 2.
Dividing property affected by street improvement district into units based on whether affected area
contained mixture of intensively developed industrial, commercial and residential land or whether area was
undeveloped or residential only met statutory requirement that, in combination of projects, the projects be
separate and distinct by reason of substantial difference in their character and
location.
separate and distinct by reason of substantial difference in their character and location. NRS 271.295,
subd. 2.
City council's allocation of land among units established for purpose of street improvement district would
not be overturned in absence of fraud. NRS 271.025.
Fact that provisional order providing for street improvement district violated statute by providing basis
for computing protest percentage different from basis for assessment was not ground on which to void city
council's order where protest, as filed, was computed on same basis as assessment. NRS 271.305, subd.
7(b).
OPINION
Appellants, residents of the city of Winnemucca, who own certain property there question
a judgment finding valid a municipal improvement district established by the city of
Winnemucca to improve some of that city's streets. This is a case of first impression
interpreting for the first time NRS Chapter 271 providing for the consolidation of local
improvements by city governments.
On May 18, 1966 the city council passed a resolution pursuant to NRS 271.280
1
to
investigate the possibilities of creating an improvement district for street improvement
purposes.
____________________

1
271.280 PROVISIONAL ORDER METHOD.
1. Whenever the governing body shall be of the opinion that the interest of the municipality requires any
project, the governing body, by resolution, shall direct the engineer to prepare:
(a) Preliminary plans . . .
. . .
(b) An assessment plat . . .
. . .
6. In case the assessment is to be upon the abutting property upon a frontage basis, it shall be sufficient for the
resolution so to state and to define the location of the project to be made.
7. It shall not be necessary in any case to describe minutely in the resolution each particular tract to be
assessed, but simply to designate the property, improvement district or the location, so that the various parts to
be assessed can be ascertained and determined to be within or without the proposed improvement district.
8. The engineer shall forthwith prepare and file with the clerk:
(a) The preliminary plans; and
(b) The assessment plat.
9. Upon the filing of the plans and plat, the governing body shall examine the same; and if the plans and plat
be found to be satisfactory, the governing body shall make a provisional order by resolution to the effect that
such project shall be acquired or improved, or both acquired and improved.
On May 3, 1967 pursuant to NRS 271.280(9), a provisional order was adopted which
provided for an improvement district. The order divided the district into three units
designated Units A, B & C respectively. The order also provided for a method of assessment.
While the pertinent language at first glance appears to designate no particular method of
assessment but rather a conglomeration of assessment based on frontage and also assessment
levied proportionate to special benefits conferred on the land by the improvements, upon
closer examination it is apparent that assessment was intended to be proportionate to special
benefits conferred and that footage was merely an element used in computing the amount of
benefit conferred.
The order was accompanied by a notice of a hearing directed to the affected land owners.
The notice indicated that if the owners of more than one-half of the frontage feet in any unit
would file written protests, that unit would be excluded from the improvement district.
A hearing was held, and protests were filed. But contrary to the procedure established by
the notice, the units were excluded from the improvement district if the owners of land which
received more than one-half of the special benefits protested against the improvements.
Consequently Units B and C were excluded. Had the computation of protest majority been
based on frontage feet as provided for by the notice, Units B and C would have been included
in the improvement district.
[Headnotes 1, 2]
1. Establishment of the District.
Appellants contend that NRS 271.295(2)
2
allows the creation of units for the purpose of
separate petition, remonstrance and assessment only when there is a combination of projects.
They contend that there was only one street project established which involved many streets
in the district and that there must be a combination of the projects enumerated in NRS
271.265
3
before units can be formed.
____________________

2
271.295 COMBINATIONS OF PROJECTS.
. . .
2. If in the combination of projects, they shall be separate and distinct by reason of substantial difference in
their character or location, or otherwise, each such project shall be considered as a unit or quasi-improvement
district for the purpose of petition, remonstrance and assessment.

3
271.265 GENERAL POWERS OF MUNICIPALITY. The governing body of a municipality, upon behalf
of the municipality and its
NRS 271.265(9) indicates that a municipality may initiate a street project. NRS 271.225
4
includes in defining a street project almost all of the other projects as enumerated by NRS
271.265. Therefore the projects in NRS 271.265 can hardly be exclusive of each other. If that
were not enough, NRS 271.225 defines a street project as meaning any street . . . . We hold
that each street can be deemed a separate project, that there was more than one project, and
that therefore units could be established within the district.
[Headnote 3]
Appellants also contend that the units were not composed of projects of different character
or locality as required by NRS 271.295(2). Unit A contained a mixture of intensively
developed industrial, commercial and residential land. The land in Unit B was undeveloped
and the land in Unit C was residential only. Therefore there were projects different in both
character and location and the units were properly constituted so that owners of different
types of property in different areas could properly voice their distinctive protests.
[Headnote 4]
Finally appellants contend that the allocation of area among the units was an abuse of
discretion and therefore invalid. We disagree.
____________________
name, without any election, shall have power from time to time to acquire, improve, equip, operate and maintain,
within or without the municipality, or both within and without the municipality:
1. A curb and gutter project;
2. A drainage project;
3. An offstreet parking project;
4. An overpass project;
5. A park project;
6. A sanitary sewer project;
7. A sidewalk project;
8. A storm sewer project;
9. A street project;
10. An underpass project; and
11. A water project.

4
271.225 STREET PROJECT' DEFINED. Street project' means any street, including without limitation
grades, regades, gravel, oiling, surfacing, macadamizing, paving, crosswalks, sidewalks, driveway approaches,
curb cuts, curbs, gutters, culverts, drains, sewers, manholes, inlets, outlets, retaining walls, bridges, overpasses,
tunnels, underpasses, approaches, artificial lights and lighting equipment, parkways grade separators, traffic
separators and traffic control equipment, and appurtenances and incidentals (or any combination thereof),
including real and other property therefor.
NRS 271.025
5
requires proof of fraud or its equivalent to support a reversal of the
establishment of the district and its component units. There is no such proof here.
2. Computation of protest vote.
[Headnote 5]
As already noted, the notice of the provisional order providing for the improvement
district provided a basis for computing protest percentage different from the basis for
assessment. This was in contravention of NRS 271.305(7)(b)
6
which requires that the basis
for protest computation be the same as that used for assessment. This is ostensibly intended to
give to a landowner an influence in the proceedings proportional to the amount he will have
to pay. However, the protest was appropriately computed on the same basis as the assessment.
Therefore the discrepancy is inconsequential.
The judgment is affirmed and the city of Winnemucca may proceed with its improvements
on the basis provided for in the provisional order of May 3, 1967 as modified by the
resolution of August 16, 1967 deleting Units B and C from the district.
____________________

5
271.025 DECISION OF GOVERNING BODY FINAL. The action and decision of a municipality's
governing body as to all matters passed upon by it in relation to any action, matter or thing provided herein shall
in the absence of fraud be prima facie evidence of its correctness.

6
271.305 PROVISIONAL ORDER HEARING: NOTICE.
. . .
7. The notice shall also state:
. . .
(b) That if, within the time specified in the notice, complaints, protests and objections in writing, i.e., all
written remonstrances, against acquiring or improving the project proposed by initiation of the governing body
shall be filed with the clerk, signed by the owners of tracts constituting a majority of the frontage, of the area, of
the zone, or of the other basis for the computation of assessments as the case may be, of the tracts to be assessed
in the improvement district or in the assessment unit if the improvement district is divided into assessment units,
the project therein shall not be acquired or improved . . . .
___________
85 Nev. 227, 227 (1969) Day & Night Mfg. v. Fidelity & Cas. Co.
DAY & NIGHT MANUFACTURING COMPANY, a Division of Carrier Corporation,
Appellant, v. FIDELITY AND CASUALTY COMPANY OF NEW YORK, Respondent.
No. 5618
April 10, 1969 452 P.2d 906
Appeal from a judgment granting a motion to dismiss a complaint for failure to state a
cause of action. Eighth Judicial District Court, Clark County; Howard W. Babcock, Judge.
Action by supplier of materials against contractor's surety to recover under surety bond for
contractor's failure to pay for materials. The lower court dismissed the supplier's complaint
and the supplier appealed. The Supreme Court, Thompson, J., held that general contractor's
surety bond given pursuant to and conforming with statute requiring such bond for protection
of owners, workmen and members of the general public, including materialmen who were
injured by unlawful act or omission of contractor, did not afford protection to supplier of
materials for material bills incurred by contractor.
Affirmed.
Batjer, J., and Collins, C. J., dissented.
[Rehearing denied May 6, 1969]
Deaner, Butler & Adamson, of Las Vegas, for Appellant.
Singleton, DeLanoy, Jemison & Reid, of Las Vegas, for Respondent.
1. Licenses.
General contractor's surety bond given pursuant to and conforming with statute requiring such bond for
protection of owners, workmen and members of the general public, including materialmen who were
injured by unlawful act or omission of contractor, did not afford protection to supplier of materials for
material bills incurred by contractor. NRS 108.005 et seq., 624.010 et seq., 624.230, 624.273, subd. 1,
624.290, 624.305.
2. Licenses.
A surety company may write a contractor's bond in such fashion as to afford protection to a supplier for
labor and material for material bills incurred by contractor, but contractors' licensing statute does not
compel the surety to do so and, if wording of contractor's bond follows wording of statute, the material
supplier is not protected by the bond. NRS 108.005 et seq., 624.010 et seq., 624.230, 624.273, subd. 1,
624.290, 624.305.
3. Mechanics Liens.
One who supplies materials to a contractor is protected by lien law and may recover obligation owing
him by resort to procedures specified in the lien law. NRS 108.005 et seq.
4. Licenses.
Statute requiring licensed contractors to give bond when entering upon construction contract was written
to protect owners, workmen and members of general public, including materialmen who are injured by
unlawful act or omission of the contractor. NRS 108.005 et seq., 624.010 et seq., 624.230, 624.273,
subd. 1, 624.290, 624.305.
5. Licenses.
Statutory contractor's bond affords protection against such unlawful acts or omissions such as contractor
engaging in business without license, accepting contract in excess of license restriction and assigning his
license to another. NRS 108.005 et seq., 624.010 et seq., 624.230, 624.273, subd. 1, 624.290, 624.305.
6. Licenses.
Surety bond given pursuant to contractor's licensing statute may not be expended to embrace occurrences
not falling within contractors' licensing statute, unless language of bond discloses intention to covet such
occurrences. NRS 624.010 et seq., 624.270, 624.330.
OPINION
The issue is whether a contractor's surety bond given pursuant to NRS ch. 624 affords
protection to a supplier of materials. The district court ruled that it does not and upon
appropriate motion dismissed the supplier's complaint. That court ruled correctly.
[Headnotes 1-3]
1. Just last year we indicated, without deciding the point, that a supplier of materials is not
protected by a contractor's surety bond. Garff v. J. R. Bradley Company, 84 Nev. 79, 436 P.2d
428, 430 (1968). We there distinguished our prior opinion in Royal Indemnity Co. v. Special
Service, 82 Nev. 148, 413 P.2d 500 (1966), stating: There, the bond afforded coverage for
labor and material bills incurred by the contractor, even though the contractor's licensing
statute pursuant to which the bond was furnished did not specifically require such coverage.
That language is clear in its meaning. A surety company may, as in Royal Indemnity, write a
bond in such fashion as to afford protection to a supplier, but the contractors' licensing statute
does not compel the surety to do so and, as in Garff, if the wording of the contractor's bond
follows the wording of the statute, the material supplier is not protected by the bond.
wording of the statute, the material supplier is not protected by the bond. The material
supplier is protected by the lien law of Nevada, NRS ch. 108, and may recover the obligation
owing him by resort to the procedures therein specified.
[Headnote 4]
2. The bond statute, NRS 624.273(1), was written to protect (1) owners, (2) workmen, and
(3) members of the general public including materialmen who are injured by the unlawful
act or omission of the contractor. . . .
1
In the case before us the material supplier contends
that the failure of the contractor to pay him for materials furnished is an unlawful omission
within the contemplation of the statute.
[Headnote 5]
Chapter 624 is a contractors' licensing statute enacted in the public interest to control and
supervise the contracting business in this state. The unlawful act or omission mentioned in
NRS 624.273(1) is referable to acts or omissions declared by ch. 624 to be unlawful. The
contractor's surety bond is required to afford protection against that eventuality. It is unlawful
for a contractor to engage in business without a license (NRS 624.230); to accept a contract in
excess of license restrictions (NRS 624.290); to assign his license to another (NRS 624.305).
Should these omissions or acts occur to the injury of a material supplier, the surety bond
would afford protection.
[Headnote 6]
The failure of a contractor to pay his supplier of materials is not declared to be an unlawful
act or omission by ch. 624. The surety bond, given pursuant to ch. 624, may not be expanded
to embrace occurrences not falling within that chapter, unless, of course, as in the Royal
Indemnity case, the language of the bond discloses an intention to cover such occurrences.
3. The appellant suggests that NRS 624.330 possesses relevance to the issue before us, a
suggestion with which the dissenting Justices agree.
____________________

1
The statute reads: 1. Each bond or deposit required by NRS 624.270 shall be in favor of the State of
Nevada for the benefit of any person who:
(a) As owner of the property to be improved entered into a construction contract with the contractor and is
damaged by failure of the contractor to perform such contract or to remove liens filed against such property;
(b) As an employee of the contractor performed labor on or about the site of the construction contract; or
(c) Is injured by any unlawful act or omission of the contractor in the performance of a contract.
relevance to the issue before us, a suggestion with which the dissenting Justices agree. That
section concerns persons who are exempt from the operation of ch. 624. Such persons need
not be licensed as contractors, nor furnish the surety bond required by NRS 624.270. The
section has nothing whatever to do with the scope of coverage of the surety bond.
Affirmed.
Zenoff and Mowbray, JJ., concur.
Batjer, J., dissenting:
I dissent. The appellant's assignor sold and delivered certain materials to Reliable Air
Conditioning, Inc., between July 18, 1967 and September 27, 1967, for a total price of
$6,102.78. The appellant's first cause of action related solely to Reliable Air Conditioning,
Inc., which is not involved in this appeal. In the second cause of action it is alleged that
Reliable Air Conditioning, Inc., was indebted to the appellant and that respondent, Fidelity
and Casualty Company of New York, furnished a bond pursuant to NRS Chapter 624 in the
amount of $3,000; that Reliable Air Conditioning, Inc., was the contractor-principal thereon
and Fidelity and Casualty Co., was the surety; and because of Reliable Air Conditioning,
Inc.'s failure to pay, its surety was liable for payment under the bond.
Pursuant to NRCP 12(b)(5), the respondent filed its motion to dismiss on the ground that
the complaint failed to state a claim against it upon which relief could be granted, and in its
supporting points and authorities alleged that neither the bond nor NRS Chapter 624 require
or contemplate security for material suppliers. The trial court granted the motion and
dismissed the action against respondent.
In considering a motion to dismiss, all material facts well pleaded in the complaint must be
taken as true. National Van Lines, Inc. v. United States, 326 F.2d 362 (7th Cir. 1964). On a
motion to dismiss a complaint for failure to state a claim upon which relief can be granted,
the claim consists not only of the facts alleged but the law applicable to those facts at the time
the claim arose. The motion raises for determination issues of law going to the right to any
relief upon the face of the complaint.
The appellant contends that the trial court erred when it found that a supplier of materials
is not protected by a bond written under the provisions of NRS Chapter 624. I agree with the
appellant's contention.
Although on prior occasions we have touched upon the question, for the first time this
court has been asked to squarely decide whether suppliers of materials are protected by a
bond executed according to the provisions of NRS Chapter 624.
question, for the first time this court has been asked to squarely decide whether suppliers of
materials are protected by a bond executed according to the provisions of NRS Chapter 624.
In Royal Indemnity Co. v. Special Service Supply Co., 82 Nev. 148, 413 P.2d 500 (1966), we
found it unnecessary to decide the limits of NRS 624.270 (now substantially NRS 624.273)
as it related to materialmen's contracts, because in that case the bond went beyond the
requirements of the statute. There, however, we said: It is our view that full compliance with
Ch. 624, at least insofar as the instant parties and contract were concerned, encompassed
payment of materialmen's bills in an appropriate spirit of financial responsibility'.
Nevertheless, by way of dicta it was inferred in Royal Indemnity that Chapter 624, standing
alone, might not require bonding to protect suppliers of material when we said: . . . Royal
Indemnity impliedly agreed to incur liability for materials obtained during the term of the
bonding contract, though Ch. 624, standing alone, might not require such a bonding.
(Emphasis added.)
Again, by way of dicta, the majority of this court in Garff v. J. R. Bradley Company, 84
Nev. 79, 436 P.2d 428 (1968), touched upon the scope of bond coverage required by NRS
Chapter 624, when we said: In the Royal Indemnity case we held that the surety was liable
on a bond where, by expressly denying liability for prior materials supplied, the surety, by
implication, accepted liability for materials supplied to the contractor after the date of the
bonding agreement. There, the bond afforded coverage for labor and material bills incurred
by the contractor, even though the contractor's licensing statute pursuant to which the bond
was furnished did not specifically require such coverage. (Emphasis added.)
Since the above quoted language from Royal Indemnity and Garff was mere dictum that
rested upon a misinterpretation of pertinent statutes, I believe this court should overrule that
dictum which indicated that NRS Chapter 624 did not specifically require bonded coverage
for material bills. Stanley v. Levy & Zentner Co., 60 Nev. 432, 112 P.2d 1047 (1941).
In Vegas Franchises v. Culinary Workers, 83 Nev. 422, P.2d 263 (1967) we said: Seldom
is stare decisis appropriately applied to dictum (citations omitted). It is never appropriately
utilized when the dictum rests upon a false assumption, since its effect in such instance is the
perpetuation of error. Fletcher v. Scott, 277 N.W. 270 (Minn. 1938); Louisville & N. R. Co.
v. Hutton, 295 S.W. 175 (Ky. 1927).
I believe that NRS Chapter 624 requires bonded coverage of all suppliers of material
except those excluded by NRS 624.330.
of all suppliers of material except those excluded by NRS 624.330. The intent of the
legislature to include bonded coverage for suppliers of material within NRS Chapter 624 is
manifest by NRS 624.330(5),
1
which excluded from NRS Chapter 624 the sale or
installation of any finished product, materials or articles of merchandise which are not
actually fabricated into and do not become a permanent fixed part of the subject structure. By
implication the chapter applied to and is intended to cover the sale or installation of any
finished product, material or article of merchandise which is or which may reasonably be
intended to be fabricated into and become a permanent part of the structure involved. If the
suppliers of materials were not intended to be protected by the bond which is required by
NRS Chapter 624, the exception found in NRS 624.330(5) would be mere surplusage and
meaningless.
The majority opinion suggests that NRS 624.330 has nothing whatever to do with the
scope of coverage of the surety bond required by NRS Chapter 624, but only sets forth
persons who need not be licensed as contractors and who need not furnish the surety bond.
This is a narrow and unrealistic interpretation of that section.
Respondent also contends that it would be grossly unreasonable to interpret NRS Chapter
624 as requiring a bond to protect suppliers of material in the performance of a contract,
because they can protect themselves by filing mechanic liens. While the majority of this court
agrees with the respondent's position, I find this argument untenable. First, NRS 108.238
2
preserves the right of any person to whom any debt may be due for work done or material
furnished to maintain a personal action to recover such debt against the person liable therefor.
This most certainly includes sureties on statutory bonds. Secondly, NRS 624.273(1) requires
a bond for the removal of liens filed against the property of the owner when the bonded
contractor has failed to remove them. It is no less reasonable that a supplier of material have
his payment secured in the first instant than it is to require that he be paid if he files a lien
against the property where the material is used and the contractor fails to remove it.
____________________

1
NRS 624.330(5). The sale or installation of any finished products, materials or articles of merchandise
which are not actually fabricated into and do not become a permanent fixed part of the structure.

2
NRS 108.238. Nothing contained in NRS 108.221 to 108.2394, inclusive, shall be construed to impair or
affect the right of any person to whom any debt may be due for work done or material furnished to maintain a
personal action to recover such debt against the person liable therefor.
lien against the property where the material is used and the contractor fails to remove it.
The respondent further argues that even if suppliers of material come within the protection
of NRS Chapter 624 that the term omission as used in conjunction with the term unlawful
act in NRS 624.273 connotes the inactive correlative of an unlawful act. Again the majority
of the court has agreed with the respondent. I do not interpret the meaning of the word
omission as found in NRS 624.273, as the inactive correlative of an unlawful act, but
instead find that the word omission as used means the failure to do that which the law
requires to be done. People v. Hughey, 47 N.E.2d 77, 80 (Ill. 1943); People v. Bundesen, 109
N.E.2d 385 (Ill. 1952). The omissions referred to in NRS 624.273 need not be unlawful
omissions.
A buyer must pay for the goods he receives. NRS 104.2301 provides as follows: The
obligation of the seller is to transfer and deliver and that of the buyer is to accept and pay in
accordance with the contract. (Emphasis added.) The failure of the buyer to pay for the
goods is the failure to do that which the law requires to be done and is an omission in the
performance of a contract.
Finally, the respondent contends that the term performance of a contract as found in
NRS 624.273 relates to a contract between the contractor and someone for whom the work of
contracting is performed. NRS 624.273 read in its entirety belies this interpretation. If the
legislature had intended to limit NRS 624.273(3) to a construction contract it would have
used words similar to those found in NRS 624.273(1).
I believe that the appellant is within the purview of NRS Chapter 624 and is within the
scope of the definition of a person injured by the omission of a contractor in the
performance of a contract, and should be entitled to the protection afforded by the bond
required by NRS 624.270, unless disqualified under NRS 624.330.
Collins, C. J., concurs.
____________
85 Nev. 234, 234 (1969) Hill v. Sheriff
CHARLOTTE DEAN HILL, Appellant, v. SHERIFF
OF CLARK COUNTY, NEVADA, Respondent.
No. 5643
April, 11, 1969 452 P.2d 918
Appeal from district court denial of habeas corpus. Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
The lower court denied relief and appeal was taken. The Supreme Court, Thompson, J.,
held that party seeking continuance of preliminary examination upon ground of absence of
witnesses must submit to magistrate an affidavit stating names of absent witnesses, their
residences if known, diligence used to procure attendance, expected testimony, whether same
facts can be proved by other witnesses, when affiant first learned that attendance of witnesses
could not be obtained, and that motion is made in good faith and not for delay, but justice's
court could not be faulted for permitting six-day continuance of preliminary examination on
oral request of prosecutor without any showing of good cause, where it decided matter
without benefit of rule or case precedent.
Affirmed.
Harvey Dickerson, Attorney General, Carson City, George E. Franklin, Jr., District
Attorney, Alan R. Johns, and Earl P. Gripentrog, Deputy District Attorneys, Clark County,
for Respondent.
1. Courts; Criminal Law.
Party seeking continuance of preliminary examination upon ground of absence of witnesses must submit
to magistrate an affidavit stating names of absent witnesses, their residences if known, diligence used to
procure attendance, expected testimony, whether same facts can be proved by other witnesses, when affiant
first learned that attendance of witnesses could not be obtained, and that motion is made in good faith and
not for delay, and such requirements shall have prospective application. DCR 21.
2. Habeas Corpus.
Although prosecutor who, on date set for preliminary examination, orally requested continuance on
ground that main witness for state was absent from county, did not disclose witness' residence, diligence
used to procure his attendance, substance of his testimony, when prosecutor first learned witness was not
available or whether request was in good faith and not for delay, since at time there was no ruling
specifying filing to be made for securing continuance for absence of witness or any case
precedent, defendant was not entitled to habeas corpus because justice's court
granted six-day continuance.
securing continuance for absence of witness or any case precedent, defendant was not entitled to habeas
corpus because justice's court granted six-day continuance. NRS 171.196, subd. 2; DCR 21.
OPINION
This is an appeal from a district court denial of habeas corpus. The petition for discharge
from restraint was based upon the failure of the magistrate to hold a preliminary examination
within 15 days as commanded by NRS 171.196(2).
1
The examination was originally
scheduled for hearing within the statutory time. On the date set the prosecutor orally
requested a continuance since the main witness for the state was absent from Clark County.
The defendant was prepared to proceed. An affidavit was not prepared and submitted to the
magistrate. The oral request of the prosecutor did not disclose the present residence of the
witness, the diligence used to procure his attendance, the substance of his testimony or
whether the same facts could be proven by other witnesses, when the prosecutor first learned
that the witness was not available, or whether the request was tendered in good faith and not
for delay.
[Headnote 1]
Substantial compliance with DCR 21 would have been required had the instant matter
been before the district court and a continuance of the trial sought by the prosecutor.
Rainsberger v. State, 76 Nev. 158, 160, 350 P.2d 995 (1960). The difficulty here is the
absence of a rule specifying the procedure to be followed and the showing to be made for
securing the continuance of a preliminary examination in the justice's court upon the ground
of the absence of a witness. The statute demands that good cause be shown. The reasons
underlying DCR 21 are equally appropriate to the continuance of a criminal proceeding in the
justice's court. Before a magistrate may decide whether statutory good cause exists, the
party seeking a continuance of a preliminary examination upon the ground of the absence of
witnesses must prepare and submit to the magistrate an affidavit stating: (a) the names of the
absent witnesses and their present residences, if known; (b) the diligence used to procure their
attendance; (c) a brief summary of the expected testimony of such witnesses and whether
the same facts can be proven by other witnesses; {d) when the affiant first learned that
the attendance of such witnesses could not be obtained; and {e) that the motion is made
in good faith and not for delay.
____________________

1
The statute in relevant part reads: If the defendant does not waive examination, the magistrate shall hear
the evidence within 15 days, unless for good cause shown he extends such time. . . .
of the expected testimony of such witnesses and whether the same facts can be proven by
other witnesses; (d) when the affiant first learned that the attendance of such witnesses could
not be obtained; and (e) that the motion is made in good faith and not for delay.
[Headnote 2]
In the case at hand, however, we cannot fault the justice's court for granting a six-day
continuance of the preliminary examination, since it decided the matter without benefit of
rule or case precedent; it follows that the district court did not err in denying habeas relief.
The portion of this opinion relating to the procedure to be followed and the showing to be
made in order to secure the continuance of a preliminary examination in the justice's court
upon the ground of the absence of witnesses shall have application prospectively.
Affirmed.
Collins, C. J., Zenoff, Batjer, and Mowbray, J J., concur.
____________
85 Nev. 236, 236 (1969) Swenson v. Strout Realty, Inc.
DOROTHY B. SWENSON and LESTER V. SWENSON, Husband and Wife, Appellants, v.
STROUT REALTY, INC., a California Corporation, Respondent.
No. 5662
April 15, 1969 452 P.2d 972
Appeal from judgment of the First Judicial District Court, Douglas County; Frank B.
Gregory, Judge.
Action by broker for commission for having procured buyer who was ready, willing and
able to purchase land upon terms specified by defendant sellers who refused to sell property,
wherein by counterclaim defendants sought damages from broker arising from separate
transaction. The lower court awarded broker $1,500 commission and ruled for broker on
counterclaim and defendants appealed. The Supreme Court, Thompson J., held that where
listing agreement provided that broker was to receive 10 percent of selling price and broker
procured buyer who agreed to pay $15,000 for parcel, but it was discovered that parcel was
smaller than thought so that price was reduced to $12,474, broker's commission should
have been 10 percent of that amount.
price was reduced to $12,474, broker's commission should have been 10 percent of that
amount.
Affirmed in all respects save the granting of $1,500 to Strout Realty as a broker's
commission; this award reduced to $1,247.40.
Edward E. Hale, of Reno, and Gary A. Sheerin, of Carson City, for Appellants.
Milton Manoukian, of Carson City, for Respondent.
1. Brokers.
Evidence supported finding that broker had produced buyer who was ready, willing and able to purchase
upon terms on which broker was authorized to sell, in action brought by broker for commission after
defendant owners refused to sell.
2. Brokers.
Where broker produced buyer who was ready, willing and able to purchase upon terms on which broker
was authorized to sell, commission was payable to broker.
3. Brokers.
Where listing agreement provided that broker was to receive 10 percent of selling price and broker
procured buyer who agreed to pay $15,000 for parcel, but it was discovered that parcel was smaller than
thought so that price was reduced to $12,474, broker's commission should have been 10 percent of that
amount rather than 10 percent of the $15,000.
4. Easements.
In absence of statute to contrary, location of easement when selected cannot be changed by either
landowner or easement owner without other's consent.
5. Fraud.
Where purchasers knew of existence of prescriptive easement before consummating agreement to
purchase land and they consulted their attorney regarding its relocatability, purchasers were not entitled to
rely upon innocently made statement of broker's agent, who was not an attorney, that easement could be
relocated by purchasers and purchasers were not entitled to recover from broker on ground that the
statement was false.
OPINION
This appeal concerns two real estate transactions handled by Strout Realty, a licensed
broker. That company commenced suit against the Swensons to recover a commission of
$1,500 for having procured a buyer who was ready, willing, and able to purchase land
upon terms specified by the Swensons.
for having procured a buyer who was ready, willing, and able to purchase land upon terms
specified by the Swensons. The sale was not completed. By counterclaim the Swensons
sought damages of $4,500 from the broker arising from a separate transaction. They assert
that such damages were incurred by reason of false representations made by one of Strout
Realty's agents concerning the relocatability of a prescriptive easement over land purchased
by the Swensons.
1
The district court ruled for Strout Realty in each instance, and the
Swensons have appealed contending that the award of $1,500 commission is excessive and
should be reduced, and requesting that we direct judgment in their favor on their
counterclaim.
[Headnotes 1-3]
1. The commission. In the district court the Swensons challenged the broker's entitlement
to a commission. That challenge is abandoned here, and only the amount awarded is in
question.
2
The relevant facts are these: The Swensons gave Strout Realty an exclusive listing
to sell 50 acres more or less for $1,500 per acre. Multiple sales were contemplated. No
restriction was indicated as to the number of acres to be included in a particular sale. The
listing agreement provided for a commission of 10% of the selling price, or a minimum
commission of $200, whichever is greater. The broker procured a buyer who agreed with the
Swensons to pay $15,000 for a parcel of land which the parties thought was ten acres more
or less in size. An offer and acceptance agreement was executed. By the time escrow
instructions were prepared for signature it was discovered that the parcel of land contained
only 8.316 acres. Accordingly, the escrow instructions reflected the reduced acreage and a
corresponding reduction of purchase price to $12,474. The buyer signed the escrow
instructions but the Swensons refused to do so, and the sale was not consummated. It is
apparent from the record that the parties knew the boundaries of the parcel to be sold and
contracted for that parcel regardless of the precise acreage involved. When that acreage was
determined the price was adjusted. It follows that the broker's commission was similarly
diminished in dollar amount, that is, 10 percent of the adjusted purchase price of $12,474
rather than 10 percent of $15,000.
____________________

1
Other claims between the parties were litigated below, but are not involved on this appeal.

2
The record contains substantial evidence to support the court's finding that the broker produced a buyer who
was ready, willing, and able to purchase upon the terms on which the broker was authorized to sell. A
commission was, therefore, payable. Evans v. Dorman, 81 Nev. 319, 322, 402 P.2d 652 (1965). It is not
necessary that the sale be completed. Engel v. Wilcox, 75 Nev. 323, 326, 340 P.2d 93 (1959).
amount, that is, 10 percent of the adjusted purchase price of $12,474 rather than 10 percent of
$15,000. The district court erred in awarding a commission of $1,500 and we modify that
judgment to $ 1,247.40.
2. The counterclaim. The Swensons entered into an agreement to buy ranch property from
Ruhenstroth Co. Strout Realty, through its agent Jack Bay, was the broker for the seller
Ruhenstroth. One Fred Dressler had acquired a prescriptive easement along the southern
border of the property. Bay was informed of the easement by Henry Ruhenstroth who stated
that the easement could be relocated by the Swensons. Bay, in turn, so advised the Swensons.
The escrow instructions referred to the Dressler easement and the Swensons consulted their
attorney regarding its relocatability.
Their counterclaim for damages rests upon Bay's statement that the easement was
relocatable. His statement was innocently made. Indeed, it is not contended that either bad
faith or fraud was involved. The thrust of the Swensons' charge is that the Bay statement
concerned a material aspect of their transaction with Ruhenstroth Co., was false, was uttered
recklessly to their damage, and is compensable.
[Headnote 4]
The Bay statement was not legally correct. It is a general rule of law that, in the absence of
statute to the contrary, the location of an easement once selected, cannot be changed by either
the landowner or the easement owner without the other's consent. Simonson v. Moon, 237
P.2d 93 (Idaho 1951); Sibbel v. Fitch, 34 A.2d 773 (Md.App. 1943). Thus, the statement that
the easement could be unilaterally relocated by the owner of the servient estate was a
misrepresentation of law innocently made by one who is not a lawyer.
[Headnote 5]
We do not now decide whether reliance upon such a misrepresentation may ever constitute
a cause of action for damages. There is authority that an innocent misrepresentation by a real
estate broker as to a matter of law does not constitute remedial fraud. Steele v. Banninga, 196
N.W. 404 (Mich. 1923); cf. Brady v. Carman, 3 Cal.Rptr. 612 (Cal.App. 1960), where the
misrepresentation by the broker was with regard to a material fact concerning which he
should have had superior knowledge. In the case before us the trial court found that the
Swensons did not have the right to rely upon Bay's statement that the easement was
relocatable. That finding is supported by substantial evidence. The Swensons knew of the
existence of the prescriptive easement before consummating the agreement to purchase.
existence of the prescriptive easement before consummating the agreement to purchase. They
consulted their attorney regarding its relocatability. Although the record does not disclose the
attorney's advice, we cannot presume that the Swensons were erroneously instructed. In these
circumstances it was permissible for the trial court to find that the Swensons were not entitled
to rely upon Bay's statement.
Accordingly, we affirm the judgment below in all respects save the granting of $1,500 to
Strout Realty as a broker's commission; this award must be reduced to $1,247.40.
Collins, C. J., Zenoff and Mowbray, JJ., and Young, D. J., concur.
____________
85 Nev. 240, 240 (1969) Benson v. State
DOROTHY MAE JOHNSON, a/k/a DOROTHY MAE BENSON,
No. 5705
April 17, 1969 452 P.2d 917
Appeal from judgment of the Eighth Judicial District Court, Clark County; Alvin N.
Wartman, Judge.
Affirmed.
Foley, Garner & Shoemaker, of Las Vegas, for Appellant.
Leonard I. Gang, Special Deputy District Attorney, Clark County, for Respondent.
OPINION
Per Curiam:
This appeal is dismissed and the judgment below is affirmed on the authority of Fairman
v. Warden, 83 Nev. 332, 431 P.2d 660 (1967), since the facts and legal issues are identical
and arise out of the same circumstances.
Since the appellant is an indigent and her counsel was appointed by the district court to
prosecute this appeal, we direct that court to give counsel the certificate specified in NRS
7.260(3).
Affirmed.
____________
85 Nev. 241, 241 (1969) State v. District Court
STATE OF NEVADA, Petitioner, v. SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA in and for the County of Washoe, the Honorable Thomas O. Craven, a
District Judge Thereof, Respondents.
No. 5758
April 22, 1969 453 P.2d 421
Application for Writ of Prohibition.
Original proceeding by state seeking to prohibit enforcement of order of district court
requiring state to pay court-appointed counsel for fees and expenses of investigator who aided
them in preparing defense of indigent accused murderer. The Supreme Court, Collins, C. J.,
held that district court could not require payment of such fees and expenses by state but could
require such payment by county involved.
Application granted.
Harvey Dickerson, Attorney General, and Daniel R. Walsh, Chief Deputy Attorney
General, for Petitioner.
John C. Renshaw and James J. Halley, of Reno, for Respondents.
1. States.
Expenses of investigator to aid court-appointed counsel in preparing defense of indigent accused
murderer could not be paid from state's general fund, in absence of statute indicating legislative intent to
authorize such expenditure and fixing maximum amount to be paid. Const. art. 4, 19; NRS
226.230, 227.160, subd. 2, 227.170, subd. 1, 227.330, 353.350.
Constitutional rights of accused require that court-appointed counsel be reimbursed for out-of-pocket
expenses in representing his client.
Trial courts have inherent right to entertain motions seeking allowances for reimbursement to counsel for
out-of-pocket expenses incidental to defense of indigent accused and to order payment of such reasonable
amounts as they, in their discretion, deem proper and necessary.
4. Counties.
District court could not require payment by state for reimbursement to counsel for out-of-pocket expenses
incidental to his defense of indigent accused but could require payment by counties. Const. art. 4, 19;
NRS 7.260, subd. 3, 226.230, 227.160, subd. 2, 227.170, subd. 1, 227.330, 353.350.
5. Counties.
Obligation of assuming cost of providing constitutionally adequate indigent defense system has been
assigned by legislature to counties which are required to provide and pay for such service until legislature
provides a different method of affixing financial responsibility. NRS 7.260, subd. 3, 260.010.
OPINION
The State of Nevada seeks to prohibit the enforcement of an order of the Second Judicial
District Court requiring the state controller to draw and the state treasurer to pay a warrant to
two court-appointed counsel for $750 for preliminary fees and expenses of an investigator to
aid them in preparing the defense of an indigent accused murderer. We conclude the Petition
for a Writ of Prohibition is proper; that the order exceeded the court's jurisdiction, and direct
the writ to issue.
The district judge in entering the order found there was a need by defendant for an
investigator to insure adequate preparation and investigation of the charged capital offense;
that the court had inherent power to allow reasonable fees and expenses of an investigator;
that the sum of $750 was a reasonable amount for the purpose; that the expenses were an
unreasonable burden upon Washoe County and should be borne not by one county but by the
citizens of the State of Nevada.
The questions presented in this case are fraught with serious and far reaching questions of
constitutional law and public policy.
Reduced to its utmost simplicity, the reason for our holding is that the district court had no
power to order payment of the item in question by the state controller and treasurer because
there was no legislative appropriation for such expense.
1. Article 4, Sec. 19, of the Nevada Constitution provides that, no money shall be drawn
from the treasury but in consequence of appropriations made by law. In addition, the statutes
clearly indicate that payment is not to be made by the state treasurer except where authorized
by law and where an appropriation has been made for such claim.
NRS 227.160(2) provides that no claim for services or advances shall be audited or
allowed by the state controller unless they shall have been specially authorized by law and an
appropriation made for its payment.
NRS 227.170(1) provides that the controller shall draw all warrants upon the treasury for
money and each warrant shall express in the body thereof the particular fund out of
which it is to be paid and the appropriation under which it is drawn.
warrants upon the treasury for money and each warrant shall express in the body thereof the
particular fund out of which it is to be paid and the appropriation under which it is drawn.
NRS 227.330 provides that if the controller shall willfully neglect or refuse to perform any
duty enjoined by law or by color of office knowingly do any act not authorized by law, he
shall be guilty of a misdemeanor. NRS 226.230 provides similar penalties for the state
treasurer should he knowingly do any act not authorized by law.
There appears to be no such appropriation for the claim in question unless one can say that
the claim can be paid from the general fund under NRS 353.350, which states that, the
general fund is designated to receive all revenues and account for all expenditures not
otherwise provided for by law in any other fund.
[Headnote 1]
However, the case of State v. Eggers, 29 Nev. 469, 91 P. 819 (1907), precludes the
payment of these expenses from the general fund. In Eggers this court held there must be a
statute indicating the legislative intent to authorize the expenditure and fixing a maximum
amount to be paid. Specifically the court said, at page 484:
As all appropriation must be within the legislative will, it is essential to have the amount
of the appropriation, or the maximum sum from which the expenses could be paid, stated.
This legislative power cannot be delegated nor left to the recipient to command from the state
treasury sums to any unlimited amount for which he might file claims. See also State v. La
Grave, 23 Nev. 25, 41 P. 1075 (1895), and Crane v. Frohmiller, 45 P.2d 955 (Ariz. 1935).
Here, there is no indication or reference to any such statute enacted by the legislature
indicating an intent to authorize the expenditure or fixing the maximum amount to be paid
from state funds.
But respondents contend there need be no statute authorizing payment because the court,
even in the absence of a legislative appropriation, may order the payment because of the
constitutional right of the indigent defendant or his court-appointed counsel.
[Headnote 2]
2. Do the constitutional rights of the accused require that court-appointed counsel be
reimbursed for out-of-pocket expenses in representing his client? We feel that they do.
In State v. District Court, 80 Nev. 478, 396 P.2d 680 (1964), this court said, in requiring
Clark County to provide an indigent defendant with a copy of a transcript of the evidence
at his first trial, which ended in a hung jury, for use of his counsel at the second trial:
an indigent defendant with a copy of a transcript of the evidence at his first trial, which ended
in a hung jury, for use of his counsel at the second trial:
However, we wish to mention that in this case the judicial power to make the order in
question does not rest primarily upon the statutory provisions which we have related. The
demands of the due process and equal protection clauses of the fourteenth amendment to the
federal constitution compel that a copy of the transcript of the first trial be furnished Harris.
The mentioned statutes merely implement the constitutional mandate. Likewise, in the case
of Spillers v. State, 84 Nev. 23, 436 P.2d 18 (1968), this court, in considering whether the
lower court erred in refusing to allow funds for an expert witness and additional discovery,
held that upon a showing of need the court may order provision be made for necessary
witnesses or evidence. . . .
Other states have considered the constitutional right of an indigent defendant to
reimbursement of his counsel for out-of-pocket expenses. In State v. Horton, 170 A.2d 1 (N.J.
1961), in interpreting a statute which provided for reasonable compensation to
court-appointed counsel in all cases of murder, the Supreme Court of New Jersey went
beyond the limitation of the statute to murder cases and said:
A word should be said about the matter of out-of-pocket expenses of defense, including
expenditures of the assigned attorney himself. Customarily, and we think properly so, the
reasonable costs of necessary items such as experts, whether witnesses or not, medical
examinations, scientific tests, photographs, depositions and transcripts, and, in essential
circumstances, professional investigation, have been ordered paid from public funds by trial
courts. The constitutional obligation to furnish counsel to an indigent can sensibly only be
construed to include as well that which is necessary to proper defense in addition to the time
and professional efforts of an attorney and we have no doubt of the inherent power of a court
to require such to be provided at public expense. . . . While we are dealing in the instant case
strictly with a situation where compensation to the attorney is authorized, we believe that
what we just said as to both major expenses of defense and miscellaneous disbursements of
attorneys should have equal application where counsel is assigned to an indigent defendant
charged with other than murder. Since this has not been the general practice in non-murder
cases, at least as to attorneys' disbursements, the view just expressed should be considered as
prospective only. (Emphasis added.)
In a follow-up opinion by that court on the same issue in State v. Rush, 217 A.2d 441 (N.J.
1966), it held:
We dealt with that subject [i.e., reimbursement for out-of-pocket expenses] in State v.
Horton. . . . We there said that counsel is entitled to reimbursement as to such items (with a
caveat that advance authorization should be sought as to some), and that such reimbursement
should also be made in non-murder' cases.
. . . . .
We intended our view to be effective at once although not to be applied to past
transactions. The adoption of a formal rule was not in mind. Nor was one necessary. The
obligation of the State to provide the indigent with the means for an appropriate defense rises
from an interplay of the constitutional rights to counsel, to fair trial, and to equality before
the law. See also People v. Watson, 221 N.E.2d 645 (Ill. 1966).
There is major authority holding a contrary view (see State v. Superior Court, 409 P.2d
742 (Ariz.App. 1966); 21 A.L.R.3rd 819, and cases cited therein); but this court is committed
toward a different view, and properly so.
[Headnotes 3, 4]
3. Holding, as we do, that an indigent defendant's constitutional rights require
reimbursement to his counsel for out-of-pocket expenses incidental to his defense, the trial
courts have the inherent right to entertain motions seeking such allowances and to order
payment of such reasonable amounts as they, in their discretion, deem proper and necessary.
While the district court may not require payment by the state for the reasons above noted, it
may require payment by the various counties.
The legislature has recognized its constitutional obligation, and while not appropriating
state funds for these expenses has authorized and directed the various counties of the state to
pay them. NRS 7.260(3).
1

No doubt the fixing of such a financial burden upon the several counties has and will cause
serious problems in some cases. We are in great sympathy with the plight thus created for
those public bodies. But because the rights recognized are of constitutional statute, there
being inherent power of the courts to make such allowance and because of the legislative
direction, the burden must fail upon the counties.
____________________

1
NRS 7.260(3) reads as follows: Compensation for services and expenses which is a county charge shall be
paid by the county treasurer out of any moneys in the county treasury not otherwise appropriated, upon the
certificate of the judge of the court that such attorney has performed the services required and incurred the
expenses claimed. . . .
Because of the magnitude of the problem, the legal profession, from within its own ranks,
is no longer able nor obligated to meet the burden alone. State v. Rush, supra; State v.
Hilgemann, 34 N.E.2d 129 (Ind. 1941). If the investigation fees here requested were not
allowed in an amount fixed by the court in the exercise of sound discretion, counsel would
either have to pay the expenses themselves or proceed to trial without being adequately
prepared. Either alternative would produce unconscionable burdens or ineffective
representation precipitating a series of court reviews which might and probably would require
retrial. Society must assume the cost of providing a constitutionally adequate indigent defense
system. The legislature has assigned that obligation to the counties.
[Headnote 5]
No doubt it would be wiser for the state to provide a uniform system for the handling of
this type of problem. One serious criminal case could literally bankrupt one of our small,
financially insecure counties. But until the legislature provides a different method of affixing
financial responsibility than is now upon our statutes, we have no choice but to require the
counties to provide and pay for this type of service in accordance with legislative mandate.
Should a county be unable to meet an obligation ordered under this rule, a more perplexing
constitutional issue would be presented. There is no evidence that Washoe County cannot
respond to the order of the lower court.
The counties, individually or by joint agreement, might well be able to meet this burden
through a public defender system. See NRS 260.010, which authorizes such an office.
The lower court is permanently prohibited from seeking to enforce its order against the
state controller and treasurer.
____________
85 Nev. 246, 246 (1969) Watkins v. Sheriff
FREDDIE WATKINS, Appellant, v. SHERIFF OF
No. 5647
April 23, 1969 453 P.2d 611
Appeal from order denying habeas relief. Eighth Judicial District Court, Clark County;
John F. Mendoza, Judge.
Petitioner who was charged with obtaining money under false pretenses, sought habeas
corpus. The lower court denied relief, and petitioner appealed. The Supreme Court,
Thompson, J., held that seller of tires to accused, who gave therefor indorsed payroll
check made out to another, was holder in due course of payroll check and was protected
against claim of rightful owner and did not sustain injury or damage from taking the
check for the tires and accused could not be charged in connection therewith for
obtaining money under false pretenses.
relief, and petitioner appealed. The Supreme Court, Thompson, J., held that seller of tires to
accused, who gave therefor indorsed payroll check made out to another, was holder in due
course of payroll check and was protected against claim of rightful owner and did not sustain
injury or damage from taking the check for the tires and accused could not be charged in
connection therewith for obtaining money under false pretenses.
Reversed.
James D. Santini, Public Defender, and Anthony M. Earl, H. Leon Simon, and Robert N.
Peccole, Deputy Public Defenders, Clark County, for Appellant.
Harvey Dickerson, Attorney General, of Carson City, George E. Franklin, Jr., District
Attorney, and Alan R. Johns, and Earl P. Gripentrog, Deputy District Attorneys, Clark
County, for Respondent.
1. False Pretenses.
Elements of offense of obtaining money under false pretenses are that accused intend to cheat or defraud
person from whom money is obtained and that person from whom money is obtained sustain injury or
damage. NRS 205.380.
2. False Pretenses.
Seller of tires to accused, who gave therefor indorsed payroll check made out to another, was holder in
due course of payroll check and was protected against claim of rightful owner and did not sustain injury or
damage from taking the check for the tires and accused could not be charged in connection therewith for
obtaining money under false pretenses. NRS 104.3302, 104.3305, 205.380.
OPINION
This appeal tenders an issue of law as to whether the statutory offense of obtaining money
under false pretenses [NRS 205.380] embraces one who negotiates bearer paper to a holder in
due course. Following a preliminary examination, Freddie Watkins was ordered to stand trial
in the district court for having violated NRS 205.380. In that court he sought release from
restraint by a petition for habeas corpus, was denied relief and has appealed. We reverse.
The Silver Slipper Gambling Hall & Saloon issued its payroll check for $185.59 to Mrs.
Reggie Bluiett, an employee, who endorsed it in blank and left it on the dresser in her home.
The following day she learned that the check was missing along with other items of property.
On that day Freddie Watkins purchased two tires from Western Auto with Mrs. Bluiett's
payroll check. The tires cost $73.21 and Watkins received the balance in cash. Watkins was
subsequently charged with having obtained money under false pretenses from Joseph H.
Hudson, the owner of Western Auto.
[Headnotes 1, 2]
An essential element of this statutory offense is that the accused intend to cheat or defraud
the person from whom the money is obtained.
1
Case law imposes the additional requirement
that the person from whom the money is obtained sustain injury or damage. State v. Handke,
340 P.2d 877 (Kan. 1959); State v. Casperson, 262 P. 294 (Utah 1927); State v. Matthews, 25
P. 36 (Kan. 1890). Western Auto did not incur injury or damage since it was a holder in due
course, having given value, in good faith and without notice of any claim to the instrument on
the part of any person. NRS 104.3302. Theft is not a defense against a holder in due course.
NRS 104.3305. Western Auto was protected against the claim of the rightful owner. It
received a valid, enforcible payroll check and was not damaged. Accordingly, the statutory
offense charged to Watkins was not committed by him and his petition for habeas corpus
must he granted. We, therefore, reverse the district court and order that Freddie Watkins be
released from custody or restraint upon this particular charge. The state may charge Watkins
with whatever offense is warranted by the evidence in its possession.
We concur.
____________________

1
NRS 205.380 reads: Every person who shall knowingly and designedly, by any false pretense or pretenses,
obtain from any other person or persons any chose in action, money, goods, wares, chattels, effects or other
valuable thing, with intent to cheat or defraud any person or persons of the same, is a cheat, and on conviction
shall be imprisoned in the state prison not less than 1 year nor more than 10 years, or by a fine of not more than
$5,000, or by both fine and imprisonment, and be sentenced to restore the property so fraudulently obtained, if it
can be done. Should the value of any chose in action, money, goods, wares, chattels, effects, or other valuable
thing so, as aforesaid, fraudulently obtained, not exceed in value the sum of $100, every person so offending is a
cheat, and is guilty of a misdemeanor, and shall be sentenced to restore the property so fraudulently obtained, if
it can be done.
____________
85 Nev. 249, 249 (1969) Steen v. Gass
CHARLES STEEN, MICHAEL REUBEN DeSALVO, EDWARD BLUMSTROM and
FRED HILL ATCHESON, Appellants, v. JOHN P. GASS, Respondent.
No. 5615
April 28, 1969 454 P.2d 94
Appeal from the Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Plaintiff sued for damages as result of assault and battery. The lower court entered
judgment in favor of plaintiff, and defendants appealed. The Supreme Court, Collins, C. J.,
held that evidence was sufficient to support jury finding that plaintiff did not consent to
engage in mutual combat with anyone so as to support civil judgment for damages for assault
and battery in light of plaintiff's going to park only after voicing protest to companion and
being told by companion that only fight would be between companion and another and in
light of fact that one defendant after seeing plaintiff winning fight with another defendant hit
plaintiff when plaintiff was turned halfway toward him and jumped on him and then
immediately proceeded to another fight.
Affirmed.
[Rehearing denied May 27, 1969]
Vargas, Bartlett & Dixon, for Appellant Steen; Cooke & Roberts, for Appellant DeSalvo;
Breen & Young and Jerry Carr Whitehead, for Appellant Blumstrom; Goldwater, Taber, Hill
& Mortimer, for Appellant Atcheson, all of Reno.
Bradley & Drendel; Fry and Fry, of Reno, and Lally, Martin & Chidlaw, of Sacramento,
for Respondent.
On direct appeal from jury verdict, Supreme Court may only consider evidence presented at trial to
determine whether there was any substantial evidence to support findings of jury or whether conclusion
reached by jury was clearly wrong.
On appeal Supreme Court must assume that jury believed those portions of evidence most favorable to
respondent.
Evidence was sufficient to support jury finding that plaintiff did not consent to engage in mutual combat
with anyone so as to support civil judgment for damages for assault and battery in light of plaintiff's going
to park only after voicing protest to companion and being told by companion that only fight would be
between companion and another and in light of fact that one defendant after seeing
plaintiff winning fight with another defendant hit plaintiff when plaintiff was turned
halfway toward him and jumped on him and then immediately proceeded to another
fight.
85 Nev. 249, 250 (1969) Steen v. Gass
between companion and another and in light of fact that one defendant after seeing plaintiff winning fight
with another defendant hit plaintiff when plaintiff was turned halfway toward him and jumped on him and
then immediately proceeded to another fight.
Where there was substantial evidence to support jury finding that plaintiff did not consent to engage in
mutual combat with anyone, admission by persons who fought with plaintiff that they hit him and kicked or
jumped on him would justify verdict for plaintiff without specific proof of whether head injury suffered by
him was caused by being struck with fists, falling on pavement or being kicked.
Trial court's failure to permit one defendant's attorney to withdraw on ground that he had represented
second defendant in prior criminal proceedings against second defendant advising him to plead guilty did
not prejudice second defendant since counsel's argument to jury referring to intervening felony committed
on plaintiff by second defendant consisted of nothing more than statement of fact to be found in records of
court in which second defendant had pleaded guilty and was made after other defense counsel had referred
to prior pleas.
OPINION
This is an appeal from a judgment of the Second Judicial District Court, pursuant to a jury
verdict awarding respondent (plaintiff below) compensatory damages against the four
appellants (defendants below), in the sum of $500,000 and punitive damages against
appellant DeSalvo in the sum of $10,000 and against appellant Blumstrom in the sum of
$5,000 as a result of an assault and battery committed on January 31, 1964. All of the
defendants filed notices of appeal. Respondent has executed a satisfaction of judgment in
favor of Steen only and the appeal has been dismissed as to Steen. The appeal of Atcheson
has also been dismissed, upon his motion. Only the appeals of DeSalvo and Blumstrom
remain for our consideration. As to them we affirm the judgment.
On the evening of January 31, 1964, Steen, Gass, and a female companion were returning
to Reno, Nevada, in a car driven by Steen after a basketball game in Carson City. While
stopped at a stop sign on South Virginia Street in Reno, their car was bumped from the rear
by a car driven by Atcheson in which Blumstrom, DeSalvo and another were passengers.
Steen was agitated and used foul language toward Atcheson. This resulted in an argument
between Steen and Atcheson in which the others joined.
85 Nev. 249, 251 (1969) Steen v. Gass
which the others joined. Gass also was out of the Steen car during this encounter. Steen
desired to call the police, but there was apparently no damage to his car and Atcheson talked
him out of it. Prior to this incident, the occupants of the Atcheson car had been drinking. The
two cars proceeded north on South Virginia Street. Steen testified that at one point the
Atcheson car was maneuvered in front of him and stopped suddenly without warning. Steen
slammed on his brakes to keep from hitting it and the car drove on. Traffic was heavy on
South Virginia Street that evening. In the downtown area it was moving at a snail's pace.
Atcheson testified that the others in the car indicated that the way Steen acted at the first
encounter, Atcheson should have fought him right there. At approximately the intersection of
North Virginia Street and First Street more words were exchanged between the occupants of
the two cars. Both cars were stopped at the intersection, the Atcheson car, with Blumstrom
driving at this time, was in front of the Steen car. Atcheson alighted from the passenger side
of his car and went up to the driver's side of Steen's car and asked Steen if he would like to
settle the affair. Steen accepted the challenge, and Atcheson suggested they go to Idlewild
Park. The occupants of both the Steen and Atcheson cars informed the occupants of other cars
that there was to be a fight at Idlewild Park.
At the park two fights took place. Steen and Atcheson engaged in one fight and Gass and
Blumstrom engaged in another. The evidence is conflicting as to which of the two fights
began first. Atcheson's friends jumped in to help him in his fight against Steen. Gass
apparently had Blumstrom against Steen's car when DeSalvo jumped in to help Blumstrom.
DeSalvo admits striking Gass about three times, and as Gass went down DeSalvo jumped on
his chest. Blumstrom admits kicking Gass while he was down and also testified that DeSalvo
kicked Gass. Blumstrom then went to the Atcheson car, and DeSalvo testifies that he
proceeded to the Atcheson-Steen fight.
When the Atcheson-Steen fight broke up, Gass was discovered lying on the ground
unconscious. Attempts were made by DeSalvo and others to revive him, and when this was
unsuccessful Gass was put into Steen's car. DeSalvo, Blumstrom, and possibly others, then
went to the Fat Boy Drive-in to call an ambulance. They returned to the park to pick up the
other people and then went to Washoe Medical Center to await the ambulance. Steen
proceeded out of the park with Gass in his car and stopped a merchant patrolman who also
called an ambulance. Gass was taken to the hospital in the ambulance.
85 Nev. 249, 252 (1969) Steen v. Gass
in the ambulance. Steen proceeded to the hospital after the ambulance.
Gass suffered deep-seated brain injuries and a partial collapse of the right lung. He was in
a coma for 17 days and remained in the hospital until May 1, 1964. The only physician to
testify was Dr. Mack, who treated Gass from February 2, 1964. He testified to the severe and
permanent brain injury that Gass suffered and he also stated that such injury was consistent
with a blow or blows to the head with a fist, striking the head on pavement or being kicked in
the head by a man.
Blumstrom and DeSalvo were placed under arrest at the Washoe Medical Center and taken
to the Reno City Jail. They were both charged with attempted murder, assault with a deadly
weapon, and assault with intent to do bodily harm. On the criminal charges, DeSalvo was
represented by Harold O. Taber, the attorney who later represented Atcheson in the civil suit
which is the subject of this appeal. Blumstrom was represented by other counsel. On advice
of their attorneys, they both pleaded guilty to assault with intent to do bodily harm and both
received probation.
There is one issue common to both appellants DeSalvo and Blumstrom and one issue
pertaining to DeSalvo alone. These two issues are decisive of this appeal and, while other
issues were raised by counsel, we limit our discussion to two pertinent points of error.
The one issue common to both DeSalvo and Blumstrom is this:
I. Is there any substantial evidence in the record to establish that Gass did not consent to
engage in mutual combat?
The issue concerning DeSalvo alone is this:
II. Was the trial court's refusal to permit Harold O. Taber to withdraw from the case as
attorney for Atcheson and its failure to require him to do so reversible error?
1. An early case from this court, relied upon by all parties to this appeal, Wright v. Starr,
42 Nev. 441, 179 P. 877 (1919), sets down the rules for civil liability for assault and battery
in this state. In that case, a woman was allegedly assaulted by a man in her room. The woman
contended the man had grabbed and pressed her throat and neck with his hands, had pressed
her watch into her flesh and had torn her clothing off. The man contended he merely kissed
her with her consent, and when he attempted to kiss her goodby she demurred to the effort
and he desisted. This court held in that case, in sustaining the verdict for the defendant, To
permit a recovery of damages in a civil action for an assault, by one who has consented to
or participated in the acts causing the injury, is to countenance a principle that one may
profit by his own wronga theory obnoxious to both law and equity." Id. at p.
85 Nev. 249, 253 (1969) Steen v. Gass
a recovery of damages in a civil action for an assault, by one who has consented to or
participated in the acts causing the injury, is to countenance a principle that one may profit by
his own wronga theory obnoxious to both law and equity. Id. at p. 445. And further, at p.
446, But we do hold that in an ordinary assault and battery in the common course of things,
consent precludes a right of action for injuries received.
[Headnotes 1, 2]
A careful reading of the record convinces us there is substantial evidence to sustain a jury
finding that Gass did not consent to engage in mutual combat with anyone. On a direct appeal
from a jury verdict, this court may only consider the evidence presented at trial to determine
whether there was any substantial evidence to support the findings of the jury, or whether the
conclusion reached by the jury was clearly wrong. Finnell v. Bromberg, 79 Nev. 211, 381
P.2d 221 (1963), cert. denied 379 U.S. 988 (1965); Quilici v. Battaglia, 78 Nev. 413, 374
P.2d 887 (1962). In considering the evidence for this limited purpose, this court must assume
the jury believed those portions of the evidence most favorable to respondent. Barsland, Inc.
v. Shaw, 83 Nev. 69, 422 P.2d 1003 (1967). Substantial evidence is defined as something of
substantial and relevant consequence, and not vague, uncertain or irrelevant matter not
carrying the quality of proof' or having fitness to induce conviction. Peardon v. Peardon, 65
Nev. 717, 201 P.2d 309 (1948).
The record shows that Gass has no memory of the events that occurred on the evening in
question and he therefore could not testify concerning them. However, the testimony of Steen
indicates that after Steen accepted Atcheson's invitation to meet him at Idlewild Park, Gass
expressed a fear that there would be a mob there and told him not to go. Steen's reply was that
the fight was between Steen and Atcheson and this would be the only fight. Steen testified
also that he did not know where Idlewild Park was and that Gass gave him directions on how
to get there. This is not necessarily evidence of consent, since Gass was assured by Steen that
the fight was between Steen and Atcheson. When they arrived at Idlewild Park, some of the
others were already there and Steen told Gass to stay in the car and lock the door, and as far
as Steen was aware Gass did not get out of the car when Steen did.
Blumstrom testified as follows: When he got out of the car which he was in he saw Steen
and Atcheson fighting and he saw Gass get out of Steen's car.
85 Nev. 249, 254 (1969) Steen v. Gass
he saw Gass get out of Steen's car. It was Blumstrom's understanding that he was supposed to
fight Gass. This was apparently the arrangement that had been made by the occupants of the
Atcheson car on the way to the park. When Gass alighted from the car, Blumstrom and Gass
were about 20 feet apart and they started walking towards each other. There was no evidence
that Gass was aware of the understanding of Blumstrom that they were to fight. Blumstrom
was approaching Gass with the intent to strike him; and Blumstrom swung first without any
words being exchanged between them, although Blumstrom did state that Gass was starting
to strike him. Blumstrom contends that Gass was walking directly towards him, though the
Steen-Atcheson fight was in the other direction, and that Gass met Blumstrom about halfway
in regards to the 20-feet distance between them. However, John Douglas Crickard, a witness
to the altercation, testified that when Gass got out of the car he was very close to the car when
Blumstrom hit him and that the car door stayed open.
The above testimony is sufficient to support a finding by the jury that Gass did not consent
to fight Blumstrom. It is true that he did go to the park with Steen after voicing his protest,
and he did leave the safety of the car, but there is no evidence to indicate that he believed
anyone other than Atcheson and Steen was to fight, nor was there any evidence to indicate
that Gass intended to fight others at the park when he alighted from the car.
The evidence is virtually uncontradicted that Gass did not consent to fight DeSalvo.
DeSalvo testified that when he first observed Gass the fight with Blumstrom had already
commenced. Blumstrom was bent over the back or front of Steen's car and Gass was facing
him and holding him over the car. It appeared Blumstrom was losing the fight, and DeSalvo
approached Gass from the right. Gass turned halfway toward DeSalvo, and DeSalvo hit him
approximately three times and he went down, whereupon DeSalvo jumped on him and
immediately thereafter proceeded to the Steen-Atcheson fight to kick Steen. Blumstrom's
version of DeSalvo's interruption of the fight with Gass is as follows: Blumstrom had the
distinct feeling that he was losing the fight, so he grabbed Gass and just held on. Gass had
him up against the car when Mike [DeSalvo] came running up, out of the blue, and he
started hitting him with roundhouse swings, and he was swinging in such a manner he was
hitting me a few times, and I was pinned . . . Somehow I got him away, either Mike hit him or
I pushed him away, and he went to the ground.
85 Nev. 249, 255 (1969) Steen v. Gass
[Headnotes 3, 4]
It is concluded that there is substantial evidence in this case to support a jury finding that
Gass did not consent to engage in mutual combat with anyone. On this basis, the admission
by DeSalvo and Blumstrom that they hit him and kicked or jumped on him is sufficient to
sustain a verdict for respondent without specific proof of whether the head injury suffered by
respondent was caused by being struck with fists, falling on the pavement or being kicked.
Applying the rule in Wright v. Starr, supra, to this case, there being no consent to engage
in mutual combat by one assaulted and battered, a civil judgment for damages must be
sustained.
[Headnote 5]
2. We consider next the issue raised by DeSalvo alone; whether the lower court's failure to
permit Harold O. Taber to withdraw as attorney for Atcheson and its refusal to require him to
withdraw was prejudicial error. We conclude that the order of the lower court was error, but
under all the circumstances shown from the record it was not prejudicial.
While the lower court relied upon Wait v. District Court, 81 Nev. 612, 407 P.2d 912
(1965), in refusing to require Taber's withdrawal, we do not think that decision controls the
question presented here. The appropriate rule is that announced in Boyd v. District Court, 51
Nev. 264, 274 P. 7 (1929), where this court, in discussing the rule that an attorney cannot
represent conflicting interests, stated:
The rule is a rigid one, and designed not alone to prevent the dishonest practitioner from
fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a
position where he may be required to choose between conflicting duties, or be lead to attempt
to reconcile conflicting interests rather than to enforce to their full extent the rights of the
interests which he should alone represent.
Likewise, Canon 6 of the A.B.A. Canons of Professional Ethics reads as follows:
It is the duty of a lawyer at the time of retainer to disclose to the client all the
circumstances of his relations to the parties, and any interest in or connection with the
controversy, which might influence the client in the selection of counsel.
It is unprofessional to represent conflicting interests, except by express consent of all
concerned given after a full disclosure of the facts. Within the meaning of this canon, a
lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend
for that which duty to another client requires him to oppose.
85 Nev. 249, 256 (1969) Steen v. Gass
his duty to contend for that which duty to another client requires him to oppose.
The obligation to represent the client with undivided fidelity and not to divulge his
secrets or confidences forbids also the subsequent acceptance of retainers or employment
from others in matters adversely affecting any interest of the client with respect to which
confidence has been reposed.
The A.B.A. canons are a part of the rules of professional conduct of the State Bar of
Nevada. SCR 203. See also Supreme Court Rules 166, 169 and 179.
The record clearly indicates that DeSalvo was charged with the criminal offenses of
attempted murder, assault with a deadly weapon and assault with intent to do bodily harm. He
was represented in the criminal proceedings by Harold O. Taber, the same attorney who
represented Atcheson in the civil action which gave rise to this appeal. On the advice of
Taber, he pleaded guilty to the least of the three charges, assault with intent to do bodily
harm, and was granted probation. Before entering the plea of guilty, he was advised that
public opinion in the Reno area was very strong against him because of the publicity given
the case, and it would be impossible to get a fair trial in Washoe County. He was also advised
that an attempt to have the case tried in another county had been unsuccessful and that if he
entered a plea of guilty to the lesser charge, he could probably be granted probation.
On January 10, 1968, five days before the civil trial, Harold O. Taber filed a Motion for an
order permiting him to withdraw as attorney for Atcheson on the ground that his continued
representation of said defendant would be in violation of Canon 6 of the Rules of
Professional Ethics, which prohibits attorneys from representing conflicting interests. On the
same day, Bruce D. Roberts, counsel for DeSalvo in the civil suit, sought by motion an order
requiring Harold O. Taber to withdraw as counsel for Atcheson.
On January 11, 1968, Judge Thomas O. Craven denied both motions, and in relying on the
case of Wait v. District Court, supra, stated:
. . . It is to be noted that at that time the defendant DeSalvo was and always had been a
party defendant to the action. Therefore when Mr. Taber undertook the defense of Atcheson,
who was added as a party defendant he did so recognizing there was no conflict of interest in
the action. If there was no conflict there would be no reason at any time to ask to be relieved
of his defense of Atcheson, and if there was a conflict he shouldn't have taken the defense of
Atcheson in the first place.
85 Nev. 249, 257 (1969) Steen v. Gass
the first place. The only conclusion to which the Court can come is that there was not and is
not a conflict.
. . . The very least that can be said is that if a conflict exists, Mr. Taber knew, or definitely
should have known, of such conflict of interest at that time. The only possible inference is
that there is no conflict. If a conflict should later develop that will become the problem of,
and the responsibility of, Mr. Taber according to the authority of Wait v. District Court, 81
Nev. 612.
On the first day of the trial, counsel for DeSalvo renewed the motion to force Taber to
withdraw as Atcheson's counsel, stating that he did not know Taber had represented DeSalvo
in the criminal proceedings and that DeSalvo did not understand what a conflict of interest
was until counsel explained it to him.
That motion was denied by Judge John E. Gabrielli, who stated:
I feel that I am bound by Judge Craven's decision on this point. And, Mr. Roberts, your
statements here today are in the nature of an offer of proof on those matters, so I think that the
Supreme Court would be adequately advised of what you intended to prove, if permitted to
proceed at this point.
So, with that understanding, I will deny your request to produce the evidence that you
request at this time on that motion. And, as I said, I feel bound by Judge Craven's decision at
this time.
There the matter rested, with the contended error properly and carefully preserved for
consideration by this court until, during the trial, the problem was brought to the attention of
the jury by DeSalvo's counsel over the objection of counsel for Gass.
Why DeSalvo's counsel brought that information to the attention of the jury is not clear
from the record. Up to that point the question of Taber's dual role was singularly one of law,
upon which the trial court had ruled twice. Apparently, Mr. Roberts' purpose was to make the
circumstances of Taber's previous representation of DeSalvo some sort of fact issue for the
jury's consideration, because immediately following that testimony in the record, Mr. Roberts
also elicited testimony from DeSalvo that he pleaded guilty to a lesser offense upon the
advice of Mr. Taber and the reasons why he did so, namely, he could not get a fair trial in
Washoe County, he would not get a change of venue, and that he would probably get
probation, which he in fact did.
It is difficult to see how Taber's previous representation of DeSalvo could be made a
proper fact issue for the jury's consideration unless it could be contended that Taber
somehow failed in the performance of his professional obligation to DeSalvo in advising
him to plead guilty to the lesser criminal charge.
85 Nev. 249, 258 (1969) Steen v. Gass
DeSalvo could be made a proper fact issue for the jury's consideration unless it could be
contended that Taber somehow failed in the performance of his professional obligation to
DeSalvo in advising him to plead guilty to the lesser criminal charge. Nowhere in the record
is that suggested by anyone. That this point was not a proper fact issue for the jury is borne
out from the instructions given the jury by the court. No instruction was given which deals
with the subject.
Appellant DeSalvo contends that he was prejudiced by Harold O. Taber's remarks to the
jury while arguing on behalf of his client Atcheson in this civil action. Twice during his
argument Taber referred to DeSalvo. On the first occasion he said: My position is that he
[Atcheson] is not legally responsible for the intervening felonious unforeseeable acts and
conduct of DeSalvo and Blumstrom. On the second occasion he said:
But I submit to you people [jurors] that no teenage boy, or even an adult, could or should
have reasonably foreseen that an intervening felony would be committed on John Gass, which
results in the injuries described by Dr. Mack.
These statements by Taber consisted of nothing more than a statement of fact to be found
in the records of the Second Judicial District Court where DeSalvo and Blumstrom did plead
guilty to the crime of assault with intent to do bodily harm. There was no showing, nor even
an inference, that confidential material was divulged.
Taber was the last of defense counsel to make closing argument to the jury. Prior to him,
the jury was addressed by Mr. Roberts on behalf of DeSalvo, Mr. Whitehead on behalf of
Blumstrom and Mr. Logan on behalf of Steen.
Each of those counsel also referred in some manner or other to DeSalvo's criminal
conviction. Mr. Roberts, DeSalvo's counsel, speaking before Mr. Taber in his argument,
made the following reference to DeSalvo's conviction:
Now it is true that Michael DeSalvo and Ed Blumstrom pled [sic] guilty to a charge of
assault to do bodily harm. And this plea of guilty was admissible in evidence as an admission
against those two defendants.
. . . . .
Now on the advice of counsel, they [DeSalvo and Blumstrom] took the opportunity and
pled [sic] guilty to the lesser of the three charges. And its very difficult now to second-guess
that decision. What I would have done under the circumstances as they existed at that time,
had I been representing Michael DeSalvo, I don't know.
85 Nev. 249, 259 (1969) Steen v. Gass
Michael DeSalvo, I don't know. It's very possible I would have done the same thing.
Mr. Whitehead, Blumstrom's counsel, also speaking before Mr. Taber, made the following
reference to DeSalvo's conviction:
Now, pleas of guilty were entered, as was mentioned by Mr. Roberts, for Mike DeSalvo
. . . In addition, there is one further matter to be considered in this case. The plea to the
charge was assault with intent to commit bodily harm. And I would submit, ladies and
gentlemen of the jury, that there can be no question from the evidence in the case, that both
boys did have an assault with intent to commit bodily harm.
. . . . .
We would submit to you on the issue of liability that the jury find, because of these facts,
either one or two things: You may find perhaps that Mike DeSalvo alone is responsible for
the damages incurred in this case. And that I think would certainly be a legitimate conclusion.
However, if you do not find that way, then I think that there must be a decision that
encompasses the balance of the defendants, because Edward Blumstrom did not participate in
the illegal and unlawful force that followed. . . .
Mr. Logan, Steen's counsel, also speaking before Mr. Taber, made the following reference
to DeSalvo's conviction:
It has come out that two individuals, Mr. DeSalvo and Mr. Blumstrom, were charged
with several crimes after an investigation, and that they pleaded guilty to assault to do bodily
harm, a felony. I can't believe, no matter what counsel says, that people who are innocent will
plead guilty. Somebody kicked Mr. Gass, and it wasn't Mr. Steen, and I know it wasn't Mr.
Atcheson.
We see no prejudice in the error.
Judgments against both Michael Reuben DeSalvo and Edward Blumstrom are affirmed.
Zenoff, Batjer, and Mowbray, JJ., and O'Donnell, D. J., concur.
____________
85 Nev. 260, 260 (1969) Havas v. Long
VICTOR HAVAS dba COURTESY MOTORS, Appellant,
v. PHIL LONG and MRS. PHIL LONG, Respondents.
No. 5650
April 30, 1969 454 P.2d 30
Mendoza, Judge.
Action on debt. The lower court entered summary judgment for defendants, and plaintiff
appealed. The Supreme Court, Mowbray, J., held that plaintiff's affidavit that he gratuitously
and unilaterally gave defendant $50 credit, in September, 1965, to be applied on defendants'
obligation of 1959-1960, did not establish proof required to show that voluntary payment was
made at time which would toll statute of limitations.
Affirmed.
Dorsey & Taylor, of Las Vegas, for Appellant.
Edwin J. Dotson, of Las Vegas, for Respondents.
1. Appearance.
Where nonresident defendants entered general appearance and moved for summary judgment, any issue
of jurisdiction was thereby removed from case. NRCP 56.
2. Limitation of Actions.
Where nonresident defendants did not test validity of denial of motion to quash service of process made
on jurisdictional grounds and made general appearance, Supreme Court would treat case as though
defendants were at all times amenable to process, and thus their absence from jurisdiction did not toll
running of statute of limitations. NRCP 4(e)(1)(i), 12(b), 56.
3. Judgment.
Plaintiffs affidavit that he gratuitously and unilaterally gave defendants $50 credit, in September, 1965, to
be applied on defendants' obligation of 1959-1960 did not establish proof required to show that voluntary
payment was made at time which would toll statute of limitation as to action on debt, and, hence, grant of
summary judgment was proper. NRS 11.390.
OPINION
Victor Havas, doing business as Courtesy Motors, appeals to this court from an order
granting summary judgment in favor of the respondents, Mr. and Mrs. Phil Long.
85 Nev. 260, 261 (1969) Havas v. Long
The alleged facts are these. The Longs, who were then residents of Las Vegas, borrowed
from Havas on six different occasions between July 9, 1957, and January 9, 1959, various
sums of money totaling $4,013.59. The Longs moved to California in 1959, where they have
since continuously resided. It is agreed that nothing was paid on the debt. However, Havas
maintains that Mr. Long repossessed a car for Havas in California in September 1965 and
that, for services rendered, Havas gave Long a $50 credit on the moneys due. Havas' position
is that this $50 credit, plus the Longs' absence from Nevada, has tolled the 6-year statute of
limitations, so that his Nevada action on the debt, which was first commenced in September
1967, was timely filed. Long agreed that Havas did contact him in California and ask him to
repossess a car, but states that he refused to do so because he did not have the local license
required for those who engage in the business of repossessing motor vehicles. Long flatly
denies any suggestion of an offer by Havas to give him, voluntarily and gratuitously, either a
$50 credit on his long-standing debt or any other remuneration. He states that William
Rawlins, manager of Masterson Motors, Long's employer, did agree that if Havas were
successful in his efforts to repossess the car, Havas could store it on Masterson's lot free of
charge as a dealer-to-dealer favor, until arrangements could be made to return the car to
Nevada. Rawlins' statement corroborates Long's version of what occurred.
Havas first sued the Longs in the Eighth Judicial District Court on September 6, 1967.
Process of service was secured pursuant to the provisions of NRCP 4(e)(1)(i).
1
The
summons was properly published, and a copy of the summons and a copy of the complaint
were mailed to the Longs at their California address. The Longs responded by moving to
quash the service of summons on the grounds of insufficiency of process and lack of
jurisdiction over the person. NRCP 12(b). The thrust of the Longs' argument was that they
were served in California as nonresident defendants and that the Nevada forum could not, by
such service, acquire in-personam jurisdiction.
____________________

1
NRCP 4(e)(1)(i). When the person on whom service is to be made resides out of the state, or has departed
from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service
of summons, and the fact shall appear, by affidavit, to the satisfaction of the court or judge thereof, and it shall
appear, either by affidavit or by a verified complaint on file, that a cause of action exists against the defendant in
respect to whom the service is to be made, and that he is a necessary or proper party to the action, such court or
judge may grant an order that the service be made by the publication of summons.
85 Nev. 260, 262 (1969) Havas v. Long
could not, by such service, acquire in-personam jurisdiction. The trial judge rejected their
argument and denied the motion to quash. Havas filed an amended complaint on June 11,
1968. The Longs then made a motion for summary judgment, NRCP 56, on the grounds that
Havas' claim was barred by the statute of limitations. The trial judge agreed, and he ordered
that summary judgment be entered in favor of the Longs. We agree with the trial court's
ruling and affirm the judgment.
[Headnotes 1, 2]
1. The Longs did not test the validity of the district court order denying their motion to
quash service of process made on jurisdictional grounds. Instead, they entered a general
appearance and moved for summary judgment, thereby removing any issue of jurisdiction
from the case. Barnato v. District Court, 76 Nev. 335, 353 P.2d 1103 (1960); Selznick v.
District Court, 76 Nev. 386, 355 P.2d 854 (1960). We must, therefore, treat this case as
though the Longs were at all times amenable to the process of a Nevada court. Being thus
amenable to service of process, their absence from Nevada did not toll the ruling of the
statute of limitations. Dedmon v. Falls Prods. Inc., 299 F.2d 173 (5th Cir. 1962); Young v.
Hicks, 250 F.2d 80, 83 (8th Cir. 1957); cf. Bank of Nevada v. Friedman, 82 Nev. 417, 420
P.2d 1 (1966).
2. We turn to consider Havas' contention that the 6-year limitation began to run in
September 1965, when Havas extended the $50 credit to Long. At best the payment, if made,
could apply only to the installment note in the sum of $2,350 which became due January 1,
1960, for the reason that the 6-year limitation had run against the other obligations. This
court, in Riff v. Kowal, 76 Nev. 271, 352 P.2d 819 (1960), said that the phrase existing
contract, mentioned in NRS 11.200 (the time-commencement statute), means an enforceable
contract and that past payment of any sum on the debt, or credit given (absent written
acknowledgment or new promise to pay, NRS 11.390),
2
does not extend the time within
which suit may be brought to enforce the obligation, where enforcement of the debt has
already been barred by the statute of limitations at the time payment is made or credit is
extended.
____________________

2
NRS 11.390. Acknowledgment or new promise must be in writing; exception. 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.
85 Nev. 260, 263 (1969) Havas v. Long
In Wickwire v. Reard 226 P.2d 192, 194 (Wash. 1951), the court held that:
The burden of proving that a voluntary payment was made at a time which would toll the
statute rests upon the party asserting it. Arthur & Co. v. Burke, 83 Wash. 690, 145 P. 974;
Stewart v. Kelliher, 163 Wash. 388, 1 P.2d 299; Stockdale v. Horlacher, 189 Wash. 264, 64
P.2d 1015; Cannavina v. Poston, 13 Wash.2d 182, 124 P.2d 787; Walker v. Sieg, 23 Wash.2d
552, 161 P.2d 542.
[Headnote 3]
In Bond v. Stardust, Inc., 82 Nev. 47, 410 P.2d 472 (1966), this court held that a party's
conclusory affidavit was insufficient to create an issue of material fact. We hold that the same
rule applies in this case. Havas' brief affidavit that he gratuitously and unilaterally gave the
Longs a $50 credit in September 1965, to be applied on the Havas-Long obligation of
1959-1960, simply does not establish the proof required, particularly when viewed in the light
of the record presented on this appeal.
The appeal is denied, and the summary judgment is affirmed.
____________
85 Nev. 263, 263 (1969) Ponina v. Leland
ALLIE PONINA, Also Known as ALLIE PAULINA, Appellant, v. ROBERT LELAND,
Administrator of the Estate of PAUL PONINA, Also Known as PAUL PAULINA, Deceased;
NEMSINA DeGARMO, FRANK JOHN, and MAMIE GIBBS, Heirs, Respondents.
No. 5660
April 30, 1969 454 P.2d 16
Appeal from judgment of the First Judicial District Court, Lyon County; Frank B. Gregory,
Judge.
Appeal from decree of the lower court that decedent's putative wife and decedent were not
validly married and that putative wife was, therefore, not entitled to inherit from decedent.
The Supreme Court, Collins, C. J., held that in view of statute providing for validity of
marriages between Indians consummated in accordance with tribal customs, Indian couple
who commenced living together as husband and wife and who complied with all
requirements of marriage under tribal customs were validly married after husband's
divorce, even though they began living together when husband was still married to
former wife, and they did not obtain or file marriage certificate as provided for in statute.
under tribal customs were validly married after husband's divorce, even though they began
living together when husband was still married to former wife, and they did not obtain or file
marriage certificate as provided for in statute.
Reversed and remanded to lower court with direction.
Bouvier and Harper, of Reno, for Appellant.
Lohse and Lohse, for Respondent Robert Leland, Administrator; Leslie B. Gray, for
Respondent DeGarmo; Bradley & Drendel, for Respondent Frank John, all of Reno; William
N. Dunseath, of Reno, and McKay, Panner, Johnson & Marceau, of Bend, Oregon, for Estate
of Mamie Gibbs.
1. Marriage.
Under federal regulation, marital status of Indians while they lived on reservation was to be determined
by law and order code adopted by Indian tribe occupying such reservation and not by federal regulations.
25 U.S.C.A. 2.
2. Marriage.
Marriage of Indians could not have come into effect while they lived together on reservation, even though
custom marriages and divorces were still being practiced, where the man was still married to another
woman during such time. 25 U.S.C.A. 2.
3. Marriage.
Marriage is presumed valid and legislative intent must be clear and unequivocal before marriage will be
deemed void for failure to comply with statutory provisions. NRS 52.070, subd. 24, 122.160, 122.170.
4. Marriage.
Presumption in favor of validity of marriages is applicable to marriage by Indian custom. NRS 52.070,
subd. 24, 122.160, 122.170.
5. Indians.
Indians living off Indian reservation are subject to laws of state in which they reside to same extent that
non-Indian citizens or aliens are subject to such laws.
6. Marriage.
Neither Indians nor non-Indians nor alien citizens can achieve valid marriage by simply living together
off Indian reservation. NRS 122.010.
7. Marriage.
Where statute, which declared marriages between Indians consummated in accordance with tribal
customs valid and which provided for obtaining and filing of marriage certificate, did not declare marriage
for which no certificate was obtained or filed a nullity, provisions for obtaining and filing certificate were
directory only. NRS 122.170.
8. Marriage.
In view of statute providing for validity of marriages between Indians consummated in accordance with
tribal customs, Indian couple, who commenced living together as husband and wife and who complied
with all requirements of marriage under tribal customs, were validly married after
husband's divorce, even though they began living together when husband was still
married to former wife, and they did not obtain or file marriage certificate as
provided for in statute, and, thus, wife was entitled to share in husband's estate as
his widow.
and who complied with all requirements of marriage under tribal customs, were validly married after
husband's divorce, even though they began living together when husband was still married to former wife,
and they did not obtain or file marriage certificate as provided for in statute, and, thus, wife was entitled to
share in husband's estate as his widow. NRS 52.070, subd. 24, 122.010, 122.160, 122.170.
OPINION
This appeal is from an order determining heirship and a holding that Allie Ponina was not
the wife and hence not the widow of Paul Ponina, deceased. We reverse that ruling and
declare that Allie and Paul were husband and wife at the time of his death. She is therefore
entitled to share in his estate as his widow.
Allie Ponina is an aged (71 years) full-blooded Paiute Indian and a member of the Pyramid
Lake-Nixon Tribe. She was formerly married to a man named Lowery who died in 1950 or
1951.
Paul Ponina was also an aged full-blooded Paiute Indian but a member of the Klamath
Tribe in Southern Oregon. He also had been married to an Indian lady by the name of Mabel,
but when she threw his clothes and blanket outside their house, not liking that treatment he
left her permanently.
Sometime in 1951 Allie and Paul commenced living together at the reservation in Nixon,
Nevada. Shortly thereafter they moved off the reservation and continued living together in
Smith Valley, Nevada, which is not a part of any Indian reservation. In 1954 Paul obtained a
formal decree of divorce from Mabel in the First Judicial District Court of Nevada.
Thereafter, Paul and Allie continued to live together in Smith Valley until his death in 1960.
During all this time, Allie and Paul openly cohabited and held themselves out to be
husband and wife. They were known among their Indian friends and family at the Reno
Indian Colony and Pyramid Lake reservation and their neighbors in Smith Valley as husband
and wife. They executed a mutual, inter vivos trust agreement in that capacity. At Paul's
death, Allie, in accordance with Indian custom, provided the burial clothes and bought and
cooked the burial feast.
During their life together, however, they neither sought any license to marry from a state or
Indian agency, engaged in any solemnization ceremony before a minister, state or Indian
judge, nor recorded any certificate or evidence of their marriage with either a state or Indian
agency.
They did, however, comply with all the requirements of a Paiute Indian custom marriage
as established by witnesses at the trial and by the stipulation as to the expected testimony of
Dr. Warren L. D'Azevedo, head of the Anthropology Department, University of Nevada.
Those elements are: (1) living together as man and wife; (2) a potentially mating couple, i.e.,
no close blood relationship; (3) a division of labor and responsibility; (4) recognition by each
other as being husband and wife; (5) recognition by the community as being a married
couple; (6) no form of ceremony required.
Paul left a substantial estate, consisting mainly of an undivided interest in the Klamath
Indian Management Trust, valued at $42,413.34. During administration of his affairs, the
status of Allie as his wife and widow arose. It was contended that Paul and Allie never
became husband and wife under federal law, state law, tribal law or Indian custom, though
they lived together for nearly 10 years. Accordingly, the lower court declared her not to be his
widow and heir, and the right of inheritance to his property was decreed to three first cousins,
Nemsini DeGarmo, Frank John and Mamie Gibbs.
Appellant in seeking reversal of the decree as to Allie, contends that under state law, NRS
122.170
1
, Allie and Paul achieved a valid Indian marriage, notwithstanding their failure to
secure a signed certificate specified by subsection 2 and their failure to file the certificate of
marriage provided for by subsection 3 of that statute.
____________________

1
122.170 Marriages between Indians consummated in accordance with tribal customs valid:
Certificates of marriage; contents; recording.
1. Marriages between Indians heretofore or hereafter consummated in accordance with tribal custom shall be
of the same validity as marriages performed in any other manner provided for by the laws of the State of
Nevada.
2. A certificate of any such marriage may be signed by:
(a) An official of the tribe of which at least one of the parties is a member; or
(b) An official of the reservation or colony in or upon which at least one of the parties shall at the time reside;
or
(c) The superintendent of an Indian agency legally established in this state by the United States.
3. The certificate may be filed in the office of the recorder of the county where such marriage shall have taken
place, and within 30 days thereafter, and such certificate or certified copy thereof shall be prima facie evidence
of the facts therein recited.
4. The certificate shall give the names of the parties married, their ages, tribe, and the place and date of the
marriage, and shall show the official status of the person signing the same.
5. Any certificate, affidavit or other type of proof recognized by the United States, or any department thereof
as proof of a valid tribal marriage, regardless of when or where the tribal marriage shall have been entered into
shall be proof of the validity of such tribal marriage in the State of Nevada.
failure to file the certificate of marriage provided for by subsection 3 of that statute.
Respondents, on the other hand, contend the lower court was correct in ruling as it did
under any one of several authorities, including federal, tribal, and state law.
Specifically, they say Allie and Paul were not married under federal law. Pursuant to the
authority granted by 25 U.S.C., Sec. 2, certain federal regulations relevant to this issue were
enacted.
2
[Headnote 1]
[Headnote 1]
____________________

2
25 CFR Part 11LAW AND ORDER ON INDIAN RESERVATIONS.
. . . . .
11.1 Application of the regulations.
(a) The regulations in this part relative to Courts of Indian Offenses shall apply to all Indian reservations on
which such courts are maintained.
. . . . .
(d) The regulations in this part shall continue to apply to tribes organized under the act of June 18, 1934 (48
Stat. 984; 25 U.S.C. 461-479), until a law and order code has been adopted by the tribe in accordance with its
constitution and bylaws and has become effective; . . . .
(e) Nothing in this section shall prevent the adoption by the tribal council of ordinances applicable to the
individual tribe, and after such ordinances have been approved by the Secretary of the Interior they shall be
controlling, and the regulations of this part which may be inconsistent therewith shall no longer be applicable to
that tribe. (Emphasis added.)
. . . . .
11.27 Recording of marriages and divorces.
All Indian marriages and divorces, whether consummated in accordance with the State law or in accordance
with tribal custom, shall be recorded within 3 months at the agency of the jurisdiction in which either or both of
the parties reside.
11.28 Tribal custom marriage and divorce.
(a) The Tribal council shall have authority to determine whether Indian custom marriage and Indian custom
divorce for members of the tribe shall be recognized in the future as lawful marriage and divorce upon the
reservation, and if it shall be so recognized, to determine what shall constitute such marriage and divorce and
whether action by the Court of Indian Offenses shall be required. When so determined in writing, one copy shall
be filed with the Court of Indian Offenses, one copy with the superintendent in charge of the reservation, and
one copy with the Commissioner of Indian Affairs. Thereafter, Indians who desire to become married or
divorced by the custom of the tribe shall conform to the custom of the tribe as determined. Indians who assume
or claim a divorce by Indian custom shall not be entitled to remarry until they have complied with the
determined custom of their tribe nor until they have recorded such divorce at the agency office.
(b) Pending any determination by the tribal council on these matters, the validity of Indian custom marriage
and divorce shall continue to be recognized as heretofore.
[Headnote 1]
However, these regulations apply to law and order, marriage and divorce on a reservation
only. See the title of Part 11 of CFRLaw Order on Indian Reservations; see also 25 CFR
11.1(a) and 11.28(a). Also, these regulations apply only until a law and order code has been
adopted by a tribe. 25 CFR 11.1(d). Since the Pyramid Lake Paiute Tribe has adopted its
own law and order code, we must look to that code and not the federal regulations in an
inquiry into the marital status of Paul and Allie while living at Nixon, a part of that
reservation.
Respondents next contend the law and order code of the Pyramid Lake Paiute Council
enacted March 25, 1941, pursuant to the foregoing federal regulations are controlling in
determining the marriage status of Paul and Allie. Only certain portions of that code are
relevant to the issue presented here.
3

[Headnote 2]
By this code, tribal custom marriages were abolished and, even though there was evidence
that custom marriages and divorces were still being practiced on the reservation on a large
scale, still the marriage of Paul and Allie could not have come into effect during the short
period of time they lived together at Nixon before moving to Smith Valley, because Paul
was still married to Mabel.
____________________

3
Chapter 3. DOMESTIC RELATIONS. Sec. 1. RECOGNITION OF PREVIOUS MARRIAGES.
All Indian marriages hereto consummated, whether according to State or Tribal custom, are declared valid
subject to annulment as provided in Chapter 3, Section 7 of these ordinances. All such marriages previously
consummated according to Tribal Custom shall be recorded with the Indian Court within 60 days after the
adoption of these ordinances by the Tribal Council. All marriages consummated after the adoption of these
ordinances shall be recorded at the Indian Agency office within three months.
Sec. 3. MARRIAGE AND DIVORCE.
The Pyramid Lake Tribal Court shall have jurisdiction over the marriages and divorces of the members of the
Pyramid Lake Reservation, as hereinafter defined. Indian custom marriages and divorce shall not be recognized
hereafter. (Emphasis added.)
Sec. 4. MARRIAGE.
Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of
making it is necessary. Consent alone will not constitute marriage; it must be followed by a solemnization.
Sec. 5. SOLEMNIZATION OF MARRIAGE.
A marriage may be solemnized by any recognized clergyman or other official duly authorized to perform this
ceremony by the laws of the State of Nevada, only after issuance of a state license; or by any recognized
clergyman or any judge of the Pyramid Lake Tribal Court, only after issuance of a license.
at Nixon before moving to Smith Valley, because Paul was still married to Mabel.
Next, respondents contend that because Paul and Allie did not enter into a marriage
performed in accordance with tribal customs within a closed Indian colony as permitted by
NRS 122.160
4
they never became husband and wife although they did live together outside
the reservation for a protracted period after all disabilities to the marriage were removed.
[Headnote 3]
In Nevada, throughout the United States, and in those parts of the world having their roots
in the English Common Law, there is a strong public policy favoring marriage. That public
policy is clearly stated in 35 Am.Jur., Marriage, Sec. 3, p. 181:
PUBLIC POLICY AS TO MARRIAGEIn view of the importance of marriage as a
social institution, and the benefits accruing therefrom, it is favored by public policy and
the law. It follows that a marriage will, if possible, be upheld as valid and that its
validity will be presumed unless disproved. A statute will not be construed to make a
marriage void unless the legislative intent to such effect is clear and unequivocal.
A marriage that the law sanctions cannot be against public policy in a legal sense.
Our law even clothes the relationship between a man and a woman deporting themselves as
husband and wife with a rebuttable presumption they have entered into a lawful contract of
marriage. NRS 52.070(24). As early as 1896, this court held that a marriage by mutual
consent per verba de praesenti was valid in the face of a statute which required certain formal
preliminaries, even though not complied with, when the statute did not contain an
express clause of nullity.
____________________

4
122.160 Marriages between Indians performed by tribal custom on reservation or in colony:
Validity; certificate of declaration.
1. Marriages between Indians performed in accordance with tribal customs within closed Indian reservations
and Indian colonies shall be of the same validity as marriages performed in any other manner provided for by the
laws of this state, provided there is filed in the county in which the marriage takes place, within 30 days after the
performance of the tribal marriage, a certificate declaring the marriage to have been performed.
2. The certificate of declaration required to be filed by subsection 1 shall give the names of the persons
married, their ages, tribe, and place and date of marriage. The certificate shall be signed by some official of the
tribe, reservation or colony.
3. The certificate shall be filed with the recorder of the county in which the marriage was performed and
recorded by him without charge.
preliminaries, even though not complied with, when the statute did not contain an express
clause of nullity. State v. Zichfeld, 23 Nev. 304, 46 P. 802 (1896); 61 A.L.R.2d 847, 849. See
also Clark v. Clark, 80 Nev. 52, 389 P.2d 69 (1964).
[Headnotes 4-6]
The presumption in favor of the validity of marriages has been extended to marriage by
Indian custom. Chancey v. Whinnery, 147 P. 1036 (Okla. 1915). It is true that Indians living
off an Indian Reservation are subject to the laws of the state in which they reside to the same
extent that a non-Indian citizen or alien would be subject to those laws. In re Wo-Gin-Up's
Estate, 192 P. 267 (Utah 1920); In re Paquet's Estate, 200 P. 911 (Ore. 1921). Thus, absent
special statutory authorization, neither Paul and Allie, nor any other non-Indian or alien
citizen of Nevada could have achieved a valid marriage by simply living together in Smith
Valley, off an Indian Reservation, for 6 or 60 years. NRS 122.010. Still, the legislature has
provided that Indians living off a reservation are permitted to consummate a marriage in
accordance with tribal customs which shall have the same validity as marriages performed in
any other manner in Nevada. NRS 122.170.
[Headnote 7]
Respondents argue, however, that because they did not obtain a certificate from one of the
officials named in the statute nor file such certificate in the office of the recorder of the
county where the marriage took place, there is and can be no marriage. But that contention
has already been answered by this court in State v. Zichfeld, supra. There, as here, unless the
statute declares such a marriage relationship a nullity, which it does not, we hold Sections 2,
3, 4, and 5 directory only. Nor does the fact that Paul may have been still married to Mabel
5
when he commenced living with Allie in Smith Valley in 1951 prevent a valid marriage. All
parties concede he was lawfully divorced from Mabel in 1954, and any disability he suffered
as to a future marriage was removed. Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355
(1950).
[Headnote 8]
We thus hold Paul and Allie consummated a valid marriage in accordance with tribal
customs while living in Smith Valley from 1954 to Paul's death in 1960. At his death, Allie
became his widow and is entitled to that part of his estate permitted by law.
____________________

5
The briefs discuss at length the issue of Indian custom divorce. But we see no need for a discussion of that
issue in view of our decision above.
his widow and is entitled to that part of his estate permitted by law.
The judgment of the lower court is reversed and the matter remanded for proceedings
consistent with this decision.
____________
85 Nev. 271, 271 (1969) Diamond Nat'l Corp. v. Thunderbird Hotel
DIAMOND NATIONAL CORPORATION, Appellant, v. THUNDERBIRD HOTEL, INC.,
THUNDERBIRD HOTEL, JACK LANE and JOE WELLS, Formerly dba THUNDERBIRD
HOTEL COMPANY, Respondents.
No. 5690
April 30, 1969 454 P.2d 13
Appeal from an order granting a motion to dismiss and an entry of judgment by the Eighth
Judicial District Court, Clark County; John F. Sexton, Judge.
Action by creditor to recover on partnership debt. The trial court dismissed action and
creditor appealed. The Supreme Court, Batjer, J., held that contract creditor, who filed action
against partnership and subsequently amended complaint to name surviving partners as
defendants and served complaint on one of them but did not file creditor's claim against estate
of partners who predeceased action, could proceed to judgment on partnership debt and, if
successful, could first execute against partnership property and in case of insufficiency could
then execute against separate property of estate of partner served, but since deceased, unless
personal defense were available to estate.
Reversed and remanded for further proceeding.
Breeze & Breeze, of Las Vegas, for Appellant.
Galane & Wines, Jones & Jones, of Las Vegas, for Respondents.
1. Partnership.
Service of process on one partner is sufficient to confer jurisdiction on court to render judgment against
partnership. NRS 14.060.
2. Partnership.
Contract creditor, who filed action against partnership and subsequently amended complaint to name
surviving partners as defendants and served complaint on one of them but did not file
creditor's claim against estates of partners who predeceased action or serve
representatives thereof, could proceed to judgment on partnership debt and, if
successful, could first execute against partnership property and in case of
insufficiency could then execute against separate property of estate of partner
served, but since deceased, unless personal defense were available to estate.
defendants and served complaint on one of them but did not file creditor's claim against estates of partners
who predeceased action or serve representatives thereof, could proceed to judgment on partnership debt
and, if successful, could first execute against partnership property and in case of insufficiency could then
execute against separate property of estate of partner served, but since deceased, unless personal defense
were available to estate. NRS 14.060, 87.150, 87.300.
3. Partnership.
In actions against partnership, all partners must be joined as defendants unless one of them is bankrupt,
dead, or outside jurisdiction of court. NRS 14.060, 87.150.
4. Partnership.
Judgment in favor of successful plaintiff is required to be against all members of defendant partnership
even though but one was served, and judgment should provide that it is to be enforced only against joint
partnership property and separate property of individual defendant served. NRS 14.060, 87.150.
5. Judgment.
If one joint debtor defaults, no separate judgment may be entered against him, since remaining joint
debtors have right to defend for all of them.
6. Judgment.
If one joint debtor defaults and action continues against defending debtors and plaintiff is unsuccessful he
may not at subsequent time obtain judgment against defaulting debtor.
OPINION
The respondents' motion to dismiss was granted by the trial court because the appellant
had failed to file a claim or action against the persons or estates of the deceased partners
before its complaint was filed against the surviving partners of the Thunderbird Hotel
Company.
A judgment was thereafter entered against the appellant (the plaintiff below) and for the
respondents (the defendants below). It is from that order and judgment that this appeal is
taken.
On August 25, 1962, the appellant entered into a contract with the Thunderbird Hotel, also
known as the Thunderbird Hotel Company, a partnership, for the delivery of three million
books of matches. At that time the partners were Jack Lane, Joe Wells, James Schuyler and
William Deer.
On December 7, 1965, a complaint was filed against the Thunderbird Hotel Company, a
Nevada corporation, alleging it owed the appellant $937.50 for goods sold and delivered, and
$S,236.50 for goods produced under the contract but not shipped.
and $8,236.50 for goods produced under the contract but not shipped. On April 5, 1966, the
complaint was amended to name the respondents herein as defendants. Process was served
only on Joe Wells, and on July 15, 1966, he answered and denied the allegations in the
complaint and set up certain affirmative defenses. On October 24, 1967, the Bank of Las
Vegas, executor of the estate of Joe Wells, deceased, was substituted in the case.
On January 24, 1968, the respondents filed a motion to dismiss. In that motion it was
alleged that on or about January 8, 1964, James Schuyler died testate, that notice to creditors
was given and the appellant did not file a creditor's claim, and that on or about April 7, 1965,
William Deer died testate. Notice to creditors was given and the appellant did not file a
creditor's claim.
The motion to dismiss was made on the grounds that: A partnership obligation is, unless
a partner enters a separate obligation to perform a partnership contract, a joint obligation in a
joint and severally [sic] obligation, the action must run against all partners and judgment must
be against all partners jointly, or none of them, save and except when a partner has a defense
personal to himself, such as bankruptcy or infancy.
The obligation is joint and the judgment must run against all partners and it cannot in this
instance since the plaintiff neglected to file a claim against the estate of SCHUYLER and the
estate of DEER and that claim is barred. (Citation omitted.) The plaintiff has therefore,
dismissed two of the partners and cannot proceed against the others.
In entering its order granting the motion to dismiss, the trial court said: [I]t appearing that
the action was filed against the partners surviving at the time of the filing of this action and
not against the persons or the estates of the deceased partners and the omission of these
partners having resulted in a dismissal as to those partners; and it appearing that a partnership
is not terminated until the winding up of the affairs of the partnership is completed (NRS
87.300);
IT IS THEREFORE ORDERED that the motion to dismiss be and the same is hereby
granted, and IT IS ORDERED that judgment be entered against the plaintiff and for the
defendants, together with the costs incurred herein.
From that judgment the Diamond National Corporation appeals and contends that the trial
court erred when it granted the motion to dismiss and entered judgment for the respondents
and against the appellant. We agree.
NRS 87.150
1
and NRS 14.060
2
read together are clearly dispositive of this case. NRS
87.150 delineates the nature of a partner's liability. NRS 14.060 sets forth the precise avenue
whereby a plaintiff may proceed to judgment and how the judgment may be enforced in a
situation similar to the one before us, where an action is brought against two or more
defendants jointly indebted on a contract, and the summons is served on one or more, but not
all of the defendants.
[Headnote 1]
In an action against a partnership, service of process upon one of the partners is sufficient
to confer jurisdiction upon the court to render a judgment against the partnership. NRS
14.060; Whitmore v. Shiverick, 3 Nev. 288 (1867); Spencer Kellogg & Sons, Inc. v. Bush,
219 N.Y.S.2d 453 (1961); Southard v. Oil Equipment Corporation, 296 P.2d 780 (Okla.
1956).
In this case, jurisdiction attached pursuant to NRS 14.060 when process was served on Joe
Wells, and the appellant was from that point forward entitled to proceed against the
partnership entity through Joe Wells, against Joe Wells personally, and subsequently against
his executor.
In Whitmore v. Shiverick, supra, this court in construing section 32 of the practice act (the
verbatim predecessor of NRS 14.060) affirmed the judgment of the trial court where the suit
was commenced against four partners of the firm; only one was served, and judgment was
entered against him personally and against the partnership entity. There it was said: The
judgment, so far as it is a complete judgment, is only against Sperry.
____________________

1
NRS 87.150: All partners are liable:
1. Jointly and severally for everything chargeable to the partnership under NRS 87.130 and 87.140.
2. Jointly for all other debts and obligations of the partnership; but any partner may enter into a separate
obligation to perform a partnership contract.

2
NRS 14.060: Where the action is against two or more defendants, and the summons is served on one or
more but not on all of them, the plaintiff may proceed as follows:
1. If the action be against the defendants jointly indebted upon a contract, he may proceed against the
defendant served, unless the court otherwise directs; and if he recover judgment, it may be entered against all the
defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all and the
separate property of the defendant served; or,
2. If the action be against defendants severally liable, he may proceed against the defendants served in the
same manner as if they were the only defendants.
Sperry. So far as it affects the joint property it only reaches it through Sperry as one of the
members of the firm of Sperry & Co. The execution could only be levied on the individual
property of Sperry, and the joint property of the company which he represented.
[Headnote 2]
Here the appellant is entitled to proceed to judgment, and if successful, may first execute
against the partnership property, but in the event that property proves insufficient to satisfy
the debt it may execute against the separate property of the estate of Joe Wells, deceased,
unless some personal defense is available to the estate.
[Headnotes 3, 4]
In Spencer Kellogg & Sons, Inc. v. Bush, supra, that court deciding the case under N.Y.
Partnership Law 26 (McKinney 48), (which is identical to NRS 87.150 and the Uniform
Partnership Act 15), adopted the rule in actions against partnerships that all partners must
be joined as defendants unless one of them is bankrupt, dead, or outside the jurisdiction of the
court; a judgment in favor of the plaintiff is required to be against all the defendant members
of the partnership even though but one was served, and the judgment should provide that it is
to be enforced only against joint partnership property and the separate property of the
individual defendant served.
In the light of NRS 87.150 and NRS 14.060, we adopt the rule set forth in the Spencer
Kellogg case.
The respondents rely on Balley v. Davis, 267 P.2d 631 (Idaho 1954), to support their
position. That case is inapposite. There the court held that where a default judgment was
taken against one partner and two other partners answered and procured dismissal of the
action, that the prior default judgment taken against the other partner must be set aside
because the partnership obligation was joint and not joint and several; that the suit must run
against all the partners, and any judgment must be entered against all the partners jointly or
against none of them save and except where one partner has a defense personal to himself.
The rule enunciated in that case is proper when applied to those facts, but it has no
application in the case before us.
[Headnotes 5, 6]
If one joint debtor defaults, no separate judgment may be entered against him, since the
remaining joint debtors have the right to defend for all of them. Chippewa Credit Corp. v.
Strozewski, 19 N.Y.S.2d 457 {1940).
Strozewski, 19 N.Y.S.2d 457 (1940). If the action continues against the defending debtors
and the plaintiff is unsuccessful he may not at a subsequent time obtain a judgment against
the debtor who defaulted because the obligation is only joint. Nathan v. Zierler, 228 N.Y.S.
170 (1928).
The order granting the respondents' motion to dismiss and the judgment of the trial court
are reversed and the matter is remanded to the trial court for further proceedings consistent
with this opinion.
____________
85 Nev. 276, 276 (1969) Lamb v. Leroy Corp.
FRANK W. LAMB, Appellant, v. LEROY
CORPORATION, a Corporation, Respondent.
No. 5694
April 30, 1969 454 P.2d 24
Mendoza, Judge.
Creditor of corporation sought to recover money due him from another corporation which
purchased assets of first corporation in exchange for stock. The lower court gave judgment
for defendant, and appeal was taken. The Supreme Court, Thompson, J., held that corporation
which purchased assets of second corporation was not liable for debts of latter where the
transaction was a bona fide sale of assets in exchange for stock, merger or consolidation of
the two firms did not result, consideration was more than adequate, stock of purchaser was
issued directly to seller itself, which exchange effectively terminated the relationship of the
two firms and completely executed terms of sales agreement, and subsequent transfer of
shares of stock in purchaser to stockholders of seller was a new and different transaction
which did not relate back to original sale in order to infuse it with elements of fraud,
constructive or otherwise.
Affirmed.
Singleton, De Lanoy, Jemison & Reid, of Las Vegas, for Appellant.
Foley Brothers, of Las Vegas, for Respondent.
1. Corporations.
Consummated agreement of merger or consolidation imposes upon surviving corporation all liabilities of
the constituent corporations so merged or consolidated, but the rule is otherwise when the transaction is a
bona fide sale of assets. NRS 78.495.
2. Corporations.
Sale of assets by first corporation to second corporation could not be held to be a de facto merger since
the sales agreement did not contemplate a merger or consolidation of the two corporations, under definition
of merger as a combination whereby one of the constituent companies remains in being, absorbing or
merging in itself all the other constituent corporations.
3. Corporations.
To general rule that when one corporation sells all of its assets to another corporation the purchaser is not
liable for debts of the seller there are four exceptions: (1) where purchaser expressly or impliedly agrees to
assume such debts; (2) where transaction is really a consolidation or a merger; (3) when purchasing
corporation is merely a continuation of selling corporation; and (4) where transaction was fraudulently
made in order to escape liability for such debts.
4. Corporations.
Corporation which purchased assets of second corporation was not liable for debts of latter where the
transaction was a bona fide sale of assets in exchange for stock, merger or consolidation of the two firms
did not result, consideration was more than adequate, stock of purchaser was issued directly to seller itself,
which exchange effectively terminated the relationship of the two firms and completely executed terms of
sales agreement, and subsequent transfer of shares of stock in purchaser to stockholders of seller was a new
and different transaction which did not relate back to original sale in order to infuse it with elements of
fraud, constructive or otherwise.
OPINION
The creditor of a corporation seeks to recover money due him from a separate corporate
entity which purchased the assets of the debtor corporation in exchange for stock. Two
theories of recovery are advanced by the creditor; that the transaction between the
corporations constituted a de facto merger, and that a constructive fraud was practiced upon
the creditor of the selling corporation, since the purchasing corporation was a party to the
diversion of a trust fund. The district court rejected the creditor's plea for relief and this
appeal followed. We have concluded that the district court ruled correctly and affirm.
Frank W. Lamb commenced an action against National Insurance Agency of Nevada and
Leroy Corporation on an indebtedness owing him by National Insurance Agency in the
amount of $15,0S7.S7.
Insurance Agency of Nevada and Leroy Corporation on an indebtedness owing him by
National Insurance Agency in the amount of $15,087.87. This debt had been assumed in
writing by Nevada Land and Mortgage of which Nevada Insurance Agency was a wholly
owned subsidiary. The sole issue at trial was whether Leroy was liable for the debts of
Nevada Land and Mortgage. Leroy did not expressly assume to pay such debts. Its liability
therefor is asserted to rest upon the manner in which Leroy purchased the assets of Nevada
Land and Mortgage (N.L.M.).
N.L.M. was engaged in a variety of property transactions. Prior to 1965 it had suffered
financial reverses causing its Board of Directors to contemplate merger, consolidation, or a
sale of assets. Negotiations with several business enterprises ensued. On April 9, 1965 the
Board adopted a resolution entitled A Proposed Corporate Merger which set forth details
for a proposed merger with Leroy. The stockholders of N.L.M. gave their consent (NRS
78.470). However Leroy, through its president and majority stockholder, Leo Frey, rejected
N.L.M.'s offer to merge since Leroy did not wish to be associated in the public eye with
N.L.M., whose corporate image was less than untarnished. Leroy did, however, counter with
an offer to purchase the assets of N.L.M., and a Sale of Assets Agreement was entered into
on May 21, 1965.
Pursuant to that agreement assets of N.L.M. worth from $155,000 to $165,000 were
transferred to Leroy in exchange for 36,158 shares of Leroy stock after a three-for-one stock
split of Leroy. The 36,158 shares were valued at approximately $700,000. A single certificate
for those shares was issued by Leroy and delivered to N.L.M. The Board of Leroy was
increased from three to five, two members being selected by N.L.M.
1

Soon after the consummation of this transaction, N.L.M. requested Leroy to transfer
N.L.M.'s 36,158 shares of Leroy stock to the stockholders of N.L.M. That request was
honored by Leroy and the stock issued as directed. Thereafter, the stockholders of N.L.M.
ratified the sale of assets to Leroy and voted to dissolve the corporation. There is nothing in
the record to suggest that ratification of the sale by the stockholders of N.L.M. was contingent
upon reissuance of Leroy shares to such stockholders.
____________________

1
Although the agreement called for the sale of all assets, two items of real property were not transferred
since Leroy did not want them. N.L.M. also retained several thousand dollars cash and Leroy assumed that such
retained cash was used to pay the debts of N.L.M.
such stockholders. Dissolution was accomplished without having satisfied the debt owing
Lamb.
[Headnotes 1, 2]
1. A consummated agreement of merger or consolidation imposes upon the surviving
corporation all liabilities of the constituent corporations so merged or consolidated. NRS
78.495. The rule is otherwise when the transaction is a bona fide sale of assets. West Texas
Refining Co. v. Commissioner, 68 F.2d 77, 81 (10 Cir. 1933). The creditor, Lamb, urges that
the transaction between N.L.M. and Leroy was at least a de facto merger.
We do not agree, since the sales agreement did not contemplate a merger or consolidation
of the two corporations. Merger is . . . a combination whereby one of the constituent
companies remains in beingabsorbing or merging in itself all the other constituent
corporations.' Rath v. Rath Packing Co., 136 N.W.2d 410, 415 (Iowa 1965).
Since such a combination did not here occur, the consequences of merger or consolidation
should not be visited upon Leroy. Leroy specifically did not want to combine. The powers of
N.L.M. were not transferred to Leroy. Bach company maintained a separate identity, and
N.L.M. was later dissolved in accordance with statutory procedures therefor.
[Headnote 3]
2. As already stated it is the general rule that when one corporation sells all of its assets to
another corporation the purchaser is not liable for the debts of the seller. West Texas Refining
Co. v. Commissioner, 68 F.2d 77 (10 Cir. 1933); Ozan Lumber Co. v. Davis, 284 F. 161
(D.C.Del. 1922). To this rule there are four well recognized exceptions: (1) where the
purchaser expressly or impliedly agrees to assume such debts; (2) where the transaction is
really a consolidation or a merger; (3) when the purchasing corporation is merely a
continuation of the selling corporation; and (4) where the transaction was fraudulently made
in order to scope liability for such debts. West Texas Refining Co. v. Commissioner, supra.
We have already considered and rejected the applicability of the second exception. It is
conceded that exceptions one and three are not involved. However, the appellant does urge
that exception number four is dispositive of this case since the stock of the purchasing
corporation was ultimately delivered to the stockholders of the selling corporation, leaving
the latter without means to respond to its creditors. In this circumstance, he contends that
the transferee corporation is liable for the debts of the transferor.
circumstance, he contends that the transferee corporation is liable for the debts of the
transferor. Jennings Neff & Co. v. Crystal Ice Co., 159 S.W. 1088 (Tenn. 1913). Indeed, the
appellant insists that the purchaser is liable to creditors of the selling corporation whenever
the transfer of assets is in exchange for stock, and it is immaterial whether the stock is issued
to the selling corporation or to its stockholders. American Railway Express Co. v.
Commonwealth, 228 S.W. 433 (Ky.App. 1920); City of Altoona v. Richardson Gas & Oil
Co., 106 P. 1025 (Kan. 1910).
When the purchasing company issues its stock in the first instance to the stockholders of
the selling corporation there exists a solid basis for finding creditor liability. In that
circumstance . . . the purchasing company is bound to know that the property of the selling
corporation ought not to be distributed among the stockholders to the exclusion of creditors,'
and that hence it is a party to a diversion of the trust fund and holds it subject to the payment
of debts, since it cannot be called a bona fide purchaser of the property, as against existing
creditors.' 15 Fletcher, Private Corporations, P. 210. When this happens, constructive fraud
may appropriately be asserted against the purchasing company, at least where no other
provision has been made for the satisfaction of creditors.
A more difficult case for creditor liability is presented where, as here, the purchasing
corporation issues its stock directly to the selling corporation, since a valuable asset, the
stock, is possessed by the seller and is subject to the claims of its creditors. In this situation
case authority is in conflict. The American Railway Express Co. case found creditor liability.
However, in that case the court appears to have been particularly influenced by the fact that
the selling corporation was a foreign corporation and all of its assets in the forum state had
been taken from it by the sale. 228 S.W. at 441. Furthermore, the purchasing corporation had
been organized for the express purpose of becoming the owner of the seller. Id. at 434. And,
in City of Altoona v. Richardson Gas & Oil Co., supra, the circumstances were such as to
allow the court to treat the arrangement as a de facto merger. 106 P. at 1026.
Other courts have held that the mere issuance of stock of the buying corporation in
payment for assets of the selling corporation does not, of itself, subject the former to the debts
of the latter. Ozan Lumber Co. v. Davis, 284 F. 161 (D.C.Del. 1922), is illustrative. These
courts hold to the view that the creditor may not complain except on the ground that the
consideration was not fair or adequate, and it is immaterial whether the consideration is
in the form of cash or stock.
creditor may not complain except on the ground that the consideration was not fair or
adequate, and it is immaterial whether the consideration is in the form of cash or stock.
[Headnote 4]
With these cases in mind we turn to examine the matter at hand. The transaction was a
bona fide sale of assets in exchange for stock. A merger or consolidation of the two
companies did not result. The consideration was more than adequate. It was no part of the
sales agreement that Leroy was to pay the consideration to the stockholders of N.L.M.; in fact
the stock was issued directly to N.L.M. itself. This exchange effectively terminated the
relationship of the two corporations and completely executed the terms of the sales
agreement. The subsequent transfer of N.L.M.'s 36,158 shares of Leroy stock to the
stockholders of N.L.M. was a new and different transaction and does not, in our view, relate
back to the original sale in order to infuse it with elements of fraud, constructive or otherwise.
Leroy was obliged to honor N.L.M.'s request and transfer the shares as directed. For these
reasons this case is controlled by the general rule that when one corporation sells all of its
assets to another corporation the purchaser is not liable for the debts of the seller.
Affirmed.
____________
85 Nev. 281, 281 (1969) Woerner v. State
ROBERT E. WOERNER, Appellant, v. THE STATE OF
NEVADA, Respondent.
Nos. 5552 and 5645
May 1, 1969 453 P.2d 1004
Appeals from judgments of the Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge, in No. 5552; Howard W. Babcock, Judge, in No. 5645.
Defendant was convicted in the trial court in separate trials, of unlawful possession of
marijuana and of unlawful possession of LSD. The defendant appealed and the cases were
consolidated on appeal. The Supreme Court, Mowbray, J., held that evidence was sufficient
to support convictions.
Affirmed.
James D. Santini, Public Defender, and Earl W. White, Jr., Deputy Public Defender, Clark
Richard D. Weisbart, Deputy District Attorney, Clark County, for Respondent.
1. Arrest.
Where arresting officers detected strong odor of marijuana coming through open doorway of defendant's
motel room, officers knocked on door and were invited to enter and, once inside the room, noticed in full
view marijuana and LSD, officers had probable cause to believe that a felony was being committed and to
make arrest without warrant. NRS 171.124.
2. Criminal Law; Searches an Seizures.
Objects falling in plain view of officer who has right to be in position to have that view are subject to
seizure and may be introduced in evidence.
3. Criminal Law; Searches and Seizures.
Where officers were invited into defendant's motel room and marijuana and LSD were on table in plain
sight, the drugs were subject to seizure and were lawfully received in evidence in prosecutions for
possession of marijuana and LSD. NRS 453.030, 454.460.
4. Poisons.
In order to hold one for narcotics possession, it is necessary to show dominion and control over substance
and knowledge that it is of a narcotic character, and these elements may be shown by direct evidence or by
circumstantial evidence and reasonably drawn inferences.
5. Poisons.
Evidence was sufficient to support convictions for possession of marijuana and of LSD. NRS 453.030,
454.460.
OPINION
Robert E. Woerner was tried by jury in two separate trials in the district court. He was
convicted, in one trial, of unlawful possession of marijuana (NRS 453.030) and, in the other
trial, of unlawful possession of LSD (NRS 454.460). The cases have been consolidated in this
appeal because the issues presented are identical; namely, (1) that both the marijuana and the
LSD introduced during the trials were recovered as a result of illegal search and seizure and
(2) that the evidence received was insufficient to establish that the drugs were in Woerner's
possession.
Woerner was a registered guest at the Colonial House in Las Vegas. At approximately 7
p.m. on June 24, 1967, the motel's engineer-security officer went to Woerner's room to
investigate a leaking water pipe.
motel's engineer-security officer went to Woerner's room to investigate a leaking water pipe.
In the room were a number of people, several of whom had been involved in difficulties with
the motel on previous occasions. As the evening wore on, the security officer noticed that
traffic into and out of Woerner's room was on the increase; so he notified the manager, who
telephoned the police. Two plain-clothed detectives arrived at about 11:30 p.m. and set up
watch in a room adjoining Woerner's. They, too, observed the steady stream of traffic into
and out of Woerner's room, and they soon detected a strong odor of marijuana. They stepped
into the hallway and noticed that the door to Woerner's room was completely open. This was
the only door open in that area of the hallway. They knocked on Woerner's door, and a male
voice invited them to enter. They did so and immediately identified themselves as Clark
County Sheriff's officers. The officers later testified that, as they entered Woerner's room, the
odor of marijuana intensified. Once inside, they noticed first a switchblade knife on the
dresser. They asked who was the owner of the knife. No one in the room replied to their
inquiry. The officers then advised the occupants of the room that they were under arrest for
the unlawful possession of the knife, a gross misdemeanor. It was at this moment that the
officers observed on a table in the room a plastic bag containing a leafy substance which
appeared to be marijuana and another clear plastic bag containing what the officers believed
to be LSD. A later chemical analysis confirmed their observations. Next to the marijuana on
the table was a piece of copper tubing which at one end was shaped like a pipe bowl. The
officers then placed Woerner and the others under arrest for unlawful possession of marijuana
and LSD.
Motions to suppress the introduction of the marijuana and the LSD were made prior to
both trials, and the motions were denied. Likewise, motions for new trials were denied. We
agree with the rulings of the trial judges, and we affirm both convictions.
[Headnotes 1-3]
1. NRS 171.124
1
provides that a peace officer may make an arrest without a warrant
when a person has committed a felony in his presence.
____________________

1
NRS 171.124. Arrest by peace officers.
1. A peace officer may make an arrest in obedience to a warrant delivered to him, or may, without a warrant,
arrest a person:
(a) For a public offense committed or attempted in his presence.
(b) When a person arrested has committed a felony, although not in his presence.
(c) When a felony has in fact been committed and he has reasonable cause for believing the person arrested
to have committed it.
an arrest without a warrant when a person has committed a felony in his presence. Here, the
officers had every reason to believe that a felony was being committed. After the officers
detected the strong odor of marijuana coming through the open doorway of Woerner's room,
they knocked and were invited to enter. Once inside Woerner's room, they noticed in full
view the marijuana and the LSD. As the Supreme Court of the United States said in Harris v.
United States, 390 U.S. 234, 236 (1968): It has long been settled that objects falling in the
plain view of an officer who has a right to be in the position to have that view are subject to
seizure and may be introduced in evidence. Ker v. California, 374 U.S. 23, 42-43 (1963);
United States v. Lee, 274 U.S. 559 (1927); Hester v. United States, 265 U.S. 57 (1924). See
also LeBlanc v. State, 424 S.W.2d 434 (Tex.App. 1968). Since the officers had a right to be
in Woerner's room, it was proper to seize the marijuana and the LSD, and the drugs were
lawfully received in evidence.
[Headnote 4]
2. Woerner claims that the evidence received was insufficient to establish that he had
possession of the marijuana and the LSD. We do not agree. These two drugs were in plain
view as the officers entered Woerner's room; the air reeked with the odor of marijuana; and
the remnants of burnt marijuana were found in the brass tubing, which apparently had been
made into a pipe so that the marijuana could he smoked. This court said, in Fairman v.
Warden, 83 Nev. 332, 336, 431 P.2d 660, 663 (1967):
In order to hold one for narcotics possession, it is necessary to show dominion and
control over the substance (Doyle v. State, 82 Nev. 242, 415 P.2d 323 (1966)) and knowledge
that it is of a narcotic character (Overton v. State, 78 Nev. 198, 370 P.2d 677 (1962), citing
Wallace v. State, 77 Nev. 123, 359 P.2d 749 (1961)). These elements may be shown by direct
evidence or by circumstantial evidence and reasonably drawn inferences. People v. Lunbeck,
303 P.2d 1082 (Cal. 1956).
[Headnote 5]
Sufficient evidence was introduced during the trials of both cases to support the juries'
verdicts that Woerner had possession of the marijuana and the LSD, and we affirm both
convictions.
____________
85 Nev. 285, 285 (1969) State v. Erenyi
THE STATE OF NEVADA, Appellant, v.
PAUL ERENYI, Respondent.
Nos. 5691 and 5692
May 2, 1969 454 P.2d 101
Appeals from judgments of the Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
Defendant was charged with burglary in first degree and burglary in second degree. The
public defender filed motion in each case to dismiss charges on grounds that defendant had
been denied his right to speedy trial. The lower court held in favor of defendant, and state
appealed. The Supreme Court, Mowbray, J., held that statute providing that an incarcerated
person need not be brought to trial until completion of his sentence and that no motion to
discharge such person from custody may be granted if he is not brought to trial until that time
is in derogation of a defendant's right to speedy trial and is unconstitutional.
Affirmed.
Jerry J. Kaufman, Special Deputy District Attorney, Clark County, for Appellant.
James D. Santini, Public Defender, and Robert N. Peccole, Deputy Public Defender, Clark
1. Criminal Law.
Any accused has constitutional right to speedy trial in state courts. U.S.C.A.Const. Amends. 6, 14.
2. Criminal Law.
A defendant incarcerated in another jurisdiction has a constitutional right to demand speedy trial in state
where charges are pending and when knowledge of his incarceration is made known to jurisdiction in
which charges are pending by virtue of demand for speedy trial, state has constitutional duty to make a
diligent, good-faith effort to bring him to trial within a reasonable time. U.S.C.A.Const. Amends. 6, 14.
3. Criminal Law.
Statute providing that an incarcerated person need not be brought to trial until completion of his sentence
and that no motion to discharge such person from custody may be granted if he is not brought to trial until
that time is in derogation of a defendant's right to speedy trial and is unconstitutional.
defendant's right to speedy trial and is unconstitutional. NRS 169.165, 178.558; U.S.C.A.Const.
Amends. 6, 14.
OPINION
In these appeals we are asked to determine the constitutionality of NRS 178.558, which
became effective on January 1, 1968,
1
and superseded NRS 169.165,
2
which was in effect
when the events which gave rise to these appeals occurred. In substance both statutes provide
that in cases where the defendant is held in custody by another state his constitutional right to
a speedy trial is satisfied if he is brought to trial within a reasonable time after his release
from such custody. Both statutes go further and add that no motion to discharge a defendant
from custody may be granted if the State complies with the provisions of the statutes.
On July 13, 1967, two criminal complaints were filed against Paul Erenyi. One complaint
charged Erenyi with Burglary in the First Degree and Burglary in the Second Degree. The
other complaint charged respondent with a gross misdemeanor, Conspiracy to Commit
Burglary. All three offenses allegedly occurred on July 6, 1967. Respondent was arrested and
arraigned in Justice Court, and his preliminary hearing on the two complaints was set for
January 9, 1968. He had been on parole from California, and when he was charged in Nevada
his California parole was revoked and he was incarcerated in San Quentin.
____________________

1
NRS 178.558. Time for trial of defendant held in custody in another state. A defendant who before being
brought to trial in this state is held in custody in another state for a crime committed in that state shall be brought
to trial within a reasonable time after his release from such custody, and no motion to discharge such a person
from custody in this state may be granted if the requirements of this section are met.
(Added to NRS by Stats. Nev. 1967, ch. 523, 379, effective January 1, 1968.)

2
NRS 169.165. Defendant's right to speedy trial: Defendant held in custody in another state. The right to a
speedy trial guaranteed by the constitution of the State of Nevada and by this chapter is satisfied, in the case of a
defendant who before being brought to trial in this state is held in custody in another state for a crime committed
in that state, by a trial within a reasonable time after his release from such custody, and no motion to discharge
such person from custody in this state may be granted if the requirements of this section are met.
(Added to NRS by Stats. Nev. 1965, ch. 478; repealed by Stats. Nev. 1967, ch. 523, 447, effective January
1, 1968.)
was incarcerated in San Quentin. Consequently, he was not present for his preliminary
hearings on January 9.
In April 1968 Erenyi wrote the Clark County Public Defender, explaining that a hold or
detainer had been placed on him as a result of the Nevada charges and that the hold was
obstructing his program of rehabilitation. He solicited the Defender's assistance and asked
that he be brought to trial in Nevada as soon as possible. The Defender made such a request
in a letter to the Clark County District Attorney, who through his deputy replied to the effect
that he did not intend to proceed with the Nevada charges until Erenyi was released from San
Quentin. In July 1968 the Defender filed a motion in the district court in each case to dismiss
the Nevada charges, on the grounds that Erenyi had been denied his constitutional right to a
speedy trial. The district judge granted the motions and in doing so declared NRS 169.165
unconstitutional, from which decisions the State has appealed. Since the same question is
presented in both cases, the appeals have been consolidated. We agree with the rulings of the
district judge, and we affirm his orders dismissing the Nevada charges against Erenyi and
declaring NRS 169.165 (as superseded by NRS 178.558) unconstitutional.
[Headnote 1]
Any accused has the constitutional right to a speedy trial in our state courts, as provided in
the Sixth and Fourteenth Amendments to the United States Constitution. Klopfer v. North
Carolina, 386 U.S. 213 (1967); Stone v. State, 85 Nev. 60, 450 P.2d 136 (1969); Riley v.
State, 83 Nev. 282, 429 P.2d 59 (1967).
The issue on these appeals is whether the right to a speedy trial may be denied a defendant
who is incarcerated in another jurisdiction. The recent case of Smith v. Hooey, 393 U.S. 374
(1969), is dispositive of this question. In Smith, the High Court held that the constitutional
right to a speedy trial guaranteed by the Sixth Amendment may not be denied to a defendant
in custody in another jurisdiction and that, upon the defendant's demand, the state where the
charges are pending has a constitutional duty to make a diligent, good-faith effort to afford
him a trial within a reasonable time after the demand is made. Mr. Justice Stewart, who wrote
for the majority, said, at 377:
The historic origins of the Sixth Amendment right to a speedy trial were traced in some
detail by The Chief Justice in his opinion for the Court in Klopfer, 386 U.S., at 223-226, and
we need not review that history again here. Suffice it to remember that this constitutional
guarantee has universally been thought essential to protect at least three basic demands
of criminal justice in the Anglo-American legal system: '[1] to prevent undue and
oppressive incarceration prior to trial, [2] to minimize anxiety and concern accompanying
public accusation and [3] to limit the possibilities that long delay will impair the ability of
an accused to defend himself.' United States v. Ewell, 3S3 U.S. 116, 120.
remember that this constitutional guarantee has universally been thought essential to protect
at least three basic demands of criminal justice in the Anglo-American legal system: [1] to
prevent undue and oppressive incarceration prior to trial, [2] to minimize anxiety and concern
accompanying public accusation and [3] to limit the possibilities that long delay will impair
the ability of an accused to defend himself.' United States v. Ewell, 383 U.S. 116, 120. These
demands are both aggravated and compounded in the case of an accused who is imprisoned
by another jurisdiction.
At first blush it might appear that a man already in prison under a lawful sentence is
hardly in a position to suffer from undue and oppressive incarceration prior to trial.' But the
fact is that delay in bringing such a person to trial on a pending charge may ultimately result
in as much oppression as is suffered by one who is jailed without bail upon an untried charge.
First, the possibility that the defendant already in prison might receive a sentence at least
partially concurrent with the one he is serving may be forever lost if trial of the pending
charge is postponed. Secondly, under procedures now widely practiced, the duration of his
present imprisonment may be increased, and the conditions under which he must serve his
sentence greatly worsened, by the pendency of another criminal charge outstanding against
him.
And while it might be argued that a person already in prison would be less likely than
others to be affected by anxiety and concern accompanying public accusation,' there is
reason to believe that an outstanding untried charge (of which even a convict may, of course,
be innocent) can have fully as depressive an effect upon a prisoner as upon a person who is at
large. Cf. Klopfer v. North Carolina, supra, at 221-222. In the opinion of the former Director
of the Federal Bureau of Prisons,
[I]t is in their effect upon the prisoner and our attempts to rehabilitate him that detainers
are most corrosive. The strain of having to serve a sentence with the uncertain prospect of
being taken into the custody of another state at the conclusion interferes with the prisoner's
ability to take maximum advantage of his institutional opportunities. His anxiety and
depression may leave him with little inclination toward self-improvement.' (Footnotes
omitted.)
[Headnotes 2, 3]
We conclude that a defendant incarcerated in another jurisdiction has a constitutional right
to demand a speedy trial in the state where the charges are pending and that when
knowledge of his incarceration is made known to that jurisdiction by virtue of such a
demand, the state has the constitutional duty "to make a diligent, good-faith effort" to
bring him to trial within a reasonable time.
the state where the charges are pending and that when knowledge of his incarceration is made
known to that jurisdiction by virtue of such a demand, the state has the constitutional duty to
make a diligent, good-faith effort to bring him to trial within a reasonable time. We find,
therefore, that NRS 178.558, which supersedes NRS 169.165, is in derogation of the
defendant's right to a speedy trial and that it is unconstitutional, for it provides that an
incarcerated person need not be brought to trial until the completion of his sentence and,
further, that no motion to discharge such a person from custody in this state may be granted
if he is not brought to trial until that time.
The judgments of the district court are affirmed.
____________
85 Nev. 289, 289 (1969) Colle v. State
JOHN ERNEST COLLE, Appellant, v. THE
No. 5700
May 2, 1969 454 P.2d 21
Appeal from judgment of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Defendant was convicted before the trial court of interfering with public officer in
performance of his duty, and he appealed. The Supreme Court, Mowbray, J., held that
evidence was sufficient to sustain conviction of defendant, who was a trucker and who, when
told by officer that truck was to be impounded, demanded to know location of truck and
threatened officer when he refused to tell him.
Affirmed.
Herbert J. Santos, of Reno, for Appellant.
1. Obstructing Justice.
Evidence, in prosecution for interfering with public officer in performance of his duties,
was sufficient to support verdict of guilty against defendant, who was a trucker and who,
when told by officer that truck was to be impounded, demanded to know location of
truck and threatened officer when he refused to tell him.
85 Nev. 289, 290 (1969) Colle v. State
by officer that truck was to be impounded, demanded to know location of truck and threatened officer when
he refused to tell him. NRS 197.090.
2. Witnesses.
Prosecutor's questioning of defendant as to prior conviction was improper, where prosecutor was
unprepared to prove existence of prior felony conviction in event of defendant's denial of such conviction.
3. Witnesses.
Prosecutor's attempt to determine whether defendant's prior conviction was a felony by asking defendant
outside jury's presence was improper.
4. Criminal Law.
Errors committed by prosecutor in questioning defendant as to prior conviction where prosecutor was
unprepared to prove existence of prior felony conviction and in attempting to determine whether
defendant's prior conviction was felony by asking defendant outside jury's presence did not require
reversal, where defendant's prior conviction was in fact a felony and there was no evidence of bad faith on
part of prosecutor.
5. Criminal Law.
Instruction to jury that fact that witness had been convicted of felony, if such be a fact, may be considered
only for judging credibility of such witness was not erroneous, even if record on appeal did not establish
that such prior conviction was felony, where it was a felony as matter of law. 18 U.S.C.A. 1, 2314.
6. Criminal Law.
In prosecution for interfering with public officer in performance of his duties, failure to charge jury that
defendant could have been convicted of lesser included offense of obstructing public officer was not error,
where requested instruction on lesser offense was not related to defense theory that defendant never
committed acts alleged. NRS 197.090.
OPINION
John Ernest Colle was tried by jury and convicted of interferring with a public officer in
the performance of his duty, a violation of NRS 197.090,
1
which offense is a gross
misdemeanor. The trial judge sentenced him to serve 125 days in the county jail or, in the
alternative, to pay a $500 fine. Colle has appealed from the guilty verdict, asserting several
assignments of error which constitute his grounds for reversal.
____________________

1
NRS 197.090. Interfering with public officer. Every person who, by means of any threat, force or violence,
shall attempt to deter or prevent any executive or administrative officer from performing any duty imposed upon
him by law, or who shall knowingly resist by force or violence any executive or administrative officer in the
performance of his duty, shall be guilty of a gross misdemeanor.
85 Nev. 289, 291 (1969) Colle v. State
has appealed from the guilty verdict, asserting several assignments of error which constitute
his grounds for reversal.
Colle is an independent trucker, operating in Southern California. He solicits hauling jobs
and then engages trucking firms to do the actual hauling. On May 8, 1968, Officer Michael
M. Fortune, a Motor Carrier Field Agent for the State of Nevada, stopped a Diamond T
truck-tractor pulling a semitrailer, for a routine motor carrier check. The inspection revealed
that the truck had a fictitious license plate and a faulty registration certificate and that the
driver, Marvin B. Rabone, had failed to purchase the required Nevada one-trip license
certificate. Officer Fortune advised Rabone that it would be necessary for Rabone to
accompany him to the Nevada Motor Carrier Division office in Reno. Rabone asked if he
could first telephone his superior, Mr. Francis Murphy, for the purpose of advising Murphy of
what had occurred. Rabone, with the assistance of the Nevada and California Highway
Patrols, located Murphy and Colle. Both were advised that Officer Fortune was taking
Rabone to Reno. When Rabone and Fortune arrived at the Reno office, Fortune received a
telephone call from a man who said he was Colle, and who inquired regarding the
whereabouts of the truck and Rabone. When Officer Fortune attempted to explain that the
truck would be impounded and that two citations would be issued to Rabone, Colle became
abusive in his language, and he demanded to know the location of the truck at that very
moment. Fortune refused to tell him, as it was en route to be impounded in Reno; whereupon,
Colle cursed Fortune and said, Punk, I wish I had my hands on you now. Colle then
inquired as to Fortune's location, and when Fortune told him it was at the Nevada Motor
Carrier Division office, 1775 Mill Street in Reno, Colle informed him that he would be there
in 5 or 10 minutes and told Fortune to have plenty of help because when he, Colle, arrived,
Fortune would be in great need of it. Fortune telephoned his senior officer, who came
immediately to the office. The two officers waited for Colle, who soon appeared with another
man. Fortune asked, Which one of you is Mr. Colle? Colle identified himself and, upon
inquiry, stated that he was the one who had had the conversation with Fortune on the
telephone. Colle was then placed under arrest and charged with a violation of NRS 197.090,
supra.
[Headnote 1]
1. Colle claims that the language he used could not be construed as an attempt to deter or
prevent Officer Fortune from performing his duty and that for that reason the State failed
to carry its burden of proof.
85 Nev. 289, 292 (1969) Colle v. State
from performing his duty and that for that reason the State failed to carry its burden of proof.
We do not agree. The jury could reasonably infer from Colle's conversation and his actions
that he wanted to know the location of the truck now, so that he could prevent it from being
impounded, and that when the officer refused to tell him, Colle then threatened Fortune with
physical violence. Sufficient evidence was introduced from which reasonable inferences
could be drawn to support the jury's verdict.
2. Colle next asserts that the trial judge committed reversible error in refusing to grant his
motion for a mistrial. The deputy district attorney asked Colle in the presence of the jury the
following questions regarding his prior record:
Q. [By Mr. Mathews, attorney for the State] Mr. Colle, were you convicted of interstate
transportation of stolen property in Chicago, Illinois, in 1964?
A. No. I pled guilty to a charge. There was no trial.
Q. Did you receive a three-year sentence?
Mr. Santos [counsel for Colle]: Objection, your Honor, as to the sentence. He asked the
name.
Mr. Mathews: I will withdraw the question, your Honor.
The prosecutor's questioning was based on a rap sheet received from the FBI. The sheet
indicated that Colle had been convicted of interstate transportation of stolen property and that
he had received a 3-year, suspended sentence with 2 years' probation. The prosecutor
apparently did not know whether or not this offense was a felony. In an effort to determine
whether it was a felony, the jury was excused and a conference occurred among counsel, the
judge, and the defendant, at which time the defendant admitted the conviction but stated in
substance that he did not know whether the conviction was a felony. Thereafter, the jury was
returned, and the examination of Colle, supra, occurred in their presence. We must decide
whether the questioning of Colle amounted to reversible error.
[Headnote 2]
The prosecutor's preparation for the examination did not meet the requisites as defined by
the court in Fairman v. State, 83 Nev. 287, 289, 429 P.2d 63, 64 (1967):
It is rule that without a properly authenticated copy of Fairman's conviction of the week
before, no proof could otherwise be made of it. It was error for the prosecution to ask the
question because it was unprepared to prove its [the prior felony conviction's] existence in the
event of Fairman's denial.
85 Nev. 289, 293 (1969) Colle v. State
[Headnote 3]
The offense was a felony as defined in 18 U.S.C.A. 2314 (1969),
2
the maximum penalty
for which is a fine of $10,000 and/or imprisonment not to exceed 10 years. And 18 U.S.C.A.
1 (1969)
3
defines a felony as any offense punishable by imprisonment by a term exceeding
one year. Evidently the prosecutor was unaware of these provisions of U.S.C.A. and sought,
rather, to obtain this information by asking the classification of the offense from the
defendant, Colle, outside the jury's presence, which conduct we disapprove as improper and
unnecessary. The Supreme Court of New Mexico in State v. Williams, 417 P.2d 62, 65 (N.M.
1966), held: All reasonable care, and the utmost good faith, must be exercised by the
prosecutor, when questioning an accused about prior convictions, to the end that an accused
is not prejudiced by suggestions that he has been convicted of a misdemeanor or felony, when
in fact he has not been so convicted.
[Headnote 4]
There was no evidence that the prosecutor acted in bad faith in the case before us. For that
reason, and because the offense was in fact a felony, we conclude that the questions of the
prosecutor did not constitute reversible error and that the trial judge properly denied Colle's
motion for a new trial.
[Headnote 5]
3. The trial judge, in instructing the jury, gave the following instruction:
The fact that a witness had been convicted of a felony, if such be a fact, may be
considered by you for only one purpose, namely, in judging the credibility of that witness.
____________________

2
18 U.S.C.A. 2314 (1969). Transportation of stolen goods, securities, moneys, fraudulent State tax
stamps, or articles used in counterfeiting
Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money,
of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud; . . .
. . .
Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.

3
18 U.S.C.A. 1 (1969). Offenses classified
Notwithstanding any Act of Congress to the contrary:
(1) Any offense punishable by death or imprisonment for a term exceeding one year is a felony.
(2) Any other offense is a misdemeanor.
(3) Any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a
fine of not more than $500, or both, is a petty offense.
85 Nev. 289, 294 (1969) Colle v. State
namely, in judging the credibility of that witness. It is simply one of the circumstances that
you are to take into consideration in weighing the testimony of such a witness. Appellant
asserts that the instruction was in error because the record does not establish that Colle's prior
offense of interstate transportation of stolen property was a felony. Since the offense charged
was a felony as a matter of law, we find no merit in this assignment of error.
[Headnote 6]
4. Finally, appellant urges that the trial judge erred in not charging the jury that Colle
could have been convicted of a lesser included offense, namely, a violation of NRS 197.190,
4
which is a misdemeanor. This court held in Barger v. State, 81 Nev. 548, 407 P.2d 584
(1965), that a defendant in a criminal case is entitled to have the jury instructed on his theory
of the case as disclosed by the evidence, no matter how weak or incredible the evidence may
appear to be. See People v. Carmen, 228 P.2d 281 (Cal. 1951). The record in this case
discloses that Colle's sole defense was that he never made the threats via the telephone to
Officer Fortune, but that they were made by Murphy. It was proper to reject the instruction
regarding the lesser included offense, since it was not related to any theory of Colle's defense.
As none of the assignments of error has merit, the judgment is affirmed.
____________________

4
NRS 197.190. Obstructing public officer. Every person who, after due notice, shall refuse or neglect to
make or furnish any statement, report or information lawfully required of him by any public officer, or who, in
such statement, report or information shall make any willfully untrue, misleading or exaggerated statement, or
who shall willfully hinder, delay or obstruct any public officer in the discharge of his official powers or duties,
shall, where no other provision of law applies, be guilty of a misdemeanor.
____________
85 Nev. 295, 295 (1969) Goldsmith v. Sheriff
DAVID MARTIN GOLDSMITH Appellant, v. SHERIFF
OF LYON COUNTY, NEVADA, Respondent.
No. 5703
May 2, 1969 454 P.2d 86
Appeal from an order denying application for a writ of habeas corpus by the First Judicial
District Court, Lyon County; Frank B. Gregory, Judge.
The lower court denied application, and appeal was taken. The Supreme Court, Batjer, J.,
held that where prima facie evidence established existence of a conspiracy between petitioner
and his co-defendants to commit murder and thereby collect life insurance proceeds through
death of victims, extrajudicial acts and declarations of codefendants relating directly to
acquisition of insurance money could properly be considered by magistrate in determining
probable cause to bind petitioner over to district court to answer upon charge of murder, and
were not excluded under hearsay rule of evidence.
Affirmed.
Goldwater, Taber, Hill & Mortimer, and Robert E. Rose, of Reno, for Appellant.
Harvey Dickerson, Attorney General, John E. Stone, District Attorney, for Respondent.
1. Criminal Law.
A preliminary examination is not a trial.
2. Criminal Law.
Evidence received at a preliminary examination must be legal, competent evidence.
3. Conspiracy.
It is not necessary to plead a conspiracy in an indictment or information if evidence actually shows its
existence.
4. Criminal Law.
It is not necessary to establish a prima facie existence of a conspiracy before hearsay statements of
co-conspirators may be admitted; however, before those hearsay statements can be considered by the
magistrate it is incumbent upon him to examine all other evidence to determine whether, aliunde the
existence of a conspiracy was established, and its admission is not reversible error if conspiracy is
subsequently shown.
5. Criminal Law.
Although existence of a conspiracy cannot be proved by extra-judicial statements of a co-conspirator,
nevertheless, for purpose of allowing introduction of evidence of extra-judicial acts and declarations of a
conspirator, the conspiracy needs to be proved only to extent of producing prima facie evidence of the
fact; it need not be established by a preponderance of the evidence as in a civil
action, not beyond a reasonable doubt as in a criminal action.
fact; it need not be established by a preponderance of the evidence as in a civil action, not beyond a
reasonable doubt as in a criminal action.
6. Criminal Law.
Prima facie evidence established existence of a conspiracy between petitioner and his co-defendants to
commit murder and thereby collect life insurance proceeds through death of victims.
7. Criminal Law.
When a conspiracy is once sufficiently established, acts and statements of a conspirator may be used
against all engaged in conspiracy; in admission of this type of evidence trial court has wide discretion.
8. Criminal Law.
Under common-law exception to hearsay rule covering extrajudicial statements of co-conspirators, any
act or declaration by one co-conspirator committed in furtherance of conspiracy and during its pendency is
admissible against each and every co-conspirator provided that a foundation for its reception is laid by
independent proof of the conspiracy.
9. Conspiracy.
Even though a crime has been committed, the conspiracy does not necessarily end, but it continues until
its aim has been achieved.
10. Criminal Law.
Where prima facie evidence established existence of a conspiracy between petitioner and his
co-defendants to commit murder and thereby collect life insurance proceeds through death of victims,
extra-judicial acts and declarations of co-defendants relating directly to acquisition of insurance money
could properly be considered by magistrate in determining probable cause to bind petitioner over to district
court to answer upon charge of murder, and were not excluded under hearsay rule of evidence.
OPINION
This is an appeal by the petitioner, David Goldsmith, from an order of the district court
denying his application for a writ of habeas corpus. The following facts are pertinent on this
appeal:
On January 17, 1968, a criminal complaint was filed charging Goldsmith with the murders
of Robert Stucker and Larry Olinger. Shortly thereafter he was arrested in the state of
Wyoming and subsequently extradited to the State of Nevada. On May 16 and 17, 1968, a
preliminary examination was held to determine whether the crime of murder had been
committed against Robert Stucker and Larry Olinger, and whether there was sufficient cause
to believe that Goldsmith was guilty thereof.
There was well documented evidence in the record that Robert Stucker and Larry Olinger
were murdered. The appellant does not here controvert that evidence.
Some of the evidence presented at that hearing which implicated Goldsmith with the
murders was the testimony of Gernot Mattheis and Bonny LeMire concerning what they were
told by Glenn Lucas and Ted Linn. Along with Goldsmith, Robert Lindblad, Glenn Lucas and
Ted Linn are also charged with the murders. The appellant objected to the testimony of
Mattheis and LeMire, and his objections were overruled by the magistrate.
Mattheis testified that on or about August 22, 1967, the following statement was made to
him by Linn:
And he said, Well, we had to kill a couple of guys and bullets were flying around the car
and one creased Glenn Lucas in the back of his head and another one almost hit me and went
in the dashboard of the car right next to the radio.'
Mattheis further testified that Linn told him that the two men they had killed were Larry
Olinger and Robert Stucker:
And he said, Well Dave Goldsmith asked me to find somebody to have them killed. And
I found Lindblad and Lucas to do it. But,' he said, the whole deal was a failure from the
beginning.'
On September 10, 1967, Mattheis was in a plane traveling from Salt Lake City, Utah, to
Jackson Hole, Wyoming, with Lucas and Linn when Lucas told him that I done a job for him
(David Goldsmith) and he never paid me for it and I am going to go up there and kill him.
Later that same day Linn, Lucas and Mattheis attended a cocktail party in Jackson Hole,
Wyoming, at the house owned by one Jan Carr. At this party Lucas related to Mattheis how
Linn, Lindblad and he had killed Larry Olinger and Robert Stucker. Mattheis further testified:
. . . Later, when we got back from the party, we stopped back at Mr. Linn's house and we
had something to eat, and Mr. Lucas said, That Dave, he was standing right there by the
fireplace when we made that deal and,' he said, he hasn't come up with any money yet and I
am going to kill him.
Linn told Mattheis of a conversation he had with Glenn Lucas on or about December 20,
1967. Mattheis testified:
Well, Mr. Lucas had just called up and said he was tired of pussyfooting around with
Dave Goldsmith and Ted Linn. He said he thinks they are splitting up the money between
themselves and he is not getting any of it and he is going to come up and kill Dave
Goldsmith, and Ted Linn too if he had to."
had to. Linn also stated to Mattheis that Goldsmith was to get this money from an insurance
policy.
LeMire testified that she had two conversations with Linn. During the first conversation
she stated:
. . . He told me that he was expecting some money from David Goldsmith.
She further testified that with reference to Glenn Lucas:
. . . He said that Glenn would get part of this money when he received it.
She said that during her second conversation with Linn that:
Ted told me that Glenn threatened to kill Dave if he didn't pay off. And he said he was
very worried about it.
H. L. Jensen, manager of the R. J. Bar in Jackson, Wyoming, testified that Goldsmith and
the other co-defendants, as well as the victims all patronized his bar in the summer of 1967,
and that Linn and Goldsmith met there in the fall of 1967. He specifically testified that at one
time in the month of July 1967, Lucas, Linn and Goldsmith were all in his place of business
at the same time, although Lucas was not seated with the other two.
Floyd R. King, an attorney at law from the state of Wyoming, testified that he was the
president of a corporation known as Alpine Investments, Inc., and that David Goldsmith and
his wife, as joint tenants, owned 2,000 shares of stock; Robert Stucker and his wife, as joint
tenants, owned 2,000 shares of stock; and Larry Olinger and his wife, as joint tenants, owned
2,000 shares of the stock. The appellant objected when King started to testify about the
insurance policies on the deceased shareholders. The objection was overruled and the witness
stated that the corporation had collected $93,074.50 in insurance on the life of Robert Stucker
and $98,968.39 on the life of Larry Olinger. He further testified that the financial condition of
the corporation had greatly improved after receipt of the insurance, and that they were able to
make distribution of $15,000 to Bette Stucker, $5,000 to Mary Ann Olinger and $1,500 to
David Goldsmith.
Raymond E. Roberts, of Carson City, Nevada, a special investigator from the office of the
Attorney General of the State of Nevada, testified that on November 3, 1967, in his presence
and in the presence of Goldsmith and Sheriff George Allen, a Lieutenant Langford of the
Wyoming highway patrol said: Well, Dave, you told me that you would get all the money
to which Goldsmith replied: Well, at that time I understood I was, but it goes into the
corporation, I understand now."
understood I was, but it goes into the corporation, I understand now.
Over the objection of Goldsmith, Fay Stucker, the father of Robert Stucker, deceased, was
allowed to testify to conversations he had on or about September 8th or 9th, 1967, with
Goldsmith, when the appellant asked the witness to phone Bette Stucker and advise her that
he was coming out (from Moline, Illinois) and for them not to be angry at him or in any way
perturbed or question any of his actions or his conversation of any type, and he further
requested that she call his (Goldsmith's) wife and that the witness make the call after
Goldsmith boarded the plane.
Fay Stucker further testified that he saw Goldsmith on November 5, 1967, the day before
Robert Stucker's funeral. On November 5, 1967, he met Goldsmith and Jim Mercill at the
funeral parlor and that they were each carrying a gun in their waistbands. When he asked
Goldsmith the reason, Mercill, in the presence of Goldsmith, stated that Goldsmith's life was
in danger and that he, Mercill, was going to stand by up around the door because they were
expecting trouble. The witness further testified that later that evening he observed Goldsmith
apparently weeping and mumbling, I'll kill them, I'll kill them, I'll kill them. When the
witness asked, Who are you going to kill? Goldsmith mentioned the name of Linn.
After the funeral the witness had another meeting with Goldsmith. Bette Stucker and Jim
Mercill were also present. At that time the witness again discussed the guns and again
Goldsmith expressed fear for his life, and the witness said, Well, Dave, who are you
particularlywho do you think is going to come out here and get you? This isthe
authorities haven't been notified. Carrying guns in the State of Illinois is definitely against the
law. To the question, Goldsmith mentioned the names of Linn and Bailey or Lucas and
Bailey. The witness also asked Goldsmith about the $600 he had sent to Linn and why it
hadn't been mentioned before. To that question Goldsmith responded: Well, because I didn't
want you to get mad at me.
On August 26, 1967, Linn contacted Bette Stucker at her trailer and asked for Goldsmith's
phone number in Moline, Illinois, and in her presence he made the phone call and advised
Goldsmith that he was calling from her trailer and asked for $1,000. When Goldsmith arrived
in Jackson, Wyoming, on September 11, 1967, he contacted Bette Stucker and told her he
wanted to get close to Linn because he thought Linn could tell them something about Bob
{Stucker) and Larry {Olinger).
Linn could tell them something about Bob (Stucker) and Larry (Olinger). Shortly thereafter
Goldsmith called Linn from her trailer and agreed to meet him at the R. J. Bar.
On or about October 10, 1967, Goldsmith brought a girl by the name of Lori Lynn from
Moline, Illinois, introduced her to Bette Stucker and told Bette in Lori's presence that he
would give Lori $5,000 to get close to Ted (Linn) and get any information she could
concerning Bob (Stucker) and Larry (Olinger) as to where they were or what Ted knew.
A few days later Goldsmith picked up Bette Stucker and they went to the Wort Hotel in
Jackson, Wyoming, and shortly after they arrived Linn and Lucas walked in and walked over
to their table. Linn wrote out a check for Goldsmith and delivered it to him, then they sat
down at the next table. Goldsmith introduced Lucas to Bette Stucker as Danny. That night
she talked to Goldsmith and he told her he had gone to Linn's house with Linn and Lucas.
When she asked why Lucas was introduced as Danny, Goldsmith said, Well, he didn't
want you to know he wasor, didn't want anybody in town to know it was him. At that time
Goldsmith also told her that Linn and Lucas wanted a meeting with both of them and Tom
Williamson to clear up rumors about the disappearance of Bob (Stucker) and Larry (Olinger)
and that Lucas was denying any connection with it. Bette Stucker met with Lucas, Linn and
Goldsmith at the Wort Hotel. Williamson didn't show up so the meeting broke up before
anything of significance was said.
On November 26th or 27th, 1967, Goldsmith again contacted Bette Stucker and suggested
to her that they meet with Ted Linn and go over a gold mining deal in which he wanted them
to invest $100,000. At first she flatly refused, but Goldsmith insisted that they should at least
sit down and hear what Linn had to say, and the meeting was then set up. In the meantime she
contacted Lieutenant Langford and Sheriff Allen and one-half hour before the meeting was to
take place Goldsmith called and told her that Linn had decided to have it at another time.
There was no evidence presented at the preliminary examination to establish that
Goldsmith made any admission or confession concerning the murders of Robert Stucker and
Larry Olinger.
On May 28, 1968, an order of commitment was entered directing the sheriff of Lyon
County to hold Goldsmith to answer upon the charge of murder. On the same date the
information charging Goldsmith with the murders was filed.
information charging Goldsmith with the murders was filed. On June 25, 1968, a petition for
a writ of habeas corpus was filed on behalf of Goldsmith, and subsequently the district court
directed the writ to the sheriff of Lyon County. The sheriff made his return to the district
court, and a hearing on the application for the writ was held on July 1, 1968. After the hearing
the district court entered its order denying the appellant's application for the writ of habeas
corpus.
The appellant contends that the district court was in error in denying the appellant's
application for a writ of habeas corpus because there was no legally competent evidence
presented at the preliminary hearing to establish probable cause to believe that the appellant
committed the crime of murder. We disagree.
In determining whether the state has established prima facie evidence of a conspiracy
outside the extra-judicial hearsay statements of the co-conspirators, we view the testimony
concerning the meeting proposed by Goldsmith on November 27, 1967 with Ted Linn and
Bette Stucker to discuss the gold mining deal, as most significant.
It is to be noted that the meeting was to occur some twenty-two days after the Robert
Stucker funeral when Goldsmith and Mercill were wearing guns for protection against Linn
and Bailey, or Lucas and Bailey, and at a time when Goldsmith had emotionally told Fay
Stucker that he was going to kill Ted Linn. It was only a month and a half after he had offered
Lori Lynn $5,000 to get close to Ted Linn and slightly more than a month after he had met
with Linn and Lucas at the Wort Hotel in Jackson, Wyoming, and had introduced Lucas to
Bette Stucker as Danny. At that same time Goldsmith had made a special effort to have
Bette Stucker present when Linn gave him a check for $600. And it was only a short period of
time after Lieutenant Langford had stated, in the presence of Raymond E. Roberts and Sheriff
Allen: Well, Dave, you told me that you would get all the money. To which Goldsmith
replied: Well, at that time I understood I was, but it goes into the corporation, I understand
now.
From the testimony of the witnesses outside the extra-judicial hearsay statements of the
co-conspirators, the magistrate was entitled to draw the following inferences:
(1) That Goldsmith was closely acquainted with Linn and had more than a casual
acquaintance with Lucas, and that they were holding meetings in person and by phone before
and after the murders.
(2) That at the time of the violent deaths of Robert Stucker and Larry Olinger, Goldsmith
was under the impression that he would receive all the insurance money.
(3) That the good will of Bette Stucker was necessary because she was the key to the
insurance money and a special effort was made to allay her suspicions and gain her
confidence by having her present when the $600 check was delivered by Linn to Goldsmith.
(4) That the only way Goldsmith was going to get the insurance money and pay off his
obligations was to persuade Bette Stucker to invest in Ted Linn's gold mining deal.
A further permissible inference was available to the magistrate, not from the testimony of
Gernot Mattheis, but from the fact that the extra-judicial hearsay statements were made in his
presence so he would carry the message to Goldsmith.
These permissible inferences together with the direct evidence that Ted Linn, Goldsmith's
close acquaintance, and the man with whom Goldsmith wanted Bette Stucker to consider
investing $100,000 on a gold mining deal, was seen leaving the Continental Motel Lounge in
Reno, Nevada, with Robert Stucker and Larry Olinger on the evening of their disappearance
were ample grounds for the magistrate to find prima facie evidence that Goldsmith was a
party to a conspiracy to collect insurance, and that the deaths of Robert Stucker and Larry
Olinger were necessary to obtain the insurance proceeds. NRS 52.020; NRS 52.040; Ex parte
Kline, 71 Nev. 124, 282 P.2d 367 (1955).
After a prima facie conspiracy was established the admissible hearsay testimony of Gernot
Mattheis and Bonny LeMire were sufficient to support the finding by the magistrate that there
was probable cause to believe that the offense of murder has been committed and that the
appellant had committed it as a principal under NRS 195.020.
[Headnote 1]
A preliminary examination is not a trial; State v. Holt, 47 Nev. 233, 219 P. 557 (1923);
Overton v. State, 78 Nev. 198, 370 P.2d 677 (1962). In all preliminary examinations
conducted prior to January 1, 1968, the committing magistrate was not required to find the
defendant guilty but only to find that a public offense had been committed, and that there was
sufficient cause to believe the defendant guilty thereof; In re Kelley, 28 Nev. 491, 83 P. 223
(1905); In re Oxley and Mulvaney, 38 Nev. 379, 149 P. 992 (1915); Ex Parte Molino, 39
Nev. 360, 157 P. 1012 (1916); Goldblatt v. Harris, 74 Nev. 74, 322 P.2d 902 (1958); Raggio
v. Bryan, 76 Nev.
1, 348 P.2d 156 (1960); and, State v. Fuchs, 78 Nev. 63, 368 P.2d 869 (1962).
NRS 171.206,
1
which became effective January 1, 1968, somewhat relaxed the degree of
responsibility placed upon a magistrate, for now the defendant shall be held to answer only 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. There is no longer any
requirement that the magistrate believe that the defendant is guilty of the offense charged.
Maskaly v. State, 85 Nev. 111, 450 P.2d 790 (1969).
[Headnote 2]
The evidence received at a preliminary examination must be legal evidence. In People v.
Schuber, 163 P.2d 498 (Cal. App. 1945), that court said:
The proof which will authorize a magistrate in holding an accused person for trial must
consist of legal, competent evidence. No other type of evidence may be considered by the
magistrate. The rules of evidence require the production of legal evidence and the exclusion
of whatever is not legal. (Citations omitted.) The constitutional guarantee of due process of
law requires adherence to the adopted and recognized rule of evidence. There cannot be one
rule of evidence for the trial of cases and another rule of evidence for preliminary
examinations. The rule for the admission or rejection of evidence is the same for both
proceedings.
The rule which requires less evidence at a preliminary examination, or even slight
evidence, merely goes to the quantum, sufficiency or weight of evidence and not to its
competency, relevancy or character.
Although the information filed in this case did not specifically charge the appellant and his
co-defendants with the crime of conspiracy, the theory of the prosecution throughout the
preliminary examination was that the appellant and his co-defendants had conspired to
commit murder and thereby collect life insurance proceeds through the death of the victims.
____________________

1
NRS 171.206. If from the evidence it appears to the magistrate that there is probable cause to believe that
an offense has been committed and that the defendant has committed it, the magistrate shall forthwith hold him
to answer in the district court; otherwise the magistrate shall discharge him. The magistrate shall admit the
defendant to bail as provided in this Title. After concluding the proceeding the magistrate shall transmit
forthwith to the clerk of the district court all papers in the proceeding and any bail taken by him.
[Headnote 3]
It is not necessary to plead a conspiracy in an indictment or information if the evidence
actually shows its existence. People v. Tanner, 44 P.2d 324 (Cal. 1935); People v. Massey,
312 P.2d 365 (Cal.App. 1957); James v. State, 109 S.E.2d 735 (Ga. 1959).
[Headnote 4]
In the case before us, it was proper for the magistrate to admit, over the objection of the
appellant, all of the testimony of the state's witnesses including the hearsay statements made
by Goldsmith's co-conspirators. In Nevada, since 1886, it has not been necessary to establish
a prima facie existence of a conspiracy before the hearsay statements of the co-conspirators
could be admitted. However, 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; State v. Beck, 42 Nev. 209, 174 P. 714
(1918); and, its admission is not reversible error if the conspiracy is subsequently shown;
State v. Ward, 19 Nev. 297 (1886). In McNeil v. United States, 85 F.2d 698 (D.C.Cir. 1936),
the court said: There is rarely in a conspiracy case direct evidence of the conspiracy or proof
of declarations. The evidence is nearly always circumstantial; and where such evidence is
introduced disclosing conduct of persons charged with conspiracy which points to that
unlawful end, it is permissible to produce it at any stage of the case. The obligation which the
government assumes is to connect up the evidence so that when the case is submitted there is
sufficient, when connected up, to show the guilt of the accused to the satisfaction of the jury
beyond a reasonable doubt. Therefore, in all conspiracy cases great latitude in the
introduction of testimony is allowed. It is enough that the evidence offered tends to elucidate
the inquiry or to assist in determining the truth. Courts, as a general rule, do not reverse
judgments because of the order in which testimony was received, or because some of it was
irrelevant.
In People v. Massey, supra, the court said: Direct evidence is not required to establish a
conspiracy, but circumstantial evidence may be relied upon. This rule is sanctioned for the
obvious reason that experience has demonstrated that as a general proposition a conspiracy
can only he established by circumstantial evidence.
[Headnote 5]
Although the existence of a conspiracy cannot be proved by the extra-judicial statements
of a co-conspirator, nevertheless, for the purpose of allowing the introduction of evidence
of the extra-judicial acts and declarations of a conspirator, the conspiracy needs to be
proved only to the extent of producing prima facie evidence of the fact.
by the extra-judicial statements of a co-conspirator, nevertheless, for the purpose of allowing
the introduction of evidence of the extra-judicial acts and declarations of a conspirator, the
conspiracy needs to be proved only to the extent of producing prima facie evidence of the
fact. It need not be established by a preponderance of the evidence as in a civil action, nor
beyond a reasonable doubt as in a criminal action. People v. Massey, supra.
In Burns v. State, 117 P.2d 155 (Okla. 1941), that court wrote: It is equally well settled
that the existence of a conspiracy must first be proved before a declaration of one not on trial
is admissible against the defendant; but if there is competent evidence, however slight, of the
conspiracy, the acts and declarations of a co-conspirator made during the consummation of
the conspiracy may be admitted in evidence against the defendant.
[Headnote 6]
We are satisfied that prima facie evidence established the existence of a conspiracy
between Goldsmith and his co-defendants.
We next turn to consider whether the extra-judicial acts and declarations of Goldsmith's
co-conspirator may properly be considered by the magistrate in determining probable cause to
bind the appellant over to district court to answer upon the charge of murder or whether those
acts or declarations are excluded under the hearsay rule of evidence.
[Headnote 7]
Ordinarily, hearsay statements are excluded partly because the witness is likely to report it
inaccurately, but principally because the original declarant cannot be cross-examined.
However, when a conspiracy is once sufficiently established, acts and statements of a
conspirator may be used against all engaged in the conspiracy. In the admission of this type of
evidence the trial court has a wide discretion. Barkley v. United States, 66 F.2d 74 (4th Cir.
1933).
[Headnote 8]
Under the common law exception to the hearsay rule covering the extra-judicial statements
of co-conspirators, any act or declaration by one co-conspirator committed in furtherance of
the conspiracy and during its pendency is admissible against each and every co-conspirator
provided that a foundation for its reception is laid by independent proof of the conspiracy.
State v. Ward, supra.
In VanRiper v. United States, 13 F.2d 961 (2d Cir. 1926), Judge Learned Hand said: Such
declarations are admitted upon no doctrine of the law of evidence, but of the substantive law
of crime. When men enter into an agreement for an unlawful end, they become ad hoc agents
for one another, and have made a partnership in crime.' What one does pursuant to their
common purpose, all do, and, as declarations may be such acts, they are competent against
all.
In the light of this general rule we must examine the statements and acts of the
co-conspirators Linn and Lucas as recited to the magistrate through the witnesses, Mattheis
and LeMire.
In the posture of this case the conspiracy continued up to the time of the apprehension of
the co-conspirators and for that reason the declarations made by Linn and Lucas to the
witnesses, Mattheis and LeMire, were made during the pendency of the conspiracy. The only
inference that can be drawn from the record is that the objective of the conspiracy was the
insurance proceeds and the deaths of Robert Stucker and Larry Olinger were incidental
thereto.
[Headnote 9]
Even though a crime has been committed, the conspiracy does not necessarily end, but it
continues until its aim has been achieved. A conspiracy to kidnap continued until the ransom
money was passed; McDonald v. United States, 89 F.2d 128 (8th Cir. 1937). Similarly a
robbery continued until the fruits of the crime had been disposed of; Murray v. United States,
10 F.2d 409 (7th Cir. 1925).
The statements made by both Linn and Lucas to the witnesses, Mattheis and LeMire, were
likewise in furtherance of the conspiracy.
The declarations could have been inferred by the magistrate to have a twofold purpose.
First the witnesses were both acquaintances of Goldsmith and might take the message to
him, and secondly, the conspirators were scheming among themselves to procure the
insurance proceeds which had been paid to the Alpine Investments, Inc., on the death of the
victim, and the witnesses, Mattheis and LeMire, were bystanders and happened to hear the
conversations. State v. Ward, supra.
In International Indemnity Co. v. Lehman, 28 F.2d 1, (7th Cir. 1928), the court said:
Construing the expression in furtherance of the conspiracy' reference is not to the admission
as such, but rather to the act concerning which the admission is made; that is to say, if the act
or declaration, concerning which the admission or declaration is made, be in furtherance of
the conspiracy, then it may be said that the admission is in furtherance of the
conspiracy."
the admission or declaration is made, be in furtherance of the conspiracy, then it may be said
that the admission is in furtherance of the conspiracy. Here the extra-judicial statements of
the co-conspirators as related by the witness related directly to the acquisition of the
insurance money and were in furtherance of the conspiracy.
[Headnote 10]
We find that all the requirements for an exception to the hearsay rule were met, that the
magistrate properly admitted all testimony by the state's witnesses and that it was proper for
him to weigh their testimony in finding probable cause to bind the appellant over to the
district court on the charge of murder.
The order of the district court denying the appellant's application for a writ of habeas
corpus is affirmed.
____________
85 Nev. 307, 307 (1969) McGill v. Chief of Police
ROSIE MAE McGILL, Appellant, v. CHIEF OF POLICE
OF THE CITY OF LAS VEGAS, Respondent.
No. 5695
May 5, 1969 454 P.2d 28
Appeal from a denial of a writ of habeas corpus. Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
Proceeding for writ of habeas corpus by petitioner who had been arrested and charged with
driving under influence of intoxicating liquor in violation of city ordinance. The lower court
denied relief, and petitioner appealed. The Supreme Court, Zenoff, J., held that petitioner was
not entitled to habeas corpus relief on theory that she had been denied speedy trial on charge
of driving under influence of intoxicating liquor in violation of city ordinance where,
although petitioner could have had a trial within 60 days from filing of corrected complaint
on April 23, her counsel could not be present and agreed to September date.
Affirmed.
Sidney R. Whitmore, of Las Vegas, for Respondent.
Rule establishing steps to be taken in obtaining continuance because of absence of witnesses applies to
proceedings in municipal court as well as justice court.
Granting of continuance, in prosecution for driving while under influence of intoxicating liquor, when
city prosecutor, without advance warning or notice, asked for same because arresting officer was not
available was not abuse of discretion in view of fact that petitioner was not in custody during delay
resulting from continuance.
3. Habeas Corpus.
Petitioner was not entitled to habeas corpus relief on theory that she had been denied speedy trial on
charge of driving under influence of intoxicating liquor in violation of city ordinance where, although
petitioner could have had a trial within 60 days from filing of corrected complaint on April 23, her counsel
could not be present and agreed to September date.
Claimed violation of city ordinance prescribing driving while under the influence of intoxicating liquor
was not required to be prosecuted in name of State of Nevada. Const. art. 4, 20; art. 8, 1.
5. Habeas Corpus.
On appeal from denial of habeas corpus relief to petitioner who had been arrested and charged with
driving while under the influence of intoxicating liquors, Supreme Court would not consider petitioner's
claim that municipal court judge occupied appointive position in violation of state constitution, where point
was not argued before district judge.
OPINION
On February 21, 1968 petitioner was arrested and charged while driving under the
influence of intoxicating liquor in violation of the city ordinance of Las Vegas. The complaint
was not signed before a magistrate as required by statute and upon her motion the municipal
court dismissed the complaint but ordered that a new complaint be filed immediately. At the
time of the new complaint the arresting officer was no longer a policeman for the city of Las
Vegas. Another officer signed the complaint upon information and belief and the matter was
set for trial May 21, 1968.
At the time for trial without advance warning or notice the city prosecutor asked to
continue the matter until June because the arresting officer would not be available until then.
After certain objections by petitioner the continuance was granted.
certain objections by petitioner the continuance was granted. The prosecution requested a
June trial but trial was set for September at the request of petitioner's counsel. Petitioner
sought a writ of habeas corpus which was denied by the district court and she now appeals
from the denial.
[Headnotes 1, 2]
1. Clearly, under Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918 (1969), the proper steps
necessary for a continuance were not taken. Although the rule of that case was announced as
prospective and so cannot be applied here, it is an applicable rule for proceedings in the
municipal court as well as the justice court as in Hill. Nothing appears to show what efforts, if
any, were made to obtain the witness for trial nor anything else that would edify the lower
court to adjudicate fairly the merits of the motion for continuance. We will not disturb the
trial court's exercise of discretion in this case since petitioner was never in custody during the
long delay but we do advise now that the requirements of Hill will apply to proceedings in
municipal courts.
[Headnote 3]
2. Petitioner contends she was denied a speedy trial. Ex Parte Morris, 78 Nev. 123, 369
P.2d 456 (1962), gave meaning to the speedy trial policy of this state. However, although
petitioner could have had a trial in June within 60 days from the filing of the corrected
complaint on April 23, her counsel could not be present and agreed to a September date.
Therefore, the delay was caused by him.
[Headnotes 4, 5]
3. Petitioner protests also that the claimed violation of the ordinance should have been
prosecuted in the name of the State of Nevada. She cites various provisions of the Nevada
Constitution but fails to place sufficient emphasis on Nev. Const. art 8, 1, which allows
special charters, thus exempting city ordinances and such charters from the prohibitions
against the special laws of art 4, 20, upon which appellant relies. The city charter of Las
Vegas provides in several places for prosecution in the name of the city. We can find
therefore no merit to that ground of appeal nor will we entertain appellant's objection to the
municipal court judge who occupies an appointive position which appellant states is in
violation of the state constitution. The point was not argued before the district judge and we,
not having the benefit of the district court's views on the subject, shall not consider it now.
The denial of appellant's petition for habeas corpus is affirmed.
Collins, C. J. Batjer, Mowbray, and Thompson, JJ., concur.
____________
85 Nev. 310, 310 (1969) Allstate Insurance Co. v. Pietrosh
ALLSTATE INSURANCE COMPANY, an Illinois Corporation, Appellant, v. STANLEY J.
PIETROSH and LILLIAN PIETROSH Individually and as Natural Guardians of JOHN
STANLEY PIETROSH, a Minor, and JOHN STANLEY PIETROSH, a Minor, Respondents.
No. 5737
May 6, 1969 454 P.2d 106
Appeal from judgment for defendants. Second Judicial District Court, Washoe County;
Grant L. Bowen, Judge.
Action by automobile liability insurer for declaratory judgment that it was not liable to
insureds for any part of judgment secured by insureds against uninsured motorist. The lower
court entered judgment for insureds, and insurer appealed. The Supreme Court, Thompson, J.,
held that where, on date that insureds effected process on uninsured motorist, they orally
notified their insurer of such litigation and mailed copies of pleadings to insurer but insurer
made no attempt to settle insured's claim against uninsured motorist, or demand arbitration,
and did not consent to insureds' suit nor seek to intervene therein, such conduct on part of
insurer was unreasonable, and thus, if applicable, endorsement excluding coverage in absence
of insurer's written consent to insureds' settlement with, or prosecution to judgment against,
uninsured motorist would not bar recovery by insureds from insurer on unsatisfied claim. The
Court further held that automobile liability policy endorsement providing that judgment
against insured motorist would not be conclusive against insurer unless entered in action
prosecuted with written consent of insurer, if applicable, would not bar recovery by insureds
from insurer on unsatisfied claim against uninsured motorist where insurer was given notice
of insureds' action, had opportunity to intervene therein, and judgment was thereafter
obtained against uninsured motorist in adversary proceeding.
Affirmed.
Wait & Shamberger, of Reno, for Appellant.
Echeverria & Osborne, of Reno, for Respondents.
1. Insurance.
Where accident occurred in 1966, 1967 statute declaring that no provision for arbitration is binding on
named insured or any person claiming under him was not applicable. NRS 693.115, subd. 4.
2. Insurance.
Policy provision for arbitration of uninsured motorist dispute is enforceable in cases involving accidents
occurring prior to 1967 law declaring that no provision for arbitration is binding on named insured or any
person claiming under him. NRS 38.170, 38.180, 693.115, subd. 4.
3. Insurance.
Where, on date that insureds effected process on uninsured motorist, they orally notified their insurer of
such litigation and mailed copies of pleadings to insurer but insurer made no attempt to settle insured's
claim against uninsured motorist, or demand arbitration, and did not consent to insureds' suit nor seek to
intervene therein, such conduct on part of insurer was unreasonable, and thus, if applicable, endorsement
excluding coverage in absence of insurer's written consent to insureds' settlement with, or prosecution to
judgment against, uninsured motorist would not bar recovery by insureds from insurer on unsatisfied claim
against uninsured motorist.
4. Insurance.
When notified of a claim, insurer should investigate with reasonable dispatch; demand arbitration if that
is its desire and settlement cannot be reached; consent to suit against uninsured motorist when notified of
its pendency; or seek leave to intervene and present its contentions.
5. Insurance.
Endorsement aimed at precluding binding effect of judgment against uninsured motorist on insurer is
reasonable when insurer is not notified of litigation and is, therefore, without compulsion to intervene,
demand arbitration or to take other steps, and enforcement of such provision may be appropriate in case,
wherein insured secures default judgment against uninsured motorist.
6. Insurance.
Automobile liability policy endorsement providing that judgment against uninsured motorist would not
be conclusive against insurer unless entered in action prosecuted with written consent of insurer, if
applicable, would not bar recovery by insureds from insurer on unsatisfied claim against uninsured motorist
where insurer was given notice of insureds' action, had opportunity to intervene therein, and judgment was
thereafter obtained against uninsured motorist in adversary proceeding.
OPINION
This is an action for declaratory relief commence by Allstate Insurance Company
requesting an adjudication denying that company's liability to its insureds for any part of a
judgment secured by the insureds against an uninsured motorist.
that company's liability to its insureds for any part of a judgment secured by the insureds
against an uninsured motorist. The meaning to be given the uninsured motorist provisions of
an automobile insurance policy was the issue presented to the district court and now tendered
to us. The district court ruled against Allstate and entered judgment in favor of the insureds
for $10,000, interest, costs, and attorney's fees upon a counterclaim therefor. This appeal
followed. We affirm.
The insurance policy issued by Allstate to the parents of John Pietrosh, a minor, provided
coverage to the extent of $10,000 as damages which the named insureds or any relative
residing with them would be entitled to recover from the owner or operator of an uninsured
vehicle causing bodily injury. That event occurred on July 19, 1966 when the minor son of
the insureds was injured in a collision between the bicycle he was riding and an uninsured
automobile driven by Margaret Howard. Allstate was informed of the accident shortly after it
happened. One of its agent told the insureds You're fully covered by us' and that they
would take care of the whole thing. . . . The policy contained a provision for arbitration upon
written demand of either Allstate or the insured should any dispute arise as to liability or the
amount of damages. It is disputed which of two endorsements was applicable at the time of
the accident. One of them, an exclusion from coverage, required the written consent of
Allstate to settlement with or the prosecution to judgment against the uninsured motorist. The
other endorsement, placed within the coverage section of the policy, provided that no
judgment against the uninsured motorist would be conclusive unless entered in an action
prosecuted by the insured with the written consent of Allstate.
The record does not disclose whether the insureds or Allstate attempted to settle the
uninsured motorist claim. Neither the insureds nor Allstate demanded arbitration. Four
months after the accident the insureds commenced an action for damages against Margaret
Howard, the uninsured motorist. On the same date that process was effected upon the
defendant, Allstate was orally notified of the litigation, and soon thereafter copies of the
pleadings were mailed to Allstate. The defendant answered. Allstate did not seek to intervene.
Trial occurred quickly, and on January 20, 1967 judgment was entered for the insured
plaintiffs against the uninsured defendant for $21,677.50 and costs. The insureds did not
request nor did Allstate give its written consent to the litigation or to the judgment entered
therein. The instant action by Allstate for declaratory relief was then instituted.
1. An insured who is legally entitled to recover damages from the owner or operator of an
uninsured vehicle would seem to have several options available to secure such relief. He may
settle his claim with his insurance company; settle with the uninsured motorist; arbitrate with
his insurance company; sue his insurance company; sue the uninsured motorist; or sue both,
joining them as codefendants. These options, however, are not always open, and whatever
course is selected by the insured may engender problems since other policy provisions and
state law sometimes provide barriers. For example, settlement with his insurance company
may involve that company's right of subrogation should the insured thereafter proceed against
the uninsured motorist. Settlement with the uninsured motorist may require the consent of the
insurance company. Arbitration may not be available because of state law. Litigation against
the uninsured motorist may be precluded unless consent of the insurance company is
obtained. Suit against the uninsured motorist and the insurance company as codefendants may
raise problems of joinder and conflicting interests.
1

This case concerns the interplay of the arbitration and consent provisions of the policy
upon the judgment secured against the uninsured motorist, and the right of the insureds to
secure partial satisfaction of that judgment from the insurance company.
[Headnotes 1, 2]
2. Arbitration. Since the accident giving rise to this dispute occurred in 1966, we are not
concerned with the 1967 law which states that no provision for arbitration . . . is binding
upon the named insured or any person claiming under him. NRS 693.115(4). Before 1967
this court did not have occasion to decide the enforceability of an agreement to arbitrate a
future uninsured motorist dispute. In a different context, however, we had ruled that an
agreement to arbitrate a future dispute was valid and enforceable. United Assn. Journeymen
v. Stine, 76 Nev. 189, 351 P.2d 965 (1960). The reasoning of that case applies with equal
force to an agreement to arbitrate a future uninsured motorist dispute. Just recently we
assumed the enforceability of such a provision in an uninsured motorist policy and held that
the arbitration award was conclusive upon all issues voluntary submitted to the arbitrator,
and which were not subject to vacation or modification for the reasons specified in NRS
3S.170 and 3S.1S0.
____________________

1
The options and attendant problems are discussed by Professor Widiss, Perspectives on Uninsured Motorist
Coverage, 62 Nw.U.L.Rev. 497 (1967).
conclusive upon all issues voluntary submitted to the arbitrator, and which were not subject to
vacation or modification for the reasons specified in NRS 38.170 and 38.180. Northwestern
Security Ins. Co. v. Clark, 84 Nev. 716, 448 P.2d 39 (1968). That case involved a pre-1967
accident and the effect of the 1967 law was not before us. We now hold that prior to the
enactment of NRS 693.115(4) a provision for the arbitration of an uninsured motorist dispute
was enforceable.
The policy before us provides for arbitration in the event of disagreement and upon written
demand of either insured or insurer. Since neither demanded arbitration the enforceability of
that provision is significant only to the extent that it bears upon the consent
endorsementa matter to which we now turn our attention.
3. At trial a factual dispute arose as to which of two amendatory consent endorsements
to the original policy of insurance was applicable at the time of the accident. The district
court did not resolve that dispute. Allstate contended that the permission to sue clause was
in effect. This was an exclusion from coverage provision stating: This section of the policy
does not apply to bodily injury of an insured with respect to which such insured or his
representative shall, without the written consent of Allstate, make any settlement with, or
prosecute to judgment any action against, any person or organization who may be legally
liable therefor. . . .
The insureds urged that a revised endorsement was in force which provided that no
judgment against any person or organization alleged to be legally responsible for the bodily
injury shall be conclusive, as between the insured and the company, of the issues of liability
of such person or organization or of the amount of damages to which the insured is legally
entitled unless such judgment is entered pursuant to an action prosecuted by an insured with
the written consent of the company. This endorsement, if applicable, would have appeared in
the coverage section of the policy.
The first mentioned endorsement was designed to defeat coverage should the insured
prosecute an action to judgment against the uninsured motorist without the consent of
Allstate. Under the revised endorsement a prosecution to judgment is not treated as an event
that will defeat coverage. Its purpose is to preclude the binding effect of such judgment upon
the insurance company.
Since the district court failed to decide which of the two endorsements was in effect, we
shall consider each of them.
(a) The permission to sue endorsement. Some courts have ruled that the permission to
sue clause is void, if the arbitration clause is not enforceable.
ruled that the permission to sue clause is void, if the arbitration clause is not enforceable.
Boughton v. Farmers Ins. Exchange, 354 P.2d 1085 (Okl. 1960); Dominici v. State Farm
Mutual Auto Ins. Co., 390 P.2d 806 (Mont. 1964); State v. Craig, 364 S.W.2d 343 (Mo.App.
1963). The reasoning is that if arbitration is not available the insured should be entitled to a
court determination of fault and damage in a suit against the uninsured motorist; or that it is
against public policy to preclude the insured's right to trial by jury of his claim against the
uninsured motorist. These cases are not particularly persuasive since we have decided that a
pre-1967 provision for arbitration is enforceable in this state.
The permission to sue endorsement was litigated in two Illinois cases, Levy v. American
Auto Ins. Co., 175 N.E.2d 607 (Ill.App. 1961), and Andeen v. Country Mutual Ins. Co., 217
N.E.2d 814 (Ill.App. 1966). The Levy case was decided before Illinois adopted a statute
approving agreements to arbitrate future disputes. The Andeen decision was handed down
after the enactment of that statute. In each instance the exclusion was held not to bar an action
when the insurance company furnished no reason for its refusal to allow the insured to obtain
a judgment against the uninsured motorist. In Levy, the court wrote: . . . the condition of the
company's promise to pay is the ascertainment of the legal liability of the third party. The
company can prevent this determination by the simple device of refusing to grant the insured
its written consent to prosecute the action to judgment. There was an implied promise on the
part of the Insurance Company that it would not unreasonably or arbitrarily withhold its
written consent. The company gave no reason for its refusal to allow the plaintiffs to obtain a
judgment against the uninsured motorist. 175 N.E.2d at 611. And in Andeen, where the
insurance company was notified of the filing of suit against the uninsured motorist, and did
nothing, the court approved the lower court's remark that the insurance company should have
consented to suit or demanded arbitration. Failing to do either, it was bound by the judgment.
[Headnote 3]
Those decisions are on point. Although informed of the accident shortly after it happened,
Allstate apparently did nothing. The record does not disclose an attempt to settle the insureds'
claim. When notified of the litigation, no move was made to intervene therein (cf. State v.
Craig, 364 S.W.2d 343 (Mo.App. 1963)), demand arbitration, or consent to the suit.
This, we think, was unreasonable conduct on its part which we cannot condone.
[Headnote 4]
An insurance policy is not an ordinary contract. It is a complex instrument, unilaterally
prepared and seldom understood by the insured. The parties are not similarly situated. The
company and its representatives are expert in the field; the insured is not. Prudential
Insurance Co. v. Lamme, 83 Nev. 146, 148, 149, 425 P.2d 346 (1967). For this reason we do
not hesitate to place the burden of affirmative action upon the insurance company. When
notified of a claim it should investigate with reasonable dispatch; demand arbitration if that is
its desire and settlement can't be reached; consent to suit against the uninsured motorist when
notified of its pendency; or seek leave to intervene and present its contentions. Multiple
litigation is not desirable. In short, the insurance company may not ignore its insured and then
seek refuge in the fine print of its policy. We hold that the permission to sue endorsement, if
in effect at the time of the accident, does not bar recovery in the circumstances of this case.
[Headnote 5]
(b) The revised endorsement. The aim of this endorsement is to preclude the binding effect
of a judgment against the uninsured motorist upon the insurance company. The notion is that
although the insured may litigate against the uninsured motorist without the insurance
company's permission, any judgment secured will not obviate the necessity for him to
arbitrate with or sue his company in order to collect under the policy. The provision is
reasonable when the insurance company is not notified of the litigation and is, therefore,
without compulsion to intervene, demand arbitration, or take other steps. Its enforcement may
be appropriate in a case where the insured secures a default judgment against the uninsured
motorist, since an adversary determination of liability and damages is absent. MFA Mutual
Ins. Co. v. Bradshaw, 431 S.W.2d 252 (Ark. 1968). However where the company is given
notice of the action, has the opportunity to intervene, and judgment is thereafter obtained
against the uninsured motorist in an adversary proceeding, we hold that the company should
be bound thereby despite the contrary policy provision.
[Headnote 6]
We recognize that our holding on this point subverts the requirement of privity normally
present with an application of the doctrines of res judicata or collateral estoppel.
of the doctrines of res judicata or collateral estoppel. Privity is absent here. Our holding also
forces intervention. However, the avoidance of multiple litigation carries the greater weight.
We therefore conclude that the revised endorsement, if in effect at the time of the accident,
does not preclude the judgment entered below.
Affirmed.
____________
85 Nev. 317, 317 (1969) Kelley v. Kelley
ROGER VORIS KELLEY, Jr., Appellant, v. BILLIE
RALPHENE KELLEY, Respondent.
No. 5707
May 7, 1969 454 P.2d 85
Appeal from the denial of a motion to set aside a default judgment in a divorce case.
Eighth Judicial District Court, Clark County; John F. Sexton, Judge.
The Supreme Court, Zenoff, J., held that where affidavits of husband, who contested
default divorce decree, stood uncontradicted and unimpeached, the judgment was void on
ground that husband had never been personally served.
Reversed.
[Rehearing denied June 17, 1969]
George E. Marshall, of Las Vegas, for Appellant.
Dwight B. Claar, Jr., of Las Vegas, for Respondent.
1. Process.
Service of process outside the state must be personal, and when jurisdiction is challenged the party
moved against must controvert such challenge; failure to do so is fatal to position of party moved against.
NRCP 4(e).
2. Divorce.
Where affidavits of husband, who contested default divorce decree, stood uncontradicted and
unimpeached, the judgement was void on ground that husband had never been personally served. NRCP
4(e), 60(b)(3).
OPINION
This is an appeal from the denial of a motion to set aside a default judgment in a divorce
case. Billie Kelley, wife of Roger, instituted divorce proceedings in Nevada on April 3rd.
instituted divorce proceedings in Nevada on April 3rd. Pursuant to NRCP 4(e)(2)
1
an order
for personal service outside the state was granted by the trial court and subsequently an
affidavit by a deputy sheriff attested that personal service was made on Roger on April 8th in
Bloomington, Indiana. Default judgment was entered April 30th and a divorce decree granted.
Shortly thereafter Roger moved to set aside the decree as a void judgment on the ground
that he had never been personally served. NRCP 60(b)(3).
2
The motion was denied.
The husband's motion to set aside the judgment as void was supported by three affidavits
from (1) the deputy sheriff who swore that he had mistakenly left the papers with Roger's
mother, not Roger; (2) Roger's mother who said she gave the papers to Roger's Indiana
attorney, not Roger; and (3) Roger who said he was never served at all.
Billie, the wife, offered neither testimony nor any affidavits or evidence controverting her
husband's affidavits.
[Headnotes 1, 2]
NRCP 4(e) requires that service outside of Nevada must be personal. Moran v. Second
Judicial District Court, 72 Nev. 142, 297 P.2d 261 (1956); cf. Zeig v. Zeig, 65 Nev. 464, 198
P.2d 724 (1948). When jurisdiction is challenged the party moved against must controvert the
challenge. Failure to do so is fatal to the position of the party moved against. La Potin v. La
Potin 75 Nev. 264
____________________

1
NRCP 4(e)(2). Personal Service Outside the State. Personal service outside the state upon a natural person
over the age of 18 years may be made (i) in any action where the person served is a resident of this state, and (ii)
in any action affecting specific property or status, or in any other proceeding in rem without regard to the
residence of the person served. When such facts shall appear, by affidavit, to the satisfaction of the court or
judge thereof, and it shall appear, either by affidavit or by a verified complaint on file, that a cause of action
exists against the person in respect to whom the service is to be made, and that he is a necessary or proper party
to the action, such court or judge may grant an order that the service be made by personal service outside the
state. Such service shall be made by delivering a copy of the process together with a copy of the complaint in
person to the person served. The methods of service are cumulative, and may be utilized with, after, or
independently of, other methods of service.

2
NRCP 60(b)(3). Mistakes; Inadvertence; Excusable Neglect; Fraud etc. 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: . . . (3) the judgment is void. . . .
La Potin 75 Nev. 264, 339 P.2d 123 (1959). The affidavits stand uncontradicted and
unimpeached.
The default judgment of divorce is set aside.
Reversed.
____________
85 Nev. 319, 319 (1969) Giorgi v. Pioneer Title Ins. Co.
JULIO GIORGI, Appellant v. PIONEER TITLE INSURANCE
COMPANY, a Nevada Corporation, Respondent.
No. 5668
May 13, 1969 454 P.2d 104
Appeal from judgment of Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
Action by assignee of note secured by deed of trust against escrow agent for wrongful
disbursement of proceeds of note. The lower court entered judgment for escrow agent and
assignee appealed. The Supreme Court, Mowbray, J., held that assignee's recording of the
assignment of the note and deed of trust did not constitute constructive notice of assignment
to escrow agent and that escrow agent was bound by its agreement to collect payment of the
note and disburse payment to payee named therein.
Affirmed.
Diehl, Recanzone & Evans, of Fallon, for Appellant.
Sidney W. Robinson and Frank Cassas, of Reno, for Respondent.
1. Mortgages.
In case of payment of mortgage or deed of trust securing a negotiable instrument the rights of parties
thereto, as well as third persons, are governed by rules relating to negotiable paper.
2. Mortgages.
Maker of negotiable note secured by mortgage or deed of trust cannot discharge his liability by payment
to one not the holder or one not authorized by holder to receive payment and is not justified as against
assignee of the security in making payment to mortgagee or beneficiary named in deed of trust who does
not have possession of instrument.
3. Mortgages.
Where negotiable instrument is secured by mortgage, latter will not be discharged by payment to record
holder if as a matter of fact note and mortgage had already been transferred to bona fide holder for value
before maturity, even though no assignment has been recorded.
4. Mortgages.
Recording of assignment of promissory note and deed of trust securing such note did not constitute
constructive notice of assignment to trustee which had agreed to collect note and to disburse payment to
payee named therein, and trustee was not liable to assignee of note for wrongful payment of proceeds to
named payee.
5. Escrows.
Escrow agent was bound by its agreement to collect payment of promissory note secured by deed of trust
and to disburse payment to payee named in note and was not required to run title search before making
such disbursement in order to avoid liability for wrongful disbursement.
OPINION
Appellant Julio Giorgi, assignee of a promissory note secured by a deed of trust, sued
Pioneer Title Insurance Company, trustee named in the deed, for $4,550, representing the
principal amount of the note, on the grounds that Pioneer, who held the note in escrow for
collection, had wrongfully disbursed the $4,550 to the payee named in the note and
reconveyed the real property which was the security for the note.
The facts are not in dispute. On May 28, 1958, William C. Alden and Ula May Alden, his
wife, and Mickey E. Keffer and Joyce E. Keffer, his wife, signed a promissory note in the
principal sum of $4,550. The note was payable to August Manke and Mabel Manke, his wife,
and it was secured by a deed of trust. August died, and Mabel succeeded to his interest in the
note. After August's death, but before the note became due, Mabel assigned her interest in the
note and deed of trust to Appellant Julio Giorgi. In explaining the absence of the note, Mabel
told Julio that the note and deed of trust had been lost. Giorgi caused the assignment to be
recorded in Washoe County. Giorgi notified the Aldens and the Keffers of the assignment,
but it is agreed that no actual notice of the assignment was ever given to Pioneer, although the
assignment recited that Pioneer was the trustee in the deed of trust. At the time the note and
deed of trust were executed, the instruments were deposited with Pioneer with instructions
to collect and disburse the $4,550 to the payee named in the note and, upon such
payment, to reconvey the property covered by the deed of trust.
were deposited with Pioneer with instructions to collect and disburse the $4,550 to the payee
named in the note and, upon such payment, to reconvey the property covered by the deed of
trust. Pioneer did so. When Giorgi attempted to collect the note, he learned that it had been
paid and the security for its payment lost by virtue of Pioneer's deed of reconveyance. Giorgi
then commenced an action in the district court, in which he named as defendants Pioneer,
Mabel Manke, the Aldens, and the Keffers. The Aldens and the Keffers were never served.
The district judge entered judgment in favor of Giorgi and against Mabel for the full amount
of the note, but he refused to hold Pioneer responsible for Giorgi's loss; hence, this appeal.
Appellant concedes that Pioneer did not have actual notice of Mabel's assignment of the
note and deed of trust. However, appellant argues as his principal contention on this appeal
that when he recorded Mabel's assignment of the note and deed of trust Pioneer received
constructive notice of the assignment and became bound by the terms of NRS 106.210.
1

Respondent contends, however, that the law of negotiable instruments is controlling in this
case and that Pioneer, as holder of the negotiable promissory note, was bound to disburse the
payment received to the payee named in the note Mabel Manke. We agree, and we affirm the
judgment of the district court.
[Headnotes 1, 2]
1. In the case of a payment of a mortgage or deed of trust securing a negotiable
instrument, the rule suggested by the great weight of authority is that the rights of the parties
thereto, as well as third persons, are governed by rules relating to negotiable paper. Murphy v.
Barnard, 38 N.E. 29 (Mass. 1894); Laing v. Gainey Builders, Inc., 184 So.2d 897 (Fla.App.
1966). Under this law the maker of a negotiable note secured by a mortgage or deed of trust
cannot discharge his liability by payment to one not the holder or one not authorized by the
holder to receive payment. Marling v. Milwaukee Realty Co., 106 N.W. 844 (Wis. 1906);
Connell v. Kaukauna Gas, Elec. Light & Power Co., 159 N.W. 927 (Wis. 1916); Wilson v.
Campbell, 6S N.W. 27S {Mich.
____________________

1
NRS 106.210. Recording of assignments of mortgages, beneficial interests in trust deed; constructive
notice.
1. Any assignment of a mortgage of real property or of a mortgage of personal property or crops recorded
prior to March 27, 1935, and any assignment of the beneficial interest under a deed of trust may be recorded,
and from the time any of the same are so filed for record shall operate as constructive notice of the contents
thereof to all persons.
Campbell, 68 N.W. 278 (Mich. 1896). And a debtor is not justified as against an assignee of
the security in making payments to a mortgagee or a beneficiary named in a deed of trust who
does not have possession of the instrument.
The general rule has been stated in 4 American Law of Property 16.117 (A.J. Casner ed.
1952):
[Headnote 3]
Where a negotiable instrument is secured by a mortgage, the latter will not be
discharged by payment to the record holder if as a matter of fact the note and mortgage had
already been transferred to a bona fide holder for value before maturity, even though no
assignment has been recorded.' Such is the general rule by the very definite weight of
authority. This flows from the general rule that in such cases the mortgage follows the rules
applicable to the negotiable instrument it secures. Nor will the result be different if the
mortgagor asked for the note and was given a plausible but false explanation for its
nonproduction. The risk is absolute. (Footnotes omitted; emphasis added.)
[Headnote 4]
2. Appellant contends, however, that in this case the general rule is superseded by our
recordation statutes, particularly NRS 106.210, supra, and that when the assignment was
recorded Pioneer was given constructive notice of its existence and became bound by its
term. Admittedly, the problem of harmonizing the effect of our recording statutes with the
rules of negotiable instruments so as not to interfere with the commercial mobility of the debt
is a troublesome one. G. Osborne, Handbook on the Law of Mortgages 235, at 647, has
stated the rule: The problem of enacting and applying the recording statute is one of trying to
satisfy the demands of recordation required by the fact that the subject matter of the mortgage
is land and, at the same time, not to interfere with the mobility of the debt or with the
functioning of the security aspect of the mortgage which makes it a mere incident of the debt.
Since this is so, it is obvious that the rules governing the recording of other conveyances
cannot be applied in toto. (Footnote omitted; emphasis added.)
[Headnote 5]
3. There is an additional reason for this rule. In this case Pioneer was bound by the escrow
instructions which the parties had signed. Amen v. Merced County Title Co., 25 Cal.Rptr. 65
(Cal. 1962). The instructions directed Pioneer, who held the note for collection, to receive
and disburse the $4,550 payment to the payee named in the note.
the note for collection, to receive and disburse the $4,550 payment to the payee named in the
note. To require any agencywhether a title company, escrow company, bank, or
individualto run a title search before making any disbursements to a payee named in a note
held for collection and secured by a deed of trust, or to pay at its peril, would impose an
impractical and crushing burden on such agencies.
The judgment of the district court is affirmed.
Collins, C. J., Zenoff and Thompson, JJ., and Wartman, D. J., concur.
____________
85 Nev. 323, 323 (1969) A Minor v. State
........................., a Minor,
1
Appellant, v. THE
No. 5640
May 26, 1969 454 P.2d 895
Wartman, Judge.
A petition for writ of habeas corpus was filed. The trial court entered a judgment denying
writ and the petitioner appealed. The Supreme Court, Batjer, J., held that in absence of
anything before Supreme Court either by way of testimony, material evidence, minute entry
or otherwise by which court would be able to determine issue of whether appellant had been
treated as a delinquent without due process or had been denied due process because she was
not afforded hearing within reasonable time, contention that trial court committed error in
denying application for writ of habeas corpus could not be accepted.
Affirmed.
L. Earl Hawley, of Las Vegas, for Appellant.
Richard H. Bryan, of Las Vegas, for Respondent.
Neither argument by counsel for appellant before trial court nor his arguments and briefs filed on behalf
of appellant in Supreme Court can be considered as evidence or part of record.
____________________

1
It is the policy of this court that the names of juveniles shall not be published; for that reason the name of
the appellant as been omitted.
2. Habeas Corpus.
In absence of anything before Supreme Court either by way of testimony, material evidence, minute entry
or otherwise by which Court would be able to determine issue of whether appellant had been treated as a
delinquent without due process or had been denied due process because she was not afforded hearing
within reasonable time, contention that trial court committed error in denying application for writ of habeas
corpus could not be accepted.
3. Habeas Corpus.
There was a presumption that no error had been committed by court in denying writ of habeas corpus.
OPINION
Pursuant to an order of the trial court filed on April 11, 1968, a proceeding was held on
April 15, 1968 to consider the appellant's petition for a writ of habeas corpus. At that
proceeding no testimony was taken, nor was there any evidence presented. There were only
arguments by respective counsel for the parties. There has never been a petition filed in this
matter in the Juvenile Court. Before a petition could be filed by the respondent, alleging the
grounds for the original detention of the appellant, her counsel announced: [W]e will go to
the Supreme Court with it. After the arguments of counsel the writ was denied.
The appeal is taken upon the grounds:
(1) That the appellant was treated as a delinquent without due process; and
(2) That the appellant was denied due process because the respondent had failed to afford
her a hearing within a reasonable time.
In support of her contentions, the appellant relies heavily upon In re Gault, 387 U.S. 1
(1967), and Kent v. United States, 383 U.S. 541 (1966). We find this reliance extremely
premature.
There is nothing before this court, either by way of testimony, material evidence, a minute
entry or otherwise, by which we would be able to determine these issues. The record is
devoid of any acceptable evidence that goes to prove that the appellant was ever taken into
custody for violating any law or ordinance, or was ever held in detention by the juvenile
authorities, nor has the appellant in any other acceptable manner supplied any material
evidence.
[Headnotes 1, 2]
Neither the argument by counsel for the appellant before the trial court, nor his arguments
in the briefs filed on behalf of the appellant in this court can be considered as evidence or as
part of the record.
It has long been a recognized rule of law that any statement or argument made by counsel
before the trier of facts, concerning the fact of a case, cannot be regarded as evidence. Frazier
v. Cupp, 394 U.S. 731 (1969). Town of Ashwaubenon v. Public Service Commission, 126
N.W.2d 567 (Wis. 1964).
In the case of Mitchell v. Bromberger, 2 Nev. 345 (1866), this court said: Counsel for
appellant mentions the error which they complain of in their brief, but that is not sufficient
here. The record must show the error, if any exists. A statement of facts in the brief of counsel
will not supply a deficiency in the record. (Emphasis added.)
In Cawley v. Pershing County, 51 Nev. 36, 268 P. 44 (1928), the court said: Counsel did
make a statement during the argument, but this court is not bound by admissions or
statements of counsel as to the interpretation of statutes or as to any phase of the law. To hold
otherwise would result in opinions by stipulation of counsel, something no self-respecting
court can look upon with favor.
In Wilson v. Wilson, 55 Nev. 57, 24 P.2d 317 (1933), this court stated: It has been held in
many cases that nothing can be considered by this court on an appeal from an order or
judgment of a lower court, except the record as made and considered by the court below. This
is true in the very nature of things. This court can only pass upon alleged errors or abuse of
legal discretion committed by the lower court. Water Co. of Tonopah v. Tonopah Belmont
Dev. Co., 50 Nev. 24, 249 P. 565. In determining such questions we cannot look to matter
dehors the record. (Citation omitted.)
In determining cases, an appellate court must confine its consideration to the facts
reflected in the record and the necessary and reasonable inferences that may be drawn
therefrom. The statements made by counsel in their briefs, alleging facts, or their arguments
made in open court portraying what might have occurred, will not be considered by this court.
State v. Griswold, 446 P.2d 467 (Ariz. 1968); Yee Marn v. Reynolds, 361 P.2d 383 (Hawaii
1961).
[Headnote 3]
The fact that a petition for a writ of habeas corpus was filed, and an order was entered
requiring a hearing on the application, does not justify the assumption that the trial court
committed error when the writ was denied.
and an order was entered requiring a hearing on the application, does not justify the
assumption that the trial court committed error when the writ was denied. As a matter of fact,
the presumption is that no error was committed. Water Co. v. Belmont Dev. Co., 50 Nev. 24,
249 P. 565 (1926); State v. Boyle, 49 Nev. 386, 248 P. 48 (1926).
Because we are unable to determine, from the record, the grounds for the appellant's
application for a writ of habeas corpus, we cannot accept her contention that error was
committed. The judgment of the trial court is affirmed.
Collins, C. J., Zenoff, Mowbray and Thompson, JJ., concur.
____________
85 Nev. 326, 326 (1969) Root v. City of Las Vegas
RICHARD LEE ROOT, Appellant, v. CITY OF
LAS VEGAS, NEVADA, Respondent.
No. 5630
May 27, 1969 454 P.2d 894
Appeal from order of dismissal. Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Defendant was convicted before the Las Vegas Municipal Court of violation of municipal
ordinance and he appealed. The lower court dismissed appeal and defendant appealed. The
Supreme Court, Zenoff, J., held that appeals from municipal court to district court are not
limited to conviction following trial but can be taken from conviction entered on guilty plea.
[See also 84 Nev. 258, 439 P.2d 219]
Reversed.
Sidney R. Whitmore, City Attorney, Heber P. Hardy, Deputy City Attorney, Robert N.
Farkas, Deputy City Attorney, of Las Vegas, for Respondent.
Municipal Corporation.
Appeals from municipal court to district court are not limited to conviction following trial but can be
taken from conviction entered on guilty plea. NRS 177.060, 189.010, 266.595.
OPINION
Appellant pleaded guilty to a violation of a municipal ordinance in the Las Vegas
Municipal Court. He then tried to appeal his consequent conviction.
85 Nev. 326, 327 (1969) Root v. City of Las Vegas
appeal his consequent conviction. The appeal was dismissed by the district court because that
court held that an appeal may be taken only from a conviction based on a trial. Appellant
contends the dismissal was improper. We agree.
Appeals from the Las Vegas Municipal Court to the district court are taken in the same
manner as appeals from justices' courts. Chapter II, 29 of the Las Vegas City Charter
provides that [a]ppeals to the district court may be taken from any final judgment of the
municipal court in the same manner and with the same effect as in cases of appeal from
Justices' courts in civil and criminal cases. . . . See also NRS 266.595 (1965).
Respondent contends that NRS 189.010 (1965) allowed an appeal only from a criminal
action tried before a justice of the peace and that therefore a trial is required before an
appeal is allowed. However, NRS 177.060 (1965) allowed an appeal from any final judgment
of a justice's court. NRS 189.010 (1965) relates only to the ten-day limit after judgment
within which the appeal may be taken.
Since an appeal could be taken from any final judgment of a justice's court, the same rule
obtained in appeals from municipal court judgments as required by the Las Vegas City
Charter.
Reversed.
__________
85 Nev. 327, 327 (1969) Benson v. District Court
SHELLY KYLENE BENSON, aka SHELLY KYLENE OSGOOD, a Minor, by ARLENE
OSGOOD, Her Guardian Ad Litem, and ARLENE OSGOOD and WALTON C. OSGOOD,
in Their Individual Capacities, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, in and for the County of Clark, and THE HONORABLE
JOHN F. MENDOZA, Judge Thereof, Respondents.
No. 5646
May 27, 1969 454 P.2d 892
Original proceeding in mandamus.
Original proceeding in mandamus for order directing district court to vacate order
quashing service of process on a foreign corporation. The Supreme Court, Mowbray, J., held
that foreign corporation which coupled motion to quash service of process with motion to
dismiss action entered general appearance invoking general jurisdiction of district court.
foreign corporation which coupled motion to quash service of process with motion to dismiss
action entered general appearance invoking general jurisdiction of district court.
Writ granted.
Gregory & Gregory, of Las Vegas, for Petitioners.
Cromer and Barker, of Las Vegas, for Respondents.
1. Mandamus.
In case where district court takes jurisdiction and acts, its acts will not be subject to review by writ of
mandate, but where such tribunal refuses to take jurisdiction at all, when by law it ought to do so, or where
having obtained jurisdiction it refuses to proceed in its exercise, mandamus is the proper remedy.
2. Corporations.
Foreign corporation which coupled motion to quash service of process with motion to dismiss the action
entered general appearance invoking general jurisdiction of district court. NRS 14.080; NRCP 12(b).
OPINION
This is an original proceeding in mandamus asking this court to order the district judge to
vacate an order quashing the service of process on Heck's, Inc., a party defendant in an action
pending in the Eighth Judicial District Court wherein the petitioners are plaintiffs.
Heck's, Inc. operates a retail chain of nine dry-goods stores in West Virginia. Mrs. Henry
Benson, the grandmother of Shelly Kylene Benson, resides at Morgantown, West Virginia,
where she purchased a dress from one of the Heck's, Inc. stores in September 1967 with the
express purpose of sending it to Shelly, who resides in Las Vegas. Shelly received the dress,
and on October 10, 1967, while wearing it, she brushed against an electric burner in her
parents' home. The dress exploded in flames and the child was severely burned. Damages for
the injury are sought from Heck's, Inc. Liability based on breach of warranty, strict liability,
and negligence are alleged. Heck's, Inc. was served in West Virginia pursuant to Nevada's
long-arm statute, NRS 14.0S0.1 Heck's, Inc. filed a motion in district court to quash the
service of process, coupled with a motion to dismiss.
Nevada's long-arm statute, NRS 14.080.
1
Heck's, Inc. filed a motion in district court to quash
the service of process, coupled with a motion to dismiss. The district judge granted the
motion to quash, and hence this appeal.
[Headnote 1]
1. A threshold issue presented for our consideration is the respondents' contention that
mandamus will not lie because the facts which are the basis for the action are in substantial
dispute. It is settled law in Nevada that: In a case where the district court takes jurisdiction
and acts, its acts will not be subject to review by a writ of mandate, but where such tribunal
refuses to take jurisdiction at all, when by law it ought to do so, or where having obtained
jurisdiction it refuses to proceed in its exercise, mandamus is the proper remedy. Errors
committed in the exercise of judicial discretion cannot be made the subject of review, nor can
they be corrected by a writ of mandamus, but where a district court erroneously decides that it
has no jurisdiction, the writ of mandamus is the proper remedy to compel that tribunal to do
that which the law prescribes it should doassume jurisdiction and proceed with the cause.
Floyd v. District Court, 36 Nev. 349, 352, 135 P. 922, 923 (1913). See State ex rel. Howe v.
Moran, 37 Nev. 404, 142 P. 534 (1914); State ex rel. Swisco, Inc. v. District Court, 79 Nev.
414, 385 P.2d 772 (1963). Since mandamus is proper, we turn to consider the petition on its
merits.
____________________

1
NRS 14.080. Products liability: Service of process on foreign manufacturers, producers, suppliers.
1. Any company, firm, partnership, corporation or association created and existing under the laws of any
other state, territory, foreign government or the Government of the United States, which manufactures, produces,
makes, markets or otherwise supplies directly or indirectly any product for distribution, sale or use in this state
may be lawfully served with any legal process in any action to recover damages for injury to person or property
resulting from such distribution, sale or use in this state in the manner prescribed in this section.
2. Service of process as authorized under the provisions of subsection 1 shall be accomplished:
(a) By delivering a copy of such process to the secretary of state; and
(b) By mailing to the last-known address of the company, firm, partnership, corporation or association, by
registered mail return receipt requested, a copy of the summons and a certified copy of the complaint.
3. In all cases of such service the defendant shall have 40 days, exclusive of the day of service, within which
to answer or plead.
4. This section provides an additional manner of serving process and does not invalidate any other service.
[Headnote 2]
2. Petitioners, in seeking a writ of mandate, assert that Heck's, Inc. is a foreign corporation
doing business within the purview of NRS 14.080, supra, and that when Heck's, Inc. was
served with process, as provided in subsection 2 of that statute, service was complete and
jurisdiction acquired. We need not decide that issue. The record shows that Heck's, Inc.
coupled a motion to quash service of process with a motion to dismiss the action, thus
entering a general appearance within the doctrine announced in Barnato v. District Court, 76
Nev. 335, 353 P.2d 1103 (1960), and Selznick v. District Court, 76 Nev. 386, 355 P.2d 854
(1960). Since petitioners have entered such a general appearance, any consideration of the
scope of Nevada's long-arm statute, NRS 14.080, supra, is irrelevant. In Barnato, this court
said, at 339:
The Nevada Rules of Civil Procedure contain Rule 84 but some of the forms contained in
its Appendix of Forms differ materially from those in the federal Appendix of Forms. In
particular, Form 19 of the Nevada Appendix of Forms deletes entirely the form for a motion
to dismiss an action for improper service of process. In this connection the Advisory
Committee Notes relating to Rule 12(b) which follow the Rules and Forms, state: The
federal rule is further revised to provide that the defenses of lack of jurisdiction over the
person, of insufficiency of process, and of insufficiency of service of process, are waived if
joined with one or more defenses other than those defenses, or by further pleading after denial
of such defenses. This, in substance, is intended to retain existing practice on motions to
quash * * *. Cf. Sec. 8573, N.C.L. 1929.'
It appears to us that the Advisory Committee intended to retain the practice of employing
motions to quash service of process and not to adopt the federal rule permitting motions to
dismiss in cases of defective service. While we are not bound by the Committee's intentions,
we do feel that the situation existing in this state requires an interpretation of Rule 12(b)
consistent with the Advisory Committee's intentions. (Footnote omitted.)
The order of the district court is reversed. Mandamus shall issue, and the district judge is
directed to assume jurisdiction.
____________
85 Nev. 331, 331 (1969) Gebert v. State
RONALD EUGENE GEBERT, Appellant, v. THE
No. 5658
May 27, 1969 454 P.2d 897
Appeal from a judgment of the Eighth Judicial District Court, Clark County; Clarence
Sundean, Judge.
Defendant was convicted in the trial court of unlawful possession of narcotics and he
appealed. The Supreme Court, Batjer, J., held that defendant, whose conviction was based on
evidence of marijuana which defendant had given to friend who placed it in railroad terminal
locker and consented to police search of locker, had responsibility to request instructions that
conviction could not be had on uncorroborated testimony of accomplice and defendant's
failure to request such instructions constituted waiver of his right thereto, that defendant had
standing to challenge legality of search of locker and seizure of marijuana by police but that
search and seizure without search warrant but with consent of friend were legal.
Affirmed.
James D. Santini, Public Defender, George D. Frame, Deputy Public Defender, of Las
Vegas, for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, Charles
E. Thompson, Deputy District Attorney, of Las Vegas, for Respondent.
1. Criminal Law.
Defendant whose conviction for unlawful possession of narcotics was based on evidence of container of
marijuana which defendant had given to friend who informed police of its whereabouts had responsibility
to request instructions that conviction could not be had on uncorroborated testimony of accomplice and
defendant's failure to request such instructions constituted waiver of his right thereto. NRS 175.291.
2. Criminal Law.
Statutory provision that conviction cannot be had on uncorroborated testimony of accomplice does not
arise from constitutional mandate and instructions regarding this provision are not within class that must be
given sua sponte by trial court. NRS 175.291.
In order to have right to claim unlawful invasion of privacy, person making claim must be either one of
persons against whom search was directed, one who is charged with illegal possession of property to be
suppressed or one who is legitimately on the premises where search occurs and fruits of
search are proposed to be used against him.
premises where search occurs and fruits of search are proposed to be used against him.
Defendant who left container of marijuana with friend who placed it in railroad terminal locker which
was searched by police with permission of friend was person against whom search was directed and was
one charged with illegal possession of property to be suppressed and had standing to challenge legality of
search of locker and package and seizure of marijuana.
Defendant who left container of marijuana with friend assumed risk that friend would allow someone to
look inside container and search of locker in which friend placed container and seizure of container by
police without search warrant but with consent of friend were legal.
OPINION
This is an appeal from a judgment of conviction entered upon a jury verdict finding the
appellant guilty of the unlawful possession of narcotics.
The appellant was arrested at his apartment in Las Vegas on November 3, 1967. On the
day prior to his arrest he visited his friend, Richard Gonzales, and left a package with him for
safekeeping. After the appellant's arrest Gonzales examined the package and observed that it
contained a gun and a canister. He did not look in the canister, however, he stated upon
cross-examination that he believed it contained marijuana. Shortly after making his
observations, Gonzales took the package to the Greyhound bus terminal and put it in a locker.
Five days later he took the package out of the locker at the bus terminal and put it in a locker
at the railroad station. He further testified that after he put the package in the locker at the bus
terminal he visited a Mr. Holmes, who advised him to turn it over to the police. On
November 14, 1967, the police came to his apartment and asked him if he had any knowledge
about the package left with him by the appellant. Gonzales told them he had such knowledge
and took them to the railroad station and gave the locker key to Detective Cunningham and
assented to the locker being opened. The detective opened the locker and the officers took
pictures of it and its contents.
The police officers did not have the appellant's consent to search either the locker or the
package, nor did they have a search warrant, although they had ample time to obtain one after
receiving their information. At the trial the police officers testified that they knew what
they were looking for, and that they believed the package and its contents belonged to
the appellant.
testified that they knew what they were looking for, and that they believed the package and its
contents belonged to the appellant.
Another police officer, who conducted a positive chemical analysis, identified the contents
of the canister as marijuana. He also testified that he had taken photographs of a fingerprint
on a packet of cigarette papers inside the canister, which prints matched exemplars taken
from the appellant.
The appellant contends that the trial court committed prejudicial error when it (1) failed to
instruct the jury on the necessity for corroboration of the testimony of an accomplice even
though no such instruction was requested by the appellant; and (2) admitted over the
appellant's objection, evidence that was the fruit of an illegal search and seizure.
We first turn to consider whether the trial court was required, sua sponte, to instruct the
jury on the law concerning corroboration of the testimony of an accomplice. It is to be noted
that the appellant's assignment of error is specifically directed at the failure of the trial court
to give a desired instruction and we limit our consideration to that particular contention and
do not reach the question of whether or not Gonzales was an accomplice of the appellant.
At common law the uncorroborated testimony of an accomplice, if it satisfied the trier of
facts of the guilt of the defendant beyond a reasonable doubt, was sufficient to support a
conviction. People v. Hermens, 125 N.E.2d 500 (Ill. 1955). NRS 175.291
1
which requires
that the testimony of an accomplice be corroborated is statutory in nature and does not arise
from any constitutional mandate.
[Headnotes 1, 2]
It was the responsibility of the appellant to request the desired instruction. His failure to do
so amounts to a waiver of his right to now complain unless the instruction was so necessary
to his case that the court sua sponte was required to give it. Mears v. State, 83 Nev. 3, 422
P.2d 230 (1967). Appellate consideration is precluded unless the instruction is so necessary to
the case that the failure to give it is patently prejudicial.
____________________

1
NRS 175.291. 1. 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.
2. An accomplice is hereby defined as one who is liable to prosecution, for the identical offense charged
against the defendant on trial in the cause in which the testimony of the accomplice is given.
prejudicial. Garner v. State, 78 Nev. 366, 374 P.2d 525 (1962). Here we find no such
prejudice. The instruction which the appellant now insists should have been given is not
within the class that must be given sua sponte by the trial court.
We next consider the appellant's contention that the marijuana was the fruit of an illegal
search and seizure and its admission into evidence resulted in error by the trial court.
Did the appellant have standing to object to its admission? The respondent contends that
the appellant had no such standing because the marijuana was obtained by the police officers
as the result of the search of the locker and package upon permission given by Gonzales who
was the lessee of the locker, and the bailee of the package.
The record seems to indicate that the judge of the trial court agreed with the respondent's
position. However, we agree with the appellant's contention that he had standing to object.
The appellant is clearly within the purview of Jones v. United States, 362 U.S. 257 (1960),
and Dean v. Fogliani, 81 Nev. 541, 407 P.2d 580 (1965). In Jones v. United States, supra, the
United States Supreme Court recognized the general rule that in order to qualify as a person
aggrieved by an unlawful search and seizure: [O]ne must have been a victim of a search or
seizure, one against whom the search was directed, as distinguished from one who claims
prejudice only through the use of evidence gathered as a consequence of a search or seizure
directed at someone else. In that case, the court went on to say: The . . . element in this
prosecution. . . . that possession both convicts and confers standing, eliminates any necessity
for a preliminary showing of an interest in the premises searched or the property seized,
which ordinarily is required when standing is challenged. (Emphasis added.)
[Headnotes 3, 4]
In order to have the right to claim an unlawful invasion of privacy, we said in Dean v.
Fogliani, supra, that the person making the claim (1) [M]ust be one of the persons against
whom the search was directed; or (2) must be one who is charged with illegal possession of
the property to be suppressed; or (3) must be anyone who is legitimately on the premises
where a search occurs and the fruits of the search are proposed to be used against him. The
appellant qualified under requirements one (1) and two (2).
The respondent relied in part on Harper v. State, 84 Nev. 233, 440 P.2d 893 (1968).
Harper concerned the search of an automobile in which defendant was riding, and seizure of
certain evidence found in the automobile which implicated defendant in a burglary.
defendant in a burglary. This court held that since the car in which defendant was riding was
a stolen car, within the holding of Jones, supra. Harper was one of the class who by virtue of
their wrongful presence, cannot invoke the privacy of the premises searched. However, we
went on to say: Nor does Harper have standing by virtue of the offense charged. The mere
possession of an automobile, even though it is stolen, is not a crime, nor does possession
standing alone establish guilt. It is otherwise when, as here, the crime is possession of
narcotics and possession alone establishes guilt.
Although the appellant had standing to challenge the legality of the search of the locker
and package, and the seizure of the marijuana, his challenge must fail.
[Headnote 5]
The appellant argues that Gonzales had actual possession of the package only as a bailee
and that he had no authority to consent to a search of the package or a search of the canister
containing the marijuana. We disagree and find no illegal search and seizure occurring in this
case. The appellant by leaving the package and its contents with Gonzales assumed the risk
that Gonzales would allow someone to look inside. Frazier v. Cupp, 394 U.S. 731 (1969).
We find that the appellant's contentions are without merit, and affirm the judgment of the
trial court.
____________
85 Nev. 335, 335 (1969) Christensen v. Insurance Comm'r
REED W. CHRISTENSEN, President of ATLAS MANAGEMENT COMPANY, a Nevada
Corporation, and ATLAS MANAGEMENT COMPANY, Appellants, v. INSURANCE
COMMISSIONER OF STATE OF NEVADA and GREAT BASIN INSURANCE CO., a
Nevada Corporation, Respondents.
No. 5667
May 27, 1969 454 P.2d 891
Appeal from order denying petition to intervene. First Judicial District Court, Ormsby
County; Richard L. Waters, Jr., Judge.
Voluntary insurance company receivership proceeding. The lower court denied a petition
to intervene by corporation which claimed equitable ownership of stock to which insurance
company held legal title, and corporation appealed. The Supreme Court, Thompson, J.,
held that order denying intervention was not appealable.
which claimed equitable ownership of stock to which insurance company held legal title, and
corporation appealed. The Supreme Court, Thompson, J., held that order denying intervention
was not appealable.
Affirmed.
Gladys Towles Root, of Los Angeles, California, and Springer & Newton, of Reno, for
Appellants.
Harvey Dickerson, Attorney General, and John A. Porter, Deputy Attorney General, of
Carson City, for Respondents.
Appeal and Error.
Order in insurance company's voluntary receivership proceeding, denying petition to intervene by
corporation which claimed that it was equitable owner of stock to which insurance company held legal title,
was not appealable. NRCP 72(b)(1-3); NRS 32.010 et seq., 687.010 et seq.
OPINION
The district court entered an order denying the petition of Atlas Management Co. to
intervene in the voluntary receivership proceeding of the Great Basin Insurance Co. This
appeal is from that order.
At one time Atlas Management was the parent holding corporation of Great Basin. In
January 1967, Atlas Management transferred Great Basin to Atlas Church Plan, Inc., a
California corporation, and entered into a contract with Atlas Church to acquire the total
issued and outstanding shares of stock of Casualty Insurance Co., Great Basin's wholly owned
California subsidiary corporation.
In September 1967 Great Basin entered into voluntary receivership following a petition by
the Insurance Commissioner of Nevada for appointment of a receiver. The Insurance
Commissioner was appointed receiver and in February 1968 petitioned the court for leave to
marshal assets and to negotiate and effect sales of the corporate assets of Great Basin. Leave
was granted subject to prior specific court approval of any and/or sales agreements so
conditionally concluded, and conditioned upon the receiver's conserving and protecting
the legal and equitable interests of all creditors, policyholders, and stockholders of Great
Basin . . . as any and all such interests may appear.
The following month the Insurance Commissioner petitioned the court for approval to
sell the shares of stock of Casualty Insurance Co. of California.
the court for approval to sell the shares of stock of Casualty Insurance Co. of California. Soon
thereafter Atlas Management filed its petition to intervene on the ground that it was the
equitable owner of the stock, although Great Basin held legal title. That petition was denied,
the stock subsequently sold, and the sale confirmed by the court.
The appellate briefs center upon whether statute or rule provide for intervention in the
absence of an underlying case between adversaries. We do not decide this question since an
order denying intervention in these circumstances is not an appealable order. It is not a final
judgment within the contemplation of NRCP 72(b)(1), nor is provision specially made by
Rule (NRCP 72(b)(2), (3)) or statute (NRS ch. 32, NRS ch. 687) for its appealability.
Affirmed.
____________
85 Nev. 337, 337 (1969) Walker v. State
JOSEPH MILES WALKER, Appellant, v. THE
No. 5557
May 28, 1969 455 P.2d 34
Appeal from a conviction of first degree murder. Second Judicial District Court, Washoe
County; Thomas O. Craven, Judge.
The Supreme Court, Zenoff, J., held that exclusion of prospective jurors who stated that
they would not return a death penalty verdict under any circumstances was proper and further
held that it was not error to allow state to endorse names of additional witnesses on
information on the representation that evidence adduced by defendant at second trial did not
come out at first trial and that, therefore, materiality of testimony of witnesses was not
foreseeable.
Affirmed.
Frank J. Sala and Mack Fry, of Reno, for Appellant.
1. Jury.
Exclusion of prospective jurors who stated that they would not return a death penalty verdict under any
circumstances was proper. NRS 175.105, subd. 9.
2. Criminal Law.
Where defendant, in asking that his attorneys be dismissed, represented to trial court that he had been
reading law books for several years and was prepared to proceed, whereupon trial court informed
defendant that he could defend himself but that counsel would be required to remain at his side and that if
defendant proved incompetent counsel would be reappointed, defendant's motion, thereafter, for time to
prepare for trial was understandably denied and it was not an abuse of discretion for trial court to reappoint
counsel and proceed to trial.
3. Criminal Law.
Allowing state to endorse names of additional witnesses on information on the representation that
evidence adduced by defendant at second trial did not come out at first trial and that, therefore, materiality
of testimony of witnesses was not foreseeable was not error, where no prejudice to defendant was shown.
4. Criminal Law.
Photographs of murder victim were admissible, where probative value of photographs outweighed their
prejudice, if any.
Fifth Amendment does not require an indictment in a capital offense in a state prosecution.
U.S.C.A.Const. Amend. 5.
After reversal of defendant's conviction based on original information, it was not necessary to file a new
information prior to second trial.
7. Counties.
Considering that defendant had an investigator for his first trial and that, due to investigator's death,
testimony of investigator at first trial was read at second trial, action of trial court at second trial in denying
defendant's motion for general investigation expenses from county funds ground that need for funds was
not set forth with sufficient particularity was correct.
8. Criminal Law.
Where newspaper clippings pertaining to defendant's case prior to trial showed nothing that was not a
matter of public record, where jury was impartial, and where there was no showing of actual prejudice or a
totality of circumstances that would raise a presumption of prejudice, defendant was not entitled to a
change of venue on ground of pretrial publicity.
9. Criminal Law.
Law of first appeal is law of case on all subsequent appeals in which facts are substantially the same.
10. Criminal Law.
Where it was decided on appeal from defendant's first trial that venue could properly be laid in Washoe
County, and that there was no question concerning jurisdiction of Washoe County Court, and where facts at
second trial were substantially the same, defendant was precluded from contending on appeal from second
trial that crime with which he was charged occurred in a county other than Washoe
and that, therefore, he could not be tried in Washoe.
trial that crime with which he was charged occurred in a county other than Washoe and that, therefore, he
could not be tried in Washoe.
11. Criminal Law.
Although trial court erred in requiring that defendant request sequestration in presence of jury, error was
not prejudicial, despite defendant's contention that jury was inconvenienced by sequestration and long
evening sessions, where jury was polled and all indicated that night sessions were satisfactory.
12. Criminal Law.
Defendant's contention that he was kept from testifying because he was afraid of being impeached by his
own confession would not be entertained, where confession was not in record on appeal and was not used
against defendant at trial.
13. Criminal Law.
Question of whether trial court properly excluded motel registration card which bore license number of
victim's camper, where matter of venue, upon which registration card bore, had been previously determined
on similar evidence in defendant's first appeal, was moot.
14. Criminal Law.
Remark made by district attorney in closing argument insinuating that defendant was claiming
self-defense was not error, despite fact that no evidence of self-defense was given.
15. Habeas Corpus.
As part of its grant of defendant's petition for habeas corpus, Supreme Court had jurisdiction to appoint
counsel to carry out terms of decree, and therefore, appointment of counsel for retrial was not error.
16. Homicide.
Instruction on self-defense in murder prosecution was not required, where there was no evidence or issue
created relating to self-defense.
17. Homicide.
Instructions on murder and felony murder conformed to statutes and were supported by evidence.
18. Criminal Law.
Instruction defining reasonable doubt in terms different from those given in preceding instructions was
not cumulative and erroneous.
OPINION
Joseph Miles Walker makes his third appearance before this court for the same offense,
the murder of Paul Allison in a camper pickup truck owned by Allison in which Walker was a
hitchhiking passenger. His conviction was affirmed in Walker v. State, 78 Nev. 463, 376 P.2d
137 (1962), but was later overturned in Walker v. Fogliani, 83 Nev. 154, 425 P.2d 794
{1967), on a remand from the United States Ninth Circuit Court of Appeals, United States
v. Fogliani, 343 F.2d 43 {9th Cir.
(1967), on a remand from the United States Ninth Circuit Court of Appeals, United States v.
Fogliani, 343 F.2d 43 (9th Cir. 1965), for grounds therein stated.
Walker was again tried in the Washoe District Court, found guilty and sentenced to death.
In the trial from which this appeal was taken he did not testify in his own defense. Numerous
grounds have been asserted, none of which have merit.
Allison was driving his camper through Elko when he picked up Walker. They purchased
food and gin in Carlin, a small community a few miles outside Elko, then proceeded to
Lovelock, in Pershing County, for gasoline, drove a few more miles outside Lovelock where
they parked for a time. They then returned to Lovelock for more liquor, again traveled a
further distance before they stopped a second time. They indulged in continuous drinking and
eventually engaged in a fight during which Allison was stabbed in the back. He was found
dead in the camper parked in a parking lot in Reno on September 24, 1960, a few days after
Allison and Walker first met in Elko. Allison's hands were tied over his chest and a soda
drink bottle was stuffed into his rectum. Walker was found several months later in the
Oklahoma State Prison where he was serving time for an unrelated offense. He was charged
with Allison's murder.
1. Exclusion of jurors.
[Headnote 1]
Appellant contends that prospective jurors who indicated mere distaste for the death
penalty were excluded from the jury. However, the prospective jurors who were discharged
stated that they would not return a death penalty under any circumstances. Therefore,
exclusion was proper under former NRS 175.105(9), Witherspoon v. Illinois, 391 U.S. 510
(1968), and Boulden v. Holman 394 U.S. 478 (1969). The trial court properly construed the
cited statute as interpreted by this court in Howard v. State, 84 Nev. 599, 446 P.2d 163
(1968); Spillers v. State, 84 Nev. 23, 436 P.2d 18 (1968); State v. Williams, 50 Nev. 271, 257
P. 619 (1927). See also State v. Leland, 227 P.2d 785 (Ore. 1951), aff'd, 343 U.S. 790 (1952),
rehearing denied, 344 U.S. 848 (1952); People v. Riser, 305 P.2d 1 (Cal. 1956); Turberville
v. United States, 303 P.2d 411 (D.C.Cir. 1962), cert. denied, 370 U.S. 946 (1962); People v.
Gilbert, 408 P.2d 365, 378 (Cal. 1965); State v. Leuch, 88 P.2d 440 (Wash. (1939).
2. Should Walker have been permitted to defend himself?
[Headnote 2]
Appellant contends that his trial counsel should not have been thrust upon him because he
desired to defend himself. He represented to the court that he had been reading law books for
several years and was prepared to proceed. He asked to dismiss his attorneys. The court
informed Walker that he could defend himself but that counsel would be required to remain at
his side and that if he proved incompetent counsel would be reappointed. Thereupon Walker
moved for time to prepare for trial. Understandably the motion was denied. Counsel were
reappointed and the trial proceeded. No authority need be cited to support the trial judge's
exercise of discretion.
3. Should the endorsement to the information of the names of additional witnesses for the
state have been permitted?
[Headnote 3]
The State moved to add the name of Frank Hart to the list of prospective witnesses. The
defense added one also. The defense objected to the State's endorsement of an additional
witness upon the representation from the State that it was previously unaware of the
materiality of Hart's proposed testimony and that the testimony would only be that Hart was
present when Walker's fingerprints were taken. The request was granted. Other names were
later added at the request of the district attorney for the stated reason that the evidence
adduced by Walker at the second trial did not come out at the first trial and therefore the
materiality of the testimony of the new witnesses was not foreseeable. No prejudice was
shown or appears from allowing the endorsements. There was no error. Gallegos v. State, 84
Nev. 608, 446 P.2d 656 (1968).
4. Were the photographs of the victim admissible?
[Headnote 4]
The court found that probative value outweighed prejudice, if any. The photographs were
admissible. Gallegos v. State, 84 Nev. 608, 446 P.2d 656 (1968); Jackson v. State, 84 Nev.
203, 438 P.2d 795 (1968); Wallace v. State, 84 Nev. 603, 447 P.2d 30 (1968); Guyette v.
State, 84 Nev. 160, 438 P.2d 244 (1968); Morford v. State, 80 Nev. 438, 395 P.2d 861
(1964).
5. Does the Fifth Amendment of the U.S. Constitution require an indictment in a capital
offense in a state prosecution?
[Headnote 5]
No. Morford v. Hocker, 394 F.2d 169 (9th Cir. 1968), cert. denied, 392 U.S. 944 (1968);
Hurtado v. California, 110 U.S. 516 (1884); McNulty v. California, 149 U.S. 645 (1893);
Black v. California, 315 U.S. 782 (1942) (appeal dismissed for lack of a substantial federal
question); Beck v. Washington, 369 U.S. 541 (1962); Gaines v. Washington, 277 U.S. 81
(1928); Lem Woon v. Oregon, 229 U.S. 586 (1913); Graham v. West Virginia, 224 U.S. 616
(1912); Bolln v. Nebraska, 176 U.S. 83 (1900); Hodgson v. Vermont, 168 U.S. 262 (1897).
6. Was it necessary to file a new information after the reversal of the conviction based on
the original information?
[Headnote 6]
No. In legal contemplation there never was a trial. Garnick v. District Court, 81 Nev. 531,
539, 407 P.2d 163, 167 (1965).
7. Did appellant have the constitutional right to county funds for general investigation
expenses?
[Headnote 7]
This issue was decided in State v. District Court, 85 Nev. 241, 453 P.2d 421 (1969).
Appellant did have an investigator for the first trial. The investigator was deceased but his
testimony at the first trial was read at the second trial. The motion for expenses at this trial
was denied because the need for the funds was not set forth with sufficient particularity. The
trial court was correct.
8. Should a change of venue have been granted to Walker?
a. Pretrial publicity.
[Headnote 8]
No. We have examined the record in the light of the guidelines offered by Sheppard v.
Maxwell, 384 U.S. 333 (1966). The newspaper clipping show nothing that was not a matter
of public record. The jury was impartial. Beck v. Washington, supra; Irvin v. Dowd, 366 U.S.
717 (1961); Stroble v. California, 343 U.S. 181 (1952). There was no showing of actual
prejudice. Beck v. Washington, supra; Irvin v. Dowd, supra; Stroble v. California, supra. Nor
is there a showing of a totality of circumstances that would raise a presumption of prejudice.
Rideau v. Louisiana, 373 U.S. 723 (1963); Estes v. Texas, 381 U.S. 532 (1965); Sheppard v.
Maxwell, supra; Corbett v. Patterson, 272 F.Supp. 602 (D. Colo. 1967).
b. Jurisdiction.
Walker complains that the crime he is charged with occurred in a county other than
Washoe and therefore he cannot be tried in Washoe. In Walker v. State, 78 Nev. 463, 472,
376 P.2d 137, 141 (1962), the venue was questioned and decided.
We conclude, therefore, that venue could properly be laid in Washoe County. . . .
There is no question concerning the jurisdiction of the Washoe County court.
[Headnotes 9, 10]
The law of a first appeal is the law of the case on all subsequent appeals in which the facts
are substantially the same. State v. Loveless, 62 Nev. 312, 150 P.2d 1015 (1944); Graves v.
State, 84 Nev. 262, 439 P.2d 476 (1968). The facts at the second trial were substantially the
same; therefore we find no merit in appellant's contention.
9. Was error committed by the request for jury sequestration?
Walker asserts error because he was forced to move for jury sequestration pursuant to NRS
175.320 (now NRS 175.391) in the presence of the jury and was thereby prejudiced.
[Headnote 11]
After the jury selection Walker moved to sequester, but his motion to sequester was denied
with leave to renew at a later time. Later he did move to sequester in the presence of the jury
and it was granted. Then, well into the trial, Walker in the absence of the jury indicated that
the jury was inconvenienced by the sequestration and the long evening sessions. He then
abandoned his objection to the night sessions and indicated he meant really to object only to
sequestration which he had originally requested. The jury was polled and all indicated that the
night sessions were satisfactory. Walker's complaint that he was forced to request
sequestration in the presence of the jury by the court is not exactly accurate but the trial court
indicated as much by stating that it was relying on Sollars v. State, 73 Nev. 248, 316 P.2d 917
(1957). The court erred in its interpretation of Sollars in requiring the motion to be made
before the jury, but since the polled jurors were satisfied nothing appears to inject prejudice
by the error.
10. Did the trial court commit error in failing to suppress a confession which was never
used?
[Headnote 12]
Walker complains that he was kept from testifying because he was afraid of being
impeached by his own confession. The previous decisions of this court relating to Walker,
already cited, specify the details of the confession. We fail to see the merit or rationale of an
objection which neither goes to a confession that is not in the record nor is used against him
at the trial. This assertion of error will not be entertained.
11. Assortment of errors alleged:
[Headnote 13]
a. The trial court excluded a registration card from a Fernley, Nevada, motel which bore
the license number of the victim's camper. This was relevant to venue because it showed that
the camper was in Fernley on September 19th. Since venue had been previously determined
on similar evidence in the first appeal this issue is moot.
[Headnote 14]
b. In the closing arguments Walker contends that the district attorney committed reversible
error by insinuating that Walker was claiming self-defense. The purported error lies in the
fact that no evidence of self-defense was given. We have examined the remarks and find no
error. We also note that it is difficult to divine how appellant can claim error in this regard
with one breath and in the next urge that error occurred because an instruction on self-defense
was not given.
[Headnote 15]
c. This supreme court appointed counsel for the retrial which Walker claims was error. We
performed that function as part of our grant of Walker's petition for habeas corpus and
therefore had jurisdiction to appoint counsel to carry out the terms of our decree. The
appointment was necessitated by a conflict of interest in Walker's representation prior to the
appointment.
[Headnotes 16-18]
d. Walker submits that his instruction on self-defense should have been submitted to the
jury, but Barger v. State, 81 Nev. 548, 407 P.2d 584 (1965), disposes of that question. There
was no evidence of self-defense, no issue was created, and thus no instruction was required.
Also on another point Graves v. State, S4 Nev. 262
Graves v. State, 84 Nev. 262, 439 P.2d 476 (1968), relied upon by appellant disposes of his
contention that an instruction on manslaughter was required. The instructions on murder and
felony murder conformed to the statutes and were supported by the evidence. Walker further
complains that Instruction 38 defining reasonable doubt in terms different from those in
Instructions 36 and 37 were cumulative and erroneous. The instruction was taken from State
v. Boyle, 49 Nev. 386, 248 P. 48 (1926), and approved in that case. We do not believe the
jury was confused by Instructions 36 through 38.
We have reviewed the record in its entirety. There was no error sufficient to warrant
reversal.
Affirmed.
____________
85 Nev. 345, 345 (1969) Brunzell v. Golden Gate Nat'l Bank
EVERETT S. M. BRUNZELL, Appellant, v. GOLDEN GATE NATIONAL BANK, a
National Banking Institution, Respondent.
No. 5716
May 28, 1969 455 P.2d 31
Appeal from judgment of Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Action by bank to recover on continuing guaranty for balance due on indebtedness. The
trial court entered a judgment in favor of the bank and the guarantor appealed. The Supreme
Court, Mowbray, J., held, inter alia, that letter of corporation which was nothing more than a
statement that individual who had signed a continuing guaranty to bank with respect to
corporation's loans from bank was no longer associated with corporation and that his interest
had been acquired by person who signed letter on behalf of corporation was not legally
sufficient to terminate individual's continuing guaranty to bank.
Affirmed.
Goldwater, Taber, Hill & Mortimer and Robert E. Rose and Michael Melner, of Reno, for
Appellant.
Bradley & Drendel, of Reno, for Respondent.
1. Guaranty.
Letter of corporation which was nothing more than a statement that individual who had signed a
continuing guaranty to bank with respect to corporation's loans from bank was no longer associated with
corporation and that his interest had been acquired by person who signed letter on behalf of corporation
was not legally sufficient to terminate individual's continuing guaranty to bank.
2. Guaranty.
Revocation of continuing guaranty must be executed by guarantor who seeks to effect its revocation;
otherwise it affects only person who gave notice.
3. Guaranty.
Notice of revocation of guaranty must be clear in its terms and positive.
4. Guaranty.
Where continuing guaranty provided that guarantor waived notices of nonperformance and of existence,
creation, or incurring new or additional indebtedness, the cancellation of two $20,000 notes of borrower in
exchange for a new $40,000 note did not relieve individual from liability as guarantor on the new $40,000
note.
Factors to be considered in determining reasonable value of attorney's services are the qualities of the
service, character of work to be done, work actually performed by attorney and the result.
Supreme Court will not substitute its opinion for that of trial court on reasonableness of attorney's fee
unless as a matter of law there has been an abuse of discretion.
Value to be placed on services rendered by counsel lies in exercise of sound discretion by trier of facts.
8. Guaranty.
There was no abuse of discretion in fixing $5,000 as a reasonable attorney's fee to be paid by guarantor
who was sued on continuing guaranty to collect the more than $39,000 balance due on the guaranteed
indebtedness.
OPINION
Appellant Everett S. M. Brunzell signed on January 14, 1964, a Continuing Guaranty
with Respondent Golden Gate National Bank (Bank), agreeing to pay any and all
indebtedness, not to exceed $50,000, of First Capital Corporation (Capital). The agreement
provided that the guaranty shall not apply to any indebtedness created after actual receipt by
Bank of written notice of its revocation as to future transactions."
Bank of written notice of its revocation as to future transactions. Appellant claims that such
a written notice of revocation was given to Bank in letter form dated October 15, 1965,
1
but
that thereafter, on April 1, 1966, Capital executed a note for $40,000 payable to Bank in
exchange for Bank's canceling two $20,000 notes which were due in August 1965 (prior to
the time that Bank received Capital's letter of October 15, 1965). The only payment received
on the $40,000 note of April 1, 1966, was $700. Bank sued Brunzell as a guarantor for the
balance of $39,300 plus interest, costs, and attorneys' fees. After both sides presented their
evidence before the jury, respondent moved for a directed verdict pursuant to the provisions
of NRCP 50(a). The trial judge granted the motion and ordered that Bank have judgment
against Brunzell for $39,300 plus interest, costs, and attorneys' fees in the sum of $5,000.
____________________

1
FIRST CAPITAL CORPORATION
First Capital Building
130 Bush Street
San Francisco, California 94104
981-8730 Area 415
Cable: FIRSTCAPCO
October 15, 1965
This letter is to formally announce the disassociation of Brunzell, Jackson and Prichard in the following
companies, ventures and properties:
First Capital Corporation
Jack London Inn, Inc.
Miller Place Associates
Riverside Associates, Inc.
Del Mar Properties
Van Ness Associates, Inc.
First Capital Investment Corporation
Capital Oil Company
The undersigned Frank J. Jackson, Jr. became the controlling owner as of October 11, 1965, by the acquisition
of the interests of Gaylord E. Prichard and Everett S. M. Brunzell, and assumption of all liabilities.
As Messrs. Bruszell and Prichard are no longer associated in any way with these entities, any questions you may
have concerning them should be addressed to
Frank J. Jackson, Jr.
% First Capital Corporation
130 Bush Street
San Francisco, California 94104
Very truly yours,
FIRST CAPITAL CORPORATION
[illegible signature]
Frank J. Jackson, Jr.
FJJ: dw
$39,300 plus interest, costs, and attorneys' fees in the sum of $5,000.
Appellant has asserted two assignments of error: first, that as a matter of law his
continuing guaranty to pay the indebtedness of Capital terminated when Bank received the
letter of October 15, 1965, and that therefore he is not liable on the $40,000 note executed by
Capital on April 1, 1966; and second, that the district court abused its discretion in awarding
Bank $5,000 in attorneys' fees. We find both assignments without merit, and we affirm the
judgment of the district court.
[Headnotes 1-3]
1. The letter of Capital dated October 15, 1965, was not legally sufficient to terminate
Brunzell's continuing guaranty to Bank. It is nothing more than a statement that Brunzell was
no longer associated with Capital and that his interest had been acquired by Frank J. Jackson,
Jr., who signed the letter on behalf of Capital. A revocation of a continuing guaranty must be
executed by the guarantor who seeks to effect its revocation. Otherwise it affects only the
person who gave the notice. D. N. & E. Walter & Co. v. Van Domelen, 425 P.2d 166 (Ore.
1967). Further, a notice of revocation must be clear in its terms, and positive. Haynie v. First
Nat'l Bank, 162 S.E.2d 27 (Ga.App. 1968). In Haynie, the court said, at 30: In accord with
this principle it was held that a notice to the creditor that an individual guarantor had severed
his connections with the corporation whose obligations were the subject matter of the
guaranty did not serve as a notice of revocation of his guaranty, since the guaranty was not
conditioned upon his status as an officer or stockholder of the corporation. Manufacturers'
Finance Co. v. Rockwell, 278 Mass. 502, 180 N.E. 224.
. . .
There was no written notice from Haynie to the bank of his termination or revocation of
the guaranty; only a notice from the corporation that he had terminated his connection with it
and that his authority to sign for the corporation had terminated. Thus, he could no longer
sign checks drawn on its account, nor could he sign notes as a corporate officer to find [sic]
the corporation, but nothing terminated his right to sign for himself as guarantor of the
corporate obligations, his status as a guarantor or his continuing liability under the contract.
(Emphasis by court.)
[Headnote 4]
Finally, Brunzell urges that when Bank canceled the two $20,000 notes in exchange for the
one $40,000 note, he was relieved of liability as guarantor because he was not given notice of
the cancellation and of the issuance of the new notice. We find this contention equally
meritless. The Continuing Guaranty which Brunzell signed provides: Guarantors waive all
presentments, demands for performance, notices of nonperformance, protests, notices of
protest, notices of dishonor, and notices of acceptance of this guaranty and of the existence,
creation, or incurring of new or additional indebtedness.
[Headnote 5]
2. We turn to consider appellant's other assignment of errorthat the district judge
abused his discretion in allowing respondent counsel fees in the sum of $5,000. Counsel for
the respondent took the witness stand and testified regarding the nature and extent of the
services he performed. During cross-examination, respondent's counsel admitted that he had
not kept an hourly schedule of time expended. Appellant urges that in the absence of such a
schedule the trial judge was unable to justify the $5,000 award for counsel fees made to
respondent in the case. We do not agree. While hourly time schedules are helpful in
establishing the value of counsel services, other factors may be equally significant. As the
Arizona court said in Schwartz v. Schwerin, 336 P.2d 144, 146 (Ariz. 1959):
Before discussing the separate counts, it seems advisable that we state the well-known
basic elements to be considered in determining the reasonable value of an attorney's services.
From a study of the authorities it would appear such factors may be classified under four
general headings (1) the qualities of the advocate: his ability, his training, education,
experience, professional standing and skill; (2) the character of the work to be done: its
difficulty, its intricacy, its importance, time and skill required, the responsibility imposed and
the prominence and character of the parties where they affect the importance of the litigation;
(3) the work actually performed by the lawyer: the skill, time and attention given to the work;
(4) the result: whether the attorney was successful and what benefits were derived. See, 7
C.J.S. Attorney and Client, 191 a. (2), p. 1080 et seq.; 5 Am.Jur., Attorneys at Law, section
198. Cf. Ives v. Lessing, 19 Ariz. 208, 168 P. 506. Furthermore, good judgment would dictate
that each of these factors be given consideration by the trier of fact and that no one
element should predominate or be given undue weight."
given consideration by the trier of fact and that no one element should predominate or be
given undue weight. (Emphasis by court.)
[Headnotes 6-8]
We will not substitute our opinion for that of the trial court unless as a matter of law there
has been an abuse of discretion. The value to be placed on the services rendered by counsel
lies in the exercise of sound discretion by the trier of the facts. DeSylva v. Ballentine, 215
P.2d 780 (Cal.App. 1950). As this court said in Sarman v. Goldwater, Taber & Hill, 80 Nev.
536, 542, 396 P.2d 847, 850 (1964), in sustaining a fee allowance of $65,790: Their
[counsel's] legal responsibility is shown to have been competently discharged, and their work
skillfully performed. The lower court did not abuse its discretion in its determination of the
reasonable value of their services.
The judgment is affirmed.
____________
85 Nev. 350, 350 (1969) American Sav. v. Stanton-Cudahy
AMERICAN SAVINGS AND LOAN ASSOCIATION, a Corporation, Appellant, v.
STANTON-CUDAHY LUMBER COMPANY, a Partnership, Respondent.
No. 5717
May 28, 1969 455 P.2d 39
Appeal from judgment of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Suit to recover an amount alleged to be due under an informal agreement. The lower court
entered judgment for plaintiff, and defendant appealed. The Supreme Court, Thompson, J.,
held that fact that plaintiff, which was supplying lumber to subcontractor on construction
project, insisted on payment for lumber directly from defendant, which was financing project,
pursuant to defendant's letter stating that for each draft presented to defendant by
subcontractor for payment of invoices from plaintiff, defendant would issue two
checksone-half of total amount of request to subcontractor and one-half to plaintiffmust
have caused defendant to foresee that its letter promise for payment would be relied upon, so
that, under doctrine of promissory estoppel, an enforceable informal contract resulted, and
defendant was liable to plaintiff for shortages in payments which were discovered after
job was completed.
enforceable informal contract resulted, and defendant was liable to plaintiff for shortages in
payments which were discovered after job was completed.
Affirmed.
Goldwater, Taber, Hill & Mortimer and Robert E. Rose, of Reno, for Appellant.
Cooke & Roberts, of Reno, for Respondent.
1. Estoppel.
Where traditional consideration is lacking, reliance which is foreseeable, reasonable, and serious will,
under doctrine of promissory estoppel, require enforcement if injustice cannot otherwise be avoided.
2. Estoppel.
Fact that plaintiff, which was supplying lumber to subcontractor on construction project, insisted on
payment for lumber directly from defendant, which was financing project, pursuant to defendant's letter
stating that for each draft presented to defendant by subcontractor for payment of invoices from plaintiff,
defendant would issue two checksone-half of total amount of request to subcontractor and one-half to
plaintiffmust have caused defendant to foresee that its letter promise for payment would be relied upon,
so that, under doctrine of promissory estoppel, an enforceable informal contract resulted.
3. Estoppel.
Plaintiff, which had supplied lumber to subcontractor on construction project, did not waive its right to
rely on letter sent by defendant, which was financing project, stating that for each draft presented to it by
subcontractor for payment of lumber from plaintiff, it would issue two checksone-half of total amount of
request to subcontractor and one-half to plaintiffeven though plaintiff accepted payments sent by
defendant without objection, where voucher statements showing breakdown in payments were not sent to
plaintiff, and, thus plaintiff did not know that disbursements were not in accordance with letter.
4. Partnership.
Partnership seeking to recover under an alleged informal contract was not out of court for failing to file a
fictitious name certificate with county clerk, where partnership was not doing business in state. NRS
602.010, 602.070.
OPINION
Stanton-Cudahy brought suit against American Savings and Loan to recover $17,057.05
alleged to be due under the terms of an informal contract between them.
of an informal contract between them. The district court ruled for Stanton-Cudahy and this
appeal by American Savings followed. We affirm.
The informal contract concerns an arrangement for the disbursal of funds by American
Savings on a construction project at Carson City built by the Sasha Maloff Corporation.
American Savings financed that project. Tahoe Wood Products was one of the subcontractors
employed to do the rough framing construction work. The major supplier of lumber to Tahoe
Wood was Northwest Plywood of Portland, Oregon, who in turn acquired the lumber from
the partnership of Stanton-Cudahy, wholesale lumber brokers. The offices of Stanton-Cudahy
were in Portland and the lumber was purchased from mills in Oregon and transported to
Tahoe Wood in Carson City by trucks of Northwest Plywood.
Stanton-Cudahy had previously done business with Tahoe Wood and Northwest Plywood
and had not been fully paid therefor. Those two companies owed Stanton-Cudahy some
$17,000 and, when they contacted Stanton-Cudahy to secure lumber for the Carson City job,
they were advised that lumber would be furnished only if an arrangement was made to cure
their delinquent account. After several discussions, Stanton-Cudahy agreed to furnish lumber
on condition that it be paid one-half of the total amount to be paid the subcontractor Tahoe
Wood; that is, one-half of Tahoe Wood's total payment including labor as well as materials. If
paid on that basis the delinquency would almost be satisfied since it was expected that Tahoe
Wood would receive about $90,000 and the lumber to be used would cost approximately
$30,000. Thus, if Stanton-Cudahy was paid one-half of the total sum paid to Tahoe Wood,
that is, about $45,000, the back debt owing Stanton-Cudahy would nearly be satisfied.
It is not certain that this understanding between Stanton-Cudahy and the subcontractor
Tahoe Wood was made known to American Savings who assumed the responsibility for
disbursing funds in payment for labor and material supplied to the job site. American Savings
denies such knowledge, and the requests for progress payments submitted by Tahoe Wood do
not reveal the understanding between Tahoe Wood and Stanton-Cudahy. On the other hand, a
letter written by American Savings to Stanton-Cudahy strongly suggests that American
Savings did know of that understanding. The letter was written one day after the
understanding between Tahoe Wood and Stanton-Cudahy was reached and stated: This will
confirm the request of Tahoe Wood Products, Inc., that for each draft presented to us for
payment of invoices from Tahoe Wood Products, Inc., approved for payment by Sasha
Maloff for work performed on property at Carson City, Nevada, we will issue two
checksone-half of total amount of request for payment will be made to Tahoe Wood
Products, Inc.;
draft presented to us for payment of invoices from Tahoe Wood Products, Inc., approved for
payment by Sasha Maloff for work performed on property at Carson City, Nevada, we will
issue two checksone-half of total amount of request for payment will be made to Tahoe
Wood Products, Inc.; and one-half to your firm. One-half of the total amount of request for
payment included labor as well as materials and conformed to the understanding reached
between Tahoe Wood and Stanton-Cudahy. The trial court resolved this evidentiary conflict
in favor of Stanton-Cudahy and concluded that American Savings knew of the arrangement
between Tahoe Wood and Stanton-Cudahy. Indeed, the trial court was compelled to so
conclude since American Savings was estopped from denying its letter promise to
Stanton-Cudahy. NRS 52.060 provides: The following presumptions, and no others, are
deemed conclusive: . . . 3. Whenever a party has, by his own declaration, act or omission,
intentionally and deliberately led another to believe a particular thing true and to act upon
such belief, he cannot, in any litigation arising out of such declaration, act or omission, be
permitted to falsify it. Quijada v. Southern Pipe & Casing Company, 78 Nev. 271, 280, 371
P.2d 661 (1962); Graddon v. Knight, 292 P.2d 632 (Cal. App. 1956).
The first shipment of lumber by Stanton-Cudahy was made five days after receipt of the
American Savings letter. Fourteen more shipments were made thereafter. The invoice
requests of Tahoe Wood to America Savings were in the total amount of $85,849.08. Of this
amount $51,725.15 was for materials and $34,123.93 was for labor. In disbursing the loan
funds in payment of these requests, American Savings paid Stanton-Cudahy one-half of the
amount of the material requests only, and paid the total labor requests plus the other one-half
of the material requests to Tahoe Wood. Accordingly, Stanton-Cudahy received only
$25,867.47 (one-half of $51,725.15) instead of $42,924.54 (one-half of $85,849.08).
1
The
disbursements by American Savings were in accordance with the requests of Tahoe Wood,
but did not comply with the letter which American Savings had mailed to Stanton-Cudahy.
The latter did not learn of the shortage in payment until after the job was completed. Tahoe
Wood became bankrupt and this action against American Savings ensued.
____________________

1
$25,867.47 is not exactly one-half of $51,725.15. There is a $9.79 error. These figures were supplied by
counsel without dispute, and we consider the error de minimis.
1. The principal claim of error is that an enforceable contract did not exist between
American Savings and Stanton-Cudahy since there was no bargained for consideration given
by Stanton-Cudahy in exchange for the promise of American Savings to pay one-half of the
total requests for payment submitted by Tahoe Wood. It is true that, according to the
traditional concept of consideration, action in reliance upon a promise is sufficient reason for
its enforcement only when the action is bargained for by the promisor and given in return by
the promisee. Rest. Contracts 75, comment b. In the case at hand, it is fair to state that
American Savings did not bargain for the performance of Stanton-Cudahy. It was immaterial
to American Savings who supplied lumber to the subcontractor Tahoe Wood and, in this
sense, a formal contract between the present adversaries was not made.
[Headnote 1]
This contention, however, fails to recognize the doctrine of promissory estoppel which
provides that in a case where traditional consideration is lacking, reliance which is
foreseeable, reasonable, and serious will require enforcement if injustice cannot otherwise be
avoided.
2
The letter promise of American Savings to Stanton-Cudahy fails within the scope
of this doctrine.
[Headnote 2]
That promise was clear:. . . we will issue two checksone-half of the total amount of the
request for payment will be made to Tahoe Wood Products, Inc.; and one-half to your firm.
Stanton-Cudahy relied upon that promise and continued to do so until the job was completed.
That reliance must be deemed both reasonable and foreseeable. A special arrangement for
payment to Stanton-Cudahy was made. That supplier demanded security and was not willing
to rely upon Tahoe Wood for payment. Past experience with that company had caused
Stanton-Cudahy to be wary. The single fact that Stanton-Cudahy insisted upon payment
directly from American Savings must have caused the latter to foresee that its letter promise
for payment would be relied upon.
____________________

2
Rest. Contracts 90 (1932) reads:
A promise which the promisor should reasonably expect to induce action or forbearance of a definite and
substantial character on the part of the promisee and which does induce such action or forbearance is binding if
injustice can be avoided only by enforcement of the promise.
For an excellent article upon the subject see: Henderson, Promissory Estoppel and Traditional Contract
Doctrine 78 Yale L.J. 343 (1969).
letter promise for payment would be relied upon. It was. An enforceable informal contract
resulted. Day v. Mortgage Insurance Corporation, 428 P.2d 524 (Idaho 1967); Graddon v.
Knight, 292 P.2d 632 (Cal.App. 1956); Owen v. Sumrall, 36 So.2d 800 (Miss. 1948).
[Headnote 3]
2. A subordinate contention is that of waiver. America Savings urges that if an informal
contract was made, Stanton-Cudahy waived its right to rely upon it since it accepted the
payments sent by American Savings without objection. This contention is refuted by the
record. Voucher statements showing the breakdown in payment were not sent to
Stanton-Cudahy; only checks were sent. Thus, the supplier did not know that the
disbursements were not in accordance with the letter promise. Waiver cannot exist in the
absence of knowledge.
[Headnote 4]
3. Finally, it is suggested that Stanton-Cudahy is out of court for failing to file a fictitious
name certificate with any county clerk in Nevada. NRS 602.010, 602.070. The district court
found that Stanton-Cudahy was not doing business in Nevada. Substantial evidence
supports that finding. The mentioned statute, therefore, does not apply.
Affirmed.
____________
85 Nev. 355, 355 (1969) Kahle v. Kostiner
OLIVER M. KAHLE and BEN JAFFE, as Trustees for TAHOE VILLAGE PROPERTIES,
INC., a Dissolved Nevada Corporation, Appellants, v. FRED KOSTINER, Doing Business as
FREDDY KAYE REAL ESTATE, Respondent.
No. 5719
May 28, 1969 455 P.2d 42
Appeal from a judgment awarding a broker's commission. First Judicial District Court,
Douglas County; Frank B. Gregory, Judge.
The trial court found for broker and vendor appealed. The Supreme Court, Zenoff, J., held
that where purchasers' failure to exercise option was excused by reason of vendor's refusal to
make improvements which purchaser claimed vendor was required to make, broker was
entitled to his commission from vendor.
refusal to make improvements which purchaser claimed vendor was required to make, broker
was entitled to his commission from vendor.
Affirmed.
Breen and Young, and David R. Hoy, of Reno, for Appellants.
Echeverria & Osborne, of Reno, for Respondent.
1. Contracts.
Anticipatory repudiation applies when substantial portion of contract is repudiated.
2. Vendor and Purchaser.
Where improvements which were to be made by vendor cost several hundred thousand dollars and
contract purchase price was $700,000, refusal of vendor to make improvements constituted a repudiation of
a substantial portion of contract.
Where there was anticipatory repudiation of contract by vendor, purchaser's failure to tender performance
was excused.
Where vendors had repudiated contract by refusal to make improvements, purchaser's tender of $50,000
rather than $200,000 as required for exercise of option was irrelevant.
5. Brokers.
Vendor may not use his own repudiation of contract to deprive broker of commission.
6. Brokers.
Where purchasers' failure to exercise option was excused by reason of vendor's refusal to make
improvements which purchaser claimed vendor was required to make, broker was entitled to his
commission from vendor.
OPINION
Kostiner, doing business as Freddy Kaye, appears as the intervening real estate broker who
represented Tahoe Village Properties, Inc., sellers of certain Lake Tahoe property to R. D.
Keillor, the purchaser. The issue is whether or not his real estate commission should be paid.
The jury in the trial court below granted a verdict for his commission and the seller appeals
from the consequent judgment on the verdict.
On January 3, 1963 the buyer and seller executed an agreement naming Nevada Title
Guaranty Company as escrow agent for the purchase of four acres of property together
with an option for the purchase of 11 more acres.
for the purchase of four acres of property together with an option for the purchase of 11 more
acres. The purchase price per square foot was agreed upon. The buyer wished to exercise the
option on the 11 acres in December of 1963. The seller then refused to provide ultimate
means of sewage disposal and to pave the streets and install curbs and gutters. The main
disputes in the litigation that developed centers around the requirement by government
authorities that sewage disposal provisions be provided at the property and the refusal by the
seller to pave the streets and provide curbs and gutters. The buyer contended that the
transaction included such facilities while the seller denied such responsibility. Seller
expressed the denial in writing by a letter dated December 31, 1963 stating that the seller was
not obligated to furnish ultimate means for disposal of sewage or other waste outside of the
property line or to pave the streets.
Under the terms of the option agreement that was part of the original contract for the
purchase of the four acres the buyer deposited $50,000 for the option to buy the additional 11
acres. The option could be renewed for another year for another $50,000. The second $50,000
was deposited just before the expiration date but in a depositary other than an escrow
company named in the other agreement and it contained the condition that the seller provide
the sewage disposal and paved streets as it was contended the parties had agreed upon. The
seller contends that the condition being baseless destroyed the option and refused not only to
honor it but to return the first $50,000. Buyer sued to recover the first $50,000 claiming the
seller breached the contract. Broker intervened for his real estate commission to which the
seller denied responsibility.
The jury resolved the factual dispute concerning the sewage and street paving in favor of
the buyer returning a verdict to the buyer for $50,000 and to the broker for $71,292.03 which
was the full amount of his commission had the purchase been consummated. The jury by
special interrogatory found that the seller had agreed to pave the streets and provide the
desired sewage system and found that the seller had refused to acknowledge this obligation in
his letter of December 31, 1963.
On appeal seller contends that his letter of December 31st was not an anticipatory
repudiation to the whole agreement because it was not definite and unequivocal, and that the
trial court erred in instructing the jury that the doctrine of anticipatory repudiation applies
when only a substantial part, rather than all of a contract is repudiated. He also alleges that he
should not be held to pay a commission from a fund that was never in existence.
should not be held to pay a commission from a fund that was never in existence.
1. Seller argues that the jury should have been instructed that an anticipatory repudiation
must be to the whole contract and the seller's refusal to pave the streets was only a partial
breach. The instruction given provided: You are instructed that to find an anticipatory
repudiation of a contract the party so charged must have demonstrated a definite unequivocal
and absolute intent not to perform a substantial portion of the contract. To justify the adverse
party in treating the repudiation as an anticipatory breach the refusal to perform must be an
unqualified repudiation of a substantial portion of the contract.
[Headnotes 1-4]
The instruction was proper. We affirm the doctrine that anticipatory repudiation applies
when a substantial portion of the contract is repudiated. Cladianos v. Friedhoff, 69 Nev. 41,
240 P.2d 208 (1952), approved in Evans v. Dorman, 81 Nev. 319, 402 P.2d 652 (1965) (on
analogous facts see Evans v. Dorman, supra, at 323); 4 A. Corbin, Contracts 972 (1951).
See also Humphrey v. Sagouspe, 50 Nev. 157, 254 P. 1074 (1927). Since the improvements
which were to be made by the seller cost several hundred thousand dollars in comparison
with the $700,000 contract purchase price, we cannot say as a matter of law that there was not
a repudiation of a substantial part of the contract. Therefore the verdict of the jury that there
was a repudiation of a substantial portion of the contract was supported by the evidence.
Because there was an anticipatory repudiation, the buyer's failure to tender performance is
excused. Finnell v. Bromberg, 79 Nev. 211, 228, 381 P.2d 221 (1963) (Thompson, J.,
concurring); Country Club Oil Co. v. Lee, 58 N.W.2d 247 (Minn. 1953); 4 A. Corbin,
Contracts 977 at 923 (1951). The jury was told by the buyer that a $50,000 deposit by the
buyer when he requested performance was an attempt to purchase. Clearly an escrow deposit
of over $200,000 was required for exercise and that was not tendered. But since buyer need
not have done anything, his faulty tender is irrelevant.
[Headnotes 5, 6]
2. The fund from which the commission was to be paid never came into existence because
of the repudiation by the seller. He cannot now use his own conduct which prevented its
creation to his advantage. Evans v. Dorman, 81 Nev. 319, 402 P.2d 652 {1965); Humphrey
v. Knobel, 7S Nev. 137, 369 P.2d S72 {1962); Bartsas Realty Inc. v.
P.2d 652 (1965); Humphrey v. Knobel, 78 Nev. 137, 369 P.2d 872 (1962); Bartsas Realty
Inc. v. Nash, 81 Nev. 325, 402 P.2d 650 (1965). In this case, further, the agreement requires
only the buyer's deposit, i.e., exercise of the option. The seller did not have to perform before
the commission came due. Since the failure to exercise the option is excused, the commission
came due upon the seller's repudiation.
Affirmed.
____________
85 Nev. 359, 359 (1969) Boswell v. Insurance Co. of N. Am.
E. A. BOSWELL and MARY BOSWELL, Husband and Wife, Appellants, v. INSURANCE
COMPANY OF NORTH AMERICA, a Pennsylvania Corporation, Respondent.
No. 5412
June 6, 1969 455 P.2d 174
Appeal from judgment for defendant. Eighth Judicial District Court, Clark County;
Clarence Sundean, Judge.
Action on contractor's surety bond. The lower court entered judgment for surety and
plaintiffs appealed. The Supreme Court, Thompson, J., held that provision in contractor's
surety bonds written as a precondition to licensing of contractor to the effect that liability of
surety was confined to unlawful acts, omissions, or defaults could not be construed to
impose liability for negligent or faulty performance of contractor, and such bond could not be
deemed to cover faulty workmanship.
Affirmed.
Galane & Wines, of Las Vegas, for Appellants.
Principal and Surety.
Provision in contractor's surety bond written as a precondition to licensing of contractor to the effect that
liability of surety was confined to unlawful acts, omissions, or defaults could not be construed to
impose liability for negligent or faulty performance of contractor, and such bond
could not be deemed to cover faulty workmanship.
be construed to impose liability for negligent or faulty performance of contractor, and such bond could not
be deemed to cover faulty workmanship. NRS 624.010 et seq.
OPINION
The issue is whether a $1,000 contractor's surety bond, written pursuant to NRS Chapter
624 as a precondition to licensing a contractor, covers faulty workmanship. The contractor,
Metalume, Inc., installed an aluminum roof for the Boswells, which soon began to leak. The
Boswells ordered and paid for repairs, and then filed this suit on the surety bond written by
Insurance Company of North America, as surety, for Metalume, Inc., principal, to recover the
cost of repairs and incidental expenses. The district court ruled that the surety was not liable
on its bond for faulty workmanship of the contractor, and entered judgment accordingly. We
affirm.
When the bond was written the liability provision of the statute read: Every person
injured by the unlawful acts or omissions of a contractor who has filed a bond . . . may bring
an action in a proper court on the bond . . . for the amount of the damage he suffered as a
result thereof to the extent covered by the bond. . . . NRS 624.270.
1
The bond provided:
The liability of the surety herein shall be confined to unlawful acts, omissions, or defaults of
the Principal occurring subsequent to the date hereof, and prior to the expiration of One Year
from said date; provided, however, that the Surety shall in no event be liable for labor and
material bills incurred by the Principal prior to the date hereof.
The meaning of the bond provision respecting labor and material bills incurred by the
principal was the subject of our opinion in Royal Indemnity Co. v. Special Service, 82 Nev.
148, 413 P.2d 500 (1966). We there held that a bond given pursuant to the contractor's
licensing statute could have a broader scope than contemplated by the statute, and that by
expressly disclaiming prior bills for labor and materials, the surety impliedly assumed
liability for subsequent ones.
Although the claimant here relies upon Royal Indemnity to authorize recovery on the
bond, we find nothing in that decision which possesses relevance to the issue at hand.
____________________

1
The quoted provision is found in 1953-59 Stat. Nev. 869. NRS 624.270 has since been twice amended. See
1963 Stat. Nev. 695, 1965 Stat. Nev. 350, to increase the bond limits from $1,000 to $5,000 (1963) and then to
$20,000 (1965), and to expand coverage beyond unlawful acts or omissions of a contractor (1965 Stat. Nev.
351).
authorize recovery on the bond, we find nothing in that decision which possesses relevance to
the issue at hand. This case does not concern the surety's liability for labor and material bills
supplied to the contractor. Instead, it involves faulty performance by the contractor resulting
in damage to the claimant. Neither the bond nor the statute pursuant to which it was written
expressly covers this eventuality, unless the words unlawful acts or omissions may be
construed to impose liability for this circumstance.
It is our opinion that the negligent or faulty performance of the contractor does not
constitute either an unlawful act or an unlawful omission within the intendment of the
licensing statute or the bond written under it. The statutory language has reference to acts or
omissions of the contractor which are declared to be unlawful by ch. 624. Day & Night
Manufacturing Co. v. Fidelity & Casualty Co., 85 Nev. 227, 452 P.2d 906 (1969).
As we see it, there is nothing in the contractor's licensing statute under which this bond
was written designed to guaranty the quality of work performed or materials supplied, nor
does the bond itself carry such guaranty. For the reasons expressed we affirm the judgment
below.
Collins C. J., Zenoff, Batjer, and Mowbray, JJ., concur.
____________
85 Nev. 361, 361 (1969) Roger v. State
JERRY ROGERS and KARLA ROGERS, Individually and on Behalf of Their Deceased
Minor Daughter, JAYLENE ROGERS; EDWARD KNOWLES; and CONNIE C.
KNOWLES, Appellants, v. STATE OF NEVADA, Respondent.
No. 5722
June 6, 1969 455 P.2d 172
Appeal from order granting motion to dismiss. Second Judicial District Court, Washoe
County; Grant L. Bowen, Judge.
Action against state based upon death and personal injury claims arising out of single
automobile accident. The lower court dismissed the case, and the plaintiffs appealed. The
Supreme Court, Thompson, J., held that presentation of death and personal injury claims
against state arising out of automobile accident to a member of board of examiners rather
than to ex officio clerk of the board was substantial compliance with statute.
85 Nev. 361, 362 (1969) Roger v. State
than to ex officio clerk of the board was substantial compliance with statute.
Reversed and remanded for further proceedings.
[Rehearing denied July 8, 1969]
Echeverria and Osborne, of Reno, for Appellants.
Harvey Dickerson, Attorney General, and Fred R. Rodgers, Deputy Attorney General,
1. States.
Substantial compliance with statute requiring filing of claim as a predicate to commencement of suit
against state is sufficient. NRS 41.036, subd. 2.
2. States.
Presentation of death and personal injury claims against state arising out of automobile accident to a
member of board of examiners rather than to ex officio clerk of the board was substantial compliance with
statute. NRS 41.036, subd. 2.
3. Time.
The computation of any time period within which an act is to be done excludes the first day of the period
and includes the last. NRCP 6(a).
4. Time.
Where presentation of death and personal injury claims against state arising out of automobile accident
was on same day of month six months after accrual of causes of action, claims were timely filed, as against
contention of state that claims should have been filed before expiration of the day preceding the same date,
six months removed. NRS 41.036, subd. 2; NRCP 6(a).
5. States.
Fact that personal injury claims against state arising out of automobile accident were not presented by
injured persons themselves but by another acting on their behalf did not require rejection of claims, in
absence of showing that person filing claims was not authorized to so act. NRS 41.031, 41.036.
6. Pleading.
Where action against state was prematurely filed since board of examiners had not acted upon death and
personal injury claims arising out of automobile accidents which formed basis of the action, nor had 90
days elapsed from receipt thereof, but thereafter board did act by rejecting claims and plaintiffs amended
their complaint to so reflect, new matter should have been introduced by supplemental pleading since it did
not exist when suit was started, but court would treat amended complaint as supplemental claim because
statute of limitations was about to run. NRS 41.036(2); NRCP 15(d).
OPINION
The district court granted a motion to dismiss this case against the state for failure of the
plaintiffs to timely file claims with the ex officio clerk of the State Board of Examiners.
85 Nev. 361, 363 (1969) Roger v. State
with the ex officio clerk of the State Board of Examiners. Statute requires the presentation of
claims to such clerk within six months from the time the cause of action accrues.
1
Here, the
claims were presented to a member of the board of examiners rather than to the ex officio
clerk. Presentation to such member was on the same day of the month six months after
accrual of the causes of action. The main appellate issues concern the computation of time
and the effectiveness of presenting claims to a member of the board rather than to its clerk.
We rule that the claims were timely filed and in substantial compliance with statutory
requirements.
A single car accident occurred on U.S. Highway 40 in which Jerry and Karla Rogers,
Edward and Connie Knowles were injured, and Jaylene Rogers, the minor daughter of Jerry
and Karla, was killed. The claimants charge the State of Nevada with negligence in the
maintenance of that highway. The accident happened on September 8, 1967. Claims were
presented to the Secretary of State on March 8, 1968, who in turn transmitted them to the ex
officio clerk of the board of examiners on March 12, 1968. That board is composed of the
Governor, the Secretary of State, and the Attorney General.
This action was commenced May 16, 1968. Since the board had not acted upon the claims,
the complaint did not allege compliance with the claim statute. On June 4, 1968 the board
reviewed and denied the claims. On August 2, 1968 an amended complaint was filed alleging
the presentation and denial of the claims.
[Headnotes 1, 2]
1. Substantial compliance with statutory requirements is sufficient. Hansen-Neiderhauser
v. Nevada Tax Commission, 81 Nev. 307, 311, 402 P.2d 480 (1965); City of Reno v. Fields,
69 Nev. 300, 250 P.2d 140 (1952). Presentation of the claims to a member of the board of
examiners is substantial compliance. Indeed, only the board can approve or deny the claims.
The ex officio clerk is not involved in that decision. (See, e.g., Rice v. Clark County, 79 Nev.
253, 382 P.2d 605 (1963), where failure to serve one of two named recipients was held
inconsequential, where one not served had no decisional authority.) To hold that such claims
must be presented to the clerk, and that presentation to a member of the board is ineffective,
would exalt form over substance. This, we decline to do, and rule that the claims were
presented on March S, 196S when served upon the Secretary of State.
____________________

1
NRS 41.036(2) reads: Every other claim against the state or any of its agencies shall be presented to the ex
officio clerk of the state board of examiners within 6 months from the time the cause of action accrues.
85 Nev. 361, 364 (1969) Roger v. State
we decline to do, and rule that the claims were presented on March 8, 1968 when served upon
the Secretary of State.
[Headnotes 3, 4]
2. The state insists that the phrase within 6 months used in NRS 41.036(2) should be
construed to require filing before the expiration of the day preceding the same date, six
months removed. Such a construction would require the instant claims to have been filed on
or before March 7, 1968, and the filing with the Secretary of State on March 8 would be one
day late. The claimants argue that the computation of any time period within which an act is
to be done excludes the first day of the period and includes the last.
The proper method of computing time is as the claimants suggest and has been the rule of
Nevada for many years. NCL 9029, since replaced by NRCP 6(a); McCulloch v. Bianchini,
53 Nev. 101, 292 P. 617 (1930); Watson v. Koontz, 74 Nev. 254, 328 P.2d 173 (1958).
NRCP 6(a) controls this case. It provides: In computing any period of time prescribed or
allowed by these rules, by the local rules of any district court, by order of court, or by any
applicable statute, the day of the act, event, or default from which the designated period of
time begins to run shall not be included. The last day of the period so computed shall be
included. . . .
NRS 41.036 is, one, a statute and, two, applicable since it directs the filing of a claim with
the state. It does not, however, specify how time shall be computed. NRCP 6(a) does so
specify.
The state suggests that Kirk v. Parsons, 76 Nev. 442, 357 P.2d 120 (1960), supports its
position. There, the court held that Rule 6(a) had no application to election contests,
reasoning that a special law governed. We think that Kirk v. Parsons was incorrectly decided
since the special law to which the court made reference did not specify how time was to be
computed. Accordingly, we now expressly overrule that holding.
The filing of the claims in the case at hand was, therefore, within six months from the time
the causes of action accrued.
[Headnotes 5, 6]
3. Two subordinate matters must be considered. Edward and Connie Knowles did not
themselves present claims. Jerry Rogers did so on their behalf. NRS 41.031 waives state
immunity provided the claimant complies with the statutes governing suits against the state.
The state urges that the filing of claims by Jerry Rogers on behalf of the Knowleses was not
"claimant compliance."
85 Nev. 361, 365 (1969) Roger v. State
claimant compliance. Apparently Rogers was authorized to act for the Knowleses. There is
nothing to suggest otherwise and we reject the technical contention of the state.
This action was prematurely filed since the board of examiners had not acted upon the
claims presented to it, nor had 90 days elapsed from the receipt thereof. NRS 41.036(2). After
the board did act the plaintiffs amended their complaint to so reflect. That new matter should
have been introduced by a supplemental pleading since it did not exist when suit was started.
NRCP 15(d); Las Vegas Network v. Shawcross, 80 Nev. 405, 395 P.2d 520 (1964). But since
the statute of limitations is about to run, we shall treat the amended complaint as a
supplemental complaint in this case.
Other claimed errors are without merit.
____________
85 Nev. 365, 365 (1969) Chapman v. City of Reno
JAMES R. CHAPMAN, Appellant, v. THE CITY OF
RENO, a Municipal Corporation, Respondent.
No. 5663
June 11, 1969 455 P.2d 618
Appeal from the Second Judicial District Court, Washoe County; Thomas O. Craven,
Judge.
Action against city policeman for maliciously adopting plaintiff's minor daughter and
against policeman and city for malicious prosecution, slander, and malicious interference
with a business relationship. The lower court entered final judgment on order of dismissal in
favor of city, and plaintiff appealed. The Supreme Court, Collins, C. J., held that tort action
could be maintained against city on basis of alleged tortious act of city police officer in
bringing about a malicious prosecution where action was based on former statute which was
in effect at time alleged cause of action arose and which waived immunity if act or omission
of policeman or fireman amounted to gross negligence or if he was guilty of wilful
misconduct, and that alleged conduct of city police officer in stating that plaintiff was an
ex-felon, a child molester, a thief, and had burglarized his own business to collect insurance
and in advising one of plaintiff's employees that she had better quit her employment or she
would become involved in a fraudulent scheme perpetrated by plaintiff would be outside
course and scope of officer's employment as a city police officer and, therefore, could not
give rise to liability of city for slander or malicious interference with a business
relationship.
quit her employment or she would become involved in a fraudulent scheme perpetrated by
plaintiff would be outside course and scope of officer's employment as a city police officer
and, therefore, could not give rise to liability of city for slander or malicious interference with
a business relationship.
Affirmed in part, and reversed and remanded in part.
Free and Bortolin, of Reno, for Appellant.
Vargas, Bartlett & Dixon, of Reno, for Respondent.
1. Pleading.
In ruling on motion to dismiss complaint, allegations in complaint had to be accepted as true plaintiff had
to be accorded favor in inferences to be drawn therefrom, and all doubts had to be resolved in plaintiffs
favor. NRCP 12(b), 54(b).
Tort action could be maintained against city on basis of alleged tortious act of city police officer in
bringing about a malicious prosecution where action was based on former statute which was in effect at
time alleged cause of action arose and which waived immunity if act or omission of policeman or fireman
amounted to gross negligence or if he was guilty of willful misconduct. NRS 41.031, 41.032, 41.034.
3. Malicious Prosecution.
Elements of malicious prosecution, arising from termination of criminal prosecution, are want of
probable cause, malice, termination of litigation, and damage.
Malice may be inferred from proof of want of probable cause.
Conviction in a minor-nonrecord court is only prima facie evidence of probable cause for purpose of
determining absence of want of probable cause as element of malicious prosecution, where trial de novo in
court of record on appeal from the conviction results in an acquittal.
Complaint containing allegations that plaintiff had been acquitted in trial de novo in district court upon
appeal from conviction in municipal court for using foul and abusive language in public place and that
conduct of city police officer who was alleged to have maliciously instituted the criminal prosecution
against plaintiff had been reported to chief of police was sufficient to survive motion to dismiss based on
existence of probable cause or lack of knowledge on part of city of want of probable cause for purposes of
malicious prosecution action against city. NRCP 12(b), 54(b); NRS 41.031, 41.032, 41.034.
Alleged conduct of city police officer in stating that plaintiff was an ex-felon, a child molester, a thief,
and had burglarized his own business to collect insurance and in advising one of
plaintiff's employees that she had better quit her employment or she would become
involved in a fraudulent scheme perpetrated by plaintiff would be outside course and
scope of officer's employment as a city police officer and, therefore, could not give
rise to liability of city for slander or malicious interference with a business
relationship.
his own business to collect insurance and in advising one of plaintiff's employees that she had better quit
her employment or she would become involved in a fraudulent scheme perpetrated by plaintiff would be
outside course and scope of officer's employment as a city police officer and, therefore, could not give rise
to liability of city for slander or malicious interference with a business relationship.
OPINION
By the Court, Collins C. J.:
This is an appeal from a final judgment on an order of dismissal of a complaint alleging
tortious conduct against appellant by a police officer of the City of Reno. The police officer
and the City of Reno were named as defendants. The dismissal and final judgment were in
favor of the City only.
James R. Chapman, appellant (plaintiff below), alleged four causes of action in his
complaint. The first cause of action was against Mahlon P. Kent alone, and contended he had
maliciously adopted Chapman's minor daughter. The second cause of action was against Kent
and the City of Reno. It alleged that Kent, while acting as a police officer of the City of Reno,
maliciously instituted a criminal prosecution against Chapman for using foul and abusive
language in a public place. Chapman was convicted of the offense in municipal court, but
upon appeal to the district court and a trial de novo, he was acquitted. Chapman alleged that
Kent, while in uniform, had vexed and annoyed him to the extent he had reported the conduct
to the Reno Chief of Police, which failed to halt the conduct. The third cause of action was
also against Kent and the City. It alleged that Kent, while in police uniform, slandered
Chapman to various persons in Reno by stating that Chapman was an ex-felon, a child
molester, a thief, and had recently burglarized his own beauty salon to collect insurance. The
fourth cause of action was against Kent and the City of Reno. It alleged that Kent, while in
police uniform, advised Teddy Ann McKenna, one of Chapman's employees, that she had
better quit her employment or she would become involved in a fraud scheme that Kent was
perpetrating on his insurance carrier; that the employee did quit and that Kent willfully and
maliciously interfered with Chapman's business relationships.
The City of Reno moved to dismiss the complaint under NRCP 12(b) for failure to state a
claim upon which relief could be granted against it. The lower court, without specifying the
reason for its order, granted the motion, dismissed the complaint and entered judgment for
the City pursuant to NRCP 54{b).
complaint and entered judgment for the City pursuant to NRCP 54(b). This appeal followed.
It must be clearly understood that Kent is not before the court in this appeal. We are
concerned with and limit our decision to the action between Chapman and the City of Reno
only.
Because no evidence was taken in the lower court, we limit our discussion to those facts
alleged in Chapman's complaint and issues of law raised by the motion to dismiss. An
inference to be drawn from Chapman's complaint, while not expressly stated, is that Kent is
or was married to Chapman's former wife and that the difficulty between them arose out of
that triangular relationship.
[Headnote 1]
In ruling on the motion to dismiss, the lower court was obligated to accept as true the
allegations in Chapman's complaint, to accord him favor in the inferences to be drawn
therefrom, and to resolve all doubts in his favor. Hansen-Neiderhauser v. Nevada Tax
Comm., 81 Nev. 307, 402 P.2d 480 (1965); Brooks v. Dewar, 60 Nev. 219, 106 P.2d 755
(1940); Barron and Holtzoff, Federal Practice and Procedure, Vol. 1-A, Sec. 350. In
reviewing the action of the lower court in dismissing the complaint, we must insure that the
lower court accorded him those rights.
While there were many points urged to the lower court for and against the motion to
dismiss, and an equal number of issues raised in the appeal, we shall discuss only those points
which are determinative of the correctness of the order dismissing the complaint against the
City of Reno.
[Headnote 2]
1. As to the second cause of action seeking recovery against the City of Reno for the tort
of its agent, Officer Kent, for bringing about a malicious prosecution of appellant, we hold
the action may be maintained against the City pursuant to the provisions of NRS 41.034
1
,
which, though since repealed, was in effect at the time this cause of action arose. That statute
is a special statute having application to policemen and firemen, and provides that immunity
is waived both as to the political subdivision and the policemen or firemen, if that act or
omission of the employee amounted to gross negligence or he was guilty of willful
misconduct.
____________________

1
41.034 (repealed Statutes of 1967, Chapter 368, Page 993) CONDITIONS AND LIMITATIONS ON
ACTIONS: ACTS, OMISSIONS OF PEACE OFFICERS, FIREMEN. No action may be brought under NRS
41.031 or against the employee which is based upon an act or omission of any peace officer or fireman, unless
such act or omission amounts to gross negligence or to willful or wanton misconduct. (Emphasis added.)
as to the political subdivision and the policemen or firemen, if that act or omission of the
employee amounted to gross negligence or he was guilty of willful misconduct. While this
construction of the statute accords to the policemen and firemen greater protection than that
given other employees if the act involved is of a ministerial nature, it affords less protection
to them than to other employees if the act involved is of a discretionary nature. See NRS
41.031 and 41.032. We note NRS 41.034 has since been repealed, indicating legislative
disapproval of the immunity waived by the statute.
[Headnotes 3, 4]
2. The elements of malicious prosecution, arising from termination of the criminal
prosecution, are (1) want of probable cause, (2) malice, (3) termination of litigation, and (4)
damage. Bonamy v. Zenoff, 77 Nev. 250, 362 P.2d 445 (1961); Catrone v. 105 Casino Corp.,
82 Nev. 166, 414 P.2d 106 (1966). Malice may be inferred from proof of want of probable
cause. McNamee v. Nesbitt, 24 Nev. 400, 56 P. 37 (1899). See also Miller v. Schnitzer, 78
Nev. 301, 371 P.2d 824 (1962).
[Headnotes 5, 6]
Respondent contends that appellant's conviction in the municipal court is conclusive
evidence of the existence of probable cause, or at least conclusive unless it was obtained by
fraud, perjury or other corrupt means. See 3 Rest. Tort, Section 667. However, we think the
better rule, albeit minority rule, where there is a trial de novo (resulting in an acquittal) in a
court of record on appeal from conviction of defendant in a minor, nonrecord court, is that the
conviction is only prima facie evidence of probable cause. The reason for our rule is that
without a record it is difficult, if not impossible, to know what transpired in the minor court.
Except for the recollection of witnesses, and whatever the concise, summary court minutes
might disclose, there is no other proof available of the circumstances surrounding the
conviction, including evidence of fraud, perjury or other corrupt means. Those factors,
balanced against an acquittal in the higher court, presided over by a trained judicial officer
with the proceedings fully reported, justify our adoption of the announced rule. See 86
A.L.R.2d, Anno. 1090, at p. 1094; MacRae v. Brant, 230 A.2d 753 (N.H. 1967); O'Donnell v.
Chase Hotel Inc., 388 S.W.2d 489 (Mo.App. 1965); Ex parte Kemp, 80 So. 809 (Ala. 1919);
Skeffington, v. Eylward, 105 N.W. 638 (Minn. 1906); Neher v. Dobbs, 66 N.W. 864 (Neb.
1896).
3. Respondent also contends the City of Reno had no knowledge of the want of probable
cause at the time appellant was prosecuted at the instance of Officer Kent and cites Levey v.
Fargo, 1 Nev. 415 (1865).
2
However, it was alleged that appellant reported the conduct of
Officer Kent to the Reno Chief of Police, who failed to halt the conduct. We think that
allegation is sufficient to survive a motion to dismiss.
[Headnote 7]
4. With regard to Chapman's third cause of action (slander) and his fourth cause of action
(malicious interference with a business relationship), we hold the order of dismissal was
correct because they were, as a matter of law, outside the course and scope of his employment
as a police officer for the City of Reno. See Barry v. Oregon Trunk Ry., 253 P.2d 260 (Ore.
1953). There was no allegation in Chapman's complaint that the acts complained of in the
second and third causes of action were done in the course and scope of Kent's employment.
Even if they were done while he was on duty, the slanderous statements and malicious
interference with Chapman's business relationships cannot be said to be in the course of his
employment or within the scope of his authority. It is inescapable from the allegations
contained in the complaint that the statements constituting the slander and the business
interference were for Kent's own purposes. We can see no way that either of those actions on
Kent's part can be related directly or indirectly to any duty he may have had as a police
officer. The arrest, of course, can be viewed from a different point of view because one of the
principal duties of a police officer is to effect arrests. He has no duty as a police officer, under
the circumstances shown here, to slander another person or to interfere with another person's
business relationships. Rousselle v. Perez, 293 F.Supp. 298 (E.D. La. 1968).
The judgment of dismissal of Chapman's complaint against the City of Reno as to the
second cause of action is reversed and that cause of action is remanded for further
proceedings. The dismissal of Chapman's third and fourth causes of action against the City of
Reno is sustained. We express no opinion as to the validity of the first, third or fourth
causes of action against Kent individually.
____________________

2
We have some doubt whether the holding of Levey v. Fargo, supra, is correct on this particular point. See
Hudson v. Philadelphia Life Ins. Co., 280 S.W. 403, at 406 (Tenn. 1926); 32 Cal.Jur.2d, Master and Servant,
123, p. 569. But in view of the alleged notice to the chief of police, we need not pass upon that question.
as to the validity of the first, third or fourth causes of action against Kent individually.
____________
85 Nev. 371, 371 (1969) Servatius v. United Resort Hotels
RAE SERVATIUS and FRED C. SERVATIUS, Appellants, v. UNITED RESORT HOTELS,
INC., A Delaware Corporation Doing Business as AKU AKU, Respondent.
No. 5666
June 11, 1969 455 P.2d 621
Appeal from the Eighth Judicial District Court, Clark County; Clarence Sundean, Judge.
Personal injury action which arose from injuries received in restaurant and in which
plaintiffs sought to amend complaint to substitute as defendant Delaware corporation doing
business as the restaurant in lieu of Nevada corporation having same name as restaurant. The
lower court dismissed action on ground that amendment, which was made after period of
statute of limitations had run, named a new party defendant and did not relate back to original
complaint, and plaintiffs appealed. The Supreme Court, Collins, C. J., held that amendment
did not bring in a new party defendant.
Reversed.
Denton & Monsey, of Las Vegas, for Appellants.
Cromer and Barker, of Las Vegas, for Respondent.
1. Limitation of Actions; Parties.
Amendment to pleadings may be made to correct mistake in name of party, but new party may not be
brought into action once statute of limitation has run. NRCP 4(h), 15(a).
2. Limitation of Actions.
Amendment of complaint, in action for injuries received in restaurant, to substitute as defendant
Delaware corporation doing business as the restaurant in lieu of Nevada corporation having same name
as restaurant did not bring in a new party defendant after period of statute of limitations had run where both
corporations had same attorneys and same principal place of business and resident agent, upon
whom service was made for each corporation, and same four persons were directors
of each corporation.
and resident agent, upon whom service was made for each corporation, and same four persons were
directors of each corporation. NRCP 4(h), 15(a).
OPINION
Appellants seek reversal of a dismissal of their personal injury action against respondent.
We agree, reverse the order of dismissal, and remand the cause for further proceedings.
Appellant Rae Servatius alleges she slipped and fell in the Aku Aku restaurant located on
the grounds of the Stardust Hotel in Las Vegas. She and her husband filed an action two days
prior to the running of the statute of limitations. After a check by their attorney at the Clerk's
office in Clark County, they named as defendant Aku Aku, Inc., a Nevada corporation. After
the action was barred by the statute, they moved to amend process and complaint by striking
Aku Aku, Inc. and inserting in lieu thereof United Resort Hotels, Inc., a Delaware
corporation, doing business as Aku Aku.
Following service of the amended complaint on United Resort Hotels, Inc., respondent
moved to dismiss the complaint on the grounds that the amended complaint named a new
party defendant; that it did not relate back to the original complaint; and that the action
against respondent was barred by the limitations on actions. The lower court agreed and
dismissed the complaint.
The record shows that Joan D. Hays was resident agent for both Aku Aku, Inc., the
Nevada corporation, and United Resort Hotels, Inc., the Delaware corporation, and was
served in that capacity for both corporations; that both corporations have the same principal
place of business; that there are four persons on the board of directors of Aku Aku, Inc.; that
those same four persons, plus two others, constitute the board of directors of United Resort
Hotels, Inc.; that the same law firm, at least for the purpose of this case, represents both
corporations.
The single issue for our decision is this:
I. Did the amended complaint merely correct a mistake in the name of a party already
before the court or did it bring United Resort Hotels, Inc., in as a new party defendant?
[Headnote 1]
1. The rule is generally stated that:
While an amendment may be made to correct a mistake in the name of a party, a new
party may not be brought into an action once the statute of limitations has run because
such an amendment amounts to a new and independent cause of action."
in the name of a party, a new party may not be brought into an action once the statute of
limitations has run because such an amendment amounts to a new and independent cause of
action. Martz v. Miller Brothers Co., 244 F.Supp. 246 (D. Del. 1965); see also Godfrey v.
Eastern Gas & Fuel Associates, 71 F.Supp. 175 (D.Mass. 1947).
[Headnote 2]
There appear to be three factors governing the determination when a proper defendant
might be brought into an action by amendment even though the statute of limitations might
have run. They are that the proper party defendant (1) have actual notice of the institution of
the action; (2) knew that it was the proper defendant in the action, and (3) was not in any way
misled to its prejudice. Martz v. Miller Brothers Co., supra; Taormina Corp. v. Escobedo, 254
F.2d 171 (5th Cir. 1958), cert. denied 358 U.S. 827 (1958); Nelson v. Glenwood Hills
Hospitals, Inc., 62 N.W.2d 73 (Minn. 1953); Godfrey v. Eastern Gas & Fuel Associates,
supra. Those factors are present here.
We are further persuaded to this holding under the particular facts of this case because of
the inference that Aku Aku, Inc. tended to protect the true operator of the restaurant, United
Resort Hotels, Inc., d/b/a Aku Aku, and confuse those who attempted to deal with the
restaurant in its correct corporate identity.
We recognize there is considerable authority which might support a contrary decision, but
in this limited situation we are not persuaded by it.
See also NRCP 15(a): . . . leave [to amend] shall be freely given when justice so
requires; and 4(h): At any time in its discretion and upon such terms as it deems just, the
court may allow any process or proof of service thereof to be amended unless it clearly
appears that material prejudice would result to the substantial rights of the party against
whom the process issued.
Moreover, this court has taken a conservative attitude toward the statute of limitations. In
Howard v. Waale-Camplan & Tiberti, Inc., 67 Nev. 304, 217 P.2d 872 (1950), it was held:
While the plea of the statute of limitations is not an unconscionable defense, it is not such
a meritorious defense that either the law or the fact should be strained in aid of it, nor should
this court indulge in any presumptions in its favor.
We therefore hold the amendment did not bring in a new party defendant but merely
correctly identified a party defendant already before the court.
party defendant but merely correctly identified a party defendant already before the court.
The order of dismissal is reversed and the action remanded to the lower court for further
proceedings.
____________
85 Nev. 374, 374 (1969) Hefner v. Warden
LAWRENCE J. HEFNER, Appellant, v. WARDEN,
No. 5638
June 12, 1969 455 P.2d 625
Appeal from a denial of petition for Writ of Habeas Corpus in the First Judicial District
Court, Ormsby County; Frank B. Gregory, Judge.
The lower court denied the petition, and the petitioner appealed. The Supreme Court,
Collins, C. J., held, inter alia, that record established that petitioner had changed his pleas of
not guilty to guilty of robbery voluntarily.
Affirmed.
Thompson, J., dissented.
George V. Allison, of Carson City, for Appellant.
Harvey Dickerson, Attorney General, and Peter I. Breen, Deputy Attorney General, for
Respondent.
1. Habeas Corpus.
Collateral post-conviction challenge based upon absence of counsel when habeas corpus petitioner
waived preliminary examinations before justice's court was properly denied in view of petitioner's
subsequent guilty pleas to district court.
2. Habeas Corpus.
Since trial court had not addressed defendant personally to determine whether his plea was voluntary and
made with understanding of nature of charge and consequences of plea before accepting it, Supreme Court,
on appeal from denial of petition for writ of habeas corpus, must determine from the record whether plea
was in fact voluntary.
3. Habeas Corpus.
Record established that habeas corpus petitioner had changed his pleas of not guilty to guilty of robbery
voluntarily.
4. Habeas Corpus.
Record in habeas corpus proceeding established that petitioner in changing pleas from not guilty to guilty
of robbery had not been denied effective counsel.
OPINION
This is an appeal from a district court order denying post-conviction relief to Lawrence
Hefner, an inmate of the Nevada State Prison. He is there confined pursuant to judgments and
concurrent sentences entered upon his plea of guilty to two separate charges of robbery. In
each instance, without counsel, he had waived preliminary examination before the justice's
court. He was represented by court-appointed counsel in the district court, pleaded not guilty
to each charge, and soon thereafter changed his pleas to guilty. He now challenges the validity
of the convictions entered pursuant to his pleas of guilty, asserting infirmity in that he waived
preliminary examinations without the assistance of counsel, and was denied effective counsel
in the district court, causing him to change his pleas from not guilty to guilty.
[Headnote 1]
The district court denied his petition peremptorily with the observation that no grounds
for the issuance of the writ have been stated. An evidentiary hearing did not occur. Denial of
the collateral post-conviction challenge based upon the absence of counsel when the
petitioner waived preliminary examinations before the justice's court was proper. His
subsequent guilty pleas to the district court precluded that challenge. Hall v. Warden, 83 Nev.
446, 453, 434 P.2d 425 (1967).
We next consider the question whether appellant's change of plea from not guilty to guilty
was involuntary as shown from the record before us, which was the same record before the
trial court.
That record indicates appellant was arrested on December 12, 1964, taken before a justice
of the peace for preliminary hearing on December 15 and 17, appointed counsel on January
12, 1965, changed his plea to guilty on January 14, and was sentenced the same day.
[Headnote 2]
It was not the general practice of trial courts in Nevada at that time to engage in a dialogue
with a defendant on his plea of guilty to a felony as required by Rule 11 of the Federal
Rules of Criminal Procedure.
plea of guilty to a felony as required by Rule 11 of the Federal Rules of Criminal Procedure.
That rule requires the court to address the defendant personally to determine whether his plea
is voluntary and made with an understanding of the nature of the charge and the consequences
of the plea before accepting it. Since this was not done in the instant case, this court must
determine, if it can from the record before it, whether the plea was in fact voluntary. United
States v. Del Piano, 386 P.2d 436 (3rd Cir. 1967), cert. denied, 392 U.S. 936 (1968).
The records before us relating to the change of plea from not guilty to guilty to two felony
robbery charges include the court minutes of the Eighth Judicial District Court for January 14
and a Narrative of Facts by appellant offered to the First Judicial District Court in his
post-conviction habeas corpus application.
These records show appellant was given counsel, Alfred Becker, Esq., known to this court
to be a competent attorney, that he first plead not guilty and then on January 14, with counsel
present, requested permission of the court to withdraw both not-guilty pleas and enter guilty
pleas. The court granted permission, whereupon appellant, through counsel, waived the
statutory time for rendition of sentence and requested immediate sentencing. The court then
sentenced him to two sentences of 5 to 10 years to run concurrently. There is nothing in that
record to suggest in any manner that the changes of pleas were not voluntarily made with and
upon the advice of competent counsel. Counsel accomplished for appellant concurrent
sentences and avoided an habitual criminal charge or the filing of other robbery charges.
Appellant, in his narrative of facts, admits he was arrested without a warrant in front of the
Stardust Hotel in Las Vegas with a .22 blank starter pistol in his possession. He was informed
by police that he had been identified at a line-up as the perpetrator of several robberies. He
was asked to confess to one robbery and aid in solving others. He refused. After receipt of his
FBI record of prior convictions, it was indicated that he could be charged as an habitual
criminal. He was told that other charges might be filed against him. After giving Becker the
facts, informing him the evidence was all circumstantial and instructing him to fight the
charges all the way, Becker informed him things looked bleak and bad. Becker told him if he
wanted to plead guilty to the two robbery charges, he would talk with the judge and
prosecutor about a concurrent 5 to 10 year sentence. Appellant spent a sleepless night
thinking things over, and recalled to himself that his record had come back to haunt him
again.
sleepless night thinking things over, and recalled to himself that his record had come back to
haunt him again.
The next morning in court, Becker told him all was well and that no habitual criminal
charge would be filed. Appellant then changed his plea to guilty of the two charges, was
sentenced to a concurrent 5 to 10 year term. No other charges were filed, and he was
committed to the penitentiary.
[Headnote 3]
This summary of events from the record before us demonstrates that appellant's decision to
plead guilty was the intelligent application of his own will to the problem. Hall v. Warden,
supra. In Martin v. United States, 256 F.2d 345, at 349 (5th Cir. 1958), cert. denied 358 U.S.
921 (1958), the court stated: The crucial issue appears to be whether, with all of the facts
before him, including the advice of competent counsel, the plea was truly voluntary. See also
Cooper v. Holman, 356 F.2d 82 (5th Cir. 1966), cert. denied 385 U.S. 855 (1966); Sorrenti v.
United States, 306 F.2d 236 (5th Cir. 1962), cert. denied 373 U.S. 916 (1963).
The above facts also indicate that appellant's claim that he was denied effective counsel is
without merit. Hall v. Warden, supra.
Affirmed.
Batjer and Mowbray, JJ., and Sexton, D. J., concur.
Thompson, J., dissenting:
This is an appeal from a district court order denying post-conviction relief to Lawrence
Hefner, an inmate of the Nevada State Prison. He is there confined pursuant to judgments and
concurrent sentences entered upon his plea of guilty to two separate charges of robbery. In
each instance, without counsel, he had waived preliminary examination before the justice's
court. He was represented by court appointed counsel in the district court, pled not guilty to
each charge, and soon thereafter charged his pleas to guilty. He now challenges the validity of
the convictions entered pursuant to his pleas of guilty, asserting infirmity since he waived
preliminary examinations without the assistance of counsel, and was denied effective counsel
in the district court causing him to change his pleas from not guilty to guilty.
The district court denied his petition peremptorily with the observation that no grounds
for the issuance of the writ have been stated. An evidentiary hearing did not occur. Denial of
the collateral post-conviction challenge based upon the absence of counsel when the
petitioner waived preliminary examinations before the justice's court was proper.
of counsel when the petitioner waived preliminary examinations before the justice's court was
proper. His subsequent guilty pleas to the district court precluded that challenge. Hall v.
Warden, 83 Nev. 446, 453, 434 P.2d 425 (1967). However, his attack upon the voluntariness
of his guilty pleas may be raised collaterally in a post-conviction proceeding (Hall v. Warden,
supra), and the allegations of his petition in this regard contain sufficient substance to require
an evidentiary hearing. I would, therefore, remand this matter to the district court for such
limited hearing, and turn to express my reasons.
The petition advances a combination of circumstances which bear upon the voluntariness
of his guilty pleas. According to the petitioner, he was threatened with the possibility of a life
sentence as an habitual criminal if he did not plead guilty to the charges. Additionally, he
asserts that his counsel made no investigation of the circumstances of the crimes with which
he, Hefner, was charged. The petitioner did not confess to the crimes, nor give incriminating
statements. The evidence, if any, in the possession of the state suggesting his guilt, was not
disclosed. The court did not inquire as to whether there was a factual basis for his guilty
pleas.
A guilty plea must not be induced by promises or threats which deprive it of the character
of a voluntary act. Machibroda v. United States, 368 U.S. 487 (1962). The combination of
circumstances to which I have alluded bear upon the central issue of voluntariness and, I
think, are of sufficient substance to require an evidentiary hearing. Perhaps the petitioner's
allegations are untrue. On the other hand, they may speak the truth. In either event, a fair
determination cannot be made without an evidentiary hearing. The mere fact that he was
represented by counsel does not foreclose access to the courts. Yet, I consider this to be the
true holding of the majority opinion.
When the sentencing judge accepted the guilty pleas full inquiry bearing upon the
voluntariness of such pleas should have been made. Had such inquiry occurred the need for a
post-conviction evidentiary hearing would have been precluded, since the court to which the
post-conviction application was presented could rule upon the record made by the sentencing
judge without taking evidence. Unfortunately, such a record was not made by the sentencing
judge in the case at hand and an evidentiary hearing should now be conducted.
Respectfully, I dissent.
____________
85 Nev. 379, 379 (1969) Lee v. Sheriff
CURTIS LEE, Jr., Appellant, v. SHERIFF OF
CLARK COUNTY, Respondent.
No. 5833
June 12, 1969 455 P.2d 623
Appeal from a denial of Petition for Writ of Habeas Corpus in the Eighth Judicial District
Court, Clark County; Alvin N. Wartman, Judge.
The Supreme Court, Collins, C. J., held that presumption that district court did not commit
error in denying habeas corpus relief prevailed absent any record to refute finding of good
cause for defendant's not receiving preliminary hearing within 15 days as required by statute.
Affirmed.
Charles E. Thompson, Deputy District Attorney, Clark County, for Respondent.
Supreme Court on appeal must confine its review to facts shown in the record.
2. Habeas Corpus.
Record on appeal from denial of pretrial writ of habeas corpus failed to establish that petitioner was
arrested before the day he was taken before magistrate for arraignment. NRS 171.174, 171.178.
3. Habeas Corpus.
State in proceeding seeking pretrial writ of habeas corpus, had burden of demonstrating good cause why
petitioner did not receive preliminary hearing within 15 days as required by statute. NRS 171.196, subd.
2.
4. Habeas Corpus.
In appealing finding of good cause for not receiving preliminary hearing within 15 days, defendant has
burden to designate and docket in Supreme Court adequate record to enable it to review such finding.
NRS 171.196, subd. 2.
5. Habeas Corpus.
On appeal from denial of habeas corpus, there is presumption that lower court did not commit error in its
ruling.
6. Habeas Corpus.
Presumption that district court did not commit error in denying pretrial writ of habeas corpus prevailed
absent any record to refute finding of good cause for defendant's not receiving preliminary hearing
within 15 days as required by statute.
85 Nev. 379, 380 (1969) Lee v. Sheriff
preliminary hearing within 15 days as required by statute. NRS 171.196, subd. 2.
OPINION
This is an appeal from a denial of a pretrial writ of habeas corpus.
Appellant urges two points of error on this appeal; they are:
I. Should the complaint be dismissed because of failure to bring appellant before a
magistrate without unnecessary delay as required by NRS 171.174 and 171.178?
II. Should the complaint be dismissed because of failure to hold a preliminary hearing
within 15 days as required by NRS 171.196(2)?
[Headnotes 1, 2]
1. This court on appeal must confine its review to the facts shown in the record. There is
nothing in that record before us to demonstrate appellant was arrested before December 17,
1968, the same day he was taken before the magistrate for arraignment. Counsel attempt to
supply other facts in their briefs; that may not be done. A Minor v. State, 85 Nev. 323, 454
P.2d 895 (1969). Accordingly, there is no way we can review the contention of appellant that
he was not arraigned without unnecessary delay as required by NRS 171.174 and 171.178.
[Headnotes 3-6]
2. The burden is upon the state to demonstrate good cause why appellant did not receive a
preliminary hearing within 15 days as required by NRS 171.196(2). Oberle v. Fogliani, 82
Nev. 428, 420 P.2d 251 (1966); Ex parte Hansen, 79 Nev. 492, 387 P.2d 659 (1963); Ex parte
Morris, 78 Nev. 123, 369 P.2d 456 (1962). However, in appealing a finding of good cause,
the burden is upon appellant to designate and docket in this court an adequate record to
enable us to review that finding. See A Minor v. State, supra; Mitchell v. Bromberger, 2 Nev.
345 (1866). The record before us is deficient in that respect. On appeal from denial of habeas
corpus, there is a presumption the lower court did not commit error in its ruling. Water Co. v.
Belmont Dev. Co., 50 Nev. 24, 249 P. 565 (1926); State v. Boyle, 49 Nev. 386, 248 P. 48
(1926); A Minor v. State, supra.
85 Nev. 379, 381 (1969) Lee v. Sheriff
A Minor v. State, supra. Absent any record to refute that presumption, the presumption will
prevail.
Affirmed.
____________
STATE OF NEVADA, Petitioner v. SECOND
JUDICIAL DISTRICT COURT, Respondent.
No. 5862
June 16, 1969 455 P.2d 923
Appeal from the Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
State sought review by writ of certiorari of order of lower court dismissing felony burglary
charge. The Supreme Court, Collins, C. J., held that the application should be treated as an
appeal and that trial court erred in dismissing information over objection of district attorney.
Reversed.
William J. Raggio, District Attorney, and C. Frederick Pinkerton, Deputy District
Attorney, Washoe County, for Petitioner.
James W. Johnson, Jr., of Reno, for Respondent.
1. Criminal Law.
Order of lower court dismissing criminal information was an appealable order and for that reason writ of
certiorari did not lie. NRS 34.020, subd. 2, 177.015.
2. Criminal Law.
Where Supreme Court improvidently granted writ of certiorari to state, thereby prejudicing state in its
right of appeal from dismissal of felony charge by setting hearing after time for appeal had expired,
Supreme Court would treat application as an appeal. NRS 178.554.
Trial court did not have authority to dismiss criminal information over district attorney's objection. NRS
34.020, subd. 2, 177.015.
4. Criminal Law.
Trial court properly allowed defendant to withdraw guilty plea to felony burglary charge on ground that
he had no prior criminal record and, if convicted of felony, would lose his license to
receive gun parts under state firearms control assistance act and thereby be deprived
of his ability to earn a living for himself and his family.
criminal record and, if convicted of felony, would lose his license to receive gun parts under state firearms
control assistance act and thereby be deprived of his ability to earn a living for himself and his family.
NRS 34.020, subd. 2, 176.165, 177.015; Fed.Rules Crim.Proc. rule 32(d), 18 U.S.C.A.
5. Criminal Law.
Permitting accused to withdraw guilty plea before sentence is discretionary and will not be reversed
unless there has been a clear abuse of that discretion. NRS 176.165; Fed.Rules Crim. Proc. rule 32(d),
18 U.S.C.A.
6. Criminal Law.
Granting of motion to withdraw one's plea before sentencing is proper where for any substantial reason
granting of privilege seems fair and just. NRS 176.165; Fed.Rules Crim.Proc. rule 32(d), 18 U.S.C.A.
OPINION
Petitioner seeks review by writ of certiorari of an order of the lower court dismissing a
felony burglary charge against Robert James Bernardelli. We conclude the application should
be treated as an appeal, reverse the lower court's ruling and remand the case for further
proceedings.
Petitioner sought and we improvidently granted a writ of certiorari, to review the action of
the lower court in dismissing, of its own motion, a felony burglary charge.
Robert James Bernardelli, one of five of the best gunsmiths west of the Rocky
Mountains, worked for Juenke-Saturn, Inc. of Reno. While in that company's employ, he
invented certain gunsmith tools. When his employment with that company ended, he sought
to take the tools, but was repulsed on the grounds they belonged to the company because
invented on its time. Bernardelli brooded about that circumstance and later, while drinking
with his brother, Edward, decided to break in the gun shop and retrieve the tools. Unbeknown
to them, a burglary alarm system had been installed, which they tripped. The police arrested
them inside the building.
On October 2, 1968, a criminal complaint was filed charging both defendants with
Burglary. Edward waived preliminary hearing, entered a plea of guilty, and received
probation.
Robert initially pleaded not guilty, but subsequently changed his plea to guilty also.
At the sentencing hearing, Robert's counsel asked that imposition of sentence be stayed
until he could apply to the board of pardons for relief, because his client, who he represented
had no prior criminal record, if convicted of a felony would lose his license to receive gun
parts under the State Firearms Control Assistance Act and be deprived of his ability to
earn a living for himself and his family.
had no prior criminal record, if convicted of a felony would lose his license to receive gun
parts under the State Firearms Control Assistance Act and be deprived of his ability to earn a
living for himself and his family.
The trial judge, having the probation report before him, noted that Robert had no prior
criminal record and suggested that if counsel moved to withdraw the plea of guilty and
dismiss the action, he would grant the request. The motions were made, and over the district
attorney's objection both motions were granted.
The issues for us to decide in this case are these:
I. Is the petition for writ of review the proper method for challenging the order of the
lower court?
II. Did the lower court exceed its jurisdiction when it ordered the criminal information
dismissed?
III. Did the court err in allowing the respondent to withdraw his plea of guilty?
1. The writ of review (certiorari) is not the proper remedy in this case. NRS 34.020(2)
provides as follows:
The writ shall be granted in all cases when an inferior tribunal, board or officer,
exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer
and there is no appeal, nor, in the judgment of the court, any plain, speedy and adequate
remedy. (Emphasis added.)
In Mack v. District Court, 50 Nev. 318, 258 P. 289 (1927), the court held that:
Under our statute, . . . three concurring requisites are essential to the issuance of the writ
of certiorari: (1) An excess of jurisdiction by the inferior tribunal, board, or officer exercising
judicial functions; (2) the absence of an appeal; and (3) where, in the judgment of the court,
there is no plain, speedy and adequate remedy. Under like provisions contained in the code of
civil procedure of California it is held that if any one of the essentials mentioned is missing
the writ will not lie. Accord: Schumacher v. District Court, 77 Nev. 408, 365 P.2d 646
(1961); Gaming Control Bd. v. District Court, 82 Nev. 38, 409 P.2d 974 (1966); United Ass'n
of Journeymen v. District Court, 82 Nev. 103, 412 P.2d 352 (1966); Dickerson v. District
Court, 82 Nev. 234, 414 P.2d 946 (1966).
[Headnote 1]
The order of the lower court in dismissing the criminal information was an appealable
order, and for that reason a writ of certiorari will not lie. NRS 177.015 provides, in part, as
follows: "The party aggrieved in a criminal action, whether that party be the state or the
defendant, may appeal as follows:
The party aggrieved in a criminal action, whether that party be the state or the defendant,
may appeal as follows:
. . . .
2. To the supreme court from:
. . . .
(b) An order of the district court granting a motion to dismiss, a motion for acquittal or a
motion in arrest of judgment, or granting or refusing a new trial. (Emphasis added.)
[Headnote 2]
However, because we improvidently granted the writ, thereby prejudicing the State in its
right of appeal by setting the hearing after the time for appeal had expired, we will treat the
application as an appeal. In a case presenting a similar situation, Dickerson v. District Court,
supra, at page 236, we held, . . . justice demands that we excuse the petitioner's failure to
proceed by appeal.
[Headnote 3]
2. Prior to 1967, a district court in Nevada could of its own motion and in furtherance of
justice order any indictment or information dismissed. In 1967, the legislature repealed NRS
178.510
1
and enacted NRS 178.554
2
which provides as follows:
The district attorney, or the attorney general in those cases which have been initiated by
him, may by leave of court file a dismissal of an indictment, information or complaint and the
prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial
without the consent of the defendant.
3
The lower court was in error by dismissing the
criminal information.
[Headnote 4]
3. Was the lower court in error in allowing Robert to withdraw his guilty plea also? We
think not.
NRS 176. 165 provides that:
Except as provided in NRS 176.225, a motion to withdraw a plea of guilty or of nolo
contendere may be made only before sentence is imposed or imposition of sentence is
suspended; but to correct manifest injustice the court after sentence may set aside the
judgment of conviction and permit the defendant to withdraw his plea.
____________________

1
Statutes of Nevada, 1967, Chapter 523, Section 447.

2
Statutes of Nevada, 1967, Chapter 523, Section 367.

3
This case concerns only a dismissal under the quoted statute.
[Headnotes 5, 6]
The above statute was taken from and is substantially the same as Rule 32(d), Fed.Rules
Crim.Proc. The action of the lower court is discretionary and will not be reversed unless there
has been a clear abuse of that discretion. Gearhart v. United States, 272 F.2d 499 (D.C.Cir.
1959); Bergen v. United States, 145 F.2d 181 (8th Cir. 1944). The granting of the motion to
withdraw one's plea before sentencing is proper where for any substantial reason the granting
of the privilege seems fair and just. Gearhart v. United States, supra. It is even held in
Woodring v. United States, 248 F.2d 166 (8th Cir. 1957): The question of a defendant's guilt
or innocence is not an issue on a motion under Rule 32(d) of the Federal Rules of Criminal
Procedure, 18 U.S.C.A., for leave to withdraw a plea of guilty. . . . (Emphasis added.) See
also United States v. Paglia, 190 F.2d 445 (2d Cir. 1951).
Accordingly, the order of dismissal by the lower court is reversed. Robert James
Bernardelli shall be retaken into custody by issuance of a bench warrant and he shall stand
before the district court on his plea of not guilty.
Zenoff, Batjer, and Thompson, JJ., and Babcock, D. J., concur.
____________
85 Nev. 385, 385 (1969) Hamlet v. State
FLOYD HAMLET, Appellant, v. THE STATE
No. 5741
June 17, 1969 455 P.2d 915
Appeal from conviction of robbery and imposition of habitual offender sentence. Eighth
Judicial District Court, Clarence Sundean, Judge.
The Supreme Court, Zenoff, J., held that where robbery victim had observed defendant
getting out of automobile on day before robbery, and had seen defendant's face just before
defendant donned mask prior to robbery, admission of owner's in-court identification of
defendant was not error, though owner had previously identified defendant at lineup
conducted without presence of counsel. The court further held that where record of
defendant's prior convictions was devoid of affirmative showing that defendant had been
represented by or had waived counsel, sentencing of defendant to life imprisonment as
habitual criminal would be invalidated unless state could rebut presumption that prior
convictions were void.
waived counsel, sentencing of defendant to life imprisonment as habitual criminal would be
invalidated unless state could rebut presumption that prior convictions were void.
Remanded for evidentiary hearing.
James E. Ordowski, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, and Jerry
J. Kaufman, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Where robbery victim had observed defendant getting out of automobile on day before robbery and had
seen defendant's face just before defendant donned mask prior to robbery, admission of owner's in-court
identification of defendant was not error, though owner had previously identified defendant at lineup
conducted without presence of counsel.
2. Criminal Law.
Where records of defendant's prior convictions were devoid of affirmative showing that defendant had
been represented by or had waived counsel, sentencing of defendant to life imprisonment as habitual
criminal would be invalidated unless state could rebut presumption that prior convictions were void.
3. Criminal Law.
In proving prior convictions for purposes of proving defendant to be habitual criminal, burden is on state
to show that an attorney was either present or validly waived at prior prosecutions.
4. Criminal Law.
Where accidental hearing of recording of confession of participant in robbery of store by owner of store
and his wife was only fragmentary, recording was shut off as soon as confrontation occurred, and testimony
of owner did not appear to have been prejudicially influenced by his hearing of such recording, fact that
recording was overheard did not constitute misconduct on part of prosecution.
OPINION
During the afternoon of June 12, 1967 appellant Hamlet and three other men were parked
outside of a small grocery store in Las Vegas. When the owner investigated he was told by
Hamlet that the car had a dead battery. The owner made a note of the license number of the
car because he suspected that the men were casing his store for the purpose of robbing it.
During the evening hours of the next day the same owner saw Hamlet walking toward the
store while pulling a mask over his face.
over his face. Several men were following him and armed robbery ensued. They were later
apprehended and Hamlet was convicted of being the gunman. On appeal he raised three
principal issues (1) that his conviction should be reversed because a lineup was used against
him without meeting constitutional requirements of his right to counsel (2) that his life
imprisonment sentence is unconstitutional, and (3) that the prosecutor by his misconduct
created reversible error.
1. There is no dispute that the lineup was conducted without the presence of counsel.
Assuming this infirmity the question is whether the state proved by clear and convincing
evidence that the in-court identification by the owner was based upon his observation at the
scene of the offense. Thompson v. State, 85 Nev. 134, 451 P.2d 704 (1969).
[Headnote 1]
The court held a hearing and from it concluded that the owner's wife should be prevented
from making an in-court identification because she had not observed Hamlet independent of
the lineup since she never saw his face at the scene although she chose him from the lineup.
The trial judge allowed the owner's identification because he testified that he had observed
Hamlet coming out of the car the day before the robbery, saw Hamlet's face just before he
pulled the mask over his face as he walked outside the store, and that the testimony was
incontroverted. We find no error in the court's ruling as to identification.
[Headnotes 2, 3]
2. Records of Hamlet's prior convictions for felonies committed in California established
the necessary foundation for the trial court to punish him as an habitual criminal. However,
those records were devoid of an affirmative showing that he had been represented by counsel
in any of those proceedings or had validly waived his right to counsel. Even though he did
plead guilty in at least one of those convictions and had represented himself in at least one
other we are compelled to invalidate his punishment as enhanced by his habitual criminality
unless the state can rebut the presumption that the prior convictions are void. Burgett v.
Texas, 389 U.S. 109, 114-115 (1967), holds that a record silent on its face as to counsel
presumes a denial of the right to counsel and, further, prohibits a presumption of waiver of
counsel. The burden is on the state to show that an attorney was either present or validly
waived. Dyett v. Turner, 287 F.Supp. 113 (D. Utah 1968); Williams v. Coiner, 392 F.2d 210
(4th Cir. 1968).
[Headnote 4]
3. Appellant charges prosecution misconduct arising from the accidental hearing by the
owner and his wife of a tape recording in the prosecutor's office reciting a confession by one
of the participants in the robbery. The encounter was accidental, only fragmentary. The
recording was shut off as soon as the confrontation occurred. The testimony of the witness
does not appear to have been prejudicially influenced by the snatch of conversation that she
heard on the recording. There was no misconduct.
We remand to the trial court for the purpose of a further hearing on the issue of absence of
counsel at those proceedings which founded the convictions and which were used to fix the
punishment in this case. Williams v. Coiner, supra. If the state is unable to establish the
presence of counsel or a valid waiver, punishment shall be imposed in accordance with
statutory requirements but without recidivist enlargement.
Remanded as directed.
Collins C. J., Batjer, Mowbray, and Thompson, JJ., concur.
____________
85 Nev. 388, 388 (1969) Stewart v. State
ERNEST STEWART, Appellant, v. THE STATE
No. 5760
June 17, 1969 455 P.2d 914
Appeal from judgment of conviction of attempted robbery. Eighth Judicial District Court,
Clark County; John F. Mendoza, Judge.
The Supreme Court, Mowbray, J., held that attempted robbery was completed when
defendant produced pistol and demanded money, and fact that defendant was apprehended on
spot did not lessen his guilt.
Affirmed.
Raymond E. Sutton, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General; and George E. Franklin, Jr., District Attorney;
George E. Holt, and Richard D. Weisbart, Deputy District Attorneys, Clark County, for
Respondent.
1. Robbery.
Evidence was sufficient to sustain conviction for attempted robbery.
2. Robbery.
Attempted robbery was completed when defendant produced pistol and demanded money, and fact that
defendant was apprehended on spot did not lessen his guilt.
3. Criminal Law.
Once intent to commit crime has been formed and overt acts toward commission of that crime have been
committed by defendant, he is guilty of attempt, even though he abandons that attempt due to approach of
other person or because of change in his intentions due to stricken conscience.
OPINION
A jury found Ernest Stewart guilty of attempted robbery. He has appealed to this court,
seeking a reversal, on the sole ground that the evidence received during his trial was
insufficient to support the jury's verdict.
Marvin Luedtke, who was the victim of the crime, and two police officers appeared for the
State. Their testimony stands uncontroverted. It shows that the appellant, Stewart, approached
Luedtke, a service station operator, and after brandishing a loaded .32 caliber automatic
pistol, said, I want all of your money. When Luedtke told him that the money was kept in a
cash box located near the fuel pumps in front of the station, Stewart demanded the contents of
Luedtke's wallet, which Luedtke promptly produced. It was at this juncture that the two police
officers drove into the station. One of the officers actually saw the pistol in Stewart's hand.
When Stewart saw the officers, he directed Luedtke to bring him two cans of oil and to act as
though he, Stewart, were purchasing the oil. Luedtke gave him the oil. Stewart took one can,
put his pistol in Luedtke's desk drawer, and attempted to leave the station. He was
immediately apprehended by the officers.
[Headnotes 1-3]
Stewart argues that the attempted robbery was not proved because the evidence shows that
he had abandoned his intent to commit the crime when he put down the pistol and left the
station. We do not agree. The attempted robbery of Luedtke was completed when Stewart
produced his pistol and demanded the money. State v. Verganadis, 50 Nev. 1, 248 P. 900
(1926). The fact that Stewart was apprehended on the spot does not lessen his guilt.
does not lessen his guilt. As the court said in People v. Robinson, 4 Cal.Rptr. 679, 682
(Cal.App. 1960), . . . once an intent to commit a crime has been formed and overt acts
toward the commission of that crime have been committed by a defendant he is then guilty of
an attempt, whether he abandoned that attempt because of the approach of other persons or
because of a change in his intentions due to a stricken conscience.
Affirmed.
____________
85 Nev. 390, 390 (1969) Roberts v. Hocker
ODE KIE ROBERTS, Petitioner, v. CARL G. HOCKER,
Warden of the Nevada State Prison, Respondent.
No. 5593
June 19, 1969 456 P.2d 425
Original proceedings in habeas corpus to test the legality of an order of the parole board
which paroled defendant to a hold for Washington officials. The Supreme Court, Collins, C.
J., held that a writ would lie to test the legality of the parole board's order but that an
extradition hearing was not a critical stage of criminal proceedings at which defendant's right
to counsel attached.
Petition denied.
Noel E. Manoukian, of Zephyr Cove, for Petitioner.
Harvey Dickerson, Attorney General, and Peter I. Breen, Deputy Attorney General, for
Respondent.
1. Habeas Corpus.
Writ of habeas corpus is available to every person unlawfully committed, detained, confined or restrained
of his liberty. NRS 34.360, 179.177-179.235.
2. Habeas Corpus.
Habeas corpus would lie to test legality of parole board's order which paroled petitioner to a hold for
Washington officials. NRS 34.380, 179.197.
3. Extradition.
In absence of statute allowing defendant right to demand and procure legal counsel at an extradition
proceeding, no such right exists.
4. Extradition.
An extradition hearing is not a critical stage of criminal proceedings at which defendant's right to counsel
attaches. NRS 179.197.
5. Habeas Corpus.
Contention that Washington had lost jurisdiction over petitioner because he had been denied right to
speedy trial was not determinable in habeas corpus proceeding which was brought to test the legality of his
parole to a hold for Washington officials.
OPINION
This is an original application for habeas corpus in this court.
Petitioner was convicted of grand larceny and sentenced on November 30, 1966, to a 2 to
14 year term in the penitentiary. On February 12, 1968, the State Parole Board granted
petitioner parole pending the furnishing of a plan for rehabilitation. Before his release was
effected, information was received from the State of Washington that petitioner was wanted
there on a felony charge. The parole board reconsidered its previous order and ordered
petitioner paroled to a Washington hold.
On April 2, 1968, a Nevada governor's warrant was issued on the request of the
Washington governor under the Uniform Criminal Extradition Act (NRS 179.177-179.235).
Petitioner was taken before the First Judicial District Court and advised of his rights under
the extradition act. As an indigent, he requested appointment of counsel, which was refused,
although he was given time to obtain his own counsel. On May 13, 1968, while petitioner was
still without counsel, the court ordered the governor's warrant to be executed and petitioner
released to the Washington authorities.
Other legal action intervened which is not relevant to the issues here. Finally, upon
application to this court for habeas corpus, counsel was appointed, the issues framed and
argument had.
There are three issues before us for decision; they are:
I. Will habeas corpus lie to determine the validity of a parole to hold and of extradition
proceedings instituted by a demanding state seeking extradition of a person confined in the
Nevada State Prison?
II. Does petitioner have the right to appointment of counsel to represent him at the
extradition proceeding and in his petition for habeas corpus to test the validity of the
restraint? III.
III. What is the scope of review in an extradition habeas corpus proceeding?
[Headnotes 1, 2]
1. The writ of habeas corpus is available to every person unlawfully committed, detained,
confined or restrained of his liberty. NRS 34.360. In State v. Fogliani, 82 Nev. 300, 417 P.2d
148 (1966), this court held: . . . the availability of the writ of habeas corpus . . . has been
expanded to allow the presentation of questions of law that cannot otherwise be reviewed, or
that are so important as to render ordinary procedure inadequate and justify the extraordinary
remedy. Other cases have held that habeas corpus will lie to test the constitutionality of an
ordinance while on bail (Ex parte Philipie, 82 Nev. 215, 414 P.2d 949 (1966)); to test
unlawful restraint (Garnick v. Miller, 81 Nev. 372, 403 P.2d 850 (1965)); or when one
contends that he is aggrieved by the governor's order (United States v. Superintendent of
County Prisons, 111 F.2d 409 (3rd Cir. 1940)). For a case discussing the very issue before us,
see Ex parte Drake, 238 P.2d 566 (1951), and also see United States v. Jackson, 234 F.2d 742
(2d Cir. 1956). We hold that habeas corpus will lie in this situation to test the legality of the
particular restraint, even though it would not permit discharge from actual custody. See NRS
34.380.
2. NRS 179.197 provides, in part, that:
1. No person arrested upon such warrant shall be delivered over to the agent whom the
executive authority demanding him has appointed to receive him unless he is first taken
forthwith before a judge of a court of record in this state, who shall inform him of the demand
made for his surrender and of the crime with which he is charged, and that he has the right to
demand and procure legal counsel.
2. If the prisoner or his counsel state that he or they desire to test the legality of his arrest,
the judge of such court of record shall fix a reasonable time to be allowed him within which
to apply for a writ of habeas corpus. (Emphasis added.)
[Headnote 3]
The right to demand and Procure legal counsel during an extradition proceeding is wholly
statutory and not from any constitutional right or mandate. In the absence of a statute
allowing a defendant the right to demand and procure legal counsel at an extradition
proceeding, no such right exists. Applications of Oppenheimer, 389 P.2d 696 (Ariz. 1964),
Rugg v. Burr, 402 P.2d 28 (Ariz.App. 1965).
The court was confronted with an analogous situation in the cases of In re DuBois, 84
Nev. 562, 445 P.2d 354 (1968), and Smith v. Warden and Luse v. Warden, 85 Nev. 83, 450
P.2d 356 (1969), where we held that an indigent person, on probation, was not entitled to
appointed counsel at a revocation hearing because such a hearing is not a critical stage of the
criminal proceeding. In the Smith and Luse case we said: The Sixth Amendment right to
counsel cases decided by the United States Supreme Court center upon the need for counsel
at critical stages of the criminal proceeding in order to insure fundamental fairness in the
treatment of an accused or of one upon whom suspicion is focused. Consequently, that court
has ruled that the right to counsel attaches when a police investigation is no longer a general
inquiry into an unsolved crime but has begun to focus upon a particular suspect in police
custody (Escobedo v. Illinois, 378 U.S. 478 (1964)); at pre-trial lineup conducted for
identification purposes (United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California,
388 U.S. 263 (1967)); at the time when a plea is entered (White v. Maryland, 373 U.S. 59
(1963); Hamilton v. Alabama, 368 U.S. 52 (1961)); at trial (Gideon v. Wainwright, 372 U.S.
335 (1963)); when sentence is imposed (Mempa v. Rhay, 389 U.S. 128 (1967)); and on a
convicted person's first appeal granted as a matter of right (Douglas v. California, 372 U.S.
353 (1963)). All of those cases rest upon the guarantees of fair procedure inherent in the Due
Process Clause of the Fourteenth Amendment through which the Sixth Amendment is made
applicable to the states, with only Douglas v. California giving equivalent emphasis to equal
protection.
If a probation revocation hearing, where a defendant is subject to the loss of his liberty for
an extended period of time, is not a critical stage of the criminal proceeding a fortiori, an
extradition proceeding is certainly not a critical stage of the criminal proceeding. The
defendant can only be returned to the demanding state for trial. We see nothing sinister or
foreboding about that situation. In fact, the opportunity for one accused to have a trial and be
faced by his accusers is the touchstone of jurisprudence. We cannot presume that the
defendant will be treated with fundamental unfairness in the demanding state. In fact, with the
forest of safeguards set down by the United States Supreme Court, as well as post-conviction
remedies and the virtually unlimited right to appeal, we must assume that the defendant will
be treated fundamentally fair and will be afforded a fair trial at all stages of the proceedings in
the demanding state.
[Headnote 4]
It is our view that an extradition hearing is not a critical stage of the criminal proceeding.
The guilt or innocence of the defendant is not raised or otherwise brought into issue or tested.
The meaning of NRS 179. 197 is unambiguous and needs no construction; it merely affords a
defendant the privilege to have counsel present. If the legislature deems it desirable to afford
appointed counsel to indigents during an extradition proceeding, it is their prerogative, not
ours.
Petitioner relies on People v. Ogilvie, 221 N.E.2d 265 (Ill. 1966), and In re Turner, 410
S.W.2d 639 (Tex.Crim.App. 1967). In In re Turner, that court said: It does not appear that
the Legislature intended that the right' expressed in Section 10 was to be limited to those
individuals who are financially able to employ counsel of their own choice. There, of course,
should be no difference in our criminal procedures stemming from differences in wealth. In
Smith and Luse, we said: The rich and the poor must be treated alike insofar as the right to
counsel is concerned. This argument was approved by the Oregon Supreme Court in a lucid
opinion, Perry v. Williard, 427 P.2d 1020 (Ore. 1967), and is not lightly to be cast aside. We
do not, however, choose to accept it in Nevada, for reasons which to us seem sound. . . . A
disparity in wealth between a probationer who can afford to retain counsel and one who
cannot does not necessarily create an equal protection problem. Something more must be
present. There must be a deviation from commonly held notions of fundamental fairness
which creates an invidious discrimination. Thus, a court concerned with this problem must
distinguish between the privilege of one to have counsel present and the constitutional right
to enjoy the assistance of counsel. The transformation of privilege into right occurs when a
critical stage in the criminal process is reached. . . . Nor does a disparity in wealth necessarily
create an invidious discrimination and deny equal protection to probationers. (Emphasis
added.)
In People v. Ogilvie, supra, the court, although discussing the question of whether an
extradition proceeding was a critical stage of the criminal proceeding, did not decide that
point, but found that legal expertise is necessary to consider and properly raise pertinent
questions, and proceeded to judicially amend the uniform act to require that counsel be
appointed to represent indigents. We do not choose to follow the construction placed on the
uniform extradition act by the Illinois and Texas cases.
[Headnote 5]
3. Petitioner contends in this proceeding that the State of Washington has lost jurisdiction
of him because he has been denied the right to a speedy trial. We hold he may not raise or
seek determination of that issue in Nevada. People v. Hoy, 223 N.Y.S.2d 759 (Sup.Ct. 1961).
He could not go into the evidence of his guilt or innocence in this state either before the
governor or the courts. Ex parte Filtzer, 60 Nev. 109, 100 P.2d 942 (1940); nor complain in
the asylum state that an indictment of the demanding state was invalid because based on
evidence seized in violation of the Fourth Amendment. Woods v. Cronvich, 396 P.2d 142
(5th Cir. 1968). He could not raise the constitutionality of a statute of the demanding state in
the asylum state, Ex parte Key, 301 S.W.2d 90 (Tex.App. 1957), nor seek consideration of
the statute of limitations, Biddinger v. Commissioner, 245 U.S. 128 (1917).
The petition for a writ of habeas corpus is denied.
____________
85 Nev. 395, 395 (1969) State v. Pioneer Citizens Bank
STATE OF NEVADA, COUNTY OF WASHOE and NEVADA TAX COMMISSION,
Appellants, v. PIONEER CITIZENS BANK OF NEVADA and CLEL GEORGETTA,
Respondents.
No. 5674
June 19, 1969 456 P.2d 422
Appeal from the Second Judicial District Court, Washoe County; John B. Gabrielli, Judge.
Action by lessor of real property and lessee bank to have building which bank erected on
property pursuant to lease assessed as real property of bank. The trial court entered judgment
in favor of lessor and bank, and the State, County, and Tax Commission appealed. The
Supreme Court, Batjer, J., held that provision that the building was to become part of realty at
expiration or termination of lease indicated that both lessor and bank intended the building
was to be the real property of bank for duration of lease and that the bank was entitled to have
the building assessed to it as its real property.
Affirmed.
Harvey Dickerson, Attorney General, Peter I. Breen and Robert A. Groves, Deputy
Attorneys General; William J. Raggio, District Attorney, and Paul F. Hamilton, Deputy
District Attorney, of Reno, for Appellants.
Stewart & Horton, of Reno, for Respondents.
1. Statutes.
Statutes imposing taxes are to be construed in favor of taxpayer and most strongly against the government
and are not to be extended by implication beyond clear meaning of language used.
2. Taxation.
Real estate as defined by statute to include buildings for tax purposes is synonymous with real
property as used in statute requiring real property belonging to any bank to be assessed to bank in same
manner as other real property is assessed to owners thereof. NRS 361.035, 367.020.
Lease provision that building erected on leased premises by bank was to become part of realty at
expiration or termination of lease indicated that both bank and lessor of property intended that structure
was to be real property of bank for duration of lease even though lease contained no removal clause.
4. Improvements; Taxation.
In absence of an agreement delineating the interests of respective parties, ownership and title of
permanent structures built by one entity upon lands of another generally accrues to holder of title to land,
but parties may by contract agree that one may be owner of building and other owner of land and, if parties
so agree, one entity may have a tax levied against it for underlying land and another for building located
thereon.
5. Taxation.
Agreement between lessor of land and lessee bank that building which bank was to erect on premises was
to be real property of bank for duration of lease entitled bank to have building assessed to it as its real
property and bank was entitled to deduct assessed valuation of new structure from assessed valuation of
capital stock. NRS 361.035, 367.020, 367.030.
OPINION
This appeal is from the granting of a motion for summary judgment resulting in a final
judgment of the district court wherein the ownership of a structure erected on leased premises
by a state bank is recognized; the county assessor is required to assess the taxes against the
structure as the real property of the bank; and, the bank is authorized to offset such
assessment of taxes against an assessment on its shares of capital stock.
property of the bank; and, the bank is authorized to offset such assessment of taxes against an
assessment on its shares of capital stock.
The respondent, Pioneer Citizens Bank of Nevada, hereinafter referred to as the Bank is
the assignee of Three C L & S Company, which company entered into a lease with Clel
Georgetta, the other respondent, for a part of the ground floor of the Triune Building in Reno,
Nevada, as well as the unimproved area adjacent to and south of that building. The lease
further provided that the Bank would have the right to build, at its sole expense, a new
structure adjacent to the existing building on the unimproved area. Pursuant to the terms of
the lease the Bank did erect the new structure.
The assessor of Washoe County separately assessed the Triune Building; the property
beneath the building; and the land adjacent to the Triune Building and the new structure; and
directed all the tax statements to the respondent, Georgetta. Thereafter both respondents
contended that the Bank should have been assessed for the new structure and they protested
the direction of the assessment for the new structure to Georgetta as well as the payment of
the tax levied pursuant to the assessment.
The State of Nevada prohibits the levy of a tax on the personal property of banks (NRS
367.040) but requires a tax to be levied on the shares of stock in banks (NRS 367.030). The
Federal Government has allowed the several states to impose a tax on the share of stock of
national banks. 12 U.S.C.A. 548. The statutes also require that the real property of banks be
taxed, however, banks are allowed to deduct from the tax assessment against the shares of
stock the assessed value of the real property. (Previously NRS 367.030(2), now NRS
367.025(5)). To have the new structure assessed to it was important to the Bank because of
the tax offset which could be claimed.
The assessor of Washoe County, acting pursuant to an opinion of the attorney general,
refused to direct the tax statement for the new structure to the Bank. The respondents filed a
complaint for a declaratory judgment and to recover the taxes paid under protest. Both the
respondents and the appellants moved for summary judgment. The trial court found that the
new structure was the real property of the Bank, for which it was entitled to be assessed;
allowed the respondents' motion for summary judgment and granted the Bank the right,
pursuant to NRS 367.030, to deduct the assessment on the new structure from the assessment
against the shares of stock of the Bank and the right to recover the sum of $1,074.97,
together with interest, for an over assessment in the year 1966.
and the right to recover the sum of $1,074.97, together with interest, for an over assessment
in the year 1966.
As their assignments of error the appellants contend that the trial court was wrong when it
(1) granted the respondents' motion for summary judgment; (2) found that the new addition to
the Triune Building was real property belonging to the Bank; and (3) held that the Bank was
entitled to have the new structure assessed to it as real property, and therefore entitled to
deduct the amount assessed against the new structure from the assessment made upon all
shares of stock of the Bank pursuant to NRS 367.030 (now NRS 367.025(5)).
We find no error and affirm the judgment of the trial court.
In the trial court, the appellants and the respondents both moved for summary judgment
and each contended that there was no genuine issue as to any material fact. Although the
appellants now contend that the facts are still in dispute we have read the record and find no
genuine issue of fact to be determined. The appellants have apparently confused issues of fact
with issues of law.
[Headnote 1]
Although in recent years all levels of government seem to have ignored this basic
principal, nevertheless, statutes imposing taxes are to be construed in favor of the taxpayer
and most strongly against the government and are not to be extended by implication beyond
the clear meaning of the language used. Commonwealth v. Hutzler, 97 S.E. 775 (Va.App.
1919); Treat v. White, 181 U.S. 264 (1900). In Meriwether v. Garrett, 102 U.S. 472 (1880),
the United States Supreme Court concluded: The power of taxation is legislative, and cannot
be exercised otherwise than under the authority of the legislature.
For tax purposes the legislature, in NRS 361.035, has defined real estate as being among
other things, buildings and in NRS 367.020
1
it requires that the real property belonging to
any bank . . . shall be assessed to the bank in the same manner and form as other real property
is assessed to the owners thereof.
[Headnotes 2, 3]
Here we find that real estate and real property are synonymous and that the new
structure built by the Bank is real property.
____________________

1
NRS 367.020: The real property belonging to any bank, subsidiary bank building corporation or affiliate
bank building corporation shall be assessed to the bank in the same manner and form as other real property is
assessed to the owners thereof.
real property. (Dabney v. Edwards, 53 P.2d 962 (Cal. 1935)), and that it is the intention of the
Bank and Georgetta that the new structure, for the duration of the lease, is the real property of
the Bank.
The lease provides that, The new structure, however, shall become and remain a part of
the realty at the expiration, or sooner termination, of this lease. Clearly this means that the
new structure was not intended to be a part of realty until the lease terminated. The new
structure is to be owned exclusively by the Bank until that event occurs.
It is significant that here the appellants have raised some circumstantial facts that might be
construed to show that the new structure was nothing more than a part of the realty and the
respondents have countered with very persuasive circumstantial facts that tend to show
separate ownership of the new structure by the Bank, but the direct evidence is unmistakable.
Both respondents, Georgetta and the Bank have contended from the outset that the Bank is
the present owner of the new structure, and this position is unmistakably supported by the
wording of the lease.
[Headnote 4]
In the absence of an agreement delineating the interests of the respective parties, the
ownership and title of permanent structures built by one entity upon the lands of another
generally accrues to the holder of the title to the land but the parties may by contract agree
that one may be the owner of the building and the other the owner of the land, and if the
parties so agree one entity may have a tax levied against it for the underlying land and another
for the building located thereon. Portland Terminal Co. v. Hinds, 39 A.2d 5 (Me. 1944),
Muller v. Board of Assessors, 93 N.Y. 308 (1883). Here the Bank and Georgetta agreed that
the Bank would own the new structure for the duration of the lease while Georgetta would
continue to own the underlying land.
[Headnote 5]
The lease between the respondents, read in the light of NRS 361.035, NRS 367.020 and
NRS 367.030 (as it was in effect when the assessment was made in 1966) clearly shows that
the Bank was entitled to have the new structure assessed to it as its real property.
The appellant criticized the trial court because it followed the holding in Portland
Terminal Co. v. Hinds, supra, and attempted to delineate that action of the trial court as error.
We find no error and further find that the criticism is unfounded and subscribe to the holding
in that case. There the court rejected the so-called Massachusetts rule that the interest of the
building owner is a mere contractual right operating only between the parties and that the
building is taxable to the lessor as the owner of the entire property, and held that the interest
of the building owner attains to the status of a separable and distinct estate and the building is
taxable to the building owner.
The appellants place strong emphasis upon the fact that the lease contained no removal
clause and for that reason they infer it to be the intent of the respondents that the owner of the
underlying fee is the owner of the new structure. We do not agree. In the case of Portland
Terminal Co. v. Hinds, supra, that court said: We make no distinction between the buildings
located within the railroad right of way of the appellant and those located outside thereof. In
either case, the building owner has a property right taxable to him as owner. Nor do we make
a distinction in regard to that building located on the land, the lease of which provided that, at
the termination of the lease, the building should become the property of the lessor. During the
term of the lease, the lessee was the owner of the building and to him it was taxable.
The appellants also rely on Marshall & Ilsley Bank v. Leuch, 144 N.W. 1122 (Wis. 1914).
A careful reading of that case shows it to be distinguishable on its facts. There the bank built
a building upon leased land and attempted to have the underlying land assessed to it. Here the
Bank is not attempting to have the underlying land assessed to it but only the new structure.
In order to avoid double taxation our legislature has allowed reduction in the assessment
against a bank's capital stock by the amount of the valuation of the real property. When, as
here, a bank has permanently invested a part of its assets in a building located on the land of
another, that sum permanently invested must be represented in the gross value of the bank's
capital stock as fixed by the tax assessment. At the time the bank's capital stock is taxed, the
permanent structure is fully taxed.
The district court was correct in deciding that the respondent Bank should have taxes
levied against the new structure directed to it and should be allowed to deduct the assessed
valuation of the new structure from the assessed valuation of its capital stock.
valuation of the new structure from the assessed valuation of its capital stock.
____________
85 Nev. 401, 401 (1969) Franklin v. District Court
GEORGE E. FRANKLIN, Jr., District Attorney of Clark County, Nevada, Petitioner, v.
EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the
County of Clark; THE HONORABLE THOMAS J. O'DONNELL, a District Judge thereof,
Respondent.
No. 5883
June 19, 1969 455 P.2d 919
Original petition for writ of certiorari.
The Supreme Court, Thompson, J., held, inter alia, that even though district court erred in
granting defendant's motion to discover, inspect and copy statements of all persons to be
called by the prosecution as witnesses at trial, district attorney's petition for certiorari would
be dismissed in view of fact that remedy of appeal was available to the state after final
judgment to review the error complained of.
Dismissed.
George E. Franklin, Jr., District Attorney, and Alan R. Johns, Deputy District Attorney,
Clark County, for Petitioner.
James D. Santini, Public Defender, and Earle W. White, Deputy Public Defender, Clark
1. Criminal Law.
The provisions of new criminal code dealing with criminal discovery represent legislative intent with
respect to scope of allowable pretrial discovery and are not lightly to be disregarded. NRS
174.235-174.295.
2. Criminal Law.
Under statute providing that writ of certiorari shall be granted when inferior tribunal has exceeded its
jurisdiction, there is no appeal, nor a plain, speedy and adequate remedy; if any one of such essential
elements is missing, writ will not issue regardless of existence of other elements. NRS 34.020.
3. Criminal Law.
Even though district court erred in granting defendant's motion to discover, inspect and copy statements
of all persons to be called by the prosecution as witnesses at trial, district attorney's petition for certiorari
would be dismissed in view of fact that remedy of appeal was available to the state after final judgment to
review the error complained of NRS 34.020, 174.235-174.295, 174.275, 177.015, 177.045.
4. Criminal Law.
Appellate review should be postponed, except in narrowly defined circumstances, until after final
judgment has been rendered by trial court; piecemeal review does not promote the orderly handling of a
case, and is particularly disruptive in criminal cases where defendant is entitled to a speedy resolution of
the charges against him.
OPINION
In this criminal case the district court granted the defendant's motion to discover, inspect
and copy the statements of all persons to be called by the prosecution as witnesses at trial.
The pertinent statute does not authorize the discovery of witnesses' statements,
1
nor does the
defendant enjoy a constitutional right to discover them. Mears v. State, 83 Nev. 3, 7, 422 P.2d
230 (1967); Cicenia v. Legay, 357 U.S. 504 (1958); Leland v. Oregon, 343 U.S. 790 (1952).
For this reason, the district attorney of Clark County instituted this original proceeding in
certiorari, asserting that the order of the district court was entered in excess of its jurisdiction.
[Headnote 1]
1. Before the enactment of our new criminal code the legislature had not concerned itself
with criminal discovery. Case law had established that discovery in criminal cases reposed
within the discretion of the trial court [Pinana v. District Court, 75 Nev. 74, 334 P.2d 843
(1959); Marshall v. District Court, 79 Nev. 280, 382 P.2d 214 (1963)] and orders granting or
denying discovery could be reviewed only on appeal from final judgment. Mears v. State, 83
Nev. 3, 8, 422 P.2d 230 (1967). The new criminal code does deal with criminal discovery
[NRS 174.235-174.295] and those provisions represent the legislative intent with respect
to the scope of allowable pretrial discovery and are not lightly to be disregarded.
____________________

1
NRS 174.245 provides: . . . this section does not authorize the discovery or inspection . . . of statements
made by state witnesses or prospective state witnesses . . . to agents of the state.
represent the legislative intent with respect to the scope of allowable pretrial discovery and
are not lightly to be disregarded. Although the court erred in entering the discovery order
mentioned, it does not follow that the extraordinary remedy of certiorari is available to correct
that mistake, and we turn to consider this question.
[Headnote 2]
2. A writ of certiorari shall be granted when the inferior tribunal has exceeded its
jurisdiction, there is no appeal, nor a plain, speedy and adequate remedy. NRS 34.020. If any
one of these essential elements is missing, the writ will not issue regardless of the existence
of other elements. Schumacher v. District Court, 77 Nev. 408, 365 P.2d 646 (1961); Mack v.
District Court, 50 Nev. 318, 258 P. 289 (1927); see also: Gaming Control Bd. v. Dist. Ct., 82
Nev. 38, 41, 409 P.2d 974 (1966).
[Headnote 3]
The new criminal code contemplates that intermediate orders are to be reviewed on appeal,
and the remedy of appeal is granted to the state.
2
Indeed, a protective order denying,
restricting or deferring discovery is expressly made reviewable by appeal. NRS 174.275. An
overly broad order for discovery, such as the one before us, should be similarly treated. We
find nothing in the new code to intimate that an intermediate order for discovery is subject to
review and challenge by extraordinary writ. The statutory scheme is to the contrary, and is in
harmony with prior case pronouncements of this court.
[Headnote 4]
There are solid reasons for this point of view. As a general proposition we approve the
notion that appellate review should be postponed, except in narrowly defined circumstances,
until after final judgment has been rendered by the trial court.
____________________

2
NRS 177.045 reads: Upon the appeal, any decision of the court in an intermediate order or proceeding,
forming a part of the record, may be reviewed.
NRS 177.015 provides: The party aggrieved in a criminal action, whether that party be the state or the
defendant, may appeal as follows:
1. To the district court of the county from a final judgment of the justice's court.
2. To the supreme court from:
(a) A final judgment of the district court in all criminal cases.
(b) An order of the district court granting a motion to dismiss, a motion for acquittal or a motion in arrest of
judgment, or granting or refusing a new trial.
after final judgment has been rendered by the trial court. Piecemeal review does not promote
the orderly handling of a case, and is particularly disruptive in criminal cases where the
defendant is entitled to a speedy resolution of the charges against him. Will v. United States,
389 U.S.90 (1967).
Having concluded that the remedy of appeal is available to the state after final judgment to
review the error here complained of, this proceeding is dismissed.
Collins, C.J., Zenoff, Batjer, and Mowbray, JJ., concur.
____________
85 Nev. 404, 404 (1969) Colle v. State
JOHN ERNEST COLLE, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 5712
June 20, 1969 455 P.2d 917
Appeal from denial of application for writ of habeas corpus. Second Judicial District
Court, Washoe County; John E. Gabrielli, Judge.
The lower court denied relief, and petitioner appealed. The Supreme Court, Mowbray, J.,
held that evidence before grand jury was insufficient to support perjury indictment against
defendant.
Reversed. Writ issued.
Seymour H. Patt, of Reno, for Appellant.
Defendant may object to sufficiency of evidence to sustain indictment only by application for writ of
habeas corpus, and if application is not made before plea is entered, objection is waived, unless court
permits it to be made within reasonable time thereafter. NRS 172.155.
2. Perjury.
Essential element of perjury is that testimony complained of was material to issue or point in question.
NRS 172.155, 199.120.
85 Nev. 404, 405 (1969) Colle v. State
Evidence before grand jury was insufficient to support perjury indictment against defendant. NRS
172.155, 197.090, 199.120.
OPINION
[Headnote 1]
The Washoe County Grand Jury indicted John Ernest Colle for perjury. NRS 199.120.
1
Colle filed a petition for a writ of habeas corpus in the district court, asserting that the
evidence presented to the grand jury was insufficient to support the perjury indictment. NRS
172.155, subsection 2.
2
The district judge denied the petition; hence this appeal.
[Headnote 2]
Colle had been earlier tried and convicted in the district court for a violation of NRS
197.090 (interfering with a police officer in the performance of his duties), which offense is a
gross misdemeanor. During that trial Colle took the stand in his own behalf and in his sworn
testimony stated that he had been in California between the hours of 8 p.m. on May 7, 1968,
and 5 a.m. on May 8, 1968, which testimony the State contends is perjurious. Colle's
testimony, which was read to the grand jury, the court reporter who was present during
Colle's trial in the district court, is in direct conflict with the testimony of a Nevada highway
patrolman who testified before the grand jury that he had observed Colle at 9 p.m. on May 7,
1968, in a truck on U.S. Highway 40 approximately 2 miles west of Reno. Colle argues, and
rightly so, that there is nothing in the proceedings before the grand jury to show that his
testimony in the prior case regarding his whereabouts on May 7, 196S, was "a matter
material to the issue or point in question", which is an essential element of perjury.
____________________

1
Perjury and subornation of perjury: Penalties. Every person having taken a lawful oath, . . . in a judicial
proceeding, . . . who shall swear or affirm willfully, corruptly and falsely, in a matter material to the issue or
point in question, . . . shall be deemed guilty of perjury, . . . and, upon conviction thereof, shall be punished by
imprisonment in the state prison for not less than 1 year nor more than 10 years. [Emphasis added.]

2
The defendant may object to the sufficiency of the evidence to sustain the indictment only by application for
a writ of habeas corpus. If no such application is made before the plea is entered, unless the court permits it to be
made within a reasonable time thereafter, the objection is waived.
85 Nev. 404, 406 (1969) Colle v. State
1968, was a matter material to the issue or point in question, which is an essential element
of perjury. NRS 199.120, supra. People v. Pierce, 423 P.2d 969 (Cal. 1967); State v.
Montoya, 419 P.2d 970 (N.M. 1966); Gibson v. Commonwealth, 328 S.W.2d 162 (Ky.
1959); United States v. Parker, 244 F.2d 943 (7th Cir. 1957), cert. denied, 355 U.S. 836
(1957); State v. Dunn, 180 N.E. 5 (Ind. 1932); In re Sheldon, 44 Nev. 268, 193 P. 967 (1920).
[Headnote 3]
We conclude that the State has failed to meet its burden of establishing that an offense had
been committed as prescribed in NRS 172.155, subsection 1.
3
See Maskaly v. State, 85 Nev.
111, 450 P.2d 790 (1969), and cases cited therein. The writ shall issue, and the perjury charge
is dismissed.
Reversed.
Collins, C.J., Zenoff, Batjer, and Thompson, JJ., concur.
____________________

3
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.
____________
85 Nev. 406, 406 (1969) State v. McRoy
THE STATE OF NEVADA, Appellant, v. FREDDIE
GENE McROY and OLIVER EMMETT LEE, Respondents.
No. 5766
June 20, 1969 455 P.2d 918
Appeal from a judgment that respondents were denied a speedy trial. Eighth Judicial
District Court; Alvin N. Wartman, Judge.
Proceeding on petition for writ of habeas corpus. The Supreme Court, Zenoff, J., held that
where defendants were arrested on August 29, they were arraigned on September 5 but
complaint was dismissed on September 11 because they had been wrongfully charged, on
September 10 they were charged with possession of narcotics and complaint was dismissed
because of illegal search and seizure, a third complaint filed on September 10 was dismissed
on September 17, and on September 13 complaint was filed charging them with receiving
stolen property and preliminary examination set for September 25, the time within which a
hearing must have been afforded began to run on September 13, and hence defendants
were afforded preliminary hearing within 15 days as required by statute.
85 Nev. 406, 407 (1969) State v. McRoy
September 25, the time within which a hearing must have been afforded began to run on
September 13, and hence defendants were afforded preliminary hearing within 15 days as
required by statute.
Reversed.
M. Spizzirri, Deputy District Attorney, Clark County, for Appellant.
James D. Santini, Public Defender, Clark County, for Respondents.
Criminal Law.
Where defendants were arrested on August 29, they were arraigned on September 5 but complaint was
dismissed on September 11 because they had been wrongfully charged, on September 10 they were charged
with possession of narcotics and complaint was dismissed because of illegal search and seizure, a third
complaint filed on September 10 was dismissed on September 17, and on September 13 complaint was
filed charging them with receiving stolen property and preliminary examination set for September 25, the
time within which a hearing must have been afforded began to run on September 13, and hence defendants
were afforded preliminary hearing within 15 days as required by statute. NRS 171.196, subd. 2.
OPINION
On August 29, 1968 Freddie Gene McRoy and Oliver Emmett Lee were arrested for the
crimes of burglary and possession of narcotics. Thereafter several different charges were filed
and later dismissed. They eventually petitioned for a writ of habeas corpus on the contention
that they were not afforded a preliminary hearing within 15 days as required by NRS
171.196(2). On that ground the district court granted the petition from which the state
appeals.
After their arrest on August 29th the two were arraigned on September 5th but the
complaint was dismissed on September 11th because they had been wrongfully charged.
Again, on September 10th they were charged this time with possession of narcotics, but that
complaint was dismissed because of an illegal search and seizure. A third complaint was filed
September 10th and on September 17th that was dismissed without any explanation.
Meanwhile, on September 13th a complaint was filed charging them with receiving stolen
property and a preliminary examination set for September 25th.
85 Nev. 406, 408 (1969) State v. McRoy
filed charging them with receiving stolen property and a preliminary examination set for
September 25th. McRoy and Lee allege that the events commenced with their arrest of
August 29th while the state relies on the September 13th date as the beginning of the 15 days
within which the preliminary examination may be held.
We do not view the facts in this case as analogous to those of Oberle v. Fogliani, 82 Nev.
428, 420 P.2d 251 (1966), where the dismissal was an intentional tactic on the part of
prosecutor in order that he could obtain a delay that he had once been refused. Such a motive
is a callous disregard of a defendant's rights. Oberle v. Fogliani, supra. Remedies were
available to the defendants if their incarceration was unduly long for any reason. Absent
unconscionable conduct the delay in proceedings here was understandable and not prejudicial
to their rights. State v. Rollings, 58 Nev. 58, 68 P.2d 907 (1937).
Since it is clear that the time within which the hearing must have been afforded began to
run on September 13th and since the delay was neither purposeful nor oppressive, we reverse
and remand the respondents to custody.
Collins, C. J., Batjer, Mowbray, and Thompson, JJ.,
____________
85 Nev. 408, 408 (1969) Hampton v. Wartman
DONALD LEE HAMPTON, Petitioner, v. THE HONORABLE ALVIN N. WARTMAN,
Judge of the Eighth Judicial District Court of the State of Nevada, Respondent.
No. 5896
June 20, 1969 455 P.2d 921
Original proceedings in petition for writ of certiorari, or in the alternative, petition for writ
of prohibition.
Petition for writ of certiorari or prohibition by deputy probation officer who had been
demoted from assistant superintendent of detention. The Supreme Court, Zenoff, J., held that
petitioner's request that juvenile judge disqualify himself was improper, and juvenile judge
having stood ready to hear petitioner between date of notification of demotion and date
demotion was effective, petitioner was not denied opportunity for hearing prior to
demotion.
demotion was effective, petitioner was not denied opportunity for hearing prior to demotion.
Petition denied.
Thompson, J., and Collins, C. J., dissented.
Singleton, DeLanoy, Jemison & Reid, of Las Vegas for Petitioner.
Ross, Snyder, Goodman & Bryan, Ltd., of Las Vegas, for Respondent.
Courts.
Request of petitioner that juvenile judge disqualify himself from hearing on petitioner's demotion from
assistant superintendent of detention to deputy probation officer was improper, and juvenile judge having
stood ready to hear petitioner between date of notification of demotion and date demotion was effective,
petitioner was not denied opportunity for hearing. NRS 62.100, 62.100, subd. 2(f), 62.110, subd. 1.
OPINION
Petitioner was notified on November 22, 1968 that he was demoted from Assistant
Superintendent of Detention at the Clark County Detention Home to Deputy Probation
Officer. The demotion was effective as of December 1, 1968 and was approved by the
juvenile judge.
Petitioner inappropriately sought a hearing before county officials. Upon realizing that this
avenue of recourse was improper, petitioner, on January 17, 1969, requested a hearing before
a judge other than the juvenile judge. The juvenile judge refused to disqualify himself.
Thereupon followed this application for a writ of certiorari or prohibition.
Petitioner contends that he was not afforded an opportunity for a hearing prior to the
demotion as required by NRS 62.110(1).
1
We disagree.
____________________

1
62.110 APPOINTMENT OF PROBATION OFFICERS AND EMPLOYEES; COMPENSATION.
1. . . .
Probation officers and employees may be . . . reduced in position only after having been . . . afforded an
opportunity to be heard before the judge in answer thereto.
The only relevant consideration is the applicability of legislative provisions. NRS
62.100(2)(f)
2
gave the juvenile judge the power to hire and fire the petitioner. He used it.
NRS 62.110(1) requires the juvenile judge to afford an opportunity for a hearing before
demotion takes place. He did. The judge stood ready to hear petitioner between November 22,
1968 and December 1, 1968 before the demotion became effective; but petitioner did not
request a hearing; therefore any absence of redress was occasioned by the petitioner who did
not avail himself of the offered opportunity for a hearing.
Petitioner's January 17, 1969 request that the juvenile judge disqualify himself was
improper. NRS 62.110(1) expressly states that the hearing will be before the juvenile judge.
Even at that late date the judge stood ready to afford a hearing but petitioner refused it.
The request for a writ of certiorari or prohibition is denied.
Batjer and Mowbray, JJ., concur.
Thompson, J., with whom Collins, C. J., concurs, dissenting.
We are not here dealing with a case where the appointing power may hire and fire at his
pleasure. Our statutes contemplate a showing of good cause and a hearing before an impartial
judge before a probation officer may be removed, discharged or reduced in rank. The
procedure followed to demote the petitioner violated relevant statutory provisions.
NRS 62.100(g) provides that the probation committee may, upon the majority vote of its
members, recommend the removal or discharge of any probation officer. NRS 62.110, in
relevant part declares that a probation officer may be . . . reduced in position only after
having been given the reasons therefor in writing and being afforded an opportunity to be
heard before the judge in answer thereto.
In the matter before us the probation committee recommended Hampton's demotion
effective December 1, 1968, without giving any reasons therefor, and the judge approved that
recommendation before Hampton was even notified of it! This is not consonant with statute
nor in harmony with one's sense of fundamental fairness. The probation committee must give
its reasons for recommending demotion
____________________

2
62.100 PROBATION COMMITTEE; APPOINTMENT; TERM OF OFFICE, REMOVAL; DUTIES.
1. . . .
(f) . . . Any employees are subject to discharge by the judge or judges.
give its reasons for recommending demotion. It did not do so. This requirement is
meaningful. Its purpose is to notify the probation officer of the committee's grievances and to
accord him the opportunity to respond to specific charges. He cannot be expected to respond
to charges when none have been made. The probation officer is then to be given the
opportunity to answer before a judge who has not already participated in the committee's
action and approved it in advance.
The majority is satisfied with the procedure employed in this case and finds that the
probation committee and the judge acted within the law. The opinion, however, fails to
mention NRS 62.100(g) concerning the recommendation of the probation committee, and
which does not call for the approval or disapproval of the judge of that recommendation
before a hearing is held. The opinion fails to note that NRS 62.110 commands the probation
committee to give reasons for its recommendation. The opinion fails to state that such reasons
were not given. The opinion refuses to acknowledge that Hampton was not notified of the
basis for recommended disciplinary action and could not, therefore, be expected to prepare a
response or answer. Finally, the opinion states that Hampton was offered a hearing but
refused it, when in fact he sought a hearing before a judge who had not prejudged the matter
by approving the committee's recommendation in advance. These facts may not be swept
under the carpet and ignored. They exist and constitute the heart of this controversy.
A writ should issue.
Respectfully, we dissent.
____________
85 Nev. 411, 411 (1969) Jones v. State
ROY CRAIG JONES, Jr., Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 5684
June 30, 1969 456 P.2d 429
Appeal from the Eighth Judicial District Court, Clark County; Alvin N. Wartman, Judge.
Defendant was convicted in the lower court of infamous crime against nature and has
appealed. The Supreme Court, Collins, C. J., held that amendment to infamous crime statute
did not vitiate previous holding by court that statute was not unconstitutionally vague and
indefinite, and that infamous crime statute was not unconstitutional as to defendant
allegedly committing crime against 12-year-old victim because it might be
unconstitutional in part to consenting spouses or adults.
85 Nev. 411, 412 (1969) Jones v. State
unconstitutionally vague and indefinite, and that infamous crime statute was not
unconstitutional as to defendant allegedly committing crime against 12-year-old victim
because it might be unconstitutional in part to consenting spouses or adults.
Affirmed.
James D. Santini, Public Defender, and H. Leon Simon, Deputy Public Defender, Clark
1. Criminal Law.
Amendment to infamous crime against nature statute did not vitiate previous holding by court that such
statute was not unconstitutionally vague and indefinite. NRS 201.190.
Court will not decide constitutionality of statute based upon a supposed or hypothetical case which might
arise thereunder.
3. Statutes.
Fact that infamous crime against nature statute might be unconstitutional in part as to consenting spouses
or adults did not render it unconstitutional to defendant charged with committing crime by force against
12-year-old victim. NRS 201.190.
4. Statutes.
Where law passed by legislature is constitutional in part but unconstitutional as to some of its provisions,
part which is constitutional will be sustained unless whole scope and object of law is defeated by rejecting
the objectionable features. NRS 201.190.
OPINION
This is an appeal from conviction of the infamous crime against nature contending that the
statute upon which the charge was brought is unconstitutional. We disagree, and affirm the
conviction.
Appellant was convicted of the infamous crime against nature against a 12 year old victim.
Evidence showed he forced the victim to accept appellant's penis into his mouth. Appellant
was sentenced to not less than 15 years in the Penitentiary.
Appellant contends NRS 201.190 is unconstitutional under the doctrine of Griswold v.
Connecticut, 381 U.S. 479 (1965) because it contains no exception for consensual relations
between spouses or other consenting adults and thus constitutes an invasion of privacy.
85 Nev. 411, 413 (1969) Jones v. State
between spouses or other consenting adults and thus constitutes an invasion of privacy.
Respondent contends appellant has no standing to attack the constitutionality of the statute
because he is neither a consenting spouse nor one of two consenting adults.
The issue for our decision is this: Is NRS 201.190 unconstitutional as applied to appellant?
NRS 201.190, as amended in 1967, provides as follows:
201.190 CRIME AGAINST NATURE: PUNISHMENT; LIMITATIONS ON PAROLE,
PROBATION.
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.
(b) Otherwise, by imprisonment in the state prison for not less than 1 year nor more than
6 years.
2. No person who is compelled by another, through physical force or the immediate
threat of such force, to participate in the infamous crime against nature is thereby guilty of
any public offense.
3. No person convicted of violating the provisions of subsection 1 of this section may, if
the victim was a child under the age of 14 years, be:
(a) Paroled unless a board consisting of the superintendent of the Nevada state hospital,
the warden of the Nevada state prison and a physician authorized to practice medicine in
Nevada who is also a qualified psychiatrist certifies that such person was under observation
while confined in the state prison and is not a menace to the health, safety or morals of others.
(b) Released on probation unless a psychiatrist licensed to practice medicine in the State
of Nevada certifies that such person is not a menace to the health, safety and morals of
others.
[Headnote 1]
The constitutionality of that statute, prior to its amendment in 1967, was recently upheld
by this court against a challenge that it was unconstitutionally vague and indefinite in Hogan
v. State, S4 Nev. 372
85 Nev. 411, 414 (1969) Jones v. State
State, 84 Nev. 372, 441 P.2d 620 (1968). Nothing in the 1967 amendment to that statute
vitiates our holding in Hogan.
In Griswold, supra, the United States Supreme Court considered a Connecticut statute
making it a crime for any person to use any drug or article to prevent conception. The
defendants were the Executive Director of the Planned Parenthood League of Connecticut,
and its medical director, a licensed physician, and they were prosecuted as accessories for
giving married persons information and medical advice on how to prevent conception and
prescribing a contraceptive device for the wife's use. The court held that the marital
relationship was . . . within the zone of privacy created by several fundamental constitutional
guarantees and that the idea of allowing . . . the police to search the sacred precincts of
marital bedrooms for telltale signs of the use of contraceptives was repulsive to the notions
of privacy surrounding the marriage relationship.
Nothing in that decision aids appellant. Whether NRS 201.190 could constitutionally be
applied to consenting spouses (see Cotner v. Henry, 394 F.2d 873 (7th Cir. 1968)),
consenting unmarried adult couples, or consenting male adults (see People v. Roberts, 64
Cal.Rptr. 70 (Ct.App. 1967)), are not questions confronting us in this appeal.
[Headnote 2]
There can be no serious contention made by appellant that he enjoyed any similar
relationship of privacy to those described above with his 12 year old victim. He falls squarely
within the prohibition of NRS 201.190. We will not decide the constitutionality of a statute
based upon a supposed or hypothetical case which might arise thereunder. Magee v.
Whitacre, 60 Nev. 202, 208, 106 P.2d 751 (1940). In Pershing County v. Humboldt County,
43 Nev. 78, 181 P. 960 (1919), this court stated: The rule is well established that one who is
not prejudiced by the enforcement of an act of the legislature cannot question its
constitutionality or obtain a decision as to its invalidity, on the ground that it impairs the
rights of others.
[Headnotes 3, 4]
Assuming, but certainly not conceding or deciding that the statute might be
unconstitutional in part to consenting spouses or adults, that does not render it
unconstitutional to appellant. Long ago this court held, in State v. Westerfield, 23 Nev. 468,
49 P. 119 (1897), that, Where, therefore, a part of a statute is unconstitutional, that fact does
not authorize the courts to declare the remainder void also, unless all the provisions are
connected in subject-matter, depending on each other, operating together for the same
purpose, or otherwise so connected together in meaning, that it cannot be presumed the
legislature would have passed the one without the other.
85 Nev. 411, 415 (1969) Jones v. State
connected in subject-matter, depending on each other, operating together for the same
purpose, or otherwise so connected together in meaning, that it cannot be presumed the
legislature would have passed the one without the other. The constitutional and
unconstitutional provisions may even be contained in the same section, and yet be perfectly
distinct and separable, so that the first may stand, though the last may fall. . . . If the law be
passed by the legislature, constitutional in part, but unconstitutional as to some of its
provisions, that which is constitutional will be sustained, unless the whole scope and object
of the law is defeated by rejecting the objectionable features.
The statute as applied to appellant is constitutional. The conviction is affirmed.
____________
85 Nev. 415, 415 (1969) Anderson v. State
WALLACE G. ANDERSON, Appellant, v. THE STATE
No. 5767
June 30, 1969 456 P.2d 445
Appeal from the Second Judicial District Court, Washoe County; John W. Barrett, Judge.
Defendant was convicted in the trial court of felony drunk driving and he appealed. The
Supreme Court, Collins, C. J., held that failure of prosecution to allege in information and to
prove at trial what act forbidden by law defendant committed in addition to driving vehicle on
public highway while under influence of intoxicating liquor required reversal of conviction.
Reversed and remanded for new trial.
Fry and Fry, of Reno, for Appellant.
1. Criminal Law.
Failure of prosecution to allege in information and to prove at trial what act forbidden by law defendant
committed in addition to driving vehicle on public highway while under influence of intoxicating liquor
required reversal of conviction of felony drunk driving. NRS 484.040.
2. Witnesses.
Examination of defendant, in prosecution for felony drunk driving, concerning prior misdemeanor
convictions was not proper. NRS 43.020.
3. Criminal Law.
Medical doctor was properly allowed to testify in felony drunk driving prosecution as to result of
defendant's blood analysis without calling toxicologist who actually performed the test under doctor's
control and supervision.
OPINION
Appellant was convicted of felony drunk driving and sentenced to two years imprisonment
in the penitentiary. Respondent confesses error on the principal issue of the appeal. We
reverse the conviction and remand for a new trial.
Appellant, after having consumed some intoxicating beverages, was driving south on
South Virginia Street in Reno. He ran into the rear end of a stopped vehicle attempting to
make a left-hand or U-turn. The driver of that vehicle was injured.
Appellant testified he was driving in a proper lane within the speed limit when the other
vehicle suddenly changed lanes in front of him and stopped without warning.
The injured driver said she had been stopped at least 30 seconds at a break in the divider
island and had given a proper signal for a left-hand turn when she was struck from behind by
appellant.
Following the accident, in which appellant was also injured, he was taken to a hospital
where a blood sample was taken. The blood was analyzed by a toxicologist under the
supervision of a medical doctor. Only the doctor was called as a witness to testify to the
results of the analysis.
On March 12, 1968, appellant was charged by information with felony drunk driving, a
violation of NRS 484.040. He was convicted and sentenced, and thereafter filed this appeal.
The issues are these:
I. Did the prosecution fail to establish all of the elements of felony drunk driving as
required by NRS 484.040?
II. Was it error for the prosecution to question appellant on whether at the time of the
accident his driver's license was suspended or revoked?
III. Did the trial court commit reversible error in admitting the results of the blood test
into evidence? 1.
1. NRS 484.040 reads as follows: PERSON DRIVING UNDER INFLUENCE OF
INTOXICATING LIQUOR GUILTY OF FELONY. Any person while intoxicated or under
the influence of intoxicating liquor who drives or operates a vehicle of any kind, and who, by
reason of such intoxication or condition, does any act or neglects any duty now or hereafter
imposed by law, which act or neglect of duty causes the death of, or bodily injury to, any
person, shall be punished as for a felony.
There have been no cases construing that statute in Nevada. California has a substantially
similar statute which was construed in People v. Clark, 20 Cal.Rptr. 803 (Ct.App. 1962),
which held the essential elements of drunk driving to be as follows: In order to prove felony
drunk driving, the People had the burden of establishing beyond all reasonable doubt the
following elements of the offense: (1) that the defendant drove a vehicle on the public
highway; (2) that he was then and there under the influence of intoxicating liquor; (3) that he
did some act forbidden by law or neglected a duty imposed by law in the driving of such
vehicle; and (4) that such act or neglect proximately caused bodily injury to a person other
than himself. (Emphasis added.) This holding was quoted with approval in People v.
Thurston, 28 Cal.Rptr. 254 (Ct.App. 1963).
In People v. Clenney, 331 P.2d 696 (Cal.App. 1958), the court held that the indictment (or
information, as the case may be) must state the act or duty imposed by law that defendant
allegedly violated while driving under the influence of intoxicating liquor.
[Headnote 1]
The information failed to allege, and the proof at trial failed to show, what act forbidden
by law appellant committed in addition to driving a vehicle on a public highway while under
the influence of intoxicating liquor. Respondent concedes both are proper requirements to
sustain a conviction and confesses they were absent in the charge against and trial of
appellant.
[Headnote 2]
2. During cross-examination, appellant was asked about prior misdemeanor convictions
apparently for impeachment purposes. The court sustained objections to both questions. The
ruling was proper. NRS 48.020; Plunkett v. State, 84 Nev. 145, 437 P.2d 92 (1968); Fairman
v. State, 83 Nev. 287, 429 P.2d 63 (1967).
[Headnote 3]
3. Appellant contends it was error to allow the medical doctor to testify as to the result of
his blood analysis without calling the toxicologist who actually performed the test under the
doctor's control and supervision. He contends there is no proof of a proper chain of custody
nor of the qualifications of the individual conducting the specific test. We disagree. See State
v. Salter, 162 N.W.2d 427 (Iowa 1968); State v. Sweat, 433 P.2d 229 (N.M.App. 1967); State
v. Bailey, 339 P.2d 45 (Kan. 1959); Bryan v. State, 252 S.W.2d 184 (Tex.Cr. App. 1952).
Because there is conflicting evidence in the record from appellant and the other injured
driver as to the circumstances of the collision of their automobiles and what other act
forbidden by law or neglect of duty imposed by law may have been committed by appellant,
we reverse the conviction and remand the cause for a new trial.
____________
HOSIE OLIVER, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 5686
July 1, 1969 456 P.2d 431
Appeal from the Eighth Judicial District Court, Clark County; John F. Mendoza, Judge.
Prosecution for possession of narcotics. The trial court rendered judgment, and defendant
appealed. The Supreme Court, Collins, C. J., held that defendant was not entitled to new trial
on basis of testimony by witness, who had pleaded guilty to same offense but had not yet
been sentenced, that witness, for fear of jeopardizing his probation possibilities, had not
testified but would have testified that he had obtained heroin from third person, where third
person testified on motion that he had not given heroin to witness, since it was not shown that
evidence could not have been discovered with reasonable diligence and different result was
not probable.
Affirmed.
James D. Santini, Public Defender, Anthony M. Earl, and H. Leon Simon, Deputy Public
Defenders, Clark County, for Appellant.
1. Jury.
Voir dire examination of prospective jurors is intended to determine whether jurors can and will, in
accordance with oath, render defendant and state fair and impartial trial on facts allowed to be presented
and thereafter, in arriving at verdict, apply to facts as found law given them by court, accepting instructions
as law to be applied, whether they agree with them or not.
2. Jury.
Refusing to allow argument, discussion, or comment by defense counsel during voir dire examination of
prospective jurors concerning jury instructions which court would give was not error. NRS 6.010,
6.020, 175.031, 175.036, 175.121, 175.161.
3. Jury.
Court, in exercise of sound discretion, should allow considerable latitude to counsel in determining
disqualification or fairness of juror, but should preclude counsel from interrogating on issues of law.
4. Criminal Law.
To justify new trial, newly discovered evidence must be (1) newly discovered, (2) material to defense, (3)
such that it could not with reasonable diligence have been discovered and produced for trial, (4) not
cumulative, (5) such as to render different result probable on retrial, and (6) not an attempt only to
contradict former witness or impeach or discredit him, unless witness impeached is so important that
different result must follow. NRS 176.515.
5. Criminal Law.
Defendant in narcotics possession prosecution was not entitled to new trial on basis of testimony by
witness, who had pleaded guilty to same offense but had not yet been sentenced, that witness, for fear of
jeopardizing his probation possibilities, had not testified but would have testified that he had obtained
heroin from third person, where third person testified on motion that he had not given heroin to witness,
since it was not shown that evidence could not have been discovered with reasonable diligence and
different result was not probable. NRS 176.515.
6. Criminal Law.
Defendant was not entitled to new trial in narcotics prosecution on ground that witness, who had pleaded
guilty to same offense but had not yet been sentenced, had been unwilling to give exonerating testimony for
fear of jeopardizing probation possibilities and had instead claimed privilege, where defendant did not
make effort to test correctness of witness's assertion of privilege.
did not make effort to test correctness of witness's assertion of privilege.
7. Witnesses.
Witness who had pleaded guilty to offense could not claim privilege and could have been forced to testify
in another's prosecution, although he had not yet been sentenced.
OPINION
This appeal is from a conviction for possession of narcotics and denial of a motion for new
trial. We affirm both the conviction and the order.
On May 21, 1966, at approximately 11:30 p.m., appellant, Hosie Oliver, and Johnny
Benson were observed by Officers Patrick Stevens and Walter Allen standing at an
intersection in Las Vegas, Nevada. Officer Stevens observed appellant give what he described
as a brown piece of paper to Johnny Benson. This observation was made from a moving
patrol car at a distance of 25 to 35 feet. He told Officer Allen to make a fast U-turn. A pass
has been made. As the officers turned their patrol car around, Mr. Benson turned and walked
hurriedly in a direction away from them.
Officer Stevens continued watching Mr. Benson's right hand, the hand in which he had
received the piece of paper, until they had made the U-turn and approached him. The piece of
paper remained clutched in his right hand until the patrol car pulled alongside of Mr. Benson,
at which time Mr. Benson discarded the paper. The officers retrieved the paper, which
contained a gelatin capsule containing a white powdery substance which was identified at
trial as being heroin. Mr. Benson was placed under arrest.
Approximately 30 minutes later, the officers observed appellant approaching the vicinity
of Mr. Benson's arrest, and appellant was arrested and searched.
Appellant testified at the trial that he was the person the officers observed standing with
Mr. Benson at the intersection. He claims that Mr. Benson asked him for a dime to make a
phone call and that it was a dime that the officers observed him give to Mr. Benson.
A criminal complaint was filed against Benson and appellant on May 21, 1966. A
preliminary hearing was held against appellant only on March 4, 1968, and appellant was
bound over for trial, which began March 25, 1968.
During the voir dire examination of the trial jurors, appellant's counsel examined the first
prospective juror on issues of law. The trial court refused to allow further examination of
prospective jurors on those issues and informed both counsel he would not allow them to go
into anything touching upon the jury instructions. Appellant's counsel then attempted to make
an offer of proof along that line for the record but was precluded from doing so by the court.
In voir dire examination of the jurors by the trial judge, they were asked collectively about
their ability to apply the presumption of innocence until guilt was shown beyond a reasonable
doubt. There were no disqualifying responses or challenges made on that ground.
The trial judge, after completing a basic type of voir dire examination, allowed counsel
free hand, except for the above-stated limitation, in examining prospective jurors as to their
disqualification or for any cause or favor which would prevent them acting fairly. A verdict of
guilty was returned on March 26.
On April 19, 1968, appellant filed a motion for a new trial based upon newly-discovered
evidence.
The affidavits in support of appellant's motion for new trial disclose the following: After
Benson and appellant had been arrested, Benson entered a plea of guilty to possession of
narcotics on March 13, 1968. Sentencing was set for April 10, 1968. On March 21 or 22, Mr.
Earl of the public defender's office, who represented appellant, talked with Benson with the
permission of Benson's attorney, and at that time Benson informed Mr. Earl that he would
take the stand in appellant's trial and testify that appellant did not give him any heroin but
rather only gave him a dime. A subpoena was issued and served upon the Las Vegas City Jail,
where Benson was in custody. Benson was brought to court on the day of the trial, and at that
time informed Mr. Earl that on advice of counsel he would invoke his privilege against
self-incrimination if put on the stand. Mr. Earl decided not to put Benson on the stand.
Benson states in his affidavit that he feared that testifying for appellant would be detrimental
to his chances of probation on the offense to which he had recently pleaded guilty. On April
11, 1968, Benson was sentenced to two to five years imprisonment. Thereafter, he was
willing to testify for appellant, and appellant claims that this evidence was grounds for new
trial.
The court held a hearing on appellant's motion for new trial. At that hearing, Benson
testified that on the night in question he approached appellant and asked him for a dime.
Appellant gave him a dime and nothing more.
gave him a dime and nothing more. Benson testified he received the heroin from one John
Baxter about an hour before he met appellant and carried it in his hand that entire hour. When
appellant gave him the dime, he put that dime in his pocket.
The state put Johnnie Baxter on the stand. He testified that he knew Benson but that he did
not, on May 21, 1966, or at any other time, give Benson a capsule of heroin.
Officer Stevens testified that when he arrested Benson he shook him down to determine
if he had any other narcotics in his possession and that he found no dime or any other money
at all in Benson's possession at that time.
The booking slip on Johnny Benson was placed into evidence and the chief jailer of the
Las Vegas Police department testified that if Benson had a dime at the time of his arrest it
would be indicated on the booking slip. The booking slip indicated that he had no money in
his possession at the time of booking.
After hearing the above testimony, the trial judge determined that a new trial should not be
granted.
The issues for our decision are these:
I. Did the trial court err in refusing to allow argument, discussion, or comment by counsel
during voir dire examination of prospective jurors concerning the jury instructions which the
court would give?
II. Did the trial court err in denying appellant's trial based upon newly discovered
evidence?
1. Was curtailment of appellant's voir dire examination of prospective jurors by refusing
to allow him opportunity to interrogate on issues of law error? We think not.
[Headnote 1]
Voir dire examination of prospective jurors has for its purpose a determination whether, if
selected as trial jurors, they can and will, in accordance with their oath, render to the
defendant and the state a fair and impartial trial on the facts allowed to be presented to them
by the court by way of testimony and evidence, and thereafter, in arriving at a verdict, apply
to the facts as they find them the law given to them by the court in the instructions, accepting
those instructions as the law to be applied, whether they agree with them or not.
The court may permit the defendant or his attorney and the district attorney to examine the
prospective jurors, or he may do it himself. NRS 175.031. Our law permits a challenge to
prospective jurors for any cause or favor which would prevent him from adjudging the facts
fairly.
prevent him from adjudging the facts fairly. NRS 175.036. Each party is also given the right
to challenge a certain number of jurors peremptorily or without assigning any reason. NRS
175.051. The qualification and exemption from jury duty is also fixed by statute. NRS 6.010
and 6.020. A juror is precluded from revealing to his fellow jurors any fact relating to the case
of his own knowledge, and if he has such knowledge must disclose such information to the
judge out of the presence of the other jurors. NRS 175.121. The judge, upon the close of
argument, may state the testimony and declare the law to the jurors, but he may not charge
with respect to fact. The instructions must be in writing and may be given before or after
argument of counsel. NRS 175. 161.
This summary of statutory law fairly well states the procedure allowed in selecting and
qualifying jurors, determining their fairness to serve, and instructions to them on law.
Nowhere is it indicated that examination of prospective jurors on issues of law has anything
to do with their ability to serve fairly. The limited inquiry that can or should be permitted to
be made of them regarding the law is that, if selected, they will accept and apply the law
given to them by the court in the instructions to the facts as they find them, and in doing so
apply that law whether they otherwise disagree with it or even if it may be different from
what they think the law is or ought to be. Indeed, counsel for appellant has not cited any
authority requiring that he be allowed to interrogate on law, nor do we know of any such
authority.
[Headnote 2]
Except for stock instructions given in every criminal case, the facts determine what the
instructions on law will be. Counsel should not be permitted to interrogate on issues of law
which ultimately may not materialize because the proper facts have not been adduced in the
evidence. He may find he has interrogated on issues that are not present at all in the trial.
Moreover, the proper place in the trial to discuss the legal issues is during closing argument
to the jury where counsel can again remind them of their sworn oath to follow the court's
instructions on the law. At that point counsel has wide latitude and discretion in relating all
instructions, stock and otherwise, to facts brought out in evidence.
[Headnote 3]
The trial court not only may, but should, preclude counsel from interrogating on issues of
law. See Stone v. United States, 324 F.2d S04 {5th Cir.
324 F.2d 804 (5th Cir. 1963); Harrell v. Commonwealth, 328 S.W.2d 531 (Ky.App. 1959).
The court should, in exercise of its sound discretion, allow considerable latitude to counsel in
determining the disqualification or fairness of a juror in a challenge for disqualification, cause
or favor, or to make an intelligent peremptory challenge. State v. McKeehan, 430 P.2d 886
(Idaho 1967); State v. Jordan, 320 P.2d 446 (Ariz. 1958), cert. denied 357 U.S. 922 (1958);
State v. Tharp, 256 P.2d 482 (Wash. 1953); Kephart v. State, 229 P.2d 224 (Okla.App. 1951).
However, the scope of that examination is within the sound discretion of the court. State v.
McKeehan, supra; State v. Tharp, supra.
[Headnote 4]
2. Consideration by the trial court in granting or denying a new trial has been clearly set
down in several recent cases. Pacheco v. State, 81 Nev. 639, 408 P.2d 715 (1965); Burton v.
State, 84 Nev. 191, 437 P.2d 861 (1968); State v. Crockett, 84 Nev. 516, 444 P.2d 896
(1968). The statute governing the granting of new trials was amended by the 1967 legislature
and appears as NRS 176.515. Appellant contends, and we agree, that in seeking a new trial
the newly-discovered evidence must be (1) newly discovered, (2) material to movant's
defense, (3) such that it could not with reasonable diligence have been discovered and
produced for the trial, (4) not cumulative, and (5) such as to render a different result probable
upon retrial. To which we add (6) that it does not attempt only to contradict a former witness
or to impeach or discredit him, unless witness impeached is so important that a different
result must follow, Whise v. Whise, 36 Nev. 16, 131 P. 967 (1913); and (7) that these facts be
shown by the best evidence the case admits, People v. Sutton, 15 P. 86 (Cal. 1887); People v.
Beard, 294 P.2d 29 (Cal. 1956).
[Headnote 5]
The evidence offered by appellant in behalf of his motion to gain a new trial fails to meet
those requirements in several respects. The only new evidence offered is that Benson received
the heroin an hour earlier from Johnnie Baxter. Baxter, in sworn testimony at the hearing on
the motion, denied such action on his part. There is no showing that this evidence could not
with reasonable diligence have been discovered and produced at the trial. Further, there was
ample support for the trial court's finding in denying the motion that a different result was not
probable on retrial.
[Headnotes 6, 7]
Appellant also contends the testimony from Benson could not be effectively produced
at the trial because of Benson's claim of incrimination and refusal to testify at appellant's trial
upon the advice of counsel. Appellant capitulated to that claimed privilege of Benson without
really making an effort to test the legal correctness of Benson's refusal to testify in court.
Benson had already pleaded guilty to the same offense when he claimed the privilege,
although he had not yet been sentenced. He contended his testimony on appellant's behalf
would tend to incriminate him in his application for probation. At that point, Benson could
have claimed no privilege and could have been forced to testify. Knox v. State, 198 A.2d 285
(Md. 1964); Commonwealth v. Tracey, 8 A.2d 622 (Pa. 1939); Namet v. United States, 373
U.S. 179 (1963); and see Anno. 9, A.L.R.3rd 990.
This case points up the caution we urged in Burton v. State, supra, in considering motions
for new trials where a co-defendant or accomplice, after his own conviction attempts to
exculpate another by accepting the responsibility for a common criminal act. Nor do we feel
the rule in State v. Crockett, supra, applies in this case. In Crockett a newly-discovered
witness implicated himself in a crime for which he had not yet been suspected. Here, Benson
was known to appellant and his counsel as a possible witness shortly after his own arrest.
The conviction and denial of a new trial are both affirmed.
____________
85 Nev. 425, 425 (1969) Williams v. Municipal Judge
NED WILLIAMS, Appellant, v. MUNICIPAL JUDGE OF
THE CITY OF LAS VEGAS, NEVADA, Respondent.
No. 5731
July 8, 1969 456 P.2d 440
Appeal from denial of writ of habeas corpus. Eighth Judicial District Court, Clark County;
Howard W. Babcock, Judge.
The lower court denied the application for the writ and the defendant appealed. The
Supreme Court, Mowbray, J., held that where first complaint for violation of ordinance was
fatally defective in that officer who signed complaint did so in presence of notary public
rather than before magistrate, municipal court did not acquire jurisdiction over defendant
and conviction was void and was not bar to second prosecution for the ordinance
violation.
in presence of notary public rather than before magistrate, municipal court did not acquire
jurisdiction over defendant and conviction was void and was not bar to second prosecution
for the ordinance violation.
Affirmed.
Harvey Dickerson, Attorney General; Sidney R. Whitmore, City Attorney, and Heber P.
Hardy, Deputy City Attorney, City of Las Vegas, for Respondent.
City which possessed charter had power to enact ordinances and provide penalties for their violation.
It is proper for city to prosecute violations of its ordinances in the city's name rather than in name of the
state.
Where first complaint for violation of ordinance was fatally defective in that officer who signed
complaint did so in presence of notary public rather than before magistrate, municipal court did not acquire
jurisdiction over defendant and conviction was void and was not bar to second prosecution for the
ordinance violation. NRS 171.102; NRS 174.085.
OPINION
Appellant, Ned Williams, was arrested in Las Vegas on the charge of carrying a dangerous
weapon in his automobile, which offense is a misdemeanor and a violation of Las Vegas,
Nev., Code 6-3-7 (1960). The police officer who signed the complaint against Williams did
so in the presence of a notary public rather than before a magistrate, as prescribed in NRS
171.102.
1
Williams entered a plea of guilty to the charge and was fined $500. He then
secured the services of an attorney and appealed to the district court, where he moved to
dismiss the complaint on the ground that it was fatally defective because it had not been made
under oath before a magistrate as required by NRS 171.102, supra. The district judge granted
Williams' motion and . . . ORDERED that the complaint on file herein be, and the same
hereby is, dismissed on the ground that appellant herein did not knowingly waive the
defect in said complaint resulting from the failure of the verification thereof to comply
with NRS 171.102.
____________________

1
Complaint defined. The complaint is a written statement of the essential facts constituting the public
offense charged. It shall be made upon oath before a magistrate.
that appellant herein did not knowingly waive the defect in said complaint resulting from the
failure of the verification thereof to comply with NRS 171.102.
IT IS FURTHER ORDERED that said dismissal be and the same is without prejudice to
the respondent to file a new complaint, properly verified, in the Municipal Court of the City
of Las Vegas.
The City of Las Vegas (City) promptly filed a new complaint, and Williams was again
arrested. His counsel then filed in the district court this application for habeas, on three
grounds: (1) City does not have the power to enact ordinances and provide penalties for their
violation; (2) the Constitution of the State of Nevada requires that the prosecution of the
complaint be brought in the name of the State and precludes City from maintaining the
action; and (3) the filing of the second complaint by City places Williams twice in jeopardy
and is in derogation of his constitutional rights as provided in the Constitutions of the United
States and the State of Nevada. The district judge denied the application for habeas and
ordered that Williams be held for trial, which rulings we affirm.
[Headnote 1]
1. City does have the power to enact ordinances and provide penalties for their violation.
The Las Vegas City Charter, ch. II, 31, 1, approved by the State Legislature, empowers
City's board of commissioners To make and pass all ordinances, resolutions, and orders, not
repugnant to the constitution or statutes of the United States or of the State of Nevada.
Paragraph 89 of the above section of the Charter provides that the board of commissioners
shall have the power:
To adopt and enforce by ordinance all such regulations in case no express provision is in
this act made, as the board of commissioners may from time to time deem expedient and
necessary for the promotion and protection of health, comfort, safety, life, welfare, and
property of the inhabitants of the said city, the preservation of peace and good order, the
promotion of public morals and the suppression and prevention of vice in the city, and to pass
and enact ordinances of any other subject of municipal control or to carry into force or effect
any further powers of the city, and to do and perform any, every, and all acts and things
necessary or required for the execution of the powers conferred or which may be necessary to
fully carry out the purpose or intent thereof.
Appellant argues that such power is restricted to the Legislature, for the reason that the
various municipalities so authorized to enact ordinances and provide for their penalties would
not do so with uniformity.
not do so with uniformity. We reject this contention as wholly untenable. City, by virtue of its
charter, has been given the power to pass and adopt ordinances for the purpose of promoting
and protecting the health, safety, and welfare of its citizens, and even, if necessary:
To declare by ordinance that any offense made a misdemeanor by the laws of the State of
Nevada shall also be deemed to be a misdemeanor in the city of Las Vegas whenever such
offense is committed within the boundaries of said city. Las Vegas, Nev., Charter, ch. II,
31, 77.
[Headnote 2]
2. It is constitutionally permissible for City to prosecute violations of its ordinances in
City's name rather than in the name of the State. The recent case of McGill v. Chief of Police,
85 Nev. 307, 454 P.2d 28 (1969), is dispositive of this issue. There we said, at 309:
3. Petitioner protests also that the claimed violation of the ordinance should have been
prosecuted in the name of the State of Nevada. She cites various provisions of the Nevada
Constitution but fails to place sufficient emphasis on Nev. Const. art. 8, 1, which allows
special charters, thus exempting city ordinances and such charters from the prohibitions
against the special laws of art. 4, 20, upon which appellant relies. The city charter of Las
Vegas provides in several places for prosecution in the name of the city.
Other courts have so ruled. In City of Seattle v. Chin Let, 52 P. 324, 325 (Wash. 1898), the
court said:
3. It is also urged by respondent that section 27, art. 4, of the constitution, requires all
prosecutions to be conducted in the name of the state of Washington, and therefore the
present action cannot properly be prosecuted in the name of the city of Seattle. We think the
prosecutions' referred to in section 27, supra, are prosecutions for the violation of the general
laws of the state, and that that section does not apply to prosecutions for the infraction of
town or city ordinances. City of Davenport v. Rice, 75 Iowa 74, 39 N.W. 191; City of St.
Louis v. Vert, 84 Mo. 206; City of Mankato v. Arnold, 36 Minn. 62, 30 N.W. 305.
And in City of Chicago v. Berg, 199 N.E.2d 49, 51 (Ill.App. 1964), the court ruled that
complaints for violations of city ordinances had to be prosecuted in the name of the city:
. . . it has long been held that the constitutional provision requiring prosecutions to be
brought in the name and by the authority of the people is applicable only to criminal offenses
in violation of the state laws; likewise it has long been held that actions to enforce
municipal ordinances must be brought in the corporate name of the municipality.
violation of the state laws; likewise it has long been held that actions to enforce municipal
ordinances must be brought in the corporate name of the municipality. Town of Lewiston v.
Proctor, 27 Ill. 414; City of Chicago v. Kenney, 35 Ill.App. 57; Town of Partridge v. Snyder,
78 Ill. 519.
[Headnote 3]
3. Double jeopardy has not attached by the filing of the second complaint against
Williams. Williams maintains that if he is tried by City under the pending complaint he will
have been twice placed in jeopardy, in derogation of his constitutional rights. We do not
agree. The first complaint was dismissed by the district judge without prejudice to City
because it was defective on its face. Such a dismissal is not an acquittal of the charge. NRS
174.085 provides, in part, as follows:
Proceedings not constituting former acquittal; effect of acquittal on merits; effect of
conviction, acquittal or jeopardy as bar; cause may be retried after discharge of jury;
exception.
1. If the defendant was formerly acquitted on the ground of variance between the
indictment, information or complaint and proof, or the indictment, information, or complaint
was dismissed upon an objection to its form or substance, or in order to hold the defendant
for a higher offense without a judgment of acquittal, it is not an acquittal of the same
offense. (Emphasis added.)
In In re Alexander, 80 Nev. 354, 357, 359, 393 P.2d 615, 616, 617 (1964), this court held:
This court, citing In re Waterman, 29 Nev. 288, 89 P. 291, 11 L.R.A., N.S., 424, held that
there can be no conviction for or punishment of a crime without a formal and sufficient
accusation; that, in the absence thereof, a court acquires no jurisdiction whatever, and if it
assumes jurisdiction such trial and conviction would be a nullity * * *.'
. . .
. . . . An acquittal or a conviction by a court having no jurisdiction is void; therefore, it is
not a bar to subsequent indictment and trial by a court which has jurisdiction over the offense.
United States v. Sabella, 2 Cir. 1959, 272 F.2d 206; United States v. Ball, 163 U.S. 662, 16
S.Ct. 1192, 41 L.Ed. 300 (1896); Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49
L.Ed. 114. See 16 Rutger's Law Review, 1961-62, 598.
Because the initial complaint was fatally defective, the municipal court never acquired
jurisdiction over Williams. Since the court was without jurisdiction, Williams' conviction
was void.
was void. Therefore, the prior conviction is not a bar to the present proceedings, and double
jeopardy has not attached.
Affirmed.
____________
85 Nev. 430, 430 (1969) Lindauer v. Allen
GEORGE C. LINDAUER, Appellant, v. PEGGY POOR
ALLEN and DONALD H. ALLEN, Respondents.
No. 5723
July 9, 1969 456 P.2d 851
Appeal from a judgment of the Second Judicial District Court, Washoe County, John W.
Barrett, Judge.
Appeal from an order of the lower court granting defendant's motion to dismiss complaint
for failure to prosecute. The Supreme Court, Batjer, J., held that where defendant's motion to
dismiss for lack of prosecution was filed more than five years after filing of complaint, trial
court had no discretion and order of dismissal was mandatory, and, although it might have
ruled otherwise, it was within trial court's discretion to dismiss complaint with prejudice.
Affirmed.
Fry and Fry, of Reno, for Appellant.
Richard P. Wait and George Swainston, of Reno, for Respondents.
Supreme Court, on appeal, can only consider record as it was made and considered by court below.
Where stipulation between parties as to extension of time was not part of record on appeal from judgment
dismissing action for failure to prosecute, Supreme Court was required to assume that trial court was
correct in ruling that stipulation did nothing more than provide for taking of defendants' depositions at a
time convenient to all concerned and was not effective in extending time period for prosecuting action,
even though counsel had set out stipulation in their briefs on appeal.
Facts in briefs of counsel will not supply a deficiency in record on appeal.
In deciding cases, an appellate court must confine its consideration to facts reflected in record and the
necessary and reasonable inferences that may be drawn therefrom; statements made by counsel in their
briefs, alleging facts or their arguments made in open court portraying what might have occurred, will not
be considered on appeal.
Legislature may, by statute, sanction exercise of inherent powers by courts, and courts may acquiesce in
such pronouncements by legislature, but when a statute attempts to limit or destroy an inherent power,
statute must fail.
Any legislation undertaking to require judicial action within fixed periods of time is an unconstitutional
interference by legislature with a judicial function.
7. Dismissal And Nonsuit.
Courts possess the inherent power to dismiss an action for want of prosecution.
8. Dismissal and Nonsuit.
Neither statute nor rule is needed to confer power upon a court to dismiss an action for want of
prosecution.
9. Constitutional Law; Dismissal and Nonsuit.
Former statutes providing for mandatory dismissal of an action unless brought to trial within five years
from filing of action were merely legislative sanctions of independent rights already belonging to the
courts, so that when Supreme Court adopted rule which incorporated statutes without change, it was
consistent with the state Constitution and the laws of the state, but when the legislature later enacted statute
which changed the time for mandatory dismissal from five years to seven years, legislature not only
indulged in an unconstitutional act but attempted to diminish the effect of the former statutes in an area
where it was powerless to act. NRS 2.120, 14.150; NRCP 41(e); Const. art. 3, 1.
Those rules of court which are neither inherent in nature nor bestowed upon the judiciary by
constitutional mandate may be affected by proper legislation, but such legislation must commence with a
direct amendment of the statute limiting the rule making power of the court. NRS 2.120.
Where defendant's motion to dismiss for lack of prosecution was filed more than five years after filing of
complaint, trial court had no discretion and order of dismissal was mandatory. NRS 2.120; NRCP
41(e).
Statute providing that, if a person departs the state after a cause of action has accrued against him, time of
absence shall not be part of time prescribed for commencement of action pertains to limitations of actions
and was not applicable to a determination of whether trial court abused its discretion when it dismissed
plaintiff's complaint with prejudice for want of prosecution. NRS 11.300.
Although it might have ruled otherwise, it was within trial court's discretion to dismiss complaint with
prejudice for want of prosecution.
OPINION
This is an appeal from an order of the district court granting the respondents' motion to
dismiss for failure to prosecute.
The appellant (plaintiff below) filed his complaint with the district court on June 16, 1961,
and filed the summons on May 9, 1962. The respondents (defendants below), Peggy Poor
Allen answered on April 29, 1964; and, Donald H. Allen made a motion to quash, which was
denied, and he answered on August 25, 1965. There were many other motions and
memorandums filed by respective counsel prior to time for trial. However, none of these
procedures are important to a determination of the issues before this court.
On December 13, 1966, respondents filed their motion to dismiss with prejudice for failure
to prosecute. Points and authorities were filed by both sides in support of and in opposition to
the motion, and on August 12, 1968 the court entered its judgment dismissing the action with
prejudice in favor of the respondents and against the appellant.
Appellant makes two contentions:
(1) That the parties entered into an effective stipulation for extension of time which is
provided for in NRCP 41(e), and therefore the action should not have been dismissed; and,
(2) That at any rate the legislature had superseded NRCP 41(e) to the extent that NRS
14.150 has changed the time for mandatory dismissal from five (5) years, as in NRCP 41(e),
to seven (7) years, as in the statute; and, that since the action was dismissed prior to the
expiration of seven (7) years, it was not mandatory but discretionary and the lower court
abused its discretion.
We find both contentions to be without merit and affirm the holding of the lower court.
The lower court held that the stipulation entered into by the parties in this action could not
be reasonably considered to do any more than provide for the taking of defendants'
depositions at a time convenient to all concerned; and that it was not an effective stipulation
for the extension of the time period as set out in NRCP 41(e). We must affirm that
determination because the stipulation is not included in the record on appeal.
[Headnotes 1-3]
This court can only consider the record as it was made and considered by the court below.
Wilson v. Wilson, 55 Nev. 57, 24 P.2d 317 (1933). Since the stipulation itself is not part of
the record, this court must assume that the trial judge was correct in his ruling; and, although
counsel have set out the stipulation in their briefs on appeal, facts in the briefs of counsel will
not supply a deficiency in the record. Mitchell v. Bromberger, 2 Nev. 345 (1866); A Minor v.
State, 85 Nev. 323, 454 P.2d 895 (1969); Lee v. Sheriff, 85 Nev. 379, 455 P.2d 623 (1969).
[Headnote 4]
In deciding cases, an appellate court must confine its consideration to the facts reflected in
the record and the necessary and reasonable inferences that may be drawn therefrom, the
statements made by counsel in their briefs, alleging facts or their arguments made in open
court, portraying what might have occurred, will not be considered on appeal, State v.
Griswold, 446 P.2d 467 (Ariz. 1968); Yee Marn v. Reynolds, 361 P.2d 383 (Hawaii 1961); A
Minor v. State, supra.
We next consider whether NRCP 41(e)
1
or NRS 14.150
2
is controlling in this case.
____________________

1
NRCP 41(e). The court may in its discretion dismiss any action for want of prosecution on motion of the
defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to
bring such action to trial. Any action heretofore or hereafter commenced shall be dismissed by the court in which
the same shall have been commenced or to which it may be transferred on motion of the defendant, after due
notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years
after the plaintiff has filed his action, except where the parties have stipulated in writing that the time may be
extended. When, in any action after judgment, a motion for a new trial has been made and a new trial granted,
such action shall be dismissed on motion of defendant after due notice to plaintiff, or by the court of its own
motion, if no appeal has been taken, unless such action is brought to trial within three years after the entry of the
order granting a new trial, except when the parties have stipulated in writing that the time may be extended.
When in an action after judgment, an appeal has been taken and judgment reversed with cause remanded for a
new trial (or when an appeal has been taken from an order granting a new trial and such order is affirmed on
appeal), the action must be dismissed by the trial court on motion of defendant after due notice to plaintiff, or of
its own motion, unless brought to trial within three years from the date upon which remittitur is filed by the clerk
of the trial court. A dismissal under this subdivision (e) is a bar to another action upon the same claim for relief
against the same defendants unless the court otherwise provides.

2
NRS 14.150. 1. The district court may in its discretion dismiss any action for want of prosecution on
motion of the defendant and after
In 1943 the legislature enacted NCL 9932 which after the enactment of NRS 2.120 was
carried into NRCP 41(e) without change, and became effective January 1, 1953.
[Headnote 5]
The legislature may, by statute, sanction the exercise of inherent powers by the courts, and
the courts may acquiesce in such pronouncements by the legislature, but when a statute
attempts to limit or destroy an inherent power of the courts, that statute must fail.
[Headnote 6]
Article 3, section 1 of the Nevada Constitution provides for the division of the powers of
government and prohibits persons charged with the exercise of powers properly belonging to
one of the three separate departments from exercising any function appertaining to either of
the others. Any legislation undertaking to require judicial action within fixed periods of time
is an unconstitutional interference by the legislature with a judicial function. Waite v.
Burgess, 69 Nev. 230, 245 P.2d 994 (1952); St. ex rel. Watson v. Merialdo, 70 Nev. 322, 268
P.2d 922 (1954); State v. Johnson, 69 N.E.2d 592 (Ind. 1946); Atchison, T. & S. F. Ry. Co. v.
Long, 251 P. 486 (Okla. 1926); Schario v. State, 138 N.E. 63 (Ohio 1922). In Schario v.
State, supra, it was stated: "Whether or not justice is administered without 'denial or
delay' is a matter for which the judges are answerable to the people, and not to the
General Assembly of Ohio.
____________________
due notice to the plaintiff, whenever the plaintiff has failed for 3 years after the action is filed to bring such
action to trial.
2. Any action commenced prior to or after July 1, 1967, shall be dismissed by the court in which the same
has been commenced or to which it may be transferred on motion of the defendant, after due notice to the
plaintiff or by the court upon its own motion, unless such action is brought to trial within 7 years after the
plaintiff has filed his action, except where the parties have stipulated in writing that the time may be extended.
3. When, in any action after judgment, a motion for a new trial has been made and a new trial granted, such
action shall be dismissed on motion of the defendant after due notice to the plaintiff, or by the court of its own
motion, if no appeal has been taken, unless such action is brought to trial within 5 years after the entry of the
order granting a new trial, except when the parties have stipulated in writing that the time may be extended.
4. When in an action after judgment, an appeal has been taken and judgment reversed with cause remanded
for a new trial (or when an appeal has been taken from an order granting a new trial and such order is affirmed
on appeal), the action must be dismissed by the trial court on motion of the defendant after due notice to the
plaintiff, or of its own motion, unless brought to trial within 5 years from the date upon which a remittitur is filed
by the clerk of the trial court.
5. A dismissal under this action is a bar to another action upon the same claim for relief against the same
defendants unless the court otherwise provides.
Schario v. State, supra, it was stated: Whether or not justice is administered without denial
or delay' is a matter for which the judges are answerable to the people, and not to the General
Assembly of Ohio. Manifestly, when a case can be heard and determined by a court must
necessarily depend very largely upon the court docket, and quantity of business submitted to
the court, the nature, the importance, and the difficulties attending the just and legal solution
of matters involved.
[Headnotes 7-9]
A court has always possessed an inherent power to dismiss for want of prosecution. Harris
v. Harris, 65 Nev. 342, 196 P.2d 402 (1948). Neither statute nor rule is needed to confer that
power upon a court. Dubin v. Harrell, 79 Nev. 467, 386 P.2d 729 (1963). When the
legislature enacted NCL 9932 and NRS 2.120, as they apply to the inherent powers of the
court they were merely legislative sanctions of independent rights already belonging to the
courts. When this court adopted NRCP 41(e) it was consistent with the Nevada Constitution
and the laws of the state, and when the legislature later enacted NRS 14.150, it not only
indulged in an unconstitutional act but attempted to diminish the effect of NRS 2.120 in an
area where it was powerless to act.
[Headnote 10]
Those rules of court which are neither inherent in nature nor bestowed upon the judiciary
by constitutional mandate may be affected by proper legislation, however, in this state such
legislation must commence with a direct amendment of NRS 2.120 limiting the rule making
power of this court.
[Headnote 11]
Having decided that NRCP 41(e) must prevail, we examine the record and find that the
respondents' motion to dismiss for lack of prosecution was filed more than five (5) years after
the filing of the complaint. The district court has no discretion when there has been a lapse of
five years or more. The order of dismissal is mandatory.
In Thran v. District Court, 79 Nev. 176, 380 P.2d 297 (1963), this court said: We are of
the opinion that NRCP 41(e) is clear and unambiguous and requires no construction other
than its own language. Whenever plaintiff has failed for two years after action is filed to bring
it to trial, the court may exercise its discretion as to dismissing it, but when it is not brought
to trial within five years, the court in the absence of a written stipulation extending time, shall
dismiss it. In the latter case the exercise of discretion is not involved."
case the exercise of discretion is not involved. See also: Astorga v. Ishimatsu, 77 Nev. 30,
359 P.2d 83 (1961); Dubin v. Harrell, supra.
The appellant cites Haley v. Eureka County Bank, 20 Nev. 410, 22 P. 1098 (1889).
Twaddle v. Winters, 29 Nev. 88, 89 P. 289 (1906) for the legal principal that if there is a
conflict between a statute and a rule of court that the statute would control, however, in
neither of those cases was there a question about the inherent rule making power of the courts
in certain areas, or a constitutional question concerning the separation of powers, nor was
there any direct conflict between a statute and a rule. The recitation of the court in those
cases, on this point, was merely dicta.
In Waite v. Burgess, supra, this court, after announcing that any attempt by the legislature
to fix periods of time within which judicial actions must take place was unconstitutional,
nevertheless, construed the statutes there under consideration as demanding diligence on the
part of the litigants rather than an oppression upon the judge's duties of deliberation and
orderly administration of justice and assigned them the innocuous status of being directory
only.
We can not follow that procedure because here we have a statute and a rule which are in
diametric opposition. One must stand and the other fall.
Consequently we find NRS 14.150 to be an unconstitutional invasion by the legislature in
the judicial rule making power and that, in this case, NRCP 41(e) makes it mandatory upon
the district court to dismiss the complaint for lack of prosecution.
[Headnotes 12, 13]
Finally the appellant contends that if the dismissal was mandatory that the district court
abused its discretion when it dismissed the appellant's complaint with prejudice. He bases his
contention on the allegation that the respondents were absent from the jurisdiction for long
periods of time and that service of process was thereby delayed. Relying on NRS 11.300
3
together with that part of NRCP 41(e), which reads as follows: . . . A dismissal under this
subdivision (e) is a bar to another action upon the same claim for relief against the same
defendants unless the court otherwise provides," the appellant argues that he had
reserved to him the right to bring an action against the defendants upon their return to
the State of Nevada and for that reason the district court could not dismiss his complaint
with prejudice.
____________________

3
NRS 11.300. If, when the cause of action shall accrue against a person, he be out of the state, the action
may be commenced within the time herein limited after his return to the state; and if after the cause of action
shall have accrued he depart the state, the time of his absence shall not be part of the time prescribed for the
commencement of the action.
defendants unless the court otherwise provides, the appellant argues that he had reserved to
him the right to bring an action against the defendants upon their return to the State of
Nevada and for that reason the district court could not dismiss his complaint with prejudice.
NRS 11.300 is concerned with limitations of actions and is not applicable to the facts of this
case. Although the district court might have ruled otherwise, it was within its discretion to
dismiss the complaint with prejudice and we find no abuse of that discretion.
The judgment of the lower court is affirmed.
Collins, C. J., Zenoff and Thompson, JJ., and Babcock, D. J., concur.
____________
85 Nev. 437, 437 (1969) Volpert v. Papagna
DONALD VOLPERT and DONALD MURRAY, Appellants, v. WILLIAM T. PAPAGNA,
BETTY JO PAPAGNA, ELEANOR ROTT and THOMAS B. PAPAGNA, Respondents.
No. 5665
July 11, 1969 456 P.2d 848
Appeal from the Eighth Judicial District Court, Clark County; William P. Compton,
Judge.
Appeal from, inter alia, granting of motion to dismiss for failure to prosecute, entered by
the trial court. The Supreme Court, Batjer, J., held, inter alia, that action was properly
dismissed pursuant to rule providing that court in its discretion may dismiss any action for
want of prosecution whenever plaintiff has failed for two years after action was filed to bring
such action to trial, as against contention that dismissal was premature because order granting
motion was entered less than two years after filing of amended complaint, in situation where
action was originally commenced on January 13, 1966, and motion to dismiss was granted on
March 18, 1968.
Affirmed.
[Rehearing denied August 11, 1969]
Gunderson, Sorenson & Jeffers and David C. Polley, of Las Vegas, for Appellants.
Rudiak & Publow, of Las Vegas, for Respondents.
Any legislation undertaking to require judicial action within fixed periods of time is an unconstitutional
interference by the legislature with a judicial function.
Courts have always possessed an inherent power to dismiss an action for want of prosecution, and neither
statute nor rule is needed to confer inherent power to dismiss an action for want of prosecution upon a
court. NRCP 3, 41(e); NRS 14.150.
3. Constitutional Law; Dismissal and Nonsuit.
Statute providing for dismissal whenever plaintiff has failed for three years, after action was filed, to
bring such action to trial was an unconstitutional interference with the judicial function. NRS 14.150;
Const. art. 3, 1.
For purposes of rule providing for dismissal at court's discretion for want of prosecution, date of filing of
amended complaint is not the relevant date; an action is commenced when the complaint is filed. NRCP
3, 41(e).
5. Appeal and Error; Dismissal and Nonsuit.
Only limitation upon discretionary power of court to dismiss an action for delay in prosecution is that
such power must not be abused, and unless there has been a gross abuse of discretion decision of trial court
will not be disturbed on appeal. NRCP 41(e).
Action was properly dismissed pursuant to rule providing that court in its discretion may dismiss any
action for want of prosecution whenever plaintiff has failed for two years after action was filed to bring
such action to trial, as against contention that dismissal was premature because order granting motion was
entered less than two years after filing of amended complaint, in situation where action was originally
commenced on January 13, 1966, and motion to dismiss was granted on March 18, 1968. NRCP 41(e).
OPINION
On January 13, 1966, the appellants filed their complaint charging the respondents, along
with some thirty-five other defendants, with the tort of conspiracy. The other thirty-five
defendants are not involved in this particular appeal. Following the filing of the complaint
there were many motions to take depositions, motions to quash, et cetera, made on behalf of
all parties, supported by points and authorities on each side concerned in the litigation. These
proceedings, however, are not material to the disposition of this appeal.
On March 18, 1966, by special leave of court, an amended complaint was filed against
two of the defendants who are not involved in this appeal.
complaint was filed against two of the defendants who are not involved in this appeal. On
February 2, 1968, some 25 months after the filing of the original complaint, and 23 months
after the filing of the amended complaint, respondents filed a motion to dismiss for want of
prosecution, or in the alternative, for summary judgment.
On March 18, 1968, the district court held, in regard to respondent Thomas F. Papagna,
that there was no genuine issue as to any material fact with relation to the claim of appellants
against him and that he was entitled to judgment as a matter of law. The court further ordered
that his motion to dismiss for failure to prosecute and his motion for summary judgment be
granted. On the same day, the court found in regard to the respondents William T. Papagna,
Betty Jo Papagna, and Eleanor Rott, that the action was commenced on January 13, 1966; that
the amended complaint filed on March 18, 1966 was not served on them; that no action was
taken to prosecute or to bring the action on for trial, and that they were entitled to summary
judgment, and to have the action dismissed for failure to prosecute.
The appellants contend that the court erred (1) when it granted summary judgment; and,
(2) when it granted the motions to dismiss for failure to prosecute because such orders were
premature in light of NRS 14.150, which allows dismissal whenever the plaintiff has failed
for 3 years, after the action is filed, to bring such action to trial.
[Headnotes 1-3]
We must first decide whether NRCP 41(e)
1
or NRS 14.150 controls this case. The former
allows dismissal after a two year period has passed. On several occasions this court has
considered the problems which arise when a rule of court and a statute are in conflict and
have held: (1) That any legislation undertaking to require judicial action within fixed periods
of time is an unconstitutional interference by the legislature with a judicial function. Waite v.
Burgess, 69 Nev. 230, 245 P.2d 994 (1952); St. ex rel. Watson v. Merialdo, 70 Nev. 322, 268
P.2d 922 (1954); (2) that courts have always possessed an inherent power to dismiss an action
for want of prosecution. Harris v. Harris, 65 Nev. 342, 196 P.2d 402 (1948); and (3) that
neither statute nor rule is needed to confer the inherent power to dismiss an action for want
of prosecution upon a court.
____________________

1
NRCP 41(e): The court may in its discretion dismiss any action for want of prosecution on motion of the
defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to
bring such action to trial. . . .
power to dismiss an action for want of prosecution upon a court. Dubin v. Harrell, 79 Nev.
467, 386 P.2d 729 (1963); Raine v. Ennor, 39 Nev. 365 158 P. 133 (1916). Finally, in
Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851 (1969), decided just prior to this case, we
squarely met the question whether a statute can amend or effectively repeal a rule which
expresses a inherent power of court and held NRS 14.150 to be in contravention of Article 3,
section 1 of the Nevada Constitution and that the trial court was correct when it proceeded
under NRCP 41(e). Because the exact question has been raised in this case we apply the rule
of the Lindauer case and again find NRS 14.150 to be unconstitutional and NRCP 41(e) to be
applicable.
We are next faced with the contention that the action of the trial court pursuant to NRCP
41(e) is premature because the order granting the motion to dismiss for lack of prosecution
was entered less than two years after the filing of the amended complaint.
[Headnote 4]
The date of the filing of the amended complaint is not the relevant date. The action was
commenced January 13, 1966, when the complaint was filed. NRCP 3.
2

The appellants further contend that in any event the trial court abused its discretion when it
dismissed the appellants' complaint under NRCP 41(e). We find that the court was acting
within its power and did not abuse its discretion. In Thran v. District Court, 79 Nev. 176, 380
P.2d 297 (1963), it was stated that NRCP 41(e) is clear and unambiguous and requires no
construction other than its own language.
[Headnote 5]
In Harris v. Harris, supra, we held that the only limitations upon the discretionary power of
the court to dismiss an action for delay in its prosecution is that such power must not be
abused; and said, Unless it is made to appear that there has been a gross abuse of discretion
on the part of the trial court in dismissing an action for lack of prosecution its decision will
not be disturbed on appeal.
In Dubin v. Harrell, supra, it was declared: Here the policy to be served is that, once suit
is commenced, it must be carried forward with reasonable diligence unless circumstances
exist which excuse delay . . . Rule 41(e) invests the court with the power (though inherently
possessed) to refuse to hear a case that has been filed but not prosecuted with the diligence
required . . . [T]he substantive cause of action [is not] destroyedjust the availability of a
remedy to enforce it.
____________________

2
NRCP 3: A civil action is commenced by filing a complaint with the court.
that has been filed but not prosecuted with the diligence required . . . [T]he substantive cause
of action [is not] destroyedjust the availability of a remedy to enforce it. A claimant's right
to a day in court' is subject to reasonable procedural requirements (cf. Thran v. District Court
. . . [supra]) and may be lost by the failure to comply with them. . . . and in Northern Ill.
Corp. v. Miller, 78 Nev. 213, 370 P.2d 955 (1962), it was said: With the record silent as to
any excuse for the delay in prosecution injury is presumed. Jackson v. DeBenedetti, 39
Cal.App.2d 574, 103 P.2d 990. If in fact the trial court did consider the merits of the action in
exercising its discretion this was not error. (citation omitted) . . . Furthermore, when a case
has been long neglected and no adequate excuse is offered for the neglect, an inference arises
that the case lacks merit, and a party whose case is dismissed for lack of prosecution and who
asks an appellate court to reverse the order of dismissal must see to it that the record contains
something substantial which will justify a reversal. Horn v. California-Oregon Power
Company, 221 Ore. 328, 351 P.2d 80. Nothing of that kind appears in the record on appeal.
Likewise, we find nothing in this record to justify a reversal.
[Headnote 6]
The district court properly dismissed this action against these respondents pursuant to
NRCP 41(e). This is dispositive of the case. We do not reach the other questions of whether
or not the court acted properly in grating summary judgment or in dismissing the case against
Thomas R. Papagna because of the appellant's failure to state a cause of action against him.
____________
85 Nev. 441, 441 (1969) Bates v. Nevada Savings & Loan Ass'n
EILEEN BATES, dba EILEEN'S INTERIORS, Appellant, v. NEVADA SAVINGS AND
LOAN ASSOCIATION, a Nevada Corporation, Respondent.
No. 5734
July 11, 1969 456 P.2d 450
Appeal from orders of the Eighth Judicial District Court; Alvin N. Wartman, Judge.
Action by lessor to recover premises, rental due and owing and penalties and costs. The
trial court dismissed action and on lessor's motion for rehearing reinstated action and
limited action to common-law trespass, and lessee appealed. The Supreme Court Batjer,
J., held that order granting motion for rehearing was a special order after final judgment
and appealable, that order denying motion to dismiss after hearing was not appealable
and that order limiting action to common-law trespass was not an appealable final
judgment or order.
on lessor's motion for rehearing reinstated action and limited action to common-law trespass,
and lessee appealed. The Supreme Court Batjer, J., held that order granting motion for
rehearing was a special order after final judgment and appealable, that order denying motion
to dismiss after hearing was not appealable and that order limiting action to common-law
trespass was not an appealable final judgment or order.
Affirmed.
[Rehearing denied September 8, 1969]
E. M. Gunderson and Larry C. Johns, of Las Vegas, for Appellant.
No appeal will lie unless it is authorized by statute or by rule of court properly promulgated. NRCP
72(b).
Order granting plaintiff's motion for rehearing of dismissal of complaint for failure to state cause of
action and for lack of jurisdiction over subject matter was a special order after final judgment and was
appealable. NRCP 72(b)(2).
3. Appeal and Error; New Trial.
Litigants are not entitled to a rehearing as a matter of right; power to grant a rehearing, whether it be at
the appellate level, or at trial level, or whether it be in law or equity, is inherent and discretionary.
Order denying motion to dismiss after rehearing is not appealable. NRCP 72(b)(2).
5. New Trial.
Granting lessor, who sought restoration of premises, rent due and owing and penalties and costs,
rehearing and subsequent denial of lessee's motion to dismiss did not constitute abuse of discretion.
Where trial court limited lessor's action, seeking restoration of premises, rent due and owing and
penalties and costs, to common-law trespass lessor was not aggrieved party and order limiting action was
not a final judgment or order from which appeal could be taken. NRCP 72(a, b).
OPINION
This action was originally commenced on March 23, 1965, when the respondent filed a
complaint against the appellant seeking the restoration of certain premises, together with
rental due and owing, penalties and costs.
due and owing, penalties and costs. Thereafter followed a series of motions, dismissals,
refilings, filings of amended complaints, et cetera, all immaterial to this appeal, until
February 23, 1968, when the appellant was allowed seven days to file an answer to
respondent's amended complaint which had been filed May 27, 1966. Extensions of time
were subsequently granted to the appellant. On March 20, 1968, instead of filing an answer,
she filed a motion to dismiss on the grounds that the amended complaint failed to state a
cause of action; that the respondent had failed to join an indispensable party; had failed to
prosecute with diligence, and that the district court lacked jurisdiction over the subject matter.
On July 10, 1968, the district court dismissed the action for the reasons that the amended
complaint failed to state a cause of action and the court lacked jurisdiction over the subject
matter. On that same day the respondent's motion for a rehearing was granted. The rehearing
was set for July 18, 1968, and on September 6, 1968, an order was entered denying the
motion to dismiss.
Here we are faced with the question whether the order granting the respondent's motion for
rehearing and the order denying the motion to dismiss are appealable, and if so, did the trial
court commit error in entering these orders?
[Headnote 1]
No appeal will be allowed unless it is authorized by statute or by rule of court properly
promulgated. Nev. Gaming Comm. v. Byrens, 76 Nev. 374, 355 P.2d 176 (1960); O'Neill v.
Dunn, 83 Nev. 228, 427 P.2d 647 (1967). NRCP 72(b)
1
sets forth what are appealable
matters.
[Headnote 2]
1. The order granting the respondent's motion for a rehearing is a special order after final
judgment within the limitations of NRCP 72(b)(2), and appealable. However, we find the
appeal to be without merit.
[Headnote 3]
Litigants are not entitled to a rehearing as a matter of right. Twaddle v. Winters, 29 Nev.
88, 85 P. 280, 89 P. 289 (1906).
____________________

1
NRCP 72(b): An appeal may be taken:
(1) From a final judgment in an action or proceeding commenced in the court in which the judgment is
rendered.
(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.
The power to grant a rehearing, whether it be at the appellate level, SCR 34; or at the trial
level, DCR 20; or whether it be in law or in equity, Grant Inventions Co. v. Grand Oil Burner
Corporation, 145 A. 721 (N.J. 1929), is inherent and discretionary with the courts.
In Smith v. Livesey, 51 A. 453 (N.J.App. 1902), that court said: By the common law an
application to open a judgment regularly entered was addressed wholly to the discretion of the
court in which the judgment was rendered, to be there decided as justice and equity should
require (citations omitted); and consequently a writ of error would not lie to review the
determination of that court. In Grant Inventions Co. v. Grand Oil Burner Corporation, supra,
the court wrote: There can be no doubt that the complainant's present application is directed
to the sound legal discretion of the court. . . . In every such motion, whether addressed to a
court of law or one of equity, it calls forth the inherent equity powers of the judge thereof.
[Headnote 4]
2. The order denying the motion to dismiss after rehearing is not appealable. Musso v.
Triplett, 78 Nev. 355, 372 P.2d 687 (1962).
[Headnote 5]
Here the trial court acted within its discretionary powers and we affirm. The granting of a
rehearing and subsequent denial of the appellant's motion to dismiss affords both parties an
opportunity to litigate their case. Where a settlement cannot be effected it is desirable that the
litigants present their cause to the courts for a determination.
[Headnote 6]
3. The appellants have also appealed from the order limiting the respondent's action to a
common law trespass case. That order is not a final judgment or order within NRCP 72(b).
Guisti v. Guisti, 44 Nev. 437, 196 P. 337 (1921). Furthermore, the appellant is not an
aggrieved party within NRCP 72(a). In Kenney v. Hickey, 60 Nev. 187, 105 P.2d 192 (1940),
this court held that an aggrieved party is one whose personal right is injuriously affected by
the adjudication, or where the right of property is adversely affected or diverted. There is no
way in which the appellant in this case can qualify as a party aggrieved because of the
limitation placed on the action by the trial court. An appeal from this order is not authorized
by either statute or rule. Nev. Gaming Comm. v. Byrens, supra, and O'Neill v. Dunn, supra.
For the reasons stated in this opinion we do not consider the order denying the motion to
dismiss and the order limiting the respondent's action to a common law trespass case, and
dismiss those parts of this appeal. With regard to the order granting the rehearing of the
motion to dismiss, we affirm the action of the trial court and remand the cause for further
proceedings.
____________
85 Nev. 445, 445 (1969) Marfisi v. District Court
P. MICHAEL MARFISI, Attorney at law, of the Firm of VAUGHAN, HULL, McDANIEL &
MARFISI, Petitioner, v. FOURTH JUDICIAL DISTRICT COURT and THE HONORABLE
GEORGE F. WRIGHT, Judge Thereof, Respondents.
No. 5899
July 11, 1969 456 P.2d 443
Petition for writ of prohibition to prevent judicial proceeding in a criminal case until the
petitioner is relieved as appointed counsel. Fourth Judicial District Court, George F. Wright,
Judge.
Original proceeding by appointed counsel, who was assistant city attorney, seeking writ of
prohibition to prevent district court from proceeding with criminal action on ground that state
statute precluded him from continuing to defend indigent charged with murder. The Supreme
Court, Batjer, J., held that statute prohibiting city attorney, district attorney and attorney
general, and their deputies and assistants, from undertaking defense of criminal cases
operated prospectively to disqualify assistant city attorney from continuing to act as defense
counsel in pending criminal case in which he had been appointed counsel before statute
became effective.
Writ granted.
Vaughan, Hull, McDaniel & Marfisi, of Elko, for Petitioner.
Mark C. Scott, Jr., District Attorney, of Elko, for Respondents.
1. Attorney General; Constitutional Law; District and Prosecuting Attorneys; Municipal
Corporations.
Statute prohibiting city attorney, district attorney or attorney general, or their deputies and assistants from
participating in defense of criminal cases is constitutional as valid exercise of legislative
mandate to establish governments for towns and cities of state, and statute is not an
interference with courts.
defense of criminal cases is constitutional as valid exercise of legislative mandate to establish governments
for towns and cities of state, and statute is not an interference with courts. Const. art. 4, 25; NRS
251.010 et seq.
Statute prohibiting city attorney, district attorney and attorney general, and their deputies and assistants
from undertaking defense of criminal cases operated prospectively to disqualify assistant city attorney from
continuing to act as defense counsel in pending criminal case in which he had been appointed counsel
before statute became effective. NRS 251.010 et seq.
OPINION
The petitioner, P. Michael Marfisi, seeks a writ of prohibition to prevent the respondent
court and judge from proceeding with a criminal action on the ground that 1969 Statutes of
Nevada, Chapter 251, precludes the petitioner, who is the assistant city attorney of the city of
Elko, Nevada, from continuing to defend Leon Harley Anderson, an indigent, charged with
the crime of murder.
Marfisi was appointed as counsel by the respondent, Judge George F. Wright. Subsequent
to Marfisi's appointment and after he had represented the defendant at the preliminary hearing
and at his arraignment, the Nevada Legislature enacted Chapter 251, Statutes of Nevada,
1
which became effective April 8, 1969. This statute prohibits persons in Marfisi's position
from participating in the defense of criminal cases.
Upon the grounds that he could no longer qualify to serve as the appointed attorney for
Anderson, because of the enactment of Chapter 251, 1969 Statutes of Nevada, Marfisi moved
the district court for permission to withdraw as counsel. On April 30, 1969, his motion was
heard and denied.
Relying on St. ex rel. Watson v. Merialdo, 70 Nev. 322, 268 P.2d 922 (1954); Co.
Commissioners v. Devine, 72 Nev. 57, 294 P.2d 366 (1956); and In re Watson, 71 Nev. 227,
286 P.2d 254 (1955), the trial judge said: "To interpret the bill [statute] as applying to a
pending case where the Court had appointed qualified attorneys and hold that the Court
must permit the attorneys to withdraw, would be a clear interference with the Courts,
justice, and the right of the defendant to be adequately represented and
unconstitutional."
____________________

1
Chapter 251, Statutes of Nevada: "No city attorney, district attorney or attorney general or their deputies
and assistants hired or elected to prosecute persons charged with the violation of any ordinance or any law of
this state shall, during their terms of office or during the time they are so employed, in any court of this state,
accept an appointment to defend, agree to defend or undertake the defense of any person charged with the
violation of any ordinance or any law of this state."
appointed qualified attorneys and hold that the Court must permit the attorneys to withdraw,
would be a clear interference with the Courts, justice, and the right of the defendant to be
adequately represented and unconstitutional. The cases relied upon by the respondent all
involved legislative interference with an inherent judicial power. We are not here concerned
with any legislative interference with the inherent power of the courts. While the courts have
the inherent power to declare what shall constitute the practice of law and which persons shall
be admitted to practice before the courts, it is within the exclusive power of the legislature to
create the office of city attorney and to limit the duties and responsibilities of the holder of
that office.
[Headnote 1]
Article 4, Sec. 25 of the Nevada Constitution provides that the legislature shall establish a
system of county and township government which shall be uniform throughout the state. This
the legislature has done in NRS Chapters 265 through 273. Specifically, NRS 266.465
through 266.475, sets out the qualifications and duties of a city attorney. Inasmuch as the
constitution has given the legislature a mandate to establish governments for the towns and
cities of this state, we find that the enactment of Chapter 251, 1969 Statutes of Nevada is a
valid exercise of that mandate and not an interference with the courts.
Although in Callahan v. Jones, 93 P.2d 326 (Wash. 1939), the court was concerned with
legislative action designed to control the scope of practice which could be pursued by a
district attorney, it held that such control was within the realm of legislative power and said:
The legislative intent to entirely separate the official duties of prosecuting attorneys from
any private gain clearly appears, and this legislative policy is so clearly in the public interest
that the statutes should not be restricted by judicial interpretation, but should be so construed
as to accomplish to the full its beneficent purpose.
We find that principle applicable to this case. Chapter 251, 1969 Statutes of Nevada is
clearly in the public interest. In County of Madera v. Gendron, 382 P.2d 342 (Cal. 1963), the
statutory limitation on the private practice of law by district attorneys was declared to be a
proper legislative function.
In Grievance Committee, Etc. v. Dean, 190 S.W.2d 126 (Tex.Civ.App. 1945), the court
confronted with the unauthorized practice of law rather than a legislative limitation on the
practice of law, held that the judicial department of the state government has the authority to
declare what shall constitute the practice of law, but such power is not exclusive, and went
on to say: "It is undoubtedly true, however, that the practice of law is a profession
affected with a public interest and the Legislature, under its police power, and to protect
the public interest, may legislate reasonably to that end.
the practice of law, but such power is not exclusive, and went on to say: It is undoubtedly
true, however, that the practice of law is a profession affected with a public interest and the
Legislature, under its police power, and to protect the public interest, may legislate reasonably
to that end. In doing so, it acts in aid of the judiciary and not to the exclusion of, nor in denial
of, the constitutional powers of the judicial branch of the government.
We are not concerned with any retroactive application of the statute but only its
prospective application as it affects the petitioner. In a criminal case, each time an attorney
consults with his client, files any pleadings with a court, or makes any appearance on behalf
of his client, he is undertaking the defense of the client, and each separate act is a separate
undertaking. From and after April 8, 1969, as long as he was an assistant city attorney, the
petitioner was disqualified to act as defense counsel in a criminal case.
[Headnote 2]
The language of the statute under consideration is mandatory. It was incumbent upon the
trial court to grant the petitioner his motion to withdraw as appointed counsel, and the denial
of that motion was error.
We find Chapter 251, 1969 Statutes of Nevada to be constitutional; grant the petition for a
writ of prohibition; and order that the petitioner be permitted to withdraw as appointed
defense counsel in the criminal action entitled The State of Nevada, Plaintiff, vs. Leon
Harley Anderson, Defendant, No. 2143, Fourth Judicial District Court of the State of Nevada,
in and for the County of Elko.
____________
85 Nev. 448, 448 (1969) Prescott v. State
ASHLEY L. PRESCOTT, Appellant, v. THE
No. 5624
July 14, 1969 456 P.2d 450
Appeal from an order of the Second Judicial District Court, Washoe County, denying
petition for habeas corpus; Emile J. Gezelin, Judge.
85 Nev. 448, 449 (1969) Prescott v. State
Proceeding on pretrial petition for writ of habeas corpus. The lower court denied the
petition, and petitioner appealed. The Supreme Court held that alleged illegality of arrest and
admissibility of evidence secured by illegal search did not afford ground for pretrial habeas
corpus relief, but must be presented by motion.
Affirmed.
Martillaro and Bucchianeri, of Carson City, for Appellant.
Habeas Corpus.
Alleged illegality of arrest and admissibility of evidence secured by illegal search did not afford ground
for pretrial habeas corpus relief, but must be presented by motion. NRS 174.105, subd. 1.
OPINION
Per Curiam:
This is an appeal from an order of the district court denying Prescott's pre-trial petition for
a writ of habeas corpus. His petition did not challenge the jurisdiction of the court, the
sufficiency of the evidence to hold him for trial, nor does it assert that a public offense was
not charged. He does attack the legality of his arrest, and the admissibility of evidence which
he claims to have been secured by an illegal search. Those matters are to be presented by
motion. NRS 174.205(1).
1

Affirmed.
____________________

1
NRS 174.105(1) provides: 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.
____________
85 Nev. 450, 450 (1969) Boone v. State
MICHAEL MARTIN BOONE and PAUL HARVEY BALDWIN, Appellants,
v. THE STATE OF NEVADA, Respondent.
No. 5678
July 14,1969 456 P.2d 418
Appeal from denial of motion for new trial and from judgments of conviction of attempted
robbery. Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
The Supreme Court, Mowbray, J., held, inter alia, that permitting two witnesses to crime
to make in-court identifications of defendants even though lineup identifications were
improper for failure of defendants to have counsel was not error, and that court's instructions
defining crime of robbery and relating to consideration of evidence of flight were proper.
Affirmed.
Fry and Fry, of Reno, for Appellants.
Dutt, Deputy District Attorney, Washoe County for Respondent.
1. Criminal Law.
Permitting two witnesses to crime to make in-court identifications of defendants even though lineup
identifications were improper for failure of defendants to have counsel was not error. U.S.C.A.Const.
Amend. 6.
2. Criminal Law.
Substantial evidence supported trial judge's findings that witnesses' identifications of defendants had
independent origins permitting in-court identification testimony.
3. Arrest; Criminal Law.
Sweater which was in plain view at time officer arrested suspect in his room was properly seized and was
admissible in evidence. NRS 171.124.
4. Criminal Law.
Where victim's statement Those dirty Niggers was made without any malice and was included in
testimony in response to question propounded by defense counsel, court's denial of defendants' motion for
mistrial was not error.
5. Criminal Law; Robbery.
Court's instructions defining crime of robbery and relating to consideration of evidence of flight were
proper.
OPINION
A jury found Michael Martin Boone and Paul Harvey Baldwin guilty of attempted robbery.
They seek a reversal on four grounds: {1) the trial judge erred in permitting two witnesses
to the crime to make in-court identifications of Boone and Baldwin; {2) Boone's sweater,
State's Exhibit "F", was improperly received in evidence; {3) the victim's reference to her
assailants as "dirty Niggers" constituted prejudicial error for which a motion for a mistrial
should have been granted; and {4) the trial judge erred in charging the jury.
85 Nev. 450, 451 (1969) Boone v. State
grounds: (1) the trial judge erred in permitting two witnesses to the crime to make in-court
identifications of Boone and Baldwin; (2) Boone's sweater, State's Exhibit F, was
improperly received in evidence; (3) the victim's reference to her assailants as dirty Niggers
constituted prejudicial error for which a motion for a mistrial should have been granted; and
(4) the trial judge erred in charging the jury.
On the morning of July 25, 1967, Elsie Bayley went to the First National Bank at the
corner of First and South Virginia Streets in Reno, where she made her customary weekly
bank deposit. She was walking back to her home on California Avenue and was on the east
side of the 300 block on South Sierra Street when she was attacked by two men who grabbed
the bag she was carrying. Although Elsie Bayley was then in her eighty-third year, she
successfully resisted her attackers and never gave up the bag; but during the struggle she was
struck and thrown to the pavement and suffered several bone fractures.
It was at this juncture that George Hogan and his son, Dennis Hogan, came driving by and
witnessed the assault. They sensed immediately what was going on, sounded their car horn,
and took after the two attackers, who ran like scared rabbits down an adjacent alley.
Another passer-by came to Mrs. Bayley's aid, helped her to the sidewalk, brought her a chair
to sit on, called the police, and made the reference to her assailants that is the basis for
appellants' fourth assignment of error, supra. The Hogans gave pursuit in their car, but only
for a short distance, as the two assaulters split up, running in different directions over vacant
property. Dennis left the car and followed on foot the defendant who was later identified as
Boone, while George, still driving the car, observed the defendant who was later identified as
Baldwin attempt to enter a red Mustang automobile. Baldwin was waved off by the driver
of the Mustang and continued his flight on foot. George then lost sight of Baldwin, but in a
few moments saw him driving the Mustang, and again took up the chase, which he pursued
without success, although he did take down the license number of Baldwin's car and give it to
a passing patrolman. A few moments later the police stopped the Mustang and arrested
Baldwin. Meanwhile, Dennis was in hot pursuit of Boone, chasing him across car lots and
over back fences. But Boone finally outdistanced him, and Dennis joined the search in a
police car. Actually, Boone had evaded his pursuers by checking into a nearby motel. The
desk clerk's suspicions were aroused by Boone's appearance and actions: [H]e was
perspiring very freely, and breathing very deep . . . fidgety . . . he was in a hurry."
85 Nev. 450, 452 (1969) Boone v. State
was in a hurry. When she noticed a commotion outside the motel, she inquired of a
policeman who was on the street the reason for the presence of the police. When told, she
remarked, I think he's [Boone's] looking down at you from the room upstairs, sir. The
officer went to Boone's room, arrested him, and brought him downstairs, where he was
immediately identified by Dennis as the man who had attacked Mrs. Bayley.
[Headnote 1]
1. The trial judge did not err in permitting two witnesses to the crime to make in-court
identifications of Boone and Baldwin. On the evening of the robbery, the Reno police
conducted a routine police line-up and asked the Hogans to be present. Boone and Baldwin
were included in the line-up and were identified. The line-up appears to have been properly
conducted, with one major exception: Boone and Baldwin were not represented by counsel.
They claim they requested counsel.
On June 12, 1967, six weeks prior to the line-up, the Supreme Court of the United States
ruled in the landmark Wade, Gilbert, and Stovall cases,
1
that the Sixth Amendment to the
Constitution guarantees an accused the right to counsel, not only at his trial, but also at any
critical confrontation by the prosecution at pretrial proceedings where the absence of counsel
might derogate from his right to a fair trial and where the results might well determine his
fate. In Wade, supra, the High Court declared that a police line-up is a critical stage of the
pretrial proceedings and that an in-court identification by a witness to whom the accused was
exhibited before trial in the absence of counsel must be excluded, unless it can be established
that the identification had an independent origin. Because of the rulings announced in Wade,
Gilbert, and Stovall, supra, the police line-up of July 25, 1967, was illegal, and the State did
not present to the jury any evidence regarding the line-up identifications. But we do not rule
as a matter of law that the line-up identifications rendered incompetent the Hogans' in-court
identifications of Boone and Baldwin. Rather, we hold that there is substantial evidence in the
record to support the trial judge's findings that the Hogans' identifications of the appellants
(1) had independent origins, (2) were not tainted by the police line-up identifications, and (3)
were therefore admissible. For instance, the record shows that Dennis first met Baldwin at 7
o'clock on the morning of the robbery, in Harrah's Club, Reno, where Dennis worked as a
cashier, and that Dennis assisted Baldwin in completing a credit application form; that he
saw Boone during the commission of the crime "from head to foot"; that he chased Boone
until Boone evaded him and checked into the motel; and that when the officer arrested
Boone in the motel room and brought him to the ground floor, Dennis was present and
identified Boone.
____________________

1
United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967); and Stovall v.
Denno, 388 U.S. 293 (1967).
85 Nev. 450, 453 (1969) Boone v. State
Dennis assisted Baldwin in completing a credit application form; that he saw Boone during
the commission of the crime from head to foot; that he chased Boone until Boone evaded
him and checked into the motel; and that when the officer arrested Boone in the motel room
and brought him to the ground floor, Dennis was present and identified Boone.
Cross-examination of Dennis Hogan by Mr. Fry, counsel for defendants (appellants
herein):
Q. Well, isn't it true that you, at first, did not recognize Mr. Boone and did not identify
him?
A. No, it is not true. When he came down, I said That's the man I was chasing.'
Q. Right off the bat?
A. Right off the bat.
George Hogan identified Mr. Baldwin only. He saw him during the commission of the
crime and pursued him by car. During the chase, George observed Baldwin driving the
Mustang and saw him at close range at one street intersection when they came face to face in
their cars.
Cross-examination of George Hogan by Mr. Fry:
Q. And then you followed it [the Mustang]?
A. Then I started to go down California, and the car apparently turned. Now, I felt that he
was going to make a U turn. It was just a feeling that I got.
So I made a U turn at the service station at the corner of Sierra and California. The car
came back, the Mustang came back on California and turned down Forest. By this time, I was
out on Sierra Street. And when the signal changed, I followed the car down Forest and Tahoe,
and then St. Lawrence.
Q. And it was then that you
A. At St. Lawrence and Virginia is when I saw the man.
[Headnote 2]
Counsel for the appellants argues that George Hogan had only one good look at Baldwin
and that his in-court identification of Baldwin was not permissible. We do not agree. One
good look only, does not as a matter of law render the witness's testimony incompetent. We
conclude that there is substantial evidence in the record to support the trial judge's findings
that Dennis's identifications of Boone and Baldwin, and George's identification of Baldwin,
had independent origins and that their in-court testimony before the jury was permissible.
[Headnote 3]
2. Boone's sweater, State's Exhibit F, was properly received in evidence. When the
officer arrested Boone in the motel room, he seized a brown sweater that was on a chair in
the room.
85 Nev. 450, 454 (1969) Boone v. State
motel room, he seized a brown sweater that was on a chair in the room. The sweater was
received in evidence. Boone claims its admission was not permissible because the search was
illegal. NRS 171.124
2
provides that a peace officer may make an arrest without a warrant
when a felony has in fact been committed and he has reasonable cause to believe the person
arrested has committed it. The arresting officer knew that an assault had occurred in an
attempted robbery, and he had reasonable cause to believe that Boone was one of the
assailants. Boone's arrest was legal. It was permissible for the officer, once he was inside
Boone's room, to seize Boone's sweater, as it was in plain view and it filled the description
given by Dennis Hogan. The Supreme Court of the United States said, in Harris v. United
States, 390 U.S. 234, 236 (1968): It has long been settled that objects falling in the plain
view of an officer who has a right to be in the position to have that view are subject to seizure
and may be introduced in evidence. Ker v. California, 374 U.S. 23, 42-43 (1963); United
States v. Lee, 274 U.S. 559 (1927); Hester v. United States, 265 U.S. 57 (1924). Woerner v.
State, 85 Nev. 281, 453 P.2d 1004 (1969).
[Headnote 4]
3. The trial judge did not commit error in denying appellants' motion for a mistrial. Elsie
Bayley was unable to identify her assailants, and she flatly admitted so.
Direct examination of Mrs. Bayley by Mr. Freitag, counsel for plaintiff (respondent
herein):
Q. Now, do you recall what either of these people looked like?
A. I couldn't, for the life of me, identify who they were or anything. I just was so
frightened that I didn't see anything.
In an apparent attempt to pursue the inquiry further, defense counsel asked Mrs. Bayley on
cross-examination the questions that brought forth the answer that appellants claim created
prejudicial error.
Cross-examination of Mrs. Bayley by Mr. Fry:
Q. Do you recall, or can you give the ladies and gentlemen of the jury any description of
these people at all?
A. No, I couldn't describe them to save me, because I
Q. You are not sure whether they were Caucasian, Negro, India, or what? "A.
____________________

2
NRS 171.124 Arrests by peace officers.
1. A peace officer . . . may, without a warrant, arrest a person:
. . . .
(c) When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to
have committed it.
85 Nev. 450, 455 (1969) Boone v. State
A. I couldn't, except that I had just passed a colored boy down the street, and he came and
helped me up. He said, Those dirty Niggers.'
While such utterances are abhorred and to be avoided, this one was made without any
malice by Elsie Bayley, and only in her attempt to respond to counsel's inquiry. As the trial
judge said, in denying the motion for a mistrial:
Well, I felt at the time it was not a really bad statement. . . . We feel these things. If I felt
that the statement that Mrs. Bayley made . . . was maliciously made, or if I felt that it was
purposely made to place the defendants in a bad light before the jury, then I would say that
the defendants' motion for a mistrial is properly made. . . . I didn't think that the jury became
inflamed or incensed by the res gestae statement, if you want to call it that, happening upon
the spur of the moment.
The trial judge did not abuse his discretion in denying appellants' motion for a mistrial.
[Headnote 5]
4. The trial judge properly charged the jury. Appellants objected to the giving of
Instructions Nos. 9
3
and 15.
4
The former defines the crime of robbery; the latter covers the
defendants' flight from the scene of the crime. Under the facts of the case, it was proper to
give the instructions.
Affirmed.
Collins, C. J., Zenoff, Batjer and Thompson, JJ., concur.
____________________

3
Instruction No. 9:
Robbery is the felonious taking of personal property of any value in the possession of another, from his
person or immediate presence, and against his will, accomplished by means of force or fear.

4
Instruction No. 15:
The flight or concealment of a person immediately after the commission of a crime, or after he is accused of
a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved,
may be considered by the jury in the light of all other proved facts in deciding the question of his guilt or
innocence. Whether or not evidence of flight or concealment shows a consciousness of guilt, and the significance
if any to be attached to such a circumstance, are matters for determination by you, the jury.
____________
85 Nev. 456, 456 (1969) Otterbeck v. Lamb
PATRICIA A. OTTERBECK, Appellant, v. NANCY
ANN BAKER LAMB, Respondent.
No. 5679
July 14, 1969 456 P.2d 855
Passenger in automobile driven by woman who, like the passenger, was a deaf mute
brought personal injury action against motorist whose automobile collided in intersection
with side of host automobile. The trial court entered judgment in favor of defendant, and
plaintiff appealed. The Supreme Court, Collins, C. J., held that jury instruction that A
passenger in an automobile cannot shut her eyes to danger in blind reliance on a driver, but
must take such action for her own protection as a person of ordinary care and prudence would
take under the same or similar circumstances was prejudicially erroneous, since rule is that,
in the absence of special circumstances such as where the driver is sleepy or intoxicated or
where the road or weather conditions are particularly hazardous, a passenger is entitled to rely
on his driver and has no duty of lookout or duty to warn the driver.
Vargas, Bartlett & Dixon and Steven T. Walther, of Reno, for Appellant.
Richard P. Wait, of Reno, for Respondent.
Sufficient objection to preserve error for consideration was made by plaintiff's counsel to instruction 29,
where counsel, during settlement of instructions, told court that first sentence of instruction 29 correctly
stated the law but that The second part reiterates and emphasizes and uses adjectives, where it shouldn't be
using such words as blind reliance' and things like that. That's argumentative., and where judge indicated
he understood the objection by stating All right, it will be noted.
If no objection to an instruction is made, the error is not preserved for appellate consideration; and if the
objection is so general that it does not state any ground, review will be denied; further, if it is merely
contended that an instruction is proper and should be given, review is precluded unless there is plain
error. NRCP 51.
3. Appeal and Error; Automobiles.
Jury instruction that A passenger in an automobile cannot shut her eyes to danger in blind reliance on a
driver, but must take such action for her own protection as a person of ordinary care and
prudence would take under the same or similar circumstances" was prejudicially
erroneous, since rule is that, in the absence of special circumstances such as where
the driver is sleepy or intoxicated or where the road or weather conditions are
particularly hazardous, a passenger is entitled to rely on his driver and has no duty of
lookout or duty to warn the driver.
such action for her own protection as a person of ordinary care and prudence would take under the same or
similar circumstances was prejudicially erroneous, since rule is that, in the absence of special
circumstances such as where the driver is sleepy or intoxicated or where the road or weather conditions are
particularly hazardous, a passenger is entitled to rely on his driver and has no duty of lookout or duty to
warn the driver.
4. Automobiles.
Automobile passenger has legal duty to take ordinary precautions for his own safety and to use ordinary
care for his own protection, and the determination of whether such duty was complied with is one of fact
for the jury; however, a passenger has no duty of lookout or duty to warn the driver in the absence of
special circumstances.
5. Automobiles.
Special circumstances which impose on automobile passenger a duty of lookout or to warn driver are
obvious, imminent, danger of which the passenger is aware and driver is not; or where the driver is sleepy
or intoxicated, which is known to the passenger; or where road or weather conditions are particularly
hazardous.
6. Automobiles.
If automobile passenger specifically undertakes a lookout, he is under a duty to do an ordinarily careful
job of it.
Where general verdict of guilty is not accompanied by answer to interrogatories, substantial error in the
charge of the court as to either of two alternative theories of liability or defense will require remand for
another trial. NRCP 49(b), 61.
8. New Trial.
Erroneous instruction as to duty or standard of care owing by one party to another is substantial error
requiring new trial.
9. Negligence.
Jury instruction that The misfortune of being deaf and mute does not relieve the afflicted person from
the duty to exercise ordinary care, but rather must impress upon him or her the duty of greater precaution to
avoid injury * * * was misleading and erroneous, since the instruction distinctly conveyed impression that
a person with impaired faculties must exercise greater than ordinary care for his own protection, whereas,
in fact, such person need rise no higher in his duty of care than the ordinary man with unimpaired faculties.
10. Negligence.
Persons with impaired faculties are obligated to use ordinary care for their own protection, and to achieve
the standard of ordinary care they must use their nonimpaired faculties to rise to that standard.
OPINION
This appeal is from a final judgment and an order denying appellant a new trial in a
personal injury action arising out of a two-car collision.
a two-car collision. The jury found for respondent (defendant below), driver of one vehicle,
and against appellant (plaintiff below), a passenger in the other vehicle. We think prejudicial
error was committed in instructing the jury, reverse the order and remand the action for a new
trial.
Appellant, Mrs. Dickinson, and their husbands were vacationing at Elk Point, Lake Tahoe,
Nevada, and had for several years past. All four were deaf mutes. Mrs. Dickinson was a
licensed California driver and qualified as a lawful operator in Nevada. Appellant had ridden
with her as a passenger on many previous occasions, including several crossings of U.S. 50
on Elk Point Road during 1965 and in previous years.
At midday on July 14, 1965, Mrs. Dickinson and appellant as her passenger were
travelling from Elk Point to the Round Hill Shopping Center east on Elk Point Road, which
crossed U.S. Highway 50. Elk Point Road is a two-lane roadway running east and west. U.S.
50 is a four-lane arterial highway running north and south. The highway is divided by double
yellow lines, not by islands. The intersection is controlled by a stop sign on Elk Point Road.
The day was warm and clear. The pavement was dry.
They stopped at the intersection, both looked left, or north, along U.S. 50 and then right, or
south, where they could see considerable distance to the crest of a hill. They both observed
cars approaching the intersection from the south. They waited, and they both looked in each
direction a second time and then proceeded across the four lanes of U.S. 50 at about 10 to 12
miles per hour. The Dickinson Pontiac was struck by the Lamb Lincoln on the right side
where appellant was sitting. Neither Mrs. Dickinson nor appellant observed the Lamb
automobile until it struck them. After the Dickinson auto started across the intersection,
appellant maintained no lookout but directed her gaze to the accelerator of the car. Appellant
was knocked unconscious, hospitalized for six weeks, suffered from a cerebral concussion, a
skull fracture, a fracture of the left pelvis, several fractured ribs, and a contusion of the right
lung.
Respondent, Mrs. Lamb, had been visiting her mother in Placerville, California. She left
for Reno about 9 a.m., driving a 1965 Lincoln automobile for the first time, stopped for
breakfast at Lake Tahoe, and then proceeded north on U.S. 50 toward Carson City. As she
approached Elk Point Road she came over the crest of a hill, traveling about 40-45 miles per
hour, in the outside or east lane. At a distance of about 1,000 to 1,500 feet she observed a
beer truck and a white automobile stopped on Elk Point Road, on opposite sides of U.S. 50
at the intersection.
stopped on Elk Point Road, on opposite sides of U.S. 50 at the intersection. She then changed
to the inside lane, and approximately 150 feet from the Elk Point Road intersection observed
the white Pontiac directly in front of her. She applied her brakes, sounded her horn, swerved
to the right, or east, but collided with Mrs. Dickinson's automobile.
The jury returned a verdict for respondent. Appellant moved for a new trial, which was
denied and from which this appeal is taken.
The issues for our decision are these:
I. Did the giving of Instruction No. 29 concerning the duty of an automobile passenger to
look out and give warning constitute reversible error?
II. Was it reversible error to give Instruction No. 12 concerning the standard of care which
must be exercised by one suffering from a physical impairment?
III. Did Instruction No. 18 unfairly and erroneously state the law of the right-of-way of a
driver upon a public highway?
I. Instruction 29 reads as follows: A passenger in an automobile is under a legal duty to
take ordinary precautions for her own safety and to use ordinary care for her own protection,
and whether or not she exercises ordinary care for her own safety is a question of fact for the
jury to decide. A passenger in an automobile cannot shut her eyes to danger in blind reliance
upon the driver, but must take such action for her own protection as a person of ordinary care
and prudence would take under the same or similar circumstances.
Appellant contends it was error to give the last sentence of that instruction because it (1)
incorrectly states the law, (2) was not warranted by the facts in the case, (3) was
argumentative, and (4) was prejudicial because of the manner it was commented upon by
respondent's counsel during argument.
Respondent, on the other hand, contends Instruction 29 (1) was not objected to with
specificity as required by NRCP 51, (2) imposed upon the passenger only the duty of ordinary
care, and (3) was proper under the facts and circumstances of this case.
A. During settlement of instructions, counsel for appellant made the following objection to
Instruction 29: We object to the giving of Instruction 31 [now No. 29] on the grounds that
the statement is simply taken from a case, not from any appropriate book of instructions, and
we object particularly, your Honor, to this phrase, A passenger in an automobile cannot shut
her eyes to danger in blind reliance on a driver, but must take such action for her own
protection as a person of ordinary care and prudence would take under the same or
similar circumstances.'
take such action for her own protection as a person of ordinary care and prudence would take
under the same or similar circumstances.'
I think the first part of thethe first sentence correctly states the law. I think the second
part reiterates and emphasizes and uses adjectives, where it shouldn't be using such words as
blind reliance,' and things like that. That's argumentative. (Emphasis added.)
The Court, in ruling on the objection stated, All right, it will be noted.
NRCP 51 states in part that: No party may assign as error the giving or the failure to give
an instruction unless he objects thereto before the jury retires to consider its verdict, stating
distinctly the matter to which he objects and the grounds of his objection. (Emphasis added.)
The rule has been interpreted in several decisions by this court. They are: Lathrop v.
Smith, 71 Nev. 274, 288 P.2d 212 (1955); Wagon Wheel v. Mavrogan, 78 Nev. 126, 369
P.2d 688 (1962); Duran v. Mueller, 79 Nev. 453, 386 P.2d 733 (1963); Hotel Riviera v.
Short, 80 Nev. 505, 396 P.2d 855 (1964); Downing v. Marlia, 82 Nev. 294, 417 P.2d 150
(1966); Shoshone Coca-Cola Bottling Co. v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966), and
Tidwell v. Clarke, 84 Nev. 655, 447 P.2d 493 (1968). The specific objective of the rule is to
apprise the trial court of error before it occurs and to assist the judge in giving legally correct
instructions to the jury.
[Headnote 1]
Appellant's counsel told the court the first sentence of Instruction 29 correctly stated the
law, a fortiori; the second sentence incorrectly stated the law. He also specifically told the
court it was argumentative and that considering the objection as a whole, it would be
prejudicial. The judge indicated he understood the objection by stating, All right, it will be
noted.
Is that a sufficient objection under the authorities to preserve the error for our
consideration? We think so.
[Headnote 2]
Counsel, in the heat of a trial, cannot be expected to respond with all the legal niceties and
nuances of a brief writer. If no objection to an instruction is made, there is no compliance
with Rule 51 and the error is not preserved for appellate consideration. Wagon Wheel v.
Mavrogan, supra; Hotel Riviera v. Short, supra; Shoshone Coca-Cola Bottling Co. v.
Dolinski, supra. If an objection is so general that it does not state any ground, review will be
denied.
review will be denied. Lathrop v. Smith, supra. If it is merely contended that an instruction is
proper and should be given, review is precluded unless there is plain error. Downing v.
Marlia, supra. And in Tidwell v. Clarke, supra, we gave an example of plain error. We
think the objection here meets the test of Tidwell v. Clarke. Appellant's counsel was
sufficiently alert and legally observant to agree with the court that one sentence of Instruction
29 correctly stated the law, while another did not. Counsel, in their briefs before the court,
have spent hours and pages researching, legally analyzing and arguing the correctness of that
one sentence of Instruction 29. It will still not be settled in this state unless we agree to
consider the alleged error. It seems harsh to refuse consideration of an alleged erroneous
instruction under these circumstances.
[Headnote 3]
Was the second sentence of Instruction 29 erroneous, and if so, was it prejudicial,
requiring reversal and retrial? We think it was prejudicially erroneous. We also think it was
not supported by the evidence.
[Headnote 4]
B. There is no question but that a passenger in an automobile has a legal duty to take
ordinary precautions for his own safety, use ordinary care for his own protection, and that the
determination of whether this duty is complied with is one of fact for the jury.
It is also unquestionably the majority rule in the United States that a passenger in an
automobile has no duty of lookout or duty to warn the driver in the absence of special
circumstances. Restatement of Torts Second, Sec. 495, Comments c-f, pages 556-558; Duffy
v. Flynn, 72 Nev. 278, 302 P.2d 967 (1956); Frame v. Grisewood, 81 Nev. 114, 399 P.2d 450
(1965); Drake v. Driscoll, 267 F.2d 274 (5th Cir. 1959); Watters v. Parrish, 115 S.E.2d 1
(N.C. 1960); Lamfers v. Licklider, 332 S.W.2d 882 (Mo. 1960); Robinson v. Cable, 11
Cal.Rptr. 377 (Cal. 1961); Pobor v. Western Pacific Railroad Co., 359 P.2d 474 (Cal. 1961);
Klein v. Southern Pacific Co., 21 Cal.Rptr. 233 (D.C.App. 1962); Van Pelt v. Carte, 26
Cal.Rptr. 182 (D.C.App. 1962); Mitchell v. Colquette, 379 P.2d 757 (Ariz. 1963); Borders v.
Borders, 376 S.W.2d 519 (Ky. 1964).
[Headnotes 5, 6]
The special circumstances which create the duty are obvious, imminent, danger, of which
the passenger is aware and the driver is not; or where the driver is sleepy or intoxicated,
which is known to the passenger; or where road or weather conditions are particularly
hazardous.
driver is not; or where the driver is sleepy or intoxicated, which is known to the passenger; or
where road or weather conditions are particularly hazardous. Otherwise, the passenger should
refrain from advice, instruction or attempted control over the driver, for fear of creating more
danger by a distraction rather than lessening it by unwarranted, unwise advice. If the
passenger specifically undertakes a lookout, then he is under a duty to do an ordinarily careful
job of it.
Instruction No. 29 states in part that, A passenger in an automobile cannot shut her eyes
to danger in blind reliance upon the driver. . . . This is not an accurate statement of the law
concerning the duty of lookout and warning as set forth above. In the absence of special
circumstances a passenger is entitled to rely on the driver. That this instruction was
prejudicial is clearly demonstrated in the argument to the jury by respondent's counsel
relating to the second sentence of Instruction 29. He argued at various times to the jury as
follows: The plaintiffs have the burden of proof in this case, proof to show that Mrs. Baker
was negligent, and if in this case she was not, and if Mrs. Otterbeck, along with Mrs.
Dickinson, failed to look, and Mrs. Otterbeck was not careful herself, then she is not legally
expected to recover damages.
There is no testimony that either Mrs. Dickinson or Mrs. Otterbeck ever saw the other
car. Now, doesn't that tell you, assuming for a moment that the car was traveling at a speed of
60 miles an hour, Mrs. Otterbeck sitting on the right of the car, right side of that car, had she
looked to the right at all could have seen an automobile coming down the highway, if you
assume it was going sixty miles an hour. And, ladies and gentlemen, the failure to look and
see on the part of Mrs. Otterbeck bars a recovery for damages in this case. (Emphasis
added.)
Those arguments of respondent's counsel literally told the jury that if appellant didn't keep
a lookout (which she did not), she couldn't recover from respondent. That part of Instruction
29, together with that argument, constitutes reversible error, justifying a retrial.
C. NRCP 61 commands that we shall disregard any error which does not affect the
substantial rights of the parties.
This is a case in which a plaintiff-passenger, who was not in control of the car in which
she was riding, was defeated in her effort to recover damages from the driver of the adverse
car. She did not sue her host. The defendant denied liability on two grounds. First, that the
sole proximate cause of the collision was the negligence of Mrs.
was the negligence of Mrs. Dickinson, the host driver. Second, that the plaintiff-passenger
was herself guilty of contributory fault in failing to control the manner in which her host
drove the car. Rest. Torts, 2d ed., Section 495.
[Headnotes 7, 8]
Since the jury returned a general verdict, we are not apprised of the basis for its decision.
Recovery may have been denied because the jury believed that the defendant was not
negligent and that the sole proximate cause of the collision was the negligence of Mrs.
Dickinson, the host driver; or, because the plaintiff-passenger was in some way guilty of
contributory fault in causing the accident. A request was not made that the general verdict of
the jury be accompanied by answers to interrogatories. NRCP 49(b). In these circumstances,
substantial error in the charge of the court as to either of the alternative theories of liability or
defense would require a remand for another trial. Lightenburger v. Gordon, 81 Nev. 553, 579,
407 P.2d 728 (1965). Indeed, an erroneous instruction as to the duty or standard of care owing
by one party to the other is substantial error requiring another trial. Murdock v. Petersen, 74
Nev. 363, 332 P.2d 649 (1958).
Instruction No. 29 concerned the duty of the plaintiff passenger and also dealt with one of
the alternative theories of defense. Accordingly, under the Lightenburger and Murdock rules,
this case must be tried anew.
D. Appellant also contends that even if Instruction No. 29 correctly stated the law
concerning the duty of lookout and duty to warn, it should not have been given in this case
because the evidence does not support a finding of any special circumstances which would
give rise to such a duty on the part of appellant. Since this case is remanded for new trial, we
feel that this issue should be decided for the direction of the lower court.
No cases have been found by counsel on this appeal, nor by the court, which makes
deafness alone a special circumstance creating a duty to keep a lookout by appellant. The
evidence indicates appellant did not keep a lookout for other traffic or dangers, but looked at
the accelerator of Mrs. Dickinson's car as it proceeded across the intersection of U.S. 50 and
Elk Point Road. In fact, the evidence which was presented tended to eliminate any special
circumstances which would have created the duty of lookout. The same passenger and driver
had traversed the same intersection many times before that same week and in previous years.
They both looked north and south on U.S. 50 before starting across.
U.S. 50 before starting across. The inference from that evidence is that they concluded the
opportunity of traversing the intersection could be safely and timely made.
It is doubtful under the evidence in the present record that the second sentence of
Instruction 29 should have been given at all.
There are two additional allegations of error for our consideration.
II. Instructions Nos. 11 and 12 read as follows: 11. The conduct of a person using the
streets or highways of this state, when such person is suffering from physical impairment, is
to be measured by the conduct of a reasonably prudent person suffering from the same
physical impairment in the same or similar circumstances. People who can neither speak nor
hear, must exercise proportionately more precaution that one who can speak and hear in order
to meet the standard of ordinary care.
12. The misfortune of being deaf and mute does not relieve the afflicted person from the
duty to exercise ordinary care, but rather must impress upon him or her the duty of greater
precaution to avoid injury, since strangers have no notice of the infirmity, and have the right
to suppose that parties will act the same as persons of the ordinary senses.
[Headnote 9]
Appellant contends that part of Instruction 12 was error. The objected-to part is as follows:
. . . but rather must impress upon him or her the duty of greater precaution to avoid injury. . .
. We agree it was error and misleading, but standing alone would not be prejudicial or
warrant reversal.
[Headnote 10]
There is no doubt a person with impaired faculties is obligated to use ordinary care for
their own protection, and to achieve the standard of ordinary care they must use their
nonimpaired faculties to rise to that standard. Restatement of Torts, Second, Section 283C,
Comment c, page 18; Prosser, Law of Torts, Third Edition, Section 32, page 155; Vol. 5,
Personal Injury, Negligence, Section 4.01 (d), pages 366-367; Keith v. Worcester & B. V. St.
R. Co., 82 N.E. 680 (Mass. 1907); Carroll v. C. V. & Q. Ry. Co., 142 Ill.App. 195 (1908);
Reynolds v. Los Angeles Gas & Electric Co., 122 P. 962 (Cal. 1912); Trumbley v. Moore, 39
N.W.2d 613 (Neb. 1949); Goodman v. Norwalk Jewish Center, 139 A.2d 812, 815 (Conn.
1958).
The objected-to part of Instruction 12 is misleading and does not correctly state the law.
does not correctly state the law. Jones v. Bayley, 122 P.2d 293 (Cal.App. 1942). It distinctly
conveys the strong impression that a person with impaired faculties must exercise greater
than ordinary care for his own protection. Such is not the law. Conjorsky v. Murray, 287 P.2d
505 (Cal.App. 1955). He need rise no higher in his duty of care than the ordinary man with
unimpaired faculties. To reach that standard of ordinary care in some circumstances,
however, he must compensate for or make up the difference with his unimpaired faculties.
Cucinella v. Weston Biscuit Co., 265 P.2d 513 (Cal. 1954), footnote 2, Page 516. The giving
of such an instruction would presume, of course, that there was evidence before the court
which justified such instruction, as where the failure to exercise the duty of ordinary care was
the result of some impaired faculty. There is nothing in the record to show the appellant was
obligated to hear the approach of respondent's automobile.
III. Appellant complains as error the giving of Instruction 18. That instruction reads as
follows: The driver of a vehicle upon a public highway who is acting lawfully and without
negligence and has the right-of-way is entitled to assume, in the absence of reasonable
grounds to think otherwise, that other persons using or entering upon the highway will obey
the law and exercise ordinary care and to assume that such other person will yield the
right-of-way to her. Appellant suggests that Instruction 18 should be further qualified or
apply only when vehicles are approaching the intersection at approximately the same time.
It is true that Instruction 18 must be read with Instruction 24, a quotation of NRS 484.163,
which was given to the jury and reads in part as follows: Such driver after having stopped
shall yield the right of way to any vehicle which has entered the intersection from another
highway or which is approaching so closely on such highway as to constitute an immediate
hazard, but the driver having so yielded may proceed and the drivers of all other vehicles
approaching the intersection shall yield the right of way to the vehicle so proceeding.
The correct analysis of the right of way between a driver on an arterial highway such as
U.S. 50 and a secondary roadway such as Elk Point Road was stated in Botts v. Rushton, 63
Nev. 426, 172 P.2d 147 (1946), at page 439. That opinion reads:
A driver on a through or arterial highway who is driving at lawful speed and in a lawful
manner has the right of way at an intersection with a secondary stop sign highway, and is
entitled to assume that a driver on the latter will obey the law until the contrary appears, or
should appear, to a reasonable man in his position.
man in his position. If the favored driver, keeping a careful lookout as he approaches or enters
the intersection, sees or becomes aware of anything indicating that the driver on the
secondary highway does not intend to yield the right of way, he is bound to use the care of an
ordinary prudent person in endeavoring to avoid an accident. If the driver on the favored
highway is himself free from negligence in approaching the intersection, he has the right to
presume that the driver on the disfavored highway will yield the right of way to him and not
proceed into the intersection until he can do so without creating a traffic hazard. The purpose
of arterial highways is to facilitate through traffic, afford rapid transit, and permit vehicles
thereon to move freely, thus accelerating the flow of traffic over such favored highways. As a
general rule it is not necessary for drivers on such highways to stop or slow up as they reach a
stop sign intersecting highway in order to ascertain whether or not the driver on the latter is
going to stop and yield the right of way. The right of way enjoyed by the driver on the favored
highway does not relieve him of the duty to keep a careful lookout so that he may observe
whether the driver on the disfavored highway is going to yield the right of way; but he is not
obliged to have his car under such control at an intersecting stop sign highway that he may
stop at once and so avoid collision with persons who may illegally come into his path. . . .
The favored driver's right of way is not absolute. Upon retrial we feel an instruction should
be drafted and given to the jury which incorporates the qualified right of each driver
approaching such an intersection.
The judgment and order denying new trial is reversed and the matter remanded for further
proceedings.
____________
85 Nev. 466, 466 (1969) Boley v. State
BONITA NADINE BOLEY, Appellant, v. THE
No. 5697
July 14, 1969 456 P.2d 447
Appeal from the First Judicial District Court, Churchill County; Frank B. Gregory, Judge.
Defendant was convicted in the trial court of grand larceny, and she appealed. The
Supreme Court, Collins, C. J., held that where there was substantial evidence of
defendant's guilt of grand larceny and trial judge admonished jury to disregard questions
put to defendant as to prior felony conviction, error in prosecutor's asking question
without being prepared to prove prior conviction by exemplified copy of judgment was
harmless and would not require reversal.
85 Nev. 466, 467 (1969) Boley v. State
that where there was substantial evidence of defendant's guilt of grand larceny and trial judge
admonished jury to disregard questions put to defendant as to prior felony conviction, error in
prosecutor's asking question without being prepared to prove prior conviction by exemplified
copy of judgment was harmless and would not require reversal.
Affirmed.
Johnson & Sloan, of Reno, for Appellant.
Harvey Dickerson, Attorney General, and Dennis E. Evans, District Attorney, Churchill
1. Larceny.
Though better practice would have been to call maker of check, drawee bank, or payee for corroborating
testimony as to money due on checks allegedly stolen by defendant, admission of checks totaling in face
value $781 and proof that checks were received in due course of business and were unpaid sufficiently
showed that value of $100 or more was involved so as to support conviction of grand larceny. NRS
205.220, 205.260.
2. Witnesses.
Inquiry as to whether accused who offers himself as a witness has previously been convicted of a felony
may not be made unless there are persuasive grounds for prosecutor to believe that accused has been
previously convicted of felony and prosecutor is prepared to document that fact if witness denies having
any prior felony convictions. NRS 48.020.
3. Witnesses.
The only irrefutable documentation of prior conviction of the accused who offers himself as a witness is
from exemplified copy of judgment. NRS 48.020.
4. Criminal Law.
Where there was substantial evidence of defendant's guilt of grand larceny and trial judge admonished
jury to disregard questions put to defendant as to prior felony conviction, error in prosecutor's asking
questions without being prepared to prove existence of prior conviction by exemplified copy of judgment
was harmless and would not require reversal. NRS 48.020.
OPINION
This is an appeal from a conviction of grand larceny. We affirm the conviction.
Appellant and Reianne Melody Boley were charged with taking checks of the face value of
$781.00 and currency in the amount of $39.00 from the open safe in the office of Dr. William
Mason, Fallon, Nevada, on July 27, 1967.
85 Nev. 466, 468 (1969) Boley v. State
During the joint trial of both defendants, Reianne changed her plea to guilty and testified
as a state's witness. The trial continued against appellant. A jury found her guilty. She appeals
the conviction.
During the trial, the state offered in evidence 21 checks totaling in face value $781.00. All
bore the stamped endorsement of William L. Mason, M.D. Other proof was offered by the
state that the checks were received in payment of accounts receivable and were unpaid on the
date stolen.
Also during trial, appellant was cross-examined before the jury as to alleged prior felony
convictions. She denied any such convictions. The state, though armed with FBI rap sheets
and some additional information regarding her alleged past felony convictions obtained
through communications with authorities in another state, was not then in possession of
exemplified copies of conviction records.
The court, on motion of the state, granted a continuance to allow the state to obtain
exemplified copies of two alleged past felony convictions. When the records were obtained,
both convictions were found to be for misdemeanors only.
The district attorney explained that such misinformation as to appellant's past criminal
record had occurred through inaccuracy of the rap sheet and incorrect information obtained
through communication with officials of a sister state. Because considerable discussion of
appellant's alleged felony record had occurred before the jury, appellant moved for a mistrial.
That motion was denied by the trial judge, who then made the following statement to the jury:
Ladies and Gentlemen of the Jury, during the time that you were absent from the courtroom
disclosure has been made to the court and the defendant which in our opinion requires some
word of explanation and some instruction to you.
You will recall that at our last court session last week, before this long recess was taken,
questions were asked of the defendant concerning her prior conviction of a felony.
I must instruct you that counsel have now disclosed to the court circumstances which
indicate that those questions were asked in good faith and in reliance upon an official
government record which has proven to be erroneous. The record was wrong.
I feel it proper to instruct you that the defendant in this case, BONITA NADINE BOLEY,
has not ever been convicted of a felony and accordingly you are required to disregard and set
aside the questions that were asked of her. . . .
85 Nev. 466, 469 (1969) Boley v. State
The issues before us in the appeal are these:
I. Was the evidence as to the value of the stolen checks sufficient to support a conviction
for grand larceny?
II. Did the questioning of appellant by the prosecution concerning her alleged prior felony
convictions constitute reversible error?
1. Grand larceny is the stealing of property of the value of $100.00 or more. NRS
205.220. In this case, since only $39.00 in cash was taken, it was necessary to prove the value
of the stolen checks.
NRS 205.260, concerning larceny of negotiable instruments reads as follows: Bonds,
promissory notes, bank notes, bills of exchange, or other bills, orders, drafts, checks, receipts
or certificates, or warrants for or concerning money, goods or property, due, or to become
due, or to be delivered, or any public security issued by the United States or by this state, and
any deed or writing containing a conveyance of land or valuable contract, in force, or any
release or defeasance, or any other instrument whatever, shall be considered personal goods,
of which larceny may be committed; and the money due thereon, or secured thereby and
remaining unsatisfied, or which, in any event or contingency, might be collected thereon, or
the value of the property transferred or affected thereby, as the case may be, shall be deemed
the value of the article stolen.
That statute (1919 RL Sec. 6645, now NRS 205.260) has been construed but once in
Nevada, in Ex parte Taylor, 49 Nev. 110, 238 P. 998 (1925). In a successful habeas corpus
attack against the sufficiency of an information allegedly charging a felony under that statute,
where grand larceny was charged as stealing two checks in the sum of one hundred ($100) . .
. , the court said, This statute, which is common to a number of states, simply designates
certain instruments as the subjects of larceny and establishes a rule of evidence, whereby the
value of the check or other instrument stolen may be determined on the trial of the case. It
constitutes no part of the description of the offense of larceny, and does not dispense with the
necessity of alleging the value of the property stolen.
We think the proof at trial satisfied the statute and its interpretation in Taylor, supra. In
State v. Cassill, 229 P. 716 (Mont. 1924), in construing a similar statute, it was held that
introduction into evidence of one note was sufficient proof to make out a prima facie case as
to the value of such note. The court stated, "[N]o one can challenge successfully the right
of the Legislature to fix prima facie the value of commercial paper for the purpose of a
criminal prosecution, and since our Legislature has prescribed such a standard, the court
did not err in submitting it for the jury's consideration and use."
85 Nev. 466, 470 (1969) Boley v. State
court stated, [N]o one can challenge successfully the right of the Legislature to fix prima
facie the value of commercial paper for the purpose of a criminal prosecution, and since our
Legislature has prescribed such a standard, the court did not err in submitting it for the jury's
consideration and use. Likewise, in People v. Quiel, 157 P.2d 446 (Cal.App. 1945), the court
stated that proof of unpaid bank checks of specified amounts is sufficient evidence of values
of the sums which in any contingency might be collected thereon.'
[Headnote 1]
It no doubt would have been better practice to call the maker of the check, the drawee
bank, or the payee for corroborating testimony as to money due, or which might be collected
upon the checks. But in view of the proof in the record the checks were received in due
course of business and were unpaid, there was no error in proof of value.
2. An accused who offers himself as a witness, if previously convicted of a felony, may be
examined on that fact. NRS 48.020.
[Headnotes 2, 3]
This inquiry may not be made unless there are persuasive grounds for the prosecutor to
believe it to be true and the prosecutor is prepared to document it if the witness denies having
any prior felony convictions. There can be only one irrefutable documentation of the
conviction and that is from the exemplified copy of the judgment. There may be other proof,
but reliance thereon may produce the very problem indicated here.
We said in Fairman v. State, 83 Nev. 287, 429 P.2d 63, It was error for the prosecution to
ask the question [about a prior felony conviction] because it was unprepared to prove its
existence in the event of Fairman's denial. The identical situation is present here.
[Headnote 4]
In Fairman, we held the error to be harmless because of the court's admonishment to the
jury to disregard the question. We are asked to do the same thing here because of a similar
admonishment and the trial court's finding that the prosecutor had asked the question in good
faith and in reliance upon an official government record which proved to be erroneous.
There is substantial evidence of guilt, and we conclude the error to be harmless. We hold,
however, in any criminal case commenced after this date in which a prosecutor in this state
asks such a question and is not prepared to document the conviction, we shall review the
point with great care.
85 Nev. 466, 471 (1969) Boley v. State
asks such a question and is not prepared to document the conviction, we shall review the
point with great care.
The conviction is affirmed.
____________
85 Nev. 471, 471 (1969) Maloff v. B-Neva, Inc.
SASHA MALOFF, Appellant, v. B-NEVA, INC.,
a Corporation, Respondent.
No. 5750
July 14, 1969 456 P.2d 438
Appeal from judgment of the First Judicial District Court, Douglas County; Richard L.
Waters, Jr., Judge.
Action by optionee against optionor to recover consideration paid for options to purchase
real estate. The lower court entered judgment for the optionor and the optionee appealed. The
Supreme Court, Thompson, J., held that where optionee exercised options for purchase of
real estate by giving unequivocal notice of his present intention to do so but optionor did
nothing further because he never received copy of escrow instructions which he was to
approve and optionee did nothing because he never received in return any approved
instructions, there was no breach of bilateral contract for sale of land and optionor was
entitled to opportunity to accept escrow instructions within reasonable time and the optionee
to proceed with the purchase through escrow within prescribed time thereafter or forfeit the
consideration which he paid for the options.
Reversed and remanded for entry of judgment in accordance with this opinion.
Lester H. Berkson, of Zephyr Cove, for Appellant.
Manoukian & Manoukian, of Zephyr Cove, for Respondent.
Where optionor prescribed notice of optionee's present intention to exercise option as mode of
acceptance, optionee's giving of unequivocal notice of present intention to exercise options created bilateral
contract of sale of real estate.
Where optionee exercised options for purchase of real estate by giving unequivocal notice of his present
intention to do so but optionor did nothing further because he never received copy of
escrow instructions which he was to approve and optionee did nothing because he
never received in return any approved instructions, there was no breach of bilateral
contract for sale of land and optionor was entitled to opportunity to accept escrow
instructions within reasonable time and the optionee to proceed with the purchase
through escrow within prescribed time thereafter or forfeit consideration which he
paid for the options.
optionor did nothing further because he never received copy of escrow instructions which he was to
approve and optionee did nothing because he never received in return any approved instructions, there was
no breach of bilateral contract for sale of land and optionor was entitled to opportunity to accept escrow
instructions within reasonable time and the optionee to proceed with the purchase through escrow within
prescribed time thereafter or forfeit consideration which he paid for the options.
OPINION
By the Court Thompson J.:
This case concerns two option agreements for the purchase of parcels of real property at
Lake Tahoe. The optionee, Maloff, brought suit against the optionor, B-Neva, Inc., to recover
$20,000 paid as consideration for the options. The district court held that the optionee had not
exercised his options and had forfeited the consideration paid for them. From the judgment
entered for the optionor, the optionee has appealed. We have concluded that the options were
validly exercised, that neither party repudiated his obligations thereafter, and that each
remains conditionally bound to perform the agreements.
Three separate parcels of land are involved. On September 28, 1965 Maloff purchased
parcel A from B-Neva for $100,000; $29,000 down, and the balance pursuant to a promissory
note secured by a deed of trust. At that time it was agreed that Maloff would be given options
to purchase parcels B and C upon the same terms as the purchase of Parcel A. He paid
$10,000 for each option. Formal option agreements were later prepared and recorded. Each
option provided: Optionee, Sasha Maloff, to signify his intention to take or reject the same
by due notice in writing within the time above specified, and a failure to serve such notice
within the time specified shall terminate this option without further action, time being the
essence of this agreement.
It is undisputed that the optionee, Maloff, timely notified the optionor of his intent to
exercise his options. What thereafter occurred is uncertain. There is evidence that the
optionee immediately opened an escrow with Nevada Title Guaranty Co. with instructions as
to payments, etc., conforming to the terms upon which parcel A was purchased. Those
instructions required the approval of the seller optionor before the buyer optionee was to
make his down payments and sign promissory notes. There is evidence also that the
instructions thus prepared were mailed to the optionor. The optionor denies ever receiving a
copy of the escrow instructions, and the trial court apparently believed the optionor on
this point.
a copy of the escrow instructions, and the trial court apparently believed the optionor on this
point. Nothing more was done by either party until this suit was commenced. In short, the
seller did nothing because he never received a copy of the escrow instructions which he was
to approve, and the buyer did nothing because he never received in return any approved
instructions.
[Headnotes 1, 2]
The options were exercised when the optionee gave unequivocal notice of his present
intention to do so. This was the mode of acceptance prescribed by the optionor. The firm
option offer became a bilateral contract of sale when acceptance was given in the manner
prescribed. Vol. 1A, Corbin on Contracts 264 at 513-14; see also Finnell v. Bromberg, 79
Nev. 211, 381 P.2d 221 (1963), and Milner v. Dudrey, 77 Nev. 256, 362 P.2d 439 (1961),
where both notice and tender of performance was required. Neither was in default thereafter
for the reasons already expressed, and neither should be penalized at this juncture. Professor
Corbin briefly alluded to this situation when timely notice of acceptance has been given,
stating: If neither party repudiates, or makes tender, no breach has occurred. How long this
situation might continue, and yet both parties remain conditionally bound has not been
established by the law. It probably would be a rather long time, since the two parties are
exactly on a par and neither is in default. Id. at 602.
Fairness demands that liability should not at this time be assessed to either party for the
impasse thus reached. The seller should have an opportunity to accept the escrow instructions
within a reasonable time, and the buyer to proceed with his purchase through escrow within
45 days thereafter, or forfeit the consideration which he paid for the options.
1

Reversed and remanded for entry of judgment in accordance with this option.
____________________

1
This period of time for the buyer's performance was specified in the purchase of parcel A, and since the
options are on the same terms, applies here as well.
____________
85 Nev. 474, 474 (1969) Casper v. Huber
GERALD THOMAS CASPER, Appellant, v. LILLIE C.
HUBER and FRANCIS WILLIAM HUBER, Respondents.
No. 5932
July 15, 1969 456 P.2d 436
Appeal from order terminating parental rights and granting adoption. Second Judicial
District Court, Washoe County; Thomas O. Craven, Judge.
The Supreme Court, Zenoff, J., held that evidence supported findings that child, whose
mother had left her with aunt and uncle, and whose father had been convicted of first-degree
murder and sentenced to prison for 25 to 30 years, was abandoned and that best interests of
the child were properly served by order terminating parental rights and granting adoption. The
Court further held that appointment of counsel to enable father, who was pauper, to appeal
from order terminating parental rights would be denied where no arguable issues were
presented.
Appeal dismissed.
[Rehearing denied August 18, 1969]
Gerald Thomas Casper, in proper person.
William L. Hadley, of Reno, for Respondents.
Appointment of attorney to represent pauper is provided by statute only for trial level of litigation, not for
appeals. NRS 12.015, subd. 1(a)(2).
Where father's impecuniosity prevented his appeal from order terminating parental rights, Supreme Court
under its inherent powers waived filing fee requirement.
Other than appointment of counsel for one who petitions for termination of parental rights or for minor in
such proceedings there is no statutory right to appointment of counsel for appellate review in proceedings
to terminate parental rights. NRS 128.100, 128.140.
Appointment of counsel to enable father, who was pauper, to appeal from order terminating parental
rights would be denied, where no arguable meritorious issues were presented.
5. Adoption.
Evidence in adoption proceeding supported findings that child, whose mother had left her with aunt and
uncle, and whose father had been convicted of first-degree murder and sentenced to prison for 25 to 30
years, was abandoned and that best interests of the child were properly served by
order terminating parental rights and granting adoption.
for 25 to 30 years, was abandoned and that best interests of the child were properly served by order
terminating parental rights and granting adoption. NRS 128.010, subds. 2, 3.
OPINION
This is an adoption proceeding. Deborah, age ten at the time of the filing of the petition,
was born to Gerald and Shelvie Casper. Shortly after her birth Gerald left Deborah and her
mother who was compelled to seek welfare assistance for support. Thereafter for a few
months he paid $12.00 per week. In 1960 he was convicted of first degree murder and
sentenced to the North Carolina State Prison for a period of 25 to 30 years. All of the
foregoing events took place in North Carolina.
Shelvie placed the child in the care of her aunt and uncle with whom the child lived until
they instituted these proceedings to adopt Deborah. Shelvie executed a relinquishment in
favor of the adoption. Gerald, in prison, having been given notice as required by statute,
objected although he acknowledged that leaving the child with the aunt and uncle was
satisfactory with him provided he could correspond with the child and visit her whenever able
to do so.
The Washoe County Legal Aid Society was appointed to represent the father at the
adoption hearing. Casper, of course, was not present, but the court-appointed counsel did
appear for him with his knowledge and permission. The trial court found that the father failed
to provide proper parental care, custody, guidance, maintenance or support, that the child had
suffered severe environmental deprivation while with her natural parents, that therefore she
was an abandoned and/or neglected child as defined by NRS 128.010(2) and (3),
1
and that
the father was an unfit parent as defined in NRS 12S.010{4)2 concluding with a
termination of Gerald's parental rights and granting the adoption to the aunt and uncle.
____________________

1
128.016 WORDS AND TERMS DEFINED.
. . . .
2. Abandonment of child imports any conduct of one or both parents of a child which evinces a settled
purpose on the part of one or both parents to forego all parental custody and relinquish all claims to the child,
and a parent or parents of a child who shall leave the child in the care and custody of another without provision
for his support and without communication for a period of 6 months shall be presumed to have intended to
abandon the child.
3. Neglected child is any child who:
(a) Lacks the proper parental care by reason of the fault or habits of his parent, guardian or custodian.
(b) A child whose parent, guardian or custodian neglects or refuses to
father was an unfit parent as defined in NRS 128.010(4)
2
concluding with a termination of
Gerald's parental rights and granting the adoption to the aunt and uncle.
This court was requested by Gerald to allow him to file an appeal without payment of a
filing fee because he is a pauper and that we appoint an attorney to represent him for an
appeal.
[Headnotes 1-4]
There is no statutory authority for either of his requests. Pauper privileges are provided by
statute only for the trial level of litigation, not for appeals.
3
However, in cases where
impecuniosity prevents an appeal this court under its inherent powers will waive the $25.00
filing fee requirement which we did in this case. Appointment of counsel is statutorily
allowed only for one who petitions for termination of parental rights or for the minor in
proceedings such as these. NRS 128.100. The county bears the cost of such appointment.
NRS 128.140. Otherwise, there is no statutory right to appointment of counsel for appellate
review in this type of civil case as there is in criminal cases and other types of civil cases.
NRS 7.260, 136.200, 150.060, 171.188, 171.196, 177.345, 178.397, 260.060, 433.270. We
do not decide whether appointment of appellate counsel is required by Nevada Constitution
Article 1, 8 or the Due Process Clause of the Fourteenth Amendment to the United States
Constitution when a state terminates parental rights, because in our opinion the appeal is
clearly frivolous and appointed counsel would not be of any use.
[Headnote 5]
In evaluating the merits of an appeal from this record we find ample support for the
findings of the trial court. The best interests of the child were properly served by the order
of termination and granting of the adoption.
____________________
provide proper or necessary subsistence, education, medical or surgical care, or other care necessary for his
health, morals or well-being.
(c) A child whose parent, guardian or custodian neglects or refuses to provide the special care made necessary
by his physical or mental condition.
(d) A child who is found in a disreputable place, or who is permitted to associate with vagrants or vicious or
immoral persons.
(e) A child who engages or is in a situation dangerous to life or limb, or injurious to health or morals of
himself or others.

2
128.010 WORDS AND TERMS DEFINED.
. . . .
4. Unfit parent is any parent of a child who, by reason of his fault or habit or conduct toward the child or
other persons, fails to provide such child with proper care, guidance and support, or who knowingly permits such
child to associate with vagrants, vicious or immoral persons, or to live in a disreputable place.

3
NRS 12.015(1)(a)(2).
interests of the child were properly served by the order of termination and granting of the
adoption. There was substantial evidence in support of the finding of an abandonment. This
court in Carson v. Lowe, 76 Nev. 446, 357 P.2d 591 (1960), recognized the solemn duty of
the courts to question closely termination of parental rights. We find here that the trial court
met the standards.
There are no arguable meritorious issues presented which would necessitate the
appointment of an attorney for the purposes of an appeal.
The appeal is dismissed as frivolous.
____________
85 Nev. 477, 477 (1969) Johns v. McAteer
JULIE JOHNS, Appellant, v. DAVID CROCKETT McATEER,
EARL V. BROWN and CADY AUTO CO., Respondents.
No. 5701
July 22, 1969 457 P.2d 212
Appeal from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Action by guest against host driver and truck owner for injuries suffered in
automobile-truck collision. The trial court entered judgment for automobile driver and truck
owner, and guest appealed. The Supreme Court, Collins, C. J., held that it was not error to
refuse to give guest's requested instruction that speed in and of itself can constitute gross
negligence on part of driver where jury was instructed on definition of gross negligence and
on duty of care required by operator of motor vehicle, that although it was error to instruct
jury that statute required that all motor vehicles be equipped with chains or snow tires where
highway is marked for such requirements where there was no evidence that highway in
vicinity where accident occurred was so marked, no prejudice resulted from erroneous
instruction.
Affirmed.
Howard F. McKissick, Jr. and Richard P. Wait, of Reno, for Appellant.
Goldwater, Taber, Hill & Mortimer, and Echeverria and Osborne, of Reno, for
Respondents.
1. Trial.
It was not prejudicial error to refuse guest's requested instructions that speed in and of itself may under
particular circumstances constitute gross negligence on part of driver where court did instruct jury on
general definition of gross negligence and on duty of care which driver must exercise in operating motor
vehicle upon highway.
2. Trial.
There is no requirement that all offered instructions that correctly state the law be given.
3. Automobiles.
Applicable statutes and ordinances relating to operation of motor vehicles prescribe only minimum
prudent conduct and compliance therewith does not abrogate person's common-law duty to exercise
ordinary care.
4. Trial.
Even though there was ample evidence to warrant giving instruction about common-law duty of care
which may have required driver to use snow tires or chains while operating automobile on icy road, trial
court's failure to so instruct jury was not considered as error in absence of request for such instructions by
guest.
5. Appeal and Error; Trial.
It was error to instruct jury that statute required that all motor vehicles be equipped with chains or snow
tires when operated upon highway where snow or icy conditions exist and highway is marked for
requirements of chains or snow tires where there was no evidence that highway in vicinity where accident
occurred was so marked, but no prejudice resulted therefrom. NRS 484.470.
6. Automobiles.
Instruction that statutory provision that no person shall leave any vehicle standing upon main traveled
part of highway does not apply to driver of any vehicle which is disabled was not erroneous for failing to
state that disablement must not have been result of driver's prior negligence where there was evidence that
driver of truck which stalled on highway had made reasonable attempts to prevent truck from stalling.
NRS 434.231; NRCP 51.
OPINION
This is an appeal from a jury verdict and judgment in favor of respondents and from an
order denying appellant's motion for a new trial. The error asserted is the giving or failure to
give certain instructions to the jury. We affirm the judgment and order.
Appellant (plaintiff below) brought an action for personal injuries resulting from a
collision between the car in which she was riding as a guest, driven by respondent McAteer,
and a sheep truck driven by respondent Brown and owned by respondent Cady Auto Co.
sheep truck driven by respondent Brown and owned by respondent Cady Auto Co.
(defendants below).
On the evening of February 4, 1963, respondent McAteer and appellant Julie Johns left
Lake Tahoe in his 1959 Chevrolet El Camino to go to Sparks, Nevada, to see a floor show.
The weather was clear and the highway was dry when they left. They proceeded to Sparks via
Carson City, saw the midnight show at the Sparks Nugget, stopped for a late dinner at the
Mapes in Reno after the show, and about 2:30 to 3:00 a.m. commenced their drive back to
Lake Tahoe. Appellant went to sleep shortly after they left Reno. Between Reno and Carson
City a piece of tread came off one of McAteer's tires and he stopped in Carson City to have
the tire changed.
McAteer testified that as he proceeded up Highway 50 to Spooner Summit the weather
was clear and the highway was dry. He observed no ice on the highway. He reached the
summit and proceeded down the west side at about 50 miles per hour. There were no signs
warning of icy conditions. The highway was four lanes to the intersection of Highway 50 and
28 but reduced to two lanes from that point to the scene of the accident.
As McAteer continued downhill at a speed of approximately 50 miles per hour, he
observed two white lights which appeared to be headlights about one-quarter mile ahead of
him. He took his foot off the accelerator but did not apply his brakes. He next saw someone
running up the embankment waving a flashlight, and he immediately applied his brakes. The
application of his brakes caused him to go into a skid and he slid into a truck and trailer
stopped on the highway blocking the westbound lane of traffic. He testified this was the first
indication he had that there was ice on the road.
Respondent Earl Brown was the driver of the truck, owned by respondent Cady Auto Co.,
which was stopped on the highway. He and another driver were transporting a load of sheep
to California. The truck was a 1959 International, tandem axle truck, with a gross weight of
80,000 pounds. The driving wheels of the truck were equipped with snow tires; the trailer
wheels were not. Mr. Brown started driving at Fernley, Nevada, shortly after midnight. He
testified it was raining at the foot of Spooner Summit, where he stopped to check his tires.
There was a misty rain all the way up but visibility was good as far as the illumination of the
truck lights. When he reached the top of the summit it began to clear but the pavement was
still wet. He testified he was not aware of any ice on the highway.
He proceeded down the west side of the summit in second gear with five to seven pounds
of air drag on the brakes at a speed of five to ten miles per hour. At about one-quarter to
one-half mile before the accident he felt that something was a little bit wrong but he
couldn't place it. He woke his partner up, who came up front, but they could not ascertain
that anything was wrong and continued down the hill. The truck suddenly began to slide. He
prevented the truck from going over a steep embankment, but it did jackknife when it came
to a stop, blocking the westbound lane and protruding about one foot across the center line.
Officer David McCreary of the Douglas County Sheriff's office was patrolling the highway
from Glenbrook to the intersection of Highway 50 and 28 on the evening in question. He
testified that it had been raining on the evening of the accident but it started to clear, and
about 2:30 the temperature dropped, causing the water on the highway to freeze into a solid
sheet of ice. He observed Brown's truck driving down the highway at about five to ten miles
per hour and saw it go into a slide. The truck slid about 300 feet and stopped, blocking the
westbound lane. Within two minutes of this incident, he saw McAteer's automobile coming
down the highway at about 45 to 50 miles per hour. He told the truck drivers to get out of the
way and he waved his traffic baton two or three times and then removed himself from the
path of the vehicle. McAteer's vehicle slid for about 225 feet, but this did not reduce his
speed. The officer stayed at the scene of the accident, directing traffic around the accident,
until the highway could be cleared.
A complaint was filed on May 7, 1963, alleging negligence on the part of Brown and gross
negligence on the part of McAteer. The case was tried before a jury on November 27, 1967.
The jury found in favor of defendants and against plaintiff.
Plaintiff's motion for new trial was denied. Plaintiff appeals from the judgment and the
order denying the motion for new trial.
The issues presented for our consideration are these:
I. Did the district court err in refusing to give plaintiff's offered instructions B or C.?
II. Was the giving of instruction No. 16 prejudicially erroneous so as to constitute grounds
for reversal?
III. Was the giving of instruction No. 15 prejudicially erroneous so as to constitute
grounds for reversal?
1. Appellant requested, and the trial court refused to give, instruction B, which reads as
follows: Speed, in and of itself, may, under the particular circumstances of the case,
constitute such failure to exercise even a slight degree of care, such aggravated character
of act or omission, such absence of even slight diligence, or want of even scant care, such
indifference to present legal duty, such utter forgetfulness of legal obligations so far as
other persons may be affected, such heedless and palpable violation of legal duty
respecting the rights of others, as to constitute gross negligence," or in the alternative,
instruction C, which reads as follows: "Speed, in and of itself, may, under the particular
circumstances of a case, constitute gross negligence under the law of the State of
Nevada."
may, under the particular circumstances of the case, constitute such failure to exercise even a
slight degree of care, such aggravated character of act or omission, such absence of even
slight diligence, or want of even scant care, such indifference to present legal duty, such utter
forgetfulness of legal obligations so far as other persons may be affected, such heedless and
palpable violation of legal duty respecting the rights of others, as to constitute gross
negligence, or in the alternative, instruction C, which reads as follows: Speed, in and of
itself, may, under the particular circumstances of a case, constitute gross negligence under the
law of the State of Nevada.
Appellant asserts it was prejudicial error for the court to refuse to give one or the other of
those two instructions, and relies upon Kuser v. Barengo, 70 Nev. 66, 254 P.2d 447 (1953).
The court did give the general definition of gross negligence, set forth in Nevada Pattern
Civil Jury Instructions, No. 7.4, and taken directly from Hart v. Kline, 61 Nev. 96, 116 P.2d
672 (1941), which was subsequently approved in Kuser v. Barengo, supra, and Troop v.
Young, 75 Nev. 434, 345 P.2d 226 (1959). That instruction reads as follows: Gross
negligence is substantially and appreciably higher in magnitude and more culpable than
ordinary negligence. Gross negligence is equivalent to the failure to exercise even a slight
degree of care. It is materially more want of care than constitutes simple inadvertence. It is an
act or omission respecting legal duty of an aggravated character, as distinguished from a mere
failure to exercise ordinary care. It is very great negligency [sic], or absence of slight
diligence, or the want of even scant care.
The court also gave an instruction relating to the operation of vehicles upon the highways
in this state. That instruction reads as follows: It shall be unlawful for any person to drive or
operate a vehicle of any kind or character: (a) in a reckless manner on any street or highway
in this state; or (b) in any other than a careful or prudent manner; or (c) at a rate of speed
greater than is reasonable and proper, having due regard for the traffic, surface and width of
the highway; or (d) at such a rate of speed as to endanger the life, limb or property of any
person. . . .
[Headnote 1]
Appellant argues that because her proposed instructions B and C are correct statements of
law upon the authority of Kuser v. Barengo, supra; that because evidence was admitted of
respondent McAteer's speed under dangerous circumstances; and because reasonable men
might conclude that speed, in and of itself, may under those particular circumstances
constitute gross negligence, it was prejudicial and reversible error not to give one or the
other.
of itself, may under those particular circumstances constitute gross negligence, it was
prejudicial and reversible error not to give one or the other. We disagree.
An important purpose of instructions on law is to enable counsel to argue his theory of the
case to the jury which may be warranted, deduced or inferred from the pleadings and facts
admitted in evidence. Ample latitude was given to appellant's counsel for argument to the
jury that speed of the McAteer vehicle, in combination with the other factors of icy highway
and lack of snow tires or chains could constitute gross negligence under instructions 4 and 14,
given by the court and quoted above. The record shows that appellant's counsel argued that
very analysis and conclusion to the jury.
[Headnote 2]
There is no requirement that all offered instructions that correctly state the law must be
given. In Duran v. Mueller, 79 Nev. 453, 386 P.2d 733 (1963), this court held that: As a
general proposition the number of instructions to be given is discretionary with the court. If
one instruction adequately covers a given theory of liability or defense, it is preferable that
the court refuse additional instructions relating to the same theory, though couched in
different language. Here the issues to be tried were defendant's negligence, the plaintiff's
contributory negligence, causation, and, of course, damages if liability was found to exist.
The jury was properly instructed on those issues. The two instructions just mentioned were
merely embellishments which the court could properly refuse. (Emphasis added.)
2. Appellant objected to the giving of instruction 16, which reads as follows: The safety
requirements of the State of Nevada require all motor vehicles to be equipped with chains or
snow tires when operated upon a highway where snowy or icy conditions exist when the
highway is marked or signed for the requirement of chains or snow tires. That instruction
paraphrases NRS 484.470, which reads: TIRE CHAINS; SNOW TIRES. It shall be unlawful
for any person to operate a motor vehicle, whether the same be an emergency vehicle or
otherwise, without tire chains or snow tires upon any street or highway, under icy or snowy
conditions, when the highway is marked or signed for the requirement of chains or snow
tires.
There was no evidence or contention by respondents that the highway in the vicinity of the
accident was marked or signed for the requirement of chains or snow tires. Although it was a
correct statement of law, it was error to give it when not based upon evidence.
upon evidence. Week v. Reno Traction Co., 38 Nev. 285, 149 P.65 (1915).
[Headnote 3]
The law is clear that all motorists are under a twofold duty in operating motor vehicles: (1)
to comply with applicable traffic regulations, and (2) exercise the care of the ordinarily
prudent person under the circumstances. Applicable statutes and ordinances prescribe only
minimum prudent conduct, and compliance therewith does not abrogate a person's
common-law duty to exercise ordinary care. Lusk v. Smith, 137 S.E.2d 734 (Ga.App. 1964);
Peterson v. Salt River Project Agr. Imp. & Pwr. Dist., 391 P.2d 567 (Ariz. 1964); Johnson v.
Baker, 120 N.W.2d 502 (Iowa 1963); Gooch v. Avsco Inc., 337 S.W.2d 245 (Mo. 1960);
O'Donley v. Shelby, 262 S.W.2d 362 (Ky.App. 1953); Langner v. Caviness, 28 N.W.2d 421
(Iowa 1947).
[Headnotes 4, 5]
The jury here was instructed about the statute requiring snow tires or chains where posted.
But that statute was not applicable. The jury was not instructed, however, about a
common-law duty of care which may have required snow tires or chains regardless of any
statute, because appellant did not request or propose such an instruction. There appears to
have been ample evidence before the court to have warranted the giving of such a properly
drawn instruction. We will not consider as error the failure to give such a specific instruction
when not requested of the trial court. NRCP 51. But see Nichter v. Edmiston, 81 Nev. 606,
407 P.2d 721 (1965). We therefore limit our discussion to the prejudicial effect of
erroneously given instruction 16. In a careful examination of the arguments of counsel to the
jury regarding instruction 16, we cannot say prejudice resulted. The instruction was
mentioned casually by McAteer's counsel and more pointedly by counsel for Brown and Cady
Auto Co. But we are satisfied the jury reached its verdict by resolving the substantially
conflicting evidence relating to the alleged gross negligence of McAteer and the ordinary
negligence of Brown and Cady relating to their awareness of the presence of black ice.
[Headnote 6]
3. Instruction No. 15 reads as follows: You are instructed that Section 484.231, Nevada
Revised Statutes, provides as follows:
1. Upon any highway outside of a business or residence district no person shall stop,
park or leave standing any vehicle, whether attended or unattended, upon the paved or
main-traveled part of the highway when it is practicable to stop, park or so leave such
vehicle off such part of the highway, but in every event an unobstructed width of the
highway opposite a standing vehicle shall be left for the free passage of other vehicles
and a clear view of such stopped vehicles shall be available from a distance of 200 feet in
each direction upon such highway.
district no person shall stop, park or leave standing any vehicle, whether attended or
unattended, upon the paved or main-traveled part of the highway when it is practicable to
stop, park or so leave such vehicle off such part of the highway, but in every event an
unobstructed width of the highway opposite a standing vehicle shall be left for the free
passage of other vehicles and a clear view of such stopped vehicles shall be available from a
distance of 200 feet in each direction upon such highway.
2. This section shall not apply to the driver of any vehicle which is disabled while on the
paved or main-traveled portion of a highway in such manner and to such extent that it is
impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.
Appellant objected to the giving of this instruction on the ground that it is not prefaced or
qualified by a clear statement that the disablement of the truck on the highway must not have
been the result of respondent Brown's prior negligence, and cites Alires v. Southern Pacific
Co., 378 P.2d 913 (Ariz. 1963). Appellant argues there was evidence admitted of Brown's
negligence prior to the disablement in that he knew it had been raining and because of the
mountainous terrain, time of year and general weather conditions should have anticipated the
presence of ice in the exercise of ordinary care and that he had ample opportunity to pull off
the road and stop or install chains.
Respondent, on the other hand, argues that Brown had done everything a reasonably
prudent person would have done under the same or similar circumstances. He stopped and
checked his tires, kept a careful lookout, had snow tires on his driving wheels, reduced speed
down the grade to 5-10 miles per hour, affixed 5 to 7 pounds air pressure on his brakes,
awakened his fellow driver when he felt something was a little bit wrong but couldn't place
it, and otherwise proceeded cautiously down the highway.
It appears to us that the instruction was properly given in line with the theory of
respondent Brown's case. His contention is that his disablement was not the result of any
prior negligence on his part, and when he skidded on the black ice the truck and trailer
jackknifed on the highway, making it impossible for him to avoid stopping and temporarily
leaving the disabled vehicle in that position.
On the other hand, appellant was clearly free to argue to the jury that instruction 15 did not
apply because under the court's instruction No. 5 on ordinary negligence, Brown was
negligent in failing to apply chains, thereby skidding on the ice, resulting in the
disablement of the truck which blocked the highway.
in failing to apply chains, thereby skidding on the ice, resulting in the disablement of the
truck which blocked the highway. For a discussion of this point, see Fleming v. Flick, 35 P.2d
210 (Cal.App. 1934).
The judgment and order are affirmed.
____________
STATE OF NEVADA, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA in and for the County of Clark, The Honorable Alvin N. Wartman, a
District Judge thereof, Respondent.
No. 5759
July 22, 1969 457 P.2d 217
Original proceeding in this court seeking a writ of mandamus.
Original proceeding on petition for mandamus to compel trial judge or district court to set
aside part of judgment purporting to suspend eight years of ten-year sentence and granting
defendant three years' probation after he had served two years' imprisonment. The Supreme
Court, Batjer, J., held that portion of judgment complained of was beyond jurisdiction of trial
judge.
Petition granted and case remanded for correction of sentence.
Harvey Dickerson, Attorney General, Daniel R. Walsh, Chief Deputy Attorney General,
for Petitioner.
George E. Franklin, Jr., District Attorney, Richard D. Weisbart, Deputy District Attorney,
Clark County, for Respondent.
1. Criminal Law.
Suspending of portion of sentence and placing of defendant on probation following serving of
unsuspended portion of sentence was beyond jurisdictional authority of trial judge. Const. art. 3, 1;
Const. art. 5, 14; NRS 176.033, 176.185, 213.010-213.100, 213.1099, 213.110, 213.120.
2. Mandamus.
Mandamus is proper remedy to compel vacation of judgment which unlawfully suspends execution of
sentence in criminal case.
Const. art. 3, 1; Const. art. 5, 14; NRS 176.033, 176.185, 213.010-213.100, 213.1099,
213.110, 213.120.
3. Criminal Law.
Legislature has prerogative to set limits within which judiciary may function when granting probation.
4. Criminal Law.
Trial courts do not have inherent power to suspend imposition or execution of sentence and can order
such suspension only as authorized by statute and such statutory power must be strictly construed.
5. Criminal Law.
Failure to properly sentence does not render trial and proceedings a nullity.
6. Criminal Law.
If improper sentence is sole basis of complaint no vacation of conviction or adjudication is necessary.
7. Criminal Law.
Trial court has inherent jurisdiction to vacate or modify its orders and judgments.
OPINION
On October 23, 1968, the respondent, Alvin N. Wartman, Judge of the Eighth Judicial
District Court of the State of Nevada, in and for the County of Clark, sentenced Charles
Ronald Black, hereinafter referred to as the defendant, who had been found guilty of
burglary by a jury verdict as follows: Ten (10) years, eight (8) years of sentence will be
suspended and following the serving of period of two (2) years placed on probation for three
(3) years.
An original petition for mandamus was filed in this court by the petitioner against the
respondent, Alvin N. Wartman, and the respondent district court. The object of the petition is
to compel the judge or the district court to set aside that part of the judgment purporting to
suspend eight years of a ten year sentence and granting the defendant three years probation
after he has served two years in the Nevada State Prison, or in the alternative to compel the
judge or district court to resentence the defendant.
[Headnote 1]
The petitioner contends the sentence is both illegal and unconstitutional because the
respondent exceeded his jurisdictional authority when he suspended part of the sentence and
placed the defendant on probation following two years of incarceration. We agree.
[Headnotes 2, 3]
At the outset the respondent asserts that the writ of mandamus is not available to the
petitioner in the present action. This contention is without merit. Mandamus is a proper
remedy to compel the vacation of a judgment which unlawfully suspends the execution of a
sentence in a criminal case. Ex parte United States, 242 U.S. 27 (1916); State v. Zangerle, 26
N.E.2d 190 (Ohio 1940); People ex rel. Swanson v. Williams, 185 N.E. 598 (Ill. 1933).
In Pinana v. State, 76 Nev. 274, 352 P.2d 824 (1960), this court held: The subject of
parole in this state is within the legislative authority given by the constitution to the
legislature. Art. 4, Sec. 1, Nevada Constitution. Parole is not a constitutional right; it is a right
bestowed by legislative grace. (Citation omitted.) Likewise it is the legislature's prerogative
to set the limits within which the judiciary may function when granting probation. Article 5,
Section 14 of the Nevada Constitution provides in part: . . . The legislature is authorized to
pass laws conferring upon the district courts authority to suspend the execution of sentences,
fix the conditions for, and to grant probation, and within the minimum and maximum periods
authorized by law, fix the sentence to be served by the person convicted of crime in said
courts.
[Headnote 4]
At common law the courts had no power to suspend the imposition of sentence. State v.
Douglas, 349 P.2d 622 (Ariz. 1960) and State v. Zangerle, supra. Nor do trial courts have
inherent power to suspend the imposition or execution of a sentence and may order such
suspension only as authorized by statute. People ex rel. Swanson v. Williams, supra. Such
statutory power must be strictly construed.
Here the judge was required to suspend the entire sentence and then place the defendant on
such probation as within his discretion appeared appropriate. Article 5, Section 14, Nevada
Constitution. NRS 176.033 and NRS 176.185; NRS 213.1099; NRS 213.110 and NRS
213.120; State v. Braunstein, 136 A. 199 (N.J. 1927); Campbell v. State, 287 P.2d 713 (Okla.
Crim.App. 1955). He could not suspend part of the sentence nor could he place the defendant
on probation after he had served a period of time in prison.
Although the judge stated that he was placing the defendant on probation for three (3)
years following two (2) years incarceration, what he was in effect doing was granting a
delayed parole.
In Ex parte United States, supra, the court said: And the effect of the proposition urged
upon the distribution of powers made by the Constitution will become apparent when it is
observed that indisputable also is it that the authority to define and fix the punishment
for crime is legislative and includes the right in advance to bring within judicial discretion,
for the purpose of executing the statute, elements of consideration which would be
otherwise beyond the scope of judicial authority, and that the right to relieve from the
punishment, fixed by law and ascertained according to the methods by it provided,
belongs to the executive department."
effect of the proposition urged upon the distribution of powers made by the Constitution will
become apparent when it is observed that indisputable also is it that the authority to define
and fix the punishment for crime is legislative and includes the right in advance to bring
within judicial discretion, for the purpose of executing the statute, elements of consideration
which would be otherwise beyond the scope of judicial authority, and that the right to relieve
from the punishment, fixed by law and ascertained according to the methods by it provided,
belongs to the executive department.
In this state the granting of any relief from punishment after incarceration in the state
prison is an executive function authorized by the legislature and performed by the state board
of parole commissioners, (NRS 213.1099; NRS 213.110 and NRS 213.120) or by the state
board of pardons commissioners. (NRS 213.010-213.100.)
In this case the sentence pronounced against the defendant by the judge was a judicial
invasion into the legislative and executive fields, in contravention of Article 3, Section 1 of
the Nevada Constitution.
1

[Headnotes 5-7]
The failure to properly sentence does not render the trial and proceedings a nullity. When
an improper sentence is the sole basis of the complaint no vacation of conviction or
adjudication is necessary since justice may be done by correction of the sentence. Warden v.
Peters, 83 Nev. 298, 429 P.2d 549 (1967); Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966);
Osborne v. State, 82 Nev. 342, 418 P.2d 812 (1966); Dixon v. State, 83 Nev. 120, 424 P.2d
100 (1967). The trial court has inherent jurisdiction to vacate or modify its orders and
judgments. Warden v. Peters, supra.
In State v. Johnson, 75 Nev. 481, 346 P.2d 291 (1959), this court said: Where the penal
statute gives no discretion to the trial court in fixing the punishment, it would be proper for
this court without remand to modify the sentence to conform to the statute. State v. Moore, 48
Nev. 405, 233 P. 523. In this case, however, the applicable statute does give discretion,
limited as it is to the amount of the fine.
Because of the discretion vested in the trial court, we direct, in this instance, that the
case be remanded and that the trial judge correct the sentence in accordance with the
applicable statutes, his discretionary power, and this opinion.
____________________

1
Article 3, 1: The powers of the Government of the State of Nevada shall be divided into three separate
departments,the Legislative,the Executive and the Judicial; and 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, except in the cases herein expressly directed or permitted.
in this instance, that the case be remanded and that the trial judge correct the sentence in
accordance with the applicable statutes, his discretionary power, and this opinion.
____________
85 Nev. 489, 489 (1969) Piland v. Clark Co. Juvenile Ct.
ROBERT J. PILAND, Appellant, v. CLARK COUNTY
JUVENILE COURT SERVICES, Respondent.
No. 5842
July 30, 1969 457 P.2d 523
Appeal from denial of application for writ of habeas corpus. Eighth Judicial District Court,
Clark County; Alvin N. Wartman, Judge.
Petition for writ of habeas corpus on ground that petitioner, a juvenile, had been denied
constitutional right to a speedy trial. The lower court denied the petition, and petitioner
appealed. The Supreme Court, Mowbray, J., held that juvenile held in custody as an alleged
juvenile offender was entitled to a speedy trial, and, in absence thereof, the juvenile was
denied due process and was entitled to be released from custody.
Writ granted. Appellant ordered discharged from custody.
Leonard I. Gang, Special Juvenile Deputy, Clark County, for Respondent.
Constitutional Law; Infants.
Juvenile held in custody as an alleged juvenile offender was entitled to a speedy trial, and, in absence
thereof, the juvenile was denied due process and was entitled to be released from custody.
OPINION
This is an appeal from a denial of a petition for a writ of habeas corpus, filed on the
ground that the petitioner, a juvenile, had been denied his constitutional right to a speedy trial.
We reverse, and order that the writ issue and that the juvenile be released from custody.
The juvenile court system as we have come to know it in America began at the end of the
last century. Special proceedings were inaugurated for those courts dealing with youthful
offenders. The basic philosophy was not predicated upon the traditional adversary scheme of
Anglo-American jurisprudence but upon the notion that the court should act as parens patriae
when considering the juvenile offender.
All this has been changed by the landmark case of In re Gault, 387 U.S. 1, handed down
by the High Court in 1967. In reviewing the history of the juvenile court system, the Supreme
Court of the United States said in Gault, at 14:
The history and theory underlying this development are well-known, but a recapitulation
is necessary for purposes of this opinion. The Juvenile Court movement began in this country
at the end of the last century. From the juvenile court statute adopted in Illinois in 1899, the
system has spread to every State in the Union, the District of Columbia, and Puerto Rico. The
constitutionality of Juvenile Court laws has been sustained in over 40 jurisdictions against a
variety of attacks.
The early reformers were appalled by adult procedures and penalties, and by the fact that
children could be given long prison sentences and mixed in jails with hardened criminals.
They were profoundly convinced that society's duty to the child could not be confined by the
concept of justice alone. They believed that society's role was not to ascertain whether the
child was guilty' or innocent,' but What is he, how has he become what he is, and what had
best be done in his interest, and in the interest of the state to save him from a downward
career.' The childessentially good, as they saw itwas to be made to feel that he is the
object of [the state's] care and solicitude,' not that he was under arrest or on trial. The rules of
criminal procedure were therefore altogether inapplicable. The apparent rigidities,
technicalities, and harshness which they observed in both substantive and procedural criminal
law were therefore to be discarded. The idea of crime and punishment was to be abandoned.
The child was to be treated' and rehabilitated' and the procedures, from apprehension
through institutionalization, were to be clinical' rather than punitive.
These results were to be achieved, without coming to conceptual and constitutional grief,
by insisting that the proceedings were not adversary, but that the state was proceeding as
parens patriae. . . .
. . . .
. . . In 1937, Dean Pound wrote: The powers of the Star Chamber were a trifle in
comparison with those of our juvenile courts. . . .' The absence of substantive standards has
not necessarily meant that children receive careful, compassionate, individualized treatment.
The absence of procedural rules based upon constitutional principle has not always produced
fair, efficient, and effective procedures. Departures from established principles of due process
have frequently resulted not in enlightened procedure, but in arbitrariness. The Chairman of
the Pennsylvania Council of Juvenile Court Judges has recently observed: Unfortunately,
loose procedures, high-handed methods and crowded court calendars, either singly or in
combination, all too often, have resulted in depriving some juveniles of fundamental rights
that have resulted in a denial of due process.'
Failure to observe the fundamental requirements of due process has resulted in instances,
which might have been avoided, of unfairness to individuals and inadequate or inaccurate
findings of fact and unfortunate prescriptions of remedy. Due process of law is the primary
and indispensable foundation of individual freedom. It is the basic and essential term in the
social compact which defines the rights of the individual and delimits the powers which the
state may exercise. As Mr. Justice Frankfurter has said: The history of American freedom is,
in no small measure, the history of procedure.' But in addition, the procedural rules which
have been fashioned from the generality of due process are our best instruments for the
distillation and evaluation of essential facts from the conflicting welter of data that life and
our adversary methods present. It is these instruments of due process which enhance the
possibility that truth will emerge from the confrontation of opposing versions and conflicting
data. Procedure is to law what scientific method is to science.' (Footnotes omitted.)
As a result, the High Court declared that due process dictates that certain minimum
standards be followed in juvenile court proceedings; namely, (1) adequate notice of the nature
of the proceedings to the parents and the offender, (2) right to counsel, (3) right to
confrontation and cross-examination of witnesses, and (4) the privilege against
self-incrimination.
We are not presented with a determination of whether such safeguards were afforded the
offender in this case. Rather, we have the question of determining whether the basic right to a
speedy trial has been denied the offender in this case and, if so, whether there has been a
violation of the mandates announced in Gault. We rule that there has been a denial of the
right to a speedy trial and that the offender has been denied due process of law and must
be released from custody.
speedy trial and that the offender has been denied due process of law and must be released
from custody.
The facts are these: On May 19, 1967, the appellant, Robert J. Piland, who was then 17
years old, was indicted on the charge of robbery. He was tried on June 19, 1967, found guilty,
and sentenced to serve not less than 5 nor more than 6 years in the state penitentiary. He
appealed from the judgment of conviction on the ground that he had never been certified to
stand trial as an adult, as required by law. Kent v. United States, 383 U.S. 541 (1966). The
District Attorney of Clark County filed an admission of error. The case was reversed and
remanded for further proceedings. The order of remand was filed on May 13, 1968. On June
20, 1968, appellant's counsel sent a letter to Warden Carl Hocker of the Nevada State Prison
requesting that appellant be returned to Clark County. Copies of the District Attorney's
admission of error and this court's order of remand were included with the letter. The
appellant was returned to the Clark County Jail on August 1, 1968, and there he remained. On
October 13, 1968, his counsel filed in the district court a petition for a writ of habeas corpus
seeking appellant's release. The district judge granted the petition, but without prejudice to
the State to institute new proceedings if the State elected to do so. The State did so elect, but
this time the State proceeded in the juvenile division of the district court, and appellant was
treated as a juvenile offender. On December 27, 1968, his counsel filed another application
for habeas, on the ground that appellant had been denied his right to a speedy trial, in
derogation of his constitutional rights. The district judge denied the application; hence this
appeal.
Certainly, under the factual position of this case, appellant has been denied due process,
and the habeas writ should have issued. Admittedly, Gault does not expressly set forth, as one
of the safeguards of due process mentioned in the opinion, the right to a speedy trial, and
perhaps the air would have been cleared on this point had the Court expressly so held. But we
believe the right is axiomatic, because of the mandates announced in Gault. To rule otherwise
would emasculate the safeguards that were expressly enumerated: adequate notice of hearing,
right to counsel, cross-examination of witnesses, and privilege against self-incrimination. If
the youthful offender were not entitled to a speedy trial, he conceivably might never be
provided a forum in which he could enjoy the basic rights of due process specifically given to
him in Gault.
It is ordered that the petition for habeas be granted, that the writ issue, and that the
appellant be discharged from custody.
____________
85 Nev. 493, 493 (1969) City of Las Vegas v. Ackerman
CITY OF LAS VEGAS, NEVADA, a Municipal Corporation, ORAN K. GRAGSON,
Mayor, PHILIP M. MIRABELLI, S. GRANT STEWART, JAMES COREY and WESLEY
G. HOWERY, Board of Commissioners, Appellants, v. JOHN ACKERMAN, RONALD
ANDERSON, RALPH ARNTS, JUDITH BALLEW, BILLY D. BARBER, et al.,
Respondents.
No. 5886
July 31, 1969 457 P.2d 525
Appeal from declaratory judgment of the Eighth Judicial District Court, Clark County;
Action for declaratory judgment declaring void ordinance which was passed by electorate
of city through initiative process and which increased salary of firefighters. The lower court
entered judgment upholding statute except for portion of statute increasing salary
retroactively, and appeal and cross appeal were taken. The Supreme Court, Batjer, J., held
that in view of fact that under city charter board of commissioners had power to pass
ordinance increasing wages of firefighters, a fortiori, majority of electors, deriving their
power not only from city charter, but from state constitutional provisions reserving initiative
powers to voters and providing that all political power is inherent in people, had power to
pass through initiative process ordinance increasing wages of firefighters; however, the court
also held valid that portion of ordinance which increased salary of firefighters retroactively
from four months prior to passage of ordinance.
Affirmed in part, reversed in part.
Sidney R. Whitmore, City Attorney, of Las Vegas, for Appellants.
I. R. Ashleman, and Harry J. Mangrum, Jr., of Las Vegas, for Respondents.
Fixing salaries of municipal employees in city of Las Vegas is legislative function.
In view of fact that under city charter board of commissioners had power to pass ordinance increasing
wages of firefighters, a fortiori, majority of electors, deriving their power not only from city charter, but
from state constitutional provisions reserving initiative powers to voters and providing that all political
power is inherent in people, had power to pass through initiative process ordinance increasing wages of
firefighters. Const. arts. 1, 2; 19, 4.
Trial court's definition of firefighter, as used in ordinance increasing salaries of firefighters, as one
who subjects himself to risks, dangers and hazards inherent in defense of persons and property by his active
engagement in fighting of fires did not constitute erroneous limitation of application of ordinance, nor was
it so unreasonable or so devoid of substantial distinctions as to be violative of constitutional provisions.
Const. art. 1, 8; U.S.C.A. Const. Amend. 14.
Ordinance, which increased salary of firefighters and which was adopted by city electorate through
initiative process, did not violate Local Government Budget Act even though there was no allocation in
municipal budget for funding of such salary increase. NRS 354.080 et seq., 354.470-354.626.
Ordinance, which was passed by electorate of city through initiative process and which provided salary
increase for firefighters and required that salary of firefighters be at least as great as salary of police
patrolman, was not so vague, ambiguous and uncertain as to be constitutionally unsound and did not violate
Constitution on any theory that it united future salary increases for firemen with future salaries of
policemen. Const. art. 19, 1 et seq.
6. Constitutional Law; Municipal Corporations.
All presumptions are in favor of legislative enactments, whether they flow from legislative halls or from
electorate through initiative process.
It is not function of court to question wisdom of public, but to determine whether or not they have
lawfully enacted measure in issue.
Retroactive increase in salary for firefighters provided for in ordinance, which was passed by city
electorate through initiative process on November 5, 1968 and which provided for the salary increase as of
July 1, 1968, was valid, in absence of statute or constitutional provision limiting power of electorate to
make such salary increase retroactive.
In determining validity of ordinance which was passed by electorate of city through initiative process on
November 5, 1968 and which provided for salary increases for firefighters as of July 1,
196S, court would look solely to such ordinance and not to prior ordinance which was
thereby superseded.
and which provided for salary increases for firefighters as of July 1, 1968, court would look solely to such
ordinance and not to prior ordinance which was thereby superseded.
With respect to ordinance which was passed by city electorate through initiative process on November 5,
1968 and which provided salary increase for firefighters as of July 1, 1968, salary increase for period
between July 1, 1968 and November 5, 1968 would be viewed as deferred compensation for services
rendered rather than as gratuity. Const. art. 3, 9.
State Constitution does not confer power on legislature, but is limitation on power, and therefore it is
competent for legislature to enact any law not expressly or impliedly forbidden by state Constitution or
prohibited by Constitution of the United States.
OPINION
On July 11, 1968, five residents who were also electors in Las Vegas, Nevada, presented
an affidavit stating that they would constitute the petitioners' committee for the purpose of
circulating an initiative petition. Thereafter, a petition bearing approximately 11,500
signatures was submitted to the city clerk. On August 30, 1968, the city clerk certified that
there were the required number of signatures affixed to the petition, and on October 2, 1968,
the board of commissioners designated that a special election be held November 5, 1968 for a
public vote on the proposed initiative ordinance. At the election 18,205 electors voted for and
14,674 voted against the proposed ordinance. Both parties stipulated that all applicable
statutes concerning the municipal initiative process were duly complied with and that the
ordinance in issue is a validly enacted ordinance of the city of Las Vegas, Nevada, unless
otherwise unlawful.
The initiative petition as enacted provides as follows: INITIATIVE PETITIONAN
ORDINANCE PROVIDING FOR A WAGE INCREASE FOR FIREFIGHTERS OF THE
CITY OF LAS VEGAS AND EQUALITY OF COMPENSATION OF FIREFIGHTERS
AND PATROLMEN.
The People of the City of Las Vegas, County of Clark, State of Nevada, do ordain that
retroactive to the 1st day of July, 1968, the monthly wage of firefighters shall be increased by
not less that $144.00.
And further Ordain that in all cases firefighters shall be compensated at a monthly rate
not less than that provided in the case of police patrolmen.
This appeal presents several issues which the appellants claim constitute reversible error.
Their primary contention is that the fixing of the salaries of municipal employees is an
administrative rather than a legislative function and is outside the scope of the initiative. They
further contend that the ordinance as enacted is constitutionally unsound as being vague,
ambiguous and uncertain; that it is void because it authorizes the city of Las Vegas to expend
money which has not been allocated for such purpose in violation of NRS 354.626; that it is
void because it unites future salary increases for firemen with future salaries of police
patrolmen, in violation of Article 19 of the Nevada Constitution; that it is void because the
classification of firefighters as against all other fire department personnel and all other
classified employees is unreasonable and in violation of Article 1, Section 8 of the Nevada
Constitution and the Fourteenth Amendment of the United States Constitution; that it is void
because it is capricious, arbitrary, unfair and excessive in amount, and in violation of Article
1, Section 8 of the Nevada Constitution and the Fourteenth Amendment of the United States
Constitution; and that the entire initiative ordinance is invalid because the invalid portions of
such ordinance are inseparably connected to the remainder.
The respondents cross appealed from that portion of the judgment which declared void the
retroactive effect of the initiative ordinance and its applicability only to those employees
subjecting themselves to the risk and hazards of combating fires.
We affirm the judgment of the district court save and except that portion which declared
the retroactive effect of the initiative ordinance void, and as to that portion we reverse.
[Headnotes 1, 2]
1. The fixing of the salaries of municipal employees in the City of Las Vegas is a
legislative function. The people have the power through the initiative process to enact
legislation fixing such salaries. Parrack v. City of Phoenix, 329 P.2d 1103 (Ariz. 1958). We
reach this conclusion because the charter of that city grants to the board of commissioners the
power to fix by ordinance the salaries of its employees. When the board of commissioners,
pursuant to the provisions of the Las Vegas City Charter created the civil service board, the
office of personnel director, and city manager, it reserved the right to fix the salary of
municipal employees by ordinance. The personnel director, civil service board and the city
manager only recommend to the board of commissioners the salary schedule. The City of Las
Vegas Civil Service rules, section 220 provides: "The City Manager shall recommend a
uniform and equitable pay plan to be approved by the City Commission which shall consist
of minimum and maximum rates of pay for each grade and such intermediate rates as are
necessary and equitable."
City of Las Vegas Civil Service rules, section 220 provides: The City Manager shall
recommend a uniform and equitable pay plan to be approved by the City Commission which
shall consist of minimum and maximum rates of pay for each grade and such intermediate
rates as are necessary and equitable.
Here the board of commissioners could have passed a valid ordinance in the exact words
of the initiative ordinance. If the board of commissioners could so act a fortiori a majority of
the electors of the city of Las Vegas, deriving their power not from the city charter but from
the Nevada Constitution, could validly pass the initiative ordinance. State ex rel. Davies v.
White, 36 Nev. 334, 136 P. 110 (1913).
Article 1, Section 2, of the Nevada Constitution reads in part: All political power is
inherent in the people. Government is instituted for the protection, security and benefit of the
people; and they have the right to alter or reform the same whenever the public good may
require it. . . . Article 19, Section 4, of the Nevada State Constitution reads: The initiative
and referendum powers provided for in this article are further reserved to the registered voters
of each county and each municipality as to all local, special and municipal legislation of every
kind in or for such county or municipality.
In Spencer v. City of Alhambra, 111 P.2d 910 (Cal.App. 1941), that court wrote: It is a
basic principle inherent in the American system of representative government, as declared in
Article 1, section 2, of our state Constitution, that all political power is inherent in the
people. Government is instituted for the protection, security and benefit of the people, and
they have the right to alter or reform the same whenever the public good may require it.' From
the foregoing, it follows that the legislative power of the municipality resides in the people
thereof. By writing into the charter initiative and referendum laws, the people of the city have
simply withdrawn from the legislative body and reserved to themselves the right to exercise a
part of their inherent political power. We must therefore look to the provisions of the city
charter to ascertain whether therein the people have excluded from the operation of the
initiative the determination and fixing of salaries for members of the city police department.
The initiative ordinance here in question does more than fix salaries of members of the
police department. It establishes a scale of minimum salaries. Manifestly the ordinance
sought to declare a public policy or purpose, to the effect that in the police department,
concededly a vital arm of the public service, and the medium through which personal and
property rights are protected, the salaries paid the members of such department must not
be fixed below a certain minimum, lest thereby the public interest and welfare might be
adversely affected.
are protected, the salaries paid the members of such department must not be fixed below a
certain minimum, lest thereby the public interest and welfare might be adversely affected.
That acts which constitute a declaration of public purpose and ways and means for the
accomplishment thereof, are generally classified as calling for the exercise of legislative
powers, was the holding of McKevitt v. City of Sacramento, 55 Cal.App. 117, 203 P. 132.
When, therefore, the people phrased the foregoing sections pertaining to these powers in
such broad, general and unambiguous language, the conclusion seems inevitable that thereby
it was intended that legislation on every municipal subject should, unless expressly or by
clear and necessary implication excluded by other sections, be subject to initiative action
through the adoption of ordinances by the people. After all, the people through their charter
have a right to vest in the voters of the city the right and power to deal through initiative
action with any matter within the realm of local affairs or municipal business, whether strictly
legislative or not, as that term is generally used (Hopping v. City of Richmond, 170 Cal. 605,
150 P. 977); and as heretofore noted, the consensus of authority is to the effect that the fixing
of salaries of public officers is a legislative function. Certainly no other incident of municipal
government engages more legislative attention.
[Headnote 3]
2. In the declaratory judgment the district court said: The Court defines a firefighter as
one who subjects himself to the risks, dangers and hazards inherent in the defense of persons
and property by his active engagement in the fighting of fires.
This definition and classification is not violative of Article 1, Section 8 of the Nevada
Constitution or the Fourteenth Amendment of the United States Constitution because it rests
upon reasonable grounds and substantial distinctions. Boyne v. State ex rel. Dickerson, 80
Nev. 160, 390 P.2d 225 (1964). We sanction and approve the district court's definition of a
firefighter and reject the respondents' contention that the lower court erred when it limited the
applicability of the initiative ordinance to those subjecting themselves to the risks and hazards
of combating fires.
In Washington v. City of Boston, 187 N.E.2d 802 (Mass. 1963), fire apparatus repairmen,
motor equipment repairmen and carpenters in the maintenance division of the city fire
department were determined not to be fire fighters within statute granting salary increases
to firefighters and uniformed fire alarm personnel employed by the city.
[Headnote 4]
3. The trial court specifically rules that the initiative ordinance does not violate NRS
354.626. We agree and further find that the initiative ordinance does not violate any of the
sections of NRS Chapter 354. NRS 354.470 recites that NRS 354.470 to NRS 354.626
inclusive may be cited as the Local Government Budget Act. There is no way that those
statutes can be construed as a limitation on the constitutional power of the electorate of the
city of Las Vegas to pass the initiative ordinance. As pointed out by the trial court the Local
Government Budget Act itself provides and allows for the adjustment of municipal budgets.
In State v. City of Spokane, 134 P.2d 950 (Wash. 1943), that court said: As we
understand it, respondents' contention that the proposed ordinance contravenes certain
provisions of the budget law, Rem. Rev. Stat., 9000-1 to 9000-11, is because, by its terms,
it becomes effective immediately upon its adoption, and that, consequently, it would require
the payment of salaries in excess of the amount provided for in the current budget. We think
the clause in question has reference only to the time when the salary increase is to become
effectivenot as to how or when the increase may be paid in contemplation of the budget
law. The latter problem is one to be solved by the city council if and when the ordinance takes
effect. . . . We can find nothing in the budget act that even remotely affects the right of the
electors to invoke the initiative provisions of the city charter upon ordinances such as that
proposed.
The powers of People through the initiative process are not limited to the moment when
the governing body of the municipality finally adopts the annual budget. Parrack v. City of
Phoenix, supra.
[Headnotes 5, 6]
4. We find that the remainder of the appellants' assignments of error are without merit. All
presumptions are in favor of legislative enactments, whether they flow from the legislative
halls or from the electorate through the initiative process. State ex rel. Keyser & Elrod v.
Hallock, 14 Nev. 202 (1879); Ormsby County v. Kearney, 37 Nev. 314, 142 P. 803 (1914);
State v. Com's. Humboldt Co., 21 Nev. 235, 29 P. 974 (1892); State v. Westerfield, 24 Nev.
29, 49 P. 554 (1897).
In T. & G. R. R. Co. v. Nev. Cal. T. Co., 58 Nev. 234, 75 P.2d 727 (1938), this court said:
There is no better known rule than that every act of the legislature is presumed to be
constitutional, unless it be the one to the effect that no act will be held unconstitutional unless
it is clearly so.
[Headnote 7]
As it was aptly stated by the trial court: It is not the function of the Court to question the
wisdom of the public, but to determine whether or not they have lawfully enacted the measure
in issue. In Turner v. Fogg, 39 Nev. 406, 159 P. 56 (1916), this court quoted with approval
the reasoning of the Pennsylvania Supreme Court: If it were our duty to make the law, no
doubt some of its provisions would be written differently, but we cannot declare an act void
because in some respects it may not meet the approval of our judgment, or because there may
be difference of opinion as to its wisdom upon grounds of public policy. Questions of this
character are for the legislature, and not for the courts.
[Headnote 8]
5. We now turn to consider the respondents' contention that the trial court erred when it
held that the initiative petition was effective only from and after November 5, 1968, and
could have no retroactive application. We find no statutory enactment or constitutional
provision that would preclude the initiative ordinance from becoming effective July 1, 1968,
and reverse that part of the declaratory judgment which fixed November 5, 1968 as the
effective date.
In opposition to the retroactive effect of the initiative ordinance the appellants have cited
several cases from other jurisdictions. However, in each of those jurisdictions there existed a
specific constitutional prohibition against either a retroactive application of a statute or a
prohibition against a gratuity by the state or a governmental subdivision to an individual. In
some jurisdictions retroactive salary payments have been allowed in spite of rather clear
constitutional prohibitions against them. Christie v. Port of Olympia, 179 P.2d 294 (Wash.
1947); Timmerman v. City of New York, 69 N.Y.S.2d 102 (1946), and State ex rel. Haberlan
v. Love, 131 N.W. 196 (Neb. 1911). In Nevada there is a constitutional prohibition against
the granting of a gratuity to a corporation by the state but no prohibition exists to bar the
granting of retroactive salary to an individual. Article 8, Section 9, Nevada Constitution.
In reaching its decision the trial court said: Prior to that time [November 5, 1968]
members of the fire department were each under a contract of employment with the City of
Las Vegas as provided for under the rules and regulations of the Civil Service Board as
adopted by the Board of Commissioners, by ordinance.
[Headnote 9]
When the initiative ordinance was enacted it superseded the existing ordinance. The
contract between the city and the affected employees was fulfilled and terminated on
November 5, 1968. We must look solely to the new ordinance for the determination of its
validity.
The appellants contend that any increase in pay from July 1, 1968 to November 5, 1968 is
a gratuity. In an analogous situation involving a pension, the Supreme Court of North
Carolina in Great American Insurance Company v. Johnson, 126 S.E.2d 92 (N.C. 1962), said:
A pension paid a governmental employee for long and efficient service is not an emolument
which, by Art. I, sec. 7, of our Constitution, cannot be paid. To the contrary it is a deferred
portion of the compensation earned for services rendered. In Haldeman v. Hillegass, 6 A.2d
801 (Pa. 1939), the court, when considering retirement pay said: This is in effect an
acknowledgment by the legislature of prior service, and a recognition by it that long and
faithful public employment should be compensated, emphasizing the purpose and scope of
the provisions for retirement pay or delayed compensation.
[Headnote 10]
While there is no prohibition against a municipality granting a gratuity, we find more
specifically that the retroactive increase in salary for firefighters as allowed in the initiative
ordinance is in no way prohibited by any constitutional or statutory provision and it makes
very little difference what the payment is to be, however, we prefer to view it as a deferred
portion of the compensation earned for services rendered.
[Headnote 11]
While the trial judge did not specifically declare the retroactive effect of the ordinance
unconstitutional or void he did deem it unenforceable, yet no authority was cited for that
conclusion. In State v. Appling, 361 P.2d 86 (Ore. 1961), that court held: The legislative
power which has been vested in our state legislature by the people is plenary and complete
except as that power is limited by the state constitution itself, or by the federal constitution.
As stated by Justice Lusk, speaking for this court in State ex rel. Chapman v. Appling, 1960,
220 Or. 41, 47, 348 P.2d 759, 762, a state constitution does not confer power on the
legislature, but is a limitation on power, and therefore it is competent for the legislature to
enact any law not expressly or impliedly forbidden by the state constitution or prohibited
by the Constitution of the United States. . . .'"
any law not expressly or impliedly forbidden by the state constitution or prohibited by the
Constitution of the United States. . . .'
In 1853 the Supreme Court of Pennsylvania in Sharpless v. Mayor, 21 Pa. 147 (1853),
succinctly stated: The constitution allows the legislature every power which it does not
positively prohibit. The wisdom, justice or expediency of the passage of an act of the
legislature is not the subject of debate in our courts of justice.
The electorate of Las Vegas, Nevada, acting in a legislative capacity, had the unimpaired
power to enact the initiative ordinance in the form and manner as it is found in the record and
we find it to be constitutionally sound.
This case is remanded to the district court for an amendment of the declaratory judgment
in conformity with this opinion.
Collins, C. J., Zenoff and Thompson, JJ., and Craven, D. J., concur.
____________
85 Nev. 502, 502 (1969) Barnett v. State
DOUGLAS FRED BARNETT, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 5390
August 4, 1969 457 P.2d 584
Appeal from judgment of the First Judicial District Court, Douglas County; Richard L.
Waters, Jr., Judge.
Defendant was convicted in the lower court of robbery, and he appealed. The Supreme
Court held that where record and briefs showed that appeal was without merit, Supreme
Court would order that appeal stand submitted on record and briefs of counsel without oral
argument, deny counsel's motion to withdraw, order that he be compensated for services and
affirm judgment of conviction.
Affirm the judgment of conviction, deny Mr. Manoukian's motion to withdraw as
counsel for appellant, and order that Mr. Manoukian be compensated for his services
[NRS 7.260].
Manoukian & Manoukian, of Carson City, for Appellant.
Harvey Dickerson, Attorney General, of Carson City, and John Chrislaw, District
Attorney, Douglas County, for Respondent.
85 Nev. 502, 503 (1969) Barnett v. State
Criminal Law.
Where record and briefs showed that appeal was without merit, Supreme Court would order that appeal
stand submitted on record and briefs of counsel without oral argument, deny counsel's motion to withdraw
order that he be compensated for services and affirm judgment of conviction. NRS 7.260.
OPINION
Per Curiam:
The appellant was convicted of robbery and appealed therefrom in proper person. This
court subsequently appointed Milton Manoukian, Esquire, to represent him. Mr. Manoukian
has filed an opening brief on appeal suggesting that the appeal is frivolous but raising issues
which might arguably support an appeal. Anders v. California, 386 U.S. 738 (1967). The
district attorney has responded, and Mr. Manoukian now seeks the permission of this court to
withdraw as counsel for appellant. We have independently reviewed the record and have
studied the briefs. It is our conclusion that the appeal is without merit. Accordingly, we order
that this appeal stand submitted on the record and briefs of counsel without oral argument;
deny Mr. Manoukian's motion to withdraw as counsel for appellant and order that he be
compensated for his services [NRS 7.260]; and affirm the judgment of conviction entered
below. Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969).
____________
85 Nev. 503, 503 (1969) Rushton v. Tobler
HAROLD and NOLA RUSHTON, Appellants, v. WENDELL TOBLER, Individually, and D
& W EQUIPMENT LEASING CORPORATION, a Nevada Corporation, Respondents.
No. 5730
August 4, 1969 457 P.2d 584
Appeal from judgment of the Eighth Judicial District Court, Clark County, dismissing
action under Rule 41(b); Alvin N. Wartman, Judge.
Contract action in which plaintiffs requested specific performance of a contract to
purchase a bakery business, damages and other relief. The lower court granted defendants'
motion to dismiss, and appeal was taken. The Supreme Court held that evidence was more
than ample to defeat a motion for involuntary dismissal.
evidence was more than ample to defeat a motion for involuntary dismissal.
Reversed.
Edward G. Marshall, of Las Vegas, for Appellants.
Bell & Morris, and Daryl Engebregson, of Las Vegas, for Respondents.
On appeal from order granting motion for involuntary dismissal, the plaintiff's evidence must be accepted
as true and all permissible inferences therefrom accorded them. NRCP 41(b).
2. Specific Performance.
Evidence, in contract action in which plaintiffs requested specific performance of a contract to purchase a
bakery business, damages, and other relief, was more than ample to defeat a motion for involuntary
dismissal. NRCP 41(b).
OPINION
Per Curiam:
[Headnote 1]
This is a contract action in which the plaintiffs request specific performance of a contract
to purchase a bakery business, damages, and other relief. The cause was tried to a jury. After
the plaintiffs had completed the presentation of their evidence, the district court granted the
defendants' Rule 41 (b) motion to dismiss believing that a sufficient case had not been made
for jury resolution. This appeal is from that ruling. The posture of this case is such that the
plaintiffs' evidence must be accepted as true and all permissible inferences therefrom
accorded them. Bates v. Cottonwood Cove Corp., 84 Nev. 388, 441 P.2d 622 (1968). When
this is done it is apparent that the district court erred in dismissing the case.
[Headnote 2]
The plaintiffs' evidence may be read to show that the plaintiffs and defendants entered into
an oral agreement for the sale and purchase of plaintiffs' bakery business for the sum of
$5,000 plus the cost of the inventory on hand; that the possession of the business was actually
transferred to the defendants and operated by them pursuant to that oral understanding; that
the employees of the plaintiffs were hired by the defendants and paid by them for a short
period of time (Micheletti v. Fugitt, 61 Nev. 47S
61 Nev. 478, 134 P.2d 99 (1943)); that an escrow to memorialize the transaction was opened
at the direction of the buyers, signed by the sellers, and rejected by the buyers who, for some
reason, decided to close the business which they had been operating and walk away from their
agreement without payment therefor. Such evidence is more than ample to defeat a motion for
involuntary dismissal under Rule 41(b).
Reversed.
____________
85 Nev. 505, 505 (1969) Taylor v. Sheriff
KENNETH E. TAYLOR, Appellant, v. SHERIFF OF
No. 5791
August 20, 1969 457 P.2d 961
Appeal from a denial of a writ of habeas corpus. Eighth Judicial District Court, Clark
County; Alvin N. Wartman, Judge.
The lower court found that state had presented sufficient evidence at preliminary
examination to show that defendant probably committed perjury, and denied his writ of
habeas corpus. Defendant appealed. The Supreme Court, Zenoff, J., held that testimony
accompanying signing of search warrant's affidavit was admissible to show perjury and that
defendant's claim that his signing of affidavit was coerced, even if true, did not prevent
finding of probable cause for perjury.
Affirmed.
James D. Santini, Public Defender, and Robert Peccole, Deputy Public Defender, Clark
Harvey Dickerson, Attorney General, George E. Franklin Jr., District Attorney, and Alan
R. Johns, Chief Criminal Deputy, Clark County, for Respondent.
1. Criminal Law.
Where statement by defendant alleged to be perjurious was made under oath and was material to issue
whether evidence seized should be suppressed, probable cause for believing that defendant's later
inconsistent statements under oath were perjurious was sufficiently established at preliminary hearing.
NRS 199.120.
2. Perjury.
Circumstantial evidence, as well as prior statements with corroboration, are sufficient to support
conviction for perjury. NRS 199.120.
3. Criminal Law.
Though confessions and admissions alone are not sufficient to prove corpus delicti of crime, they are
nevertheless admissible into evidence.
4. Criminal Law; Perjury.
Defendant's testimony accompanying the signing of affidavit for search warrant was admissible to show
perjury and defendant's plea that his signing of affidavit was coerced would not prevent a finding of
probable cause at preliminary hearing. NRS 199.120.
OPINION
This is an appeal from a denial of a writ of habeas corpus. The lower court found that the
state had presented sufficient evidence at preliminary examination to show that appellant
probably committed perjury.
At the preliminary hearing the state introduced an affidavit signed by appellant under oath
pursuant to the issuance of a search warrant for narcotics in the possession of a Richard
Notario. It also introduced a transcript of the testimony in a hearing at Notario's trial on a
motion to suppress evidence taken under the search warrant. The statement by appellant in
this testimony that he did not know the contents of the affidavit when he signed it is charged
to constitute perjury. The state also introduced a transcript of the appellant's testimony given
before the judge who issued the search warrant.
The state contends that the appellant's testimony given to the judge who issued the search
warrant and the search warrant's affidavit is sufficient to establish probable cause for
believing that appellant's later statements under oath were perjurious. Appellant contends that
he signed the affidavit under duress and coercion, and therefore it and the accompanying
testimony under oath is not admissible against him and that in any event it is not admissible
to show the corpus delicti of the crime charged.
[Headnote 1]
NRS 199.120 defines perjury as a willful unqualified false statement, under oath, material
to the determination of the issue in question, without belief in the truth of the statement. The
statement alleged to be perjurious was made under oath. It was material to the issue of
whether evidence seized should be suppressed because [i]f its falsity had been made known
to
the court during the trial of the case, [it could] have influenced the court on the issue before
it. . . . Ex parte Sheldon, 44 Nev. 26S, 276
44 Nev. 268, 276, 193 P. 967, 969 (1920). See also Colle v. State, 85 Nev. 404, 455 P.2d 917
(1969). The only relevant remaining issues, which are the ones raised by appellant, are
whether the testimony accompanying the signing of the search warrant's affidavit is
admissible to show perjury and whether the evidence tending to show that the testimony was
coerced prevents a finding of probable cause required here.
[Headnotes 2, 3]
Circumstantial evidence is sufficient to support a conviction for perjury in Nevada. State v.
Cerfoglio, 46 Nev. 332, 205 P. 791, rev'd on rehearing on other grounds, 46 Nev. 348, 213 P.
102 (1923). Prior statements with corroboration are also sufficient to support a conviction for
perjury. People v. Chiuminatta, 318 P.2d 753 (Cal.App. 1958); People v. Yecny, 128 P.2d
146 (Cal.App. 1942). Appellant points out that confessions and admissions alone are not
sufficient to prove the corpus delicti of a crime. State v. Gambetta, 66 Nev. 317, 208 P.2d
1059 (1949). But that does not prevent their admission into evidence; it prevents only a
conviction on such evidence alone. In this case there was also the testimony of one of the
detectives who procured the search warrant who testified that appellant had read the affidavit
and that the information in the affidavit had come from appellant.
The statements of appellant under oath at the time of the issuance of the search warrant
show unequivocally that he had read the search warrant affidavit and knew the facts in it. The
detective's testimony corroborated this.
[Headnote 4]
Appellant's plea that his signing of the affidavit was coerced is not dispositive of the
appeal. He could have been coerced and still have known of the facts in the affidavit. If in
fact his signing was coerced that would tend to show that his alleged falsity was not material,
but it would not show that he did not know what was in the affidavit he signed.
The issue of coercion and materiality is an issue which cannot be resolved as a matter of
law on this record. Certainly, the record shows no sign of duress. The finding of probable
cause and denial of habeas corpus is accordingly affirmed.
Collins, C. J., Batjer and Thompson, JJ., and Young, D. J., concur.
____________
85 Nev. 508, 508 (1969) Whiston v. McDonald
NAN WHISTON Formerly Known as NAN ANDER, Appellant v. ROBERT L.
McDONALD, JOHN H. UHALDE, RAYMOND PLUNKETT, HAROLD B. TILLER, and
LEONARD E. BOWSER, the Duly Elected, Qualified and Acting Trustees of the INCLINE
VILLAGE GENERAL IMPROVEMENT DISTRICT; and CRYSTAL BAY
DEVELOPMENT CO., a Nevada Corporation, Respondents.
No. 5708
August 28, 1969 458 P.2d 107
Appeal from granting of a summary judgment. Second Judicial District Court, Washoe
County; John E. Gabrielli, Judge.
Action by former wife to recover for breach of contract which had been entered into
between husband and improvement district and which had been assigned to her upon
annulment of marriage. The trial court entered summary judgment for district and former wife
appealed. The Supreme Court, Zenoff, J., held that former wife could not recover on contract
which provided that husband would provide garbage disposal service to district for minimum
plus percentage salary with equipment furnished by wife where contract expressly stated that
it superseded all other agreements but did not contain any definite term or time period and
improvement district terminated contract after husband ceased performance subsequent to
annulment of marriage.
Affirmed.
[Rehearing denied October 2, 1969]
Nada Novakovich, of Reno, for Appellant.
Bible, McDonald, Carano & Wilson, of Reno, for Respondents.
Former wife could not recover for breach of contract which had been assigned to her by husband in
property settlement upon annulment of marriage and which provided that husband would provide garbage
disposal service to improvement district but did not contain any definite term or time period and
improvement district terminated contract after husband ceased performance subsequent to annulment of
marriage.
2. Judgment.
On motion for summary judgment, adverse party may not rest upon allegations in his pleadings but must
by affidavit or other evidentiary matter set forth specific facts showing genuine issue for trial.
OPINION
Nan Whiston and Albert Ander became husband and wife and resided in the Incline
Village area, a new development at Lake Tahoe. With Albert apparently experienced or
knowledgeable of the garbage disposal business an exchange of conversations and letters took
place with Arthur Wood, principal developer of the Incline project, with regard to the garbage
disposal business at Incline. Nan apparently had sufficient funds to make certain financial
commitments for the purchase of equipment. We do not know that she participated in any of
the negotiations; there is an inference that she did not. Several entities appear in the exchange
of correspondence, such as the Incline Village General Improvement District, Crystal Bay
Development Company, Crystal Bay Disposal Company and Crystal Bay Disposal Co., Inc.
Through it all, however, Arthur Wood or his attorney, Robert McDonald, did all of the
negotiating for or through any or all of the entities. For the purposes of this present problem,
the machinery of the negotiations may be disregarded except as hereinafter specified. It is
necessary only to note that the transactions were between Arthur Wood and Albert Ander.
Nan brought suit against all of the pertinent entities except the Crystal Bay Disposal Co.,
Inc. She claims damages for breach of contract. Allegedly because of a letter of January 29,
1964 from McDonald, she and Albert went into performance. Apparently they could not get a
business license, so Wood formed the Crystal Bay Disposal Co., Inc., the business license
was obtained in its name, and by agreement of May 15th the corporation hired Albert under
certain terms on a minimum plus percentage salary. Nan is not mentioned but in her
deposition she admitted she knew of that agreement. The disposal business was operated by
Nan and Albert as Crystal Bay Disposal Company. Nan and Albert had their marriage
annulled and he assigned all of his rights under the May 15th agreement to her without notice
to or knowledge of the corporation.
A few months later he quit. Upon Al leaving the business the corporation through Wood
terminated the deal and Nan claimed breach of contract.
the corporation through Wood terminated the deal and Nan claimed breach of contract.
[Headnote 1]
The defendants moved to dismiss and moved also for summary judgment. For our present
purposes it is not necessary to review the disposition of the motion to dismiss by the trial
court because our affirmance of the granting of the summary judgment will dispose of the
entire matter.
Appellant urges that the May 15th agreement between Albert and Crystal Bay Disposal
Co., Inc., was assigned to her and that she could therefore require performance by the
respondents. We find in this record unrefuted that the May 15th agreement superseded all
prior agreements. It specifically so provided and Nan testified in her deposition that it was to
supersede everything that went before it. Furthermore, by her conduct, Nan ratified the
agreement of May 15th which was executed by Al Anders. For more than a year, without
protest, she performed under that agreement, she allowed her equipment to be used and she
accepted checks from one or more of Art Wood's corporations in the exact amount provided
for in the May 15th agreement. In her own words she said: . . . I immediately shot them
down to my bank as deposits. In her memorandum executed in writing on July 9, 1965 Nan
acknowledged and ratified the May 15th agreement. Fanning v. C. I. T. Corp., 192 So. 41
(Miss. 1939).
The May 15th agreement therefore became the contract between the parties and the
January 29th agreement expired. By its terms the corporation hired Anders and the equipment
as an employee and he was to pay the cost of operation from the monthly sums paid to him by
the employer corporation. Principally the new contract was negotiated because the business
was not profitable to the Anders, largely because of their difficulty in collecting from the
customers. Neither were they able to get a business license. In order to assure the area of
having a garbage pickup Wood formed the disposal corporation and hired Anders in the May
15th agreement.
It was after that transaction was effected that Nan and Albert had domestic difficulties
which ended in an annulment. In their property settlement he assigned his interest in the
equipment to her and claimed no interest in the business. After the annulment he quit. When
the employer corporation learned that he had left they sought a disposal service elsewhere. It
should be emphasized that the May 15th agreement contained no definite term or time period.
Neither Nan nor Al had any tenure.
The main theme of the plaintiff's complaint is that the defendants breached the letter
agreement of January 29, 1964. No reference is made by the complaint to the May 15, 1964
agreement. There is nothing offered by the plaintiff to support her position that the May 15th
agreement merely modified the January 29th agreement. A comparison of the two agreements
establishes that the latter agreement cannot be a modification of the former for reasons that
are obvious in their differences.
[Headnote 2]
All of the foregoing appears from the record supporting this summary judgment. Nowhere
does appellant refute or controvert by affidavit, deposition or interrogatories. The adverse
party may not rest upon the allegations in her pleading but must by affidavit or other
evidentiary matter set forth specific facts showing a genuine issue for trial. Berryman v.
International Bhd. Elec. Workers, 85 Nev. 13, 449 P.2d 250 (1969); Adamson v. Bowker, 85
Nev. 115, 450 P.2d 796 (1969); Dredge Corp. v. Husite Co., 78 Nev. 69, 369 P.2d 676
(1962).
Summary judgment is affirmed.
Batjer and Thompson, JJ., concur.
Collins, C. J., dissenting:
I respectfully dissent.
I am of the opinion there are genuine issues of material fact which should be determined at
trial, and that it was error for the lower court to grant summary judgment in favor of
respondents.
In deciding the propriety of a summary judgment, all evidence favorable to the party
against whom such summary judgment was rendered will be accepted as true. Short v. Hotel
Riviera, Inc., 79 Nev. 94, 378 P.2d 979 (1963). Likewise, we must draw every intendment in
favor of the plaintiff against whom summary judgment was granted. Catrone v. 105 Casino
Corp., 82 Nev. 166, 414 P.2d 106 (1966); Hamm v. Carson City Nugget, Inc., 85 Nev. 99,
450 P.2d 358 (1969). Moreover, the trial court is not limited to consideration of the affidavit
and depositions relied on by the moving party but is required by NRCP 56(c) to consider all
pleadings, depositions, answers to interrogatories and admissions on file together with the
affidavits when ruling on a motion for summary judgment. Adamson v. Bowker, 85 Nev.
115, 450 P.2d 796 (1969).
In July, 1963, Nan Whiston, formerly Nan Ander, bought a piece of residential property
from the Crystal Bay Development Co. at Incline Village, Lake Tahoe, Nevada, and met
Arthur Wood, President, personally.
piece of residential property from the Crystal Bay Development Co. at Incline Village, Lake
Tahoe, Nevada, and met Arthur Wood, President, personally. They discussed trash hauling,
and she mentioned that Albert Ander, who lived in California, was experienced in refuse
removal.
On October 31, 1963, Mr. Wood, President of the Development Co., by letter invited
Albert to present a plan for disposing of garbage for the Incline Village area. Albert made a
detailed written proposal by undated letter sometime prior to January 29, 1964.
On January 29, 1964, a letter from the Incline Village General Improvement District
signed by Robert L. McDonald, President, addressed to Albert and Nan, informed them, in
words identical to Albert's letter to the Development Co., that the District would enter into a
contract with them for garbage disposal at Incline Village. This letter required the furnishing
of two new trucks, one used truck, and commercial bins; the sale of rubbish barrels; the
installation of an incinerator; weekly or daily pickup of rubbish as required; public liability
and property damage insurance; establishment of a fixed residential and commercial rate;
payment of 10 percent of the gross amount collected to the District, later to be increased to 15
percent and finally to 20 percent; and compliance with all laws and statutes. The letter further
provided that the contract was to run for a 10-year term.
On February 11, 1964, Mr. Wood, President of the Development Co., wrote a letter To
Whom It May Concern, advising that Crystal Bay Disposal Company (organized by Nan)
was authorized to pick up and dispose of all rubbish and garbage at Incline Village.
On April 3, 1964, John H. Uhalde, Manager of the District, issued a statement in writing to
all Residents of Incline Village that it was the political body responsible to carry out the
work of collection, transportation and disposal of all garbage and rubbish within the
boundaries of the District and that the District had hired the Disposal Company to furnish
those services commencing April 1, 1964.
On February 1, 1964, Nan and Albert commenced garbage collection pursuant to the
January 29 letter from McDonald. No formal written contract was drawn nor signed by either
party. Nan, who was financially able, purchased the trucks and other equipment on her
individual account and credit. The inference is that Albert was without financial resources but
knew the garbage disposal business.
On April 21, 1964, the Disposal Company entered into a written contract with the
Carson City dump for a period of one year at $150 per month.
written contract with the Carson City dump for a period of one year at $150 per month. This
was in lieu of incinerating the garbage at Incline Village. Some legal difficulty arose over that
plan.
When Nan and Albert had difficulty in collecting monthly payments in advance from their
residential customers, which in turn caused them difficulty in meeting their monthly truck and
other payments, Nan discussed the problem with Mr. Wood. He told her they (either the
Development Co. or the District) would demand payment of the garbage bills and, to insure
collection, would put the charges on the water bill. There were also customers outside the
District who were billed by one of Mr. Wood's companies.
Even that plan didn't work well, however, and Nan testified she could never get the details
as to what accounts were collected or the amount due her Disposal Company from the
District or the Development Co.'s accountants. Nan testified she had considerable sums of
money due but not remitted to her.
Nan testified in her deposition that the Crystal Bay Disposal Company, a fictitious firm
name, was her business, the certificate was in her name alone, she had financed the trucks and
equipment purchased alone, and Albert was merely a manager until about August, 1965, after
which she ran the business alone.
On April 1, 1964, the Sheriff of Washoe County issued to Crystal Bay Disposal Co., Inc., a
business license to dispose of garbage at Incline Village.
On May 15, 1964, for a reason not clearly shown or understandable from the record,
1
Mr.
Wood wrote the District confirming an agreement between the District and a new company
organized by Mr. Wood, called Crystal Bay Disposal Co., Inc. (a separate company altogether
from Crystal Bay Disposal Company, a fictitious firm organized by Nan), for an exclusive
10-year franchise to collect garbage within the District. The letter related that the District was
to be responsible for the billing and collection, to be remitted to Disposal Co., Inc., in
accordance with a certain schedule. The letter asked the District to signify its acceptance by
signing and returning a copy of the letter. Whether this was done is not shown in the record.
Nor is there anything shown in the record of the action of the District in its dealings with
Nan and Albert pursuant to the January 29 letter, under which garbage was then being
collected.
____________________

1
Neither the deposition of Mr. Wood nor that of Albert is in the record on appeal, although referred to in
respective counsel's briefs; we may not consider that evidence. A Minor v. State, 85 Nev. 323, 454 P.2d 895
(1969).
District in its dealings with Nan and Albert pursuant to the January 29 letter, under which
garbage was then being collected.
Also on May 15, 1964, Mr. Wood, on behalf of Disposal Co., Inc., wrote Albert
individually, stating that Disposal Co., Inc., would employ Albert and his equipment
(meaning the equipment purchased and financed individually by Nan) to make garbage
collections within Incline Village and other areas. Mr. Wood stated that Albert would receive
a minimum of $14,700 per year, payable monthly, or, if Disposal Co., Inc., prospered, 95
percent of the net profits, whichever was greater.
Disposal Co., Inc., was to pay all operating expenses incident to the collection of the
garbage, with the exception of the equipment payments (on Nan's equipment), which Albert
was to pay. The District was to bill and collect the monthly charges and remit the same to
Disposal Co., Inc. The letter then contained the following paragraph:
This memorandum agreement supersedes all prior agreements, whether oral or written,
between you and the District and/or Crystal Bay Development Co. (Emphasis supplied.)
If Albert agreed, he was to sign and return a copy of the letter to Mr. Wood, which he did.
Nothing is shown in the record on appeal by what authority Mr. Wood had the right to
bargain on behalf of the District. Nan was not mentioned, nor was the agreement with the
District, dated January 29, 1964, referred to.
In her deposition, Nan testified she was not aware of the agreement of May 15, 1964,
between Wood and Albert; that she wasn't in agreement with it; that she thought she should
have been consulted about it; that the discussion between Wood and Albert which led to the
letter was the result of the billing and collection difficulties the Disposal Company was
having; that she had had some discussion previous to the May 15 letter with Albert, but it was
not affirmative on her part; that Albert told her about it later but not before agreeing to it; that
she was not sure who finally told her about the May 15 letter but she thought it was Albert;
that she didn't see it near the date of May 15, but that she did see it later but can't remember
when; that in talking with Mr. Wood she would find something out maybe weeks later; that
she was not aware of the formation of Crystal Bay Disposal Co., Inc. (as distinguished from
Crystal Bay Disposal Company); that she was confused in dealing with so many companies,
including District, Development Co., and Disposal Co., Inc., but that Mr. Wood seemed to be
in control of them all.
On August 20, 1964, Albert assigned his interest in the three garbage trucks, a boat and
trailer, and a California business to Nan.
On October 9, 1964, the marriage between Nan and Albert was annulled because he had a
previous wife still living when he married Nan.
Between May and December, 1964, some 15 checks were drawn by Development Co. or
Disposal Co., Inc., to Disposal Company, in the total amount of $12,365.89. Each was
deposited by Nan, and it is principally for this action on her part that the majority opinion
holds she ratified the May 15 agreement between Wood and Albert. Some of the checks,
however, carry the notation, Contract services per agreement for month of May 1964.;
others are mere advances for purchase of equipment and supplies; others indicate, A/C Rec.
Crystal Bay Disposal Co., Inc. or May draw per agreement. There is one slight reference to
the handling of these checks by Nan in her deposition. She testified that when she received
the checks payable to Disposal Company she mailed them . . . to the Security First National
Bank at Carson and Woodruff, for deposit, in Long Beach; . . . and they were authorized, as I
stated before, to take out their truck payments before anything else. And then my repairs and
things like that were also taken out of this checking account. That appears to me exceedingly
skimpy evidence upon which the majority of this court relies to hold as a matter of law that
she ratified the May 15 agreement. The authorities do not support that holding unless as a
matter of fact Nan had full knowledge of the transaction. Yellow Jacket Silver Mining Co. v.
Stevenson, 5 Nev. 224 (1869). See also Rankin v. New England & Nev. Silver Mining Co., 4
Nev. 78 (1868); Clarke v. Lyon County, 7 Nev. 75 (1871); Edwards v. Carson Water Co., 21
Nev. 469, 34 P. 381 (1893).
On February 6, 1965, Nan executed a chattel mortgage and promissory note to purchase a
1965 Chevrolet pickup for the garbage operation at Incline Village.
On February 18, 1965, Mr. Wood, as President of Development Co., wrote the Security
First National Bank, Long Beach, California (where Nan had financed two of the garbage
trucks she had purchased), advising the bank that The Incline Village General Improvement
District is not in a position to legally enter into a long term contract with Crystal Bay
Disposal Co. [sic]. Mr. Wood also wrote, Until such time as a long term contract can be
negotiated[,] Crystal Bay Development Company [sic] is subsidizing the garbage operations
here at its development known as Incline Village.
at its development known as Incline Village. In connection with the acquisition of a 1965 tilt
cat Chevrolet diesel truck with a special body and facility to handle garbage [the identical
truck purchased by Nan] Crystal Bay Development Company [sic] will pick up the remainder
of your $14,000 note if Crystal Bay Disposal Co. [sic] should happen to lose the garbage
contract. (Emphasis added.)
On July 8, 1965, Nan and Albert entered into a memorandum agreement in writing reciting
that Albert Ander executed a letter agreement with Crystal Bay Disposal Company, [sic] Inc.
by Arthur L. Wood, dated May 15, 1964, which said letter agreement purports to be between
Al Ander, individually, and Crystal Bay Disposal Co., [Inc.]. . . . and further stated the fact
of the annulment of their marriage. The agreement then provided: The undersigned parties
do hereby certify that all interest of Albert Ander, pursuant to the letter agreement [May 15
letter from Wood to Albert] and any and all other similar agreements, is the sole and
separate property of Nan Whiston dba Crystal Bay Disposal Co. [sic] The undersigned parties
do further hereby certify that Albert Ander is employed by Nan Whiston dba Crystal Bay
Disposal Co. [sic] as general manager of the said firm and that he has no financial interest
therein. No notice of this assignment was given to any of the several companies, the District,
or any of the persons mentioned above.
On September 3, 1965, Albert and one Gene Lemons submitted a letter proposal to the
District, seeking the garbage collection and disposal business. The letter recited that Albert
had rendered a similar service over the past 18 months and that a survey of over 300 people
indicated that customers had been happy with the service. No mention was made of Nan. In
the meantime, Albert, who was still working for or with Nan, leased still another garbage
truck. Nan paid the license fees on behalf of Crystal Bay Disposal Company. Regarding the
meeting at which Albert and Lemons submitted the above proposal, Nan had this to say in her
deposition: Mr. Wood and I don't know who all was thereunknown to me. And I was up
here in the area. And all this transpired between these men. But I certainly wasn't called in on
any meeting, but I am the one with the contract; I am the one getting shoved around. . . . I
didn't know there was even a meeting transpired. I am up here hauling and picking up their
own trash and rubbish and things. And behind my back these men are getting together and
deciding.
On August 26, 1965, Emile Gezelin, attorney for Nan, wrote Robert McDonald, indicating
that at a conference Mr.
Robert McDonald, indicating that at a conference Mr. Wood indicated he intended to
negotiate with Reno Disposal Company on the garbage contract. He stated, I feel that before
Crystal Bay Development is in any position to negotiate with anyone, that the Whiston matter
must either be equitably disposed of, or that a written contract be entered into between
Crystal Bay Development and Mrs. Whiston as is outlined in your letter of January 29, 1964.
On September 20, 1965, Mr. McDonald wrote Mr. Gezelin as follows: The Incline
Village General Improvement District duly and regularly called a meeting approximately two
weeks ago [about September 6] and passed a resolution wherein the Board will enter into a
contract with Reno Disposal Company for the hauling of the garbage in the Incline Village
area and at that meeting called Mr. Devencenzi of that company. His company started hauling
garbage the following day. I would appreciate it if you would advise Mrs. Nan Whiston to
remove her truck or trucks from the area and to quit hauling garbage forthwith.
On September 21, 1965, Albert quit working for Nan and the Disposal Company. He
turned the use of the one leased truck over to Reno Disposal Company and showed their men
the garbage collection routes. This was without Nan's agreement or consent.
Also on September 21, 1965, Mr. Gezelin again wrote Mr. McDonald, advising that the
District and Nan had entered into a contract on January 29, 1964, and that McDonald's letter
of September 20 was considered a breach of that contract. On approximately the same date
Nan wrote Mr. McDonald as President of the District, advising that she was ready, willing
and able to perform the contract of January 29, 1964.
Additionally, a petition signed by approximately 164 residents of Incline Village was
offered, advising that the Crystal Bay Disposal Company [Nan's company] has rendered
excellent service during the past year and we want their service continued.
In her deposition, Nan testified that, as a result of respondents' conduct, she lost her
business in Long Beach, California, lost her house and another lot at Incline Village, lost her
trucks, lost some $3,600 in garbage bins, has pending many law suits, has had default
judgments entered against her, and has liens on her home.
It is in the face of that kind of evidence the majority of this court approved the entry of
summary judgment against Nan. I say if a case ever cried out for trial on the merits, this case
does.
does. And that trial is warranted even though Nan may not prevail at trial. It is said in 3
Barron & Holtzoff, Federal Practice and Procedure 1235 at 141 (Rules ed. 1958): [A]
hearing on a summary judgment motion is not a trial on the merits, and . . . the court on such
a motion should not attempt to resolve conflicting contentions of fact; the party opposing the
motion is required to show only that there is a genuine issue to be tried and not that he will
prevail at the trial. It is also said in 6 Moore's Federal Practice 56.11[7] at 2084 (2d ed.
1966) that:
It is not the purpose of a hearing on a motion for summary judgment to resolve factual
disputes. Rather, it is to determine whether there are factual issues to be tried. (Footnote
omitted.)
And in dealing with the type of proof which may be considered in ruling upon a motion for
summary judgment, Moore, supra, 56.15[8] said at 2163:
The materials which the court is entitled to consider at the hearing on the motion for
summary judgment are: (a) the pleadings; (b) affidavits which meet the testimonial
requirements of Rule 56(e); (c) depositions; (d) answers to interrogatories; (e) admissions; (f)
oral testimony; (g) documentary and other evidentiary materials. The court should also
consider facts which are the subject of judicial notice. . . .
While it is clear that a summary judgment may be rendered solely on the basis of
affidavits, affidavits are, as a general proposition, the least trustworthy basis, since the affiant
has not been subject to cross-examination and his demeanor is not observable. (Footnotes
omitted.)
It was held in Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir. 1940): Summary
judgment procedure is not a catch penny contrivance to take unwary litigants into its toils and
deprive them of a trial, it is a liberal measure, liberally designed for arriving at the truth. Its
purpose is not to cut litigants off from their right of trial by jury if they really have evidence
which they will offer on a trial, it is to carefully test this out, in advance of trial by inquiring
and determining whether such evidence exists.
As stated earlier in this opinion, the depositions of Mr. Wood and Albert are not in the
record on appeal before this court. We may not consider them in reviewing the action of the
lower court in granting summary judgment. A Minor v. State, supra.
The trial court, in its ruling on the motion, engaged in a very unusual practice. It entered
Findings of Fact in which it refused to accept as true, facts favorable to appellant and drew
inferences against her when those inferences should have been drawn in her favor. For
instance, the trial court found as a matter of fact that the letter of January 29, 1964, was
not a contract but only preliminary to a contract; that Disposal Co., Inc., and Albert
entered into a contract on May 15, 1964, for employment of himself and his equipment to
haul garbage; that the agreement between Nan and Albert on July S, 1965, recognized
the agreement of May 15, 1964, between Albert and Disposal Co., Inc.; and that neither
Nan nor Albert gave notice of their written agreement to anyone.
drew inferences against her when those inferences should have been drawn in her favor. For
instance, the trial court found as a matter of fact that the letter of January 29, 1964, was not a
contract but only preliminary to a contract; that Disposal Co., Inc., and Albert entered into a
contract on May 15, 1964, for employment of himself and his equipment to haul garbage; that
the agreement between Nan and Albert on July 8, 1965, recognized the agreement of May 15,
1964, between Albert and Disposal Co., Inc.; and that neither Nan nor Albert gave notice of
their written agreement to anyone.
The court concluded as a matter of law that there was no contract resulting from the
January 29, 1964, letter, and no breach by the District or the Development Co.; and that
Albert's duties or obligations under the contract of May 15, 1964, were not assignable without
notice and approval. Summary judgment was entered against Nan.
The issues of fact that I see in this record that require a trial are these:
(1) Did a contract result between the District as one party and Nan and/or Albert as the
other party as a result of the January 29 letter and the subsequent conduct and action of the
parties?
(2) What authority, if any, did the District and the Development Co. have to enter into a
10-year franchise for garbage collection in May, 1964, in view of the District's dealing with
Nan and Albert?
(3) What authority, if any, did Arthur Wood have in negotiating with Albert through the
Development Co. by the May 15, 1964, letter, which could affect Nan's rights, if any, under
the January 29 letter?
(4) Was Albert purporting to act as Nan's agent in dealing with Wood incident to the May
15 letter?
(5) Is the District estopped from raising the statute of frauds as a defense against Nan
and/or Albert under the January 29 letter? (See Harmon v. Tanner Motor Tours, 79 Nev. 4,
377 P.2d 622 (1963).)
(6) Should promissory estoppel allow Nan reliance damages against the District?
(7) Were the January 29 and/or May 15 agreements assigned to Nan by Albert? And could
she require the performance of the District and/or Development Co.?
(8) Was the May 15 agreement merely a modification of the January 29 agreement relating
to terms of payment?
(9) Is Disposal Co., Inc., merely the alter ego of Development Co.? (See McCleary Cattle
Co. v. Sewell, 73 Nev. 279, 317 P.2d 957 (1957).)
(10) What control does Arthur Wood exert over the District, a quasi-public body?
(11) Did Nan ratify the May 15 agreement between Disposal Co., Inc., and Albert? This is
a point raised sua sponte by this court. The parties below did not have the point in mind, no
facts were directed toward it, the trial court did not consider it, it was not specified as error or
argued before us, and we have not asked for additional briefs concerning it.
I would reverse the summary judgment and remand the case for trial, with opportunity to
both parties to amend their pleadings to clarify the issues to be tried.
For the foregoing reasons, I respectfully but earnestly dissent.
Mowbray, J., concurs in the foregoing dissent.
____________
85 Nev. 520, 520 (1969) Waugh v. Casazza
ELEANOR WAUGH, Appellant, v. JOSEPH
CASAZZA, Respondent.
No. 5903
September 8, 1969 458 P.2d 359
Appeal from judgment of the Second Judicial District Court, Washoe County; John F.
Sexton, Judge.
Action by landlord against tenant for unlawful detainer, commenced and tried in the
justice's court, and appealed and tried anew in the district court which entered judgment for
tenant. Landlord appealed. The Supreme Court, Thompson, J., held that since the district
court has final appellate jurisdiction in cases arising in the justice's court, Supreme Court
lacked jurisdiction to consider appeal.
Motion to dismiss appeal granted.
Paul J. Williams, of Reno, for Appellant.
Streeter, Sala & McAuliffe, of Reno, for Respondent.
1. Courts.
Landlord's action for unlawful detainer was properly commenced in the justice's court, and, therefore,
certification of matter to the district court for primary trial as an action involving title to or possession of
real estate was unnecessary. Const. art. 6, 8; NRS 4.370, subd. h, 40.410, 66.070.
2. Courts.
Although district court enjoyed concurrent jurisdiction with justice's court over landlord's action for
unlawful detainer, such action, commenced and tried in the justice's court and appealed and tried anew in
the district court, could not be appealed to Supreme Court, in light of statutory directive that district court
is to have final appellate jurisdiction in cases arising in the justice's court. Const. art. 6, 6, 8; NRS
3.190, subd. 2, 4.370, subd. h, 40.410; N.J.R.C.P. 72-75.
OPINION
This action for unlawful detainer was commenced and tried in the justice's court, appealed
and tried anew in the district court with the same result, and is now on appeal to this court.
The respondent has moved to dismiss the appeal on the ground that this court lacks
jurisdiction to consider it. We agree.
The appellant's contention that she enjoys a right to a double appeal rests mainly upon the
1876 case of Dickson v. Corbett, 10 Nev. 439. That case involved a suit to foreclose a
mechanics lien for less than $300, was commenced in the justice's court, appealed and tried
anew in the district court, and then appealed to the supreme court. There, as here, the
respondent moved to dismiss the appeal. His motion was denied and the appeal entertained.
The basic reason for doing so, however, was the existence of a statute [Vol. 1, Compiled
Laws of Nev. 1391, 330] which specifically provided for appeals from the district court in
cases brought into that court by appeal. The court wished to accommodate a co-ordinate
branch of the government. Id. at 442. That statute was repealed long ago. Neither statute nor
rule presently exists providing for an appeal to this court of a case brought to the district court
by appeal. Whatever force Dickson v. Corbett, supra, once possessed has long since
evaporated.
[Headnotes 1, 2]
The district court has final appellate jurisdiction in cases arising in the justice's court. Nev.
Const. art. 6, 6; NRS 3.190(2), and NJRCP 72-75 specifies how civil appeals are to be
perfected. This action for unlawful detainer was properly commenced in the justice's court
[Nev. Const. art. 6, 8; NRS 40.410; NRS 4.370(h)] since the relationship of landlord and
tenant existed. Accordingly, there was no need to certify the matter to the district court for
primary trial as an action involving title or possession to real estate.
certify the matter to the district court for primary trial as an action involving title or
possession to real estate. Fitchett v. Henley, 31 Nev. 326 102 P. 865 (1909); NRS 66.070.
The fact that the district court enjoys a concurrent jurisdiction over actions for unlawful
detainer is irrelevant to the issue before us.
Appeal dismissed.
____________
85 Nev. 522, 522 (1969) Crown v. Sheriff
JACK MELVIN CROWN, Appellant, v. SHERIFF,
No. 5917
September 9, 1969 458 P.2d 357
Appeal from denial of petition for writ of habeas corpus in case involving possession of
narcotics. Second Judicial District Court, Washoe County; John F. Sexton, Judge.
The lower court denied the writ and petitioner appealed. The Supreme Court, Zenoff, J.,
held that evidence that defendant was in motel room in presence of special police agents and
that another occupant of room lighted a marijuana cigarette and passed it around to defendant
and the agents was sufficient to constitute probable cause for grand jury to charge defendant
with possession of narcotic drug and that implication that female police agent used her sexual
wiles to gain entry into motel room was not so objectionable as to warrant issuance of writ.
Affirmed.
Seymour H. Patt, of Reno, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and C.
Frederick Pinkerton, Deputy District Attorney, Washoe County, for Respondent.
Evidence that defendant was in motel room in presence of special police agents and that another occupant
of room lighted marijuana cigarette and passed it around to defendant and agents was sufficient to
constitute probable cause for grand jury to charge defendant with possession of narcotic drug.
2. Habeas Corpus.
Implication that female police agent used her sexual wiles to gain entry into motel room occupied by
defendant and another man and in which marijuana cigarette was smoked in presence of female agent and
another agent was not so objectionable as to warrant issuance of writ of habeas corpus on petition of
defendant who was held on charge of possession of narcotic drug.
Policemen dealing in the vast, vague underworld of narcotics are not held to polite manners practiced in
decent society.
OPINION
Jack Melvin Crown, arrested and charged with having in his possession a narcotic drug,
appeals the denial of his petition for a writ of habeas corpus which he asserted on the basis
that the state failed to present evidence to the grand jury sufficient to constitute probable
cause. He further complained that the tactics of the law enforcement officers were
objectionable.
Sheila Summers and Ben Jiminez, special agents working for the Reno Police Department,
met and accompanied Robert Yance to his motel room in Reno. Jack Crown was in the room
when they arrived. From a closet Yance produced a quantity of marijuana, rolled a cigarette
and offered it to the police agents after lighting it. The joint of marijuana was passed
around from Yance to Jim, to Sheila, to Crown, back to Sheila from Crown, and then to
Yance. Such was the testimony before the grand jury.
[Headnote 1]
The lower court found that the evidence was sufficient to constitute probable cause and we
agree.
1. Our most recent cases relating to probable cause in possession of narcotics cases were
cited and need not be repeated. They fit the facts in this case, hence further discussion is
unnecessary. Maskaly v. State, 85 Nev. 111, 450 P.2d 790 (1969); Glosen and Pearson v.
Sheriff, 85 Nev. 145, 451 P.2d 841 (1969); Glosen and Crown v. Sheriff, 85 Nev. 166, 451
P.2d 843 (1969).
[Headnotes 2, 3]
2. The record is not clear as to what tactics used by the law enforcement people appellant
claims amounted to dirty pool. There is some implication that Sheila used her sexual wiles to
get to the room with the men and that thereafter by participating in the marijuana
experience and later joining with the police in forcing their way into the room without a
search warrant that the totality of the conduct was unfair.
wiles to get to the room with the men and that thereafter by participating in the marijuana
experience and later joining with the police in forcing their way into the room without a
search warrant that the totality of the conduct was unfair. This court has already approved the
use of police informers in the prosecution of the narcotic traffic. Crowe v. State, 84 Nev. 358,
441 P.2d 90 (1968). Otherwise, our scrutiny discloses no violations. Policemen dealing in the
vast, vague underworld of narcotics are not held to the polite manners practiced in decent
society. Lewis v. United States, 385 U.S. 206 (1966).
We find no merit in this appeal.
Affirmed.
Collins, C. J., Batjer, Mowbray, and Thompson JJ., concur.
____________
85 Nev. 524, 524 (1969) McKenna v. Sheriff of Clark County
CHARLES JAMES McKENNA, Appellant, v. SHERIFF
OF CLARK COUNTY, Respondent.
No. 5937
September 9, 1969 458 P.2d 358
Appeal from denial of habeas corpus, Eighth Judicial District Court, Clark County; Alvin
N. Wartman, Judge.
The lower court denied the writ and petitioner appealed. The Supreme Court held that
evidence at preliminary hearing consisting of fragments of glass from two separate bottles,
strip of turkish towel which reeked of gasoline, a wick, fluid and a large paper sack with
petitioner's fingerprints on it, all of which were found near parked taxicab which caught fire
immediately after driver, who was sitting in it, heard a thump, established probable cause to
hold petitioner for trial.
Affirmed.
I. R. Ashleman, II, of Las Vegas, for Appellant.
Melvyn T. Harmon, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Evidence at preliminary hearing consisting of fragments of glass from two separate bottles, strip of
turkish towel which reeked of gasoline, wick, fluid and large paper sack with defendant's
fingerprints on it all of which were found near parked taxicab which caught fire
immediately after driver, who was sitting in it, heard a thump, was sufficient to
establish probable cause to hold defendant for trial.
85 Nev. 524, 525 (1969) McKenna v. Sheriff of Clark County
reeked of gasoline, wick, fluid and large paper sack with defendant's fingerprints on it all of which were
found near parked taxicab which caught fire immediately after driver, who was sitting in it, heard a thump,
was sufficient to establish probable cause to hold defendant for trial. NRS 205.025.
OPINION
Per Curiam:
Following a preliminary examination McKenna was ordered to stand trial in the district
court on a charge of fourth degree arson. NRS 205.025. He filed a petition for habeas corpus
with that court alleging that insufficient evidence was presented by the state at the preliminary
hearing to establish probable cause to hold him for trial. His petition was denied and he has
appealed to this court.
The record does not support the appellant's contention. A parked Checker Taxicab was
burned. The driver was seated inside the cab filling out a trip sheet when he heard a thump
and immediately the cab was in flames. After the blaze was put out, fragments of broken
glass from two separate bottles, a large paper sack, a strip of a turkish towel which reeked of
gasoline, a wick and fluid were found nearby. The towel was lying in a pool of gas at the rear
of the cab. The defendant-appellant's fingerprints were found on the paper bag. This, we
think, is enough to warrant a full trial in the district court.
Affirmed.
____________
85 Nev. 525, 525 (1969) Bozelli v. Bozelli
HAZEL BOZELLI, Appellant, v. RAY
BOZELLI, Respondent.
No. 5775
September 11, 1969 458 P.2d 356
Appeal from judgment and decree of the Fifth Judicial District Court, Mineral County;
Grant L. Bowen, Judge.
Suit for divorce. The lower court granted husband a divorce and wife appealed. The
Supreme Court, Thompson, J., held that where action was commenced after parties had been
separated nine months but before statute was amended to reduce required period of separation
from three years to one year, and district court allowed husband to amend complaint at trial
after more than two years of separation to allege one-year separation without
cohabitation, amended complaint could be treated as supplemental complaint, though
new cause for divorce should have been introduced by supplemental pleading since it did
not exist when suit was started.
at trial after more than two years of separation to allege one-year separation without
cohabitation, amended complaint could be treated as supplemental complaint, though new
cause for divorce should have been introduced by supplemental pleading since it did not exist
when suit was started.
Affirmed.
Robert H. Moore, of Reno, for Appellant.
Fry and Fry, of Reno, for Respondent.
1. Divorce.
Fact that divorce litigation was pending between parties to separation did not interrupt or destroy their
separation.
2. Pleading.
An amended pleading dates back to the original and asserts facts which were in existence at that time.
NRCP 15(c).
3. Divorce.
Where action for divorce was commenced after parties had been separated nine months but before statute
was amended to reduce required period of separation from three years to one year, and district court
allowed husband to amend complaint at trial after more than three years' separation to allege one-year
separation without cohabitation, amended complaint could be treated as supplemental complaint though
new cause for divorce should have been introduced by supplemental pleading. NRS 125.010, subd. 9;
NRCP 15(d).
OPINION
Ray was granted a divorce from Hazel upon the ground that they had lived separate and
apart for one year without cohabitation. NRS 125.010(9), effective July 1, 1967. This action
for divorce was commenced March 30, 1967 before the amendment to NRS 125.010(9)
reducing the required period of separation from three years to one year. The parties had been
separated about nine months when this litigation started. The trial of this case did not occur
until August 1968 at which time the parties had been separated for more than two years. The
district court allowed Ray to amend his complaint to allege one year separation without
cohabitation and a divorce was granted to him on that ground. This is assigned as prejudicial
error since that cause for divorce did not exist when suit was commenced.
[Headnotes 1-3]
It is clear from the record that the separation resulted from the voluntary act of at least
one of the parties, in this instance, Ray's. Caye v. Caye, 66 Nev. 78, 87, 203 P.2d 1013
(1949); Issarescu v. Issarescu, 82 Nev. 239, 415 P.2d 67 (1966). The fact that litigation was
pending between them does not interrupt or destroy their separation. Benson v. Benson, 66
Nev. 94, 101, 204 P.2d 316 (1949). It is true, of course, that this new cause for divorce should
have been introduced by a supplemental pleading since it did not exist when suit was started.
NRCP 15(d); Las Vegas Network v. Shawcross, 80 Nev. 405, 395 P.2d 520 (1964). An
amended pleading relates back to the date of the original (NRCP 15(c)) and asserts facts
which were in existence at that time. As we see it, however, no useful purpose will be served
by applying the distinction between supplemental and amended pleadings to the case at hand.
Were we to reverse on this basis the case would simply be retried with the same result. In
these circumstances we shall treat the amended complaint as a supplemental complaint. Cf.
Rogers v. State, 85 Nev. 361, 455 P.2d 172 (1969).
Hazel also contends that Ray failed to prove his Nevada residence. The record shows
otherwise.
Affirmed.
____________
85 Nev. 527, 527 (1969) White v. Yup
DOROTHY WHITE, Appellant, v.
HENRY YUP, Respondent.
No. 5706
September 12, 1969 458 P.2d 617
Appeal from judgment of Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Action against motorist whose vehicle struck automobile resulting in injuries to passenger
and death of passenger's fetus. The trial court entered judgment on verdict for defendant and
plaintiff appealed. The Supreme Court, Mowbray, J., held that instruction that negligence of
driver was imputable to his wife, the plaintiff, was improper, requiring reversal of
judgment for defendant, and that cause of action existed for wrongful death of the
unborn eight-month-old fetus which had been viable at time of injury but was stillborn as
result thereof.
85 Nev. 527, 528 (1969) White v. Yup
his wife, the plaintiff, was improper, requiring reversal of judgment for defendant, and that
cause of action existed for wrongful death of the unborn eight-month-old fetus which had
been viable at time of injury but was stillborn as result thereof.
Reversed and remanded for a new trial.
Stewart & Horton, of Reno, for Appellant.
Leslie A. Leggett, of Reno, for Respondent.
1. Appeal and Error; Negligence.
Instruction that negligence of driver in operation of his vehicle was imputable to his wife injured in
collision with another automobile was improper, requiring reversal of judgment for driver of the other
automobile.
2. Negligence.
Husband's contributory negligence may not be imputed to his wife and does not preclude her recovery
against third person who has caused her injury.
3. Negligence.
Family purpose statute imposing liability upon motor vehicle owner for negligent operation by immediate
member of his family is a liability statute and does not impute family member's contributory negligence to
family automobile owner or other family member who as plaintiff is seeking to recover for personal injury
or property damage arising when a defendant's automobile collides with a family purpose automobile.
Stats. Nev. 1957, ch. 37.
4. Negligence.
Contributory negligence, if any, of husband, driver of automobile, would be no defense to recovery of
damages by wife, a passenger, for death of unborn child.
5. Infants.
Cause of action will lie on behalf of child for prenatal injuries.
6. Death.
Cause of action existed for wrongful death of eight-month-old viable fetus which had been viable at time
of injury but was stillborn as consequence thereof. NRS 41.080.
OPINION
Appellant, Dorothy White, sued respondent, Henry Yup, for damages resulting from a
two-car collision at a street intersection, when a motor vehicle driven by Yup struck a car
driven by Dorothy's husband, William White, in which Dorothy was riding as a passenger.
Dorothy prayed in her first cause of action for $112,280.50 in damages for her own personal
injuries suffered as a result of the accident, and in her second cause of action she asked
for $10,000 in damages for the wrongful death of her S-months-old fetus.
85 Nev. 527, 529 (1969) White v. Yup
personal injuries suffered as a result of the accident, and in her second cause of action she
asked for $10,000 in damages for the wrongful death of her 8-months-old fetus. The case was
tried to a jury, and a verdict was returned in favor of Yup.
The collision occurred at the intersection of Locust Street and East Plumb Lane in Reno.
The Whites were traveling south on Locust, and Yup was proceeding east on Plumb. At the
time of the accident there were no traffic control signals, but there was a stop sign on Locust
Street. The evidence is conflicting. William White testified that he came to a complete stop at
the sign, then proceeded into the intersection, where Yup's vehicle struck the Whites' car.
Yup, on the other hand, maintained that William failed to obey the stop sign and drove in
front of Yup's car and that the collision resulted.
[Headnote 1]
Dorothy seeks a reversal of the judgment and a new trial on the ground that the trial judge
did not properly instruct the jury. She contends that he committed reversible error when he
instructed the jury that her husband's negligence in the operation of his vehicle was imputable
to her.
1
We agree that the instruction was improper, and we reverse and remand the case for
a new trial.
[Headnote 2]
1. Ever since the case of Fredrickson & Watson Constr. Co. v. Boyd, 60 Nev. 117, 102
P.2d 627 (1940), it has been the law of Nevada that a husband's contributory negligence may
not be imputed to his wife so as to preclude her recovery against a third person who has
caused her injury. In Fredrickson, the court said, at 122, in quoting from McKay on
Community Property 398 at 296 (2d ed. 1925):
The husband as head of the community sustains the same relation to the wife as at
common law, so far as the present question is concernedhe is entitled to her services, and is
liable for the expense of her care and cure, and for the violation of these rights he should
recover. But neither at common law or by the law of community does he hold the wife's right
to personal security and should not be permitted to recover for the violation of this right. It
does not belong to him nor to the community. The wife's physical pain and suffering are not
his loss nor the loss of the community.' And the court concluded, at 123:
____________________

1
Instruction No. 7:
If you find by a preponderance of the evidence, that the plaintiff's husband was negligent in the operation of
the automobile, such negligence is imputed to the plaintiff.
85 Nev. 527, 530 (1969) White v. Yup
And the court concluded, at 123:
From what has been said, it follows that the contributory negligence of the husband
cannot be imputed to the wife in this state. See also Choate v. Ransom, 74 Nev. 100, 323
P.2d 700 (1958); Lee v. Baker, 77 Nev. 462, 366 P.2d 513 (1961); NRS 41.170.
[Headnote 3]
Respondent contends that the Family Purpose Statute, NRS 41.440,
2
enacted in 1957,
has changed the rule announced in Fredrickson. He argues that the phrase in the statute, for
all purposes of civil damages, includes all owners of a family vehicle, whether they are
plaintiffs or defendants. In other words, the third-party plaintiff or defendant may use NRS
41.440 both as a sword (to fix liability on the owner of the vehicle) and as a shield (to bar
any action brought against him by the owner or any passenger in the vehicle). We do not
agree. NRS 41.440 is a liability statute, and it in no way abrogates the rule announced in
Fredrickson. The very title of the act amending NRS chapter 41 to provide for the Family
Purpose Statute reads:
AN ACT to amend chapter 41 of NRS relating to special actions and proceedings by
creating new provisions imposing liability upon the owner of a motor vehicle for negligent
operation thereof by immediate member of family. (Emphasis added.) Ch. 37, Stats. Nev.
1957 at 60.
The origin, use, and standard definitions of the family purpose doctrine provide ample
evidence that the rule is primarily a plaintiff's device. We reject any attempt to use the
doctrine as a defense technique to impute a family member's contributory negligence to the
family car owner or a member of the family who as plaintiff is seeking to recover personal or
property damages arising when a defendant's automobile collides with a plaintiff's family
purpose car.
____________________

2
Liability of motor vehicle owner for negligent operation by immediate member of family. Any liability
imposed upon a wife, husband, son, daughter, father, mother, brother, sister or other immediate member of a
family arising out of his or her driving and operating a motor vehicle upon a highway with the permission,
express or implied, of such owner is hereby imposed upon the owner of the motor vehicle, and such owner shall
be jointly and severally liable with his or her wife, husband, son, daughter, father, mother, brother, sister or other
immediate member of a family for any damages proximately resulting from such negligence or willful
misconduct, and such negligent or willful misconduct shall be imputed to the owner of the motor vehicle for all
purposes of civil damages.
85 Nev. 527, 531 (1969) White v. Yup
The defendant in Bartek v. Glasers Provisions Co., 71 N.W.2d 466 (Neb. 1955),
unsuccessfully attempted to use the family purpose doctrine as a means of imputing the
driver's contributory negligence to the plaintiff, who was the driver's wife. The court declared
that the family purpose doctrine does not have for its objective the purpose of defeating a
claim for damages by a passenger by imputing the negligence of the driver to such passenger,
but instead, as a matter of public policy, has as its purpose the imposition of liability upon the
owner of the car being used for family purposes. In Michaelsohn v. Smith, 113 N.W.2d 571,
574 (N.D. 1962), the court said:
The family purpose doctrine and the financial responsibility statutes, such as those of
Iowa and Minnesota, have their origin in an identical public policy, that of giving an injured
party, who is free of negligence, a cause of action against a financially responsible defendant.
The doctrine was an extension of previously established rules of liability in order to advance
the dictates of natural justice.' Its application, therefore, should only be coextensive with its
purpose. To extend the doctrine to deny the right of a non-negligent car owner to recover
from a negligent driver of another car would defeat the public policy the doctrine is intended
to serve. It is our view therefore that the negligence of Austin Michaelsohn, if any, may not
be imputed to W. E. Michaelsohn. See also Brower v. Stolz, 121 N.W.2d 624 (N.D. 1963).
We agree that the application of the Family Purpose Statute would be defeated if the
doctrine were to be used to prevent recovery from a negligent defendant by a non-negligent
plaintiff, and we hold that it has not abrogated the Fredrickson rule. The trial judge
committed reversible error when he gave the jury Instruction No. 7, supra, and the case must
be reversed and remanded for a new trial.
[Headnote 4]
2. Appellant offered Instruction B,
3
which the trial judge rejected. Respondent had
moved prior to trial to dismiss Dorothy's second cause of action, i.e., the claim for damages
resulting from the wrongful death of her 8-months-old fetus. The district judge denied the
motion. Although that issue is not before us on this appeal, it becomes necessary, because we
are remanding the case for a new trial, to consider the question in order to reach the
propriety of proposed Instruction B.
____________________

3
Proposed Instruction B:
The contributory negligence, if any, of William White, is no defense to a recovery of damages by plaintiff for
the death of the unborn child.
85 Nev. 527, 532 (1969) White v. Yup
question in order to reach the propriety of proposed Instruction B.
At common law, actions for death did not survive the death of the injured party. W.
Prosser, Law of Torts 920 (3d ed. 1964). Consequently, there was no right of action for an
injury which resulted in death. Baker v. Bolton, 1 Camp. 493, 170 Eng.Rep. 1033 (1808). To
correct this defect, the British Parliament in 1846 adopted Lord Campbell's Act (Fatal
Accidents Act, 9 & 10 Vict., ch. 93 [1846]), which most American jurisdictions have
followed.
The Wrongful Death Act of Nevada, NRS 41.080, is typical, and reads as follows:
Liability for death by wrongful act. Whenever the death of a person shall be caused by
wrongful act, neglect or default, and the act, neglect or default is such as would, if death had
not ensued, have entitled the party injured to maintain an action and recover damages in
respect thereof, then, and in every such case, the persons who or the corporation which would
have been liable if death had not ensued shall be liable to an action for damages
notwithstanding the death of the person injured, and although the death shall have been
caused under such circumstances as amount in law to a felony.
The statute sets forth two requirements to maintain a cause of action: (1) the death of a
person and (2) the prior right of the deceased to maintain a cause of action had death not
ensued.
Because the question raised is whether an action may be allowed where a viable fetus dies
prior to birth as the result of an injury it is necessary to determine whether there is a cause of
action in Nevada (1) for prenatal injuries and (2) for the wrongful death of a stillborn child.
I. PRENATAL INJURIES.
The first case in which the question of recovery for prenatal injuries arose was Dietrich v.
Northampton, 52 Am. R. 242 (Mass. 1884), where the court denied the right of action. In
Dietrich, a woman in the fourth month of pregnancy fell as a result of a defect in a street. The
fall produced a miscarriage, and the child died upon birth. The court held that the child was
not a person within the statutes that gave a cause of action for negligent death to the
administrator of the estate of a deceased person. The court reasoned that, since the mother
and the fetus were physically inextricable, they should be considered one entity. This was
undoubtedly the medical view accepted by the law at that time, but it has been altered
over the years.
85 Nev. 527, 533 (1969) White v. Yup
view accepted by the law at that time, but it has been altered over the years.
Dietrich has been effectively overruled by Keyes v. Construction Serv., Inc., 165 N.E.2d
912, 915 (Mass. 1960), where the court said:
We think it advisable that in respect to the subject of prenatal injury the law of this
Commonwealth should be in general in harmony with that of the large and growing
proportion of the other States. . . . There is no need to reverse the Dietrich decision which
doubtless was right when rendered but we recognize that in view of modern precedent its
application should be limited to cases where the facts are essentially the same.
The states that now allow recovery for prenatal injuries are: California: Scott v.
McPheeters, 92 P.2d 678 (Cal.App. 1939), aff'g per curiam 93 P.2d 562 (Cal. 1939);
Connecticut: Prates v. Sears, Roebuck & Co., 118 A.2d 633 (Conn.App. 1955); Georgia:
Tucker v. Howard L. Carmichael & Sons, 65 S.E.2d 909 (Ga. 1951), and Hornbuckle v.
Plantation Pipe Line Co., 93 S.E.2d 727 (Ga. 1956); Illinois: Amann v. Faidy, 114 N.E.2d
412 (Ill. 1953); Louisiana: Cooper v. Blanck, 39 So.2d 352 (La.App. 1923); Maryland:
Damasiewicz v. Gorsuch, 79 A.2d 550 (Md. 1951); Massachusetts: Keyes v. Construction
Serv., Inc., supra; Mississippi: Rainey v. Horn, 72 So.2d 434 (Miss. 1954); Missouri: Steggall
v. Morris, 258 S.W.2d 577 (Mo. 1953); New Hampshire: Poliquin v. Macdonald, 135 A.2d
249 (N.H. 1957), and Bennett v. Hymers, 147 A.2d 108 (N.H. 1958);
4
New Jersey: Smith v.
Brennan, 157 A.2d 497 (N.J. 1960); New York: Woods v. Lancet, 102 N.E.2d 691 (N.Y.
1951); Ohio: Williams v. Marion Rapid Transit, Inc., 87 N.E.2d 334 (Ohio 1949); Oregon:
Mallison v. Pomeroy, 291 P.2d 225 (Ore. 1955); Pennsylvania: Sinkler v. Kneale, 164 A.2d
93 (Pa. 1960); Rhode Island: Sylvia v. Gobeille, 220 A.2d 222 (R.I. 1966); South Carolina:
Hall v. Murphy, 113 S.E.2d 790 (S.C. 1960); Tennessee: Shousha v. Matthews Drivurself
Serv., Inc., 358 S.W.2d 471 (Tenn. 1962); Texas: Leal v. Pitts Sand & Gravel, Inc., 419
S.W.2d 820 (Tex. 1967); Washington: Seattle-First Nat'l Bank v. Rankin, 367 P.2d 835
(Wash. 1962); West Virginia: Panagopoulous v. Martin, 295 F.Supp. 220 (S.D.W.Va. 1969).
Amann v. Faidy, supra, at 415 lists the following textual authorities that support the view
that a cause of action should lie for prenatal injuries: "Morris, Injuries to Infants En Ventre
Sa Mere, 5S Cent.
____________________

4
In Bennett v. Hymers, a child can recover even if not viable when injured in the fetal stage.
85 Nev. 527, 534 (1969) White v. Yup
lie for prenatal injuries: Morris, Injuries to Infants En Ventre Sa Mere, 58 Cent. L.J. 143
(1904). Kerr, Action by Unborn Infant 61 Cent. L.J. 364 (1905). Albertsworth, Recognition
of New Interests in Law of Torts, 10 Cal.L.Rev. 461 (1922); Frey, Injuries to Infants En
Ventre Sa Mere, 12 St. Louis L. Rev. 85 (1927); Straub, Rights of Action for Prenatal
Injuries, 33 Law Notes 205 (1930); James, Scope of Duty in Negligence Cases, 47 N.W. Law
Review 778, 786, (1953). See: Notes, 34 Harv.L.Rev. 549 (1921); 6 Cornell L.Q. 341 (1921);
44 Yale L.J. 1468 (1935); 20 Minn.L.Rev. 321 (1936); 36 Mich.L.Rev. 512 (1938); 34
Minn.L.Rev. 65 (1949); 48 Mich.L.Rev. 539 (1950); 35 Cornell L.Q. 648 (1950); 1951
Wis.L.Rev. 518; 50 Mich.L.Rev. 166 (1951); 63 Harv.L.Rev. 173 (1949-50); 2 DePaul Law
Rev. 97; Prosser on Torts, sec. 31, pp. 188-190 (1941).
The states that deny recovery are: Alabama: Stanford v. St. Louis-San Francisco Ry. Co.,
108 So. 566 (Ala. 1926); Michigan: Newman v. City of Detroit, 274 N.W. 710 (Mich. 1937).
5

Without belaboring the point by an analysis of each of the cases in which recovery was
denied, it is sufficient to say that if, by the negligence or the willful misconduct of someone,
an unborn child must go through life crippled, blind, subject to fits, or otherwise changed
from a normal human being, one must be impressed by the harshness of the result.
[Headnote 5]
Based upon the weight of authority and the modern trend of cases which have considered
this problem, we find that in Nevada a cause of action will lie on behalf of a child for prenatal
injuries.
II. ACTION FOR WRONGFUL DEATH OF STILLBORN FETUS.
The second requirement of the statute is the death of a person. With respect to the facts
alleged in the complaint, the question is whether an action is allowed where the fetus is viable
at the time of the injury and is stillborn as a consequence thereof.
The development of actions for prenatal injuries resulting in death has not been as rapid
as the growth of actions for prenatal injuries not resulting in death.
____________________

5
The soundness of Newman v. City of Detroit has been severally criticized by the concurring opinion in
Estate of Powers v. City of Troy, 156 N.W.2d 530 (Mich. 1968).
85 Nev. 527, 535 (1969) White v. Yup
in death has not been as rapid as the growth of actions for prenatal injuries not resulting in
death. The first case to extend the right of action to prenatal injuries resulting in death was
Verkennes v. Corniea, 38 N.W.2d 838 (Minn. 1949). There, the court allowed a right of
action for wrongful death where the fetus was viable at the time of the injury and died as a
consequence thereof. The fetus was considered a person for the purposes of the action.
A number of courts subsequently passing on the question have held that an action for the
wrongful death of an unborn child is maintainable where the fetus was viable at the time of
the injury. At present they are: Connecticut: Gorke v. Le Clerc, 181 A.2d 448 (Conn.App.
1962); Delaware: Worgan v. Greggo & Ferrara, Inc., 128 A.2d 557 (Del.App. 1956);
Georgia: Porter v. Lassiter, 87 S.E.2d 100 (Ga.App. 1955); Iowa: Wendt v. Lillo, 182
F.Supp. 56 (N.D. Iowa 1960); Kansas: Hale v. Manion, 368 P.2d 1 (Kan. 1962); Kentucky:
Mitchell v. Couch, 285 S.W.2d 901 (Ky. 1955); Maryland: State, Use of Odham v. Sherman,
198 A.2d 71 (Md. 1964); Minnesota: Verkennes v. Corniea, supra; Mississippi: Rainey v.
Horn, supra; New Hampshire: Poliquin v. Macdonald, supra; Ohio: Stidam v. Ashmore, 167
N.E.2d 106 (Ohio App. 1959); South Carolina: Fowler v. Woodward, 138 S.E.2d 42 (S.C.
1964), and Todd v. Sandidge Constr. Co., 341 F.2d 75 (4th Cir. 1964); West Virginia:
Panagopoulous v. Martin, supra; Wisconsin: Kwaterski v. State Farm Mut. Auto Ins. Co., 148
N.W.2d 107 (Wis. 1967).
It has been stated in the following cases that an action will not lie for the wrongful death of
a stillborn child: California: Norman v. Murphy, 268 P.2d 178 (Cal.App. 1954);
Massachusetts:
6
Keyes v. Construction Serv., Inc., supra; Michigan: Estate of Powers v.
City of Troy, supra (Footnote 5); Nebraska: Drabbels v. Skelly Oil Co., 50 N.W.2d 229 (Neb.
1951); New Jersey: Graf v. Taggert, 204 A.2d 140 (N.J. 1964); New York: Endresz v.
Friedberg, 276 N.Y.S.2d 469 (N.Y.App. 1966); North Carolina: Gay v. Thompson, 146
S.E.2d 425 (N.C. 1966); Oklahoma: Howell v. Rushing, 261 P.2d 217 (Okla. 1953), and
Padillow v. Elrod, 424 P.2d 16 (Okla. 1967); Pennsylvania: Carroll v. Skloff, 202 A.2d 9 (Pa.
1964), and Marko v. Philadelphia Transp. Co., 216 A 2d 502 {Pa.
____________________

6
In Torigian v. Watertown News Co., 225 N.E.2d 926 (Mass. 1967), the court held that a wrongful death
action would lie on behalf of a child that was injured during gestation and lived only 2 1/2 hours. The key factor
is life. The child must at some point be alive outside the mother's womb, regardless of how long it is.
85 Nev. 527, 536 (1969) White v. Yup
A 2d 502 (Pa. 1966); Tennessee:
7
Hogan v. McDaniel, 319 S.W.2d 221 (Tenn. 1958), and
Durrett v. Owens, 371 S.W.2d 433 (Tenn. 1963).
An analysis of the cases reveals that the courts advance the following reasons supporting
recovery:
A. If a child, injured when a viable fetus as a result of another's negligence, has a cause of
action when born, then it can make no difference in liability whether death occurs just prior to
or just after birth. Gorke v. Le Clerc, supra; State, Use of Odham v. Sherman, supra; Stidam
v. Ashmore, supra.
B. A viable unborn child is, in fact, biologically speaking, a presently existing person and
a living human being, because it has reached such a state of development that it can presently
live outside the female body, as well as within it. Mitchell v. Couch, supra; Cooper v. Blanck,
supra; Verkennes v. Corniea, supra; Rainey v. Horn, supra; Fowler v. Woodward, supra.
C. If no right of action is allowed, there is a wrong inflicted for which there is no remedy.
Where negligent acts produce a stillbirth and a right of action is denied, an incongruous result
is produced. For example, if a doctor acted negligently while delivering a baby and it died,
the doctor would be immune from lawsuit. However, if he badly injured the child, the doctor
would be exposed to liability. Under such a rule, there is the absurd result that the greater the
harm, the better the chance of immunity, and the tort-feasor could foreclose his own liability.
Todd v. Sandidge Constr. Co., supra; Kwaterski v. State Farm Mut. Auto. Ins. Co., supra.
Those jurisdictions which deny the cause of action advance the following reasons:
A. A peculiar and unique wrongful death statute that predicates the action upon the death
of a person not a minor or of certain minor persons. Cal. Code of Civil Procedure 377
(West 1954). The court concluded in Norman v. Murphy, supra, that a person not a minor
meant an adult and that minority commences with birth. The Nevada statute makes no such
limitation. NRS 41.080, supra.
B. Lack of precedent. Drabbels v. Skelly Oil Co., supra. This is no longer a valid reason,
since the majority of decisions now favor recovery. See Annot., 15 A.L.R.3d 992 (1967).
C. An unborn child is a part of its mother until birth and thus has no juridical existence.
Drabbels v. Skelly Oil Co., supra; Howell v. Rushing, supra; Hogan v. McDaniel, supra;
Durrett v. Owens, supra.
____________________

7
Tennessee allows an action for prenatal injuries if the child is born alive and either lives or dies thereafter.
Tennessee will not allow a wrongful death action for injuries to a fetus that is born dead. See Shousha v.
Matthews Drivurself Serv., Inc., supra.
85 Nev. 527, 537 (1969) White v. Yup
supra; Howell v. Rushing, supra; Hogan v. McDaniel, supra; Durrett v. Owens, supra. This
proposition has no scientific or medical basis in fact and has been expressly rejected by
numerous authorities. See Smith v. Brennan, supra.
D. The just need for compensation for deformities and increased parental responsibility
resulting when the child is born alive is not present where the child is born dead, and proof of
a casual connection and pecuniary loss would lead to speculation; this, in turn, would mean
that damages awarded would be punitive, not compensatory. Gay v. Thompson, supra;
Carroll v. Skloff, supra. Punitive damages may in appropriate circumstances be sought and
recovered under the Wrongful Death Statute in Nevada. NRS 42.010.
It is true that the loss of the society, association, companionship, comfort, and affection of
the decedent and the loss of acts of kindness which originate in the relationship between
decedent and beneficiaries are factors which many courts deem incapable of measurement
and not proper elements of damage recoverable under a pecuniary loss death statute. See
cases collected in S. Speiser, Recovery for Wrongful Death, 3.42, n. 7, at 210 (1966).
However, many jurisdictions have construed their wrongful death statutes to permit recovery
of such nonpecuniary damage. See Speiser, supra, 3.42, n. 15.
Decisive, however, is the fact that the Nevada Wrongful Death Statute, along with the
statutes of numerous other states, specifically provides that such elements of nonpecuniary
loss may be recovered. Alaska: A.S. 13.20.340; Arkansas: Ark. Stats. 27-909; Hawaii:
H.R.S. 663-3; Kansas: K.S.A. 60-1904; Nevada: NRS 41.090, subsection 2; West
Virginia: W.Va. Code 5475; Wisconsin: W.S.A. 895.04; Wyoming: Wyo. Stats.
1-1066.
Relevant is the following statement in the Law Journal of the National Association of
Claimants' Compensation Attorneys:
The death of a minor child is a deep emotional wounding, and it may be admitted that
there is a decided tendency for the law to compensate for the grievous injury to family
feelings involved in the death of such children or, phrased otherwise, to place a money value
upon the lost companionship, deprived presence, and the co-adventuring implicit in the
parent-child relationship. This enlarged view suggests that these deprivations are services,'
financially compensable, lost to the survivors of the deceased child. The sentimental aspects
of family life may be materialized without being vulgarized. 18 NACCA L.J. 378 (1956).
85 Nev. 527, 538 (1969) White v. Yup
It is no less a loss to the survivors where, as here, the child died before birth; and it is clear
that the Legislature intended that whatever loss there is should be compensated. Respondent's
argument that damages would be difficult of proof does not go to the validity of a cause of
action.
[Headnote 6]
Accordingly, based on the trend of modern authority, we hold that a cause of action does
exist for the wrongful death of an unborn 8-months-old viable fetus, and we agree with the
district judge's order in denying respondent's motion to dismiss.
We also hold that William's contributory negligence, if any, may not act to bar Dorothy's
recovery on the wrongful death action. Therefore, Instruction B should have been given to the
jury. As the court said in Baca v. Baca, 379 P.2d 765, 770 (N.M.1963):
This court said in Soto v. Vandeventer, 56 N.M. 483, 245 P.2d 826, 35 A.L.R.2d 1190
that the New Mexico community property statutes are almost identical with those of Nevada.
In that case we followed the Nevada court in Fredrickson & Watson Const. Co. v. Boyd, 60
Nev. 117, 102 P.2d 627 in its construction that a wife's cause of action for personal injuries to
herself is not an asset of the community, and declined to follow the other community property
states all holding to the contrary. Nevada has determined in Los Angeles & S.L.R.R. v.
Umbaugh, supra [61 Nev. 214, 123 P.2d 224 (1942)], that the proceeds from a recovery for
the wrongful death of a child by one spouse do not come within the meaning of the word
acquired' as used in the statute defining community property as construed by Fredrickson &
Watson Const. Co. v. Boyd, supra, and that the contributory negligence of one spouse, if any,
is not to be imputed to the other so as to bar a recovery by the spouse who was not negligent.
. . . .
We are of the opinion that the right of action given the husband or wife to have an action
brought for the wrongful death of a child is not a community right, and that the proceeds from
any recovery are not community property, as it was defined by this court in Soto v.
Vandeventer, supra.
It follows that the instruction complained of was erroneous and that the contributory
negligence of one spouse, if any, is not to be imputed to the other spouse.
3. Appellant complains that the trial judge erred in refusing to instruct the jury on the
last-clear-chance doctrine. Since we have held that William's contributory negligence, if
any, may not be imputed to Dorothy, the last-clear-chance doctrine has no application in
the case, and it was proper not to give the instruction.
85 Nev. 527, 539 (1969) White v. Yup
we have held that William's contributory negligence, if any, may not be imputed to Dorothy,
the last-clear-chance doctrine has no application in the case, and it was proper not to give the
instruction.
Reversed and remanded for a new trial.
____________
85 Nev. 539, 539 (1969) Biner v. Dynalectron
LOWELL N. BINER, Appellant, v. DYNALECTRON
CORPORATION, a Foreign Corporation, Respondent.
No. 5794
September 16, 1969 458 P.2d 616
Thomas O. Craven, Judge.
Personal injury suit by employee against employer. The lower court entered summary
judgment for employer, and employee appealed. The Supreme Court, Thompson, J., held that
where employee injured in Nevada during course of his employment made claim under Texas
workmen's compensation statute, and was thus charged with knowledge of its provisions, and
award he received pursuant to compromise settlement was binding in Texas until lawfully set
aside, he was estopped from litigating common-law claim for damages while retaining
benefits of contract which he claimed were void, thus his action against his employer in
Nevada was barred, even if Texas award of compensation was void.
Affirmed.
Thornton, Guinan & Griswold, of Reno, for Appellant.
Vargas, Bartlett & Dixon and Frederic R. Starich, of Reno, for Respondent.
Workmen's Compensation.
Where employee injured in Nevada during course of his employment made claim under Texas workmen's
compensation statute, and was thus charged with knowledge of its provisions, and award be received
pursuant to compromise settlement was binding in Texas until lawfully set aside, he was estopped from
litigating common-law for damages while retaining benefits of contract which he claimed was void, thus his
action against his employer in Nevada was barred, even if Texas award of compensation
was void.
employer in Nevada was barred, even if Texas award of compensation was void. Vernon's Ann. Tex.Civ.St.
art. 8306 et seq.
OPINION
This is an action for damages brought by Lowell Biner, employee, against Dynalectron
Corporation, his employer. The district court granted summary judgment to the employer
since the employee had previously sought and secured compensation for his injury under the
Workmen's Compensation Law of Texas. The issue presented to the district court, and now to
us, is whether the Texas award of compensation bars this action against the employer in
Nevada. We agree with the lower court that the employer is not liable on the record presented
and affirm the summary judgment.
Biner was hired by Dynalectron in Nevada and was injured here during the course of his
employment. Dynalectron was not covered under the Nevada Industrial Insurance Act. It had,
however, secured coverage for its employees under the Employees Liability Act of Texas.
Continental Casualty Company was the insurer. Biner submitted his claim for compensation
to Continental, and a compromise settlement agreement was made pursuant to which
Continental paid Biner $1,855.00. That settlement was approved by the Industrial Accident
Board of Texas. It is Biner's contention that the Texas award is void and may be ignored since
the applicable law of that state does not provide coverage to an employee who is hired and
injured in another state. Thus, he argues that he may seek additional compensation from his
employer by a common-law action in this state.
For the purpose of this appeal we assume that the Texas award of compensation is void. It
does not follow, however, that its collection and retention does not affect his right of action
asserted here. He made claim under the Texas statute and is charged with knowledge of its
provisions. The award which he received is binding in Texas until lawfully set aside. Pearce
v. Texas Employers Ins. Association, 403 S.W.2d 493 (Ct.Civ.App.Tex. 1966). He has not
challenged that award in Texas, nor does he in this case suggest that the Texas award should
be rescinded for mistake. Indeed, were he to so suggest the duty would be his to tender back
what he had received before commencing this action. He is estopped from litigating this
claim for damages while clinging to the fruits of the contract which he asserts is void.
this claim for damages while clinging to the fruits of the contract which he asserts is void.
Brassel v. Electric Welding Co. of America, 145 N.E. 745 (N.Y. 1924).
Affirmed.
____________
85 Nev. 541, 541 (1969) Arley v. Liberty Mut. Fire Ins. Co.
CHARLOTTE HUNTER ARLEY, Appellant, v. LIBERTY MUTUAL FIRE INSURANCE
COMPANY, a Massachusetts Corporation, Respondent.
No. 5782
September 23, 1969 458 P.2d 742
Appeal from order of Second Judicial District Court, Washoe County, granting motion to
dismiss; John E. Gabrielli, Judge.
Action by insured to recover on fire policy. The Second Judicial District Court, Washoe
County, Clel Georgetta, J., awarded the insured the full amount of the policy but denied her
claim for prejudgment interest, and insured appealed. The Supreme Court, 80 Nev. 5, 388
P.2d 576, affirmed. A remittitur was filed and insured refused to accept payment claiming
interest from date of original judgment. The Second Judicial District Court, Washoe County,
John E. Gabrielli, J., ordered that on payment of award plus interest satisfaction of judgment
would be entered and insured appealed. The Supreme Court, 81 Nev. 411, 404 P.2d 426,
affirmed. Insured then commenced an independent action to have the satisfaction of judgment
set aside and judgment corrected to include interest from date proceeds were first due. The
lower court dismissed motion and insured appealed. The Supreme Court, Mowbray, J., held
that change in judicial view regarding prejudgment interest with resultant abandonment of
liquidated claim versus nonliquidated claim test in determining allowance of such interest
was no basis for vacating satisfaction of judgment on policy and to enter new judgment
awarding interest from date proceeds were first due rather than from date remittitur was filed.
Affirmed.
Charlotte Hunter Arley, of Seattle, Washington, and Fry & Fry, of Reno, for Appellant.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug and Roger W. Jeppson, of Reno, for
Respondent.
Judgment.
Change in judicial view regarding prejudgment interest with resultant abandonment of liquidated claim
versus nonliquidated claim test in determining allowance of such interest was no basis for vacating
satisfaction of judgment on fire policy and to enter new judgment awarding interest from date proceeds
were first due rather than from date remittitur was filed. NRCP 60, 60(b).
OPINION
This is the third time this case has come to us on appeal. Appellant Arley sued respondent
Liberty Mutual Fire Insurance Company for property losses covered by a fire insurance policy
which Arley had with Liberty. The district court awarded Arley $35,000, the full amount of
the policy, but denied her claim for prejudgment interest on the award. Arley appealed and we
affirmed the lower court's decision. Arley v. Liberty Mut. Fire Ins. Co., 80 Nev. 5, 388 P.2d
576 (1964). The remittitur was filed on April 13, 1964, and interest on the judgment
commenced to run from that date. Liberty sought to satisfy the judgment, but Arley refused to
accept payment, claiming, this time, interest from the date of the original
judgmentDecember 13, 1962. Upon Liberty's application the district court entered an order
that, upon payment of the $35,000 award plus interest from the date of the filing of the
remittitur, a satisfaction of judgment would be entered on the record. Again Arley appealed,
and again we sustained the ruling of the district judge in allowing interest only from the date
the remittitur was filed. Arley v. Liberty Mut. Fire Ins. Co., 81 Nev. 411, 404 P.2d 426
(1965).
In February 1968 this court reviewed in depth the question of the allowance of
prejudgment interest, in Paradise Homes, Inc. v. Central Sur. & Ins. Corp., 84 Nev. 109, 437
P.2d 78 (1968). In Paradise, we abandoned the liquidated claim versus nonliquidated
claim test in determining whether prejudgment interest should be allowed, and suggested at
116 (437 P.2d at 83) that a two-fold standard be used in making such a determination:
Three items must be determined to enable the trial court to make an appropriate award of
interest: (1) the rate of interest; (2) the time when it commences to run; and (3) the amount of
money to which the rate of interest must be applied.
amount of money to which the rate of interest must be applied. The rate of interest is set by
our statute at seven percent per annum. N.R.S. 99.040. The statute also states that interest
runs from the time money becomes due.' We construe that to be the time when performance
was due as resolved by the court upon trial of the cause. The amount of money to which the
interest rate will be applied must be determined by the following factors: (1) if the contract
breached provides for a definite sum of money, that sum; (2) if the performance called for in
the contract, the value of which is stated in money or is ascertainable by mathematical
calculation from a standard fixed in the contract or from established market prices of the
subject matter, that sum. Pre-judgment interest shall be allowed on the amount of the debt or
money value so determined, after making all the deductions to which the defendant may be
entitled. 1 Restatement of the Law, Contracts, 337(a); O'Meara v. Commercial Insurance
Company, 71 N.M. 145, 376 P.2d 486 (1962). See also Dollar Investment Corp. v. Modern
Market, Inc., supra [77 Nev. 393, 365 P.2d 311 (1961)]; Sierra Pacific Power Co. v. Nye,
supra [80 Nev. 88, 389 P.2d 387 (1964)]. A seemingly different conclusion in any other
Nevada case cited above is specifically overruled. (Footnote omitted; emphasis added.)
On August 1, 1968, Arley commenced an independent action for post-judgment relief
pursuant to Rule 60 NRCP, in which she asked that the court set aside the satisfaction of her
judgment and that the judgment be corrected to include interest from the date the $35,000
was first dueOctober 17, 1960. This third attempt by Arley to recover prejudgment
interest was predicated entirely upon our decision in Paradise. Upon Liberty's application, the
district court dismissed Arley's motion; thus the present appeal.
Rule 60(b) provides in part that the court may relieve a party or his legal representative
from a final judgment when the judgment has been satisfied, released, or discharged, or a
prior judgment upon which it is based has been reversed or otherwise vacated.
Appellant's contentions are (1) that the final judgment in this case is contrary to the law as
established by the Paradise decision allowing prejudgment interest and is inequitable and (2)
that justice demands that appellant have relief therefrom.
As the court said in Collins v. City of Wichita, Kansas, 254 F.2d 837, 839 (10th Cir.
1958):
No cases have been cited, and we have found none, which hold that relief from final
judgments may be had under Rule 60 {b), or otherwise, which involve property rights, . . . .
60 (b), or otherwise, which involve property rights, . . . .
Litigation must end some time, and the fact that a court may have made a mistake in the law
when entering judgment, or that there may have been a judicial change in the court's view of
the law after its entry, does not justify setting it aside. Sunal v. Large, 332 U.S. 174, . . .
[1947]; [John] Simmons Co. v. Grier Bros. Co., 258 U.S. 82, . . . [1922]; Elgin . . . [Nat'l]
Watch Co. v. Barrett, 5 Cir., 213 F.2d 776 [1954]; Berryhill v. United States, 6 Cir., 199 F.2d
217 [1952]; United States v. Kunz, 2 Cir., 163 F.2d 344 [1947].
And again the court held in Berryhill, supra, at 219: It appears to be the settled rule that a
change in the judicial view of the applicable law, after a final judgment, is not a basis for
vacating a judgment entered before announcement of the change. . . . Scotten v. Littlefield,
235 U.S. 407, . . . [1914]; . . . Lehman Co. v. Appleton Toy & Furniture Co., 7 Cir., 148 F.2d
988 [1945].
Affirmed.
Collins, C. J., Zenoff and Batjer, JJ., and Mann, D. J., concur.
____________
85 Nev. 544, 544 (1969) Brown v. Sheriff
ELDON BROWN, Appellant, v. SHERIFF OF
HUMBOLDT COUNTY, Respondent.
No. 5905
September 29, 1969 459 P.2d 215
Appeal from the Sixth Judicial District Court, Humboldt County; Llewellyn A. Young,
Judge.
Proceeding on pretrial application for writ of habeas corpus to secure release of defendant
charged with burglary. The lower court denied relief, and defendant appealed. The Supreme
Court, Collins, C. J., held that evidence supported magistrate's finding of probable cause that
burglary of store had been committed and that defendant committed it.
Affirmed.
George G. Holden, of Battle Mountain, for Appellant.
Harvey Dickerson, Attorney General, William MacDonald, District Attorney, Humboldt
1. Criminal Law.
Store owner's statement, made to police officer shortly after owner had observed intruder break glass and
enter store, indicating that owner did not see intruder's face and could not tell from defendant's face
whether he was that person but that defendant's build matched that of intruder, did not amount to
identification of defendant who claimed that identification was made during critical stage of proceedings,
before he had assistance of counsel, in violation of his Sixth Amendment right and that hats and shirts
found as result of such statement were fruit of poison tree and as such inadmissible against him.
2. Criminal Law.
Defendant, who, shortly after burglary of store, was arrested near store for being drunk and was orally
advised of his constitutional right to assistance of counsel, who was taken to county jail where he was
booked as inebriate and advised of his rights by written card bearing Escobedo and Miranda type warning,
and who was thereafter taken to office of chief of police where he was given Escobedo-Miranda type
warning and declined to sign waiver after which he voluntarily showed officers location of articles taken
from store, knowingly and intelligently waived his rights to remain silent or to speak only after counsel was
provided for him and after adequate Miranda warnings. U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Evidence supported magistrate's finding of probable cause that burglary of store had been committed and
that defendant committed it. NRS 171.455.
OPINION
This is an appeal from a denial of a pretrial application for habeas corpus. We affirm the
holding of the lower court.
At 6:33 p.m., December 11, 1968, Lamond P. Higbee, owner of the Stockmen's Store in
Winnemucca, Nevada, while working after closing hours in an elevated office in the rear of
his store, heard glass breaking. He looked up and saw a person entering the store through the
broken glass of the front door. The interior of the store was dimly lighted. He observed the
intruder walk past the shirt counter to the hat section. Higbee crouched down so as not to be
seen and called the police on a telephone. When he looked up he observed the intruder depart
through the same door but stand momentarily in the light of seven 500-watt bulbs near the
front show windows. Higbee observed the intruder to be of medium height and build, with
black hair. He was not wearing a hat but had a light-colored waist-length jacket.
light-colored waist-length jacket. Higbee did not see the intruder take or carry anything from
the store. He did not see the intruder's face nor observe signs of his intoxication.
When the first officer answered moments later, Higbee gave him a brief description of the
intruder. That officer hastily departed in search of the burglar. Another officer arrived shortly
thereafter and after the same procedure, likewise took up the search.
Appellant, an Indian, was observed shortly thereafter by one of the officers two or three
blocks west of the store, wearing a light-colored jacket. Appellant appeared intoxicated and
was breathing hard as if from running. He was arrested by the officer for being drunk. He had
no property in his possession. He was orally advised of his constitutional rights, including
that of assistance by counsel, apparently said nothing, but was taken back to the store.
Higbee, in response to a query whether Brown was the man, stated, I can't tell you as far as
his face. I didn't see his face, but from the back and his build, he matches exactly the person
whom I described a few minutes earlier to you.
Appellant was taken to the county jail and booked as an inebriate person. He was again
advised of his rights by the officers from a written card carrying the Escobedo and Miranda
type warning. Appellant refused to sign a written waiver of those rights, and because of his
condition of intoxication he was placed in jail. About 1 1/2 to 2 hours later, appellant, having
sobered up in the judgment of the officers, was taken to the office of the Chief of Police
where he was again given the Escobedo-Miranda type of warning. He then stated, I'll answer
any question you want to know but I won't sign that [the waiver]. He then asked, Would it
go easier on me if I told you what actually happened, the truth? The officers told him they
could make no promises to him, and he then said, Well, if you will give me a ride, I'll show
you where the stuff is.
The officer drove appellant to a place not too far from the store, where a new hat and two
new shirts were discovered hidden in a hedge. Mr. Higbee could positively identify the hat
from the make, the markings, and a hole in the hat stock on the shelf from which it had been
taken. The shirts were identified by the make and Stockmen's Store markings. As stated
before, Higbee had not seen the intruder take or leave the store with anything.
The next day appellant was charged with burglary, a felony, and later a preliminary hearing
was held, following which he was bound over for trial.
By application for habeas corpus to the district court, appellant raised the following issues:
1. The identification of appellant by Higbee shortly after his arrest for intoxication was
during a critical stage of the proceedings before he had the assistance of counsel, and thus in
violation of his sixth amendment right as announced in the line up decision of the U.S.
Supreme Court in U.S. v. Wade, 388 U.S. 218 (1967), and Gilbert v. California, 388 U.S. 263
(1967).
2. His sixth amendment right to assistance of counsel during a critical stage of the
proceedings as announced by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436
(1966) were violated and the hat and shirts found as a result of his statement were fruit of the
poison tree and inadmissible as evidence against him.
3. That without the identification evidence and the hat and shirts, there was not probable
cause for the magistrate to hold him for trial.
The lower court denied his application for habeas corpus, from which ruling this appeal
was taken. We affirm the lower court's ruling.
[Headnote 1]
1. We hold that Higbee's statement at the store as testified to during the preliminary
hearing did not amount to an identification of Brown. Identification is defined in Black's
Law Dictionary at pg. 880 as, Proof of identity; . . . as where a witness recognizes the
prisoner at the bar as the same person whom he saw committing the crime. . . . In Wade the
court was concerned with the judgment made by a witness at a pretrial confrontation that,
that's the man.' 388 U.S. at 235-36.
Wade and Gilbert are concerned with two kinds of identification: in-court identification
based upon a prior improper lineup and testimony as to the witnesses pre-trial identification
that was made at an improper lineup. Neither of those situations are present here.
[Headnote 2]
2. The trial court found, and we agree, that appellant knowingly and intelligently waived
his right to remain silent or to speak only after counsel was provided for him after adequate
Miranda warnings.
[Headnote 3]
3. In view of the foregoing ruling, there was ample evidence to support the magistrate's
finding of probable cause that a crime had been committed and that appellant committed
it.
that a crime had been committed and that appellant committed it. NRS 171.455; Maskaly v.
State, 85 Nev. 111, 450 P.2d 790 (1969).
The denial of habeas corpus is affirmed.
____________
85 Nev. 548, 548 (1969) Rogers v. Tore, Ltd.
WILDA ROGERS, Appellant, v. TORE, LTD.,
a Nevada Corporation, Respondent.
No. 5795
September 30, 1969 459 P.2d 214
Emile J. Gezelin, Judge.
Personal injury action by store employee against shopping center owner. The lower court
granted owner's motion for summary judgment and plaintiff appealed. The Supreme Court,
Thompson, J., held that evidence that store employee, while on her way to work, slipped and
fell on parking lot which had not been treated for slippery condition resulting from freezing of
nighttime rain created fact questions.
Reversed.
Bradley & Drendel, of Reno, for Appellant.
Leslie A. Leggett, of Reno, for Respondent.
1. Negligence.
Invitee's knowledge of danger does not inevitably bar recovery.
2. Negligence.
Party's mission to go to work at store located in shopping center justifies her encountering danger of
slippery condition of parking lot.
3. Judgment.
Evidence in action against shopping center owner by store employee who, while on her way to work,
slipped on parking lot which had not been treated for slippery condition resulting from freezing of
nighttime rain created fact questions precluding summary judgment.
OPINION
This appeal from a summary judgment for the defendant in a damage suit for personal
injury requires our decision as to whether the owner of a shopping center parking lot may
ever be liable to an invitee for failing to remove or otherwise treat natural accumulations
of ice thereon when the invitee knows of the dangerous condition and voluntarily
encounters it.
whether the owner of a shopping center parking lot may ever be liable to an invitee for failing
to remove or otherwise treat natural accumulations of ice thereon when the invitee knows of
the dangerous condition and voluntarily encounters it. The district court ruled that the owner
could not be liable as a matter of law. We do not agree and reverse that determination.
Wilda Rogers was walking to her place of employment at Faye's Ready to Wear Shop in
Shopper's Square, Reno. While crossing the parking lot of the shopping center she slipped
on the icy pavement, fell and was injured. There had been precipitation the evening before
and ice formed as the result of the rain freezing during the early morning hours. There was
also a trace of snow. She knew of the icy condition of the parking lot pavement and was
trying to pick her way carefully through the ice when she fell. She was wearing low-heeled
shoes.
Shopper's Square is owned by Tore, Ltd. That company leases properties thereon to
commercial tenants but retains possession and control of the parking areas and common
approaches. When snow accumulated in sufficient quantity to warrant the use of snow
removal equipment the owner hired independent contractors to clear the parking lot. On this
occasion, however, there was only a trace of snow on the surface of the parking area. The
owner used a chemical compound to make icy sidewalk areas safer for pedestrian use, but did
not employ that safety measure on the large parking area because of the expense.
The foregoing statement fairly summarizes the most significant evidence submitted by
deposition to the trial court on the defendant's motion for summary judgment.
1. Nevada has not before considered the duty of a land possessor to his invitee in these
limited circumstances. Neither have we ruled upon the plaintiff's legal position. Case
authority elsewhere is split. Older cases, without qualification, denied liability of the land
occupier if his invitee knew of the dangerous condition and voluntarily encountered it.
Indeed, such is the position expressed by 2 Rest. Torts, Sec. 340 (1934).
This point of view is harsh when applied to all cases, for once the claimant's knowledge of
the dangerous condition is established the case is at an end regardless of other attendant
circumstances. The land possessor's duty is controlled solely by the plaintiff's awareness of
the danger. In turn, the plaintiff is barred from relief notwithstanding the fact that she may
have had good reason to encounter the danger and did so with due care. For these reasons the
Restatement has qualified its position. Sec. 343A states: A possessor of land is not liable to
his invitees for physical harm caused to them by any activity or condition on the land
whose danger is known or obvious to them, unless the possessor should anticipate the
harm despite such knowledge or obviousness."
liable to his invitees for physical harm caused to them by any activity or condition on the land
whose danger is known or obvious to them, unless the possessor should anticipate the harm
despite such knowledge or obviousness. 2 Rest. (Second) Torts, p. 218 (1965).
[Headnote 1]
We prefer the qualified Restatement position. The invitee's knowledge of the danger does
not inevitably bar recovery. Dawson v. Payless for Drugs, 433 P.2d 1019 (Ore. 1967). Other
circumstances properly may bear upon the right to recover.
[Headnotes 2, 3]
In the case at hand the plaintiff's mission was to go to work, and plainly justified her
encountering the danger. Worth v. Reed, 79 Nev. 351, 356, 384 P.2d 1017 (1963). Whether
she did so with due care or carelessly is not so clear as to preclude trial on the point. Her
characterization of the manner of her walking over the icy pavement suggests due care, and in
response to a motion for summary judgment she is entitled to the full benefit of her statement.
Similarly, it is not certain that the defendant took reasonable precautions to protect her. The
trier of facts might find that such precautions were taken. On the other hand, a contrary
conclusion may be permissible in view of the owner's admission that the safety measures used
on the sidewalks were not used in the large parking area because of the expense. That
admission was not explored in depth. On summary judgment a court is compelled to grant the
plaintiff every advantage to be gleaned from it.
2. The respondent-owner suggests that our decision in Gunlock v. New Frontier Hotel, 78
Nev. 182, 370 P.2d 682 (1962), is dispositive and commands an affirmance of the summary
judgment entered below. It is true that we there affirmed an involuntary dismissal at the close
of the plaintiff's case on the flat proposition that an owner's duty of care does not extend to an
invitee who incurs injury from an obvious condition. The condition was a 30-foot-long
planter box in a hotel lobby. Unlike the instant case, the plaintiff in Gunlock, supra, was not
justified in encountering that condition. Neither were the circumstances there involved of
such character as to lead the hotel owner to anticipate harm to an invitee. Accordingly,
Gunlock, supra, does not control this case.
We conclude that the ultimate issues to be resolved in this litigation are fact issues and a
full trial on the merits is required.
litigation are fact issues and a full trial on the merits is required.
Reversed.
Collins, C. J., Zenoff, Batjer and Mowbray, JJ., concur.
____________
85 Nev. 551, 551 (1969) Thomas v. Sheriff
CHARLES EDWARD THOMAS, Appellant, v. SHERIFF,
No. 5906
October 1, 1969 459 P.2d 219
Appeal from the denial of a writ of habeas corpus. Eighth Judicial District Court, Clark
County; Thomas J. O'Donnell, Judge.
Proceeding on application for writ of habeas corpus to secure release of defendant who
was bound over for trial after preliminary examination on charge of possession of narcotics.
The lower court denied relief, and defendant appealed. The Supreme Court, Batjer, J., held
that warrantless arrest of defendant for forgery by police officers, who were advised at store
to which they had been called that defendant and others were attempting to cash forged check
at store, and who then arrested defendant and another for forgery, was made with probable
cause, and thus marijuana found in ensuing search of defendant's person was admissible at his
preliminary examination on charge of possession of narcotics.
Affirmed.
George H. Spizzirri, Deputy District Attorney, Clark County, for Respondent.
1. Arrest; Criminal Law.
Warrantless arrest of defendant for forgery by police officers, who were advised at store to which they
had been called that defendant and others were attempting to cash forged check at store, and who then
arrested defendant and another for forgery, was made with probable cause, and thus marijuana found in
ensuing search of defendant's person was admissible at his preliminary examination on charge of
possession of narcotics. NRS 171.124, 195.020.
2. Criminal Law; Searches and Seizures.
Search made incident to valid arrest without warrant, after such arrest and in close proximity thereto, is
reasonable, and articles seized in such search are not excludable as evidence obtained through
unreasonable search and seizure. NRS 171.124, 195.020.
3. Arrest.
Right to search and seizure without warrant extends to items under accused's immediate control at time of
arrest.
4. Arrest.
Police officer who made warrantless arrest of defendant at store for forgery after receiving information
that a person was attempting to cash a forged check at store and that defendant was with such person had
reasonable cause to believe that defendant was concerned with commission of a felony and was a principal
under statute. NRS 195.020.
OPINION
On August 29, 1968, the appellant, accompanied by Raymond Lee Williams, entered a
Thriftimart store in Las Vegas. Williams went to the cashier's cage and attempted to cash a
check from the Zion Methodist Church. The appellant said nothing but walked to the other
side of the store and stood around. The cashier had been alerted that checks from this
particular church had been stolen, so she called the police. When the officers arrived they
were advised that Williams, accompanied by the appellant, and others, were attempting to
cash a forged check. The appellant and Williams were immediately arrested for forgery.
Appellant was then taken to the rear of the store where he was searched. In his front pocket
was found a yellow manila folder which contained a leafy substance which appeared to be
marijuana. At that point the appellant was arrested for possession of narcotics.
At his preliminary examination on the charge of possession of narcotics, the appellant
objected to the introduction of the marijuana as evidence on the ground that its initial seizure
was invalid, because his arrest for forgery was illegal. The objection was overruled and the
appellant was bound over to district court for trial.
On March 14, 1969, the appellant filed, in the district court, an application for a writ of
habeas corpus upon the grounds that there was no probable cause for his arrest for forgery and
for that reason the subsequent search of his person and the seizure of the marijuana was
unlawful. This appeal is taken from the denial of habeas corpus.
taken from the denial of habeas corpus. Only one issue is presented: Was the arrest made
without probable cause, thereby rendering the marijuana found as a result of the arrest
inadmissible in evidence?
There is nothing in the record of this case to indicate that the arresting officer had any
reason to suspect the appellant of being in possession of marijuana, and used the forgery
arrest as a means of fraud or force to obtain evidence of his possession of narcotics.
[Headnote 1]
We find that the appellant's arrest for forgery was made with probable cause and that the
marijuana was properly admitted into evidence at the preliminary examination.
A peace officer may make an arrest without a warrant on a charge made, upon a reasonable
cause of the commission of a felony by the party arrested. NRS 171.124.
[Headnotes 2, 3]
Not only is an arrest made by an officer without a warrant in accordance with NRS
171.124 lawful (Peters v. New York, 392 U.S. 40, 66 [No. 74] (1967)), but a search made
incident to such an arrest without a warrant, after arrest and in close proximity to the arrest is
reasonable, and articles seized as a result of such a search are not to be excluded from
evidence as being obtained upon unreasonable search and seizure, Chimel v. California, 395
U.S. 752 (1969); Peters v. U.S. supra; Wyatt v. State, 77 Nev. 490, 367 P.2d 104 (1961);
Whitley v. State, 79 Nev. 406 at 412, 386 P.2d 93 (1964); Foy v. State, 84 Nev. 76, 436 P.2d
811 (1968). The right to search and seizure without a warrant extends to items under an
accused's immediate control at the time of his arrest. Arabia v. State, 82 Nev. 453, 421 P.2d
952 (1966).
In Fairman v. Warden, Nevada State Prison, 83 Nev. 332, 431 P.2d 660 (1967), this court
said: Probable cause [to make an arrest without a warrant] exists if facts and circumstances
known to the officers at the moment of the arrest would warrant a prudent man in believing
that felony had been committed by person arrested.
[Headnote 4]
Here the police officer received information that Williams was attempting to cash a forged
check and that the appellant was with him. On cross-examination the arresting officer
testified that he considered the appellant a principal in the commission of the offense. When
he made the arrest, the officer had reasonable cause to believe that the appellant was
concerned with the commission of a felony and was a principal within the provisions of
NRS 195.020.1
had reasonable cause to believe that the appellant was concerned with the commission of a
felony and was a principal within the provisions of NRS 195.020.
1

In discharging his duty the officer could accord to the information he received whatever
reasonable credit he deemed it warranted. We find that there was sufficient evidence to make
it appear that a felony had been committed and that there was reasonable cause for the
arresting officer to believe that the appellant had committed it.
In State v. Johnson, 393 P.2d 284 (Wash. 1964), one Horles Sielas attempted to cash a
check at a supermarket. The check was tendered to a checker who refused to cash it when he
noticed that the names of the maker and the endorser were in the same handwriting. The
manager saw Sielas leave the store and meet the appellant, in that case, James Johnson, who
had been leaning against the bulkhead outside the store. Sielas and Johnson had been seen
entering the parking lot together, came to the front of the store together, and left together. The
court held that the officer who investigated the incident had probable cause to believe that a
felony had been committed and reasonable cause to believe that both Sielas and the appellant
were felons.
The order of the district court denying the appellant's petition for a writ of habeas corpus is
affirmed and the matter is remanded for further proceedings.
____________________

1
NRS 195.020. 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. The fact that the person aided, abetted,
counseled, encouraged, hired, commanded, induced or procured, could not or did not entertain a criminal intent
shall not be a defense to any person aiding, abetting, counseling, encouraging, hiring, commanding, inducing or
procuring him.
____________
85 Nev. 555, 555 (1969) Barr v. Sheriff
HARRY BARR, Appellant, v. SHERIFF, WASHOE
COUNTY, NEVADA, Respondent.
No. 5919
October 1, 1969 459 P.2d 218
Appeal from the denial of a pretrial application for habeas corpus. Second Judicial District
Court, Washoe County; Grant L. Bowen, Judge.
The lower court denied defendant's pretrial application for habeas corpus following
preliminary hearing wherein defendant, charged with having committed forgery, was bound
over for trial, and he appealed. The Supreme Court, Collins, C. J., held that communications
with district attorney by and on behalf of defendant, substance of which constituted various
entreaties for dismissal of charge, did not constitute valid demand for trial.
Affirmed.
Phyllis Halsey Atkins, of Reno, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, Kathleen M.
Wall, Deputy District Attorney, of Reno, for Respondent.
1. Criminal Law.
Accused's federal constitutional right to speedy trial, enforceable against the state and assured to an
accused charged in one jurisdiction but incarcerated in another, is recognized in Nevada provided there is
first demand for trial.
2. Criminal Law.
Substance of communications with district attorney by and on behalf of defendant, charged with
committing forgery but incarcerated in federal penitentiary in another state, consisting of various entreaties
for dismissal of forgery charge did not constitute valid demand for trial.
OPINION
This is an appeal from the denial of a pretrial application for habeas corpus following a
preliminary hearing where appellant was bound over for trial. We affirm the lower court's
order.
Appellant is alleged to have committed a forgery. When the warrant of arrest was issued
appellant was incarcerated in a federal penitentiary in another state.
a federal penitentiary in another state. A detainer was lodged against him. During his federal
imprisonment appellant wrote the Sparks police department requesting the district attorney's
office to drop the detainer. The request was denied by the district attorney. Within the next
two years two case workers wrote the district attorney urging the dropping of the detainer.
Both requests were refused. Appellant, himself, wrote the district attorney asking that the
detainer be dropped. That request was also refused. In March of 1969 appellant notified the
district attorney he was filing a motion in the justice court to dismiss the charge for want of
prosecution. No action was taken by the justice of the peace on the motion. Appellant was
thereafter extradited from Washington to Nevada in the latter part of March 1969 upon his
release from the federal penitentiary.
The errors asserted in this appeal are:
(1) There was no proof of corpus delicti of the crime of forgery during the preliminary
hearing.
(2) Appellant has been denied his constitutional right to a speedy trial.
1. There is no substance to the first alleged error and we sustain the lower court's ruling.
There was ample proof of the corpus delicti to support the magistrate's determination of
probable cause for forgery.
[Headnote 1]
2. Appellant has a federal constitutional right to a speedy trial which is enforceable
against the states. Klopfer v. North Carolina, 386 U.S. 213 (1967). This right is assured to an
accused charged in one jurisdiction but incarcerated in another. Smith v. Hooey, 393 U.S. 374
(1969). Those rights are recognized in Nevada provided there is first a demand. Stone v.
State, 85 Nev. 60, 450 P.2d 136 (1969); State v. Erenyi, 85 Nev. 285, 454 P.2d 101 (1969).
Appellant argues however, that (1) the right arises whenever the state in which the charges
are pending has knowledge of a defendant's incarceration in another state; or (2) that in any
event the letters written by and on behalf of appellant constitute an effective demand at least
in substance. The first argument we reject completely. The second argument requires
discussion.
Appellant admits that nothing said by or on his behalf constituted an unequivocal demand
for trial. But appellant urges communications on his behalf indicated that appellant wanted
some disposition of his case, one way or the other, that is, either a dismissal or return to
Nevada for immediate trial.
that is, either a dismissal or return to Nevada for immediate trial.
[Headnote 2]
The trial court found that the communications as a whole did not constitute a demand for
trial. We agree. We do not say specific words must be used to constitute a valid demand, but
clearly the words used must substantially convey that message. Here the substance of the
messages constituted various entreaties for dismissal of the charge, not immediate trial.
The order below is sustained.
____________
85 Nev. 557, 557 (1969) Tellis v. Sheriff
MELVIN TELLIS, Appellant, v. SHERIFF OF
No. 5675
October 2, 1969 459 P.2d 364
Appeal from denial of writ of habeas corpus. Eighth Judicial District Court, Clark County;
The lower court denied petition for writ of habeas corpus and petitioner appealed. The
Supreme Court, Batjer, J., held that fact that arraignment took place more than 50 days after
defendant petitioner's arrest under an indictment did not constitute denial of due process to
defendant where defendant was admitted to bail during entire period of the alleged delay,
where there was no claim of self-incrimination by defendant during the interval, and where he
had waived his right to speedy trial.
Affirmed and remanded for further proceedings.
James D. Santini, Public Defender, Clark County, for Appellant.
E. Holl and Richard D. Weisbart, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
Statutes governing appearance before magistrate and proceedings upon complaint for offenses triable in
another county are applicable only when arrest is made after warrant has been issued
upon complaint, or in event of warrantless arrest, and defendant, who was free on
bail during interval, was deprived of no rights under such statutes by virtue of the
fact that his arraignments took place more than 50 days after his arrest pursuant to
indictment.
applicable only when arrest is made after warrant has been issued upon complaint, or in event of
warrantless arrest, and defendant, who was free on bail during interval, was deprived of no rights under
such statutes by virtue of the fact that his arraignments took place more than 50 days after his arrest
pursuant to indictment. NRS 171.178, 171.184.
2. Criminal Law.
Delay of more than 50 days between arrest of defendant under an indictment and arraignment was not
unreasonable where defendant was admitted to bail during the entire period, where defendant had waived
right to be brought to trial within 60 days, and where there was no claim of self-incrimination during such
period. NRS 178.556.
3. Criminal Law.
Even where defendant is not taken before magistrate within time specified by a statute, reversal of
conviction is not required unless it is shown that through such wrongful conduct he was deprived of fair
trial or otherwise suffered prejudice.
4. Criminal Law.
In absence of statutory requirement that arrested person be arraigned within a fixed period of time, a
reasonable time will be presumed, and passage of time per se does not constitute deprivation of defendant's
rights in absence of showing of prejudice.
5. Criminal Law.
Statute providing that, after arrest upon bench warrant issued pursuant to indictment, arrested person
must either be brought promptly before court or before magistrate for the purposes of admission to bail
does not designate time within which arraignment must take place. NRS 173.195.
Where return of warrant of arrest was ultimately filed with the court over which the arraigning magistrate
presided, there was no violation of defendant's rights of due process occasioned by filing of the return a
month after arraignment. NRS 171.152, 173.205.
Return of indictment while criminal complaint, later dismissed, covering the same offense was
outstanding did not give rise to any jurisdictional defect in proceedings under the indictment.
OPINION
On October 30, 1967, a complaint was filed against the appellant charging him with
possession of narcotics. On that same day he was arrested, arraigned, and a preliminary
hearing was scheduled for December 4, 1967. Before December 2, 1967, the defendant was
released on bail, and on December 4, 1967, the state made an appearance and requested that
the preliminary hearing be postponed until December 14, 1967, because a grand jury
indictment had been returned against the appellant.
preliminary hearing be postponed until December 14, 1967, because a grand jury indictment
had been returned against the appellant.
The grand jury indictment was returned on November 29, 1967, and a bench warrant was
issued December 1, 1967 for the appellant's arrest. He was arrested, on the bench warrant,
December 2, 1967, and was released on bail on December 3, 1967. It appears that he was
mistakenly released on the same bail which had been posted for his release under the criminal
complaint, however, this fact inured to his benefit and was in no way prejudicial to him. On
December 14, 1967, the criminal complaint charging the appellant with possession of
narcotics was dismissed by the state. The appellant was again arrested on January 5, 1968 on
other unrelated charges and was actually in jail at the time of his arraignment, on the
indictment, on January 23, 1968. At that time the appellant waived his right under NRS
178.556 to be brought to trial within sixty days. Here we are concerned only with the
appellant's due process rights between the time of his arrest on December 2, 1967 and his
arraignment on January 23, 1968.
[Headnote 1]
The appellant contends that his arraignment, more than fifty days after his arrest, violated
his rights under NRS 171.178 and NRS 171.184. We disagree. Neither NRS 171.178 nor
NRS 171.184 have any application to an arrest made after an indictment. Those statutory
provisions are only applicable when the arrest is made after a warrant is issued upon a
complaint or in the event of a warrantless arrest.
[Headnote 2]
There is no statutory designation of a specific time within which an arraignment shall be
held after the arrest of an accused under an indictment, therefore we are concerned, in this
case, only with the question of whether or not the delay was unreasonable. We find that it was
not. In Brown v. Justice Court, 83 Nev. 272, 428 P.2d 376 (1967), this court held that the
right of an arrested person to be brought before a magistrate without unnecessary delay
following his arrest is statutory in nature and does not per se import any direct federal
constitutional guaranty, and that one of the primary reasons for a speedy arraignment by a
judicial officer is to inform the accused of his privilege against self-incrimination; his right to
a speedy trial; his right to due process of law and to assure that he is not left to languish in
jail. Here the appellant was admitted to bail during the entire period of the alleged delay and
there is no claim of self-incrimination by the defendant, and he had waived his right to a
speedy trial.
delay and there is no claim of self-incrimination by the defendant, and he had waived his right
to a speedy trial.
[Headnote 3]
Even where a defendant is not taken before a magistrate within the time specified by
statute, reversal of his conviction is not required unless it is shown that through such
wrongful conduct he was deprived of a fair trial or otherwise suffered prejudice as a result
thereof. People v. Combes, 363 P.2d 4 (Cal. 1961), People v. Ruiz, 16 Cal.Rptr. 855
(Cal.App. 1961).
[Headnotes 4, 5]
In the absence of a statutory requirement that an arrested person be arraigned within a
fixed period of time, a reasonable time will be presumed before which an arraignment must
be conducted. The passage of time per se does not constitute a deprivation of defendant's
rights. There must be a showing of prejudice by the defendant; that some essential element of
his defense was lost to him or minimized, and that he was thereby deprived of due process of
law. Brown v. Justice Court, supra; People v. Jones, 290 N.Y.S.2d 771 (1968); State of
Louisiana ex rel. Weiymann v. Allgood, 250 F.Supp. 294 (D.C. 1966); Price v. Allgood, 249
F.Supp. 418 (D.C. 1966); Carr v. State, 192 So.2d 741 (Ala. 1966). Historically the need for
an arraignment was to determine which prisoners wanted to be put to a jury and which of
them would confess in open court. 2 Am.J. Legal Hist., 321, et seq. NRS 173.195
1
is the
only statute touching upon the disposition of an accused after an arrest upon a bench warrant
issued pursuant to an indictment. An alternative procedure is prescribed. The arrested person
must be either brought promptly before the court or before a magistrate for the purpose of
admission to bail. Here the appellant was admitted to bail and there was compliance with the
statute. We do not view NRS 173.195 as a statute designating the time of arraignment.
[Headnote 6]
Relying on NRS 171.152, the appellant has claimed a further procedural defect because
the bench warrant upon which the appellant was arrested on December 2, 1967 was not
returned to the court until February 22, 196S.
____________________

1
NRS 173.195: The warrant shall be executed or the summons served as provided in NRS 171.114,
171.118 and 171.122. A summons to a corporation shall be served as provided in NRS 171.122. The officer
executing the warrant shall bring the arrested person promptly before the court or, for the purpose of admission
to bail, before a magistrate.
which the appellant was arrested on December 2, 1967 was not returned to the court until
February 22, 1968.
NRS 171.152 does not set any time limit nor designate any point in the proceeding when a
bench warrant issued upon an indictment must be returned; it only requires that the warrant
be returned to the magistrate before whom a defendant is brought. The making of a return of a
warrant of arrest is a ministerial act, to be performed after the warrant is executed. Cf. Rose v.
United States, 274 F. 245 (6th Cir. 1921), Evans v. United States, 242 F.2d 534 (6th Cir.
1957). Here the return was ultimately filed with the court over which the arraigning
magistrate presided and we find no violation of the appellant's rights of due process
occasioned by the filing of the return after his arraignment had been commenced. Cf. NRS
173.205.
We do not reach the question of whether the appellant's waiver of his right to a trial within
sixty days constitutes a waiver of a delay in arraignment, nor do we reach the question of
whether the appellant's failure to cite the delay, before his arraignment on January 23, 1968,
resulted in a cure of such a defect.
[Headnote 7]
The question of whether an indictment could be returned while a criminal complaint
covering the same offense was outstanding was not presented to the district court, but was
raised sua sponte by this court. The supplemental briefs of the appellant and the respondent
have been considered and we find no jurisdictional defect in such a dual proceeding in a
criminal matter.
In People v. MacCagnan, 276 P.2d 679 (Cal.App. 1954), the court said: . . . That the
offense alleged in the indictment was the identical crime charged in the information was not
material to the proceedings on the indictment. Hence the trial on the indictment was in order.
The mere fact that the same offense was charged in the indictment that had previously been
charged in the information does not establish any legal connection between the two pleadings.
People v. Grace, 88 Cal.App. 222, 228, 263 P. 306. The dismissal of the information put an
end to it as effectively as though it had never been filed. (Ibid.)
The denial of the writ of habeas corpus by the district court is affirmed and the matter is
remanded for further proceedings.
____________
85 Nev. 562, 562 (1969) P.T.P., Inc. v. Casey
P.T.P., INC., Appellant, v. JOHN J. CASEY, MYRTLE CASEY, DONALD B. HUNT, CAL
WORTHINGTON, and BARBARA WORTHINGTON, Respondents.
No. 5800
October 20, 1969 459 P.2d 770
Appeal from order and judgment of Fifth Judicial District Court, Nye County; Kenneth L.
Mann, Judge.
Appeal from order of the lower court granting defendants' motion to dismiss. The Supreme
Court held that where counsel by stipulation extended time within which action could be
brought to trial, and case was not brought on for trial by that date, it was not improper to
dismiss action, notwithstanding statute providing that a mandatory dismissal for failure to
prosecute may not occur until lapse of seven years.
Affirmed.
Peter Echeverria and E. A. Hollingsworth, of Reno, for Appellant.
Vargas, Bartlett & Dixon and Norman R. Schou, of Reno, for Respondents John J. Casey
and Myrtle Casey.
Stewart & Horton and Willard Van Hazel, Jr., of Reno, for Respondents Donald B. Hunt,
Cal Worthington, and Barbara Worthington.
Dismissal and Nonsuit.
Where counsel by stipulation extended time within which action could be brought to trial, and case was
not brought on for trial by that date, it was not improper to dismiss action, notwithstanding statute
providing that a mandatory dismissal for failure to prosecute may not occur until lapse of seven years.
NRS 14.150.
OPINION
Per Curiam:
This action was commenced on May 11, 1962. On April 7, 1967, counsel stipulated that
the time within which the action could be brought to trial was extended to November 11,
1967. The case was not brought on for trial by that date. On September 17, 1968, the district
court granted defendants' (respondents') motion to dismiss. It is sought to reverse that ruling
on the basis of a recently enacted statute, NRS 14.150, which provides that a mandatory
dismissal for failure to prosecute shall not occur until the lapse of seven years.
85 Nev. 562, 563 (1969) P.T.P., Inc. v. Casey
provides that a mandatory dismissal for failure to prosecute shall not occur until the lapse of
seven years.
We have recently rejected that contention. Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851
(1969); Volpert v. Papagna, 85 Nev. 437, 456 P.2d 848 (1969). And now once more we
reaffirm those decisions and affirm the district court's ruling in this case.
____________
85 Nev. 563, 563 (1969) Probasco v. City of Reno
GEORGE A. PROBASCO, Appellant, v. CITY OF RENO,
NEVADA, a Municipal Corporation, Respondent.
No. 5802
October 21, 1969 459 P.2d 772
Appeal from judgment of the Second Judicial District Court, Washoe County; George F.
Wright, Judge.
Action by abutting owner for compensation from condemnor. The lower court denied
recovery and owner appealed. The Supreme Court, Thompson, J., held that abutting owner is
not entitled to compensation from condemnor by reason of infringement upon light, air and
view over public highway unless such owner acquired rights of light, air and view by express
covenant.
Affirmed.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Appellant.
Clinton E. Wooster, Reno City Attorney, and Roy Lee Torvinen, of Reno, for Respondent.
1. Eminent Domain.
For eminent domain purposes there is difference in treatment between positive easements, restrictive
covenants, and implied negative easements of light, air and view.
2. Eminent Domain.
Extinguishment of positive easement by public acquisition gives rise to compensation. NRS 37.020;
3. Easements.
Recording of deed of positive easement makes it binding upon all subsequent owners of servient estate in
favor of owners of dominant estate.
4. Covenants.
Recordation of restrictions imposes on all subsequent owners burden of compliance that is enforceable by
other owners in subdivision.
5. Eminent Domain.
Abutting owner is not entitled to compensation from condemnor by reason of infringement upon light, air
and view over public highway unless such owner acquired rights of light, air and view by express covenant.
NRS 37.110, subd. 3; Const. art. 1, 8.
OPINION
This case is the sequel to City of Reno v. District Court, 84 Nev. 322, 440 P.2d 395
(1968), wherein we mandated dismissal of the City's abandoned condemnation action against
the property owner Probasco, but ordered retention of Probasco's counterclaim for
independent adjudication. The merit of his counterclaim was not there considered. The issue
raised thereby was later tried to a jury, relief denied, and from the judgment entered upon jury
verdict, Probasco has appealed to this court.
The dispositive appellate question is whether an abutting property owner possesses a right
to compensation for interference with his claimed implied negative easement of light, air and
view by an overpass placed on a street in circumstances where none of the owner's real
property is taken. Nevada has not ruled on this question. We now declare that a right to
compensation does not exist in these circumstances and affirm the judgment entered below.
[Headnotes 1-4]
1. For eminent domain purposes there is a difference in treatment between positive
easements such as rights of passage and use, restrictive covenants, and the implied negative
casements of light, air and view.
1
The extinguishment of a positive easement by public
acquisition gives rise to compensation. The leading case, United States v. Welch, 217 U.S.
333 (1910), established the right to compensation under the Fifth Amendment to the United
States Constitution and has served as a guide to state court decisions. In Nevada, such an
easement is expressly subject to condemnation for public use (NRS 37.020), and
compensable. Similarly, we have ruled that the extinguishment of a restrictive covenant by
public authority for public use is compensable (Meredith v. Washoe County School District,
S4 Nev. 15
____________________

1
A positive easement indicates the affirmative use of land. A negative easement connotes the power to
restrict another's use of land. 5 Rest. Prop. 451-52 (1944); 2 American Law of Property 8.11-12 (Casner
ed. 1952).
School District, 84 Nev. 15, 435 P.2d 750 (1968)), since such a covenant is in large measure
identical with the express grant of a positive easement. Each normally is created by a legal
instrument. The recording of a deed of a positive easement makes it binding upon all
subsequent owners of the servient estate in favor of the owners of the dominant estate; and
the recordation of restrictions imposes upon all subsequent owners the burden of compliance
that is enforceable by the other landowners in the subdivision. Additionally, as pointed out in
Meredith, supra, the identity of landowners who may have a compensable right can readily be
ascertained from the public records. We are now urged to treat the claimed implied negative
easement of light, air and view in similar fashion. Indeed, it is contended that we are
compelled to do so by virtue of Nev. Const. art. 1, sec. 8, providing nor shall private
property be taken for public use without just compensation having been first made . . . and,
more particularly, because of NRS 37.110(3) which commands the assessment of damages If
the property, though no part thereof is taken, will be damaged by the construction of the
proposed improvement. . . . Our attention is directed to the fact that the wording of NRS
37.110(3) was the main predicate for our decision in Meredith v. Washoe County School
District, supra, a case in which none of the defendant's land was condemned.
[Headnote 5]
2. As we see it, the fallacy of this argument is the underlying assumption that there exists
in Nevada the doctrine of implied negative easements. As heretofore noted, the easement for
which compensation is claimed in this case is the implied easement of light, air and view. We
are not here concerned with a negative easement of light, air and view created by express
covenant. Nevada has expressly repudiated the doctrine of implied negative easement of light,
air and view for the purpose of a private suit by one landowner against a neighbor. Boyd v.
McDonald, 81 Nev. 642, 408 P.2d 717 (1965).
2
We now expressly repudiate the doctrine of
implied negative easements in the context of eminent domain. People v. Symons, 357 P.2d
451 (Cal. 1960), (denying compensation where there had been no actual taking or severance
of the claimants' property); Bowden v. City of Jacksonville, 42 So. 394 (Fla.
____________________

2
The case of Teacher Bldg. Co. v. Las Vegas, 68 Nev. 307, 232 P.2d 119 (1951), contains some language
about the easement of light, air and view. However, that subject was not an issue in that case, and the dictum
must be disregarded in view of the precise holding in the later decision of Boyd v. McDonald, supra.
1906). Neither constitution nor statute contemplates compensation for that which does not
exist.
Not every depreciation in the value of property not taken can be made the basis of an
award of damages. There is no right to compensation for damages resulting from reasonable
zoning regulations, or by reason of the diversion of traffic away from one's property. Rose v.
State of California, 123 P.2d 505 (Cal. 1942). The infringement upon an abutting owner's
light, air and view over a public highway should be similarly regarded unless such owner has
acquired a right to light, air and view by express covenant.
Affirmed.
____________
85 Nev. 566, 566 (1969) Lamb v. Holsten
RALPH LAMB, Sheriff of Clark County, Nevada,
Appellant, v. RONALD JAMES HOLSTEN, Respondent.
No. 5826
October 21, 1969 459 P.2d 771
Appeal from the granting of petition for writ of habeas corpus. Eighth Judicial District
Court, Clark County; Alvin N. Wartman, Judge.
The lower court granted the petition for the writ, and state appealed. The Supreme Court,
Zenoff, J., held that testimony as to mere similarity of defendant, gun and amount of quarters
to description of robber and items involved in holdup of saloon did not amount to
identification and was not legally sufficient evidence to establish probable cause to hold
defendant for trial.
Affirmed.
R. Johns, Deputy District Attorney, Clark County, for Appellant.
George E. Graziadei, of Las Vegas, for Respondent.
1. Habeas Corpus.
Sole function of Supreme Court in habeas corpus proceeding to review binding over to district court is to
determine whether all of evidence received at preliminary hearing establishes probable cause to believe
that an offense has been committed and that defendant committed it.
cause to believe that an offense has been committed and that defendant committed it. NRS 171.206.
2. Criminal Law.
To commit a defendant for trial state is not required to negate all inferences but only to present enough
evidence to support a reasonable inference that the accused committed the offense.
3. Criminal Law; Habeas Corpus.
It is not the function of the Supreme Court, nor of the magistrate at the preliminary hearing, nor of district
court upon habeas corpus proceeding, to pass upon sufficiency of the evidence to justify conviction.
4. Criminal Law.
Testimony at preliminary hearing as to mere similarity of defendant, gun and amount of quarters in
defendant's possession to description of robber and items involved in holdup of saloon did not amount to
an identification and was not legally sufficient evidence to establish probable cause to hold defendant for
trial.
OPINION
On December 21, 1968, at 5:30 a.m., the Sahara Saloon in Las Vegas was held up and
robbed. John Clifton, the bartender from whom the money was taken, testified at preliminary
hearing that the robber was in the place about five minutes but was wearing a head covering
that looked like a stocking, a mask was over his face, and that he wore a black or navy blue
sweater, light tan levi pants and ankle-high boots. Police officer Cook, who arrested the
defendant at a motel eight blocks from the scene shortly after the robbery, gave a different
description of Holsten's apparel, and still another officer who first stopped Holsten on a
hunch that Holsten would be the person involved could not remember much of the clothing at
all.
There was also conflicting testimony regarding the container with the stolen money which
consisted of rolls of nickels and quarters and also some bills of various denominations found
on defendant. The description of the gun that was used in the holdup as against the gun that
was found in Holsten's possession was uncertain and generally none of the witnesses
identified Holsten as the holdup man with any degree of certainty.
Although the magistrate found the evidence sufficient to bind the defendant over to the
district court, the district court granted Holsten's petition for a writ of habeas corpus for want
of probable cause. The state appeals.
[Headnotes 1-3]
The sole function of the supreme court is to determine whether all of the evidence received
at the preliminary hearing establishes probable cause to believe that an offense has been
committed and that defendant committed it. NRS 171.206; Maskaly v. State, 85 Nev. 111,
450 P.2d 790 (1969); McKenna v. Sheriff, 85 Nev. 524, 458 P.2d 358, (1969); Azbill v.
State, 84 Nev. 345, 440 P.2d 1014 (1968). To commit a defendant for trial the state is not
required to negate all inferences but only present enough evidence as to support a reasonable
inference that the accused committed the offense. Johnson v. State, 82 Nev. 338, 418 P.2d
495 (1966). It is not the function of the supreme court, nor of the magistrate at the preliminary
hearing, nor of the district court upon the habeas corpus proceeding to pass upon the
sufficiency of the evidence to justify conviction. Beasley v. Lamb, 79 Nev. 78, 378 P.2d 524
(1963).
According to the prosecutor the defendant had a similar gun, a car full of quarters, and the
witness says he matches the description. The district judge felt this evidence was not
sufficient cause to hold the defendant. The district court inquired, How many thousand other
people match the description? In Brown v. Sheriff, 85 Nev. 544, 459 P.2d 215 (1969), the
court quoting from Black's Law Dictionary defined Identification as Proof of Identity; . . .
as where a witness recognizes the prisoner at bar as the same person whom he saw
committing the crime. . . .
[Headnote 4]
The bartender's testimony as to the robber's similarity to the defendant would not amount
to an identification. The same thing results as to the revolver. The mere similarity of
defendant, the gun and the amount of quarters in defendant's possession would not seem to be
legally sufficient evidence to hold him.
Affirmed.
____________
85 Nev. 569, 569 (1969) Mirin v. Checker Inc.
WILLIAM MIRIN dba Strip Cab Company and RAY M. CHENOWETH dba Nellis Cab
Company, Appellants v. CHECKER INCORPORATED, a Nevada Corporation, Respondent.
No. 5808
October 22, 1969 459 P.2d 774
Appeal from a judgment of the First Judicial District Court, Ormsby County, voiding
orders of the Public Service Commission; John F. Sexton, Judge.
Action by protestant taxicab operator against public service commission and applicant
taxicab operators to set aside two orders of the commission which enlarged service area
within which applicants could operate their taxicab businesses. The lower court voided the
orders and the applicant taxicab operators appealed. The Supreme Court, Thompson, J., held
that 90-day limitation within which protestant is entitled to seek judicial review of public
service commission order enlarging service area for applicant taxicab operator commenced on
date of entry of orders rather than on date stated in orders as effective date of enlargement of
service area and action seeking judicial review which was not commenced within 90 days of
entry of the orders was time-barred.
Reversed, and the Public Service Commission's orders reinstated.
Hilbrecht & Jones, of Las Vegas, for Appellants.
Wiener, Goldwater & Galatz and John Marshall, of Las Vegas, for Respondent.
1. Automobiles.
Ninety-day limitation within which protestant is entitled to seek judicial review of public service
commission order enlarging service area for applicant taxicab operator commenced on date of entry of
orders rather than on date stated in orders as effective date of enlargement of service area and action
seeking judicial review which was not commenced within 90 days of entry of the orders was time-barred.
NRS 704.540, subd. 1.
2. Automobiles.
Protestant's petition for rehearing before public service commission which was filed more than 30 days
after orders for enlargement of applicant taxicab operator's service were filed was untimely even
though petition was filed within 30 days after effective date of enlargement of
service area.
untimely even though petition was filed within 30 days after effective date of enlargement of service area.
OPINION
This action was commenced on March 22, 1968, by Checker Incorporated against the
Public Service Commission, Mirin and Chenoweth to set aside two orders of the Commission
dated October 26, 1967, enlarging the service area within which Mirin and Chenoweth could
operate their taxicab businesses. The district court nullified the orders of the Commission.
Mirin and Chenoweth have appealed from that ruling.
The controlling issue is whether the district court action was timely filed within the
intendment of NRS 704.540(1). This issue arises by reason of certain words contained in the
orders of the Commission and in Rule 11.1 of the Commission regarding rehearings before
that body as will be hereafter explained. We have concluded that judicial review was not
timely sought, reverse the judgment entered below and reinstate the Commission's orders.
[Headnote 1]
1. The mentioned statute requires commencement of the district court action within 90
days. The instant action was not commenced within 90 days of the entry of the orders of the
Commission on October 26, 1967. It is Checker's position that the 90-day limitation within
which to seek judicial review did not commence to run until December 26, 1967, because the
orders each provided that the enlargement of the service area within which Mirin and
Chenoweth could operate their businesses shall not become effective until December 26,
1967. From those words Checker postulates that the October 26 orders were ineffective for
all purposes until December 26, 1967. The district court agreed with Checker on this point.
We do not. The quoted words are referable only to the enlargement of the service area for
Mirin and Chenoweth and have nothing to do with the time within which judicial review of
the orders must be sought. Such review was immediately available after October 26. Had
action been commenced before December 26, we are certain that it could not have been
defeated upon the ground that it was prematurely commenced.
[Headnote 2]
2. Checker sought a rehearing before the Commission. Its petitions therefor were filed
January 25, 1968. Public Service Commission Rule 11.1 provides that a petition for
rehearing must be filed within 30 days after the effective date of the order.
Service Commission Rule 11.1 provides that a petition for rehearing must be filed within 30
days after the effective date of the order. Checker's petitions were denied by the Commission
as not timely since its orders were filed October 26, 1967. The Commission was correct. The
effective date of the October 26 orders was October 26 for all purposes except the
enlargement of the service area of Mirin and Chenoweth. Accordingly, neither rehearing
before the Commission nor judicial review was in time.
Reversed.
____________
85 Nev. 571, 571 (1969) Peavey v. Peavey
KAREN PEAVEY, Appellant, v. FORREST PEAVEY,
Respondent.
No. 5811
October 22, 1969 460 P.2d 110
Appeal from a divorce decree awarding custody to the father instead of the mother. Eighth
Judicial District Court, Clark County; Alvin N. Wartman, Judge.
Divorce proceeding. The trial court entered decree, inter alia, awarding custody of two
minor sons to father, and mother appealed. The Supreme Court, Zenoff, J., held that absent
finding of mother's unfitness, tender years doctrine required reversal of custody provision of
decree awarding two minor sons to father.
Reversed and remanded.
Leonard I. Gang, of Las Vegas, and Manoukian & Manoukian, of Zephyr Cove, for
Appellant.
Hawkins & Walker, of Las Vegas, for Respondent.
Law favors mother, in custody matters, if she is fit and proper person to have custody of children, other
things being equal.
2. Divorce.
Implication of statute governing state policy with respect to custody of children in divorce proceeding
directs that children of tender years belong to mother in absence of particular circumstances establishing
that she is unfit. NRS 125.140.
3. Infants.
Key to issue of whether trial court abused its discretion in award of custody of children is best interests of
children which must be expressed by trial court in order that Supreme Court will know that weight of
tender years principle has been applied.
4. Divorce.
Absent finding of mother's unfitness, tender years doctrine required reversal of custody provision of
divorce decree awarding two minor sons to father. NRS 125.140.
OPINION
In this divorce action Karen, the mother, appeals the trial court's award of custody of two
children to Forrest, the father, instead of to her.
They were married November 17, 1962. With two infant sons they lived a stormy marital
career in Brewer, Maine, until Mrs. Peavey moved to Las Vegas, Nevada, in May 1968. In
due course of time she filed for divorce and asked for custody of the two boys, Michael, age
5, and Marc, age 3. At all times, even in Maine, she had custody of both boys either by order
of the Maine court or by agreement with her husband when the Maine action failed. This
continued through the preliminary stages of the Nevada divorce suit.
Mrs. Peavey made her husband's visitation periods difficult because she claimed he was
lax in his support payments, but more importantly, threatened to withhold the children from
her once he had them unless she would come back to live with him. On one occasion he did
refuse to return the children and on another occasion she had to wrestle one of the children
out of his possession. He in turn accused her of neglecting her motherly responsibilities. In
truth the record absolves both parents from the classical definitions of unfit as we know
that term in child custody cases. Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98 (1961); Timney
v. Timney, 76 Nev. 230, 351 P.2d 611 (1960); Schildgen v. Schildgen, 148 N.W.2d 629
(Iowa 1967). Our issue is narrowed to whether or not we must uphold the trial judge who
found the father fit but did not rule either way as to the fitness of the mother (Harris v. Harris,
84 Nev. 294, 439 P.2d 673 (1968); cf. Timney v. Timney, supra) and gave custody to the
father without specifically finding that the custody award was in the best interests of the
children.
NRS 125.140 provides the policy of Nevada as to custody of minor children, to wit, that
the court, in granting the divorce, shall "make such disposition of, and provision for the
children, as shall appear most expedient under all the circumstances, and most for the
present comfort and future well-being of such children."
of minor children, to wit, that the court, in granting the divorce, shall make such disposition
of, and provision for the children, as shall appear most expedient under all the circumstances,
and most for the present comfort and future well-being of such children. Many states,
California for instance (CC, 138), set forth as their legislative policy the tender years
doctrine which defined is, that as between parents . . . other things being equal, if the child is
of tender years, custody should be given to the mother.
[Headnote 1]
The rule that the best interests and welfare of the children is of paramount consideration is
the guiding principle in the vast majority of jurisdictions. 2 Nelson on Divorce, 15.01-2,
pages 212-213; Atkins v. Atkins, 50 Nev. 333, 259 P. 288 (1927). That the mother is the
natural custodian of her young is universally recognized. The law favors the mother if she is a
fit and proper person to have the custody of the children, other things being equal. This is so
that they may not only receive her attention, care, supervision and kindly advice but also
may have the advantage and benefit of a mother's love and devotion for which there is no
substitute. . . . 2 Nelson on Divorce, 15.09, p. 227.
[Headnote 2]
We think the implication in our statute to be that legislative policy directs that children of
tender years belong to their mother in the absence of particular circumstances establishing
that she is unfit. Boisen v. Boisen, 85 Nev. 122, 451 P.2d 363 (1969); Toth v. Toth, 80 Nev.
33, 389 P.2d 73 (1964); Sisson v. Sisson, supra; Timney v. Timney, supra.
[Headnote 3]
Although the exercise of discretion by the trial court will not be disturbed unless in a clear
case of abuse (Cosner v. Cosner, 78 Nev. 242, 371 P.2d 278 (1962); Timney v. Timney,
supra; Atkins v. Atkins, supra; Sanchez v. Sanchez, 10 Cal.Rptr. 261, 358 P.2d 533 (1961)),
the key to this issue is the best interests of the children which must be expressed by the trial
court in order that we know that the weight of the tender years principle has been applied.
[Headnote 4]
In Harris v. Harris, supra, the trial court stated that its determination was based on the best
interests of the child. While a digest of the facts was not recited in that opinion the record
nevertheless amply supported the trial court's finding whereas in this case the record
balances the scales between the mother and father.
whereas in this case the record balances the scales between the mother and father. Neither
parent is morally unfit or otherwise unsuitable. Absent a finding of the mother's unfitness, we
choose to apply the tender years doctrine in meeting the statutory command of NRS 125.140.
We reverse the decree as respects the custody provision and remand for a new hearing
limited to the visitation rights of the father and support.
____________
85 Nev. 574, 574 (1969) Sharkey v. State
RUTH ALICE SHARKEY, Appellant, v. THE
No. 5955
October 22, 1969 459 P.2d 769
Appeal from denial of petition for writ of habeas corpus in case involving possession of
narcotics. Eighth Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.
The Supreme Court, Zenoff, J., held that police officers properly accosted defendant's
automobile when, after the officers flashed their bright lights behind defendant, they saw a
commotion take place in the automobile after which defendant pulled very close to the curb,
drove alongside it for 50 feet, and her passenger threw a bag in a garbage can on the
sidewalk; further, the officers had probable cause to arrest defendant (thus justifying
subsequent search of her clothes at police station) after they retrieved the bag and observed
that it appeared to contain marijuana.
Affirmed.
Arrest.
Police officers properly accosted defendant's automobile when, after the officers flashed their bright
lights behind defendant, they saw a commotion take place in the automobile after which defendant pulled
very close to the curb, drove alongside it for 50 feet, and her passenger threw a bag in a
garbage can on the sidewalk; further, the officers had probable cause to arrest
defendant {thus justifying subsequent search of her clothes at police station) after
they retrieved the bag and observed that it appeared to contain marijuana.
and her passenger threw a bag in a garbage can on the sidewalk; further, the officers had probable cause to
arrest defendant (thus justifying subsequent search of her clothes at police station) after they retrieved the
bag and observed that it appeared to contain marijuana.
OPINION
On April 19, 1968, at 7:30 p.m., police officers while performing their duties in a prowl
car in a residential neighborhood in Las Vegas followed the appellant, Ruth Sharkey, whom
they observed operating her automobile with another person beside her as a passenger. When
they flashed their bright lights behind her they saw a commotion take place in her car after
which she pulled her car very close to the curb and drove alongside it for 50 feet. As this
happened they observed the passenger toss a bag in a garbage can on the sidewalk. While
Ruth was being interrogated by one officer the other officer retrieved the article from the
garbage can and yelled to the first officer that the bag appeared to contain marijuana. They
then arrested her for not having a driver's license, for contributing to the delinquency of a
minor (her passenger) and for possession of marijuana. We do not know the disposition of the
first two charges. When her clothes were searched at the police station minute particles of
marijuana were found in her jacket pocket.
Appellant petitions for a writ of habeas corpus claiming that the infinitesimal amount of
marijuana in the jacket pocket was not enough to constitute probable cause and, further, that
she should not be held for possession of the marijuana found in the garbage can in the
absence of any showing that she knew that the bag contained marijuana.
The police action in accosting the Sharkey car to investigate was proper. Robertson v.
State, 84 Nev. 559, 445 P.2d 352 (1968); Harper v. State, 84 Nev. 233, 440 P.2d 893 (1968);
Terry v. Ohio, 392 U.S. 1 (1968). So was the subsequent arrest. Doyle v. State, 82 Nev. 242,
415 P.2d 323 (1966). Appellant over-stresses the importance of the scant amount of narcotic
found in her garment at the police station. It may be totally disregarded. The officers had the
right to stop her to investigate and the finding of the marijuana in the garbage can justifies the
arrest. The arrest being proper the search in the police station is supported by Arabia v. State,
82 Nev. 453, 421 P.2d 952 (1966). But the marijuana found in the jacket is relatively
unimportant because Ruth's conduct in drawing uncustomarily close to the curb allowing
the marijuana to be thrown into the garbage can by the passenger was enough cause to
bind her over for trial.
jacket is relatively unimportant because Ruth's conduct in drawing uncustomarily close to the
curb allowing the marijuana to be thrown into the garbage can by the passenger was enough
cause to bind her over for trial. Whether she was aware of its presence in the car is an issue of
fact for the trial court. At this stage of the proceedings inferences may be drawn simply from
the presence of the narcotic in the car. Woerner v. State, 85 Nev. 281, 453 P.2d 1004 (1969);
Fairman v. Warden, 83 Nev. 332, 431 P.2d 660 (1967); People v. White, 75 Cal.Rptr. 208,
450 P.2d 600 (1969); cf. Maskaly v. State, 85 Nev. 111, 450 P.2d 790 (1969).
Affirmed.
____________
85 Nev. 576, 576 (1969) Lloyd v. State
EDDIE ANTHONY LLOYD, Jr., Appellant, v. THE
No. 5773
October 24, 1969 460 P.2d 111
Appeal from a judgment of the Eighth Judicial District Court, Clark County, Clarence
Sundean, Judge.
Defendant was convicted in the lower court of robbery, and he appealed. The Supreme
Court, Batjer, J., held that permitting prosecutor to cross-examine accused's alibi witness
regarding testimony given in a prior case was not error.
Affirmed.
James D. Santini, Public Defender, Earle W. White, Jr., Deputy Public Defender, of Las
Vegas, for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, Addeliar
D. Guy, Deputy District Attorney, of Las Vegas, for Respondent.
1. Witnesses.
A wide range of cross-examination is allowed to test a witness' motives, interest, animus, accuracy,
veracity and credibility.
2. Witnesses.
Permitting prosecutor to cross-examine accused's alibi witness with regard to fact that she had given an
alibi for a defendant in a prior robbery case by testifying that he had spent the night with her was not error.
85 Nev. 576, 577 (1969) Lloyd v. State
3. Criminal Law.
In absence of a clear indication in record as to whether group photograph containing picture of accused
was viewed by state's witness immediately before witness viewed lineup or shortly after robbery occurred,
permitting witness to make an in-court identification of accused and also to testify regarding his lineup
identification of accused would not be held to be error in view of rule that every presumption should be
indulged in favor of validity of a judgment of a court of general jurisdiction.
OPINION
A robbery was committed against Frank Dudley at a service station located at Main and
Mesquite streets in Las Vegas, Nevada, during the early morning hours on February 23, 1968.
The appellant was charged with the robbery and on July 16, 1968, he was found guilty by a
jury. Now he appeals from the judgment entered pursuant to the jury verdict and alleges that
the trial court erred (1) when it permitted the respondent to cross-examine the accused's alibi
witness regarding testimony given in a prior unrelated case; (2) when it prohibited the
appellant from eliciting a previously expressed recommendation from one of the respondent's
rebuttal witnesses; and (3) when it permitted the respondent's eyewitness to make an in court
identification of the appellant and also to testify regarding his lineup identification of the
appellant after he had been previously shown a group picture in which the appellant appeared.
We find that all of the appellant's contentions are without merit.
1. Counsel for the state had the duty and obligation as well as the right to test the veracity
and credibility of the appellant's witness and his questions put to Betty L. Jacobs were within
the bounds of propriety.
1

Cross-examination of Betty L. Jacobs by Mr. Guy, attorney for respondent:
Q. Have you ever been a witness in a criminal case before?
A. Yes.
Q. And were you a witness for the prosecution or the defense? "A.
____________________

1
Cross-examination of Betty L. Jacobs by Mr. Guy, attorney for respondent.
85 Nev. 576, 578 (1969) Lloyd v. State
A. I was subpoenaed by the State.
Q. And at that time what was the charge.
A. The same charge, robbery.
Mr. White (for the defendant-appellant herein): Your Honor, I object to this whole line of
questioning as being irrelevant [sic], beyond the scope of direct. I have been patient long
enough. We have gone into a number of things that don't even start with foundation. I would
like to get this narrowed down to things of relevance, if it is at all possible. Whether or not
she testified before as a witness for the prosecution is immaterial in this case.
Court: He's talking about credibility.
Mr. White: Well, this is certainty not the way you deal with an issue of credibility, Your
Honor. We have a statement that's been marked in and brought back and placed here and just
aimless wandering. Now there's a way, if he wants to attack credibility, to do it, and we
certainly respect that, but the way things are going now I'm going to have to object.
Court: It appears that the information sought to be elicited might be extremely prejudicial
to the defendant and I anticipate that the probative value of what you will get is not sufficient
to warrant this answer. Objection sustained.
Mr. Guy: Will you read the question back.
Mr. White: Object to reading the question back. It's an objectionable question and let's go
on to something else.
Court: Objection sustained.
Q. (Mr. Guy) Did you ever give an alibi for any defendant?
A. Yes.
Q. And was this alibi to the effect that that defendant spent the night with you?
A. Yes.
Q. And was the charge of that case the charge of robbery also?
A. Yes.
Q. And how long ago was that?
A. A month ago.
[Headnote 1]
A wide range of cross-examination is allowed to test a witness's motives, interest, animus,
accuracy, veracity and credibility. Anderson v. Berrum, 36 Nev. 463 (1913); State v. Boyle,
49 Nev. 386, 248 P. 48 (1926).
[Headnote 2]
Here the respondent did not mention the appellant in his cross-examination. The
cross-examination placed Miss Jacobs' motives, interest, accuracy, veracity and credibility
squarely before the jury and did not impinge against the appellant.
85 Nev. 576, 579 (1969) Lloyd v. State
motives, interest, accuracy, veracity and credibility squarely before the jury and did not
impinge against the appellant. The reference by respondent's counsel in his final argument to
the jury to Miss Jacobs' testimony was within the language and scope of her answers on
cross-examination and was not excessive.
2. Some time before trial the respondent's witness, Frank Dudley, was shown a group
photograph containing a picture of the appellant.
2
The record is unclear as to the exact time
when the photograph was exhibited to Dudley. The appellant contends that it was
immediately before Dudley viewed the lineup, and the respondent contends that it was shortly
after the robbery occurred. The exact time of the viewing is extremely important.
If Dudley was shown the photograph before the accusatory stage of the proceeding the
safeguards required by Thompson v. State, 85 Nev. 134, 451 P.2d 704 (1969), are not
involved. In that case we said: The fact that Wade, supra, [United States v. Wade, 388 U.S.
218 (1967)] involved a post-indictment lineup is not determinative. The right to counsel
attached when the prosecutorial process shifts from the investigatory to the accusatory stage
and focuses on the accused.
[Headnote 3]
In the absence of a clear indication, in the record, of the exact time when the photograph
was viewed by Dudley, we reject the appellant's claim of error and adhere to the rule that
every presumption is indulged in favor of the validity of a judgment of a court of general
jurisdiction. Daly v. Lahontan Mines Co., 39 Nev. 14, 151 P. 514; 158 P. 285 (1915).
3. We dismiss as frivolous the appellant's contention that the trial court erred when it
prohibited him from eliciting from one of the state's rebuttal witnesses a previously expressed
recommendation. Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969); Watkins v. State, 85
Nev. 102, 450 P.2d 795 (1969).
The judgment of the district court is hereby affirmed.
____________________

2
The group photograph is not a part of the record.
____________
85 Nev. 580, 580 (1969) Cross v. State
ALLEN GARY CROSS, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 5569
October 29, 1969 460 P.2d 151
Appeal from judgment of First Judicial District Court, Douglas County; Richard L.
Waters, Jr., Judge.
Defendant was convicted in the lower court of grand larceny and he appealed. The
Supreme Court, Mowbray, J., held that there was sufficient evidence to sustain the conviction
of defendant who was seen by a witness taking money from behind counter of casino and that
cross-examination of defendant as to his prior misconduct was not ground for reversal where
defendant failed to object specifically to questions at time of trial.
Affirmed.
Martillaro and Bucchianeri, of Carson City, for Appellant.
Harvey Dickerson, Attorney General, and John Chrislaw, District Attorney, Douglas
1. Larceny.
Evidence sustained conviction of defendant on charge of grand larceny where witness testified that she
had seen defendant remove money from behind counter in casino.
2. Criminal Law.
Jury, in defendant's trial for grand larceny, was not bound by inconsistencies in state's evidence as to
number of persons present when money was stolen from behind counter in casino and when such persons
arrived and left casino but could accord to such evidence whatever credit jury deemed it warranted.
3. Criminal Law.
Cross-examination of defendant in trial for grand larceny as to his prior misconduct was not ground for
reversal where defense counsel failed to object specifically to questions at time of trial.
OPINION
Allen Gary Cross was charged with the crime of Grand Larceny. He was tried to a jury and
convicted. He has appealed, seeking a reversal on two grounds: (1) The evidence offered by
the State was insufficient as a matter of law to sustain the guilty verdict, and {2) the
evidence of his prior misconduct received during the trial denied him his constitutional
right to a fair trial.
85 Nev. 580, 581 (1969) Cross v. State
offered by the State was insufficient as a matter of law to sustain the guilty verdict, and (2)
the evidence of his prior misconduct received during the trial denied him his constitutional
right to a fair trial. We affirm the conviction.
I. SUFFICIENCY OF THE EVIDENCE
The crime occurred at the Golden Bubble Casino, commonly known as the Bubble, located
in Douglas County. An eyewitness, Mrs. Michelle Ruggeri, who was a patron of the Bubble,
testified for the State that she saw Cross take the money:
A. Well, he [Daniel Giles, relief bartender] gave me my nickels and I went around right,
like I say, on this side of the bar to the first machine and started playing that. And I had put, I
don't know how many because I didn't keep track, but it wasn't too many nickels into it and I
almost got a jackpot and I turned around and say, See, Danny, my luck,' and Danny wasn't at
the bar.
Q. Where was Danny?
A. I couldn't see him when I turned around, I couldn't see anybody, so I went back to call
him and as I stepped back around I could see he was in the coffee shop, but as I turned back
and went around I saw Gary [the defendant].
Q. Where was Gary?
A. Gary was behind the Keno counter.
Q. What was Gary doing?
A. I guess that is why I didn't holler, he had money and he was putting it over the glass
partition, twice I saw it.
There is nothing in the record to contradict this portion of the witness's testimony.
[Headnotes 1, 2]
Mrs. Ruggeri further testified that at the time Cross took the money there were only three
other persons in the casino. Other state witnesses, employees of the Bubble, testified
differently as to (1) the number of persons present and (2) when they arrived and left the
casino. Cross contends that it is these inconsistencies in the testimony of the state's witnesses
that render the state's evidence insufficient as a matter of law. We do not agree. Whether the
State was bound by such inconsistencies is immaterial. The jury was not. In discharging its
duty, the jury could accord to such statements whatever credit the jury deemed they
warranted. State v. Fuchs, 78 Nev. 63, 68, 36S P.2d S69, S71 {1962); Ex parte Colton, 72
Nev. S3
85 Nev. 580, 582 (1969) Cross v. State
368 P.2d 869, 871 (1962); Ex parte Colton, 72 Nev. 83, 295 P.2d 383 (1956).
As the court said in State v. Sims, 409 P.2d 17, 23 (Ariz. 1965):
Sims finally urges that the testimony of Davis and Marchman at the trial contain certain
contradictions and discrepancies. These asserted contradictions and discrepancies are of such
a nature as can and usually do occur in the course of most trials where much of the evidence
is dependent upon the recollection of witnesses.
Also, in Duran v. People, 427 P.2d 318, 320, 321 (Colo. 1967), the court held: The
defendant emphasizes that the testimony of some of the People's witnesses varied with
reference to the statements given the police, evidence adduced at the first trial, and alleged
inconsistent descriptions pertaining to the weight, height, and headgear of the robbers; it also
varied with reference to the color and make of the getaway car and other claimed
discrepancies.
. . . .
We have many times pronounced the rule that where there is competent evidence to
support the verdict of the jury, the weight of the evidence and the credibility of witnesses are
within the exclusive province of the jury. [Citation omitted.]
II. EVIDENCE OF APPELLANT'S PRIOR MISCONDUCT
Cross argues that the following questions exceeded the boundaries of proper
cross-examination and denied him his constitutional right to a fair and impartial trial.
During the trial Cross's counsel, Mr. Martillaro, asked him:
Q. Mr. Cross, have you ever been in any trouble or convicted of a felony?
A. No.
On cross-examination, Cross was asked the following questions by Mr. Chrislaw, the
District Attorney:
Q. Were you in the military service?
A. Yes.
Q. Were you honorably discharged?
A. No.
Q. Have you ever been arrested prior to these two times?
A. Yes.
Q. How many times?
A. I don't know.
85 Nev. 580, 583 (1969) Cross v. State
Q. Have you ever been involved in any fights in this area within the last two years?
The Court: Well, that does go a little too far.
[Headnote 3]
Defense counsel failed to object specifically to the questions of which he now complains.
Accordingly, we shall not now consider this assigned error. See Cranford v. State, 76 Nev.
113, 349 P.2d 1051 (1960); State v. Ceja, 53 Nev. 272, 298 P.658 (1931).
Cross's conviction is affirmed.
____________
85 Nev. 583, 583 (1969) Ted Wiens Firestone, Inc. v. Rayson
TED WIENS FIRESTONE, INC., a Nevada Corporation,
Appellant, v. WILLIAM G. RAYSON, Respondent.
No. 5810
October 29, 1969 460 P.2d 150
Appeal from judgment of the Eighth Judicial District Court, Clark County; Roscoe H.
Wilkes, Judge.
Action against boat dealer which refused to honor credit memo. The lower court entered
judgment for plaintiff and dealer appealed. The Supreme Court, Mowbray, J., held that boat
dealer which agreed to pay indebtedness due bank on traded-in boat, and gave motor boat
buyer credit memo of $3,200 to be applied on purchase of new boat, but failed to pay
indebtedness or honor credit memo, was liable to buyer for amount of memo, having had
transferred to it under bill of sale all buyer's interest in traded-in boat.
Affirmed.
Wiener, Goldwater & Galatz, and J. Charles Thompson, of Las Vegas, for Respondent.
1. Sales.
Bill of sale to boat given boat dealer in connection with purchase of second boat transferred to dealer
whatever and all interest buyer of second boat had in first. NRS 104.2401 et seq.
2. Sales.
Boat dealer which agreed to pay indebtedness due bank on traded-in boat, and gave motor boat buyer
credit memo of $3,200 to be applied on purchase of new boat, but failed to pay indebtedness or honor
credit memo, was liable to buyer for amount of memo, having had transferred to it under bill of sale all
buyer's interest in traded-in boat.
OPINION
Respondent, William G. Rayson, purchased from appellant, Ted Wiens Firestone, Inc., a
Sabre Craft motor boat. Rayson traded in his 27-foot Fairliner motor boat on the purchase of
the new boat, and Wiens allowed him $4,200 for the old boat, to be applied as follows: Wiens
agreed to (1) pay off the remaining indebtedness of $800 due the Bank of Nevada on the
Fairliner; (2) pay a repair bill of $200 on the Fairliner to the owner of Las Vegas Boat Harbor
at Lake Mead, where the Fairliner was moored; and (3) give Rayson a credit memo of $3,200
to be applied on his purchase of the Sabre Craft. Wiens performed Items 2 and 3, but never
paid the Bank, and here rests the crux of the case.
The boat was originally purchased by one Hoinoski and financed by Bank for $7,950, with
monthly payments of $132.50. Hoinoski sold the boat to Douglas Spencer and Associates,
who sold it to Rayson. Apparently neither Spencer nor Rayson expressly informed Bank of
the sale, but Rayson, who had obtained the payment book from Spencer, continued to make
the monthly payments due on the loan and reduced the indebtedness to $800the sum Wiens
agreed to pay. Rayson gave Wiens a bill of sale to the Fairliner at the time of the trade, and
soon thereafter Wiens sold the boat to a Mack Parker, also pursuant to a bill of sale. Wiens,
however, never paid Bank, although Rayson continually reminded Wiens to do soand even
offered to do so himselfand the loan was soon in default. Bank notified Hoinoski of the
default; Hoinoski paid the $800, went to the boat slip, and took the boat. When Wiens refused
to honor the $3,200 credit memo, Rayson brought suit. The district judge found in favor of
Rayson and awarded him a $3,200 judgment plus costs and $500 attorneys' fees. We affirm
the judgment of the lower court.
[Headnote 1]
Wiens's principal argument on this appeal is that Rayson did not effectively transfer
interest in the boat to Wiens, as he did not give Wiens a "transfer of equity," but gave
Wiens only a bill of sale.
did not give Wiens a transfer of equity, but gave Wiens only a bill of sale. Wiens's
contention is without merit. It is well settled that a bill of sale has the legal effect of
transferring to the buyer whatever and all interest the seller had in the property. See NRS
104.2401 et seq.; 46 Am.Jur. Sales 451 (1943), at 614.
The loan at all times stood in Hoinoski's name on Bank's books. The record before us does
not reflect whether Bank had been given actual notice of the Hoinoski-Spencer-Rayson
transactions. Yet it does reflect that Bank knew Rayson was in possession of the payment
book and had, for over a year, been making the monthly payments of $132.50 to Bank as they
became due. Bank had entered a notation on its ledger that Rayson had been making the
installment payments. Hoinoski, apparently, when he received notice of the default, saw the
opportunity to obtain his former boat for a mere $800, and he did just that. Neither Bank nor
Hoinoski is before us in these proceedings.
The evidence shows that on three separate occasions Rayson personally called on Gordon
Saxton, Wiens's agent, and inquired about the status of the payoff. Saxton replied that
everything was in normal channels, that everything was fine. When, on his third visit,
Rayson informed Saxton that the loan was in default and even offered to pay it, Saxton
replied that such action by Rayson would not be necessary.
[Headnote 2]
Under the factual posture of this case as between Rayson and Wiens, the district judge was
correct in awarding judgment in favor of Rayson.
Affirmed.
____________
85 Nev. 585, 585 (1969) Sardis v. District Court
JOHN SARDIS, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Washoe, Dept. No. 1, and THE
HONORABLE GRANT L. BOWEN, Judge Thereof, Respondents.
No. 5952
October 29, 1969 460 P.2d 163
Original proceedings in prohibition.
Structural engineer sought a writ of prohibition enjoining the district court from
proceeding in an action charging him with practicing architecture without a certificate. The
Supreme Court, Mowbray, J., held that where the complaint against the engineer did not state
any specific facts but merely alleged that he had violated a statute which required persons
practicing architecture to have a certificate issued to them under the Architect's Act, the
complaint was insufficient and, therefore, the district court had no jurisdiction over the
matter, and a structural engineer certified under the Engineer's Act to design buildings is
exempt from the Architect's Act.
Writ granted.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Petitioner.
Harvey Dickerson, Attorney General; and William J. Raggio, District Attorney, Kathleen
M. Wall, Deputy District Attorney, and Jack I. McAuliffe, Special Deputy District Attorney,
Washoe County, for Respondents.
1. Prohibition.
Where a structural engineer raised valid jurisdictional objections to his being tried in the district court on
a charge of practicing architecture without a certificate and the district court denied those objections,
prohibition was a proper remedy. NRS 623.180, 625.050.
2. Licenses.
Where complaint against structural engineer did not state any specific facts but merely alleged that he had
violated a statute which required persons practicing architecture to have a certificate issued to them under
the Architect's Act, the complaint was insufficient, and, therefore the engineer, was entitled to have the
action against him dismissed. NRS 185.030, 189.070, 623.040, 623.180, 623.330, 623.360,
625.050.
3. Criminal Law.
Where a structural engineer was charged with violating Architect's Act, even if there was ambiguity in a
provision of the statute exempting structural engineers from its requirements, that ambiguity would be
resolved in the engineer's favor since he was charged with a criminal offense. NRS 623.180, 625.050.
4. Licenses.
Structural engineer who was certified to design buildings under the provisions of the Engineer's Act was
exempt from the Architect's Act. NRS 623.180, 625.050.
OPINION
Petitioner John Sardis seeks a writ of prohibition enjoining the Second Judicial District
Court from proceeding in an action pending in that court in which Sardis is charged in a
criminal complaint with "PRACTICING ARCHITECTURE IN THE STATE OF NEVADA
WITHOUT A CERTIFICATE, A VIOLATION OF NRS 623.1S0."
the Second Judicial District Court from proceeding in an action pending in that court in
which Sardis is charged in a criminal complaint with PRACTICING ARCHITECTURE IN
THE STATE OF NEVADA WITHOUT A CERTIFICATE, A VIOLATION OF NRS
623.180.
Sardis was convicted in justice's court on December 2, 1965. He appealed to the district
court for a trial de novo, where he moved for a dismissal of the complaint on the grounds that
the district court was without jurisdiction to proceed because (1) the complaint failed to
allege facts constituting a public offense and (2) Sardis as a structural engineer was exempt as
a matter of law from the provisions of NRS 623.180. The court denied the motion, and Sardis
has petitioned this court for a writ of prohibition. We hold that the writ should issue.
I. APPROPRIATE REMEDY
[Headnote 1]
Prohibition is a proper remedy in this case. Article 6, section 6, of the Nevada Constitution
confers upon our district courts final appellate jurisdiction in all issues appealed from justice's
courts. Ordinarily, Sardis's final recourse would rest with the district court. When, however,
valid jurisdictional objections are raised and are denied by the district court, a resulting trial
in the district court would be futile. As the court said in Farraher v. Superior Court, 187 P. 72,
73 (Cal.App. 1919), in commenting on a writ of prohibition as an appropriate remedy in a
case procedurally similar to the instant case:
Notwithstanding the insufficiency of the complaint, prohibition would not lie against the
justice court proceeding with the trial of the defendant thereon, for the reason that, if
convicted, he would have a plain, speedy, and adequate remedy by appeal to the superior
court. . . . [N]evertheless, as was his right, he availed himself of the remedy by appeal, and,
on perfecting the same, made his motion to dismiss the action for want of a sufficient
complaint. Since, as we have seen, no facts constituting a criminal offense were stated
therein, there was nothing upon which to try the defendant, and hence the court should have
granted the motion, instead of which, however, it made an order denying it, and, as shown,
threatens to and will, unless restrained by an order of this court, proceed with the trial for the
purpose only of determining whether or not the judgment should be modified. It therefore
appears that the judgment which the court proposed to render would be a futile act. No appeal
would lie therefrom, and conceding that petitioner might, upon such conviction in the
superior court, avail himself of an application for a writ of review to have the judgment
annulled, or seek release from custody by habeas corpus, nevertheless no purpose could
be served by subjecting petitioner to a trial, the result of which, concededly, would be a
nullity.
himself of an application for a writ of review to have the judgment annulled, or seek release
from custody by habeas corpus, nevertheless no purpose could be served by subjecting
petitioner to a trial, the result of which, concededly, would be a nullity. Clearly, upon the
facts presented, the court should be prohibited from taking any action in the case, other than
to make an order dismissing the same. Hogan v. Superior Court, 16 Cal.App. 783, 117 Pac.
947.
Nevada has granted writs of prohibition in similar situations. See Smith v. District Court,
75 Nev. 526, 347 P.2d 526 (1959), and Houser v. District Court, 75 Nev. 465, 345 P.2d 766
(1959). In both cases the petitioner sought a writ of prohibition on the ground that the
Information did not charge a public offense and that, therefore, the court was without
jurisdiction to try the case. And in both cases the court held that the complaints were
insufficient and granted the writs. The court, in Houser, at 469, approved an earlier Nevada
decision:
In Re Waterman, 29 Nev. 288, 89 P. 291, 11 L.R.A., N.S., 424, this court held that there
can be no conviction for or punishment of a crime without a formal and sufficient accusation
and that in the absence thereof a court acquires no jurisdiction whatever, and if it assumes
jurisdiction, the trial and conviction would be a nullity. As the amended information fails to
charge the elements of the offense of grand larceny or any other felony or gross misdemeanor,
the trial court is without jurisdiction to proceed with the trial of defendants upon such
amended information.
II. SUFFICIENCY OF THE COMPLAINT
At the time Sardis was charged with the violation of NRS 623.180, NRS 185.030
provided, in part:
1. When a complaint is laid before a justice of the peace, or a judge of any inferior
tribunal having jurisdiction of criminal offenses, that an offense has been committed, of
which a justice's court or other inferior tribunal has jurisdiction, the justice or judge to whom
the complaint is made shall cause the person making the complaint, or someone else, to file
with him a statement in writing, sworn to before him, or some other officer authorized by law
to administer oaths, setting forth the offense charged, with such particulars as to time, place,
person and property as to enable the person charged to understand the character of the
offense complained of and to answer the complaint or charge. (Emphasis added.)
It is patently clear that the complaint fails to meet even the minimal standards of
specificity required in such cases. It alleges:
That the said defendant from October, 1964 until May, 1965, or thereabouts, at Reno
Township, in the County of Washoe, State of Nevada, did wilfully and unlawfully practice
architecture without having a certificate issued to him under the provisions of Chapter 623 of
the Nevada Revised Statutes.
NRS 623.040 defines the practice of architecture as:
. . . the holding out to the public of services embracing the scientific, aesthetic, and
orderly coordination of all the processes which enter into the production of a completed
building, performed through the medium of unbiased plans, specifications, supervision of
construction, preliminary studies, consultations, evaluations, investigations, contract
documents, and oral advice and direction.
[Headnote 2]
The complaint as drawn merely charges the petitioner with a violation of the statute, and
nothing more. This is manifestly not sufficient. As Chief Justice McCarran wrote in Ex parte
Rovnianek, 41 Nev. 141, 149, 168 P. 327, 329 (1917), in quoting Chief Justice Waite in
United States v. Cruikshank, 92 U.S. 542, 558 (1875):
It is an elementary principle of criminal pleading that where the definition of an offense,
whether it be at common law or by statute, includes generic terms, it is not sufficient that the
indictment shall charge the offense in the same generic terms as in the definition, but it must
state the species; it must descend to particulars.'
The complaint in the instant case simply fails to state any facts which might be construed
as constituting a violation of the provisions of chapter 625 of Nevada Revised Statutes, and
the motion to dismiss should have been granted for this reason alone. See NRS 189.070
1
and
NRS 174.105, subsection 3.
2
III.
____________________

1
NRS 189.070:
The complaint, on motion of defendant, may be dismissed upon the following grounds:
1. That the justice did not have jurisdiction of the offense.
2. That more than one offense is charged therein.
3. That the facts stated do not constitute a public offense.

2
NRS 174.105, subsection 3:
Lack of jurisdiction or the failure of the indictment, information or complaint to charge an offense shall be
noticed by the court at any time during the pendency of the proceeding.
III. PETITIONER'S EXEMPTION FROM THE PROVISIONS OF THE
ARCHITECTS ACT, CHAPTER 623, NEVADA REVISED STATUTES
While we appreciate that our holding, just announced, is dispositive of the present case, in
order to set the matter at rest we turn to consider petitioner's second contention: that as a
professional structural engineer he is exempt from the provisions of the Architects Act. We
hold that he is so exempt.
NRS 623. 180 provides, in part:
1. No person shall practice architecture in the State of Nevada without having a
certificate issued to him under the provisions of this chapter.
The definition of practice of architecture is contained in NRS 623.040, as follows:
The practice of architecture is defined as the holding out to the public of services
embracing the scientific, aesthetic, and orderly coordination of all the processes which enter
into the production of a completed building, performed through the medium of unbiased
plans, specifications, supervision of construction, preliminary studies, consultations,
evaluations, investigations, contract documents, and oral advice and direction.
NRS 623.360 provided, in part, at the time of Sardis's conviction:
1. Any person violating the provisions of this chapter [being the chapter pertaining to
architects] shall be guilty of a misdemeanor, and upon conviction thereof shall be sentenced
for the first offense to pay a fine of not less than $50 nor more than $200; and for a second or
subsequent offense shall be sentenced to pay a fine of not less than $200 nor more than
$500.
However, certain persons are exempt from the provisions of the architectural chapter.
These exemptions are contained in NRS 623.330, which provides as follows:
The following persons are exempt from the provisions of this chapter:
1. A person engaging in architectural work as an employee of a registered architect,
provided that the work does not include responsible charge of design or supervision, or a
consultant retained by a registered architect.
2. A person practicing architecture as an officer or employee of the United States.
3. A professional engineer registered under the provisions of chapter 625 of NRS who
designs buildings as permitted by chapter 625 of NRS.
4. A person who designs buildings and supervises the construction thereof for his own
use.
5. A contractor licensed under the provisions of chapter 624 of NRS who provides his
own drawings for his own construction activities.
6. A draftsman who does not hold himself out to the public as an architect. (Emphasis
added.) The crime, as set forth in NRS 623.360, is the violation of any of the provisions of
chapter 623. Petitioner may not be charged with the violation of the chapter, if the chapter
provides that he is exempt.
The issue of exemption goes to the very jurisdiction of the court. In Ex parte Davis, 33
Nev. 309, 110 P. 1131 (1910), the Supreme Court of Nevada discharged a defendant on a writ
of habeas corpus where he had been convicted in the justice's court of the misdemeanor of
carrying a concealed weapon. It was the contention of the defendant that he was exempt from
the act prohibiting the carrying of concealed weapons, under the terms of the act, which
exempted persons acting or engaged in the business of common carriers in this state. The
court held that this issue went to the jurisdiction of the court. The court stated, at 312:
The modern doctrine of jurisdiction, the excess of which habeas corpus may relieve
against, goes not only to jurisdiction over the person and the subject-matter, but to the power
or jurisdiction to render the particular judgment. . . . With this modern doctrine, which is
more in accord with reason and justice, this court is already in accord. . . . [Citations omitted.]
. . . There are three essential elements necessary to render convictions valid. These are
that the court must have jurisdiction over the subject-matter, the person of the defendant, and
authority to render the particular judgment. If either of these elements is lacking, the
judgment is fatally defective, and the prisoner held under such judgment may be released on
habeas corpus . . .'
. . . The court derives its jurisdiction from the law, and its jurisdiction extends to such
matters as the law declares criminal, and none other; and when it undertakes to imprison for
an offense to which no criminality is attached, it acts beyond its jurisdiction.' "No better
illustration of the wisdom and justice of this view could be found than in cases like that
under consideration, where a statute makes the doing of a certain act a penal offense,
and then exempts a certain class of persons from its provisions.
No better illustration of the wisdom and justice of this view could be found than in cases
like that under consideration, where a statute makes the doing of a certain act a penal offense,
and then exempts a certain class of persons from its provisions. As against the exempted class
the law has no force or effect, and the court is without power to impose punishment upon that
exempted class for the doing of an act punishable as to others not within the exemption. . . .
(Emphasis added.)
The State concedes that Sardis during the period mentioned in the complaint was a duly
licensed professional engineer under the provisions of chapter 625 of Nevada Revised
Statutes and was qualified to design buildings as provided by that chapter.
3

The State contends that the exemption statute applies to a professional structural engineer
only when the services he renders require the application of engineering principles and
data."
____________________

3
CERTIFICATE

____________________

THE UNDERSIGNED, HOWARD BLODGETT, being first duly sworn, states that he is the Secretary of the
Nevada State Board of Registered Professional Engineers, and that under the provisions of Chapter 625 of
N.R.S., a certificate was duly issued to JOHN M. SARDIS on the 24th day of October, 1963, being Certificate
Number 1886. The certificate authorized the practice of professional engineering, designating qualification in
the branches of civil and structural engineering. The certificate remains unrevoked and unexpired; and, pursuant
to Chapter 625 of N.R.S., JOHN SARDIS has been, from the date of issuance of the certificate to the present
date, qualified to design buildings in the State of Nevada.
Howard B. Blodgett
________________________________________

HOWARD, B. BLODGETT, Secretary
NEVADA STATE BOARD OF
REGISTERED PROFESSIONAL
ENGINEERS
[Seal of the Board]
Subscribed and sworn to before me
this 23rd day of June, 1969.
Procter Hug, Jr.

_____________________________

NOTARY PUBLIC
PROCTER HUG, JR.
[Seal] Notary PublicState of Nevada
Washoe County
My Commission Expires Feb. 27, 1970
data. See NRS 625.050.
4
We do not agree. NRS 625.050 does not restrict the engineer to
the services set forth therein, but rather states that the practice of professional engineering
includes those professional services as enumerated. The purpose of the statute is to define
those engineering services that one who is not a registered engineer may not do.
[Headnote 3]
If an ambiguity in the exemption statute does in fact exist, it must be resolved in favor of
the petitioner, because he is charged with a criminal complaint. As this court said in Ex Parte
Davis, supra, at 318 (P. at 1135): Penal statutes should be so clear as to leave no room for
doubt as to the intention of the legislature, and where a reasonable doubt does exist as to
whether a person charged with a violation of its provisions is within the statute, that doubt
must be resolved in favor of the individual.
[Headnote 4]
We conclude that those engineers who are permitted to design buildings under the
Engineers Act are exempt from the Architects Act.
It is hereby ordered that the writ of prohibition shall issue, and the Second Judicial District
Court is hereby enjoined from proceeding in the case of The State of Nevada, Plaintiff, versus
John Sardis, Defendant, initially filed June 15, 1965, in the Justice's Court of Reno Township
in and for the County of Washoe, State of Nevada.
____________________

4
NRS 625.050 provided, at the time of Sardis's conviction:
1. Within the meaning and intent of this chapter, the practice of professional engineering includes any
professional service such as surveying, consultation, investigation, evaluation, planning and design, or
responsible supervision of construction or operation in connection with any public or private utilities, structures,
buildings, machines, equipment, processes, works or projects, wherein the public welfare or the safeguarding of
life, health or property is concerned or involved, when such professional services require the application of
engineering principles and data.
2. The practice of engineering shall not include land surveying or the work ordinarily performed by persons
who operate or maintain machinery or equipment.
____________
85 Nev. 594, 594 (1969) Coleman v. Benson
HUGH O. COLEMAN Appellant, v. JOHN F. BENSON
and DOROTHY E. BENSON, Respondents.
No. 5806
October 30, 1969 460 P.2d 158
Appeal from judgment of Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Suit to recover deposit made for purchase of condominium apartment. The lower court
denied plaintiff's claim, and he appealed. The Supreme Court, Mowbray, J., held that
evidence in suit by purchaser who gave deposit, but refused to sign option contract providing
that it was null and void if not accepted within 30 days because it was not in accord with his
understanding of agreement, failed to support denial of plaintiff's claim.
Reversed, and remanded with instructions.
Stewart & Horton and Willard Van Hazel, Jr., of Reno, for Appellant.
Bible, McDonald, Carano & Wilson, of Reno, for Respondents.
Supreme Court will not set aside on appeal judgment of lower court if there is substantial evidence in
record to support lower court's decision.
Evidence in suit to recover deposit made for purchase of condominium apartment by purchaser, who gave
deposit but refused to sign option contract providing that it was null and void if not accepted within 30
days because it was not in accord with his understanding of agreement, failed to support denial of plaintiff's
claim.
Where purchaser's mother was not party to suit for return of deposit for purchase of apartment and
vendors and purchaser never reached agreement for purchase in that option contract expired because
purchaser refused to accept contract, there was no rental agreement express or implied, for mother's use of
premises, therefore, vendors were not entitled to retain deposit on theory of rent due.
OPINION
Appellant Hugh O. Coleman brought an action in the district court against the respondents
Bensons to recover a $2,000 deposit made for the purchase of a condominium apartment.
deposit made for the purchase of a condominium apartment. The trial judge denied Coleman's
claim, and he has appealed. We reverse, and remand the case with instructions to enter
judgment for Coleman.
In the summer of 1964, Mrs. Louis Coleman, appellant's mother, who is not a party to this
action, and respondent Dorothy E. Benson discussed purchasing a condominium apartment at
Crystal Shores West, Lake Tahoe, in Washoe County, Nevada. Mrs. Coleman took
possession of the apartment, but she could not qualify as a purchaser; so Dorothy and her
husband John agreed to buy the apartment. Mrs. Coleman remained in possession until July
1965.
In mid-October 1964, appellant Hugh O. Coleman discussed with the Bensons the
possibility of purchasing the apartment. On October 20, 1964, Coleman sent the Bensons a
$2,000 check and a letter expressing his desire to purchase the apartment. The Bensons
acknowledged the letter, cashed the $2,000 check, and informed Coleman that an option
agreement to purchase the apartment was being prepared and that it would be forwarded to
him for his approval and signature. On October 31, 1964, Coleman received such an option
agreement signed by the Bensons. The agreement provided for the total payment of
$36,702.74 within 60 days, which sum included an item of $1,271.89, identified in the option
agreement as personal indebtedness, Mrs. Louis Coleman to Seller. The agreement
provided among other things that if Coleman failed to complete the purchase on time, all
funds deposited would be forfeited to the seller and that the option shall be null and void if
not accepted in writing within thirty (30) days from date herein.
Coleman never signed the option agreement. Instead, he demanded return of the $2,000
deposit, and when the Bensons refused to do so, he commenced the action in the district
court. The Bensons answered and counterclaimed for the loss of certain furniture valued in
excess of $1,000.00. The case was tried in July 1968. At the time of trial the Bensons
dropped their counterclaim for the furniture loss (it developed that the furniture had in fact
belonged to Mrs. Coleman) and amended their pleadings to seek $3,500 rental for the time
Coleman's mother was in the apartment.
The case was tried before the court sitting without a jury. At the conclusion of the trial, the
court found among other things that: Pursuant to oral negotiations Plaintiff [appellant
Coleman] on October 20, 1964, issued to Defendants [respondents Bensons] his personal
check in the sum of $2,000.00 toward the down payment which he now seeks to recover in
this action.
toward the down payment which he now seeks to recover in this action. Defendants, upon
receipt of the check personally prepared and sent to Plaintiff a Receipt and Option to
Purchase, dated October 31, 1964 (Pl's. Ex. D), which by its own terms was to be null and
void if not accepted within thirty (30) days from date herein.' It was not accepted by Plaintiff
as not being in accord with his understanding of the terms. . . . Defendants never made any
demand or request for rental until their Amended Counterclaim was filed herein on the date
of this trial for the period September to December 31, 1964. . . . It fairly appears to the Court
that if rental was contemplated between the parties some such demand should have been
made at least within a reasonable time after December, 1964. (Emphasis added.)
Nevertheless, even in view of these findings the court went on to find that Mrs. Coleman,
appellant's mother, who was not a party to the action, was inextricably involved in this
transaction; that . . . in view of the course of events that have transpired, Defendants are
entitled to some consideration . . .; and that therefore The Court concludes that the only
fair, equitable and just determination of this matter is to leave the parties where it finds
them[,] not allowing judgment to either side. . . .
[Headnote 1]
The law has been well established and stated many times in Nevada that this court will not
on appeal set aside a judgment of the lower court if there is substantial evidence in the record
to support the court's decision. Briggs v. Zamalloa, 83 Nev. 400, 432 P.2d 672 (1967); Lawry
v. Devine, 82 Nev. 65, 410 P.2d 761 (1966); Harvey v. Streeter, 81 Nev. 177, 400 P.2d 761
(1965); City of Henderson v. Henderson Auto Wrecking, Inc., 77 Nev. 118, 359 P.2d 743
(1961).
[Headnotes 2, 3]
In this case we find that there is a lack of substantial evidence to support the court's finding
that Coleman was not entitled to the return of the $2,000. We also find that the record is
completely void of facts that would support any legal theory that would justify the retention
of the $2,000 by the Bensons. The court found that the Bensons and Coleman had never
reached an agreement for the purchase of the apartment, because by its very terms the option
contract expired 30 days from date without Coleman's approval and signature. There was no
rental agreement, express or implied, for Mrs. Coleman's use of the premises. At most it
might be described as nothing more than a gratuitous, permissive use which could have
been revoked at any time during the period of occupancy at the option of the Bensons.
as nothing more than a gratuitous, permissive use which could have been revoked at any time
during the period of occupancy at the option of the Bensons.
The judgment is reversed, and the cause is remanded to the district court with instructions
to enter judgment in favor of appellant Coleman for $2,000 with interest from the date of
Coleman's demand for the return of the deposit, plus costs and a reasonable attorney's fee, to
be fixed by the district court.
____________
85 Nev. 597, 597 (1969) McCray v. State
GEORGE R. McCRAY, and JAY J. REGAS,
Appellants, v. STATE OF NEVADA, Respondent.
No. 5816
November 3, 1969 460 P.2d 160
Appeal from judgments of the Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
Defendants were convicted in the lower court of robbery and they appealed. The Supreme
Court, Thompson, J., held that fact that during trial defendants were ordered to wear before
jury clothing in which they were arrested did not violate their Fifth Amendment privilege
against self-incrimination, and that where participants in pretrial police lineup were dressed
nearly alike and were close to same height, lighting was good and lineup was conducted on
same morning as robbery, lineup did not offend due process.
Affirmed.
Johnson & Sloan, of Reno, for Appellant George R. McCray.
H. Dale Murphy, of Reno, for Appellant Jay J. Regas.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, C. Frederick
Pinkerton, and Paul Freitag, Deputy District Attorneys, Washoe County, for Respondent.
1. Criminal Law.
Privilege against self-incrimination is not violated by compulsion which makes an accused the source of
real or physical evidence. U.S.C.A.Const. Amend. 5.
2. Criminal Law; Witnesses.
Privilege against self-incrimination only protects accused from being compelled to testify against himself
or from otherwise providing state with evidence of testimonial or communicative nature. U.S.C.A.Const.
Amend. 5.
3. Criminal Law.
That during trial defendants were ordered to wear before jury clothing in which they were arrested for
robbery did not violate their Fifth Amendment privilege against self-incrimination. U.S.C.A.Const. Amend.
5.
4. Habeas Corpus.
Prior ruling of Supreme Court in habeas corpus case that there was no violation of Fourth Amendment
prohibition against unreasonable searches and seizures established law of case and precluded consideration
on appeal of claim of such violation. U.S.C.A.Const. Amend. 4.
5. Criminal Law.
Defendant had right to appointed counsel at pretrial police lineup.
6. Criminal Law.
Even though defendant was denied right to appointed counsel at pretrial police lineup, where it was
established that court identification of defendant as robber was based on what witness saw at robbery and
was untainted by lineup identification, defendant was not entitled to reversal of conviction.
Where participants in pretrial police lineup were dressed nearly alike and were close to same height,
lighting was good and lineup was conducted on same morning as robbery, lineup did not offend due
process.
OPINION
McCray and Regas were each convicted of robbery. This is a direct appeal from the
convictions. We are asked to set them aside for constitutional errors. We find none, and
affirm.
1. During one of the trial days before the jury the defendants were ordered to wear the
clothing in which they were arrested. This, they argue, violated their Fifth Amendment
privilege against self incrimination.
[Headnote 1]
The privilege is not violated by compulsion which makes an accused the source of real or
physical evidence. Accordingly, it is permissible to require an accused to put on a blouse that
fitted him (Holt v. United States, 218 U.S. 245 (1910)); to submit to a blood alcohol test
(Schmerber v. California, 384 U.S. 757 {1966)); and to give handwriting exemplars
{Gilbert v. California, 3SS U.S. 263 {1967)).
U.S. 757 (1966)); and to give handwriting exemplars (Gilbert v. California, 388 U.S. 263
(1967)). Items of clothing worn by the accused may be received in evidence without violating
the privilege. Warden v. Hayden, 387 U.S. 294 (1967).
[Headnote 2]
The privilege only protects the accused from being compelled to testify against himself, or
from otherwise providing the state with evidence of a testimonial or communicative nature.
Schmerber v. California, supra. Testimonial evidence is not involved here. Physical evidence
is. Holt v. United States, supra.
[Headnote 3]
The fact that the exhibition occurred during trial rather than at some pretrial point does not
alter the application of established Fifth Amendment doctrine. State v. Oschoa, 49 Nev. 194,
242 P. 582 (1926); State v. Ah Chuey, 14 Nev. 79 (1879).
[Headnote 4]
2. We reject out of hand the appellants' claim that a violation of the Fourth Amendment
prohibition against unreasonable searches and seizures occurred in this case since we have
already ruled on the point. Robertson, McCray and Regas v. State, 84 Nev. 559, 445 P.2d 352
(1968). That ruling established the law of this case. Walker v. State, 85 Nev. 337, 455 P.2d
34 (1969); Graves v. State, 84 Nev. 262, 439 P.2d 476 (1968); State v. Loveless, 62 Nev.
312, 150 P.2d 1015 (1944).
[Headnotes 5, 6]
3. The appellant Regas participated in a pretrial police lineup conducted in the absence of
counsel. He had the right to appointed counsel at that time. United States v. Wade, 388 U.S.
218 (1967). A witness who identified him at the lineup later testified in court out of the jury's
presence; and the court determined that his in-court identification was based upon
observation at the crime scene, was of independent origin, and was untainted by the lineup
identification. Clear and convincing evidence supports that determination. The witness
testified that Regas held a gun at his head at a distance of about a foot and a half. For about
a minute the witness was looking right in his (Regas') face. He testified unequivocally that
his court identification was based on what he saw at the robbery. This satisfies our law
(Thompson v. State, 85 Nev. 134, 451 P.2d 704 (1969); Boone v. State, 85 Nev. 450, 456
P.2d 41S {1969)) and the standard established by United States v. Wade, supra. Since the
witness did not testify in the jury's presence that he attended a lineup, there was no
enhancement of his identification in court; and the problem posed in Gilbert v. California,
supra, is not here in issue.
418 (1969)) and the standard established by United States v. Wade, supra. Since the witness
did not testify in the jury's presence that he attended a lineup, there was no enhancement of
his identification in court; and the problem posed in Gilbert v. California, supra, is not here in
issue.
[Headnote 7]
It was equally permissible for the district court to find that due process was not offended
by the police lineup conducted in this case. As to this aspect the validity of the confrontation
depends on the totality of the circumstances surrounding it. Stovall v. Denno, 388 U.S. 293
(1967). Substantial evidence established that the lineup was not unnecessarily suggestive
since the participant were dressed nearly alike and were close to the same height. The lighting
was good, and the lineup was conducted the same morning as the robbery which adds weight
to its reliability.
All other assigned errors have been considered and are without substance.
Affirmed.
____________
85 Nev. 600, 600 (1969) Price v. Sinnott
MARY G. PRICE, Administratrix of the Estate of DELBERT GREEN, Deceased, Appellant,
v. M. C. SINNOTT and HILDA SINNOTT, Husband and Wife, Doing Business as
SINNOTT MOTEL, and MARVIN F. PORTEOUS, Doing Business as VALLEY PROPANE
COMPANY, Respondents.
No. 5728
November 4, 1969 460 P.2d 837
Appeal from a judgment of the Fifth Judicial District Court, Mineral County; Kenneth L.
Mann, Judge.
Action, against motel owners and motel's supplier of petroleum gas, by administratrix of
deceased's estate, alleging that deceased's death from carbon monoxide poisoning was result
of defendant's negligence. The trial court, after entering judgment in favor of defendants,
denied plaintiff's motion for new trial, and she appealed. The Supreme Court, Batjer, J., held
that jury instructions, though erroneous in advising that violation of rule promulgated by state
liquefied petroleum gas board concerning proper venting of petroleum gas-burning devices
was negligence per se, did not prejudice but benefited plaintiff and could not have
influenced verdicts for defendants, but that manifest injustice of verdict resulting from
jury's disregard of court's instructions was sufficient to justify directing of new trial by
appellate court.
board concerning proper venting of petroleum gas-burning devices was negligence per se, did
not prejudice but benefited plaintiff and could not have influenced verdicts for defendants,
but that manifest injustice of verdict resulting from jury's disregard of court's instructions was
sufficient to justify directing of new trial by appellate court.
Reversed.
Thompson and Zenoff, JJ., dissented.
Flangas & Stone, of Las Vegas, for Appellant.
Richard P. Wait, Vargas, Bartlett and Dixon, and Steven T. Walther, of Reno, for
Respondents.
1. Innkeepers.
Innkeeper must operate his lodging establishment so as to reduce to minimum possibility of asphyxiation
or gas poisoning. NRS 447.140, 590.525.
2. Innkeepers.
Under-eave venting of motel room's gas heater, as well as death of guest in such room, was evidence that
motel owners failed to operate their establishment so as to reduce to minimum the possibility of
asphyxiation or gas poisoning. NRS 447.140, 590.525.
3. Gas.
Liquefied petroleum gas supplier, who, though noting faulty venting of gas heaters and informing motel
operators of such defect, continued to supply liquefied fuel, violated duty of gas supplier to terminate
supply until known defect was corrected.
4. Gas.
Knowledge of rule promulgated by state liquefied petroleum gas board regarding venting of gas heaters is
not required before liability may be imposed for violation thereof.
5. Negligence.
Proof of deviation from an administrative regulation is only evidence of negligence, not negligence per
se.
6. Negligence.
Proof of compliance with an administrative regulation is not proof of due care as matter of law, but is
only evidence of such care.
Jury instruction, though erroneous in advising that violation of rule promulgated by state liquefied
petroleum gas board concerning venting of gas heaters was negligence per se, did not prejudice but
benefited administratrix of estate of deceased who died from carbon monoxide poisoning while guest in
motel and could not have influenced verdicts for motel owners and motel's liquid petroleum gas supplier.
8. New Trial; Trial.
Jury instructions must be followed by jury to arrive at fair and impartial verdict, and if jury does not
follow them, verdict must be set aside as contrary to law.
9. New Trial.
Where jury, had they followed the court's instruction on proximate cause and applied such instruction, in
conjunction with instruction on negligence, to evidence in case, could not possibly have reached verdict
which they reached, trial court as matter of law was obligated to grant new trial. NRCP 72(a).
10. New Trial.
Refusal of trial court to set aside verdict entered contrary to its instructions is an error of law and not
within mere discretion of trial court.
11. Negligence.
Issue of proximate cause is almost always an issue of fact rather than one of law, and this is so whether
negligence charged is negligence per se or ordinary negligence.
When there is no request for directed verdict, question of sufficiency of evidence to sustain verdict is not
reviewable but exception exists where there is plain error in record or if there is showing of manifest
injustice.
13. Trial.
Verdict shocking to conscience of reasonable men, result of jury's disregard of court's instructions,
constituted manifest injustice.
Rule that where there is substantial conflict in evidence appellate court will not disturb finding of trial
court is subject to exception that if there be no substantial conflict in evidence upon any material point, and
verdict or decision be against such evidence upon such point, or where verdict or decision strikes mind, at
first blush, as manifestly and palpably contrary to evidence, appellate court will direct new trial. NRCP
72(a).
15. New Trial.
Where manifestly unjust verdict in favor of motel owners and motel's liquefied petroleum gas supplier
resulted from jury's disregard of court's instructions on proximate cause and negligence, administratrix of
estate of motel guest who died from carbon monoxide poisoning was entitled to new trial.
OPINION
By the Court, Batjer, J.
Delbert Green, driving a diesel truck, on a trip from Phoenix, Arizona to Weed Heights,
Nevada, stopped in Mina, Nevada, shortly after midnight on November 21, 1964 and
registered at a motel owned by the respondents, M. C. Sinnott and Hilda Sinnott. He was
assigned to room N and late that afternoon his body was discovered in that room.
afternoon his body was discovered in that room. The uncontradicted evidence revealed that he
died of carbon monoxide poisoning. At the time his body was discovered there was a gas
operated heater in the room burning at full capacity, and the bathroom window was open.
On November 23, 1964, George M. Hale, a safety inspector for the Liquefied Petroleum
Board of Nevada, examined the heating and ventilation system of room N. He found that
combustion products from the heater were spilling into the room and that the vent pipe did
not extend above the eaves of the building as required by statute and the regulations of the
Liquefied Petroleum Board of Nevada, but instead terminated outside the exterior wall
several feet below the eaves.
Although Hale found products of combustion spilling into room N he did not find any
trace of carbon monoxide even with all the doors and windows closed. The respondent,
Marvin F. Porteous, although aware that the vent to room N as well as the vents from many
of the other rooms of the Sinnott Motel were not properly installed and maintained, continued
to furnish propane gas to M. C. Sinnott for use at the motel.
Appellant Mary G. Price brought suit as administratrix of the Estate of Delbert Green
against M. C. Sinnott and Hilda Sinnott, owners and operators of the Sinnott Motel, and
Marvin F. Porteous, doing business as Valley Propane Company, who supplied liquefied
petroleum gas to the Sinnotts for use in the motel.
The case was tried before a jury which returned a verdict in favor of the defendants
(respondents) and against the plaintiff (appellant). The appellant moved for a new trial upon
grounds that: (1) There was a manifest disregard by the jury of the instructions of the court;
(2) that the verdict was contrary to the evidence; and (3) that over the plaintiff's specific
objection the court erred when it instructed the jury. The appellant's motion was denied.
This appeal is taken on the grounds that the district court (1) gave a prejudicial instruction
to the jury, and (2) erred in denying appellant's motion for a new trial.
[Headnotes 1, 2]
The present law of this state requires an innkeeper to operate his lodging establishment so
as to reduce to a minimum the possibility of asphyxiation or gas poisoning. The evidence
concerning the venting of the gas heater in room N as well as the death of Delbert Green in
that room as a result of carbon monoxide poisoning show that the obligation was not met.
NRS 447.140
1
and NRS 590.525.
2
Holcomb v. Meeds, 246 P.2d 239 (Kan. 1952); Tomko
v. Feldman, 194 A. 338 (Pa. 1937).
[Headnote 3]
The respondent who supplied the gas to the motel admitted that he had observed the faulty
venting of the gas heaters, that he had called this defect to the attention of certain operators of
the motel and when the operators failed to correct the dangerous situation he continued to
supply liquefied fuel. When a gas company acquires knowledge of a dangerous condition it is
its duty to terminate the supply until the defect is corrected. Miller v. Wichita Gas Co., 33
P.2d 130 (Kan. 1934).
We turn to consider the contention that a prejudicial instruction was given. The instruction
prompting the appellant's complaint involves the legal effect of a violation of a rule
promulgated by the Nevada Liquefied Petroleum Gas Board. That rule provided that natural
draft vents extending through outside walls shall not terminate adjacent to outside walls or
below eaves or parapets. The draft vent extending from room N terminated below the
eaves of the motel and was in violation of the rule. The court instructed the jury that . . . one
who has knowledge of, or who, by the exercise of reasonable diligence, should have
knowledge of, the fact that he is permitting gas appliances to operate in violation of the
foregoing rules and regulations of the Nevada Liquefied Petroleum Gas Board is negligent as
a matter of law. . . .
[Headnote 4]
The appellant's assertion of error in the instruction is based on the fact that knowledge of
the rule is required before liability could be imposed, and urges that a violation of the rule
gives rise to negligence per se without regard to knowledge of the person charged.
____________________

1
NRS 447.140: 1. In every hotel built after July 1, 1957, any room in which a water closet, batbtub or
shower is installed must be ventilated to the outside air by means of a window of at least 3 square feet, unless
satisfactory mechanical ventilation is provided.
2. In hotels built prior to July 1, 1957, without windows in the rooms containing water closets, bathtubs or
showers, suitable ventilation shall be provided as required by the state health officer or his duly authorized
agent.

2
NRS 590.525: All equipment shall be installed and maintained in a safe operating condition and in
conformity with the rules, regulations and specifications adopted, promulgated and published by the board under
NRS 590.515.
of the person charged. We agree that knowledge is not essential. However, we do not agree
that a violation of an administrative regulation is negligence per se, since it lacks the force
and effect of a substantive legislative enactment. Major v. Waverly and Ogden, Inc., 165
N.E.2d 181, 184 (N.Y. 1960); Prosser on Torts, 3rd ed., p. 203.
[Headnotes 5, 6]
We prefer the rule that proof of a deviation from an administrative regulation is only
evidence of negligence; not negligence per se. Neither is proof of compliance with such a
regulation proof of due care as a matter of law, but rather, it is evidence of such care.
Lightenburger v. Gordon, 81 Nev. 553, 583, 407 P.2d 728 (1965). This point of view best
serves all interests since it accords appropriate dignity to administrative rules and
concomitantly affords some leeway for those instances where the rule in issue may be
arbitrary and its violation not necessarily unreasonable.
[Headnote 7]
The jury instruction was, therefore, erroneous in advising that the rule violation was
negligence per se. The error, however, benefited the appellant and could not have influenced
the verdict for the respondents.
We next turn to consider whether the appellant is entitled to a new trial and we conclude
that she is. NRCP 72(a).
3

Initially we believe that there was indeed a manifest disregard by the jury of the
instructions of the court and as a matter of law on that contention alone the trial court was
obligated to grant a new trial.
As reasonable men know, carbon monoxide is not carried around in a flask from which a
draught may be taken from time to time to maintain a comatose condition. The medical
testimony in this case indicated that oxygen is the antidote for carbon monoxide. When Green
checked into the Sinnott Motel he was away from any carbon monoxide producing agency
and he was away from such agencies until he went to room N with its gas operated heater.
____________________

3
NRCP 72(a): Any appealable judgment or order in a civil action or proceeding may be appealed from and
reviewed as prescribed by these rules, and not otherwise. Any party aggrieved may appeal, with or without first
moving for a new trial, and the Supreme Court may consider errors of law and the sufficiency of the evidence,
and may remand for new trial, whether or not a motion for a new trial has been made.
[Headnotes 8, 9]
The giving of instructions to a jury is not merely a perfunctory act steeped in tradition.
They are not given as a trap for the unwary or a springboard upon which error may be
claimed. They are not given to be ignored. They must be meaningful, and they must be
followed by the jury to arrive at a fair and impartial verdict. It is the duty of the jury to be
governed by the instructions and when given they become the law of the case, whether right
or wrong. If the jury does not follow them the verdict must be set aside as contrary to law.
Had the jury followed the instruction on proximate cause
4
and applied that instruction, in
conjunction with the instruction on negligence,
5
to the evidence it would have been
impossible for them to reach the verdict which they reached in this case.
[Headnote 10]
The trial judge is bound by his instructions, and on the motion for a new trial one of his
inquiries should have been: Did the jury follow the instructions? Here it is apparent that the
trial judge did not make that inquiry. The refusal of the trial court to set aside a verdict
entered contrary to its instructions is an error of law and not within the mere discretion of the
trial court. Stetson v. Stindt, 279 F. 209 (CCA3d).
In her motion for a new trial the appellant further contended that there was no evidence to
sustain the verdict and that as to liability she was entitled to prevail as a matter of law and
was at least entitled to a new trial for that reason.
[Headnote 11]
The contention that liability was established as a matter of law was not presented to the
trial court by an appropriate motion under NRCP 50{a).6 At the close of the case the
plaintiff apparently believed that the dispositive issues were issues of fact for the jury to
resolve.
____________________

4
Instruction 23: The term proximate cause means a cause which in a direct unbroken sequence produces the
damage complained of and without which the damage would not have occurred. Negligence is the proximate
cause of the damage when the damage is the natural or probable result of the negligence. Such negligence need
not be the only cause, but it must be one of them and such as might have been reasonably foreseen as leading to
damage of the general nature claimed in this case.

5
Instruction 19: Negligence is the doing of some act which a reasonably careful person would not do, or the
failure to do something which a reasonably careful person would do, actuated by those considerations which
ordinarily regulate the conduct of human affairs. It is the failure to use ordinary care in the management of one's
property or person.
motion under NRCP 50(a).
6
At the close of the case the plaintiff apparently believed that the
dispositive issues were issues of fact for the jury to resolve. Even the issue of proximate
cause is almost always an issue of fact rather than one of law. Barreth v. Reno Bus Lines,
Inc., 77 Nev. 196, 198, 360 P.2d 1037 (1961). This is so whether the negligence charged is
negligence per se or ordinary negligence. Mahan v. Hafen, 76 Nev. 220, 225, 351 P.2d 617
(1960); Paso Builders, Inc. v. Hebard, 83 Nev. 165, 172, 426 P.2d 731 (1967). It is solidly
established that when there is no request for a directed verdict, the question of the sufficiency
of the evidence to sustain the verdict is not reviewable. Christensen v. Stuchlik, 427 P.2d 278
(Idaho 1967); Poland v. Parsekian, 195 A.2d 660 (N.J.App. 1963); Tsai v. Rosenthal, 297
F.2d 614 (8 Cir. 1961); Massaro v. United States Lines Company, 307 F.2d 299 (3 Cir.
1962); Harnik v. Lilley, 167 F.2d 159 (8 Cir. 1948). A party may not gamble on the jury's
verdict and then later, when displeased with the verdict, challenge the sufficiency of the
evidence to support it.
[Headnotes 12-14]
However, an exception to this rule is found where there is plain error in the record or if
there is a showing of manifest injustice. DeFonce Construction Company v. City of Miami,
256 F.2d 425 (5 Cir. 1958). This case comes within the exception to the rule. The obvious
disregard, by the jury, of the court's instructions resulting in a verdict which is shocking to the
conscience of reasonable men is nothing short of manifest injustice. Of equal standing is the
well-established rule that where there is a substantial conflict in the evidence the appellate
court will not disturb the court below. However, since Reed v. Reed, 4 Nev. 395, was decided
in 1868, this court has recognized an exception to that rule.
____________________

6
NRCP 50(a): A motion for a directed verdict may be made at the close of the evidence offered by an
opponent or at the close of the case. A party who moves for a directed verdict at the close of the evidence
offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved
the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict
which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed
verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting
a motion for a directed verdict is effective without any assent of the jury. If the evidence is sufficient to sustain a
verdict for the opponent, the motion shall not be granted.
Dalton v. Dalton 14 Nev. 419 (1880); Beck v. Thompson, 22 Nev. 109, 36 P. 562 (1894);
Watt v. Nevada Cen. R. Co., 23 Nev. 154, 44 P. 423, 46 P. 52, 726 (1896); Smith v. Goodin,
46 Nev. 229, 206 P. 1067 (1922); Walker Brothers Bankers v. Janney, 52 Nev. 440, 290 P.
413 (1930); Consolazio v. Summerfield, 54 Nev. 176, 10 P.2d 629 (1932); Valverde v.
Valverde, 55 Nev. 82, 26 P.2d 233 (1933); Stephens v. First Nat. Bank of Nevada, 65 Nev.
352, 196 P.2d 756 (1948); Davidson v. Streeter, 68 Nev. 427, 234 P.2d 793 (1951); Cram v.
Wes Durston, Inc., 68 Nev. 503, 237 P.2d 209 (1951); Kitselman v. Rautzahn, 68 Nev. 342,
232 P.2d 1008 (1951).
In Watt v. Nevada Cen. R. Co., supra, the court said: Notwithstanding the
well-established rule which has been so often announced by this and other courts that, where
there is a substantial conflict in the evidence the appellate court will not disturb the decision
of the court below,' there is another rule as well established and of as binding force, both in
actions at law and in equity, addressed to the conscience and judgment of the court of last
resort, which cannot be ignored without doing violence to the plain principles of common
justice in many cases, to wit: If there be no substantial conflict in the evidence upon any
material point and the verdict or decision be against such evidence upon such point, or where
the verdict or decision strikes the mind, at first blush, as manifestly and palpably contrary to
the evidence, the supreme court will direct a new trial.' (Hayne, New Trial and Appeal, sec.
288, and citations; Barnes v. Sabron, 10 Nev. 217.)
We believe that the manifest injustice in this case is clearly evident and that it falls within the
exception to the general rule and we must direct the trial court to grant a new trial.
For the reasons cited we reverse this case and direct that the trial court grant a new trial.
Collins, C. J., and Craven, D. J., concurring:
We concur in the authorities, reasoning and result announced in Mr. Justice Batjer's
opinion. However, there are some additional reasons which should be expressed in order that
the import of that opinion not be misinterpreted.
There is no doubt under present authority, as stated in Mr. Justice Thompson's dissent, that
absent a motion for directed verdict under NRCP 50(a) we may not review the sufficiency of
the evidence upon appeal. But that is not the issue on this appeal. Considering every
miniscule part of evidence and testimony before the lower court, nothing refutes the physical
facts that Delbert Green died in Room N of the Sinnott Motel from carbon monoxide
poisoning and the only source of that poison was the improperly vented gas wall heater.
that Delbert Green died in Room N of the Sinnott Motel from carbon monoxide poisoning
and the only source of that poison was the improperly vented gas wall heater. From the record
on appeal before us, those physical facts are conclusive.
1
That is the only explanation of his
death.
We seriously considered ordering the lower court to enter a judgment n.o.v. in favor of
appellant on the issue of liability and remand of the case for retrial only upon the issue of
damages. That action would have effectively precluded the difficulty suggested by Mr. Justice
Thompson in the last paragraph of his dissent.
It is possible, however, on retrial defendants may be able to present additional evidence
not presented in the first trial which conceivably could change the conclusiveness of the
physical facts in the present record. We think, in fairness, they should be given that
opportunity.
There would be extreme prejudice to a party in an unusual case such as this where counsel,
through lack of legal appreciation, oversight or carelessness fails to make a motion for a
directed verdict and judgment n.o.v., thereby ostensibly precluding us from reviewing the
sufficiency of the evidence in the lower court. We are compelled to ameliorate the
absoluteness of that interpretation of Rule 50 in the unusual situation presented by this case.
That narrow exception is well stated by Mr. Justice Batjer in his opinion and supported by
prior decisions of this court.
We believe that on retrial of this case counsel for plaintiff would not fail again to make a
motion for a directed verdict and judgment n.o.v. if the evidence presented was virtually the
same as in the first trial, thereby preserving for this court's consideration the sufficiency of the
evidence.
Thompson, J., with whom Zenoff, J., concurs, dissenting:
1. The result reached by the majority does not follow the reasoning expressed. The
opinion holds that liability was established as a matter of law; that it was impossible for the
jury to find for the defendants. If this is the case another trial on that issue should not be
ordered. Such an order concedes that liability is a fact issue for jury resolution upon retrial. It
is inappropriate to order another trial simply on the hope that a different result might be
reached which will be more pleasing.
____________________

1
Physical facts which speak the truth unerringly cannot be overcome by oral testimony. Hart v. Kline, 61
Nev. 96 at 101, 116 P.2d 672 (1941). See also Weck v. Reno Traction Co., 38 Nev. 285, 149 P. 65 (1915).
2. Liability is a fact question in this case. That question was fully explored and the jury
found for the defendants. There is substantial evidence to support that determination. The
evidence on proximate cause was conflicting. Delbert Green apparently died of carbon
monoxide poisoning. It was the plaintiff's theory that only the improper venting of the gas
heater in Green's motel room could explain the introduction of carbon monoxide into his
system. Yet, it is uncontradicted that the bathroom window was open when the deceased was
found. The plaintiff offered an expert witness who inspected and tested the heater on two
different occasion shortly after the tragedy. He found no carbon monoxide present in the air
on either occasion and concluded that the heater was not defective. These tests were made
with the room closed, the windows and doors shut, and the heater turned to full capacity. The
witness stated that it would be conjectural to conclude that carbon monoxide fumes
emanated from the gas heater on the date of death. This is relevant and substantial evidence.
It casts doubt upon the cause of death. The jury was free to accept that evidence and find that
the plaintiff had failed to sustain her burden of proof on the issue of causation.
3. As noted in the majority opinion, the contention that liability was established as a
matter of law was not presented to the trial court by appropriate motion under Rule 50. The
failure to do so forecloses a challenge to the sufficiency of the evidence on appeal. The
authorities cited in the majority opinion so declare. Having failed to move for a directed
verdict on liability, the plaintiff was precluded from later moving for a judgment n.o.v.
Lehtola v. Brown Nevada Corp., 82 Nev. 132, 412 P.2d 972 (1966). Despite her procedural
default she suggests that we may now review the sufficiency of the evidence since she did
move for a new trial upon that ground, among others. This suggestion is without substance
since Rule 59 relating to new trials was amended in 1964 to eliminate as a ground for new
trial insufficiency of the evidence to justify the verdict. Sierra Pacific Power Co. v. Day, 80
Nev. 224, 391 P.2d 501 (1964). The purpose of that amendment was to preclude a trial court
from substituting its view of the evidence for that of the jury in a case where the losing party
had failed to move for a directed verdict, or the court on its own had not directed a verdict. If
the trial court is precluded from granting a new trial in such a case, surely this court, further
removed from the atmosphere of the trial, is foreclosed from granting such relief.
4. The key to the majority opinion is the statement we believe that the manifest
injustice in this case is clearly evident . . ."
believe that the manifest injustice in this case is clearly evident . . . This is a subjective
evaluation of the evidence, an intrusion upon the jury function, and an activity in which this
court should not engage. If the defendants win a second time and the matter is submitted for
review, will the injustice continue to be manifest? Perhaps in that event a majority of this
court will conclude that two trials of a fact question is about all that our system should offer.
We believe that one trial is enough.
____________
85 Nev. 611, 611 (1969) Nolan v. State Dep't of Commerce
JOE NOLAN, dba NOLAN REALTY CO., BROKER'S LICENSE NO. 1025, Appellant, v.
THE STATE OF NEVADA, DEPARTMENT OF COMMERCE, REAL ESTATE
DIVISION, Respondent.
No. 5774
November 4, 1969 460 P.2d 153
Appeal from the Eighth Judicial District Court, Clark County; Alvin N. Wartman, Judge.
From a decision of the lower court affirming a decision of the state Real Estate Advisory
Commission suspending a real estate license, the realtor appealed. The Supreme Court,
Collins, C. J., held that evidence sustained the conclusion of the commission that the realtor,
who induced vendors to substitute a purchase contract which he presented for a contract
which vendors had previously accepted from other purchasers through another realtor, had
not earned his commission before inducing substitution and was motivated by personal gain
in inducing substitution.
Affirmed.
Joseph C. Crawford, of Las Vegas, for Respondent.
1. Brokers.
On appeal to district court from decision of Real Estate Advisory Commission suspending real estate
license, district court properly limited its review to determining whether there had been abuse of discretion
on part of commission, and Supreme Court similarly limited its own review on appeal from district court.
NRS 645.630, subd. 11, 645.760, subd. 3.
2. Brokers.
Evidence sustained conclusion of state Real Estate Advisory Commission, which suspended broker's
license for three months, that realtor who induced vendors to substitute purchase contract which he
presented for contract which vendors had previously accepted from other purchasers through another
realtor had not earned commission before inducing substitution and was motivated by personal gain in
inducing substitution. NRS 645.630, subds. 1, 2, 9, 11, 18, 19, 645.760, subd. 3.
OPINION
This is an appeal from a district court judgment affirming a decision of the Nevada Real
Estate Advisory Commission suspending appellant's real estate license for three months. We
affirm that judgment.
Appellant, a licensed realtor, obtained a multiple listing from Howard K. and Joyce A.
West in July, 1965, for sale of their home in Las Vegas. This exclusive agency agreement
expired in October and an open listing agreement, which was nonexclusive, was then entered
into. On January 10, 1966, Patricia Stevens, another licensed realtor, also obtained an open
listing on the same property.
On the evening of January 12, Mrs. Stevens presented two offers to the Wests. One was
rejected outright. The other, which was financially complex in that it required an expression
of opinion by the realtor of the net return to the sellers, was considered by the Wests.
The same evening, appellant's salesman called the Wests with an offer from a different
purchaser, which, among other things, required the purchaser to apply and qualify for an
FHA loan.
The next day, January 13, Mrs. Stevens contacted the Wests regarding her buyer's offer,
and after correcting certain information affecting the net return to sellers, Mr. West accepted,
and signed an agreement. The following day, Mrs. West accepted the offer and signed the
agreement.
On January 15, after appellant was informed of the Wests' acceptance of the offer of Mrs.
Stevens' client, he contacted Mr. West, who called at his office to discuss the Stevens offer.
Appellant expressed the opinion to Mr. West that the Stevens' offer was not correct and that a
greater net return could be realized through appellant's buyer. Appellant urged the Wests to
disregard the Stevens' offer and to accept his. Mr. West expressed concern about a lawsuit
with the Stevens' client and the inability of appellant's client to secure the FHA loan.
expressed concern about a lawsuit with the Stevens' client and the inability of appellant's
client to secure the FHA loan. Appellant assured Mr. West that if a lawsuit resulted he would
bear the costs of West's defense and if the FHA loan did not materialize he would purchase
the West's property personally. Upon these assurances from appellant in writing, West agreed
to sell to appellant's purchasers. A lawsuit was commenced which finally resulted in Wests
selling to the Stevens purchasers. Appellant received no commission for his effort.
The Real Estate Division of the Department of Commerce of the State of Nevada filed a
complaint against appellant in March, 1966, charging him with violating the provisions of
NRS 645.630(1), (2), (9), (11), (18), and (19) and also Article 25, Part III, of the Code of
Ethics of the National Association of Real Estate Boards which has been adopted by the Real
Estate Division of the State Department of Commerce. After a lawful hearing, appellant was
found to have violated NRS 645.630(11)
1
and his real estate license was therefore revoked
for three months.
That decision was appealed to the district court, which ruled: The Court is of the opinion
that there is evidence in the record to support such a finding and, while the Court might not, if
sitting as a Commission and hearing the evidence, have felt justified in taking the action of
the Real Estate Commission, this Court cannot say that the Real Estate Commission has
abused its discretion as a matter of law. Therefore, the Court has no alternative but to affirm
the decision of the Commission.
From that adverse decision, appeal was taken to this court.
[Headnote 1]
The district court limited its decision to whether there had been an abuse of discretion on
the part of the commission in making such decision as required by NRS 645.760(3). We
agree that was proper and so limit our own review. The decisive issue in this appeal is as
follows: Was there sufficient evidence presented at the hearing before the Nevada Real
Estate Advisory Commission to support the Commission's finding that the substitution of
contracts in this case was motivated by the personal gain of appellant?
____________________

1
645.630 GROUNDS FOR DISCIPLINARY ACTION AGAINST LICENSEES. The commission shall
have the power to suspend, revoke or reissue, subject to conditions, any license issued under the provisions of
this chapter at any time where the licensee has, by false or fraudulent representation, obtained a license, or where
the licensee, whether or not acting as a licensee, is deemed to be guilty of:
. . .
11. Inducing any party to a contract, sale or lease to break such contract for the purpose of substituting in
lieu thereof a new contract with the same principal or different principal, where such substitution is motivated by
the personal gain of the licensee.
evidence presented at the hearing before the Nevada Real Estate Advisory Commission to
support the Commission's finding that the substitution of contracts in this case was motivated
by the personal gain of appellant?
Appellant contends there was no evidence before the Real Estate Commission to support
its finding that the substitution of contracts on January 15, 1966, was motivated by his
personal gain. He said he had already earned his commission on January 12 when he
presented his client's offer to the Wests and stood to make no further gain when he induced
the Wests to sell to his client after they had entered into an agreement with Mrs. Stevens'
buyers.
It is the law of this state that a broker has earned his commission when he has provided a
person who is ready, willing, and able to purchase the property upon the terms and conditions
prescribed by the seller in the listing agreement. This is so even if the sale is not completed or
the seller refuses to perform. Evans v. Dorman, 81 Nev. 319, 402 P.2d 652 (1965); Lukey v.
Smith, 77 Nev. 402, 365 P.2d 487 (1961); Engel v. Wilcox, 75 Nev. 323, 340 P.2d 93 (1959).
Within the general rule, able means financially able. Pellaton v. Brunski, 231 P. 583
(Cal.Dist.Ct.App. 1924); Shaw v. Chiles, 71 S.E. 745 (Ga.Ct.App. 1911); See 1 Words and
Phrases, Able, p. 194. In Walton v. Hudson, 79 N.E.2d 921 (Ohio Ct.App. 1947), the court
held that when a broker produces a buyer who does not have all the necessary cash in hand, to
prove his buyer able to purchase, he must show that at the time the offer was made the buyer
had the ability to command the necessary funds to close the deal.' Id. at 924. To do that,
the court said that in addition to money in possession and bank credit, consideration should
be given to the buyer's assets, credit, financial rating, enforceable agreements for loans,
and anything else indicating ability or lack of ability on his part to command the requisite
funds at the required time.' Id. (Emphasis ours). In Globerman v. Lederer, 117 N.Y.S.2d 549
(App.Div. 1952), the holding was that a proposed purchaser is not able, when he is
depending upon third parties who are in no way bound to furnish the funds, to make the
purchase.' See also Pellaton v. Brunski, supra, in which the court said: Where the purchaser
is relying on a loan to make up the amount required to complete his purchase it must appear
that the party offering to advance the sum has the financial ability so to do and that he has
entered into a binding agreement to furnish the sum, and evidence of a mere verbal promise
by a person, without consideration to do so, is insufficient to show ability in the purchaser
to complete the transaction."
evidence of a mere verbal promise by a person, without consideration to do so, is insufficient
to show ability in the purchaser to complete the transaction. 231 P. at 584. See also Suhre v.
Busch, 120 S.W.2d 47 (Mo. 1938); and Saltzman v. McCombs, 71 Nev. 93, 281 P.2d 394
(1955).
The record before the lower court and this court clearly shows that appellant's buyers had
no binding commitment from the FHA when their offer was made to the Wests on January
12. The record does show that appellant's purchasers submitted their application to the FHA
on February 2, 1966, the FHA requested further information on February 8, and the loan was
approved on February 17. The record also shows that the Wests were so concerned about that
matter that appellant agreed in writing to purchase the property himself if his purchasers
could not qualify for the loan. Appellant therefore had not earned his commission on January
12 as he contends.
[Headnote 2]
Thus, the evidence does support the finding that appellant was motivated by personal gain,
his commission, when he induced a substitution of contracts by the Wests.
Other assignments of error are urged by appellant, but since they were not the basis of the
Real Estate Board's disciplinary action against appellant, nor would they change the outcome
of the appeal, we decline to discuss them.
Judgment affirmed.
____________
85 Nev. 615, 615 (1969) Hanley v. Sheriff
THOMAS BURKE HANLEY, Appellant, v. SHERIFF
OF CLARK COUNTY, NEVADA, Respondent.
No. 5911
November 4, 1969 460 P.2d 162
Appeal from order of the Eighth Judicial District Court, Clark County, denying habeas
corpus; Thomas J. O'Donnell, Judge.
The lower court denied a petition for writ of habeas corpus and petitioner appealed. The
Supreme Court, Thompson, J., held that fact that witness for state testified in detail about
accused's participation in murder and later recanted his testimony was insufficient to
establish that prosecution knowingly used false testimony at preliminary hearing.
accused's participation in murder and later recanted his testimony was insufficient to establish
that prosecution knowingly used false testimony at preliminary hearing.
Affirmed.
Harry E. Claiborne and Albert M. Dreyer, of Las Vegas, for Appellant.
R. Johns, Deputy District Attorney, Clark County, for Respondent.
Due process forbids state from deliberately misrepresenting truth and conviction that rests in part on such
false evidence must be set aside.
2. Criminal Law.
Instruction by prosecutor to his witness to withhold significant evidence favorable to accused requires
setting aside of verdict.
3. Criminal Law.
If state knows that its witness has testified falsely on point relevant to credibility of that witness, and fails
to correct that falsehood, conviction is constitutionally infirm.
4. Criminal Law.
Standards prohibiting state from misrepresenting truth, or instructing its witness to withhold significant
evidence favorable to accused, or failing to disclose that its witness testified falsely apply to preliminary
examination.
5. Criminal Law.
Fact that witness for state testified in detail about accused's participation in murder and later recanted his
testimony was insufficient to establish that prosecution knowingly used false testimony at preliminary
hearing. NRS 195.020.
OPINION
Following a preliminary examination, Thomas Burke Hanley was ordered to stand trial in
the district court for the murder of Ralph Howard Alsup. The evidence produced at that
examination supports a reasonable inference that Hanley aided and abetted another to kill
Alsup. NRS 195.020; Hanley v. State, 85 Nev. 154, 451 P.2d 852 (1969). Notwithstanding
this fact, it is Hanley's contention that he is illegally restrained of his liberty and cannot
constitutionally be compelled to stand trial in the district court since some of the testimony
offered at the preliminary examination by the State was false and perjured and the State
knew it.
was false and perjured and the State knew it. This contention together with supporting
authorities [Miller v. Pate, 386 U.S. 1 (1966); Napue v. Illinois, 360 U.S. 264 (1959); Alcorta
v. Texas, 355 U.S. 28 (1957)] was presented to the district court by a petition for habeas
corpus. That court denied habeas relief and this appeal followed. We affirm the district court.
[Headnotes 1-3]
1. Due process forbids the state from deliberately misrepresenting the truth, and a
conviction that rests in part upon such false evidence must be set aside. Miller v. Pate, supra.
Equally offensive is an instruction by the prosecutor to his witness to withhold significant
evidence favorable to the accused. When that evidence is not revealed, the conviction cannot
stand. Alcorta v. Texas, supra. If the state knows that its witness has testified falsely on a
point relevant to the credibility of that witness, and fails to correct that falsehood, the
conviction is constitutionally infirm. Napue v. Illinois, supra.
[Headnote 4]
The mentioned standards of fairness apply to the trial of a criminal case. Although a
preliminary examination is not a trial (State v. Fuchs, 78 Nev. 63, 368 P.2d 869 (1962)], we
think that the same standards are applicable at that stage of the prosecution.
In the cited United States Supreme Court cases the prosecution knew of the wrong and
willfully participated in it. In the case at hand the record does not establish such knowledge.
For this reason, those cases are inapposite.
[Headnote 5]
It is not useful to recite the evidence to which the petitioner refers. A witness for the State
testified in detail about Hanley's participation in the murder of Alsup. Following the
preliminary examination he recanted and stated that all of his prior testimony was false. One
cannot discern whether he told the truth originally or later. In any event, there is nothing in
the record from the prosecution to show that it knowingly offered false testimony. Such
evidence was present in the cited United States Supreme Court cases. We shall not infer such
knowledge in the prosecution from the testimony of the recanting witness alone.
Affirmed.
____________
85 Nev. 618, 618 (1969) Shelton v. Lamb
LEO E. SHELTON, Appellant, v. RALPH LAMB,
Sheriff, Clark County, Nevada, Respondent.
No. 5873
FREDDIE L. PORTER, Appellant v. RALPH LAMB,
Sheriff, Clark County, Nevada, Respondent.
No. 5874
November 5, 1969 460 P.2d 156
Appeals from an order denying petitions for writs of habeas corpus, Eighth Judicial
District Court, Clark County; Alvin N. Wartman, Judge.
Petitioners sought writs of habeas corpus. The lower court denied relief, and petitioners
appealed. The Supreme Court, Batjer, J., held that continuance beyond 15-day limitation for
preliminary examination because several different charges were lodged against accuseds and
preliminary examination may have been protracted and justice's court calendar was in
crowded condition was for good cause.
Affirmed.
James D. Santini, Public Defender, of Clark County, for Appellants.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, of Clark
1. Criminal Law.
Condition of calendar pendency of other cases, public expense, health of judge and convenience of court
are good causes for continuance. NRS 171.196(2).
2. Criminal Law.
Continuance beyond 15-day limitation for preliminary examination because several different charges
were lodged against accuseds and preliminary examination may have been protracted and justice's court
calendar was in crowded condition was for good cause. NRS 171.196(2).
OPINION
By the Court, Batjer J.:
The appellants, Leo E. Shelton and Freddie L. Porter, were arrested on December 14,
1968, on the charges of assault with a deadly weapon with intent to do bodily harm,
kidnapping, robbery and larceny from the person. Porter appeared in the Justice's court on
December 19, 1968, and Shelton appeared on December 20, 196S.
on December 20, 1968. Both requested a preliminary examination within the time allowed by
NRS 171.196(2),
1
and the hearings were set for December 30, 1968. On that date the state
moved for a continuance because of the absence of the state's key witness. Over the
objections of the appellants the hearings were continued until January 2, 1969 at the hour of
3:00 p.m. At the appointed hour on January 2, 1969, both the state and the appellants were
ready to proceed, however, the justice of the peace sua sponte vacated the setting and
continued the matter to January 6, 1969 at 2:00 p.m. for reassignment. The reason stated for
the continuance was the overcrowded condition of that court's calendar.
On January 3, 1969, the appellants filed petitions for writs of habeas corpus claiming that
they were being illegally detained because the court had, without good cause, continued the
preliminary examination in violation of NRS 171.196(2).
At the hearing, in the consolidated cases, on the petitions for the writs of habeas corpus,
the clerk of the justice's court was called as a witness for the state and she testified that on the
afternoon of January 2, 1969 the justice's court calendar was in a crowded condition. The trial
court also had before it the justice's court calendar for January 2, 1969, as well as the
transcript of the proceeding in these cases on that day.
The writ was denied and these appeals were taken. We have consolidated these appeals
because they present the same issues. These appellants contend that the district court erred in
denying habeas because the justice of the peace had violated NRS 171.196(2). We disagree.
[Headnote 1]
The appellants seem to rest their contention upon the ground that the continuance was not
for good cause because the justice of the peace who ordered the continuance failed to call in
the other justice of the peace who also served in the township, or a justice of the peace from a
contiguous township. They also quibble over whether or not the justice of the peace was
working on criminal matters until 5:00 p.m. on January 2, 1969, but disregard the well-settled
law of this state that the condition of the calendar, the pendency of other cases, the public
expense, the health of the judge, and even the convenience of the court are good causes for a
continuance.
____________________

1
NRS 171.196(2): If the defendant does not waive examination the magistrate shall hear the evidence
within 15 days, unless for good cause shown he extends such time. Unless the defendant waives counsel,
reasonable time shall be allowed for counsel to appear.
In State v. Squier, 56 Nev. 386, 54 P.2d 227 (1936), this court said:
. . . [T]hat the provision of the Constitution which requires that all defendants are entitled
to a speedy trial is contingent on existing conditions and that if the facilities of the Court are
such that they cannot expeditiously and harmoniously and safely proceed to trial that that
provision of the Constitution does not require the waiving and disregard of these powers in a
speedy trial; . . .
. . . [A] defendant cannot require of the trial court that it disregard the condition of its
calendar, the pendency of other cases, public expense, and the convenience or health of judge,
court officers, and jurors. Oberle v. Fogliani, 82 Nev. 428, 420 P.2d 251 (1966); Ex parte
Groesbeck, 77 Nev. 412, 365 P.2d 491 (1961); Ex parte Hansen, 79 Nev. 492, 387 P.2d 659
(1963).
The record reflects that there were several different charges lodged against these appellants
and it can reasonably be inferred therefrom that the preliminary examination might well have
been protracted.
[Headnote 2]
The justice of the peace made a considered determination that the justice's court calendar
was not in a condition to proceed with the appellants' preliminary examination. The crowded
condition of the calendar was good cause for a continuance beyond the 15 day limitation of
NRS 171.196(2). The respondent has carried its burden of showing good cause for the delay.
Lee v. Sheriff, 85 Nev. 379, 455 P.2d 623 (1969); Ex parte Morris, 78 Nev. 123, 369 P.2d
456 (1969); Ex parte Hansen, supra; Oberle v. Fogliani, supra.
The order of the district court denying the appellants' petitions for writs of habeas corpus is
affirmed.
____________
85 Nev. 620, 620 (1969) City No. Las Vegas v. Central Tel. Co.
CITY OF NORTH LAS VEGAS, a Municipal Corporation, Appellant, v. CENTRAL
TELEPHONE CO., a Corporation, Respondent.
No. 5902
November 6, 1969 460 P.2d 835
Appeal from judgment of the Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Action by telephone company for declaratory judgment that ordinance undertaking to
increase public utility license fees was invalid. The lower court entered judgment for
telephone company and city appealed. The Supreme Court, Thompson, J., held that where
ordinance granting franchise to telephone company provided that company should pay to city
one percent of its gross revenue from specified charges and that such payments should be in
lieu of charges made for license fee, later ordinance imposing five percent charge as license
fee was void as against telephone company by reason of constitutional provisions against
laws impairing obligation of contracts.
Affirmed.
Jeffrey I. Shaner, City Attorney, Frank W. Daykin, and Russell W. McDonald, Special City
Attorneys, North Las Vegas, for Appellant.
McNamee, McNamee & Rittenhouse, of Las Vegas, for Respondent.
Where ordinance granting franchise to telephone company provided that company should pay one percent
of gross revenue and that such payments should be in lieu of charges made for license fee, later ordinance
imposing charge of five percent of revenues as a license fee was void as against company by reason of
constitutional prohibitions against laws impairing public obligation of contracts and it was immaterial that
one percent charge under franchise was for regulation whereas five percent charge under later ordinance
was for revenue. Const. art. 1, 15; U.S.C.A.Const. art. 1, 10; Stats. 1953, ch. 283; NRS 268.095.
A franchise is a contract within meaning of constitutional provisions prohibiting laws impairing
obligation of contracts. Const. art. 1, 15; U.S.C.A.Const. art. 1, 10.
3. Telecommunications.
City in granting franchise to telephone company could place restrictions upon license fee charges to be
made, as against city's contention that power to tax was inalienable either by statute or contract. Const.
art. 1, 15; U.S.C.A.Const. art. 1, 10.
OPINION
Central Telephone Co. provides telephone service to the inhabitants of North Las Vegas
under a 50 year franchise granted to its predecessor by Ordinance No. 163, adopted May 5,
195S.
5, 1958. This ordinance provides, among other things, that the telephone company shall pay
to the City for supervision and inspection and not for revenue one percent of its gross
revenue from specified charges, and that such payments shall be in lieu of the charges made
for license fee under City of North Las Vegas Ordinance.
On July 1, 1968, the City adopted Ordinance No. 371, effective July 15, 1968, which
undertook to increase the public utility license fees for the purpose of providing sufficient
non-property tax revenue, and imposed for such license five percent of essentially the
same revenues specified in Ordinance No. 163.
In this declaratory judgment action instituted by the telephone company, the district court
ruled that Ordinance No. 371 would, if enforced against the Company, breach the binding
contract of Ordinance No. 163, and therefore declared Ordinance No. 371 void as against the
Company and enjoined the City from enforcing it. From this judgment the City has appealed.
We affirm.
[Headnote 1]
The dispositive issue is whether Ordinance No. 371 is void as against the Company by
reason of federal and state constitutional prohibitions against passing a law impairing the
obligation of contracts. Nev. Const. art 1, 15; U.S. Const. art. 1, 10. This issue arises by
reason of the provision in the franchise that the one percent charge thereunder was in lieu of
any charges for a license fee, whereas the five percent charge in the later ordinance was
imposed as a license fee.
1

[Headnote 2]
A franchise is a contract (Harmon v. Tanner Motor Tours, 79 Nev. 4, 377 P.2d 622
(1963)), and constitutionally protected against impairment. The Trustees of Dartmouth
College v. Woodward, 17 U.S. (4 Wheat) 518 (1819); City of Chattanooga v. Tennessee
Electric Power Co., 112 S.W.2d 385 (Tenn. 1938). The charter of North Las Vegas grants the
right to engage in public utilities businesses or issue franchises for the same. 1953 Stats.
Nev. 393, 394. The franchise granted to the telephone company here did not reserve to the
City a right to amend. Had such reservation been made and an amendment enacted, a
different issue would be presented directed to the reasonableness and good faith of the
City's action.
____________________

1
NRS 268.095 authorizes a city to impose a license tax for revenues or for regulation, or both.
Consequently, we regard as immaterial the fact that the one percent charge under the franchise was for
regulation, whereas the five percent charge under the later ordinance was for revenue. In each instance the
charge was a license tax within the statute.
an amendment enacted, a different issue would be presented directed to the reasonableness
and good faith of the City's action. 6 McQuillin, Muni. Corp. 21.06 at 202 (3d ed.). Neither
may it be said that the City's intention to deprive itself of an increased license tax was not
expressed in clear terms (cf. St. Louis v. United Railways Co., 210 U.S. 266 (1908)), since
the franchise expressly provided that the amounts paid hereunder shall be in lieu of the
charges made for a license fee. As noted in St. Louis v. United Railways Co., supra, the
right [to tax] still exists unless there is a distinct agreement, clearly expressed, that the sums
to be paid are in lieu of all such exactions. Id. at 274. A clear expression appears in the
franchise at hand.
[Headnote 3]
Arguing by analogy to cases involving the power of eminent domain and the police power,
the City urges that the power to tax is likewise an essential attribute of sovereignty (Matthews
v. State ex rel. Nevada Tax Comm'n, 83 Nev. 266, 428 P.2d 371 (1967)), and is inalienable
either by statute or contract. The analogy is not sound since the eminent domain and police
power cases do not concern themselves with the constitutional prohibitions against the
impairment of the obligation of contracts.
Since the money to be paid under the franchise granted was clearly stated to be in lieu of a
license charge, and since the City did not reserve unto itself the right to amend, we are
compelled to void Ordinance No. 371 as against the telephone company as an impairment of
the obligation of contract.
Affirmed.
Collins, C. J., Batjer and Mowbray, JJ., and Gezelin, D. J., concur.
____________
85 Nev. 623, 623 (1969) Rush v. Rush
MARGO G. RUSH, aka MARGO GOUMAND, aka MARGO GOUMAND HINES, aka
MARGO G. MASON, aka MARGO G. TORRES, Appellant, v. W. E. BILL RUSH,
Respondent.
No. 5783
November 7, 1969 460 P.2d 844
Appeal from the Eighth Judicial District Court, Clark County; Howard W. Babcock,
Judge.
85 Nev. 623, 624 (1969) Rush v. Rush
Suit on property settlement agreement seeking unpaid installments of alimony. The lower
court entered judgment for plaintiff, and defendant appealed. The Supreme Court, Collins, C.
J., held that where wife agrees to pay husband alimony by contract, which is then offered to
court for its approval and adoption in divorce action, no public policy of state is violated, so
long as there is no advantage taken of relationship of trust and confidence existing between
parties.
Affirmed.
Calvin C. Magleby, of Las Vegas, for Appellant.
Gifford, Porter & Devlin, of Las Vegas, for Respondent.
1. Husband and Wife.
Where wife agrees to pay husband alimony by contract, which is then offered to court for its approval and
adoption in divorce action, no public policy of state is violated, so long as there is no advantage taken of
relationship of trust and confidence existing between parties. NRS 123.070, 123.080.
Record did not establish that there had been an abuse of confidential relations between husband and wife
at time wife agreed to pay husband alimony by contract, which was then offered to court for its approval
and adoption in divorce action. NRS 123.070, 123.080.
Evidence established correctness of ruling that promises of respective parties to divorce action in
connection with property settlement was supported by adequate consideration which resulted in binding
contract between them. NRS 123.070, 123.080.
4. Evidence.
Evidence extrinsic to a written contract is properly admitted to determine circumstances under which
parties contracted and purpose of contract.
5. Evidence.
Records of divorce proceedings wherein wife's agreement to pay husband alimony had been given
approval and adopted were properly admitted in subsequent suit brought by husband to enforce agreement,
wherein defenses were that agreement was unenforceable because contrary to public policy and that
agreement was without consideration.
OPINION
This is an appeal from a judgment in favor of respondent (plaintiff-husband) and against
appellant (defendant-wife). We affirm that judgment.
85 Nev. 623, 625 (1969) Rush v. Rush
The parties formerly were husband and wife. Marital difficulties ensued, and on March 27,
1963, they entered into an agreement which recited the existence of those difficulties and the
fact of a pending divorce suit. In that agreement, they stated that it was the desire of the
parties to settle disputed property rights. There were no children born of the marriage.
The agreement divided certain real and personal property between appellant and
respondent and further provided that the wife should pay alimony to husband in the sum of
$1,000 per month from April, 1963, to April, 1973. There were other qualifications which are
not material to this discussion.
Appellant-wife obtained a divorce from respondent-husband the same day the agreement
was entered into. The decree of divorce provided that the agreement should survive the
decree. In an earlier appeal, this court held the lower court must determine the support
provisions under the agreement rather than the decree. Rush v. Rush, 82 Nev. 59, 410 P.2d
757 (1966).
Appellant paid respondent the alimony payments through August, 1964, but then
stopped. Respondent sued upon the agreement, seeking unpaid installments of alimony. To
this suit, appellant urged as affirmative defenses that (1) the agreement was unenforceable
because contrary to Nevada public policy, and (2) there was no consideration for the
agreement. At the trial of this action upon the agreement, the lower court, over appellant's
objection, admitted records of the divorce proceeding and entered judgment in favor of
respondent-husband in the sum of $37,000, together with interest. We affirm that judgment.
We need not consider, nor rule upon the question whether the lower court could have
awarded alimony to a husband against a wife as part of the divorce decree, separate and
distinct from the parties' agreement, absent a showing that the husband was infirm, disabled
or incompetent. NRS 123.110. That question is not before us in this case.
1. Where, however, a wife agrees to pay a husband alimony by contract, which is then
offered to a court for its approval and adoption in a divorce action, a totally different question
arises.
NRS 123.080 provides as follows: CONTRACT ALTERING LEGAL RELATIONS:
SEPARATION AGREEMENT; CONSIDERATION; INTRODUCTION IN EVIDENCE IN
DIVORCE ACTION.
1. A husband and wife cannot by any contract with each other alter their legal relations
except as to property, and except that they may agree to an immediate separation and
may make provisions for the support of either of them and of their children during such
separation.
85 Nev. 623, 626 (1969) Rush v. Rush
other alter their legal relations except as to property, and except that they may agree to an
immediate separation and may make provisions for the support of either of them and of their
children during such separation.
2. The mutual consent of the parties is a sufficient consideration for such an agreement
as is mentioned in subsection 1.
3. In the event that a suit for divorce is pending or immediately contemplated by one of
the spouses against the other, the validity of such agreement shall not be affected by a
provision therein that the agreement is made for the purpose of removing the subject matter
thereof from the field of litigation, and that in the event of a divorce being granted to either
party, the agreement shall become effective and not otherwise. (Emphasis added.)
Likewise, NRS 123.070 provides as follows: Either husband or wife may enter into any
contract, engagement or transaction with the other, or with any other person respecting
property, which either might enter into if unmarried, subject in any contract, engagement or
transaction between themselves, to the general rules which control the actions of persons
occupying relations of confidence and trust toward each other.
[Headnotes 1-3]
It appears from statutory direction, and we hold, that where a husband and wife enter into a
contract requiring payment of alimony from the latter to the former, so long as there is no
advantage taken of the relationship of trust and confidence existing between them, no public
policy of this state is violated. There is no indication in the record of an abuse of the
confidential relations between appellant and respondent. On the contrary, from the record and
the lower court's findings, it appears they reached a contractual resolution of their large and
rather complex property rights at arms length while both were represented by counsel. We
also feel the lower court was correct in ruling that the promises of the respective parties were
supported by adequate consideration which resulted in a binding contract between them.
[Headnotes 4, 5]
2. We conclude the lower court properly admitted the record of the divorce proceedings in
the action on the surviving contract. Evidence extrinsic to a written contract is properly
admitted to determine the circumstances under which the parties contracted and the purpose
of the contract. Parsons v. Bristol Dev. Co.,
85 Nev. 623, 627 (1969) Rush v. Rush
Bristol Dev. Co., 402 P.2d 839 (Cal. 1965). See Simpson v. Superior Court, 351 P.2d 179
(Ariz. 1960).
Judgment affirmed.
Batjer, Mowbray, and Thompson, JJ., and Mann, D. J., concur.
____________
85 Nev. 627, 627 (1969) Havas v. Alger
VICTOR HAVAS, dba COURTESY MOTORS,
Appellant, v. CHARLES L. ALGER, Respondent.
No. 5608
VICTOR HAVAS, dba COURTESY MOTORS, Appellant, v. GEORGE W. BERNHARD
and DELLA BERNHARD, Husband and Wife, Respondents.
No. 5659
November 26, 1969 461 P.2d 857
Appeals from the Eighth Judicial District Court, Clark County; Howard W. Babcock,
Judge, in Case No. 5608; John F. Mendoza, Judge, in Case No. 5659.
In the first action the seller, who operated a used car lot, brought action against buyer of
foreign automobile in Case No. 5608 to recover amount allegedly due under conditional sales
contract. In the second action the same seller brought action against buyers of American
automobile in Case No. 5659 to recover amount due under conditional sales contract. The
trial court rendered judgments, and plaintiff appealed. The Supreme Court, Collins, C. J., held
that buyer was entitled to rescind executory conditional sales contract for sale of foreign
automobile, where seller represented that the automobile was a 1960 model but it was a 1959
model, though difference in price between the 1959 model and the 1960 model was only
about $100, and that where seller at used car lot told one of the buyers that American
automobile was in good condition and that their son, for whom they were buying the
automobile, could depend on it, and conditional sales contract was entered into, and day
following purchase automobile broke down, and $380 was required to restore it to running
condition, and buyers' son drove it about two days when it developed serious oil leak and
problems with steering mechanism, and automobile was then stored, failure of consideration,
whether partial or total, precluded recovery by seller on conditional sales contract.
85 Nev. 627, 628 (1969) Havas v. Alger
whether partial or total, precluded recovery by seller on conditional sales contract.
Affirmed.
Dorsey and Taylor, of Las Vegas, for Appellant.
Keith C. Hayes, of Las Vegas, for Respondents.
It is prerogative of trial court as trier of facts to evaluate credibility of witnesses and determine weight of
their testimony, and it is not within province of reviewing court to instruct trier of fact that certain
witnesses or testimony must be believed.
2. Contracts.
Fraud in inducement renders contract voidable, and person defrauded may rescind, or he may, if contract
is still executory, refuse to perform and raise defense of fraud when sued.
3. Contracts.
Whether rescission of executory contract shall be granted on ground of fraud rests largely in sound
discretion of court.
4. Fraud.
Fraud is never presumed, and it must be clearly and satisfactorily proved.
5. Sales.
Seller could not recover from buyer on executory conditional sales contract for sale of foreign
automobile, where seller represented that automobile was a 1960 model but automobile was a 1959 model.
6. Sales.
Buyer was entitled to rescind executory conditional sales contract for sale of foreign automobile, where
seller represented that the automobile was a 1960 model but it was a 1959 model, though difference in
price between the 1959 model and the 1960 model was only about $100.
7. Sales.
Buyer is entitled to rescind executory conditional sales contract if he does not get what he bargained for
because of fraud of seller, and substantial compliance does not apply when seller fraudulently represents
that he is giving 100 percent compliance with the agreement between them.
8. Sales.
Where seller at used car lot told one of the buyers that American automobile was in good condition and
that their son, for whom they were buying automobile could depend on it, and conditional sales contract
was entered into, and day following purchase automobile broke down, and $380 was required to restore it
to running condition, and buyers' son drove it about two days when it developed serious oil leak and
problems with steering mechanism, and automobile was then stored, failure of consideration, whether
partial or total, precluded recovery by seller on conditional sales contract.
85 Nev. 627, 629 (1969) Havas v. Alger
consideration, whether partial or total, precluded recovery by seller on conditional sales contract.
OPINION
These appeals were ordered consolidated for argument and decision because they present
common questions of law and fact.
Case No. 5608
On June 4, 1961, respondent and his wife called at appellant's used car lot in Las Vegas,
Nevada, to look for a small, used, foreign car for her use. They were shown three 1960 and
one or more 1959 Prinz automobiles of German manufacture. The 1960 models sold for $995
each, while the 1959 models sold for $950. Mrs. Alger test drove each of the 1960 models
and picked out one which suited her best. Mr. Havas provided a written form of conditional
sales contract. He filled out certain, but not all, blanks in the contract form, asked Mr. Alger
to sign it and initial certain areas on the face of the contract. All it then contained was the
amount of the down payment and the date. Mr. Havas then kept the contract to have his
secretary type it. The contract was never typed. Mr. Alger then paid $50 toward the down
payment. The next day he returned to the lot, paid $300 more as a down payment, and drove
the car home. He was never given a copy of the contract by Mr. Havas, who later assigned it
to the Bank of Nevada.
During the negotiations, Algers were told by Havas that he had a parts house with
everything needed to repair the automobile. This statement turned out to be false.
On the way home from the purchase, the automobile quit. Mr. Alger took it back
immediately. Mr. Havas kept it two or three days, ostensibly repaired it, and returned it to the
Algers.
When Mr. Alger sought to license the auto, he discovered it was a 1959, not a 1960, model
and that the purchase price was $1,100, not $95. Mr. Alger suggested that a switch from a
1960 to 1959 model may have taken place when it was returned for repairs the day of the
purchase. Shortly thereafter, Mr. Havas billed the Algers $25 for sales tax. Mr. Alger went to
see Mr. Havas, complained that it was unusual to be billed separately for the sales tax, and
demanded a copy of the contract.
85 Nev. 627, 630 (1969) Havas v. Alger
separately for the sales tax, and demanded a copy of the contract. Regarding the incident, Mr.
Alger testified, At the time I was pretty burned up and then, as you know, he's [Havas] a
pretty slick talker and at the time he got through, well, he says, If that's all that is bothering
you, I'll take care of that.' So he took care of this $25, or whatever it was, himself. With his
slick talking, he smoothed me over and I left then. Mr. Alger never did get a copy of the
contract. Mr. Havas told him not to tell anybody about the handling of the sales tax.
1

Within 30 days the combination starter-generator broke down. Mr. Alger again returned it
to Mr. Havas, who then informed him parts would have to be obtained from Germany and a
$35 deposit would be required. Alger refused to pay this. Later, the carburetor broke down
and Mr. Alger bought a used one for $25 from Mr. Havas, remodeled the parts and repaired
the car himself. Respondent testified the auto didn't run more than 90 days the entire time
they had it. The record also contains an unrefuted contention by Mr. Alger that Mr. Havas had
signed Alger's name to a credit statement given to the bank incident to purchase of the
automobile.
When Mr. Alger received his payment book from the bank he noted that it called for 30
payments instead of 24 which was his understanding. He called the bank and disputed the 30
payments, but when told by the bank that that number was shown on the contract, he said
nothing more.
Thereafter, Alger made 14 payments on the automobile, but then stopped because, the
automobile not being operable, he felt he was paying for a dead horse. The car was
repossessed and sold for $51. Havas sought to recover $476 deficiency.
The lower court denied Havas' claim on the grounds of fraudulent representation and
failure of consideration, and awarded Alger his costs and an attorney's fee of $200. It is from
that judgment this appeal is taken.
Appellant contends that the contract of the parties is evidenced by the written form signed
by Mr. Alger on June 4, 1961, where the blank spaces were only partially completed or filled
in. That printed contract contained a clause on the reverse side in small print excluding any
warranties, express or implied, representations, promises or statements unless endorsed on the
contract in writing. None were. Thus, appellant contends respondent purchased the
automobile as is, and nothing he may have said or done relating to the automobile binds
him. Chiquita Mining Co., Ltd. v. Fairbanks, Morse & Co.,
____________________

1
The fact is the sales tax of $22 was added to the price of $1,100 on the contract form, making the total
purchase price $1,122.
85 Nev. 627, 631 (1969) Havas v. Alger
& Co., 60 Nev. 142, 104 P.2d 191 (1940). He relies upon Kennedy v. Schwartz, 13 Nev. 229
(1878); Tallman v. First Nat'l Bank of Nevada, 66 Nev. 248, 208 P.2d 302 (1949); and
Natrona Power Co. v. Clark, 225 P. 586 (Wyo. 1924).
Respondent, on the other hand, affirmatively pleaded fraud and failure of consideration.
The trial judge, who heard the case without a jury, found appellant guilty of fraud in
representing the automobile to be a 1960 model when in fact it was a 1959 model and found a
failure of consideration resulting from that and other representations.
[Headnote 1]
Where the trial court sits as the trier of fact, we have said, It is the prerogative of the trier
of facts to evaluate the credibility of witnesses and determine the weight of their testimony,
and it is not within the province of the appellate court to instruct the trier of fact that certain
witnesses or testimony must be believed. Douglas Spencer and Associates v. Las Vegas Sun,
Inc., 84 Nev. 279, 439 P.2d 473 (1968). And when there is substantial evidence to support the
findings of the trial court, they will not be reversed on appeal. Ward v. Scheeline Banking &
Trust Co., 54 Nev. 442, 451, 22 P.2d 358 (1933); Young Elec. Sign Co. v. Hotel Last Frontier
Corp., 78 Nev. 457, 375 P.2d 859 (1962).
[Headnotes 2, 3]
Fraud in the inducement renders the contract voidable. Bishop v. Stewart, 13 Nev. 25, 42
(1878); Friendly Irishman v. Ronnow, 74 Nev. 316, 330 P.2d 497 (1958); Lovato v. Catron,
148 P. 490 (N.M. 1915); C.I.T. Corp. v. Panac, 154 P.2d 710 (Cal. 1944). The person
defrauded may rescind, Friendly Irishman v. Ronnow, supra; Kuchta v. Western Oldsmobile,
355 P.2d 458 (Ore. 1960); Daniel v. Lilenquist Motors, Inc., 332 P.2d 459 (Wash. 1959), or
he may, if the contract is still executory, as the case here, refuse to perform and raise the
defense of fraud when sued, Hollywood Credit Clothing Co. v. Gibson, 188 A.2d 348 (D.C.
Ct.App. 1963); 3 Williston on Sales 648. Whether rescission shall be granted rests largely
in the sound discretion of the court. Canepa v. Durham, 62 Nev. 417, 153 P.2d 899 (1944).
[Headnote 4]
Fraud is never presumed; it must be clearly and satisfactorily proved. Warren v. De Long,
57 Nev. 131, 146, 59 P.2d 1165 (1936); Ward v. Scheeline Banking and Trust Co., supra, 54
Nev. at 451; Nevada Mining and Exploration Co. v. Rae, 47 Nev. 173, 182, 218 P. 89 (1923).
85 Nev. 627, 632 (1969) Havas v. Alger
The policy of this state with respect to contracts procured through fraud has been made
clear. [T]he courts can never be called upon to legalize a fraud, or enable any man upon an
executory contract to realize a profit from his own immoral conduct. The very moment the
fraud is clearly proven the court refuses to grant any relief. . . . Whenever, in this manner, an
executory contract is tainted with fraud, the court refuses to enforce it, and it makes no
difference whether the fraud is shown by the plaintiff or defendant. McCausland v. Ralston,
12 Nev. 195, 216 (1877). The contract between Alger and Havas was executoryHavas was
suing for breach of it in the failure to pay the consideration. In Nevada Mining and
Exploration Co. v. Rae, supra, this Court said: [W]e know that there are instances in which a
written contract will be canceled because of fraud inhering in its execution. . . . A contract
obtained by duress or from an incompetent or by some fraudulent practice in inducing its
execution is, among others, an instance of fraud inhering in the obtaining of the contract. 47
Nev. at 193.
The cases relied upon by appellant do not require reversal of the judgment below.
Respondent has discharged his burden of proof as required by Kennedy v. Schwartz, supra.
Both Tallman v. First Nat'l Bank, supra, and Natrona Power Co. v. Clark, supra, state the
well-established rule that absent fraud or mistake, no oral testimony may be admitted to
contradict a written instrument. Here we have fraud alleged and proved to the satisfaction of
the trial court upon sufficient evidence. In Friendly Irishman v. Ronnow, supra, the buyer was
told that she was getting a new car. Instead, it was a nearly new car. Respondent there
contended that a notation on the sales contract NN showed it was a nearly new car that
had been contracted for and parol evidence could not be admitted to show the agreement was
otherwise. This Court said: That evidence demonstrated fraud in the procurement of the
instrument and served to defeat the instrument and not to vary its terms. The parol evidence
rule, then, does not apply. 74 Nev. at 318-19.
[Headnote 5]
There is ample authority to support the lower court's judgment that Havas take nothing
because he made fraudulent representations as to the year of the car. In Friendly Irishman v.
Ronnow, supra, this Court said: Under the conceded facts, then, it can hardly be questioned
that defendant's representations to plaintiff that the car was new were made with knowledge
that they were false, and with the intent to deceive plaintiff.
85 Nev. 627, 633 (1969) Havas v. Alger
plaintiff. Such intentional misrepresentations of material facts in a contract resulting in the
intended deception, constitutes actual fraud, which is a proper ground for rescission of the
contract. 74 Nev. at 318. In Kuchta v. Western Oldsmobile, supra, the buyer bought what
was represented to be a new 1957 model car, when in fact it was a used 1957 model. The
court there said: Fraud in inducement is a basis for an action for rescission of a contract. . . .
355 P.2d at 460. In Daniel v. Lilenquist Motors, Inc., supra, the buyer agreed to buy a truck
represented as being a 1948 model, when in fact it was a 1940 model. The misrepresentation
was held to constitute fraud entitling the buyer to rescind.
[Headnotes 6, 7]
Appellant, Havas, contends that the difference in price between a 1959 and a 1960 Prinz
was only about $100, and this was not substantial enough to warrant barring his recovery. The
cases hold that the buyer is entitled to rescind if he does not get what he bargained for
because of the seller's fraud. Substantial compliance does not apply when the seller
fraudulently represents he is giving 100 percent compliance with the agreement between
them.
Case No. 5659
On April 15, 1965, Della Bernhard, one of the respondents, called at the used car sales lot
of appellant Victor Havas to inquire about purchasing a used automobile for her son,
17-year-old Michael, who was about to enter the U.S. Marine Corps. Mrs. Bernhard talked
with Mr. Havas and told him of the intended use by her son who needed an automobile when
he entered the service, to get from one place to another, and get home if he was close
enough. Mr. Havas showed her a 1958 used Triumph automobile, and told her the car was in
good condition and that Mike could depend on it, and that if he took care of it he shouldn't
have any trouble at all driving it for some time. Mrs. Bernhard testified that because Mr.
Havas was a local businessman of some time, we took his word that the car was in good
condition.
The price of the vehicle was $1,295, of which Mrs. Bernhard paid $400 down. A
conditional sales contract was signed by Mrs. Bernhard for herself and, through a power of
attorney, for her husband who was working out of town. The time balance, after adding
interest and other fees and deducting the down payment, was $1,344, payable in 42 monthly
installments of $32 each.
The very next day following the purchase, Michael attempted to drive the automobile to
Lake Mead.
85 Nev. 627, 634 (1969) Havas v. Alger
to drive the automobile to Lake Mead. On the way, it broke down and had to be towed back
to appellant's used car lot. Appellant said he would repair it only if he were paid the cost of
the needed parts and labor. Instead of permitting appellant to repair the car, it was taken to a
Triumph mechanic who charged $380 and required six weeks to restore it to running
condition. Meanwhile, Mr. Bernhard had installed two new tires on the vehicle.
After it was repaired, Michael drove it about two days when it developed a serious oil leak
and problems with the steering mechanism. The car was returned to the Triumph mechanic,
who repaired the steering. When informed of the additional cost to stop the oil leak, the
Bernhards stored the automobile in their carport and Michael left for the service without the
car.
The car remained in their carport until they changed homes. While it was being moved to
the new home, the hood broke off and cracked the windshield. The hood hinges were found to
have rusted through.
The Bernhards stored the car at their new home. They made installment payments until
they had paid a total of $378 on the purchase price. They testified they did not want to
jeopardize their credit rating. Finally, in March, 1965, they asked appellant to pick up the car,
which he did. The car was sold for $130. By that time, they had paid $400 down, $380 to
repair the auto, $378 in installment payments, and had installed two new tires on the vehicle.
Appellant sued Bernhard for $672.20, the deficiency still owed on the contract. Michael was
not a party to the action.
Respondents denied they owed appellant any money. They also raised the affirmative
defense of failure of consideration.
The case was tried to the lower court without a jury, who found and concluded there was a
total failure of consideration in the purchase of the automobile, denied appellant any relief
and allowed respondents their costs and a fee for their attorney in the amount of $250. It is
from that judgment this appeal is taken.
[Headnote 8]
We believe that whether the failure of consideration was either partial or total, the lower
court's judgment should be sustained. In Canepa v. Durham, 62 Nev. 417, 153 P.2d 899
(1944), this court said: A partial failure of performance of a contract will not give ground
for its rescission unless it defeats the very object of the contract or renders that object
impossible of attainment, or unless it concerns a matter of such prime importance that the
contract would not have been made if default in that particular had been expected or
contemplated.'" Id. at 427.{[Emphasis added.)2
Judgments in both cases No.
85 Nev. 627, 635 (1969) Havas v. Alger
default in that particular had been expected or contemplated.' Id. at 427.([Emphasis added.)
2

Judgments in both cases No. 5608 and No. 5659 are affirmed, with costs in each case to
respondents.
____________________

2
The trial court held that there was a total failure of consideration and a right to rescind because of
appellant's misrepresentations. Fraud was not pleaded as a defense and neither party discusses the issue on
appeal, though it appears that by concluding there was a right to rescind because of misrepresentations, the trial
court has found fraud. In Poe v. La Metropolitana Co., 76 Nev. 306, 353 P.2d 454 (1960), this Court upheld a
lower court's finding of fraud despite a failure to plead fraud affirmatively by the defendant. The court relied
upon NRCP Rule 15(b) and held that the failure of the plaintiff to object to admittance of evidence of
misrepresentations on the ground that fraud had not been pleaded barred his raising the issue on appeal.
____________
85 Nev. 635, 635 (1969) Cleveland v. State
JACK CLEVELAND, Appellant, v. THE STATE
No. 5823
November 26, 1969 461 P.2d 408
Appeal from a conviction of grand larceny. Eighth Judicial District Court, Clark County;
Alvin N. Wartman, Judge.
The Supreme Court, Zenoff, J., held that testimony of motel purchasing agent, who was
experienced in his field for five and one-half years, that cost of allegedly stolen linen was
$365.10 and that he considered their value to be 11/12 of purchase price because they were
purchased one month prior to theft was sufficient to establish that fair market value of stolen
items was over $100.
Affirmed.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, Addeliar
D. Guy, Deputy District Attorney, Clark County, for Respondent.
1. Larceny.
In prosecution for grand larceny as a felony, state must prove that market value of allegedly stolen goods
was over $100.
2. Larceny.
True criterion for value of property taken is fair market value of property at time and place it was stolen if
there be such a standard market; but, where such market value cannot reasonably be determined, other
evidence of value may be received such as replacement cost or purchase price.
3. Larceny.
Testimony of motel purchasing agent, who was experienced in his field for five and one-half years, that
cost of allegedly stolen linen was $365.10 and that he considered its value to be 11/12 of purchase price
because they were purchased one month prior to theft was sufficient in grand larceny prosecution, to
establish that market value of stolen items was over $100.
4. Larceny.
Burden of proof is upon prosecution to provide necessary proof of value of particular merchandise in
prosecution for grand larceny.
OPINION
[Headnote 1]
Jack Cleveland was convicted of grand larceny for the theft of several bundles of bed
sheets, bath mats, wash cloths and bedspreads from the El Cortez Western Motel in Las
Vegas. The only issue involved in this appeal is that of the value of the stolen linens.
Cleveland contends that the record is absent of proof that the market value of the stolen items
was over $100.00 which, of course, is a material allegation that the state must prove in the
prosecution of grand larceny as a felony.
The purchasing agent for the motel who was experienced in his field for 5 1/2 years
testified that the cost of the missing items which were purchased one month before the theft
was $365.10 and that he considered their value to be 11/12ths of the purchase price when
they were stolen. There was no other proof as to value.
The court instructed the jury that:
When the value of property alleged to have been taken by theft must be determined, the
reasonable and fair market value at the time and in the locality of the theft shall be the test.
That value is the highest price, estimated in terms of money for which the property would
have sold in the open market at that time and in that locality, if the owner was desirous of
selling, but under no urgent necessity of doing so, if the buyer was desirous of buying but
under no urgent necessity of doing so, if the seller had a reasonable time within which to find
a purchaser, and if the buyer had knowledge of the character of the property and of the uses to
which it might be put.
[Headnote 2]
1. The true criterion for the value of property taken is the fair market value of the property
at the time and place it was stolen if there be such a standard market. Beasley v.
Commonwealth, 339 S.W.2d 179 (Ky.App. 1960). But where such market value cannot be
reasonably determined other evidence of value may be received such as replacement cost or
purchase price. State v. Randle, 410 P.2d 687 (Ariz.App. 1966); People v. Renfro, 58
Cal.Rptr. 832 (Cal.App. 1967); Taylor v. State, 272 S.W.2d 893 (Tex.Cr.App. 1954).
[Headnote 3]
2. Used linens are usually not a subject of an ascertainable market. Almost always the
only value of used hotel or motel linens is simply whatever can be received for them. The
opinion of a person who deals in such goods is sufficient to present to the jury and the
purchasing agent was so qualified. State v. Jones, 448 P.2d 70 (Ariz. 1968). His testimony
constituted enough evidence from which the jury could follow the court's instruction to find
the market value. Lefthand v. State, 398 P.2d 98 (Okl.Cr. 1965).
[Headnote 4]
3. Conceivably what constitutes sufficient proof in one case, where a ready market for
certain merchandise is not available, as here, may not be enough when such a market is
available, used automobiles for instance. The burden is upon the prosecution to provide the
necessary proof of value of the particular merchandise then presented. The burden has been
met in this case.
Affirmed.
____________
85 Nev. 637, 637 (1969) Derouen v. Sheriff
MARTIN EDWARD DEROUEN, APPELLANT, v.
SHERIFF, WASHOE COUNTY, NEVADA, Respondent.
No. 5858
November 26, 1969 461 P.2d 865
Appeal from order of Second Judicial District Court, Washoe County, denying application
for writ of habeas corpus; John F. Sexton, Judge.
Accused filed habeas petition claiming that narcotics found in warrantless search incident
to his arrest were inadmissible and that he should not be held to answer for possession of
marijuana and heroin. The lower court denied the petition and the accused appealed. The
Supreme Court, Mowbray, J., held that United States Supreme Court decision that officers
without warrant may not search beyond area within immediate control of arrestee would not
be applied retroactively to warrantless search of accused's bedroom clothes closet and dresser
drawer and bathroom medicine cabinet conducted while accused was sitting on divan in
living room.
Affirmed.
Wait & Shamberger, of Reno, for Appellant.
Harvey Dickerson, Attorney General; and William J. Raggio, District Attorney, and Paul
Freitag, Deputy District Attorney, Washoe County, for Respondent.
Courts.
United States Supreme Court decision that officers without warrant may not search beyond area within
immediate control of arrestee would not be applied retroactively to warrantless search of accused's
bedroom clothes closet and dresser drawer and bathroom medicine cabinet conducted while accused was
sitting on divan in living room and evidence seized in that search would not be suppressed. NRS
179.085; U.S.C.A.Const. Amends. 4, 14.
OPINION
This appeal challenges the validity of a warrantless search of Appellant Derouen's
apartment that was made contemporaneously with Derouen's arrest, on the grounds that the
search was in derogation of constitutional rights guaranteed under the Fourth and Fourteenth
Amendments to the United States Constitution.
Martin Edward Derouen was arrested on August 4, 1968, in an apartment in Reno that he
shared with his father.
1
The arresting officers, without a search warrant, proceeded to search
Derouen's apartment. They found narcotics (1) in the bedroom clothes closet and dresser
drawer, (2) in the bathroom medicine cabinet, and {3) on the living room divan, where
Derouen remained seated during the search.
____________________

1
On appeal Derouen does not question the validity of his arrest. He was taken into custody for the unlawful
sale of narcotics under the authority of a warrant earlier issued upon his indictment by the grand jury of Washoe
County.
medicine cabinet, and (3) on the living room divan, where Derouen remained seated during
the search.
Derouen was thereafter charged by a Information with two counts: possession of marijuana
and possession of heroin. After a preliminary hearing he was bound over to the district court
for trial. He then filed a habeas petition claiming that the narcotics found in his apartment
were the fruit of an unlawful search and seizure and were legally inadmissible, that as a result
the State had failed to establish probable cause that an offense had been committed, and that
therefore he should not be held to answer.
2
The district court denied the habeas application,
and Derouen has appealed, seeking reversal. We affirm the order of denial.
On June 23, 1969, the Supreme Court of the United States, in Chimel v. California (395
U.S. 752, 768), narrowed the permissible scope of a warrantless search made during an arrest
to the area from within which he might have obtained either a weapon or something that
could have been used as evidence against him. The High Court announced, at 762, 763, that:
When an arrest is made, it is reasonable for the arresting officer to search the person arrested
in order to remove any weapons that the latter might seek to use in order to resist arrest or
effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest
itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and
seize any evidence on the arrestee's person in order to prevent its concealment or destruction.
And the area into which an arrestee might reach in order to grab a weapon or evidentiary
items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of
one who is arrested can be as dangerous to the arresting officer as one concealed in the
clothing of the person arrested. There is ample justification, therefore, for a search of the
arrestee's person and the area within his immediate control'construing that phrase to mean
the area from within which he might gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching rooms other than
that in which an arrest occursor, for that matter, for searching through all the desk drawers
or other closed or concealed areas in that room itself. Such searches, in the absence of
well-recognized exceptions, may be made only under the authority of a search warrant.
____________________

2
Whether habeas is an appropriate remedy to challenge the admissibility of evidence is not before us on this
appeal. Nor was this question before the lower court. We shall resolve the issue when properly presented. See
NRS 179.085.
made only under the authority of a search warrant. The adherence to judicial processes'
mandated by the Fourth Amendment requires no less. (Footnote omitted.)
In the instant case the rummaging, warrantless search of Derouen's apartment went far
beyond the area within his immediate control (with the possible exception of the narcotics
found on the divan near where Derouen was sitting) and according to the Chimel rule was
unreasonable under the Fourth and Fourteenth Amendments. Chimel makes clear the
general principle that search and seizure are to be made under the authority of a search
warrant based on probable cause.
3
Moreover, the general requirement that a search warrant
be obtained is not lightly to be dispensed with, and the burden is on those seeking [an]
exemption [from the requirement] to show the need for it, . . . United States v. Jeffers, 342
U.S. 48, 51 (1951). The Court pointed that out in Terry v. Ohio, 392 U.S. 1, 20, 19 (1968),
when it emphasized that the police must, whenever practicable, obtain advance judicial
approval of searches and seizures through the warrant procedure and that [t]he scope of [a]
search must be strictly tied to and justified by' the circumstances which rendered its initiation
permissible. Thus the basic criterion is that the search be reasonable.
The principal issue we must decide in this case is whether Chimel is to be applied
retrospectively or prospectively from the date it was announcedJune 23, 1969. Derouen
was arrested and his apartment searched in August 196810 months prior to Chimel. At that
time, under the prevailing rationale of United States v. Rabinowitz, 339 U.S. 56 (1950), and
Harris v. United States, 331 U.S. 145 (1947),
4
the warrantless search of Derouen's entire
apartment would have been reasonably permissible on the grounds that the apartment was
under Derouen's control. But Chimel has overruled Rabinowitz and Harris, where the Court
said, at 768: "Rabinowitz and Harris have been the subject of critical commentary for
many years, and have been relied upon less and less in our own decisions.
____________________

3
The High Court noted, note 9, at 764:
Our holding today is of course entirely consistent with the recognized principle that, assuming the existence
of probable cause, automobiles and other vehicles may be searched without warrants where it is not practicable
to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the
warrant must be sought.' Carroll v. United States, 267 U.S. 132, 153 . . . [1925]; see Brinegar v. United States,
338 U.S. 160 . . . [1949].

4
Although the Chimel opinion noted, at 735, that the Court's decisions on the permissible scope of a
warrantless search have been far from consistent, the Court recognized that Harris and Rabinowitz were
generally accepted as setting out the then applicable standards.
Rabinowitz and Harris have been the subject of critical commentary for many years, and
have been relied upon less and less in our own decisions. It is time . . . to hold that on their
own facts, and insofar as the principles they stand for are inconsistent with those that we have
endorsed today, they are no longer to be followed. (Footnotes omitted.)
It was not determined in Chimel whether the principles therein endorsed would be
retroactively applied. But we are faced with the question in this case and must resolve it,
looking for guidance in the rationale of other opinions. First, we are led to believe by two per
curiam opinions filed the same day as Chimel that the Court had in mind something less than
retroactively. In Von Cleef v. New Jersey, 395 U.S. 814 (1969), the petitioners attacked the
lower court's conclusion that a search and seizure were constitutionally permissible as being
incident to a valid arrest. The Court said, at 815: This challenge would unquestionably be
well founded if today's decision in Chimel v. California, . . . were given retrospective
application. But we need not decide here whether Chimel should be applied retroactively.
And in Shipley v. California, 395 U.S. 818 (1969), the Court said, at 819:
Under our decision today in Chimel v. California, . . . the search clearly exceeded the
Fourth Amendment limitations on searches incident to arrest. But even if Chimel were to
have no retroactive applicationa question which we reserve for a case which requires its
resolutionthere is no precedent of this Court that justifies the search in this case.
We also find support for our belief that Chimel should not have retroactive application, in
Stovall v. Denno, 388 U.S. 293, 297 (1967), where the Court explained that in determining
whether a newly announced constitutional rule of criminal procedure should be made
prospective only, attention should be given to (a) the purpose to be served by the new
standards, (b) the extent of the reliance by law enforcement authorities on the old standards,
and (c) the effect on the administration of justice of retroactive application of the new
standards.
All these considerations point to making the application of Chimel prospective. See also
Williams v. United States, Nos. 22,871 & 22,870 (9th Cir., Oct. 17, 1969). The purpose to be
served by Chimel is deterrent; law enforcement officers had previously justifiably relied upon
Harris and Rabinowitz, supra, and the retroactive application of Chimel on the administration
of justice would have a substantial, adverse effect. There is little to favor retroactivity. As the
Court said in Linkletter v. Walker, 381 U.S. 618, 638 (1965), [T]here is no likelihood of
unreliability or coercion present in a search-and-seizure case"; the exclusionary rule is
but a "procedural weapon that has no bearing on guilt."
of unreliability or coercion present in a search-and-seizure case; the exclusionary rule is but
a procedural weapon that has no bearing on guilt.
Under the law before Chimel, the validity of a search incident to a valid arrest depended
on the reasonableness of the search in the totality of the circumstances. This case is similar to
Harris, involving the search of a four-room apartment. In Harris, the Court said, [T]he area
which may reasonably be subjected to search is not to be determined by the fortuitous
circumstance that the arrest took place in the living room as contrasted to some other room of
the apartment. 331 U.S. at 152.
We conclude, therefore, that the Chimel ruling may be applied prospectively only, from
June 23, 1969, and that under the rationale of Harris and Rabinowitz the search of Derouen's
apartment in August 1968 was reasonable and constitutionally permissible. The order of the
district court denying Derouen's application for habeas is affirmed.
Collins C. J., Zenoff, Batjer, and Thompson JJ, concur.
____________
85 Nev. 642, 642 (1969) State ex rel. Dep't Welfare v. District Ct.
STATE OF NEVADA, on The Relation of the Welfare Division of the Nevada State
Department of Health, Welfare and Rehabilitation, Petitioner, v. THE EIGHTH JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, Department Four Thereof, and THE
HONORABLE THOMAS J. O'DONNELL, Presiding Judge, Respondents.
No. 5977
November 26, 1969 462 P.2d 37
Original proceedings in prohibition and madamus.
The Supreme Court, Mowbray, J., held that Department of Health, Welfare and
Rehabilitation was not entitled to either writ of prohibition enjoining district judge from
hearing pending adoption proceeding or writ of mandamus commanding judge to disqualify
himself and to assign case to another judge where Department did not file affidavits of
prejudice until after judge had heard motion for preliminary injunction filed by prospective
adoptive parents and had granted motion by prospective adoptive parents to amend petition
for adoption.
Petition denied.
Harvey Dickerson, Attorney General, and Norman H. Samuelson, Deputy Attorney
General, for Petitioner.
Harry E. Claiborne and Foley, Garner & Shoemaker, of Las Vegas, for Respondents.
1. Judges.
Once party or his attorney is notified that particular judge has been assigned to hear matter and then
proceeds with hearing of contested matter before that judge, challenge of that judge under statute providing
for disqualification of judges is waived. NRS 1.230, subd. 5.
2. Mandamus; Prohibition.
Department of Health, Welfare and Rehabilitation was not entitled to either writ of prohibition enjoining
district judge from hearing pending adoption proceedings or writ of mandamus commanding judge to
disqualify himself and to assign case to another judge where Department did not file affidavits of prejudice
until after judge had heard motion for preliminary injunction filed by prospective adoptive parents and had
granted motion by prospective adoptive parents to amend petition for adoption. NRS 1.230, subds. 1, 4,
5; 127.120, subd. 1.
OPINION
This is a petition by the State of Nevada on the relation of the Welfare Division of the
Nevada State Department of Health, Welfare and Rehabilitation for (1) a writ of prohibition
enjoining the Honorable Thomas J. O'Donnell, Presiding Judge of Department No. 4 of the
Eighth Judicial District Court of the State of Nevada, from hearing an adoption proceeding
pending in his court, on the grounds that the judge is biased and prejudiced; and (2) a writ of
mandamus commanding Judge O'Donnell to disqualify himself and assign the case to another
judge.
On May 22, 1969, Duglas T. White and Marilyn J. White filed in the Eighth Judicial
District Court an adoption proceeding entitled, IN THE MATTER OF THE ADOPTION OF
THREE MINORS BY DUGLAS T. AND MARILYN J. WHITE, HUSBAND AND WIFE,
PETITIONERS. A copy of the petition was served on Welfare as required by law. NRS
127.120, subsection 1. Welfare served a copy of its answer on the Whites by mail on June 17,
1969, and filed the original answer in the Clark County Clerk's office on June 19, 1969. The
Whites filed a motion for a preliminary injunction on June 16, and a copy of the motion was
received by Welfare on June 17.
17. Judge O'Donnell, as Master Calendar Judge, heard the motion for the preliminary
injunction on June 20. (There was no prior notice that he was to hear it. In fact, it had been
assigned to several departments and eventually marked off calendar on June 11.) Judge
O'Donnell entered his ruling on the motion on June 23.
On June 24, the Whites filed a motion to amend their petition for adoption. Welfare
received a copy of the motion and supporting papers on June 25. The motion came on for
hearing on July 1 and was granted by consent of all parties. On July 22, counsel for Welfare
telephoned Judge O'Donnell and requested the judge to disqualify himself; the judge declined
to do so.
The following day, Welfare by its counsel mailed affidavits of prejudice to the clerk, the
judge, and the Whites, as provided in NRS 1.230, subsection 5. The judge, however, has
refused to step down, on the principal ground that the affidavits were not timely filed. This is
the major issue presented on this appeal.
NRS 1.230
1
sets forth the various grounds for disqualification of judges other than
supreme court justices. Subsection 5 provides in part: "A judge shall not act as such if either
party to a civil action in the district court shall file an affidavit alleging that the judge
before whom the action is to be tried has a bias or prejudice either against him or in favor
of an opposite party to the action."
____________________

1
NRS 1.230:
1. A judge shall not act as such in an action or proceeding when he entertains actual bias or prejudice for or
against one of the parties to the action.
2. A judge shall not act as such in an action or proceeding when implied bias exists in any of the following
respects:
(a) When he is a party to or interested in the action or proceeding.
(b) When he is related to either party by consanguinity or affinity within the third degree.
(c) When he has been attorney or counsel for either of the parties in the particular action or proceeding before
the court.
(d) When he is related to an attorney or counselor for either of the parties by consanguinity or affinity within
the third degree.
3. A judge, upon his own motion, may disqualify himself from acting in any matter upon the ground of actual
or implied bias.
4. Any party to an action or proceeding, seeking to disqualify a judge for actual or implied bias, shall file a
charge in writing, specifying the facts upon which such disqualification is sought. Hearing on such charge shall
be had before such other district judge as the parties may by agreement select, or in absence of such agreement
before such judge as shall be appointed by the judge sought to be disqualified.
5. A judge shall not act as such if either party to a civil action in the district court shall file an affidavit
alleging that the judge before whom the action is to be tried has a bias or prejudice either against him or in favor
of an opposite party to the action. The judge shall proceed no further therein but either transfer the action to
some other department of the court, if there be more than one department of the court in
A judge shall not act as such if either party to a civil action in the district court shall file
an affidavit alleging that the judge before whom the action is to be tried has a bias or
prejudice either against him or in favor of an opposite party to the action.
It is on this provision that Welfare predicates its position that Judge O'Donnell is
disqualified from continuing to preside in the adoption proceedings.
Subsection 5, prior to April 1, 1969, also provided in part that: Every affidavit must be
filed before the hearing on any contested matter in the action has commenced, and if no
contested matter has been heard in the action prior to the day of the trial thereof, then the
affidavit must be filed at least 10 days before the date set for the trial of the action. That
provision of the statute was amended by the 1969 Legislature, and the following language,
which became effective April 1, 1969, was substituted: Every affidavit must be filed at least
10 days before the hearing of a contested matter if a judge has been assigned to hear such
matter or, if a judge has not been assigned at least 10 days prior to such hearing, the affidavit
must be filed when the party or his attorney is notified that a judge has been assigned to hear
the matter. (Emphasis added.)
____________________
the district, or request the judge of some other district court of some other district to preside at the hearing and
trial of the action. Every affidavit must be filed at least 16 days before the hearing of a contested matter if a
judge has been assigned to hear such matter or, if a judge has not been assigned at least 10 days prior to such
hearing, the affidavit must be filed when the party or his attorney is notified that a judge has been assigned to
hear the matter. No affidavit shall be filed unless accompanied by a certificate of the attorney of record for
affiant that the affidavit is made in good faith and not for delay, and the party filing the affidavit for change of
judge shall at the time of filing same pay to the clerk of the court in which the affidavit is filed $25, which sum
shall be by the clerk transmitted to the state treasurer who shall place the same to the credit of the district judges'
traveling fund. The right hereby granted may be lost by the failure of a party to comply with the requirements set
forth in this subsection or by a waiver in writing executed by the party or by his attorney, and not otherwise.
6. No judge or court shall punish for contempt anyone making, filing or presenting a charge for
disqualification pursuant to subsection 4 or an affidavit pursuant to subsection 5.
7. This section shall not apply to the arrangement of the calendar or the regulation of the order of business.
8. Paragraph (d) of subsection 2 shall not apply to the presentation of ex parte or uncontested matters, except
in fixing fees for attorneys related within the degree of consanguinity or affinity therein specified.
[Headnote 1]
We interpret this amendment as an attempt by the Legislature to provide litigants in those
districts operating under the master calendar system (Second and Eighth) with the same
opportunity to exercise a peremptory challenge of a judge assigned to the case as is
afforded to litigants in the single judge districts or in nonmaster calendar districts where the
cases receive a department assignment when filed, designating the judge of that department to
hear the case. Prior to the 1969 amendment, the challenge was for all practical purposes not
available in the master calendar districts when the assignment of the hearing or trial judge
was not made by the master calendar judge until the date of hearing, because subsection 5 at
that time required the litigant to file his challenging affidavit 10 days prior to the hearing.
Under the 1969 amendment the affidavit may be filed when the party or his attorney is
notified that a judge has been assigned to hear the matter. We hold that, once the party or his
attorney is so notified and then proceeds with the hearing of a contested matter before that
judge, the challenge of that judge under subsection 5 is waived, and the party is precluded
from later exercising it as to that judge. Should the case thereafter be reassigned to another
judge, a party may file a subsection 5 affidavit against the new judge, subject, of course, to
the limitation of NRS 1.240, which precludes more than one change of judge under the
procedure provided by subsection 5 of NRS 1.230.
2

[Headnote 2]
Since Judge O'Donnell had heard the motion for preliminary injunction and had granted
the motion to amend the petition for adoption prior to petitioner's challenge under subsection
5 of NRS 1.230, we hold that the affidavits were not timely filed; therefore the petition is
denied.
Collins C. J., Zenoff, Batjer, and Thompson, JJ., concur.
____________________

2
If, during any stage of the litigation, it develops that any judge has manifested bias or prejudice, the party
aggrieved is not without his remedy, for he may interrupt the proceedings and file a motion asserting actual bias.
A hearing will then be conducted by another judge, as provided in subsections 1 and 4 of NRS 1.230.
____________
85 Nev. 647, 647 (1969) Hall v. State
JIMMIE LEE HALL, Appellant, v. THE STATE
No. 5822
December 1, 1969 461 P.2d 406
Appeal from judgment of the Eighth Judicial District Court, Clark County; Clarence
Sundean, Judge.
The defendant was convicted of assault with deadly weapon with intent to do bodily harm
and attempted rape. The lower court rendered judgment, and the defendant appealed. The
Supreme Court held that appeal was dismissed as frivolous where examination of record and
errors of law set forth in defendant's brief disclosed that there was no merit to issues raised.
Appeal dismissed and judgment affirmed.
Criminal Law.
Appeal from judgment on jury verdicts of guilty of assault with deadly weapon with intent to do bodily
harm and attempted rape was dismissed as frivolous where examination of record and errors of law set
forth in defendant-appellant's brief disclosed that there was no merit to issues raised.
OPINION
Per Curiam:
Appellant, Jimmie Lee Hall, appeals from a judgment rendered upon jury verdicts of guilty
to charges of assault with a deadly weapon with intent to do bodily harm and attempted rape.
The public defender has submitted a brief on all issues raised by the record which might
arguably support an appeal pursuant to the rulings in Anders v. California, 386 U.S. 738
(1967), and Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969). After carefully examining the
record and the errors of law set forth in appellant's brief, we hold that there is no merit to the
issues raised. Accordingly, the appeal should be and hereby is dismissed as frivolous; and the
judgment of the lower court is affirmed.
____________
85 Nev. 648, 648 (1969) Payne v. Warden
JOE ALLEN PAYNE, Appellant, v. WARDEN,
No. 5834
December 1, 1969 461 P.2d 406
This is an appeal from an order denying a petition for a writ of habeas corpus. Eighth
Judicial District Court, Clark County; Alvin N. Wartman, Judge.
The trial court denied a writ, and petitioner appealed. The Supreme Court held that
petitioner, who had been found guilty of first degree murder and sentenced to life
imprisonment, could not complain that his constitutional rights were violated because he was
tried before a jury from which prospective jurors who entertained conscientious objections to
the death penalty were excluded.
Affirmed.
James D. Santini, Public Defender, and Earle W. White, Jr., Deputy Public Defender,
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, and Larry
C. Johns, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Preliminary hearing is a creature of statute, and no constitutional guaranty of assistance of counsel is
necessarily involved, or impaired by absence of counsel. NRS 171.188, 171.196, 171.370, 171.375.
2. Habeas Corpus.
Alleged lack of assistance of counsel during preliminary examination was not ground for habeas corpus
relief where testimony given at preliminary examination was not used, or attempted to be used, at trial.
NRS 171.188, 171.196, 171.370, 171.375.
Petitioner, who had been found guilty of first degree murder and sentenced to life imprisonment, could
not complain that his constitutional rights were violated because he was tried before a jury from which
prospective jurors who entertained conscientious objections to the death penalty were excluded.
OPINION
Per Curiam:
A jury found the appellant guilty of first degree murder and caused him to be sentenced to
prison for life without the possibility of parole. Judgment was entered on November 5, 1964,
and this court affirmed that judgment in Payne v. State, S1 Nev. 503
and this court affirmed that judgment in Payne v. State, 81 Nev. 503 406 P.2d 922 (1965).
On December 4, 1968, the appellant filed, in district court, a petition for a writ of habeas
corpus alleging that his constitutional rights had been violated because he was without the
assistance of counsel during his preliminary examination and because certain prospective
jurors, who entertained conscientious objections to the imposition of the death penalty, were
excluded from his jury.
This appeal is taken from the denial by the trial court of the petition for a writ of habeas
corpus and does not involve any issues decided in Payne v. State, supra.
[Headnotes 1, 2]
1. In Henning v. Young, 81 Nev. 253, 401 P.2d 689 (1965), this court said: We have
already decided that the preliminary hearing is not a critical stage' of a criminal proceeding in
this state. Victoria v. Young, 80 Nev. 279, 392 P.2d 509 (1964); Ex parte Hoff, 80 Nev. 360,
393 P.2d 619 (1964). The preliminary hearing is the creature of statute and no constitutional
guaranty is necessarily involved or impaired. Farnham v. Colman, 19 S.D. 342, 103 N.W.
161, 162, 1 L.R.A., N.S., 1135; Pointer v. State of Texas, 85 S.Ct. 1065.
We find nothing in the record of this case that would indicate the involvement or
impairment of a constitutional guaranty. There was no use or attempted use, at the trial, of
any testimony given at the preliminary examination, therefore the rule announced in Pointer
v. State of Texas, 380 U.S. 400 (1965), and Messmore v. Fogliani, 82 Nev. 153, 413 P.2d 306
(1966), does not apply. Furthermore, the appellant is unable to claim the advantage and
protection of NRS 171.188 and 171.196, formerly NRS 171.370 and 171.375,
1
because he
was tried and convicted before the amendments to those statutes became effective.
[Headnote 3]
2. We now turn to the appellant's contention that his constitutional rights were violated
because he was tried by a jury from which were excluded prospective jurors who entertained
conscientious objections to the death penalty. In support of his position the appellant relies on
Witherspoon v. Illinois, 391 U.S. 510 (1968).
In Howard v. State, 84 Nev. 599, 446 P.2d 163 (1968), we said: "Witherspoon does not
touch a case where the sentence imposed is life imprisonment.
____________________

1
Effective April 3, 1965, the legislature amended the existing statutes to provide for the appointment of
counsel to represent indigent defendants at preliminary examinations.
said: Witherspoon does not touch a case where the sentence imposed is life imprisonment.
Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).
We find the contentions of the appellant to be without merit and affirm the order of the
trial court.
____________
85 Nev. 650, 650 (1969) Smith v. Dial Finance Co. of N.L.V.
JAMES C. SMITH, CLAUDIA M. SMITH, aka CLAUDIA M. BOBISH, and JIM R.
SOUTER, Appellants, v. DIAL FINANCE COMPANY OF NORTH LAS VEGAS,
Respondent.
No. 5845
December 1, 1969 461 P.2d 856
Appeal from an order of the Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Action to recover money due on note. Defendants counterclaimed. The lower court
dismissed counterclaim, and appeal was taken. The Supreme Court, Thompson, J., held that
defendants who on day before filing their counterclaim had filed a voluntary petition for
bankruptcy with federal court retained a sufficient interest in their alleged cause of action to
prosecute a counterclaim thereon, where trustee had not been appointed in bankruptcy
proceeding.
Reversed.
L. Earl Hawley, of Las Vegas, for Appellants.
Stanley W. Pierce, of Las Vegas, for Respondent.
Bankruptcy.
Defendants who on day before filing their counterclaim for damages in action on note had filed a
voluntary petition for bankruptcy with federal court retained a sufficient interest in their alleged cause of
action to prosecute a counterclaim thereon, where trustee had not been appointed in bankruptcy
proceeding. Bankr. Act 11, sub. c, 70 sub. a(6), 11 U.S.C.A. 29(c), 110(a) (6).
OPINION
This appeal is from an order of the district court dismissing the Smiths' counterclaim for
damages in an action commenced by Dial Finance to recover money due on a promissory
note.
85 Nev. 650, 651 (1969) Smith v. Dial Finance Co. of N.L.V.
by Dial Finance to recover money due on a promissory note. The dismissal was granted upon
the ground that the Smiths were not the real parties in interest with standing to assert a
counterclaim since one day before filing their counterclaim they had filed a voluntary petition
for bankruptcy with the federal court. A trustee had not been appointed in that proceeding.
The narrow issue presented below, and here, is whether, in these circumstances, the Smiths
retained a sufficient interest in their alleged cause of action to prosecute a counterclaim
thereon. In our judgment the district court erred in dismissing the counterclaim, and we
reverse.
Although Section 11 (c) of the Bankruptcy Act [11 U.S.C.A. 29(c)] is silent as to the
right of the bankrupt himself to begin a suit in the time which intervenes between the filing of
a petition and the appointment and qualification of the trustee, the authorities declare that
when that section is read in conjunction with Section 70(a) [11 U.S.C.A. 110(a)] it is clear
that the bankrupt retains a sufficient interest in his estate to begin such a suit.
1
Johnson v.
Collier, 222 U.S. 538 (1911); Meyer v. Fleming, 327 U.S. 161 (1946); 1 Collier on
Bankruptcy 1185-1186 (14th ed. 1969); Riesenfeld, Creditors' Remedies and Debtors'
Protection (West Publishing Co. 1967). Additionally, we note that if the trustee upon
appointment and qualification declines to prosecute the cause of action, the bankrupt may
continue its prosecution to judgment. Johnson v. Collier, supra; Meyer v. Fleming, supra.
Reversed.
____________________

1
Sec. 11(c) reads: A receiver or trustee may, with the approval of the court, be permitted to prosecute as
receiver or trustee any suit commenced by the bankrupt prior to the adjudication, with like force and effect as
though it had been commenced by him.
Sec. 70(a)(6) provides: The trustee of the estate of a bankrupt and his successor or successors, if any, upon
his or their appointment and qualification, shall in turn be vested by operation of law with the title of the
bankrupt as of the date of the filing of the petition initiating a proceeding under this title, except insofar as it is to
property which is held to be exempt, to all of the following kinds of property wherever located . . . (6) rights of
action arising upon contracts, or usury, or the unlawful taking or detention of or injury to his property . . .
____________
85 Nev. 652, 652 (1969) Clarence E. Morris, Inc. v. Vitek
CLARENCE E. MORRIS INC., a California Corporation,
Appellant, v. ALVIN J. VITEK, Respondent.
No. 5825
December 2, 1969 461 P.2d 864
Appeal from judgment of the Eighth Judicial District Court, Clark County; William P.
Compton, Judge.
Action for damages for wrongful attachment brought on attachment bond. The lower court
dismissed action, and appeal was taken. The Supreme Court, Thompson, J., held that where
attachment bond was expressly conditioned on dismissal of underlying action by plaintiff
therein or recovery of judgment by defendant therein and underlying action was still pending,
action for damages for wrongful attachment was premature.
Affirmed.
Stanley W. Pierce and Douglas R. Pike, of Las Vegas, for Appellant.
1. Attachment.
Where attachment bond was expressly conditioned on dismissal of underlying action by plaintiff therein
or recovery of judgment by defendant therein and underlying action was still pending, action for damages
for wrongful attachment was premature. NRS 31.030, subd. 1.
2. Attachment.
Allegation of malice and want of probable cause in procuring attachment is essential to suit for damages
outside of bond and in amount greater than penalty of bond. NRS 31.030, subd. 1.
3. Attachment.
Order discharging attachment in underlying case is not a judgment that would permit suit for damages for
wrongful attachment on bond that was expressly conditioned on dismissal of underlying action by plaintiff
therein or recovery of judgment by defendant therein. NRS 31.030, subd. 1.
OPINION
The issue is whether this action for damages for wrongful attachment brought upon the
attachment bond is premature since the underlying case in which the attachment was
obtained and later discharged as improper {see Clarence E.
since the underlying case in which the attachment was obtained and later discharged as
improper (see Clarence E. Morris, Inc. v. Vitek, 80 Nev. 408, 395 P.2d 521 (1964)) is still
pending.
1
The district court ruled that this action was prematurely commenced and
dismissed it. We affirm that determination.
[Headnote 1]
1. The attachment bond in the underlying action instituted by Vitek against Clarence E.
Morris, Inc., was written pursuant to NRS 31.030(1) and is expressly conditioned upon a
dismissal of that action by Vitek, the plaintiff, or a recovery of a judgment by Clarence E.
Morris, Inc., the defendant.
2
That case is still pending. Since a precondition to liability upon
the bond has not occurred, the district court properly dismissed this action as premature. In
this respect the Nevada statutory scheme is unlike that prevailing in some states where it is
not necessary to await termination of the main action before instituting an action upon the
bond. See: Reliable Mutual Hail Ins. Co. v. Rogers, 160 P. 914 (Okla. 1916); Kerr v. Reece,
27 Kan. 469 (1882).
[Headnote 2]
2. In the instant matter the plaintiff, Clarence E. Morris, Inc., did not allege a common law
cause of action against Vitek for malicious use of legal process. The complaint does not
charge malice and want of probable cause in procuring the attachment.
____________________

1
This action was instituted against Vitek and United Pacific insurance Company which supplied the
attachment bond. United Pacific sought removal to the federal court. It was eventually decided that there was
insufficient basis for federal jurisdiction (Clarence E. Morris, Inc. v. Vitek, 412 F.2d 1174 (9 Cir. 1969)) and the
matter was remanded to the Nevada courts. While the removal proceeding was being litigated, the state court
action proceeded against Vitek alone, was dismissed, and this appeal taken. United Pacific is not a party to the
appeal.

2
NRS 31.030(1) reads: Before issuing the writ, the clerk shall require a written undertaking on the part of
the plaintiff payable in lawful money of the United States, in a sum not less than $200, and not less than
one-fourth of the amount claimed by plaintiff, with two or more sureties to the effect that if the plaintiff dismiss
such action or if the defendant recover judgment the plaintiff will pay in lawful money of the United States all
costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment
including attorney's fees, not exceeding the sum specified in the undertaking. Each of the sureties shall annex to
the undertaking an affidavit that he is a resident and householder or freeholder within the state, and worth double
the sum specified in the undertaking over and above all his debts and liabilities, exclusive of property exempt
from execution. Upon showing by the defendant after notice to the plaintiff, the court may require an additional
bond.
attachment. That charge is essential if the plaintiff seeks damages outside of the bond, and in
an amount greater than the penalty of the bond. Jaksich v. Guisti, 36 Nev. 104, 134 P. 452
(1913); dictum in McIntosh v. Knox, 40 Nev. 403, 409, 165 P. 337 (1937). Had that cause of
action been asserted, the district court would have had an entirely different case before it.
[Headnote 3]
3. The appellant's subordinate contention that the order discharging the attachment in the
underlying case is a judgment within the intendment of NRS 31.030(1) is specious.
Affirmed.
Collins, C. J., Zenoff and Batjer, JJ., and Young, D. J., concur.
____________
85 Nev. 654, 654 (1969) Mainland v. Alfred Brown Co.
ANDY G. MAINLAND, a.k.a. A. G. MAINLAND, d.b.a. SHOCK ELECTRIC COMPANY,
Appellant, v. ALFRED BROWN COMPANY, a Corporation, Respondent.
No. 5839
December 2, 1969 461 P.2d 862
Babcock, Judge.
Action by electrical subcontractor against general contractor to recover value of electrical
equipment and materials delivered to job site and destroyed by fire. The lower court denied
relief and electrical subcontractor appealed. The Supreme Court, Thompson, J., held that
subcontract obligating subcontractor to furnish and install all electrical work for building for
stipulated price, but not designating who should bear risk of loss for destruction by fire of
delivered but uninstalled materials, was a contract for labor and materials to be incorporated
into building and not a contract of sale and therefore subcontractor must bear the loss.
Affirmed.
Robert Callister, of Las Vegas, for Appellant.
1. Contracts; Sales.
Subcontract obligating subcontractor to furnish and install all electrical work for building for stipulated
price, but not designating who should bear risk of loss for destruction by fire of delivered but uninstalled
materials, was contract for labor and materials to be incorporated into building and not a contract of
sale and therefore subcontractor must bear loss.
2. Contracts.
That subcontract for furnishing and installing all electrical work for building provided for progressive
payments to subcontractor did not indicate an intention to shift from subcontractor to general contractor the
risk of loss for equipment and materials delivered to job site before they were installed.
3. Contracts.
One who contracts unqualifiedly to erect a structure for a stipulated price enters into an entire contract to
complete such work and must bear losses resulting from its accidental destruction before completion unless
contract stipulates he will not be responsible for losses occurring in such manner.
4. Contracts.
Although electrical subcontractor's equipment and material were destroyed by fire on job site before
being installed, contractor was obligated to complete written subcontract requiring him to furnish and
install all electrical work for building and stipulated price and therefore alleged oral assurance by general
contractor of reimbursement for fire loss was without consideration and not enforceable against it.
OPINION
This is an action by an electrical subcontractor against the general contractor to recover the
value of electrical equipment and materials delivered to the job site and destroyed by fire.
Neither party was responsible for the fire. The materials so delivered had not been installed in
the building under construction. The written subcontract obligated the subcontractor to
furnish and install all electrical work for the building for a stipulated price and provided for
progressive monthly payments of 90 percent of the work performed in the preceding month
according to estimates thereof approved by the general contractor and the owner. It also
required the subcontractor to assume toward the general contractor all relevant obligations
which the general contractor owed to the owner under the prime contract. The subcontract did
not designate who should bear the risk of loss for the destruction by fire of delivered but
uninstalled materials. The subcontractor contended that title to those materials and the risk of
loss had passed upon delivery to the job site. Subordinately, he argued that he replaced the
destroyed materials and completed his subcontract upon the oral assurance of the general
contractor that he would be reimbursed.
oral assurance of the general contractor that he would be reimbursed.
The district court placed the risk of loss upon the subcontractor. Additionally, that court
found that the oral assurance of payment was without consideration and unenforceable.
Accordingly, relief was denied. We affirm that determination.
[Headnotes 1-3]
1. The subcontract was for labor and materials to be incorporated into a building and was
not a contract of sale. Aced v. Hobbs-Seasack Plumbing Co., 360 P.2d 897 (Cal. 1961);
Authorized Supply Co. of Arizona v. Swift & Co., 277 F.2d 710 (9 Cir. 1960); Rino v.
Statewide Plumbing & Heating Co., 262 P.2d 1003 (Idaho 1953). Therefore, sales concepts
regarding the passing of title and risk of loss are inapposite.
1
One who contracts
unqualifiedly to erect a structure for a stipulated price enters into an entire contract to
complete such work and must bear the losses resulting from its accidental destruction before
completion unless the contract stipulates that he will not be responsible for losses occurring
in such manner. Collins v. Post, 362 P.2d 325 (Ore. 1961); Bianchi v. Maggini, 17 Nev. 322,
332, 30 P. 1004 (1883). A subcontractor is in the same legal position with regard to his
portion of the construction job. Collins v. Post, supra. Since the parties did not, by contract,
shift the risk of loss, that risk remained with the subcontractor.
[Headnote 4]
2. The oral assurance of reimbursement for that loss given by the contractor did not
constitute an enforceable promise. The subcontractor was obligated to complete his contract
notwithstanding such assurance. Consequently, that assurance, or promise, was given without
consideration. Walden v. Backus, 81 Nev. 634, 408 P.2d 712 (1965).
Affirmed.
Collins, C. J., Zenoff, Batjer, and Mowbray JJ., concur.
____________________

1
The appellant's brief and oral argument dwell upon custom and usage evidence tending to show that title
to the destroyed materials had passed from the subcontractor to the owner. Since the owner is not a party to this
case, and since the subcontract is not a contract of sale, we dismiss this argument as irrelevant. Similarly do we
reject as unsound the appellant's contention that the contract provision for progress payments indicated an
intention to shift the risk of loss. That provision was for the convenience of the subcontractor in providing
capital to purchase materials and pay workmen.
____________
85 Nev. 657, 657 (1969) Bodine v. Stinson
GEORGE W. BODINE and KATIE BODINE, Appellants, v. VERLA STINSON, Special
Administratrix of the Estate of WILLIAM W. HAMILTON, Deceased, Respondent.
No. 5850
December 3, 1969 461 P.2d 868
Appeal from order of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Proceeding on appeal from an order of the lower court which dismissed wrongful death
action against special administrator of estate of deceased driver. The plaintiffs appealed. The
Supreme Court, Thompson, J., held that parents and sole heirs of deceased passenger could
not maintain wrongful death action against special administratrix of estate of deceased driver,
but must follow procedure of statutes setting out procedure governing presentation of claims
and maintain suit against general administrator or executor.
Affirmed.
Bradley & Drendel, of Reno, for Appellants.
Goldwater, Taber, Hill & Mortimer, of Reno, for Respondent.
1. Executors and Administrators.
Deceased insured's potential right of exoneration under insurance policy is sufficient estate to justify
grant of administration and satisfies requirement that estate exist before administration is justified.
2. Abatement and Revival.
Liability to actions embraced by statute governing survival of certain causes of action is that of decedent's
estate. NRS 41.110.
3. Abatement and Revival.
Words legal representatives as used in statute governing survival of certain causes of action are not
referable to liability but are used to identify person against whom suit may be instituted. NRS 41.110.
4. Death.
Special administrator, not being liable to creditor of estate and not able to pay his claim, is not a legal
representative subject to suit within contemplation of wrongful death survival statute. NRS 41.110.
5. Death.
Legal representative is one who is authorized to pay claims for which estate is liable, such as general
administrator or executor.
General administrator would have authority to act upon wrongful death claims. NRS 147.110.
Special administrator is not general representative of state; he is emergency officer with limited
authority to care for and preserve estate until executor or general administrator is ascertained or appointed
as its proper legal representative; be is not to conduct administration of estate. NRS 147.070.
Statutory scheme for administration of estate contemplates that all persons having claims against
deceased shall file same in proper form for examination by executor or administrator, and if claim is
rejected suit thereon must be timely filed or it is barred. NRS 147.040, 147.070, 147.110, 147.130.
9. Death.
There is nothing in statutory scheme for administration of estates that suggests that procedure prescribed
therein may be disregarded in prosecuting wrongful death action against estate of deceased tortfeasor.
Procedure to be followed for collection of claims against decedent's estate is the same in every case
without regard to existence of insurance. NRS 139.040 (h, i, k)
Claim procedures specified in statute setting out such procedure must be followed whenever estate of
deceased may be diminished if creditor is successful and this includes wrongful death action. NRS
147.010 et seq., 147.130, subd. 1.
Since special administrator's primary duty is to take possession of and preserve decedent's property, he
has full authority to maintain action necessary to recover property of estate, and may also be required to
defend any claims against decedent for which estate is not liable, but such claims do not fall within statute
governing presentation of claims or bar of nonclaim since they do not diminish estate if successfully
prosecuted. NRS 140.040, subds. 2(a), 3.
Parents and sole heirs of deceased passenger could not maintain wrongful death action against special
administratrix of estate of deceased driver, but must follow procedure of statutes setting out procedure
governing presentation of claims and maintain suit against general administrator or executor. NRS
41.110, 140.040, 147.040, 147.070.
OPINION
This appeal is from an order of the district court dismissing a wrongful death action
commenced by the parents and sole heirs of a deceased passenger against the special
administratrix of the estate of the deceased driver. The dismissal rests upon NRS 140.040{3)
which precludes liability of the special administratrix to an action by a creditor on a claim
against the estate.1 It is contended that the district court erred since a claim under the
wrongful death survival statute [NRS 41.110]2 is one against the decedent's personal
representatives, and not against his estate.
NRS 140.040(3) which precludes liability of the special administratrix to an action by a
creditor on a claim against the estate.
1
It is contended that the district court erred since a
claim under the wrongful death survival statute [NRS 41.110]
2
is one against the decedent's
personal representatives, and not against his estate. Accordingly, the preclusion of NRS
140.040(3) does not apply. We reject this contention and affirm the ruling of the district
court.
[Headnote 1]
The petition for letters of special administration alleged that the deceased tort-feasor left
an estate including a policy of liability insurance. It is well established that a deceased
insured's potential right of exoneration under an insurance policy is a sufficient estate to
justify a grant of administration,
3
and we think, satisfies the requirement of In re Dickerson's
Estate, 51 Nev. 69, 268 P. 769 (1928), that an estate exist before administration is justified.
The confusion with regard to the issue at hand comes about by reason of certain language
in NRS 140.040 defining the powers and duties of a special administrator. Subsection 2(a)
provides that the special administrator may [f]or any and all necessary purposes, commence,
maintain or defend suits and other legal proceedings as an administrator. On the other hand,
subsection 3 provides that [i]n no case shall the special administrator be liable to an action
by any creditor, on any claim against the estate, nor pay any claim against the deceased. It is
our task to reconcile these provisions, if possible, and give meaning to each. The appellants
insist that since a special administrator may maintain an action for wrongful death [Nevada
Paving Inc. v. Callahan, 83 Nev. 208, 427 P.2d 383 (1967)] he may also defend such an
action. The respondent counters with the contention that since a special administrator is not
liable to a creditor of the estate and may not pay his claim, he cannot be the proper party to
defend a wrongful death action. Cf. Weiler v. Ross, 80 Nev. 380, 395 P.2d 323 (1964).
____________________

1
NRS 140.040(3) reads: In no case shall the special administrator be liable to an action by any creditor, on
any claim against the estate, nor pay any claim against the deceased.

2
NRS 41.110 provides: Causes of action arising by virtue of NRS 12.080, 12.090, 41.080 and 41.090 shall
not abate by reason of the death of the person against whom such cause of action shall have accrued, but shall
survive against his legal representatives.

3
Cases collected: Annot. 67 A.L.R.2d 936.
[Headnotes 2-5]
Although NRS 41.110 provides that a cause of action for wrongful death shall not abate
by reason of the death of the person against whom such cause of action shall have accrued,
but shall survive against his legal representatives, it does not follow that such legal
representative is personally liable for the judgment if one is obtained. The liability to actions
embraced by NRS 41.110 is that of the decedent's estate. Zeigler v. Moore, 75 Nev. 91, 99,
335 P.2d 425 (1959) (dictum). The words legal representatives as used therein are not
referable to liability but are used to identify the person against whom suit may be instituted.
Since a special administrator is not liable to a creditor of the estate and may not pay his claim,
he is not a legal representative subject to suit within the contemplation of the wrongful
death survival statute. That legal representative is one who is authorized to pay claims for
which the estate is liable, such as a general administrator or executor.
[Headnotes 6, 7]
A general administrator would have authority to act upon wrongful death claims. NRS
147.110. A special administrator is not a general representative of the estate. He is an
emergency officer with limited authority to care for and preserve the estate until an executor
or general administrator is ascertained or appointed as its proper legal representative. Rich v.
Dixon, 212 A.2d 421 (Conn. 1965); see NRS 140.070. He is not to conduct the
administration of the estate.
[Headnotes 8, 9]
Our statutory scheme for the administration of estates contemplates that [a]ll persons
having claims against the deceased shall file the same (NRS 147.040) in proper form (NRS
147.070) for examination by the executor or administrator (NRS 147.110). If the claim is
rejected suit thereon must be timely filed or it is barred. NRS 147.130. We find nothing to
suggest that this procedure may be disregarded in prosecuting a wrongful death action against
the estate of the deceased tort-feasor. Indeed, since a special administrator may not pay
creditors' claims (NRS 140.040(3)) it is evident that a claimant is forced to proceed under ch.
147.
[Headnote 10]
Sometimes the deceased tort-feasor has no estate except a policy of liability insurance. In
such instance one would not expect his relatives to seek letters of administration to
facilitate a creditor's desire to litigate his claim for damages.
expect his relatives to seek letters of administration to facilitate a creditor's desire to litigate
his claim for damages. The creditor, however, is not foreclosed. He may seek letters of
general administration (NRS 139.040(h)),
4
or persuade the court to appoint the public
administrator (NRS 139.040(i)) or any legally competent person (NRS 139.040(k)). When
this is accomplished the creditor may then proceed under ch. 147 to prosecute his claim for
damages. In short, the procedure to be followed is the same in every case without regard to
the existence of insurance.
[Headnote 11]
The claim procedure specified by ch. 147 must be followed whenever the estate of the
deceased may be diminished if the creditor is successful. This, of course, might happen in a
wrongful death action against the estate of a deceased tortfeasor. The loss for which damages
are claimed may not be covered by liability insurance. If covered, the insurance limits might
prove to be inadequate. In either instance the estate is diminished if the claimant is successful.
Accordingly, the rights asserted by the appellants in this case are included within the bar of
non-claim. NRS 147.130(1).
[Headnotes 12, 13]
What meaning, then, is to be accorded subsection 2(a) of NRS 140.040 upon which the
appellants so heavily rely? That subsection provides that the special administrator may [f]or
any and all necessary purposes, commence, maintain or defend suits and other legal
proceedings as an administrator. Since his primary duty is to take possession of and preserve
the decedent's property, he has full authority to maintain any action necessary to recover
property of the estate. He may also be required to defend any claim against the decedent for
which the estate is not liable. Such claims do not fall within ch. 147 or the bar of non-claim
[Reed v. District Court, 75 Nev. 338, 341 P.2d 100 (1959); Thompson v. Crockett, 19 Nev.
242, 9 P. 121 (1885)] since they do not diminish the estate if successfully prosecuted. Thus
construed, subsection 2(a) of NRS 140.040 is compatible with subsection 3 of that statute.
Full meaning is accorded each subsection without doing violence to either.
____________________

4
Should letters be issued to the creditor, NRS 147.650 designates the procedure to be followed when the
administrator is also a claimant against the estate and we must presume that a judge will reject a disputed claim
for tort damages and appoint insurance company counsel to defend the action.
meaning is accorded each subsection without doing violence to either.
For the reasons expressed the judgment below is affirmed.
Collins C. J., Zenoff, Batjer, and Mowbray, JJ., concur.
____________
85 Nev. 662, 662 (1969) Werner v. Morman
LAWRENCE WERNER, Executor of the Estate of BEN PHILLIPS, Deceased, Appellant, v.
CONNIE MORMON, FIRST TITLE INSURANCE COMPANY, and FIRST WESTERN
SAVINGS AND LOAN ASSOCIATION, Respondents.
No. 5803
December 4, 1969 462 P.2d 42
Wartman, Judge.
Action by personal representative of deceased against person to whom deceased had
loaned money to acquire property and title insurer and savings and loan association claiming
interest therein under deed of trust to recover loan plus interest and for declaration that
plaintiff had a preferred interest in the realty purchased. The lower court ruled that any
interest on the part of the estate was subordinate to the interests of the insurer and savings and
loan association and appeal was taken. The Supreme Court, Thompson, J., held that
agreement under which purchaser's only obligation was to pay party who had advanced
portion of purchase price annual interest during first three years of occupancy, for specified
purpose, and thereafter, to reimburse him should property be sold and pay over one-half of
any profit was a loan or gift of money rather than an agreement creating a resulting trust and
party advancing fund did not acquire an equitable lien, notwithstanding provisions giving
each the right of first refusal to purchase the interest of the other.
Affirmed.
Boyd, Leavitt & Freedman, of Las Vegas, for Appellant.
John Peter Lee, of Las Vegas, for Respondents First Title Insurance Company and First
Western Savings and Loan Association.
Albert M. Dreyer, of Las Vegas, for Respondent Connie Mormon.
1. Trusts.
If one pays all or part of the purchase price for land and the conveyance is made to another, the latter may
hold upon a resulting trust for the former; however, this is not inevitably so, since other possibilities exist,
such as a loan or gift.
2. Trusts.
Before a resulting trust arises the circumstances must raise an inference that the person paying all or part
of purchase price does not intend that the person taking the property should have the beneficial interest
therein.
3. Liens; Trusts.
Agreement under which purchaser's only obligation was to pay party who had advanced portion of
purchase price annual interest during first three years of occupancy, for specified purpose, and thereafter,
to reimburse him should property be sold and pay over one-half of any profit was a loan or gift of money
rather than an agreement creating a resulting trust and party advancing funds did not acquire an equitable
lien, notwithstanding provisions giving each the right of first refusal to purchase the interest of the other.
4. Liens.
In the absence of an agreement that one lending money to another to purchase property is to have a
security interest, the lender has no equitable lien; the intention to create such a lien must clearly appear.
OPINION
This action was commenced by the personal representative of the Estate of Ben Phillips,
deceased, against Connie Mormon, First Title Insurance Company and First Western Savings
and Loan Association, defendants. Its purpose was to recover the sum of $45,000 plus interest
from Connie Mormon, and to have the court declare that the Estate of Ben Phillips enjoyed a
preferred interest in certain real property to the interest therein claimed by First Title and First
Western under a deed of trust thereon. After suit was commenced and issue joined, Connie
Mormon was adjudicated a bankrupt. The federal court authorized the case below to proceed
upon the declaratory aspect of the litigation involving the claimed interests in real property
asserted by the Estate of Phillips on the one hand, and First Title and First Western on the
other. Following trial, the district court ruled that the interest, if any, of the Estate of Phillips
in the real property was subordinate to the interests of First Title as Trustee and First
Western as Beneficiary of the trust deed thereon.
the interests of First Title as Trustee and First Western as Beneficiary of the trust deed
thereon. This appeal followed. We affirm the determination of the district court.
The claim of the Estate of Phillips rests squarely upon a written, recorded agreement
between Ben Phillips and Connie Mormon concerning the real property in issue. The meaning
to be accorded that agreement was the issue presented to the district court, and now to us.
Extrinsic evidence was not received on the point, and the district court's interpretation of the
agreement stems from the document itself without the aid of parol evidence to resolve
apparent ambiguities. It was the contention of the Estate of Phillips that the agreement created
a resulting trust of the land for the benefit of Phillips or, at the very least, an equitable lien
thereon, and since the agreement was placed of record before First Western's deed of trust,
First Western was on notice of Phillips' interest and must be subordinated to it. The district
court, in rejecting these contentions, found that the agreement was for a loan or gift of money
by Phillips to Mormon with provision for a division of profits contingent upon the sale of the
property. We are unable to conclude as a matter of law that the court erred in its interpretation
of the document.
Mormon had an option to purchase improved real property for $50,000 and needed money
with which to exercise her option. Phillips advanced her $45,000 for that purpose. Mormon
put up $5,000, exercised her option and obtained title to the property in her name, all as
provided for by the agreement. The agreement also contained the following relevant
paragraphs:
Upon completion of said sale and the title to said property hereinbefore described being
conveyed to Connie Mormon, Phillips agrees that Mormon shall occupy and continue to
occupy the premises at 827 South Seventh Street, Las Vegas, Nevada, for a period of three
years from the date of said sale, without any demand by Phillips, or payments to be made by
Mormon to Phillips for any part or portion of the $45,000.00 heretofore paid by Phillips,
except, however, that Mormon promises and agrees to pay to Phillips a sum equal to six
percent (6%) interest annually on the sum of $45,000.00 advanced by Phillips, said sum to be
paid in semi-annual installments to Phillips, beginning on the ..... day of ......, 1960, and
continuing to the ..... day of ......, 1963.
Mormon promises and agrees to operate said premises as a childrens' nursery school and
its related business and activities for a period of three years from the date of the acquisition of
said property, and in the event Mormon does not so operate said premises as a nursery
school or ceases to operate said premises and nursery school, then it is agreed by and
between the parties that the property shall be sold, and in the event of a sale of said
property the principal sums heretofore advanced by the parties shall be returned to them
in the proportions said sums have been advanced, and thereafter the parties shall share
equally in any profits over and above the sum of $50,000.00 as and for the purchase price
of the property.
of said property, and in the event Mormon does not so operate said premises as a nursery
school or ceases to operate said premises and nursery school, then it is agreed by and between
the parties that the property shall be sold, and in the event of a sale of said property the
principal sums heretofore advanced by the parties shall be returned to them in the proportions
said sums have been advanced, and thereafter the parties shall share equally in any profits
over and above the sum of $50,000.00 as and for the purchase price of the property.
In the event the premises are not sold or required to be sold for a period of three years
from the date of the acquisition of said property then the parties promise and agree to
renegotiate the terms on which the property may be sold, and in which the disposition of
funds shall be made as to all parties. Provided, however, that in any renegotiation each of the
parties shall be entitled to receive the sums heretofore advanced in the proportion in which
said advancements have been made.
In the event that either of the parties desire to sell their respective interests to a third
party, they shall first offer to the other party to this agreement the right to purchase said
interest and the party to whom said offer of purchase of the other's interest is made shall have
the right of first refusal to accept said offer of purchase of the other's interest so offered, and
thereafter the party making the offer shall have the right to sell the interest offered as
heretofore set out. Any offers submitted in accordance with this paragraph must be submitted
in writing and the parties to whom said offer is made shall have a period of ten days within
which to accept or oreject [sic] said offer, and the acceptance or rejections of said offer must
also be made in writing.
1. The resulting trust contention.
[Headnotes 1, 2]
If one pays all or part of the purchase price for land and the conveyance is made to
another, the latter may hold upon a resulting trust for the former. Frederick v. Haas, 5 Nev.
389 (1870); Boskowitz v. Davis, 12 Nev. 446 (1877); Levy v. Ryland, 32 Nev. 460, 109 P.
905 (1910). However, this is not inevitably so, since other possibilities exist. A loan may
have been intended [Fields v. Fields, 114 N.E.2d 402 (Ill. 1953); Reminger v. Joblonski, 110
N.E. 903 (Ill. 1915); Phillips v. Phillips, 86 A. 949 (N.J. 1913); Restatement (second), Trusts
445 (1959)] in which event a resulting trust does not arise. White v. Sheldon, 4 Nev. 280,
293 {1S6S).
(1868). And, of course, if a gift was intended, the donor obviously would not acquire an
interest in the land. Before a resulting trust arises the circumstances must raise an inference
that the person paying all or part of the purchase price does not intend that the person taking
the property should have the beneficial interest therein. Reminger v. Joblonski, supra, Gomez
v. Cecena, 101 P.2d 477 (Cal. 1940); Restatement (second), Trusts 404 (1959).
[Headnotes 3, 4]
The quoted paragraphs of the agreement before us do not reveal that intention. Indeed, the
opposite appears to be the case. Phillips intended for Mormon to have the beneficial interest
in the property. The grantee was specifically authorized to occupy the premises and to
conduct a nursery school business thereon. There is not the slightest suggestion that Phillips
was to share in either the profits or the losses of that business or that he was to have any
connection with it whatsoever. Mormon's only obligation was to pay Phillips 6 percent
interest annually on the $45,000 advance during the first three years of her occupancy, and
thereafter, to reimburse him should the property be sold and to pay him one half of any profit
over $50,000. This arrangement is incompatible with a resulting trust since Morman was
intended to have a beneficial interest in the property. The district court properly characterized
the agreement as one for a loan or gift of money by Phillips to Mormon with provision for a
division of profits contingent upon the sale of the property.
2. The equitable lien contention.
Subordinately, the Estate of Phillips urges that if a loan of money was contemplated by the
agreement Phillips, nonetheless, acquired an equitable lien upon the property to secure
repayment. On this point Professor Austin Wakeman Scott has stated: Whether one who
advances the purchase price by way of loan to the grantee gets an equitable security interest in
the land depends upon whether the doctrine giving an unpaid vendor an equitable lien is
accepted, and whether that doctrine, if accepted, is extended so as to give an equitable lien to
one who is not the vendor but who advances the purchase price. The doctrine is anomalous,
and probably should not be so extended. 40 Harv.L.Rev. 669, 681 (1927). Accordingly, in
the absence of an agreement that the lender is to have a security interest, he has no such lien.
Aaron Frank Clothing Co. v. Deegan, 204 S.W. 471 (Tex.Civ.App. 1918); 4 Pomeroy, Equity
Jurisprudence 1235 (5th ed. 1941). The intention to create such a lien must clearly appear.
Commercial Credit Corp. v.
Corp. v. Matthews, 77 Nev. 377, 386, 365 P.2d 303 (1961); Union Indemnity Co. v. Drumm,
57 Nev. 242, 62 P.2d 698 (1936), affirmed on rehearing 57 Nev. 252, 70 P.2d 767.
The paragraph of the agreement last quoted in this opinion gives each party the right of
first refusal to purchase the interest of the other. This is the only paragraph of the document
which seems to acknowledge that Phillips had an interest in the property, and to some extent,
casts an ambiguity upon the meaning to be accorded other paragraphs. Whatever the
intention, it seems clear that the interest referred to is not that of a beneficiary of a resulting
trust for reasons already expressed. It is equally clear, we think, that the interest is not a
security interest giving rise to an equitable lien since the context in which the term is used has
no reference to the repayment by Mormon of the money advanced to her. Thus, it cannot be
said that the intention to create an equitable lien to secure the repayment of the money
advanced clearly appears from the document.
Affirmed.
Collins, C. J., Zenoff, Batzer, and Mowbray, JJ., concur.
____________
85 Nev. 667, 667 (1969) Kaminski v. Woodbury
STEVEN KAMINSKI, a Minor, by his Guardian ad Litem, STANLEY J. KAMINSKI and
STANLEY J. KAMINSKI, Appellants, v. CLARE W. WOODBURY, HELEN C. CANNON,
DELL H. ROBISON, GEORGE W. WILKINSON, GLEN C. TAYLOR, C. DONALD
BROWN and ALICK J. MACKIE, as the Board of School Trustees of the Clark County,
Nevada, School District; MELVIN BERGMAN; and CLARK COUNTY SCHOOL
DISTRICT, Respondents.
No. 5827
December 8, 1969 462 P.2d 45
This is an appeal from a summary judgment, Eighth Judicial District Court, Clark County;
Alvin N. Wartman, Judge.
School pupil and parent brought action against school district and teacher for injuries
sustained when pupil was struck by bowl which broke away from lathe during an industrial
arts class. The trial court granted the school district summary judgment and the pupil and
parent appealed. The Supreme Court, Batjer, J., held that where affidavit presented on behalf
of pupil and parent alleged that notice of claim of the pupil and parents was mailed to ex
officio clerk of the State Board of Examiners within six months of the accrual of their
cause of action and the school district presented nothing to prove that the notice of claim
was not presented to its board of trustees within six months of the accrual of the cause of
action as is required by statute, grant of summary judgment on basis that notice of claim
was not timely filed was error.
parents was mailed to ex officio clerk of the State Board of Examiners within six months of
the accrual of their cause of action and the school district presented nothing to prove that the
notice of claim was not presented to its board of trustees within six months of the accrual of
the cause of action as is required by statute, grant of summary judgment on basis that notice
of claim was not timely filed was error.
Thompson, J., and Collins, C. J., dissented.
Wiener, Goldwater & Galatz and J. Charles Thompson, of Las Vegas, for Appellants.
Cromer and Barker, of Las Vegas, for Respondent Melvin Bergman; Bell and Morris, of
Las Vegas, for Respondent Clark County School District.
1. Judgment.
Court hearing motion for summary judgment should view evidence most favorable to the party against
whom it is directed, giving it full weight and resolving all doubt in his favor and giving to that party the
benefit of all favorable inferences that may reasonably be drawn from the subsidiary facts contained in
affidavits, exhibits and depositions on file.
2. Judgment.
In action by school pupil and parent against school district for injury sustained during industrial arts
class, where affidavit alleged that notice of claim was mailed to ex officio clerk of State Board of
Examiners within six months of the accrual of pupil's cause of action and school district presented nothing
to prove that the notice of claim was not presented to its board of trustees within six months of the accrual
of the cause of action as is required by statute, grant of summary judgment to school district on basis that
notice of claim was not timely filed with school district was error. NRS 41.036, 52.070.
3. Schools and School Districts.
If school district board of trustees did receive injured pupil's notice of claim which allegedly had been
mailed to ex officio clerk of State Board of Examiners within six months of the accrual of the pupil's cause
of action, there would be substantial compliance with claim statute. NRS 41.036, 52.070.
OPINION
While attending an industrial arts class at a junior high school in Las Vegas, Nevada, on
May 9, 1967, Steven Kaminski, one of the appellants, suffered injuries when a bowl, which
was being turned, on a lathe, broke away from the lathe and struck him. At the time of the
injury the instructor in charge of the class was Melvin Bergman.
of the class was Melvin Bergman. Bergman's immediate superiors in the school system were
informed of the accident shortly after it happened. It is uncontradicted that on October 17,
1967, the appellants mailed a notice of claim to Howard E. Barrett, Director of
Administration and Ex-Officio Clerk of the State Board of Examiners, and on the same day
filed a claim with the Board of County Commissioners of Clark County, Nevada. On
November 29, 1967, some six months and twenty days after the accident, the appellants
served a notice of claim on C. D. Brown, a member of the Board of Trustees of the Clark
County School District. A claim of the appellants was rejected by Clark County on October
20, 1967, and by the school district on January 4, 1968.
On April 16, 1968, the appellants filed a complaint for damages for personal injury against
the Board of Trustees of the Clark County School District and Melvin Bergman. On June 18,
1968, the respondents moved for a summary judgment. Sometime thereafter, the trial court
entered its order granting summary judgment to both the board of trustees and to Melvin
Bergman, however, upon a motion for reconsideration, the order for summary judgment
previously granted to Melvin Bergman was vacated. Although the trial court gives no specific
reason for granting the summary judgment to the school district, it is presumed that it was
upon the grounds that the notice of claim was not timely filed in accordance with NRS
41.036.
1
This appeal is taken from the granting of the summary judgment.
____________________

1
NRS 41.036: 1. No action shall be brought under NRS 41.031 against a county without complying with
the requirements of NRS 244.245 to 244.255, inclusive, or against a city without complying with the
requirements of NRS 268.020, or against an unincorporated town without complying with the provisions of NRS
269.085, or against the state or any agency or other political subdivision of the state without complying with the
requirements of subsection 2 or 3 of this section.
2. Every claim against the state arising out of contract shall be presented in accordance with the provisions
of NRS 353.085 to 353.100, inclusive, and every claim for refund in accordance with the provisions of NRS
353.110 to 353.125, inclusive. Every other claim against the state or any of its agencies shall be presented to the
ex officio clerk of the state board of examiners within 6 months from the time the cause of action accrues. He
shall within 10 days refer each such claim to the appropriate state agency, office or officer for investigation and
report of findings to the board. No action may be brought unless the board refuses to approve or fails within 90
days to act upon the claim.
3. Every claim against any other political subdivision of the state shall be presented, within 6 months from
the time the cause of action accrues, to the governing body of that political subdivision. No action may be
brought unless the governing body refuses to approve or fails within 90 days to act upon the claim.
The appellants contend that the trial court erred as a matter of law when it granted
summary judgment to the school district. We agree.
The plaintiffs (appellants) alleged that prior to the filing of the complaint, notice of claim,
pursuant to the Nevada Revised Statutes, was duly served upon the defendant board of
trustees. In their answer the respondent board of trustees deny that allegation and allege, as an
affirmative defense, that the plaintiffs have failed to meet and comply with the regulatory
statutes waiving sovereign immunity of the defendants and therefore have failed to meet with
conditions precedent to the filing of this action . . . , and in their motion for summary
judgment alleged that plaintiffs had failed to present a claim to the governing body of the
defendant Clark County Nevada School District, a political subdivision of the State of
Nevada, within six (6) months after the alleged cause of action accrued as required by
statute.
The affidavit of C. Donald Brown, a member of the board of trustees, merely states that he
was served on behalf of the appellants on November 29, 1967 with a notice of claim.
The letter dated January 5, 1968, from the school district, to the appellants, and the
document attached thereto advised the appellants that the claim on behalf of Steven Kaminski
was denied. It does not indicate when the claim was received or if more than one claim had
been received. Nothing was offered in the nature of affidavits, depositions or exhibits which
would go to prove that a notice of claim on behalf of the appellants was not presented to the
board of trustees within six (6) months of the accrual of their cause of action.
On the other hand, the affidavit of J. Charles Thompson, given on behalf of the appellants,
alleges that on October 17, 1967, he mailed to Howard E. Barrett, ex-officio clerk of the state
board of examiners, a notice of claim. The law requires that the ex-officio clerk refer the
claim to the appropriate state agency, office or officer.
Although a board of trustees of a county school district is not a state agency, it is a
reasonable presumption that the ex-officio clerk received the notice of claim (NRS 52.070),
and a reasonable inference that he referred it to the board of trustees.
Whether the board of trustees received the appellants' claim before November 9, 1967, is
an important question of fact which must be decided before summary judgment can be
sustained. The record is silent on this question.
NRS 41.036 only requires that the notice of claim be timely 'presented' and does not
make any specific requirement as to how or by whom the presentation is to be made.
presented' and does not make any specific requirement as to how or by whom the
presentation is to be made.
[Headnote 1]
The court hearing the motion for summary judgment should view the evidence most
favorable to the party against whom it is directed, giving it full weight and resolving all doubt
in his favor and giving to that party the benefit of all favorable inferences that may reasonably
be drawn from the subsidiary facts contained in the affidavits, exhibits and depositions on
file. Parman v. Petricciani, 70 Nev. 427, 272 P.2d 492 (1954); Short v. Hotel Riviera, Inc., 79
Nev. 94, 378 P.2d 979 (1963); United States v. Diebold, Inc., 369 U.S. 654 (1962); Ramsouer
Midland Valley R. Co., 135 F.2d 101 (1943); Allison v. Mennonite Publications Board, 123
F.Supp. 23 (1954); Nordstrom v. Radio Corporation of America, 251 F.Supp. 41 (1965);
Boro Hall Corp. v. General Motors Corp., 68 F.Supp. 589 (1946).
[Headnote 2]
An examination of the record in the light most favorable to the appellants leads us to
believe that inferences contrary to those drawn by the trial court are permissible.
[Headnote 3]
Should it develop that the board of trustees did in fact receive the appellants' claim from
H. E. Barrett or the board of county commissioners of Clark County, on or before November
9, 1967, then there is substantial compliance with NRS 41.036. Rogers v. State, 85 Nev. 361,
455 P.2d 172 (1969).
The order of the trial court is reversed and the case is remanded for further consideration
of the respondents' motion for summary judgment with full opportunity for all parties to
establish whether or not the board of trustees of the Clark County School District was
presented with the appellants' notice of claim on or before November 9, 1967.
Zenoff and Mowbray, JJ., concur.
Thompson, J., with whom Collins, C. J., agrees, dissenting:
The relevant requirements of NRS 41.036(1) and (3) were not met. The record does not
reflect that the plaintiffs presented a claim to the governing body of the school district or to
one of its members [cf. Rogers v. State, 85 Nev. 361, 455 P.2d 172 (1969)] within six months
from the time their cause of action accrued.
action accrued. Indeed, the record shows that the claim to the school district was presented
late. The presentation of claims to state and county boards who are powerless to act upon
them cannot be deemed compliance of any description, substantial or otherwise. Neither is it
permissible to infer that such claims may have been forwarded by those boards to the
governing body of the school district since a precondition to one's right to sue must be shown
to exist. It is not to be inferred. Summary judgment was proper.
____________
85 Nev. 672, 672 (1969) Eisentrager v. State Bd. Parole
THOMAS A. EISENTRAGER, Petitioner, v. STATE
BOARD OF PAROLE COMMISSIONERS, Respondent.
No. 5852
December 8, 1969 462 P.2d 40
Petition for a writ of certiorari to review a determination of the State Board of Parole
Commissioners that the petitioner is ineligible to apply for parole and to set aside that
determination.
The Supreme Court, Batjer, J., held that determination of Board of Parole Commissioners
that petitioner was ineligible for parole because of statute which denies parole to anyone who
has been previously convicted of more than three felonies would not be set aside as denial of
due process in absence of assertion that prior convictions were invalid or that Board had acted
improperly.
Petition denied.
Manoukian and Manoukian, of Carson City, for Petitioner.
Harvey Dickerson, Attorney General, Robert A. Groves, Deputy Attorney General, of
1. Pardon and Parole.
Legislature has exclusive power to determine terms and conditions of parole, and in enacting statute
denying parole to anyone who has been previously convicted of more than three felonies it is merely
exercising its constitutional power. NRS 213.110.
Statute denying parole to anyone who has been previously convicted of more than three felonies is not
restricted to persons convicted and sentenced as habitual criminals, but excludes from consideration for
parole all persons with more than three valid felony convictions. NRS 213.110.
State Board of Parole Commissioners in applying statute denying parole to anyone who has been
previously convicted of more than three felonies must satisfy itself from certified court records of prior
convictions that they are valid on their face and reflect that accused in each instance had a lawyer or validly
waived one. NRS 213.110.
Determination of Board of Parole Commissioners that petitioner was ineligible for parole because of
statute which denies parole to anyone who has been previously convicted of more than three felonies would
not be set aside as denial of due process in absence of assertation that prior convictions were invalid or that
Board had acted improperly. NRS 213.110; U.S.C.A.Const. Amends. 6, 14.
OPINION
The petitioner is incarcerated in the Nevada State Prison for a term of not less than 10
years nor more than life after having been found guilty by a jury of the crime of murder in the
second degree. He has recently been advised by the authorities that he is ineligible for parole
because NRS 213.110
1
denies parole to anyone who has been previously convicted of more
than three felonies.
In support of his petition he contends that the State Board of Parole Commissioners
exceeded its jurisdiction when they denied him the opportunity to apply for parole, and
because of this decision in excess of their jurisdiction his constitutional rights to due process
have been violated, causing him to suffer enhanced punishment.
Without so much as a hint that one or more of his prior felony convictions were invalid, or
an allegation that they are void on their face, or even a claim that the parole commissioners
had failed or refused to determine their validity, the petitioner attempts to invoke the rule
of Gideon v. Wainwright, 372 U.S. 335 {1963), which established that the right to counsel
guaranteed by the Sixth Amendment was applicable to the states by virtue of the
Fourteenth Amendment of the United States Constitution, making it unconstitutional to
try a person for a felony in a state court unless he had a lawyer or had validly waived one.
He further insists that Gideon is applicable to this case through Burgett v. Texas, 3S9 U.S.
109 {1967), where the United States Supreme Court said: "To permit a conviction
obtained in violation of Gideon v. Wainwright to be used against a person either to
support guilt or enhance punishment for another offense {See Greer v. Beto, 3S4 U.S.
269) is to erode the principle of that case.
____________________

1
NRS 213.110: 1. Subject to the provisions of NRS 213.120, the board shall have power to establish rules
and regulations under which any prisoner who is now or hereafter may be imprisoned in the state prison and who
has not previously been more than three times convicted of a felony and served a term in a penal institution, or
who is imprisoned in a county jail, may be allowed to go upon parole outside of the buildings or inclosures, but
to remain, while on parole, in the legal custody and under the control of the board and subject at any time to be
taken within the inclosure of the state prison or county jail.
2. The board, for good cause and in order to permit induction into the military service of the United States,
may suspend paroles during the period of the parolee's active service after induction into the military service.
void on their face, or even a claim that the parole commissioners had failed or refused to
determine their validity, the petitioner attempts to invoke the rule of Gideon v. Wainwright,
372 U.S. 335 (1963), which established that the right to counsel guaranteed by the Sixth
Amendment was applicable to the states by virtue of the Fourteenth Amendment of the
United States Constitution, making it unconstitutional to try a person for a felony in a state
court unless he had a lawyer or had validly waived one. He further insists that Gideon is
applicable to this case through Burgett v. Texas, 389 U.S. 109 (1967), where the United
States Supreme Court said: To permit a conviction obtained in violation of Gideon v.
Wainwright to be used against a person either to support guilt or enhance punishment for
another offense (See Greer v. Beto, 384 U.S. 269) is to erode the principle of that case. Worse
yet, since the defect in the prior conviction was denial of the right to counsel, the accused in
effect suffers anew from the deprivation of that Sixth Amendment right.
We reject all of the petitioner's contentions.
In Pinana v. State, 76 Nev. 274, 352 P.2d 824 (1960), this court said: The subject of
parole in this state is within the legislative authority given by the constitution to the
legislature. Art. 4, Sec. 1, Nevada Constitution. Parole is not a constitutional right; it is a right
bestowed by legislative grace. Zink v. Lear, 28 N.J.Super. 515, 101 A.2d 72.
[Headnote 1]
The legislature has the exclusive power to determine the terms of and conditions of parole,
and in enacting NRS 213.110 it was merely exercising its constitutional power.
At the outset several questions became apparent. What was the intent of the legislature
when NRS 213.110 and its predecessors were enacted? Whom did the legislature have in
mind when it used the words any prisoner . . . who has not previously been more than three
times convicted of a felony . . .? Did they have in mind only a recidivist who had been
judicially adjudged a habitual criminal, or did they wish to include those prisoners who came
within that class but have not been so adjudged?
[Headnote 2]
From March 25, 1929 until 1933, no prisoner who had been previously convicted of a
felony and had served a term in a penal institution was eligible to be considered for parole. In
1933 the predecessor of NRS 213.110 was amended so that the prisoners ineligible for parole
would be those who had more than three previous felony convictions and had served a
term in a penal institution.
than three previous felony convictions and had served a term in a penal institution. There is
no indication that the legislature intended to include only those prisoners who had been
convicted and sentenced as habitual criminals.
It is apparent that the legislature intended to exclude from consideration for parole all
prisoners with more than three prior valid felony convictions.
[Headnote 3]
It is both proper and desirable for the State Board of Parole Commissioners to enact and
promulgate rules for the handling of the applications of those ineligible prisoners. We
caution, however, that the board may not merely act as a calculator and add up the prior
convictions appearing in a rap sheet to determine parole eligibility. The board must be
satisfied from certified court records of the prior convictions that they are valid on their face
and reflect that the accused in each instance had a lawyer or had validly waived one. Burgett
v. Texas, supra.
[Headnote 4]
Since it is not asserted that the prior convictions are invalid and that the board therefore
acted improperly when it classified the appellant as being ineligible for parole, this court
refuses to vacate and set aside the decision and determination of the respondent. The petition
is denied.
Collins, C. J., Thompson, J., Mann, D. J., and Gregory, D. J., concur.
____________
85 Nev. 675, 675 (1969) Phillips v. Adams
FRANK PHILLIPS, dba FRANK PHILLIPS, General Contractor, Appellant, v. ANCIL A.
ADAMS, Jr., and THELMA L. ADAMS, His Wife, Respondents.
No. 5797
December 10, 1969 462 P.2d 35
Appeal from the First Judicial District Court, Storey County; Frank B. Gregory, Judge.
Action to recover on alleged contract for remodeling house. The lower court rendered
judgment from which plaintiff appealed. The Supreme Court, Collins, C. J., held that order of
reference directing special master to ascertain amount due plaintiff from defendant and to
make findings as to value of work and material, etc., authorized findings and conclusions that
there had been no open-end contract and that plaintiff was entitled to certain total price.
that there had been no open-end contract and that plaintiff was entitled to certain total price.
Affirmed.
Abbott & McKibben, of Minden, for Appellant.
Martillaro & Bucchianeri, of Carson City, for Respondents.
1. Reference.
Order of reference directing special master to ascertain amount due plaintiff from defendant and to make
findings as to value of work and material, etc., authorized findings and conclusions that there had been no
open-end contract and that plaintiff was entitled to certain total price. NRCP 53(c).
Plaintiff who appealed from judgment on special master's report did not have standing to urge that master
committed reversible error by not filing transcript of proceedings when he filed report where plaintiff had
not advanced cost of transcript until more than year after report was filed. NRCP 53(e).
Supreme Court on appeal from judgment on special master's report could not consider transcript which
was never before district court.
OPINION
Respondents (defendants below) entered into a contract with appellant (plaintiff below) to
remodel their home in Virginia City.
The exact nature of the contract, at least from the evidence presented, is not clear.
Appellant contends it was an open-end contract for material, labor, and a 10 percent profit.
Respondents contend it was for an approximate sum certain to include labor, material, and
profit, but not to exceed $12,000.
Appellant proceeded with the work and had been advanced $9,000 by respondents without
any accounting of expenditures or cost breakdown. He asked for another $2,000. Respondents
demanded an accounting, an argument ensued and appellant walked off the job. Appellant
filed a lien against the premises and a suit against respondents in which he claimed
indebtedness for labor, material, and a 10 percent profit, totaling $18,266.92, less $9,000
paid. Since numerous business records, and material and labor costs were involved, both
parties agreed to have the court refer the matter to a special master pursuant to NRCP 53.
The report of the special master rendered after receiving testimony and evidence found
there was no open-end contract for labor, material and a profit, and that appellant's records
were in such deplorable condition as to make it impossible to accurately determine the
material and labor put into respondents' home.
for labor, material and a profit, and that appellant's records were in such deplorable condition
as to make it impossible to accurately determine the material and labor put into respondents'
home. The evidence indicated respondents had to spend an additional $2,500 to finish the
work agreed to be done by appellant when he walked off the job. Relying to a certain extent
upon an opinion from an expert witness as to the value of the work done by appellant, his
own view of the premises, and the testimony of the parties, the special master concluded
appellant was entitled to a total price of $12,728.99 [corrected by this court from $12,723.99
because of an obvious error in calculation], less $9,000 paid by respondents, and
recommended to the court that appellant recover judgment of $3,728.99 [corrected from
$3,723.99], together with interest at 7 percent per annum from June 23, 1964, and a
reasonable attorney's fee to be fixed by the court.
The court approved the recommendation and entered judgment for appellant in the amount
of $3,728.99 but modified the interest to run from March 8, 1968, instead of June 23, 1964. It
is from that judgment the appeal was taken.
Appellant urges three grounds of error in seeking reversal of the judgment. They are:
I. Did the report of the special master exceed the areas referred to him for determination
by the District Court's order of reference?
II. Did the special master commit reversible error by not filing a transcript of proceedings
at the time he filed his report with the District Court?
III. Were the findings of the special master clearly erroneous when viewed in light of the
record before this court?
1. NRCP 53(c) provides:
Powers. The order of reference to the master may specify or limit his powers and may
direct him to report only upon particular issues or to do or perform particular acts or to
receive and report evidence only and may fix the time and place for beginning and closing the
hearings and for the filing of the master's report.
The order of reference reads in part as follows:
IT IS ORDERED, ADJUDGED AND DECREED, that Cameron M. Batjer, Esq., be, and
he is, hereby designated and appointed as Special Master, to ascertain the amount now due on
the lien of plaintiff in this cause for defendants, including principal and interest to this date,
and that he report back to the Court with all convenient speed his findings of fact in the
following particulars: "{1) as to the nature, quantities, and values of materials furnished to
or for the benefit of defendants by or through plaintiff to remodel, modify, change and
improve the residence and real property of defendants, as said property is described in
the complaint on file herein;
(1) as to the nature, quantities, and values of materials furnished to or for the benefit of
defendants by or through plaintiff to remodel, modify, change and improve the residence and
real property of defendants, as said property is described in the complaint on file herein;
(2) as to the nature, quantities, and values of work and labor furnished to or for the
benefit of defendants by or through plaintiff to remodel, modify, change and improve the
residence and real property of defendants, as said property is described in the complaint on
file herein; and
(3) in making findings as aforesaid, to relate the same to statements of account, vouchers,
records, time cards, receipts, and other business records of either or both of the parties and
bearing upon the matter at issue here. (Emphasis added.)
[Headnote 1]
We have examined the record on appeal and conclude the special master had the authority
under the order of reference to consider, make findings and reach conclusions as he did. The
evidence before the master, especially appellant's records, permitted no other handling of the
matter.
2. The provisions of NRCP 53(e) read as follows:
53(e) Report
(1) Contents and Filing. The master shall prepare a report upon the matters submitted to
him by the order of reference and, if required to make findings of fact and conclusions of law,
he shall set them forth in the report. He shall file the report with the clerk of the court and in
an action to be tried without a jury, unless otherwise directed by the order of reference, shall
file with it a transcript of the proceedings and of the evidence and the original exhibits. The
clerk shall forthwith mail to all parties notice of the filing.
[Headnote 2]
Appellant has no standing to urge this point; he did not advance the cost of the transcript
until one year and five months after the master report had been filed with the court. See 5
Moore's Federal Practice 53.10.
[Headnote 3]
3. The transcript of the master's hearing was never before the district court. Thus, this
court cannot now consider that transcript as part of the decisional process of the lower court.
Wilson v. Wilson, 55 Nev. 57, 24 P.2d 317 (1933).
The judgment below is affirmed.
Zenoff, Mowbray, and Thompson, JJ., and Wilkes, D. J., concur.
____________
85 Nev. 679, 679 (1969) Tellis v. State
MELVIN TELLIS, Appellant, v. THE STATE
No. 5859
December 15, 1969 462 P.2d 526
Appeal from judgment of the Eighth Judicial District Court, Clark County; Roscoe H.
Wilkes, Judge.
Defendant was convicted in the lower court of burglary, and he appealed. The Supreme
Court, Mowbray, J., held that evidence was sufficient to support inference that defendant
found outside liquor store with freshly sawed metal filings on his clothing aided and abetted
another caught crawling through window from which metal bar had been sawed away in
burglary of the liquor store.
Affirmed.
Harvey Dickerson, Attorney General; George E. Franklin, Jr., District Attorney, and
Melvin T. Harmon, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Where there is substantial evidence in record to support verdict of jury, it will not be overturned by an
appellate court.
2. Burglary.
Sufficient evidence supported reasonable inference that defendant found outside a liquor store with
freshly sawed metal filings on his clothing aided and abetted another caught exiting via small window in
store from which metal bar had been sawed away in burglary of the liquor store. NRS 195.020,
205.060.
OPINION
By the Court, Mowbray J.:
A jury found Melvin Tellis guilty of the crime of burglary. He has appealed, asserting that
insufficient evidence was adduced at the trial to establish his guilt beyond a reasonable doubt.
We reject this contention, and we affirm the judgment of conviction.
[Headnote 1]
It has been well established that where there is substantial evidence in the record to
support the verdict of the jury, it will not be overturned by an appellate court.
will not be overturned by an appellate court. Cross v. State, 85 Nev. 580, 460 P.2d 151
(1969); Criswell v. State, 84 Nev. 459, 443 P.2d 552 (1968); Crowe v. State, 84 Nev. 375,
441 P.2d 90 (1968); Henry v. State, 83 Nev. 194, 426 P.2d 791 (1967).
[Headnote 2]
Tellis and a codefendant, James Eason, were charged by Information with burglarizing the
Weiss Liquor Store in Clark County.
1
The record shows that Roy A. Weiss, owner of the
store, locked it at the close of business on October 2, 1968. Other than Weiss, no one had
access to a key to the premises except the agents of Alarmco Inc., who had installed an alarm
system in the building. Later in the night, about 11 o'clock, the alarm was tripped and went
off. Police officers from the City of Las Vegas soon arrived and observed Tellis standing
outside near the rear door of the building. Tellis started fumbling with his trousers and
walked toward one of the officers, declaring that he had just answered a call of nature. The
officers searched but could find no evidence of the call. In the meantime, Eason, who had
been in the building, suddenly exited via a small window in the men's rest room, proclaiming
at once to the officers that Tellis was not with him and that Tellis was not involved in any
way. Upon examination of the building, the officers found that entry had been made through
the window in the men's rest room, from which Eason had taken his leave. One of the metal
bars that had secured the window had been sawed away. The window was 5 feet from the
ground. Once inside the rest room, the burglar knocked a hole through the plasterboard of the
rest room and entered the main storeroom. Five cases of beer, wine, and liquor were found
stacked inside the rest room near the window, evidently to be handed through the window to
Tellis, who stood watch outside the building. At the police station, the officers found freshly
sawed metal filings on Tellis's clothing.
NRS 195.020 provides:
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; . . . is a principal, and shall be proceeded
against and punished as such. . . ."
____________________

1
NRS 205.060 reads, in part:
1. Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn,
stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or housetrailer, or railroad car,
with intent to commit grand or petit larceny, or any felony, is guilty of burglary.
commission, and whether present or absent; . . . is a principal, and shall be proceeded against
and punished as such. . . .
Clearly, in the record before us there is ample evidence from which the jury could draw the
reasonable inference that Tellis aided and abetted Eason in the burglary of the liquor store;
therefore, the judgment of conviction is affirmed.
____________
85 Nev. 681, 681 (1969) Robertson v. Sheriff
EUGENE ROBERTSON, Appellant, v. SHERIFF,
No. 6026
December 15, 1969 462 P.2d 528
Appeal from denial of petition for a writ of habeas corpus; Eighth Judicial District Court,
Clark County; Howard W. Babcock, Judge.
Relator brought habeas corpus proceeding against sheriff to contest sufficiency of evidence
presented at preliminary hearing to establish necessary probable cause to believe that offense
was committed and that relator committed it. The lower court rendered an order denying
petition of relator, and the relator appealed. The Supreme Court, Mowbray, J., held that
presence of relator in group with four other men when one of the group committed robbery
justified the binding of the relator in preliminary hearing over to district court to answer
charge of crime of robbery.
Affirmed.
1. Criminal Law.
At preliminary hearing there need not be produced quantum of proof required at trial to establish guilt of
offender beyond reasonable doubt.
2. Criminal Law.
Either in preliminary hearing or in proceedings before grand jury there must be evidence adduced which
establishes probable cause to believe that offense has been committed and that
defendant committed it.
cause to believe that offense has been committed and that defendant committed it.
3. Criminal Law.
Where accused was present with four other men when one of the group committed robbery, accused was
properly charged with robbery at preliminary hearing.
4. Criminal Law.
Presence of accused at place of commission of a felony by another is evidence to be considered in
determining whether or not accused was guilty of aiding and abetting, and presence, companionship, and
conduct before and after offense are circumstances from which participation of accused in criminal intent
may be inferred.
OPINION
Eugene Robertson was charged with the crime of robbery. After a preliminary hearing he
was bound over to the district court and held to answer the charge. Prior to entering his plea
in district court, he filed a habeas petition contesting the sufficiency of the evidence presented
during the preliminary hearing to establish the necessary probable cause to believe that an
offense has been committed and that the defendant has committed it. NRS 171.206. We
affirm the district judge's order denying the petition for habeas.
The main thrust of Robertson's argument is that the evidence presented to the magistrate
merely establishes that Robertson was present during the commission of the crime, but that
there is nothing in the record of the preliminary hearing to show that he aided or abetted in
the commission of the crime. NRS 195.020.
1

[Headnotes 1, 2]
At a preliminary hearing there need not be produced the quantum of proof required at a
trial to establish the guilt of the offender beyond a reasonable doubt. As this court ruled in
Maskaly v. State, 85 Nev. 111, 113, 450 P.2d 790, 792 (1969):
It is well established that either in a preliminary hearing or in proceedings before a
grand jury there must be evidence adduced which establishes probable cause to believe
that an offense has been committed and that the defendant has committed it."
____________________

1
NRS 195.020:
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; . . . is a principal, and shall be proceeded against and punished as such.
or in proceedings before a grand jury there must be evidence adduced which establishes
probable cause to believe that an offense has been committed and that the defendant has
committed it.
In Marcum v. Sheriff, 85 Nev. 175, 178, 451 P.2d 845, 847 (1969), we said:
A preliminary examination is not a substitute for trial. . . . Its purpose is to determine
whether a public offense has been committed and whether there is sufficient cause to believe
that the accused committed it. The state must offer some competent evidence on those points
to convince the magistrate that a trial should be held. The issue of innocence or guilt is not
before the magistrate. That function is constitutionally placed elsewhere. The full and
complete exploration of all facets of the case is reserved for trial and is not the function of a
preliminary examination. See also Brown v. Sheriff, 85 Nev. 544, 459 P.2d 215 (1969);
McKenna v. Sheriff, 85 Nev. 524, 458 P.2d 358 (1969).
[Headnote 3]
In this case the record shows that Robertson was present with four other men when one of
the group accosted the victim, Edward Bumbera, produced a pistol, and robbed Bumbera of
his money and wrist watch. Bumbera and his companion, Shirley Mae Wesley, testified at the
preliminary hearing. There was no doubt as to the identity of the robber and the presence of
Robertson with his three other companions. But Robertson claims that mere presence under
the facts developed is not enough to establish probable cause that Robertson was involved in
the commission of the crime. We believe it is.
[Headnote 4]
As the court said in People v. Adams, 66 Cal.Rptr. 161, 165 (Cal.App. 1968): The courts,
. . . have uniformly recognized and applied the following rule: The presence of one at the
commission of a felony by another is evidence to be considered in determining whether or not
he was guilty of aiding and abetting; and it has also been held that presence, companionship,
and conduct before and after the offense are circumstances from which one's participation in
the criminal intent may be inferred. [Citations.] (People v. Moore (1953) 120 Cal.App.2d
303, 306, 260 P.2d 1011, 1013. Accord: People v. Belenger (1963) 222 Cal.App.2d 159,
165, 34 Cal.Rptr. 918; and People v. Eskew (1962) 206 Cal.App. 2d 205, 207, 23 Cal.Rptr.
466. . . .
The order denying Robertson's petition for habeas is affirmed.
____________
85 Nev. 684, 684 (1969) Powell v. Sheriff
BILLY RAY POWELL, Appellant, v. SHERIFF, CLARK
COUNTY, NEVADA, Respondent.
No. 5814
December 17, 1969 462 P.2d 756
This is an appeal from the denial of a petition for a writ of habeas corpus; Eighth Judicial
District Court, Clark County, Thomas J. O'Donnell, Judge.
The trial court denied writ and petitioner appealed. The Supreme Court, Batjer, J., held
that where there was no finding of guilt at juvenile court hearing, at which juvenile was not
represented by counsel or informed of right to be so represented, but only a certification that
juvenile be tried as an adult defender and juvenile was not deprived of his right to present
defenses to charges in district court, absence of counsel at certification hearing did not affect
reliability of guilt determining process and did not call for retroactive application of United
States Supreme Court decision governing right of juveniles to assistance of counsel and other
constitutional guarantees.
Affirmed.
Addeliar D. Guy, Deputy District Attorney, of Las Vegas, for Respondent.
1. Infants.
Certification of juvenile as an adult offender without a full investigation was error but error was cured
when juvenile, with advice of competent counsel, pled guilty to burglary charge. NRS 62.080.
2. Criminal Law.
Where guilty plea is not coerced and defendant was competently represented by counsel at time plea was
entered, subsequent conviction is not open to collateral attack and any errors are superseded by guilty plea.
3. Courts.
Where there was no finding of guilt at juvenile court hearing, at which juvenile was not represented by
counsel or informed of right to be so represented, but only a certification that juvenile be tried as an adult
defender and juvenile was not deprived of right to present defenses to charges in district court, absence of
counsel at certification hearing did not affect reliability of guilt determining process and did not call for
retroactive application of United States Supreme Court decision governing right of juveniles to assistance
of counsel and other constitutional guarantees.
Failure of trial judge to advise defendant of maximum and minimum sentence prior to acceptance of
guilty plea did not constitute denial of due process where defendant had assistance of counsel, who testified
that he had advised defendant of possible sentence, and it was established at post-conviction hearing that
defendant was fully advised of his rights in all material respects, including sentence, when plea was
entered.
OPINION
Appellant was seventeen years of age when he was charged, on March 3, 1966, with
burglary, carrying a concealed weapon and the violation of curfew. Thereafter, while he was
free on a return agreement, he was arrested on another charge of burglary.
When the appellant appeared in Juvenile Court, on March 31, 1966, with his parents, to
answer a petition which had been filed March 14, 1966, he was not represented by counsel,
nor was he advised that he had a right to be represented by an attorney. The record indicates
that the purpose for the hearing was to consider the charges that had been lodged against the
appellant and there is no indication that the question of certification within the provisions of
NRS 62.080
1
was to be considered. However, after a brief statement
2
by the judge he was
certified to be tried as an adult.
____________________

1
NRS 62.080: If a child 16 years of age or older is charged with an offense which would be a felony if
committed by an adult, the court, after full investigation, may in its discretion retain jurisdiction or certify the
child for proper criminal proceedings to any court which would have trial jurisdiction of such offense if
committed by an adult; but no child under 16 years of age shall be so certified.

2
Court: When will you be eighteen, Billy?
A. February 3rd, next year.
Court: You know as far as this department is concerned I think you've about run the route. I don't know
what we can do for you. I'm going to certify this boy as an adult. He will be remanded to the custody of the Las
Vegas Police Department for further handling.
After being certified as an adult the appellant appeared in district court with counsel, and
entered a plea of not guilty. A few days later he again appeared with counsel, withdrew his
plea of not guilty, and entered a plea of guilty to the charge of burglary. Before allowing the
appellant to withdraw his plea of not guilty the trial judge carefully questioned him about the
voluntariness of his decision to change his plea from not guilty to guilty, and his
understanding of the consequences of his act. The trial judge also determined that appellant's
counsel had fully discussed with him the nature of the charge and had explained to him his
constitutional rights.
Although the trial judge did not specifically advise the appellant of the penalty, his counsel
testified at the post-conviction hearing that he had advised the appellant of the consequences
of his change of plea and the penalty which he could incur.
Sometime later, through different counsel, the appellant moved the trial court to reinstate
his plea of not guilty. That motion was denied and the appeal from that denial was dismissed
by this court.
On October 24, 1968, the appellant's petition for post-conviction relief was denied, and
from that order he appeals on the ground that he was denied due process of law because he
was not afforded a full investigation and hearing at the time he was certified to be tried as an
adult; that he was without the services of an attorney at the time of certification; and that the
trial judge failed to advise him of the minimum and maximum sentence which could be
imposed against him upon his plea of guilty.
The appellant relies on Kent v. United States, 383 U.S. 541 (1966) and In re Gault, 387
U.S. 1 (1967), to support his contention that he was entitled to the assistance of counsel and a
full investigation and hearing at the time of his certification.
While Kent was decided ten days before the appellant was certified, that case is not
applicable because the United States Supreme Court declined to decide the Kent case on
constitutional grounds, saying: The Juvenile Court Act and the decisions of the United
States Court of Appeals for the District of Columbia Circuit
3
provide an adequate basis for
decision of this case, and we go no further.
____________________

3
E.g., Black v. United States, 122 U.S.App.D.C. 393, 355 F.2d 104 (1965) (a certification case, construing
. . . [a District of Columbia] Act as providing a right to appointed counsel and to be informed of that right.')
[Headnote 1]
Here, however, the juvenile court did not follow NRS 62.080, and therefore committed
error when it certified the appellant without a full investigation, but this error was cured when
the appellant, with the advice of competent counsel, plead guilty to the charge of burglary.
[Headnote 2]
It is now the established law of this state that where a guilty plea is not coerced and the
defendant was competently represented by counsel at the time it was entered, the subsequent
conviction is not open to collateral attack and any errors are superseded by the plea of guilty.
Hall v. Warden, 83 Nev. 446, 434 P.2d 425 (1967).
In Rainsberger v. State, 81 Nev. 92, 399 P.2d 129 (1965), this court said: A different
complexion is cast upon claimed constitutional violations and other claims of error when, as
here, a defendant charged with murder, has voluntarily and with the assistance of competent
court-appointed counsel, entered a plea of guilty in open court. * * * The constitutional
safeguards pointing to a fair trial are greatly diluted in significance, for a trial to determine the
ultimate issue of innocence or guilt has been waived by the plea of guilty. The presumption of
innocence has ceased to exist, and the defendant stands before the court an admitted
murderer, asking mercy and understanding with respect to degree and penalty. If the plea of
guilty is not itself constitutionally infirm, it would appear that one who has so confessed may
not rely upon the constitution to free him. * * * Id. 95, 96, 399 P.2d 131.
* * * * *
We hold that where, as here, one accused of murder voluntarily pleads guilty upon
arraignment in open court, with the advice of competent counsel, the federal constitutional
right to counsel is not violated, notwithstanding the fact that the accused, before entering his
guilty plea, was without counsel when he confessed the crime and at the preliminary hearing.
Id. 100, 399 P.2d 133.
[Headnote 3]
Now we must determine whether Gault is controlling in this case. We find that it is not,
because the appellant's certification hearing was held more than a year before Gault was
decided. In Messmore v. Fogliani, 82 Nev. 153, 413 P.2d 306 (1966), this court said: The
federal constitution neither requires nor prohibits retrospective effect.
requires nor prohibits retrospective effect. Each case must be examined with reference to the
constitutional right involved. Linkletter v. Walker, 381 U.S. 618 (1965). Tehan v. United
States, 382 U.S. 406 (1966).
The United States Supreme Court in Stovall v. Denno, 388 U.S. 293 (1967), as a summary
of the rules laid down in Johnson v. New Jersey, 384 U.S. 719 (1966); Tehan v. United
States, supra; and Linkletter v. Walker, supra, set down the following criteria for determining
whether a decision should be retroactive or given only prospective effect: * * * (a) the
purpose to be served by the new standards, (b) the extent of the reliance by law enforcement
authorities on the old standards, and (c) the effect on the administration of justice of a
retroactive application of the new standards.
The Supreme Court has given retroactive application to the constitutional right to the
assistance of counsel where the lack of counsel affected the very integrity of the fact-finding
process and there was present the clear danger of convicting the innocent. Gideon v.
Wainwright, 372 U.S. 335 (1963) (at the time of trial itself); Hamilton v. Alabama, 368 U.S.
52 (1961) (on arraignment); Douglas v. California, 372 U.S. 353 (1963) (on appeal).
In Messmore v. Fogliani, supra, we further stated: As noted in Linkletter, if the
constitutional principle is aimed at the fairness of the trialthe very integrity of the fact
finding processretrospective application is in order. Griffin v. Illinois, 351 U.S. 12, 76
S.Ct. 585, 100 L.Ed. 891 (1956); Gideon v. Wainwright, supra; Jackson v. Denno, 378 U.S.
368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). . . .
Conversely, in Johnson v. New Jersey, supra, the Supreme Court held that the decisions in
Escobedo v. Illinois, 378 U.S. 478 (1964), and in Miranda v. Arizona, 384 U.S. 436 (1966),
would not be applied retroactively. In those two cases the lack of counsel did not directly
affect the reliability of the confessions obtained during the in custody interrogations. And in
Stovall v. Denno, supra, the court holding that the rules in United States v. Wade, 388 U.S.
218 (1967), and Gilbert v. California, 388 U.S. 263 (1967), are not to be applied retroactively,
said: Although the Wade and Gilbert rules also are aimed at avoiding unfairness at the trial
by enhancing the reliability of the fact-finding process in the area of identification evidence,
the question whether a constitutional rule of criminal procedure does or does not enhance the
reliability of the fact-finding process at trial is necessarily a matter of degree.' Johnson v. New
Jersey, supra, at 728-729.
The extent to which a condemned practice infects the integrity of the truth-determining
process at trial is a question of probabilities.' Ibid. Such probabilities must in turn be
weighed against the prior justified reliance upon the old standards and the impact of
retroactivity upon the administration of justice.
When there is substantial doubt as to the reliability of a conviction the right to counsel has
been applied retroactively. Here the appellant's appearance in juvenile court did not result in a
finding of his guilt of the crimes with which he was charged. The juvenile court judge only
determined that he should be tried in the district court as an adult. He was not deprived of his
right to present defenses to the charges in district court. Since there was no finding of guilt in
the juvenile court, but only a certification, the fact that the appellant was not represented by
counsel at the certification hearing did not affect the reliability of the guilt determining
process as it did in Gideon v. Wainwright, supra; Hamilton v. Alabama, supra; and Douglas
v. California, supra.
In Cradle v. Peyton, 156 S.E.2d 874 (Va. 1967), the Supreme Court of Appeals of
Virginia, in an excellent in depth analysis of the question of retrospective versus prospective
application of Gault said: In view of the justifiable reliance on the old system by the states
and their law enforcement authorities, we believe public interest dictates that the change be
prospective only. . . . Retroactivity of the Gault rules would have an equally devastating
impact on the administration of criminal law. Every state would be required to void the
conviction of every juvenile who was not advised of his right to be represented in juvenile
court proceedings by retained counsel or, if unable to afford counsel, by court-appointed
counsel. Already crowded court calendars would be further burdened by habeas corpus
proceedings and, where habeas corpus is successful, by retrials. Inquiry would be
handicapped by the unavailability of witnesses, by dim memories, and by the inadequacy or
unavailability of juvenile court records.
In Johnson v. New Jersey, supra, the Supreme Court recognized the right of the New
Jersey Supreme Court in a post-conviction proceeding to determine whether a new
constitutional rule shall be applied retroactively or prospectively only. Here we apply the
Gault decision prospectively only, from and after May 15, 1967.
In Gault the court said of its holding in the Kent case: Although our decision turned upon
the language of the statute, we emphasized the necessity that the basic requirements of due
process and fairness' be satisfied in such proceedings."
of due process and fairness' be satisfied in such proceedings. And that this and other cases
unmistakably indicate that, whatever may be their precise impact, [N]either the Fourteenth
Amendment nor the Bill of Rights is for adults alone. It is our view that Gault and Kent as
interpreted in Gault . . . [M]ean that the basic requirements of due process and fairness under
the Fourteenth Amendment dictate that a juvenile is entitled to the assistance of retained or
appointed counsel in a juvenile court hearing whether it results in a certification order or a
commitment order because it is a critical stage' of the proceeding against him. Cradle v.
Peyton, supra at 886.
[Headnote 4]
We find the appellant's third contention to be without merit. Although the trial judge, who
sentenced him upon his plea of guilty, did not advise him of the minimum and maximum
sentence that could be imposed, he had the assistance of counsel, who at the post-conviction
hearing, testified that he had advised the appellant of the possible sentence.
It is our further determination that Boykin v. Alabama, 395 U.S. 238 (1969), is not
controlling, because here the trial judge determined that appellant's counsel had fully
discussed with him the nature of the charge and had explained to him his constitutional rights.
Moreover, at the post-conviction hearing it was established that appellant was fully advised of
his rights in all material respects, including sentence, when plea was entered.
The order of the district court denying the appellant's petition for a writ of habeas corpus is
affirmed.
Collins, C. J., Zenoff and Thompson, JJ., and Gezelin, D. J., concur.
____________
85 Nev. 690, 690 (1969) Mirin v. Ace Cab Co.
WILLIAM MIRIN and RAYMOND CHENOWETH, Appellants, v. ACE CAB COMPANY,
INC., a Nevada Corporation, and YELLOW CAB COMPANY OF NEVADA, a Nevada
Corporation, Respondents.
No. 5863 and No. 5864
December 17, 1969 462 P.2d 523
Appeal from order of the Eighth Judicial District Court, Clark County; John P. Sexton,
Judge.
Actions for mandatory injunction to compel Public Service Commission to cancel and
rescind certificates issued pursuant to Commission orders enlarging the service area within
which taxicab businesses could be operated. The lower court granted the relief sought, and
the intervening certificate owners appealed. The Supreme Court held that where the
Commission's orders were dated October 26, 1967, the mandatory injunction action filed
March 29, 1968 was not timely.
Reversed and Public Service Commission orders reinstated.
[Rehearing denied January 22, 1970]
Hilbrecht, Jones & Schreck, of Las Vegas, for Appellants.
Gabe Hoffenberg, of Las Vegas, for Respondents.
Automobiles.
Where orders of Public Service Commission enlarging service area within which taxicab businesses
could be operated were dated October 26, 1967, action filed March 29 1968 for mandatory injunction to
cancel and rescind certificates issued pursuant to orders was not timely, and district court order granting
injunction was reversed. NRS 704.540, subd. 1.
OPINION
Per Curiam:
These actions were commenced on March 29, 1968, by Ace Cab Company, Inc., and
Yellow Cab Company of Nevada against the Public Service Commission for a mandatory
injunction ordering the Public Service Commission to cancel and rescind certificates of
public convenience and necessity issued by said defendant to William Mirin and Raymond
Chenoweth pursuant to compliance orders of said defendant dated October 26, 1967, and
effective December 26, 1967, enlarging the service area within which Mirin and Chenoweth
could operate their taxicab businesses. Mirin and Chenoweth subsequently intervened. On
January 13, 1969, an order for mandatory injunction was entered by the district court granting
the relief sought. From that order, intervenors Mirin and Chenoweth appeal.
This action is based upon the same circumstances underlying Mirin v. Checker, Inc., 85
Nev. 569, 459 P.2d 774 (1969), and the holding in that case is dispositive.
The controlling issue is whether the district court action was timely filed within the
intendment of NRS 704.540(1) which requires commencement within 90 days. The instant
action, filed March 29, 196S, was not commenced within 90 days of the Commission's
orders dated October 26, 1967.
filed March 29, 1968, was not commenced within 90 days of the Commission's orders dated
October 26, 1967. Judicial review was therefore not timely sought. The order appealed from
should thus be reversed and the Commission's orders reinstated.
____________
85 Nev. 692, 692 (1969) Cook v. State
MICHAEL PETER COOK, Appellant, v. THE STATE
No. 5930
December 17, 1969 462 P.2d 523
Appeal from an order of the Second Judicial District Court, Washoe County, denying
pretrial habeas corpus; Emile J. Gezelin, Judge.
The Supreme Court, Thompson, J., held that habeas corpus is not to be employed for
purpose of challenging admissibility of evidence on constitutional grounds.
Appeal dismissed on procedural ground.
Bible, McDonald, Carano & Wilson, of Reno, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and Kathleen
M. Wall, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Interlocutory appeal from ruling on motion to suppress evidence is not authorized. NRS 177.015.
2. Criminal Law.
Motion to suppress is procedure to be utilized when accused wishes to challenge admissibility of
evidence on constitutional grounds. NRS 174.105, 174.125, 179.085.
3. Habeas Corpus.
Habeas corpus is not to be employed for purpose of challenging admissibility of evidence on
constitutional grounds. NRS 34.500, subd. 7, 174.105; U.S.C.A.Const. Amends. 4-6.
4. Habeas Corpus.
Habeas corpus may be used in case where claim is that evidence does not exist in record to establish
reasonable or probable cause to hold accused for trial. NRS 34.500, subd. 7.
OPINION
This is an appeal from an order of the district court denying the pretrial petition of Michael
Peter Cook for a writ of habeas corpus. A criminal complaint was filed charging Cook with
possession of marijuana and LSD. Following a preliminary examination he was held to
answer to the district court.
85 Nev. 692, 693 (1969) Cook v. State
examination he was held to answer to the district court. The premise of his petition for release
is that insufficient evidence was presented by the state at the preliminary examination since
the marijuana and LSD were seized as the result of an unconstitutional search of his
dormitory room at the University of Nevada. The state has moved to dismiss this appeal upon
the ground that the remedy of habeas corpus is not available to reach the issue presented. It is
the state's contention that our statutory scheme governing the progress of criminal cases
contemplates that all challenges to the admissibility of evidence on constitutional grounds
must be submitted to the district court by a motion to suppress before or during trial.
The importance of our disposition of the motion to dismiss is apparent at once. If the
remedy of habeas corpus is available, an appeal from the ruling of the district court may be
taken by either party [NRS 34.380(3) and (4)] and the trial delayed until the appeal is
determined since the appellate issue would directly bear upon the innocence or guilt of the
accused.
1
On the other hand, if the state is correct in its contention, a review of the ruling of
the district court may be sought only following trial and conviction [NRS 177.045] since
provision is not made for an interlocutory appeal from a ruling on a motion to suppress
evidence [NRS 177.015]. Cf. Franklin v. District Court, 85 Nev. 401, 455 P.2d 919 (1969),
wherein we held that a district court ruling on a defendant's pretrial discovery motion could
not be challenged by certiorari before trial.
For the past several years this court has been burdened with interlocutory habeas appeals
in criminal cases, and the orderly handling of those cases by the trial court has been
enormously disturbed. For reasons unknown to us, the propriety of habeas as a remedy to
challenge the admissibility of evidence on constitutional grounds was not raised, and we
entertained one interlocutory appeal after another. Finally, in July of this year we handed
down a short per curiam opinion, Prescott v. State, 85 Nev. 448, 456 P.2d 450, dismissing a
pretrial habeas appeal, stating that a challenge to the admissibility of evidence secured by an
alleged illegal search must be presented to the district court by appropriate motion.2 Today,
we reaffirm Prescott, state more precisely our underlying reasons and point out the limits
within which that decision and the present one are to operate.
____________________

1
Cf. Hanley v. Zenoff, 81 Nev. 9, 395 P.2d 241 (1965), and Tucker v. Mowbray, 81 Nev. 7, 398 P.2d 244
(1965), where we ruled that the trial court had jurisdiction to proceed to trial notwithstanding the pendency of an
interlocutory appeal since the trial would not involve the issue on appealin those cases, a denial of a motion to
change venue. In dictum, this court intimated that if the issue on the interlocutory appeal bore directly upon the
innocence or guilt of the accused, the trial court would not have jurisdiction to proceed to trial until the
interlocutory appeal was determined.
85 Nev. 692, 694 (1969) Cook v. State
district court by appropriate motion.
2
Today, we reaffirm Prescott, state more precisely our
underlying reasons and point out the limits within which that decision and the present one are
to operate.
1. Three sections of the 1967 Criminal Code [NRS 174.105; 174.125; 179.085] bear
particularly upon the issue presented by the state's motion to dismiss. The relevant part of
174.105 requires all defenses and objections other than insufficiency of the evidence to be
raised by motion. Standing alone, the quoted phrase would seem to include not only the case
where the evidence does not exist in the record to show probable cause, but also the case
where the evidence, although present, is inadmissible for constitutional reasons. And, of
course, the remedy of habeas is available to test the legality of a commitment upon a criminal
charge without reasonable or probable cause. NRS 34.500(7). Presumably, this embraces
insufficiency of the evidence to establish reasonable or probable cause to hold one for trial.
However, 174.105 is not an isolated section, and must be accorded a meaning which is
compatible with the two other sections mentioned, NRS 174.125 and 179.085. Those two
sections of our code provide for a motion to suppress evidence and require that motion to be
made before trial unless an opportunity to do so did not exist or the defendant was not aware
of grounds for the motion.
3
The purpose is to avoid trial delay occasioned when the motion
is made during trial in the absence of the jury.
[Headnotes 1-3]
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.
____________________

2
Since Prescott we have entertained interlocutory habeas appeals challenging the admissibility of evidence on
constitutional grounds simply because counsel did not question the propriety of remedy. See: Thomas v. Sheriff,
85 Nev. 551, 459 P.2d 219 (1969); Sharkey v. State, 85 Nev. 574, 459 P.2d 769 (1969); Derouen v. Sheriff, 85
Nev. 637, 461 P.2d 865 (1969). We shall no longer do so.

3
NRS 174.125 provides: 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.
2. In any judicial district in which a single judge is provided by NRS 3.010:
(a) All motions subject to the provisions of subsection 1 shall be made in writing, with not less than 10 days'
notice to the opposite party
85 Nev. 692, 695 (1969) Cook v. State
be inadmissible for constitutional reasons, and is the remedy contemplated by our criminal
code. An interlocutory appeal from the trial court's ruling on such a motion is not authorized
because of attendant delay and the desire to avoid the piecemeal handling of cases. This is the
procedure to be utilized when an accused wishes to challenge the admissibility of evidence on
constitutional grounds. Habeas is no longer to be employed for that purpose.
4
[Headnote 4]
____________________
unless good cause is shown to the court at the time of trial why the motion could not have been made in writing
upon the required notice.
(b) The court may, by written order, shorten the notice required to be given to the opposite party.
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.
NRS 179.085 reads: 1. A person aggrieved by an unlawful search and seizure may move the court having
jurisdiction where the property was seized for the return of the property and to suppress for use as evidence
anything so obtained on the ground that:
(a) The property was illegally seized without warrant; or
(b) The warrant is insufficient on its face; or
(c) There was not probable cause for believing the existence of the grounds on which the warrant was issued;
or
(d) The warrant was illegally executed.
The judge shall receive evidence on any issue of fact necessary to the decision of the motion.
2. If the motion is granted the property shall be restored unless otherwise subject to lawful detention and it
shall not be admissible evidence of any hearing or trial.
3. The motion to suppress evidence may also be made in the court where the trial is to be had. The motion
shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of
the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.

4
As noted, the habeas procedure has heretofore been used without challenge by the opponent. The following
cases are illustrative:
Fourth Amendment: State v. Plas, 80 Nev. 251, 391 P.2d 867 (1964); Wallace v. State, 84 Nev. 532, 445 P.2d
29 (1968); Prescott v. State, supra; Sharkey v. State, supra; Thomas v. State, supra; Derouen v. Sheriff, supra.
Fifth Amendment: State v. Billings, 84 Nev. 55, 436 P.2d 212 (1968); Brown v. Sheriff, 85 Nev. 544, 459
P.2d 215 (1969).
Sixth Amendment: Maiden v. State, 84 Nev. 443, 442 P.2d 902 (1968); Brown v. Sheriff, supra.
85 Nev. 692, 696 (1969) Cook v. State
[Headnote 4]
2. Our holding today does not preclude the use of habeas corpus in a case where the claim
is that evidence does not exist in the record to establish reasonable or probable cause to hold
an accused for trial. State v. Jarman, 84 Nev. 187, 438 P.2d 250 (1968); Azbill v. State, 84
Nev. 345, 440 P.2d 1014 (1968); Mathews v. Sheriff, 84 Nev. 649, 446 P.2d 651 (1968);
State v. Wyatt, 84 Nev. 731, 448 P.2d 827 (1968); Lamb v. Holsten, 85 Nev. 566, 459 P.2d
771 (1969), are illustrative cases. Indeed, in such a case there is nothing to suppress to which
a motion for that purpose could be directed since it is the absence of evidence that supplies
the cause for challenge via habeas. The sections of our criminal code to which we have
referred and NRS 34.500(7) of the statutes on habeas corpus are thus reconciled.
For the reasons expressed the state's motion to dismiss this appeal is granted and the case
is remanded to the district court for further proceedings.
____________
85 Nev. 696, 696 (1969) McNalley v. Walkowski
CURTIS A McNALLY, Appellant, v. DAVID J.
WALKOWSKI, Respondent.
No. 5771
December 18, 1969 462 P.2d 1016
Appeal from order of Second Judicial District Court, Washoe County, denying appellant a
new trial and striking affidavits in support of a new trial; John E. Gabrielli, Judge.
Automobile passenger brought action against driver for injuries sustained in accident while
they were returning from house of prostitution. The passenger made a motion for a new trial
and submitted affidavits of some of the jurors. The trial court rendered an order denying the
motion for new trial and striking the affidavits in support of the new trial, and the passenger
appealed. The Supreme Court, Mowbray, J., held that on motion for new trial affidavits of
some of the jurors when deliberations had barely commenced that several other jurors had
said that they believed that passenger was wrong in showing driver the way to house of
prostitution and that passenger should therefore not be permitted to recover were admissible
for limited purpose of showing concealment of actual bias by some of the jurors on their voir
dire examination.
Thompson and Batjer, JJ., dissented.
Gordon W. Rice, of Reno, for Appellant.
Vargas, Bartlett & Dixon and John C. Renshaw, of Reno, for Respondent.
1. Jury.
Right to trial by jury must mean right to fair and impartial jury.
2. Jury.
Litigant is entitled to jury composed of 12 impartial jurors, and though a civil case may be decided by
vote of three-fourths of that number, a party has right to have that decision, whether for or against him,
based on honest deliberations of 12 jurors.
3. New Trial.
Intentional concealment by juror of material fact relating to his qualifications to be a fair and impartial
juror in case may require granting of new trial.
4. New Trial.
Determination of what result should follow failure of juror to answer fully a question touching on his
qualification turns on whether he was guilty of intentional concealment, and determination of that question
must be left with sound discretion of trial court.
5. New Trial.
On motion for new trial by automobile passenger against driver in action for injuries sustained in
automobile accident, affidavits of some of the jurors when deliberations had barely commenced that several
other jurors had said that they believed that passenger was wrong in showing driver the way to house of
prostitution and that passenger should therefore not be permitted to recover were admissible for limited
purpose of showing concealment of actual bias by some of the jurors on their voir dire examination.
OPINION
This appeal challenges the rule announced by Lord Mansfield in Vaise v. Delaval, 1 Term.
Rep. 11 (K.B. 1785), that a juror's statement may not be admitted to impeach a verdict in
which the juror participated.
McNally was injured in a single-car-turnover accident. Walkowski was the driver of the
vehicle in which McNally was riding as a passenger. McNally sued Walkowski for damages.
The case was tried to a jury, and a 9-3 verdict was returned for Walkowski.
One of the nine majority jurors telephoned McNally's counsel the day following the trial
and complained of the manner in which the jury had reached its verdict.
in which the jury had reached its verdict. Counsel secured the juror's affidavit and offered it,
with four other, almost identical affidavits, in support of McNally's motion for a new trial.
The trial judge refused the affidavits on the traditional ground that a juror's statement may not
be received to impeach the jury's verdict, and he denied McNally's motion for a new trial.
Hence this appeal.
The early common law set up no barrier against the receipt of jurors' testimony or
affidavits to impeach their verdict. 8 J. Wigmore, Evidence 2352, at 696 (McNaughton Rev.
1961). The barrier, apparently insurmountable in its original form, however heinous or
reprehensible the misconduct of the jury, originated with Lord Mansfield's decision in Vaise
v. Delaval, supra. Lord Mansfield said:
The Court cannot receive such an affidavit from any of the jurymen themselves, in all of
whom such conduct is a very high misdemeanor; but in every such case the Court must derive
their knowledge from some other source, such as some person having seen the transaction
through a window or by some such other means.
The exclusion, thus first based upon a policy against self-stultification, in later decisions,
particularly of American courts, was also based upon a policy to avoid tampering with jurors,
perjury, and other such fraudulent practices.
1
A storm of criticism soon surrounded the
indiscriminate application of the rule, particularly in fact situations where it patently worked
injustice. Its critics invariably pointed out its inconsistency from an evidentiary standpoint, in
that it permitted a bailiff or other court officer who had been spying on the jury to testify as to
misconduct but rejected the testimony of those who really knew what had occurred.
Wigmore, supra, 2353, at 698-702.
2
Nevada, as the majority of American jurisdictions,
has steadfastly adhered to Lord Mansfield's Rule.3 See Wilson v. Perkins, S2 Nev. 42, 409
P.2d 976 {1966); Kaltenborn v. Bakerink, S0 Nev. 16, 3SS P.2d 572 {1964); Close v.
Flanary, 77 Nev. S7, 360 P.2d 259 {1961); Pinana v. State, 76 Nev. 274, 352 P.2d S24
{1960); State v. Lewis, 59 Nev. 262, 91 P.2d S20 {1939); Priest v. Cafferata, 57 Nev. 153,
60 P.2d 220 {1936); Southern Nev. Mining Co. v. Holmes Mining Co., 27 Nev. 107
____________________

1
15 Texas L.Rev. 101, 102 (1936).

2
One of the complaints voiced by those who oppose any relaxation of Lord Mansfield's Rule is that it will
encourage litigants and their counsel to question and harass jurors after their verdict in the hope of finding some
misconduct on the jurors' part. (Such was not the fact in this case, as the juror voluntarily contacted appellant's
counsel.) Indeed, the House of Delegates of the American Bar Association adopted in August 1969 a Code of
Professional Responsibility. Rule 7-108 of the Code, which we heartily approve, provides in Paragraph (D):
After discharge of the jury from further consideration of a case with which the lawyer was connected, the
lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass
or embarrass the juror or to influence his actions in future jury service. (Footnote omitted.)
Nevada, as the majority of American jurisdictions, has steadfastly adhered to Lord
Mansfield's Rule.
3
See Wilson v. Perkins, 82 Nev. 42, 409 P.2d 976 (1966); Kaltenborn v.
Bakerink, 80 Nev. 16, 388 P.2d 572 (1964); Close v. Flanary, 77 Nev. 87, 360 P.2d 259
(1961); Pinana v. State, 76 Nev. 274, 352 P.2d 824 (1960); State v. Lewis, 59 Nev. 262, 91
P.2d 820 (1939); Priest v. Cafferata, 57 Nev. 153, 60 P.2d 220 (1936); Southern Nev. Mining
Co. v. Holmes Mining Co., 27 Nev. 107, 73 P. 759 (1903); State v. Crutchley, 19 Nev. 368,
12 P.113 (1886); State v. Stewart, 9 Nev. 120 (1874). Formidable as our rulings might be, we
are not unmindful that cases may arise in which it would be impossible to refuse jurors'
statements without violating the plainest principles of justice.
4

In other jurisdictions the courts themselves have announced an exception to their own
exclusionary rule rejecting jurors' affidavits to impeach their verdict. Although a litigant was
unsuccessful at the turn of the century in urging that a valid distinction existed between a
juror's misconduct before retirement and his misconduct after retirement [Siemsen v.
Oakland, S.L. & H. Elec. Ry., 66 P. 672 (Cal. 1901)], chronology later became a paramount
consideration. When an affidavit was offered in a later case to show that a juror had
witnessed the disputed accident, had formed an opinion about liability, and had falsely denied
on her voir dire examination that she had any knowledge of the event, the court held that the
affidavit should have been received. Williams v. Bridges, 35 P.2d 407 (Cal.App. 1934). In
that case the court said that the exclusionary rule applies to words or acts that are inherent in
the verdict and that have their origin after the impanelment and before the discharge of the
jury. The bar does not apply, the court held, to an affidavit which demonstrates a previous
positive misconduct in concealing actual bias on the voir dire examination. See Shipley v.
Permanente Hospitals, 274 P.2d 53 {Cal.App.
____________________

3
See 8 J. Wigmore, Evidence 2354, nn. 1 2, supra, where it is asserted that the exclusionary rule prevails
in all but 11 states. The states which have relaxed the rule follow variants of the so-called Iowa Rule as
announced in Wright v. Illinois & Miss. Tel. Co., 20 Iowa 195 (1866).

4
Chief Justice Taney said, in United States v. Reid, 53 U.S. (12 How.) 361, 364 (1851):
It would perhaps hardly be safe to lay down any general rule upon this subject [whether the affidavits of
jurors impeaching their verdict should be received]. Unquestionably such evidence ought always to be received
with great caution. But cases might arise in which it would be impossible to refuse them without violating the
plainest principles of justice.
53 (Cal.App. 1954); Kollert v. Cundiff, 329 P.2d 897 (Cal. 1958) (disapproving other
statements in Shipley).
In State v. Hayden Miller Co., 116 N.W.2d 535, 539 (Minn. 1962), the court said:
We are not concerned here with the well-recognized principle that affidavits of a juror or
any other person relating to what a juror has said will not be received to impeach the verdict
where the facts sought to be shown here in the verdict itself. . . . The privilege which protects
the deliberations of the jury from exposure does not extend to statements of jurors who may
have on voir dire concealed prejudice or bias which would have disqualified them or to
misconduct of a juror in making an independent inspection of the property in question
contrary to the court's instructions. . . .
In Department of Pub. Works & Bldgs. v. Christensen, 184 N.E.2d 884, 887 (1962), the
Illinois Supreme Court ruled:
The Department takes the position that jurors' affidavits may not be used to impeach their
verdict, relying on Sanitary District of Chicago v. Cullerton, 147 Ill. 385, 35 N.E. 723 [1893].
Although this doctrine is generally recognized, it is subject to an exception when it is charged
that a juror has answered falsely on voir dire about a matter of potential bias or prejudice.
People v. Beacham, 358 Ill. 373, 193 N.E. 205 [1934]; Maher v. New York, Chicago and St.
Louis Railroad Co., 290 Ill.App. 267, 8 N.E.2d 512 [1937]; West Chicago Street Railroad Co.
v. Huhnke, 82 Ill.App. 404 [1899]; 8 Wigmore on Evidence, section 2354 at n. 5 [3d ed.
1940]; Annot. 48 A.L.R.2d 964 [1956].
[Headnotes 1-3]
This is the precise argument advanced by McNally on this appeal. McNally contends that
the jurors were not truthful when examined on voir dire, that they intentionally concealed
their bias and prejudice, and that as a result he was denied his constitutional right to a fair
trial. The right to trial by jury, if it is to mean anything, must mean the right to a fair and
impartial jury. Piehler v. Kansas City Pub. Serv. Co., 211 S.W.2d 459 (Mo. 1948). A litigant
is therefore entitled to a jury composed of 12 impartial jurors; although a civil case may be
decided by the vote of three-fourths of that number, a party has the right to have that decision,
whether for or against him, based on the honest deliberations of 12 such individuals. Lee v.
Baltimore Hotel Co., 136 S.W.2d 695 (Mo. 1939); Annot., 127 A.L.R. 711 (1940). It is
fundamental that a prospective juror is not the judge of his own qualifications. And to the end
that a party may intelligently exercise his challenges, it is the duty of a juror on voir dire
examination to fully, fairly, and truthfully answer all questions directed to him.
his challenges, it is the duty of a juror on voir dire examination to fully, fairly, and truthfully
answer all questions directed to him. Therefore, a juror's intentional concealment of a
material fact relating to his qualification to be a fair and impartial juror in the case may
require the granting of a new trial. Woodworth v. Kansas City Pub. Serv. Co., 274 S.W.2d
264 (Mo.1955).
[Headnote 4]
In the final analysis, the determination of what result should follow the failure of a juror to
answer fully a question touching upon his qualification turns upon whether or not he was
guilty of an intentional concealment. The determination of that question must be left with the
sound discretion of the trial court. Reich v. Thompson, 142 S.W.2d 486 (Mo. 1940), Annot.,
129 A.L.R. 795 (1940).
In the instant case the record reveals that on the date of the accident the parties were
returning from a visit to a house of ill fame. The jurors were asked by counsel on voir dire: .
. . Now I believe there will also be evidence that these young men were coming back from a
house of ill repute at Wadsworth. Is there anything, if this evidence comes before you, which
might prejudice you one way or the other for or against Mr. McNally or Mr. Walkowski?
You feel, then, that you can take this evidence and weigh it, along with all the rest, and
just the fact that they were coming back from a house of prostitution, that this would not
influence you in your deliberations, except as it is related to you by the court's instructions?
I think those are all my instructions that I have at this time, your Honor. Thank you very
much.
The jurors' affidavits tendered by McNally all asserted: Our deliberations had barely
commenced when several jurors said they believed plaintiff [McNally] was wrong in showing
defendant [Walkowski] the way to the Wadsworth house of ill fame; and that he should
therefore not be permitted to recover. It is true that the jurors' affidavits failed to state the
names of the jurors making such declarations, but such failure, as well as the general nature
of the affidavits, presented a question of weight solely for the trial judge. Shipley v.
Permanente Hospitals, supra.
[Headnote 5]
We conclude, therefore, that the jurors' affidavits were admissible for the limited purpose
of showing concealment of actual bias by several of the jurors on their voir dire examination.
We are merely relaxing Lord Mansfield's rule so that the district judge may receive and
consider the jurors' affidavits.
district judge may receive and consider the jurors' affidavits. By such ruling we do not
intimate any view regarding the weight to be given the affidavits nor the merits of McNally's
motion for a new trial.
The allowance or refusal of a new trial rests in the sound discretion of the court to which
the application is addressed, . . . [I]n the case at bar the District Court excluded the affidavits,
and, in passing upon the motion, did not exercise any discretion in respect of the matters
stated therein. Mattox v. United States, 146 U.S. 140, 147 (1892).
Collins, C. J., and Zenoff, J., concur.
Thompson, J., with whom Batjer, J., agrees, dissenting:
If the rule against verdict impeachment by a participating juror is to be modified in the
manner suggested by the majority, this case is not the one to use for that purpose. The
impeaching affidavits offered to the court for consideration fail to identify the jurors who
allegedly made the statements establishing bias in contradiction to their responses given on
voir dire examination. Absent that information, the party in whose favor the verdict was
returned cannot respond satisfactorily. He should not be compelled to contact unidentified
jurors in an effort to test the reliability of the impeaching affidavits. Neither should
unidentified jurors have to respond to the general statements suggesting bias on the part of
someone. Indeed, the several jurors whose qualifications are questioned must be named if
they are to be afforded a fair opportunity to respond directly to the charges made, and if the
court is to be given a solid foundation upon which to decide the matter. The rule modification
announced today will produce unnecessary mischief since it may be utilized when the record
fails to reveal the identity of the jurors whose integrity is challenged.
Respectfully, we dissent.
____________
85 Nev. 703, 703 (1969) Dixon v. Warden
ROBERT LEE DIXON, Appellant, v. WARDEN,
No. 5872
December 22, 1969 462 P.2d 753
Appeal from denial of petition for writ of habeas corpus; Eighth Judicial District Court,
Clark County; Thomas J. O'Donnell, Judge.
The lower court denied petition and petitioner appealed. The Supreme Court, Mowbray, J.,
held that where petitioner, who had been convicted in state of attempted grand larceny and
adjudicated a habitual criminal, was confined in United States penitentiary out of state for
another offense, state statutes providing for habeas post-conviction relief were not available
to petitioner.
Affirmed.
James D. Santini, Public Defender, and Earle W. White, Jr., and Morgan D. Harris,
Deputy Public Defenders, Clark County, for Appellant.
Melvyn T. Harmon, Deputy District Attorney, Clark County, for Respondent.
1. Habeas Corpus.
Words under sentence within statute providing that habeas corpus post-conviction relief is available to
any person convicted of crime and under sentence of death or imprisonment, means that petitioner must at
time he files writ for habeas relief be subject to state's authority, whether as one physically confined or
under supervision as probationer or parolee or otherwise restrained of liberty. NRS 177.315.
2. Habeas Corpus.
Where petitioner, who had been convicted in state of attempted grand larceny and adjudicated a habitual
criminal, was confined in U.S. penitentiary out of state for another offense, state statutes providing for
habeas corpus post-conviction relief were not available to petitioner. NRS 177.315-177.385.
OPINION
This is an appeal from an order denying Robert Lee Dixon's habeas petition, which he filed
in the district court to test the legality of his 1954 conviction of the crime of grand larceny.
legality of his 1954 conviction of the crime of grand larceny. We affirm the ruling of the
district judge.
On April 23, 1954, Dixon, after waiving his right to court appointed counsel, entered a
guilty plea to the charge of grand larceny. He was sentenced to serve not less than 2 nor more
than 14 years in the Nevada State Prison. He served 2 years and 1 month in prison, and he
was then unconditionally released.
In 1966, Dixon was (1) convicted in the same Nevada court of attempted grand larceny
and (2) adjudicated a habitual criminal. Dixon v. State, 83 Nev. 120, 424 P.2d 100 (1967).
Although he was sentenced on both counts, he has not served time on either, as he has been
continuously confined in the United States Penitentiary at McNeil Island, Washington, for
another offense. Upon his release from McNeil, Dixon will be returned to Nevada to start
serving the 1966 sentence he received on the (1) attempted grand larceny conviction and (2)
habitual criminal charge.
He has commenced this post-conviction habeas proceeding under the provisions of NRS
177.315.
1
He attacks the legality of his 1954 grand larceny convictionone of the felonies
upon which his habitual criminal adjudication is predicatedon the principal ground that he
was tricked and defrauded into entering a plea of guilty without full knowledge of the
possible consequences.
[Headnotes 1, 2]
We do not reach that issue in this case, for the reason that the post-conviction remedies
provided by the 1967 Legislature in NRS 177.315-177.385 are not available to Dixon under
the facts presented. NRS 177.315 provides in part that habeas post-conviction relief is
available to any person convicted of a crime and under sentence of death or imprisonment.
We hold that the provision under sentence means that the petitioner must at the time he
files his writ for habeas relief be subject to Nevada authority, whether as one physically
confined or under supervision as a probationer or parolee or otherwise restrained of
liberty.
____________________

1
NRS 177.315 provides, in part:
1. Any person convicted of a crime and under sentence of death or imprisonment who claims that the
conviction was obtained, or that the sentence was imposed, in violation of the Constitution of the United States
or the constitution or laws of this state, . . . or that the conviction or sentence is otherwise subject to collateral
attack upon any ground of alleged error heretofore available under any common law, statutory or other writ,
motion, petition, proceeding or remedy, may, without paying a filing fee, apply for a writ of habeas corpus under
NRS 177.315 to 177.385, inclusive, to secure relief from the conviction or sentence. (Emphasis added.)
supervision as a probationer or parolee or otherwise restrained of liberty. See Garnick v.
Miller, 81 Nev. 372, 403 P.2d 850 (1965); Bundrant v. Fogliani, 82 Nev. 388, 419 P.2d 293
(1966); Pinana v. State, 76 Nev. 274, 352 P.2d 824 (1960). In this case, Nevada has no
authority over Dixon and will not have until he is released by the federal authorities after he
has completed his term at McNeil Island.
Whenever he is returned to Nevada, he will have ample time while serving his first
sentence on the attempted grand larceny conviction to challenge his habitual criminal
adjudication, which is the only charge relevant to this habeas petition.
The order denying Dixon's petition for habeas is affirmed.
____________
85 Nev. 705, 705 (1969) Dodd v. Cowgill
KATE N. DODD, Individually, and KATE N. DODD, as Guardian of the Estate of
RICHARD RYLAND DODD, Incompetent, Appellants, v. PAUL COWGILL, as
Administrator of the Estate of JOSEPH M. PABIS; H. H. PORTER, as Administrator of the
Estate of HERBERT E. KIMMEL; C. G. WINKEL, Jr., Surviving Partner of WINKEL
MOTORS, a Partnership; and WINKEL MOTORS, INC., Respondents.
No. 5761
December 24, 1969 463 P.2d 482
Appeal from judgment of Second Judicial District Court, Washoe County; Emile J.
Gezelin, Judge.
Action by lessor against lessees. The lessees counterclaimed. The trial court rendered
judgment, and lessor appealed. The Supreme Court, Mowbray, J., held, among other things,
that evidence failed to show conspiracy against lessor on part of lessees and subtenant to
engage city inspector to order building demolished unless structural deficiencies and
violations of city code should be corrected.
Affirmed.
[Rehearing denied January 22, 1970]
Oliver C. Custer and J. Rayner Kjeldsen, of Reno, for Appellants.
Streeter, Sala & McAuliffe, of Reno, for Respondents.
1. Conspiracy.
Evidence failed to show conspiracy against lessor on part of lessees and subtenant to engage city
inspector to order building demolished unless structural deficiencies and violations of city code should be
corrected. NRCP 41(b).
2. Continuance.
Whether continuance in civil action should be granted because of illness of counsel or of a relative of
counsel is a matter that is largely committed to discretion of trial judge.
3. Continuance.
In ruling unfavorably upon application for continuance, trial court may give weight to fact that applicant
has had prior continuances.
Where motion in which application for continuance is made fails to meet requirements of practice in
particular jurisdiction, refusal to grant continuance is usually upheld. DCR 21.
5. Continuance.
Where party whose attorney is ill is represented by other counsel, denial of continuance may be justified.
6. Continuance.
Plaintiff's telegram to her Nevada counsel that she was still ill and not equal to trip from California to
Reno for trial and that her California counsel was also ill and unable to travel did not meet requisites for
continuance as required by Nevada district court rule. DCR 21.
7. Continuance.
Plaintiff was not entitled to second continuance where both plaintiff and her California counsel had
testified in support of plaintiff's case during earlier hearings and they had rested and plaintiff was well
represented by the Nevada counsel who had prepared and signed pleadings and conducted case during
earlier hearings.
Structural deficiencies listed in city inspector's report ordering demolition of building if such deficiencies
and city code violations were not corrected constituted major repairs within lease imposing on lessor
duty to make major repairs.
In lessor's action against lessees, lessor could not challenge city building inspector's order for demolition
of building if structural deficiencies and city code violations were not corrected, since city was not a party
to action.
10. Discovery.
Attorney upon information and belief can sign sworn response to request for admissions. NRCP 36.
11. Discovery.
Answers to defendants' request for admissions were properly deemed admitted where answers were not
truthful and were not set forth with specificity required by rule and plaintiff was in possession of
sufficient facts to answer requests for admissions without qualification and with
particularity.
possession of sufficient facts to answer requests for admissions without qualification and with particularity.
NRCP 36.
12. Contracts.
Lessor's refusal to arbitrate dispute as to lessor's duty to make major and structural repairs was breach of
lease providing for arbitration of such dispute. NRS 38.030.
13. Interest.
Where lease required lessor to place security deposit in interest-bearing savings account and to pay at
least annually the interest earned on sums held in deposit and lessor never paid annual interest to lessees,
lessor was properly required to pay lessees interest from annual interest installments from the time they
became due. NRS 99.040.
OPINION
Kate M. Dodd, individually and as guardian of her brother, Richard Ryland Dodd, lessors
under a master lease agreement dated August 10, 1957, commenced an action on January 20,
1966, in the district court against the estates of the lessees named therein, Joseph M. Pabis
and Herbert E. Kimmel, seeking: (1) an injunction restraining the lessees' representative from
proceeding with arbitration as provided in the lease; (2) a declaratory judgment to determine
the rights of the parties under the lease; (3) damages for an alleged conspiracy between
representatives of the lessees and Winkel Motors, Inc., subtenant under the lease, to terminate
and cancel the master lease (Winkel Motors, Inc., and its predecessor in interest, Winkel
Motors, a partnership, were added as defendants in this count); and (4) damages for loss of
rent due under the master lease for the remainder of its term, i.e., through August 31, 1967.
The defendants, who are respondents on this appeal, answered the Dodds' complaint and
counterclaimed, asking that, because of Kate's actions, (1) the master lease be declared
terminated as of January 1, 1966; (2) the lessees be relieved of all rental and other obligations
due after that date; (3) the Dodds return the rent paid by lessees since January 1, 1966; and (4)
punitive and exemplary damages be awarded lessees for malicious abuse of process.
The case was tried to the court sitting without a jury. The district judge denied the Dodds'
claim in toto, and he specifically found that Kate's actions had in effect canceled the master
lease and that the lessees were entitled to damages for (1) rent paid to the Dodds after January
1, 1966; (2) lessees' loss of profit due from the sublease with Winkel for the remainder of
the term of the master lease; {3) $15,000 plus compound interest for the return of a
rental security deposit; and {4) $10,000 attorneys' fees.
profit due from the sublease with Winkel for the remainder of the term of the master lease;
(3) $15,000 plus compound interest for the return of a rental security deposit; and (4) $10,000
attorneys' fees.
The Dodds have appealed from the judgment of the district court and seek reversal on the
grounds that the lower court erred in (1) dismissing the Dodds' conspiracy count under an
NRCP 41(b) motion; (2) denying the Dodds' motion for a continuance of the trial; (3) finding
that under the terms of the master lease the Dodds had covenanted to repair the premises and
had failed to do so; (4) ruling that the inspection report of the leased premises, made by the
chief building inspector of the City of Reno, constituted a final order to repair, or to vacate
and demolish, the building on the leased property; (5) deeming admitted the respondents'
request for admissions under NRCP 36; (6) finding that Kate's refusal to arbitrate as provided
in the lease constituted a breach of the lease; and (7) awarding compound rather than simple
interest on the $15,000 security deposit ordered returned to the lessees.
We reject the assigned errors and affirm the judgment of the lower court.
I. FACTUAL BACKGROUND
Winkel had for many years operated an auto sales agency in Reno at the Tower Building,
which they leased from the Dodds. In 1956, Kate desired to be relieved from managing the
property. She discussed with her then accountants, Pabis and Kimmel, the feasibility of her
executing master leases to them, as lessees, on both the Tower Building and the Ryland
Building, located in the same block, and then their subletting the buildings. Pabis and
Kimmel were not enthusiastic, but finally agreed to the proposal because they were Kate's
accountants. Accordingly, a master lease dated August 5, 1956, effective through August 1,
1966, on the Ryland Building, and a master lease dated August 10, 1957, effective through
August 31, 1967, on the Tower Building, were drawn and signed. Pabis and Kimmel sublet
the Tower Building to Winkel.
Under the terms of the master leases, Kate agreed she would keep the buildings in repair
and that Pabis and Kimmel would net $150 a month (the difference in the rent they paid Kate
and that which they received from Winkel) for managing the property. This arrangement
was satisfactory to all the parties until the summer of 1965. Winkel had decided by then to
remove its auto agency operation from the Tower Building to a location on Kietzke Lane in
Reno.
location on Kietzke Lane in Reno. Because their lease ran until August 31, 1967, Winkel had
further decided to sublease the Tower Building to another tenant, if one could be found. The
building had deteriorated during the Winkel tenancy.
1
Before the property could be relet, a
certificate of occupancy from the City of Reno was required. To that end, William Parish,
agent for the Pabis and Kimmel estates, requested an inspection by the City. The inspection
was conducted by Ronald Coleman, Chief Building Inspector, and his report, dated
September 23, 1965, was submitted to Parish. The report listed no fewer than 23 structural
deficiencies and violations of the city code and ordered that the building be brought up to
code, or demolished, within 30 days. The report was sent to Kate by registered mail at her
Palo Alto, California, address. Parish notified Kate that Winkel was moving to its new
location on Kietzke Lane; that if the Building was not brought up to code so that it would be
rentable, Winkel would pay rent only until December 31, 1965; and that in such case the
Pabis and Kimmel estates would terminate their lease payments to Kate on that date.
As a result of Parish's letter, a meeting of all the parties was held on December 28, 1965,
in Palo Alto. Kate's attorney, Kenneth R. McDougall, was present. A dispute arose as to who
should correct the structural deficiencies listed by the city inspector.
2
Kate argued that it was
the tenant's duty to do so because the items did not constitute a major repair of the property.
3
The respondents then suggested that arbitrators be appointed to determine whether the
items to be corrected were or were not "major repairs.
____________________

1
The record shows that Winkel had spent approximately $60,000 on remodeling and structural repairs and
that Kate had attempted to repair a damaged ramp leading into the building and had tried to patch the cement
floor, which was breaking up.

2
Paragraph 9 of the master lease agreement provided, in part:
9. . . . Notwithstanding the foregoing provisions of this paragraph 9, Lessee shall not be required to make
any structural alterations or structural repairs to the demised premises or be obligated for the cost of any
alterations or repairs required by any order by any Federal, State, or Municipal authority with respect thereto or
the occupancy thereof, unless the same shall be made necessary by the act or negligence of the Lessee.

3
5.c) . . . Lessor shall, except as in this paragraph 5 and elsewhere in this lease otherwise specifically
permitted or provided, make all major repairs to all of the demised personal and real property belonging to
Lessor, and, without in any sense or degree limiting any term of this lease, expressly or by implication, repairs to
or replacement of the roof on the demised premises shall constitute a major repair. (Emphasis added)
were or were not major repairs.
4
Kate refused to go to arbitration. McDougall claimed that
the lease was ambiguous in certain areas and that the parties should go to court seeking a
declaratory judgment as to their respective rights thereunder.
5
The representatives of the
Pabis and Kimmel estates did not agree, but proceeded to nominate their arbitrator in
accordance with the terms of the lease. McDougall then associated Nevada counsel and
commenced this litigation in the district court.
6

II. THE NRCP 41(b) DISMISSAL OF THE CONSPIRACY COUNT
[Headnote 1]
The essence of the conspiracy charge is that Winkel desired to relocate on Kietzke Lane in
Reno, that property was purchased and a new building constructed thereon for that purpose,
and that therefore Winkel conspired with the representatives of the Pabis and Kimmel estates
to engage a city inspector to condemn the property. We need not cite the record in this
opinion; suffice it to say that a review of it indicates nothing therein to support such an
allegation. The validity of the city order was never challenged. Winkel did not abandon the
premises in October 1965, after the city report was issued, but continued paying rent through
January 1966. Even taking all of the evidence and inferences that reasonably could be drawn
therefrom in favor of plaintiffs to establish a claim for which relief could be granted, we find
nothing in the record which would support the conspiracy count; the district judge ruled
correctly in granting the 41(b) motion to dismiss.
III. CONTINUANCE OF THE TRIAL
The trial commenced on November 13, 1967, and continued for three days. Kate put on
her case in chief, and she and McDougall testified at length. At the conclusion of the third
day, the trial was recessed until January 8, 1968, so that the defendants could offer proof in
support of their counterclaim. On January 8, Kate, through her Nevada counsel, requested a
continuance, claiming that she was ill and so was McDougall's mother.
____________________

4
5.d) Anything in this paragraph 5 to the contrary notwithstanding, if parties hereto shall not be able to
agree upon what, in a given case, shall constitute a major repair of property belonging to Lessor, the
determination shall be resolved by arbitration, . . . (Emphasis added.)

5
McDougall had drawn the master lease agreement for Kate.

6
The Dodds' complaint originally sought only (1) an injunction restraining the lessees from proceeding with
arbitration and (2) a declaratory judgment as to the rights of the parties; but it was later amended to include all
the counts mentioned earlier in this opinion.
requested a continuance, claiming that she was ill and so was McDougall's mother. The
district judge granted Kate's motion and continued the trial until January 22, 1968. On
January 19, Nevada counsel for Kate requested an additional continuance on the ground that
McDougall, California counsel, was ill and could not be present for the continuation of the
trial on January 22. The district judge denied the motion, observing that McDougall had
testified extensively for Kate during the November sessions.
7
On January 22, Nevada
counsel appeared and again requested a continuance of the trial, offering a copy of a telegram
from Kate advising that she and McDougall were ill.
8
The district judge refused to delay the
trial any further, and the case went forward to conclusion.
[Headnote 2]
Whether a continuance in a civil action should be granted because of the illness of counsel
or of a relative of counsel is a matter that is largely committed to the discretion of the trial
judge. Davis v. Shigley, 100 N.E.2d 261 (Ohio App. 1950); Thomas v. Toppins, 272 P. 1042
(Cal. 1928); In re Bollinger's Estate, 79 P. 427 (Cal. 1905); Volkering v. Allen, 216 P.2d 552
(Cal.App. 1950); Annot., 67 A.L.R.2d 497 (1959).
[Headnote 3]
In ruling unfavorably upon the application, the trial court may give weight to the fact that
the applicant has had prior continuances. Newton v. United States, 162 F.2d 795 (4th Cir.
1947), cert. denied, 333 U.S. 848 (1948); Benson v. Madden, 293 P.2d 733 (Ore. 1956);
Annot., 67 A.L.R.2d 494 (1959). See also Georgetti v. Peccole, 69 Nev. 76, 241 P.2d 199
(1952).
____________________

7
Nevada Supreme Court Rule 185:
Lawyer as witness. When a lawyer knows, prior to trial, that he will be a necessary witness, other than as to
merely formal matters such as identification or custody of a document or the like, he should not conduct the trial.
If, during the trial, he discovers that the ends of justice require his testimony, he should, from that point on, if
feasible and not prejudicial to his client's case, leave further conduct of the trial to other counsel. If
circumstances do not permit withdrawal from the conduct of the trial, a lawyer should not argue the credibility of
his own testimony.

8
952P PST JAN 21 68 PRA 166 LA 498 L SJA351 PD TDSJ PALO ALTO CALIF 21 925P PST OLIVER
CUSTER, DLR TONIGHT OR BEFORE 9 AM 220 CIRCLE DR RENO NEV AM STILL ILL DO NOT FEEL
EQUAL TO TRIP TO RENO FOR TRIAL McDOUGALL ALSO ILL AND UNABLE TO TRAVEL
KATE
(29).
[Headnote 4]
Where the motion in which the application is made fails to meet the requirements of the
practice in the particular jurisdiction, the refusal to grant the continuance is usually upheld.
Joseph v. Norton Co., 273 F.2d 65 (2d Cir. 1959); Kurtzon v. Kurtzon, 90 N.E.2d 245
(Ill.App. 1950).
[Headnote 5]
And where the party whose attorney is ill is represented by other counsel, denial of a
continuance may be justified. Joseph v. Norton Co., supra; Jackson v. Jackson, 205 P.2d 297
(Okla. 1949); Whiteley v. Clegg, 48 S.E. 406 (Ga. 1904).
[Headnote 6]
In this case, the district judge had granted one continuance. Both Kate and McDougall had
testified in support of the Dodds' case during the November hearings and had rested their
case. Kate's telegram could hardly be construed as meeting the requisites for a continuance as
required by Nevada District Court Rule 21.
9
[Headnote 7]
[Headnote 7]
____________________

9
Nevada District Court Rule 21:
Motions for continuance: Contents, service of affidavits; counter affidavits; argument.
1. All motions for the continuance of causes shall be made on affidavit.
2. When a motion for the continuance of a cause is made on the ground of absence of witnesses, the affidavit
shall state:
(a) The names of the absent witnesses and their present residences, if known.
(b) What diligence has been used to procure their attendance or their depositions, and the causes of a failure
to procure the same.
(c) What the affiant has been informed and believes will be the testimony of each of such absent witnesses,
and whether or not the same facts can be proven by other witnesses than parties to the suit whose attendance or
depositions might have been obtained.
(d) At what time the applicant first learned that the attendance or depositions of such absent witnesses could
not be obtained.
(e) That the application is made in good faith and not for delay merely.
3. No continuance will be granted unless the affidavit upon which it is applied for conforms to this rule,
except where the continuance is applied for in a mining case upon the special ground provided by NRS 16.020.
4. Copies of the affidavits upon which a motion for a continuance is made shall be served upon the opposing
party as soon as practicable after the cause for the continuance shall be known to the moving party.
5. Counter-affidavits may be used in opposition to the motion.
6. No amendments or additions to affidavits for continuance will be allowed after they have been read, and
no argument will be heard on motions for a continuance, except such as relate to the sufficiency of the affidavits
read on the hearing.
[Headnote 7]
Finally, the Dodds were well represented by their Nevada counsel, who had prepared and
signed the pleadings and conducted the Dodds' case during the November hearings.
The district judge ruled correctly in denying Kate's motion for a continuance. Neven v.
Neven, 38 Nev. 541, 148 P. 354, 154 P. 78 (1915); Benson v. Benson, 66 Nev. 94, 204 P.2d
316 (1949).
IV. THE DUTY TO REPAIR
[Headnote 8]
Kate complains that the district court erred in finding that correction of the structural
deficiencies listed in the city inspector's report would constitute major repairs and that it
was her duty as landlord of the master lease to make the repairs. The pertinent provisions of
the master lease, in paragraphs 5(c) and 9, cited in footnotes 2 and 3, supra, are dispositive of
this issue. It is clearly expressed therein that the Lessor shall . . . make all major repairs to all
of the demised personal and real property and that Lessee shall not be required to make any
structural alterations or structural repairs to the demised premises or be obligated for the cost
of any alterations or repairs required by any order by any Federal, State, or Municipal
authority with respect thereto for the occupancy thereof, unless the same shall be made
necessary by the act or negligence of the Lessee.
There is nothing in the record to indicate that the structural deficiencies cited by the city
were in any way the result of any act or negligence of the Lessee. Rather, the record shows
that Winkel spent some $60,000 in remodeling and repairing the premises. Further, if an issue
did in fact exist as to whether the correction of the deficiencies constituted major repairs, it
could have been easily resolved by arbitration, as provided in the lease. The lessees were
anxious to go to arbitration and had even nominated their arbitrator; then Kate commenced
this action, preventing them from proceeding. She may not now be heard to complain, as the
court's finding is amply supported by the record.
V. EFFECT OF THE CITY'S ORDER
[Headnote 9]
Kate attacked the validity of the city's order on several grounds, which we need not recite
nor consider on this appeal, because under the facts presented Kate may not challenge the
order.
because under the facts presented Kate may not challenge the order. As the district judge
ruled in his decision:
Plaintiffs [the Dodds] are not in a position now to question the order of the City since the
City is not a party to this action. The report and order of the City was final.
In Goldring v. Kline, 71 Nev. 181, 189, 284 P.2d 374, 378 (1955), this court held:
Lessees contend that, considering the repairability of the building, the city should not
have ordered demolition. If the city's safety order was for any reason improper, it can hardly
be challenged in an action to which the city is not a party.
See also Ripps v. City of Las Vegas, 72 Nev. 135, 297 P.2d 258 (1956); Maryland Cas.
Co. v. Frank, 85 Nev. 209, 452 P.2d 919 (1969).
VI. REQUEST FOR ADMISSIONS UNDER NRCP 36
[Headnotes 10, 11]
Kate next complains that the district judge erred in deeming admitted the respondents'
request for admissions. First, the answers were signed not by Kate but by her counsel. This
alone would not be sufficient to sustain the district judge's ruling. Rule 36 of the Nevada
Rules of Civil Procedure does not indicate that a sworn response to a request for admissions
must be signed by the party himself, and it is considered sufficient if such sworn statement is
made by his attorney upon information and belief. See United States v. Taylor, 100 F.Supp.
1016 (W.D.La. 1951); Van Horne v. Hines, 31 F.Supp. 246 (D.D.C. 1940); Benton v.
McCarthy, 23 F.R.D. 235 (S.D.N.Y.1959); Hartley & Parker, Inc. v. Florida Beverage Corp.,
348 F.2d 161 (5th Cir. 1965).
The district judge found that the answers to respondents' request for admissions failed to
comply with NRCP 36,
10
in that the answers were not truthful and were not set forth with
the specificity required by the rule.
____________________

10
NRCP 36 reads in part as follows:
(a) Request for Admission. . . . Each of the matters of which an admission is requested shall be deemed
admitted unless, within a period designated in the request, not less than 10 days after service thereof or within
such shorter or longer time as the court may allow on motion and notice, the party to whom the request is
directed serves upon the party requesting the admission either (1) a sworn statement denying specifically the
matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or
deny those matters or (2) written objections on the ground that some or all of the requested admissions are
privileged or irrelevant or that the request is otherwise improper in whole or in part, together with a notice of
hearing the objections at the earliest practicable time. . . .
specificity required by the rule. We agree. A reading of the record of the trial demonstrates
that Kate was in possession of sufficient facts to answer the request for admissions without
qualification and with particularity. Instead, she answered with the elusive phrase: Plaintiffs
do not know and therefore deny the request. . . .
2(A) Baron & Holtzoff, Fed. Practice & Procedure 834 states at 513-515: The
admissions or denials must be forthright, specific, and unqualified. A denial coupled with a
general exception of doubtful import, will constitute an admission. A refusal to admit without
specific denial or detailed reasons why the responder cannot truthfully admit or deny, is the
equivalent of an admission. . . . [I]f the truth can be ascertained by reasonable inquiry, the
responder must admit or deny. (Footnotes omitted.)
As further pointed out in 4 Moore's Fed. Practice 36.05 (2d ed. 1969) at 2748-2750:
If the party wishes to deny the matters of which a request is admitted, he must do so
specifically.' . . . The denial must be either an absolute denial or a denial on information and
belief, with the sources thereof given.
. . . .
If the party served with the request cannot truthfully admit or deny the matters stated
therein, he may so state; but he must set forth in detail the reasons why he cannot do so. A
mere statement that he is unable to admit or deny' or that he has no knowledge or no
competent knowledge is not sufficient. (Footnotes omitted.)
Kate's answers failed to comply with the rule; the district judge ruled correctly in deeming
the request for admissions admitted.
VII. BREACH OF THE LEASE BY KATE'S REFUSAL TO ARBITRATE
[Headnote 12]
The district judge found as follows:
XI.
That the subject lease between plaintiffs and defendants COWGILL and PORTER
contained arbitration covenants relating to the settling and adjusting of any disputes regarding
plaintiff's duty to make major and structural repairs, which covenants defendants COWGILL
and PORTER had a right to invoke.
XII.
That said defendants gave proper notice to plaintiff and performed all steps required
under said lease to invoke said arbitration provision, but plaintiff wilfully refused and failed
to adhere to the said arbitration covenants of the lease, which constituted a breach thereof on
January 4, 1966.
And he concluded therefrom as follows:
3. The failure on the part of the plaintiff to make the required repairs or submit the
matter to arbitration constituted a breach of the covenants of the lease on the part of plaintiff
Lessor.
There is substantial evidence in the record to support the district judge's ruling. The lease,
which was drawn by McDougall, provided for arbitration. The respondents had nominated an
arbitrator and were prepared to go forward with arbitration until Kate's attorney filed suit on
the ground that the lease agreement, which that very attorney had drawn, was vague and
required court interpretation before arbitration would be possible. If such in fact were the
case, Kate could have sought relief under NRS 38.140, which provides:
The arbitrators may, on their own motion, and shall by request of a party to the
arbitration:
1. At any stage of the proceedings submit any question of law arising in the course of the
hearing for the opinion of the court, stating the facts upon which the question arises, and such
opinion when given shall bind the arbitrators in the making of their award.
2. State their final award in the form of a conclusion of fact for the opinion of the court
on the questions of law arising on the hearing.
Instead, she breached the provision for arbitration, upon which respondents were entitled
to rely. NRS 38.030.
11
See United Ass'n of Journeymen v. Stine, 76 Nev. 189, 351 P.2d 965
(1960).
There is substantial evidence to support the district judge's finding that Kate's refusal to
arbitrate constituted a breach of the master lease.
____________________

11
NRS 38.030:
Two or more parties may agree in writing to submit to arbitration, in conformity with the provisions of this
chapter, any controversy existing between them at the time of the agreement to submit. Such an agreement shall
be valid and enforcible [sic], and no party shall have the power to revoke the submission without the consent of
the other party or parties to the submission save upon such grounds as exist in law or equity for the rescission or
revocation of any contract.
VIII. SIMPLE VS. COMPOUND INTEREST
[Headnote 13]
By the terms of the Ryland lease dated August 5, 1956, Kate received a security deposit of
$15,000 that later, pursuant to agreement of the parties, was extended to cover the Tower
lease. In accordance with the terms of the lease, Kate was required to place the deposit in an
interest-bearing savings account, as Trustee,
12
and to pay at least annually to the lessees
the interest earned on the sums held on deposit.
13

The trial judge, in his amended judgment, ruled:
2. That defendants PAUL COWGILL, as Administrator of the Estate of Joseph M. Pabis
and H. H. PORTER, as Administrator of the Estate of Herbert E. Kimmel, have judgment
against plaintiffs in the sum of $15,000.00, together with interest thereon at the rate of 7% per
annum, compounded, from August 5, 1956 until paid, being the sum of $18,224.48, for the
period ending August 2, 1968 and thereafter accruing at the rate of $5.95 per day until August
5, 1968 wherein the rate will compound for an additional year, being the rate of $6.38 per day
until August 5, 1969, wherein the rate will compound for an additional year.
Kate never paid the annual interest which was a liquidated sum due and payable "at least
once each calendar year."
____________________

12
c). Lessor shall deposit all sums paid by Lessee by way of security deposits under this lease in a savings
account or accounts in a bank, banks, building and loan association or associations and/or savings and loan
association or associations in California or in Nevada, in such manner and under such terms that the interest of
Lessor and Lessee is clearly set forth with respect thereto; and Lessor and Lessee agree to execute any and all
agreements or papers required by the depositary in each case in order to effectuate the terms hereof with respect
to such deposit. Such deposit or deposits shall be in the name of Lessor, as Trustee, and the signature of no
Lessee or successor in interest of the Lessee shall be required to enable said Trustee to withdraw funds from any
such deposit nor shall the depositary be empowered to determine whether a proposed withdrawal by Lessor shall
comply with the terms hereof.

13
f). The amount of interest received by Lessor as said Trustee or credited to Lessor as said Trustee by
reason of any deposit into a savings account as hereinabove provided, of any security payments made by Lessee
shall, at least once every calendar year, be paid by Lessor to Lessee by check or draft. Anything in this
agreement to the contrary notwithstanding, interest so paid to Lessee shall no longer be considered part of said
security payments as between Lessor and Lessee and any provision herein to the effect that Lessor shall repay to
Lessee any security payments or deposits shall not include any interest paid to Lessee pursuant to the provisions
of this sub-paragraph f). (Emphasis added.)
sum due and payable at least once each calendar year. Therefore, the trial judge awarded
respondents interest on the annual interest installments from the time they became dueor
compound interest, as he characterized the awardwhich was proper in this case. Cf. NRS
99.040; Paradise Homes, Inc. v. Central Sur. & Ins. Corp., 84 Nev. 109, 437 P.2d 78 (1968).
Affirmed.
____________
85 Nev. 718, 718 (1969) Aragonez v. Taylor Steel Co.
GUADALOUPE CARDENAS VDA DE ARAGONEZ, Mother of RODOLFO ARAGONEZ
CARDENAS (Deceased), Appellant, v. TAYLOR STEEL CO., a Nevada Corporation,
Respondent.
No. 5849
December 30, 1969 462 P.2d 754
Appeal from summary judgment denying right of action by the mother of an employee of a
subcontractor allegedly injured by the negligence of an employee of another subcontractor
working at the same jobsite; Eighth Judicial District Court, Clark County; John F. Mendoza,
Judge.
The trial court granted summary judgment in favor of the subcontractor and the mother
appealed. The Supreme Court, Zenoff, J., held that the mother's exclusive remedy was under
the Industrial Insurance Act.
Affirmed.
Stanley W. Pierce and Franklin N. Smith, of Las Vegas, for Appellant.
Cromer and Barker, of Las Vegas, for Respondents.
Workmen's Compensation.
Where employee of one subcontractor was fatally injured by alleged negligence of employee of another
subcontractor working at same jobsite, mother of deceased employee could not recover in negligence
action from employer of alleged negligent employee but her exclusive remedy was under the Industrial
Insurance Act. NRS 616.085, 616.115, 616.380, 616.560.
OPINION
The decedent, Rodolfo Aragonez Cardenas, was an employee of W. A. Perry Tile &
Marble Company as a tile setter's helper.
setter's helper. Perry Tile was engaged as a subcontractor of Zuni Construction Company who
was the general contractor engaged in the construction of a library building on the University
of Nevada, Las Vegas, campus. Defendant Taylor Steel Company was the subcontractor for
the steel work on the library also under Zuni.
While Rodolfo was working on the ground floor of the building Taylor Steel was
constructing the steel framework of the library. A steel beam fell from the area where the
employees of Taylor Steel had been working and struck Rodolfo on the head from which he
died several days later.
The mother of Rodolfo made a claim under Chapter 616 of the Nevada Revised Statutes
against the Nevada industrial insurance of Perry Tile. No claim was made to Zuni
Construction nor to Taylor Steel. The mother received benefits of $91.50 per month
chargeable to the Perry Tile insurance account under NRS 616.380.
She commenced an action against Taylor Steel alleging that her remedy was not
exclusively within the provisions of the Nevada Industrial Insurance Act and that she had a
cause of action against Taylor Steel as a third-party wrongdoer for the allegedly negligent
conduct of its employees.
The trial court ruled that the mother's remedy was exclusively within the provisions of the
Nevada Industrial Insurance Act and granted summary judgment in favor of Taylor Steel.
The Nevada Industrial Insurance Act provides that Subcontractors and their employees
shall be deemed to be employees of the principal contractor. NRS 616.085; Tab
Construction Co. v. District Court, 83 Nev. 364, 432 P.2d 90 (1967). Subcontractors shall
include independent contractors. NRS 616.115. An employee may sue another person other
than the employer or a person in the same employ. . . . NRS 616.560. The question is
whether an employee of one subcontractor working at the same jobsite as the employee of
another subcontractor and who is injured by the employee of the other subcontractor is barred
from bringing an action against the employee at fault for the injuries.
No Nevada cases have previously dealt directly with this subject. Our past cases were
concerned with the exclusiveness of the remedy against the employer under the N.I.I.A.
which prevents the employee from bringing a common-law action against the employer. Tab
Construction Co. v. District Court, supra; Simon Service v. Mitchell, 73 Nev. 9, 307 P.2d 110
(1957); Titanium Metals v. District Court, 76 Nev. 72, 349 P.2d 444 (1960); cf. Cummings v.
United Resort Hotels, S5 Nev. 23
85 Nev. 23, 449 P.2d 245 (1969), in which no reference was made to the fellow employee
who killed the decedent except that the court stated that all parties were within the
provisions of NRS Chapter 616. . . .
This is not the situation of a loaned employee causing the injury a regular employee of
the employer. A loaned employee is subject to the control of the injured's employer. Jackson
v. Southern Pacific Co., 285 F.Supp. 388 (D. Nev. 1968). In this case Taylor Steel's employee
who allegedly brought about the injury to Rodolfo Cardenas from which he died was not
subject to the control of Perry Tile. Under NRS 616.085 the employees of the subcontractors,
Taylor Steel and Perry Tile, are considered employees of Zuni Construction Company, the
principal contractor, for purposes of the N.I.I.A. NRS 616.560 extends immunity not only to
employers but to those in the same employ. Since Taylor Steel was paying compensation
insurance on its employees, it is only logical that NRS 616.085 making subcontractors
employees requires that the doctrine of immunity be extended to include Taylor Steel in
these circumstances.
Nevada's Industrial Insurance Act is uniquely different from the industrial insurance acts
of other states in that independent contractors and subcontractors by NRS 616.115 and
616.085 are accorded the status of employees.
We must conclude that the remedy of decedent's mother was exclusively within the
provision of the Nevada Industrial Insurance Act.
The order granting summary judgment of dismissal of the action is affirmed.
____________
85 Nev. 720, 720 (1969) Hampton v. State
BILLY DOYLE HAMPTON, Appellant, v. THE
No. 5890
December 30, 1969 462 P.2d 760
Appeal from a conviction by a jury of an infamous crime against nature upon the
complaint of a 14-year-old girl. Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
The trial court found defendant guilty of infamous crime against nature upon complaint of
14-year-old girl and he appealed. The Supreme Court, Zenoff, J., held that where particular
brand of beer bottle was found at scene described by 14-year-old victim, automobile was
brand she stated and approximated her description of color, and stereo she told about
was in fact radio speaker, discrepancies in victim's testimony, including fact that interior
and exterior of defendant's vehicle were not of color she stated, did not require that
victim's testimony be disregarded, and that where 14-year-old victim testified that she
spent approximately hour and one-half with defendant and passed through lighted areas
while being driven in defendant's automobile by defendant, in-court identification was
not tainted by irregularities at lineup.
appealed. The Supreme Court, Zenoff, J., held that where particular brand of beer bottle was
found at scene described by 14-year-old victim, automobile was brand she stated and
approximated her description of color, and stereo she told about was in fact radio speaker,
discrepancies in victim's testimony, including fact that interior and exterior of defendant's
vehicle were not of color she stated, did not require that victim's testimony be disregarded,
and that where 14-year-old victim testified that she spent approximately hour and one-half
with defendant and passed through lighted areas while being driven in defendant's automobile
by defendant, in-court identification was not tainted by irregularities at lineup.
Affirmed.
Charles L. Garner, of Las Vegas, for Appellant.
1. Criminal Law.
Where no objection was made to admission of certain rebuttal evidence, assertion of error relating thereto
will not be considered on appeal.
2. Criminal Law.
Inconsequential differences in testimony of child taken at preliminary hearing and at trial were not
necessarily so prejudicial as to warrant verdict of jury to be set aside.
3. Criminal Law.
Where particular brand of beer bottle was found at scene described by 14-year-old victim, automobile
was brand she stated and approximated her description of color, and stereo she told about was in fact radio
speaker, discrepancies in victim's testimony, including fact that interior and exterior of defendant's vehicle
were not of color she stated, did not require that victim's testimony be disregarded.
4. Criminal Law.
Where person in custody called attorney before lineup and was advised not to appear in lineup but did so
without counsel upon police inducement, lineup was patently defective.
5. Criminal Law.
Where there was no objection to evidence of lineup or to in-court identification during trial but court
allowed point of invalid lineup to be raised on motion for retrial, point was preserved for appeal.
6. Criminal Law.
In some cases the proceeding leading to eyewitness identification may be so defective as to make
identification constitutionally inadmissible as matter of law.
7. Criminal Law.
Where 14-year-old victim testified that she spent approximately hour and one-half with defendant and
passed through lighted areas while being driven in defendant's automobile by defendant, in-court
identification was not tainted by irregularities at lineup.
OPINION
This court follows the policy of withholding the names of children involved in a criminal
action. In this case a 14-year old girl accused defendant and his companion of compelling her
into their car and forcing her to go with them early in the evening of June 18, 1967 in Las
Vegas. She testified that despite her resistance which continued throughout the incident
defendant first dropped his companion at a residence, then drove her into the desert and
committed lewd acts upon her against her will.
After almost two hours he returned her to Las Vegas where she tearfully reported what
happened to her sister and brother-in-law with whom she resided. They immediately called
the police. One week later the police showed her six photographs from which she identified
Hampton as the culprit and he was apprehended.
[Headnote 1]
Hampton appeals from his conviction alleging (1) that there were so many discrepancies in
the girl's testimony that all of it should have been disregarded, consequently there was
insufficient evidence to justify the conviction, (2) a police lineup in which Hampton appeared
was so faulty as to be a denial of due process, and (3) the admission of certain rebuttal
evidence was error. As to (3), no objection was made at trial, hence that assertion of error will
not be considered.
[Headnotes 2, 3]
1. Inconsequential differences in the testimony of a child taken at the preliminary hearing
and from the trial are not necessarily so prejudicial as to warrant the verdict of a jury to be set
aside. The girl related that Hampton was drinking from a bottle of Coors beer which he threw
from the car. The police found the bottle but fingerprints were so smudged that they could not
be identified as Hampton's. She said the automobile was a Dodge Charger and that the
exterior and interior were of certain colors which were not in fact the actual colors.
However, because of her age, her fright and the tenseness of her situation she is not expected
to be accurate to an exact degree. There was a Coors beer bottle found at the scene she had
described, the auto was a Dodge Charger approximate to her description of color and the
stereo she also told about was in fact a radio speaker. Her testimony in general was
acceptable. People v. Stanley, 433 P.2d 913 (Cal. 1967); Polito v. State, 71 Nev. 135, 282
P.2d 801 (1955).
[Headnotes 4, 5]
2. The police lineup was conceded by the state to be defective. Hampton was the only
blonde in the group of six males and at six feet two inches tall was clearly a contrast to the
others. He had called an attorney before the lineup in the presence of the police and was
advised not to appear in the lineup, but he did so anyway without counsel upon police
inducement. The lineup under those circumstances was patently defective and flaunted a long
line of authority. Jones v. State, 85 Nev. 53, 450 P.2d 139 (1969); United States v. Wade, 388
U.S. 218 (1967); Thompson v. State, 85 Nev. 134, 451 P.2d 704 (1969); Hamlet v. State, 85
Nev. 385, 455 P.2d 915 (1969); Boone v. State, 85 Nev. 450, 456 P.2d 418 (1969); McCray
v. State, 85 Nev. 597, 460 P.2d 160 (1969); Stovall v. Denno, 388 U.S. 293 (1967); Gilbert v.
California, 388 U.S. 263 (1967). Although Hampton's counsel did not object to the evidence
of the lineup or to the in-court identification during the trial but merely chose to
cross-examine upon it, the point was preserved on appeal because the trial court astutely
applied. People v. Ibarra, 386 P.2d 487 (Cal. 1963), and allowed the point to be raised on a
motion for retrial.
[Headnote 6]
In some cases the proceeding leading to in eye-witness identification may be so defective
as to make the identification constitutionally inadmissible as a matter of law. Foster v.
California, 394 U.S. 440 (1969). But we then look to Chapman v. California, 386 U.S. 18
(1967), and find that the invalid lineup was harmless error for the reason that defendant was
in fact identified from sources independent of the lineup.
[Headnote 7]
The trial judge ruled, . . . The testimony of the prosecuting witness, that she had spent
approximately an hour and one-half with defendant and had passed through lighted areas
while being driven in defendant's automobile by defendant is clear and convincing proof that
defendant's identification in court was not tainted by the irregularities of the lineup."
court was not tainted by the irregularities of the lineup. We agree. The point of the case was
indemnification and the accumulated accuracies of the girl's testimony abundantly support the
jury's verdict.
Affirmed.
____________
85 Nev. 727, 727 (1969) In Memoriam, Edgar Eather
MEMORIAL
____________
HONORABLE EDGAR EATHER
To the Honorable Chief Justice Jon R. Collins, the Honorable Associate Justice David
Zenoff, the Honorable Associate Justice Cameron Batjer, the Honorable Associate
Justice John Mowbray, and the Honorable Associate Justice Gordon Thompson, of the
Supreme Court of the State of Nevada:
In obedience to your Order of March 24, 1970, the undersigned Committee, members of
the Bar of the State of Nevada, respectfully submit the following Resolution, expressing the
high regard, not only of the Bar, but of the Bench and of all of the people of the State of
Nevada, for the life and character of Justice Edgar Eather, and the deep grief and sadness
caused by his passing.
Judge John F. Sexton, Chairman George Lohse
Marshall A. Bouvier Eric L. Richards
RESOLUTION
Whereas, the Honorable Edgar Eather, who served the State of Nevada as District Judge
and the Justice of the Supreme Court, both as Associate and Chief Justice, departed this life
on September 1, 1968; and
Whereas, by a long and diligent life in his profession and on the Bench, he honored the
State of Nevada, and his Country;
Now, Therefore, Be It Resolved:
Justice Edgar Eather was a native of Nevada, born in Eureka, Nevada, on September 14,
1886, the son of Jane and Henry Eather. He received his early education in the local schools
of Eureka, Nevada, and was self taught in the law having taken an International
Correspondence. He was admitted to the practice of law on April 17, 1916, and practiced in
Eureka, Nevada. He had a long and distinguished career and dedicated his life to public
service having been Auditor-Recorder of Eureka County from 1911 to 1922 when he was
elected District Attorney. He served in that capacity until 1929 when he was elected District
Judge of Eureka County, Nevada.
85 Nev. 727, 728 (1969) In Memoriam, Edgar Eather
until 1929 when he was elected District Judge of Eureka County, Nevada. He served on the
District Bench until September 18, 1946, when he was appointed to the Supreme Court of the
State of Nevada where he served continuously until his retirement on December 15, 1958. He
was awarded an Honorary Doctor of Laws degree from the University of Nevada in June of
1959.
He was married to Rose Tognoni on October 18, 1917 at Elko, Nevada, and they had four
children, Hazel Laiola, Norma Croft, Gloria Silva and Margie Heard.
He was a devoted family man and respected by all who knew him. He had a wide circle of
friends who enjoyed his keen sense of humor and amusing stories about old timers that had
resided in Eureka County and the surrounding area. Early in his youth Justice Eather became
interested in mining and this enthusiasm carried with him throughout his entire life.
He was active in the Brotherhood of Elks and was a member of the Phythian Lodge,
Eureka, Nevada.
Whereas, the members of the Bench and Bar of the State of Nevada enjoyed a warm
association with Justice Eather and respect for his integrity and legal abilities which can best
be summed up by the eloquent remarks of Associate Justice Charles Merrill in his tribute to
Justice Edgar Eather on the occasion of his retirement from the Court on December 15, 1958,
in which he stated in part:
The contributions that our brother has made to the cause of justice through his many
years on the bench are not to be found simply in the cold pages of the Nevada Reports or the
decisions of the District Court, but they are to be found in the hearts and consciences of his
fellow men. I have never known a man who had such an instinctive sense of justice and a
conscience which could manifest itself so unerringly. A measure of his quality of justice, I
think, is to be found in everyone who has come in contact with him either as lawyer or as
judge. Justice Badt and I both count ourselves extremely fortunate for our years' close
association with him.
Therefore, Be It Resolved: That this Resolution be approved by this Court and become a
part of the permanent record thereof.
85 Nev. 731, 731 (1969) In Memoriam, Frank McNamee
MEMORIAL
____________
HONORABLE FRANK McNAMEE
To the Honorable Supreme Court of Nevada:
In compliance with your Order of March 24, 1970, the undersigned Committee, members
of the State Bar of Nevada, appointed to prepare a suitable memorial concerning the late
Justice Frank McNamee respectfully submits the following memorial and requests the Court
to cause the same to be spread upon the records of the Court as a mark of the esteem and
respect of the Bench and Bar of this state and to have a copy thereof printed in the next
published volume of Nevada Reports.
Russell W. McDonald, Chairman Richard W. Blakey
Harold O. Taber John H. McNamee
Joseph W. McNamee
MEMORIAL
On November 4, 1968, Frank McNamee died at Las Vegas. The former Justice of the
Supreme Court of Nevada was born in Lincoln County in 1905. Shortly after his graduation
from the law school at Stanford University in 1930 he became Municipal Judge of the City of
Las Vegas. In 1933 he entered the full-time private practice of law, in which he engaged with
success until he entered the Army as a private at the outset of World War II. Four years later
he was discharged as a decorated veteran with the rank of Lieutenant Colonel.
Justice McNamee embarked upon his distinguished judicial career with his appointment to
the Eighth Judicial District Court on July 11, 1946. His service on the trial bench soon gained
him the respect and esteem of both lawyers and fellow judges. When on December 15, 1958,
Governor Charles H. Russell elevated him to Associate Justice of the Supreme Court the
appointment received widespread approval among the members of the bar and the judiciary.
Between the day of his appointment to the high court and February 17, 1965, when he was
the victim of a tragic criminal assault from which he never recovered, Justice McNamee
wrote 17S opinions.

85 Nev. 731, 732 (1969) In Memoriam, Frank McNamee
criminal assault from which he never recovered, Justice McNamee wrote 178 opinions. Those
opinions seldom departed from the high standard of excellence which the Justice imposed
upon himself. All members of the bench and bar are familiar with the clarity of analysis and
economy of words which marked his judicial work. Yet few were aware that he read the
complete transcript of almost every case which came to the Court while he was one of its
members. He promptly dictated a summary of the material facts and noted his preliminary
conclusion. The quality of his mind and the breadth of his learning were such that only rarely
was he obliged to modify his first judgment.
Justice McNamee's quick perceptions and sense of humor made him a delightful
gentleman. When Justice Edgar Eather retired from the Supreme Court and Frank McNamee
succeeded him, , he said, Regarding Judge McNamee, I have always had the highest regard
for him as an attorney and as a judge, and I know that he will be a credit to this Court. He
was more than a credit; he was an adornment to the Court.
85 Nev. 735, 735 (1969) In Memoriam, Miles N. Pike
MEMORIAL
____________
HONORABLE MILES N. PIKE
To the Honorable the Supreme Court of the State of Nevada:
In accordance with your Order of March 24, 1970, in which the undersigned Committee
was appointed to prepare and present a Resolution on the life and public service of the late
Honorable Miles N. Pike, we respectfully submit the following Resolution on behalf of all of
the members of the State Bar of Nevada in memory of the late Honorable Miles N. Pike who
passed away on May 27, 1969. In expressing our high esteem for him as a lawyer, judge and a
man, we must at the same time try to put into words our profound sorrow and deep sense of
loss.
Miles N. Jack Pike was born in Wadsworth on November 24, 1899, the son of Judge and
Mrs. W. H. A. Pike. The family moved to Reno in 1902 and he continued to make his home
there throughout his life. Following graduation from Reno High School, he served in World
War I as a midshipman in the United States Navy. After the war was over, he entered the
University of Nevada and graduated in 1923. He attended Hastings College of the Law and
received his LLB degree in 1928. He was admitted to the practice of law in both California
and Nevada and after practicing in San Francisco for a brief period, he returned to Reno and
entered the law firm of Ayers and Gardner which later became Ayres, Gardner & Pike; Pike,
McLaughlin & Furrh and since 1961 Pike & McLaughlin.
He was married in 1932 to Marchand Newman and they had two sons, Russell, who is
practicing law in Reno, and Roy Robert who is presently serving in the Armed Forces of the
United States.
In 1934, Judge Pike was appointed first assistant United States Attorney under the late E.
P. Ted Carville, and in 1939 he was appointed United States Attorney for the District of
Nevada. He served four years before resigning to volunteer his services in the Infantry during
World War II. Following his discharge as Lt. Colonel he was reappointed United States
Attorney and continued to carry out the duties of that office until he resigned in 1952.
He returned to his law firm, but in 1959 was again called into public service.
into public service. Because of his talent, qualities of leadership and impeccable integrity, the
Governor of this State appointed him to serve as the first chairman of the highly sensitive and
vitally important Nevada State Gaming Commission.
Judge Pike did not permit his extensive law practice to lessen his interest and activity in
County and State Bar work. His many contributions to Bar activities led first to his election as
President of the Washoe County Bar Association, then to the Board of Governors, and finally
culminated in his being elected President of the State Bar in 1952.
He genuinely believed that a lawyer's role in society demanded something more than just
practicing his profession; throughout his career he gave unselfishly of his time, energy and
ability to civic and charitable activities. He served as President of the University of Nevada
Alumni Association and Chairman of the Board of the Nevada Historical Society from 1961
to May 27, 1969. In addition he was also District Chairman of the Boy Scouts of America and
Chairman of the Board of Directors of the Nevada Heart Fund Association in 1965.
He was a lifelong and ardent Democrat and actively participated in the affairs of his party
in this State.
When Justice Charles M. Merrill was named to the Ninth United States Circuit Court of
Appeals, Governor Grant Sawyer appointed Miles N. Pike to succeed Justice Merrill as an
Associate Justice of the Supreme Court of Nevada. While serving on the Court, he was
always and unfailingly courteous and helpful to others, with an easy and natural dignity. His
manner was forthright and friendly. On the bench, he was fair and just, and invariably
courteous. His conduct, both as a lawyer and as a judge was always characterized by his
wisdom, ability and integrity. His warm genial nature coupled with a delightful sense of
humor and keen interest in people and his concern for the problems of others brought him
many friendships with people in all walks of life.
In June 1961, Judge Pike resigned from the Supreme Court and returned to his old firm
where he continued to practice law until his death.
More than most, Jack Pike lived by the Golden Rule. Generous and sympathetic, he was
never too busy to give the aid of his services regardless of any monetary reward. His live was
characterized by thoughtfulness of others. Nothing finer can be said of any man.

He has joined the ranks of other eminent lawyers and jurists who have gone before him,
always remaining steadfastly true to his conception of right and justice. When William H.
Seward made his great plea for justice in the trial of William Freeman, he expressed the hope
that when he shall have paid the debt of nature and his remains were put to rest with those of
his kindred and neighbors, that some wandering stranger might erect over them a humble
stone and inscribe thereon the epitaph He was faithful.
Truly, these same words also described the life and public service of Miles N. Jack Pike
of Nevada.
Therefore, Be It Resolved: That this Resolution be approved by this Court and become a
part of the permanent record thereof.
Thomas A. Cooke, Chairman John T. McLaughlin
John W. Barrett Edward C. Reed, Jr.
Bryce Rhodes

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