Nevada Reports 1970 (86 Nev.) PDF

86 Nev.
1, 1 (1970)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
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Volume 86
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86 Nev. 1, 1 (1970) Utility Financial Corp. v. Roberts
UTILITY FINANCIAL CORP., a Corporation, Appellant, v. JOSEPH G. ROBERTS,
Respondent.
No. 5835
January 2, 1970 463 P.2d 481
Suit for declaratory relief to determine priorities between lenders who loaned funds
secured by real estate. Eighth Judicial District Court, Clark County; Howard W. Babcock,
Judge.
Action against mortgagee to compel conveyance or release of lots from mortgage and to
enjoin foreclosure proceedings, and for declaratory relief to determine priorities between
lenders who loaned funds secured by real estate. The district court rendered judgment for
plaintiff, and defendant appealed. The Supreme Court, Zenoff, J. held that mortgagee whose
mortgage provided that, if obligation was not in default, individual lots would be released
upon payment of stated sum, and who advised prospective mortgagee, in answer to request,
that lots would be released upon payment of stated amount was estopped from refusing to
release lots after payment of proper amount by prospective mortgagee on ground that
obligation was in default.
Affirmed.
Guild, Guild & Cunningham, and David W. Hagen, of Reno, for Appellant.
John Peter Lee, of Las Vegas, for Respondent.
1. Estoppel.
Mortgagee whose mortgage provided that, if obligation was not in default, individual lots would be
released upon payment of stated sum, and who advised prospective mortgagee, in answer to request, that
lots would be released upon payment of stated amount was estopped from refusing to release lots after
payment of proper amount by prospective mortgagee on ground that obligation was in default.
2. Estoppel.
Holder of security who induces others to believe and act upon belief that he will not enforce instrument
may be estopped from enforcing it as to them.
OPINION
By the Court, Zenoff, J.:
On November 12, 1964 Utility Financial Corp. loaned $51,500 to Douglas Spencer and
Associates and Lee V. Potter. The obligation was evidenced by a promissory note secured by
a deed of trust on certain real property in Clark County, Nevada, including Lots 1 through 21,
of Block 27, Solar Subdivision No. 1. The deed of trust contained a partial release clause to
the effect that individual lots of the property would be released upon payment of $750.00,
plus interest, for each lot to be released provided the obligation was not in default.
Allegedly Spencer failed to make an installment payment on February 12, 1965. A few
days after that date Joseph Roberts and Spencer negotiated a loan whereby Roberts would
loan Spencer $48,000 to be secured by the 21 lots. They opened an escrow at First Title
Insurance Company, at Las Vegas, for that purpose. As a condition of the loan Roberts
required that he have first priority on the lots and that he wanted a title policy so insuring his
first priority. The escrow company inquired by letter of Utility the amount Utility would
require to pay off the 21 lots. After the written demand by First Title, Utility by its employee,
Tom Horngren, wrote First Title that the amount necessary to pay in full the sums owing on
the 21 lots was $15,750 principal, plus $350.84 interest, and a daily rate of $3.22. He made
no mention then or thereafter that Utility considered Spencer's account as delinquent or in
default. First Title sent Utility a check for the full amount requested referring on the face of
it to the "demand in full," which Utility accepted and deposited.
requested referring on the face of it to the demand in full, which Utility accepted and
deposited. Instead of releasing the 21 lots Utility applied the amount of the check to the
Spencer account justifying their conduct on the premise that Spencer's obligation being in
default, Utility was no longer obligated to grant partial releases to the lots. Roberts brought
action to compel a conveyance or release from Utility of the 21 lots and to enjoin foreclosure
proceedings by Utility against the lots.
The trial court found that neither Roberts nor First Title had knowledge of the purported
delinquency existing between Spencer and Utility and that Horngren being in a position of
authority, was authorized to advise of the amount due, which he did, and that Utility is
estopped to deny the validity of Horngren's demand made upon the escrow company.
[Headnote 1]
The exchange of correspondence between the escrow company and Utility afforded Utility
ample opportunity to advise Roberts through the escrow company that Spencer's account with
Utility was in jeopardy. We cannot permit their silence to lead Roberts into a position he did
not intend nor contract to get into. Under these circumstances he had the right to rely upon
their representation as to what the balance due was on the lots. Utility's failure to apprise him
of the purported default bars them from refusing to abide by the partial release provision in
the note and trust deed.
[Headnote 2]
A long-established principle with respect to waiver and estoppel is that, through his
conduct, a holder of a security instrument may induce others to believe an act upon the belief
that he will not enforce it and, because of this, may be estopped from doing so as to them. In
short, the nondisclosure by the lending institution induced the new lending parties to act upon
it. In the absence of the knowledge that would have been material to the Roberts transaction,
the failure of Utility to impart it cannot be used to Utility's advantage. Dagnino v. Home
Federal Savings, 183 So.2d 846 (Fla.App. 1966); Orlando Orange Groves v. Davenport, 77
F.2d 148 (5th Cir. 1935).
The foregoing is the only issue the court deems determinative of this appeal.
Affirmed.
Collins, C. J., Batjer and Mowbray, JJ., and Young, D. J., concur.
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86 Nev. 4, 4 (1970) Drummond v. State
JIMMIE LEE DRUMMOND and BILLY RAY RILEY, Appellants, v. THE STATE OF
NEVADA, Respondent.
No. 5898
January 5, 1970 462 P.2d 1012
Appeal from judgments of the Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
Defendants were convicted before the district court of robbery and they appealed. The
Supreme Court, Thompson, J., held that under evidence which overwhelmingly established
defendant's guilt, allowing use of transcript of testimony given at preliminary hearing by
robbery victim who was not shown to have been unavailable at commencement of trial was
harmless error.
Affirmed.
James D. Santini, Public Defender, and H. Leon Simon, and Jeffrey Sobel, Deputy Public
Defenders, Clark County, for Appellants.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, George
H. Spizzirri, and Addeliar D. Guy, Deputy District Attorneys, Clark County, for Respondent.
1. Stipulations.
Where continuance of prosecution for robbery was by stipulation, state's failure to satisfy requirements of
rule in seeking continuance was not relevant to validity of defendant's subsequent conviction. DCR 21.
2. Constitutional Law.
The right granted an accused by the Sixth Amendment to confront the witnesses against him, including
the right of cross-examination, is fundamental to a fair trial and obligatory on states through the Fourteenth
Amendment. U.S.C.A.Const. Amends. 6, 14.
3. Criminal Law.
Transcript of testimony of a material witness given at preliminary examination may be received in
evidence at trial if (1) defendant was represented by counsel at preliminary hearing; (2) counsel
cross-examined witness; and (3) witness is shown to be actually unavailable at time of trial.
4. Criminal Law.
Where state investigator had been in contact with robbery victim prior to trial, knew of his out-of-state
residence and his presence there but made no effort to compel victim's attendance at trial, victim was not
unavailable at commencement of trial and allowing use, at trial, of transcript of his
testimony given at preliminary hearing was error even though during continuance
prosecutor unsuccessfully utilized Uniform Act to secure the attendance of
out-of-state witnesses.
allowing use, at trial, of transcript of his testimony given at preliminary hearing was error even though
during continuance prosecutor unsuccessfully utilized Uniform Act to secure the attendance of out-of-state
witnesses. NRS 171.198, subd. 7, 174.395 et seq.
5. Criminal Law.
Defendant's right to confront witnesses against him may be waived by his failure, at trial, to object to use
of transcript of witness' testimony given at preliminary examination. U.S.C.A. Const. Amends. 6, 14.
6. Criminal Law.
Under evidence which overwhelmingly established defendant's guilt, introduction of transcript of
testimony given at preliminary hearing by robbery victim who was not shown to be unavailable at
commencement of trial was harmless error.
OPINION
By the Court, Thompson, J.:
Drummond and Riley were convicted of robbery. On this direct appeal they contend that
their Sixth Amendment right to be confronted with the witnesses against them was violated
when the trial court allowed the State to offer in evidence, over appropriate objection, the
testimony of the robbery victim given at the preliminary examination. We are asked to void
their convictions and remand for another trial since a violation of this fundamental
constitutional right cannot be deemed harmless error. Messmore v. Fogliani, 82 Nev. 153,
156, 413 P.2d 306 (1966).
[Headnote 1]
The defendants were represented by counsel at their preliminary examination, and counsel
cross-examined the victim at that time. When trial occurred in the district court the victim
was not present to testify. No pretrial effort was made by the State to compel his attendance
[NRS 174.395 et seq.Uniform Act to secure the attendance of out-of-state witnesses]
although his out-of-state address and presence there were known at that time. The State
presented its case in chief and then requested a continuance in order to secure the presence of
the victim-witness. Defense counsel stipulated to a continuance.
1
He also wanted the victim
to testify and to subject him to searching cross-examination.
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1
Since the continuance was by stipulation we are not concerned with the State's failure to satisfy the
requirements of District Court Rule 21 in seeking a continuance. See: Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918
(1969); Rainsberger v. State, 76 Nev. 158, 160, 350 P.2d 995 (1960).
to searching cross-examination. However, defense counsel made it clear that he would object
to any effort by the State to use the preliminary transcript of the victim's testimony should he
not appear at the time to which the trial was continued.
The court continued the trial for 12 days and admonished the prosecutor to utilize the
Uniform Act to compel the victim's attendance. The witness was not present when the trial
resumed. He had not been subpoenaed. The witness told an investigator for the State that he
would be present, and the investigator made transportation arrangements for him. The
prosecutor also utilized the Uniform Act, but the out-of-state authorities were unable to locate
the witness at that time. Within this framework the trial court permitted the State to read the
preliminary transcript of the victim's testimony into evidence.
[Headnote 2]
1. The right granted an accused by the Sixth Amendment to confront the witnesses against
him, which includes the right of cross-examination, is fundamental to a fair trial and
obligatory on the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400
(1965). Our decision in Messmore v. Fogliani, supra, rested squarely upon the doctrine
proclaimed in Pointer since, in each case, there was a total preclusion of the right to confront
a material witness and to cross-examine him through counsel. The witness was not
cross-examined by counsel at the preliminary hearing in either of those cases. The case at
hand is different than Pointer and Messmore in two respects. First, defense counsel did
cross-examine the victim-witness at the preliminary examination. Second, the witness, at the
time of trial, resided in another state. Whether these distinguishing factors are meaningful
within the context of the record before us presents the issue of this appeal.
2. In Pointer, supra, the United States Supreme Court, in dictum, noted a situation that
would not fall within the scope of the rule of confrontation stating, The case before us would
be quite a different one had Phillips' statement been taken at a full fledged hearing at which
petitioner had been represented by counsel who had been given a complete and adequate
opportunity to cross-examine. Id. at 407. The meaning which state courts are to accord that
dictum is diluted in the light of a later opinion of the High Court, Barber v. Page, 390 U.S.
719 (1968), wherein it was noted, Moreover, we would reach the same result on the facts of
this case had petitioner's counsel actually cross-examined Woods at the preliminary hearing.
See: Motes v. United States, 178 U.S. 458 (1900). The right to confrontation is basically a
trial right. It includes both the opportunity to cross-examine and the occasion for the jury to
weigh the demeanor of the witness. A preliminary hearing is ordinarily a much less searching
exploration into the merits of a case than a trial, simply because its function is the more
limited one of determining whether probable cause exists to hold the accused for trial. While
there may be some justification for holding that the opportunity for cross-examination of a
witness at a preliminary hearing satisfies the demands of the confrontation clause where the
witness is shown to be actually unavailable, this is not, as we have pointed out, such a case.
Id. at 725, 726.
[Headnote 3]
The quoted language of the Pointer and Barber cases is reconcilable. We read those
observations of the High Court to mean that the transcript of the testimony of a material
witness given at the preliminary examination may be received in evidence at the trial if three
preconditions exist: first, that the defendant was represented by counsel at the preliminary
hearing; second, that counsel cross-examined the witness; third, that the witness is shown to
be actually unavailable at the time of trial. In the case before us the first two preconditions are
met, and we turn to consider whether the third precondition, actual unavailability at the time
of trial, is shown by the record.
[Headnotes 4, 5]
3. The relevant part of NRS 171.198(7) allows the preliminary transcript to be used at trial
if the witness is sick, dead, out of the state, or when his personal attendance cannot be had in
court. Here, the witness was out of the state and the narrow issue is whether it can fairly be
concluded that his personal attendance cannot be had in court. This, of course, was the
question posed in Barber v. Page, supra. In that case the witness was incarcerated in a federal
penitentiary. His attendance could have been compelled either by resort to the Uniform Act to
secure his attendance, or by the use of a writ of habeas corpus ad testificandum. The State
made no effort to employ either procedure. The court held that the witness was not
unavailable for the purpose of the exception to the confrontation requirement since the
State had not made a good faith effort to obtain his presence at trial.
The Barber ruling was given retroactive application the following year in Berger v.
California, 393 U.S. 314 (1969). In Berger the witness was in another state. An investigator
for the prosecutor had contacted relatives of the witness, but not the witness himself.
the prosecutor had contacted relatives of the witness, but not the witness himself. However,
two telegrams were apparently received from the witness, but the prosecutor did not serve
him with subpoena. The conviction was set aside since the witness was not shown to be
unavailable.
Berger controls the case at bar. Indeed, this case is a stronger one for the application of the
doctrine announced in Barber v. Page since the State's investigator had been in contact with
the witness before trial, knew of his residence out of state and his presence there. No effort
was made to compel his attendance. Of course, after the court granted a continuance, the
prosecutor unsuccessfully utilized the Uniform Act. That effort, however, was at the direction
of the court and does not obliterate the initial failure to secure the attendance of the witness
for trial when it commenced. Accordingly, we must conclude that the trial court erred in
allowing use of the preliminary transcript at trial.
2

[Headnote 6]
4. The State contends that if error occurred, it was harmless. The doctrines of Pointer and
Barber concern substantive due process and, as noted, are given retrospective application.
Accordingly, we have heretofore ruled that where there is a total preclusion of the right to
confront a material witness and to cross-examine him through counsel, the doctrine of
harmless error may not be considered. An automatic reversal is mandated. Messmore v.
Fogliani, supra. In the case before us, however, the witness was cross-examined by defense
counsel at the preliminary examination, and to this extent is different than Messmore. We
must decide whether this difference will allow us to evaluate the error in the context of this
case and the federal standard of harmless error proclaimed in Chapman v. California, 386
U.S. 18 (1967).
In Guyette v. State, 84 Nev. 160, 438 P.2d 244 (1968), we suggested that the rule of
harmless error might be utilized in proper circumstances when any of the new procedural
safeguards as expressed in Mapp v. Ohio, 367 U.S. 643 (1961); Griffin v. California, 380
U.S. 609 (1965); Escobedo v. Illinois, 378 U.S. 478 (1964); Miranda v. Arizona, 384 U.S.
436 (1966), and Gilbert v. California, 388 U.S. 263 (1967), are breached. Id. at 166. That
suggestion rested mainly on the proposition that the constitutional doctrines of those cases
were not given retrospective application for the reason that a violation might occur
without necessarily affecting the fundamental fairness of the trial.
____________________

2
The right of confrontation may be waived by the failure to object to the use of the preliminary transcript,
People v. Pike, 455 P.2d 776 (Cal. 1969), or by stipulation, Pook v. Fitzharris, 396 F.2d 544 (9 Cir. 1968).
Neither occurred here.
not given retrospective application for the reason that a violation might occur without
necessarily affecting the fundamental fairness of the trial. In contrast, we noted in that
opinion that automatic reversal occurs in those cases in which substantive due process is
denied the defendant and the constitutional doctrine violated is accorded retrospective
significance. Id. at 166, footnote 1. In the light of our expressions in Guyette it would appear
that we must reverse these convictions since the constitutional violation involved concerns
substantive due process and is given retrospective effect.
However, in 1968 the High Court decided Harrington v. California, 395 U.S. 250, which
concerned a violation of the Bruton doctrine.
3
There, the Court ruled that the violation was
harmless beyond a reasonable doubt. Thus, Harrington erodes, to some degree, our analysis in
Guyette since it permits consideration of harmless error in a case where the constitutional
doctrine violated has been given retrospective effect. Since Harrington and the case before us
each concern the Confrontation Clause we conclude that it is permissible for us to review the
records and decide whether the constitutional error is harmless beyond a reasonable doubt.
In this case the evidence establishing the guilt of Drummond and Riley is overwhelming.
Police officers actually observed the robbery in process and apprehended the robbers as they
ran from the scene. Within this factual setting the transcribed testimony of the victim-witness
given at preliminary examination and read into evidence at trial was insignificant. Indeed, that
witness could not identify the robbers since they had placed paper bags with peepholes over
their heads. If the error considered by the Court in Harrington v. California, supra, was
harmless, a fortiori the mistake in this case must be so treated.
Affirmed.
Collins, C. J., Zenoff, Batjer, and Mowbray, JJ., concur.
____________________

3
Burton v. United States, 391 U.S. 123 (1963), held that the use, against Bruton, of a confession of a
codefendant, violated the Confrontation Clause of the Sixth Amendment.
____________
86 Nev. 10, 10 (1970) Thomas v. Bokelman
ALVIS O. THOMAS, Guardian ad Litem for WENDY SUE THOMAS and ALVIS O.
THOMAS IV, Minors, and ALVIS O. THOMAS, Individually, Appellants, v. WILLIAM
BOKELMAN and WILLIE BOKELMAN, Respondents.
No. 5875
January 6, 1970 462 P.2d 1020
Appeal from a summary judgment of dismissal. Second Judicial District Court, Washoe
County; John W. Barrett, Judge.
Action for death of plaintiffs' decedent who, while visiting defendants' house, was shot by
ex-felon whom defendants had harbored after his release from imprisonment for forcible
rape. The district court rendered summary judgment for defendants, and plaintiffs appealed.
The Supreme Court, Zenoff, J., held that defendants were not liable although defendants had
left guns and ammunition accessible.
Affirmed.
Bradley & Drendel, of Reno, for Appellants.
Leslie A. Leggett, of Reno, for Respondents.
1. Weapons.
Defendants who harbored ex-felon after his release from imprisonment for forcible rape were not liable
for death of visitor who was shot by ex-felon using defendants' gun, although defendants had left guns and
ammunition accessible.
2. Negligence.
Negligence is not actionable unless, without intervention of intervening cause, it proximately causes harm
for which complaint was made; intervening cause means not concurrent and contributing cause but
superseding cause which is itself natural and logical cause of harm.
3. Negligence.
Defendant who could not foresee any danger from intervening force is not negligent.
4. Negligence.
There is duty to take affirmative action to control wrongful acts of third persons only where occupant of
realty has reasonable cause to anticipate such act and probability of injury resulting therefrom.
5. Judgment.
Defendant is entitled to summary judgment where plaintiff as matter of law cannot recover.
6. Judgment.
Party opposing summary judgment motion is not entitled to have motion denied on mere hope that at trial
he will be able to discredit movant's evidence; be must at hearing be able to point out
something indicating existence of triable issue of fact and must set forth specific
facts showing that there is genuine issue.
discredit movant's evidence; be must at hearing be able to point out something indicating existence of
triable issue of fact and must set forth specific facts showing that there is genuine issue.
7. Judgment.
Inferences will be drawn in favor of party opposing motion for summary judgment.
OPINION
In 1955 Jack Summers was convicted of rape and sent to prison. He was released in 1968
having served his time. Summers v. Warden, 84 Nev. 326, 440 P.2d 388 (1968). He lived in
Reno for about two months with the Bokelmans, who were relatives, but finally Bokelman,
Summers' half-brother, was unable to any longer support him and asked him to leave. At no
time during his stay at the Bokelman residence was there any discord or concern about
Summers' conduct. Although two teenage girls lived with the Bokelmans as foster daughters,
the early concern over their safety in view of Summers' history of the rape incident was
dispelled by his compatibility and blending in with the family life.
The Bokelmans and Thomases were friends and visited each other frequently, particularly
Mrs. Thomas. On one occasion Summers, Mrs. Thomas, Mrs. Bokelman and her father
attended a roller derby together with the knowledge of Mr. Thomas.
Bokelman, who hunted for recreation, owned two rifles and also had in his possession a
small rifle which he had borrowed from his father-in-law. The weapons were kept in his
bedroom closet which was unlocked. The shells for the larger rifles were on a closet shelf and
the shells for the small rifle were in the nightstand by his bed. On one occasion Summers saw
the guns when Bokelman showed them to a friend who was visiting.
On July 3 Bokelman asked Summers to leave. Apparently the request was taken in good
humor by Summers who had told Mrs. Bokelman that he would go to the state of Washington
to look for a job. When the Bokelmans returned to their home later in the day Summers and
all of his belongings were gone. However, there is no evidence to show that either Mr. or
Mrs. Thomas knew of Summers leaving. Mr. Thomas never met Summers but did know of
his past record and that he was staying at the Bokelmans.
On July 8 Mrs. Bokelman had planned a birthday party for Mrs. Thomas's daughter. She
left her house at 9:00 a.m. and stayed at the Thomas's house until 12:00 noon.
stayed at the Thomas's house until 12:00 noon. She called her house at noon to see if her
younger foster daughter was home but no one answered. At about noon the two women and
two children drove to the Bokelman household. As they drove into the driveway Mrs.
Thomas said she saw someone walk past the window, but Mrs. Bokelman mentioned that she
had called earlier and no one had been home. When the two women entered the house they
found a note from the younger girl saying she was downtown. Mrs. Bokelman heard some
shots and saw Mrs. Thomas fall. Mrs. Bokelman was also shot. Mrs. Bokelman only saw the
back of the man's shirt who did the shooting and saw the car leave the driveway. Later
Summers was apprehended, charged and convicted of the murder of Mrs. Thomas.
Mr. Thomas for himself and their minor children brought this action for wrongful death
alleging that the Bokelmans were negligent in leaving an unlocked gun around an ex-convict
with vicious propensities and that their negligence was the proximate cause of Mrs. Thomas's
death. Default judgment was entered against Summers. The trial court granted summary
judgment dismissing the action. For reversal Thomas contends (1) that the act of leaving
firearms and ammunition accessible to a man once convicted of forcible rape and residing on
the premises constitutes actionable negligence, and (2) that the intervening criminal act of a
person known to have a violent criminal personality does not prevent the asserted negligence
of the Bokelmans who made it possible for him to commit such criminal act from being the
proximate cause of the killing of the victim and, finally (3) that summary judgment was not a
proper disposition of this action.
[Headnote 1]
1. The Thomas complaint is based upon the allegation that as the possessors of firearms
and ammunition the Bokelmans failed to exercise that degree of care commensurate with the
risk that such possession entailed. They seek to base liability upon the inherently dangerous
character of the instruments, the firearms, together with the risk of the keeping of firearms in
the proximity of an ex-felon who had 13 years before been convicted for an act of rape.
The degree of care owed by the Bokelmans to the legal status of the victim, whether as a
licensee or as an invitee, is not in issue. Nor is the reference to cases in which the factual
pattern involving a shooting by children to whom firearms were dangerously left available,
germane. Those latter instances are largely governed by the control or supervision that parents
have over their children which, in turn, imposes liability for their acts.
have over their children which, in turn, imposes liability for their acts. It cannot be said that
the Bokelmans had supervision or control over 35-year-old Summers.
[Headnote 2]
2. Negligence is not actionable unless, without the intervention of an intervening cause, it
proximately causes the harm for which complaint was made. An intervening cause means not
a concurrent and contributing cause but a superseding cause which is itself the natural and
logical cause of the harm. Segerman v. Jones, 38 U.S.L.W. 2347 (Md.App. Dec. 9, 1969).
[Headnotes 3, 4]
Mrs. Thomas may not have been aware of the guns in Bokelman's home, but she did know
of Summers' past record and character of the crime he had committed. Still, no reason appears
for anyone in the household to foresee or anticipate Summers' presence with a gun. The risk,
if any, was that Summers might again rape someone. His history is not one that involved
weapons and the social relationship that had prevailed precluded any present fear of an evil
disposition. A defendant who could not foresee any danger from an intervening force is not
negligent. Sitarek v. Montgomery, 203 P.2d 1062 (Wash. 1949); Fulfer v. Sherry's Liquor
Stores, 149 P.2d 734 (Cal.App. 1944). Appellants rely upon Underwood v. United States, 356
F.2d 92 (5th Cir. 1966), but there the well-known history of the emotional instability of the
soldier who shot his wife was the predicate for anticipating that he would do so because with
the knowledge that the soldier was bent on harming his wife he was permitted to obtain a
weapon. There is a duty to take affirmative action to control the wrongful acts of third
persons only where the occupant of realty has reasonable cause to anticipate such act and the
probability of injury resulting therefrom. Young v. Desert View Management Corp., 79
Cal.Rptr. 848, 850 (Cal.App. 1969); Di Gildo v. Caponi, 247 N.E.2d 732, 735 (Ohio 1969).
[Headnotes 5-7]
3. The courts are reluctant to grant summary judgment in negligence cases because
foreseeability, duty, proximate cause and reasonableness usually are questions of fact for the
jury. Berrum v. Powalisz, 73 Nev. 291, 293, 317 P.2d 1090 (1957). But when plaintiff as a
matter of law cannot recover, defendant is entitled to a summary judgment. Young v. Desert
View Management Corp., supra (judgment of nonsuit entered following an opening statement
made to the jury by plaintiff's attorney).
attorney). The rule is well-settled that the opposing party is not entitled to have the motion for
summary judgment denied on the mere hope that at trial he will be able to discredit movant's
evidence; he must at the hearing be able to point out to the court something indicating the
existence of a triable issue of fact. 6 Moore's Federal Practice, 56.15(4) at 2142. The
opponent is required to set forth specific facts showing that there is a genuine issue for trial.
Bufalino v. Michigan Bell Telephone Co., 404 F.2d 1023 (6th Cir. 1968); Applegate v. Top
Associates, Inc., 300 F.Supp. 51 (S.D.N.Y. 1969). Taking into consideration that inferences
will be drawn in favor of the party opposing the motion the opponent must nevertheless show
he can produce evidence at the trial to support his claim. Chapman v. Rudd Paint & Varnish
Co., 409 F.2d 635, 643 (9th Cir. 1969); cf. Dyer v. MacDougall, 201 F.2d 265 (2nd Cir.
1952).
Nothing appears to indicate from this record that more facts could be established that
would alter the factual situation as already stated. Therefore, as a matter of law the appellant
cannot recover. We can find no actionable issue for the jury. The summary judgment was
proper.
Affirmed.
Collins, C. J., Batjer, Mowbray, and Thompson, JJ., concur.
____________
86 Nev. 14, 14 (1970) McGlone v. McGlone
ARTIE MATHEW McGLONE, Appellant, v.
ARMA LYNN McGLONE, Respondent.
No. 5776
January 15, 1970 464 P.2d 27
Appeal from a portion of an order of the Eighth Judicial District Court, Clark County;
Howard W. Babcock, Judge.
Appeal by father from part of habeas corpus order of district court awarding custody of his
three daughters to their maternal grandparents. The Supreme Court, Thompson, J., held that
where the mother was unfit for custody of her children and unfitness of father was not
intimated, father who had been awarded custody of his son was legally entitled to the custody
of his daughters.
Reversed.
Batjer, J., dissented.
[Rehearing denied March 25, 1970]
Foley, Garner & Shoemaker, of Las Vegas, for Appellant.
Monte J. Morris, of Henderson, for Respondent.
1. Divorce.
Child custody provisions of divorce and guardianship statutes create a rebuttable presumption that a fit
parent is to be preferred over nonparents and custody should not be given to nonparent unless parent is
found to be unfit. NRS 125.140, subd. 1, 159.050, subd. 1.
2. Divorce.
Where mother of children was unfit for custody and unfitness of father was not intimated, divorced father
who had been awarded custody of son was legally entitled to custody of daughters. NRS 125.140, subd.
1, 159.050, subd. 1.
OPINION
The father appeals from that part of a district court custody order entered in a habeas
corpus proceeding awarding the custody of his three minor daughters to their maternal
grandparents. He was given custody of his minor son. His habeas petition initially rested upon
a temporary order of a Louisiana court granting him the custody of all four children. The
Louisiana case had been commenced by his wife and sought a legal separation, child custody
and support. Soon after starting suit the wife left Louisiana with the children, and they have
since resided in Clark County, Nevada. The Louisiana litigation continued in her absence,
although she was represented throughout by counsel. The temporary order upon which the
husband's habeas petition was grounded became final [subject, of course, to modification
upon an appropriate showing of changed circumstances affecting the welfare of the children]
before the Nevada habeas proceeding was concluded, and the Louisiana decree which gave
the husband a divorce and custody of the four minor children was received in evidence in the
Nevada litigation.
The order from which this appeal is taken found the mother unfit to have custody, granted
the father custody of their minor son, and awarded custody of the three minor daughters to the
maternal grandparents. Thus, the Louisiana and Nevada orders are in harmony in two
respects. Each found the mother to be unfit for custody. Moreover, each court found the
father fit to have custodyLouisiana awarding him custody of all four children and Nevada
granting him custody of the boy.
have custodyLouisiana awarding him custody of all four children and Nevada granting him
custody of the boy. The difference between the two orders is with regard to the custody of the
girls. As to them, the Nevada court declined to follow the Louisiana judgment and awarded
their custody to the maternal grandparents. It is this aspect of the Nevada order which the
father challenges.
His challenge is twofold: first, that the Louisiana decree should be accorded full faith and
credit in this state, or, at the very least, honored on the principle of comity [Lyerla v. Ramsay,
82 Nev. 250, 415 P.2d 623 (1966); Ferguson v. Krepper, 83 Nev. 408, 432 P.2d 668 (1967)]
since changed conditions affecting the welfare of the children were not shown to have
occurred after entry of the Louisiana decree; second, that the interests of the children are best
served by awarding their custody to a fit natural parent in preference to grandparents. In the
context of this case we have concluded that the latter challenge is sound, and will, therefore,
confine our discussion to that point.
1. At the outset we note that this litigation is between the father and the mother. The
maternal grandparents are not parties to it, have never enjoyed legal custody of their
grandchildren, and have never asserted a claim to such custody. They appeared as witnesses
before the court and apparently were amenable to the responsibilities of custody should the
court decide such a course to be the desirable one. Cf. Farrell v. Farrell, 72 Nev. 259, 302
P.2d 484 (1956). Consequently, this case is to be distinguished from those in which issue is
joined between a parent on the one hand and the grandparents on the other. Cf. Painter v.
Bannister, 140 N.W.2d 152 (Iowa 1966). We are reluctant to approve an award of custody to
nonparties although dictum in Atkins v. Atkins, 50 Nev. 333, 339, 259 P. 288 (1927), may be
read to suggest that a court has the power to do so in appropriate circumstances.
[Headnote 1]
2. Our legislature has expressed itself with respect to child custody. In the chapter on
divorce the court is directed to order that which is most for the present comfort and future
well being of the children. NRS 125.140(1). This, of course, is the best interest of the
child standard. And, in the chapter on guardianship we are advised that either parent, not
otherwise unsuitable, shall be entitled to the guardianship of a minor. NRS 159.050(1). Read
together, these statutes create, at the very least, a rebuttable presumption that a fit parent is to
be preferred over nonparents with respect to child custody.
preferred over nonparents with respect to child custody. California acknowledges these
statutory guides and has ruled that custody shall not be given to a nonparent unless the parent
is found to be unfit. In re Guardianship of Smith, 265 P.2d 888 (Cal. 1954). We prefer this
view. The best interest of the child is usually served by awarding his custody to a fit parent.
Cf. Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969), where we ruled that as between fit
parents, a child of tender years should be awarded to the mother.
[Headnote 2]
As before noted there is no suggestion in the matter at hand that the father is unfit to enjoy
the custody of the minor children. Indeed, neither the maternal grandparents nor the welfare
department representative who investigated for the court intimated unfitness in the father. The
court apparently agreed to some extent since it awarded custody of the boy to the father. In
these circumstances we believe that he is legally entitled to the custody of his daughters as
well. To this extent, the order below is reversed.
Collins, C. J., Zenoff and Mowbray, JJ., concur.
Batjer, J., dissenting:
I respectfully dissent.
It cannot be said, as a matter of law, that custody shall not be given to a nonparent unless
the parents are found to be unfit.
Although it may be dicta, in Atkins v. Atkins, 50 Nev. 333, 339, 259 P. 288 (1927), this
court said: The good of the child is paramount to all other considerations, and the court may
ignore the greater affection of one party, the common-law right of the father, the agreements
of the parties, and, if the circumstances clearly require it, may award the custody to a third
party.
In Roller v. Roller, 213 So.2d 161 (La. 1968), that court said: . . . [F]requently have our
courts awarded child custody to third parties, and in such cases, the basic determination
remains whether or not the best interest of the child would be served by giving custody to
such persons.
Furthermore, while the trial court awarded the appellant custody of the minor son, and did
not specifically find him to be an unfit parent, we can imply that he was unfit to assume the
custody of the three minor daughters because their custody was granted to the maternal
grandparents. Cf. Harris v. Harris, 84 Nev. 294, 439 P.2d 673 {196S); cf. Timney v. Timney,
76 Nev. 230
Nev. 294, 439 P.2d 673 (1968); cf. Timney v. Timney, 76 Nev. 230, 351 P.2d 611 (1960).
A trial court is given wide latitude of discretion in the determination of questions relating
to the custody of children, and its judgment will not be disturbed unless a clear abuse appears.
Timney v. Timney, supra; Murphy v. Murphy, 65 Nev. 264, 193 P.2d 850 (1948); Black v.
Black, 48 Nev. 220, 228 P. 889 (1924); Elsman v. Elsman, 54 Nev. 20, 28, 31, 2 P.2d 139, 3
P.2d 1071, 10 P.2d 963 (1931, 1931, 1932); Cosner v. Cosner, 78 Nev. 242, 371 P.2d 178
(1962); Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969). I find no abuse of discretion by
the trial court.
In nearly every case concerning child custody decided by this court, to and including
Peavey v. Peavey, supra, we have solemnly declared that the welfare of minor children is of
paramount consideration, yet in this case, the majority pays slight attention to the best
interest of the child standard and proceeds to declare that, now, the matter of prime
consideration is that custody shall not be given to a nonparent unless the parent is found to be
unfit.
I would reemphasize our long established position that the welfare of the child is
paramount and affirm the judgment of the lower court.
____________
86 Nev. 18, 18 (1970) Winn v. Winn
JOSEPH D. WINN, Appellant, v. SHIRLEY
A. WINN, Respondent.
No. 5921
January 16, 1970 467 P.2d 601
Appeal from alimony and property provisions of a divorce decree. Second Judicial District
Court, Washoe County; Emile J. Gezelin, Judge.
The Supreme Court, Zenoff, J., held that award of $4,000 to wife in lieu of a division of
property interests plus $100 per month alimony with a reservation of jurisdiction over
alimony was not a abuse of discretion.
Affirmed.
Raymond E. Sutton, of Las Vegas, for Appellant.
Fry and Fry, of Reno, and Bradley, Farris and Di Rosario, of Columbus, Ohio, for
Respondent.
86 Nev. 18, 19 (1970) Winn v. Winn
1. Divorce.
Trial court should not be held to a mathematical certainty in all divorce cases.
2. Divorce.
Award of $4,000 to wife in lieu of a division of property interests plus $100 per month alimony with a
reservation of jurisdiction over alimony was not an abuse of discretion. NRS 125.150, subd. 1.
OPINION
Joseph Winn, a retired Air Force Colonel, was 47 years old, previously unmarried when he
and Shirley were married in Columbus, Ohio, on June 1, 1965. Shirley was 39 at the time and
was also previously unmarried. She had worked for the state of Ohio for 17 years but quit her
job just prior to the marriage. She withdrew $3,400 from the retirement fund which she used
to purchase an automobile and made other expenditures.
Joseph earned retirement pay of $576 per month plus approximately $100 per month in
interest income from investments. Before their marriage he had purchased securities worth
approximately $10,000, and owned a dwelling in Phoenix upon which he was making
monthly payments, but was receiving rent from it. During the marriage he purchased a $75.00
savings bond per month until he retired which roughly totaled $2,250 not considering the
increased value over the period until the divorce.
After the separation in May 1968 Joseph purchased a lot in New Mexico for $3,495 in the
names of both parties and also purchased six lots in New Mexico and five lots in Florida in
his name only.
After one year of marriage Shirley returned to work because, she explained, Joseph was so
penurious that she needed additional income for living expenses as well as to care for her
aged mother. When she returned to work her income was considerably diminished for her job
was of less stature than the one she had before their marriage. At the time of trial her bank
account totaled $27.18.
Many other facts were supplied by testimony from both Shirley and Joseph, but they
reflected nothing startling that would affect the adjudication of this court. The union lasted 2
1/2 years. The differences that arose between them, starting with the honeymoon, can largely
be attributed to their respective long-term bachelorhood and spinsterhood. Mutual obstinacy
imbedded by the years undoubtedly made them irreconcilable.
86 Nev. 18, 20 (1970) Winn v. Winn
obstinacy imbedded by the years undoubtedly made them irreconcilable. The divorce granted
upon the wife's cross-complaint is not being appealed by either party as to grounds. Only the
award of $4,000 in lieu of a division of property interests plus $100 per month alimony to the
wife with a reservation of jurisdiction over the alimony by the trial court is questioned.
[Headnotes 1, 2]
We find no abuse of discretion in this case. NRS 125.150(1) provides as follows:
In granting a divorce, the court may award such alimony to the wife and shall make such
disposition of the community property of the parties as shall appear just and equitable, having
regard to the respective merits of the parties and to the condition in which they will be left by
such divorce, and to the party through whom the property was acquired, and to the burdens, if
any, imposed upon it, for the benefit of the children.
A trial court should not be held to a mathematical certainty in all cases. Fox v. Fox, 81
Nev. 186, 196, 401 P.2d 53 (1965). The trial court's objective is that of fairness which it
achieves by the judge's personal observation of the parties and the evaluation of the
circumstances as they come before him in the arena of the trial court. The trial judge's
perspective is much better than ours for we are confined to a cold, printed record.
Cunningham v. Cunningham, 61 Nev. 93, 95, 116 P.2d 188 (1941); Wittenberg v.
Wittenberg, 56 Nev. 442, 453, 55 P.2d 619 (1936); Freeman v. Freeman, 79 Nev. 33, 37, 378
P.2d 264 (1963). Other courts, as well as Nevada's, have upheld awards in these similar
situations. Warren v. Warren, 189 N.E.2d 401 (Ill.App. 1963); Landreth v. Landreth, 326
S.W.2d 128 (Mo.App. 1959); Mack v. Mack, 112 So.2d 861 (Fla.App. 1959); Armour v.
Armour, 59 So.2d 51 (Fla. 1951); Conover v. Conover, 242 A.2d 481 (Md.App. 1968).
The award in this case is affirmed.
____________
86 Nev. 21, 21 (1970) Fox v. Sheriff
ANTHONY FOX, Appellant, v. SHERIFF, CLARK
COUNTY, NEVADA, Respondent.
No. 6017
January 16, 1970 467 P.2d 1022
Appeal from denial of petition for writ of habeas corpus in case of bribery of a prospective
witness. Eighth Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.
Petition for writ of habeas corpus. The district court denied petition, and appeal was taken.
The Supreme Court, Zenoff, J., held that a subpoena need not be issued before a person can
be considered a prospective witness for purposes of statute making it unlawful to bribe a
witness to influence his testimony.
Affirmed.
Flangas & Stone, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, and Larry
C. Johns, Deputy District Attorney, Clark County, for Respondent.
1. Bribery.
Statute making it unlawful to bribe a witness to influence his testimony requires an agreement or
understanding between the giver of the bribe and the receiver; if the giver makes an offer and he reasonably
believes that the receiver has accepted, then there is an understanding between the parties. NRS 199.240.
2. Bribery.
Subpoena need not be issued before a person can be considered a prospective witness for purposes of
statute making it unlawful to bribe a witness to influence his testimony. NRS 199.240.
OPINION
This is a case of attempted bribery of a prospective witness who had participated in a
narcotics buy for which appellant Anthony Fox was arrested.
On or about April 26, 1969, after Fox's arrest in January of 1969 which immediately
followed the purchase of the narcotics from Carl Kaden, Lonnie Champion and Anthony Fox
went to Kaden's home and allegedly offered him $500 to leave town before the preliminary
hearing took place. At the time of the alleged attempt to induce Kaden to leave town Kaden
had not yet been subpoenaed as a witness nor was he officially informed of any proceedings.
86 Nev. 21, 22 (1970) Fox v. Sheriff
of any proceedings. Kaden reported the attempted bribe for which Fox was arrested. A
preliminary hearing took place on this charge on May 6, 1969 from which Champion was
released but Fox was bound over for trial.
Kaden had testified that he agreed to take the $500 and leave town but only because he
wanted Fox and Champion to leave his home and this was his ruse to get them to leave. No
payment to Kaden was made because that was to take place just before Kaden was to leave
the area. Fox allegedly told Kaden he wanted him to leave town because his testimony would
be unacceptable since Kaden was an ex-felon. Fox was certified for trial for violation of NRS
199.240,
1
the bribing of a witness to influence his testimony. Subsequently he brought a
petition for a writ of habeas corpus on the grounds of insufficiency of the evidence and,
further, that what he was charged with was not a crime under the statute.
[Headnote 1]
1. NRS 199.240 requires an agreement or understanding between the giver of the bribe and
the receiver. If the giver makes an offer and he reasonably believes that the receiver has
accepted, then there is an understanding between the parties. Ex parte Jang, 78 P.2d 250
(Cal.App. 1938); People v. Schultz, 64 P.2d 440 (Cal.App. 1937); People v. McAllister, 277
P. 1082 (Cal.App. 1929); cf. State v. Ferraro, 198 P.2d 120 (Ariz. 1948).
Courts have not usually required that a case be pending before a conviction can be
obtained. Evans v. Superior Court, 214 P.2d 579 (Cal.App. 1950); People v. McAllister,
supra; People v. Martin, 300 P. 130 (Cal.App. 1931). Kaden's testimony that Fox had
informed him at Kaden's home that a preliminary hearing on the narcotics complaint was to
be held on June 8, 1969 was the only evidence, in the record at least, that Fox had been
charged, but it is of no importance. The fact remains a case was pending whether essential to
the crime of bribery or not.
____________________

1
NRS 199.240. Bribing witness. Every person who shall give, offer or promise, directly or indirectly any
compensation, gratuity or reward to any witness or person who may be called as a witness, upon an agreement or
understanding that the testimony of such witness shall be thereby influenced, or who shall willfully attempt by
any other means to induce any witness or person who may be called as a witness to give false testimony, or to
withhold true testimony, shall be punished by imprisonment in the state prison for not less than 1 year nor more
than 10 years, and may be further punished by a fine of not more than $5,000.
86 Nev. 21, 23 (1970) Fox v. Sheriff
[Headnote 2]
2. The information filed against Fox on the bribery did state that Kaden will be called as a
witness. The Nevada statute requires even less in that it includes the bribing of any person
who may be called as a witness. . . . No good reason appears to require that a subpoena shall
first have had to be issued before a person can be considered a prospective witness. A witness
can be a witness without a subpoena.
In all respects the state's burden at the preliminary hearing was met.
Affirmed.
____________
86 Nev. 23, 23 (1970) Morgan v. Sheriff
SHELBY MORGAN, Appellant, v. SHERIFF,
CLARK COUNTY, NEVADA, Respondent.
No. 6047
January 16, 1970 467 P.2d 600
Appeal from denial of petition for writ of habeas corpus. Appellant bound over from
preliminary examination on charge of larceny from the person. Eighth Judicial District Court,
Clark County; Clarence Sundean, Judge.
Defendant was bound over from preliminary examination on charge of larceny from the
person, and he petitioned for writ of habeas corpus. The district court denied petition, and
defendant appealed. The Supreme Court held that there was probable cause to believe that
defendant, who was wearing pink suit when he was observed short distance away from purse
snatching about three minutes after occurrence at time no other person was on street, had
committed larceny from person of victim who had described assailant as having worn pink
suit and evidence was sufficient to order that defendant be held to answer in district court,
notwithstanding that victim could not specifically identify defendant as her assailant,
defendant was not in possession of her purse and he was never seen in possession of any of
victim's property.
Affirmed.
Charles L. Kellar, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, and
Melvyn T. Harmon, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
There was probable cause to believe that defendant, who was wearing pink suit when he was observed
short distance away from purse snatching about three minutes after occurrence at time no other person was
on street, had committed larceny from person of victim who had described assailant as having worn pink
suit and evidence was sufficient to order that defendant be held to answer in district court, notwithstanding
that victim could not specifically identify defendant as her assailant, defendant was not in possession of her
purse and he was never seen in possession of any of victim's property. NRS 171.206.
2. Criminal Law.
If evidence produced at preliminary hearing establishes a reasonable inference that defendant committed
a crime, then probable cause to order him to answer in district court has been established. NRS 171.206.
3. Criminal Law.
In ruling upon whether evidence is sufficient to order a defendant bound over to district court from
preliminary examination, it is not function of Supreme Court or of courts below to pass upon whether or
not evidence is sufficient to justify a conviction. NRS 171.206.
OPINION
Per Curiam:
Appellant was charged with larceny from the person. At the preliminary hearing the
magistrate found from the evidence that there was probable cause to believe that an offense
was committed and that appellant committed it. This is an appeal from an order of the Eighth
Judicial District Court denying appellant's petition for writ of habeas corpus. We affirm.
Appellant complains that the evidence adduced at the preliminary hearing was insufficient
to connect him with the alleged crime, although he concedes that there was sufficient
evidence to indicate that a crime had been committed. Accordingly, the only issue before this
court is whether or not the evidence was such as would make it appear that there was
probable cause to believe that appellant committed the alleged crime.
The essential facts are not disputed, only the findings below based on such facts. The
victim testified that after her car ran out of gas on March 15, 1969, she began walking on
Carey Street in Las Vegas.
Street in Las Vegas. At 5:30 a.m. a person grabbed her purse and took it without her consent.
She had no opportunity to see her assailant's face except to note that he was a male Negro.
She did note that he wore a pink suit or pink pants. There were no other persons on Carey
Street at that time. Thereafter, a police car approached and the victim got into it. The police
officer observed appellant at approximately 5:33 a.m. in an area about 50 to 75 feet from the
victim and he observed no other persons in the area. The police officer identified appellant as
the person who was in the area at that time. Appellant is a male Negro who was wearing a
pink jacket and pink pants at the time. Later, the victim's purse was found about 30 feet from
where she was first seen by the police officer and at a point between the victim and where
appellant was first seen.
Appellant contends that the implications of the above facts are overcome by the failure of
the victim to specifically identify him as her assailant, by the fact that he was not in
possession of her purse, and was never seen in possession of any of the victim's property. We
reject that contention.
[Headnotes 1-3]
There was sufficient evidence to meet the requirements of NRS 171.206. If the evidence
produced at the preliminary hearing establishes a reasonable inference that the defendant
committed the crime, then probable cause to order him to answer in the district court has been
established. Hanley v. State, 85 Nev. 154, 451 P.2d 852 (1969). It is not the function of this
court or of the courts below to pass upon whether or not the evidence is sufficient to justify a
conviction. Beasley v. Lamb, 79 Nev. 78, 378 P.2d 524 (1963).
Affirmed.
____________
86 Nev. 26, 26 (1970) Bair v. Berry
LLOYD P. BAIR, Appellant v. JERRY BERRY, MARGARET BERRY, C. W. HARPER,
EDWARD T. LEONARD, JOHN J. HAUCK, THE OPERATIVE PLASTERERS AND
CEMENT MASONS INTERNATIONAL ASSOCIATION OF THE U.S. AND CANADA,
and THE OPERATIVE PLASTERERS AND CEMENT MASONS, LOCAL 797,
Respondents.
No. 5831
STATE OF NEVADA on the Relation of WILLIAM D. MORRIS as a Member, Financial
Secretary, Treasurer, and Business Manager of LOCAL UNION 797 OF THE OPERATIVE
PLASTERS AND CEMENT MASONS INTERNATIONAL ASSOCIATION OF THE
UNITED STATES AND CANADA, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, in and for the County of Clark, Respondent.
No. 5966
January 21, 1970 464 P.2d 469
Application for writ of prohibition against further trial proceedings in a labor case on
grounds of federal preemption, also appeal from order for summary judgments dismissing
actions against the officers and agents of the local union and the International labor union.
In suit alleging conspiracy to deny plaintiff employment because of his nonunion status,
summary judgment was entered in favor of all defendants except local union. Plaintiff
appealed and local union sought writ of prohibition to halt further proceedings against it. The
Supreme Court, Zenoff, J., held that absent any information of named conspirators and in
light of fact that, whenever accused union official went out on any job on which plaintiff was
working, plaintiff was not fired but continued to work until job was finished, plaintiff could
not recover for alleged conspiracy to deny him employment because of his nonunion status.
Writ granted and summary judgment affirmed.
[Rehearing denied February 18, 1970]
Singleton, Beckley, DeLanoy, Jemison & Reid, of Las Vegas, for Appellant and
Respondent Eighth Judicial District Court.
86 Nev. 26, 27 (1970) Bair v. Berry
Rudiak and Publow, of Las Vegas, for Respondents Jerry Berry, et al., and Petitioner.
1. Labor Relations.
Without active involvement, international union as separate and distinct entity from local union member
is not accountable for misconduct of one of its local union members.
2. Conspiracy.
A conspiracy must consist of a combination of two or more persons.
3. Judgment.
Opposing party is not entitled to have motion for summary judgment denied on mere hope that at trial he
will be able to discredit movant's evidence, and opposing party must at hearing be able to point out to court
something indicating existence of triable issue of fact.
4. Conspiracy.
Absent any information of named conspirators and in light of fact that, whenever accused union official
went out on any job on which plaintiff was working, plaintiff was not fired but continued to work until job
was finished, plaintiff could not recover for alleged conspiracy to deny him employment because of his
nonunion status. NRS 613.250 et seq., 613.280.
OPINION
Lloyd P. Bair is a plasterer by trade. At the time of the alleged events that led to this appeal
he was a former member of Plasterers Local Union 797 having given up his membership for
nonpayment of dues. It appears that he had enough money for dues, only that he did not want
to belong to the union. After what he claimed was his inability to either get a job through the
union hiring hall or to hold a job once he eventually was given one, he brought action
alleging that the local union, together with its officers and agents, and the International, of
which the local was a member, conspired to deprive him of his right to make a living in
violation of the Nevada right-to-work law, NRS 613.250 et seq.
Affidavits, depositions and other documents were submitted to the trial court, whereupon
summary judgment was ordered in favor of all defendants except the Local Union. As to the
Local Union, summary judgment was denied but the prospective trial was uniquely limited to
permitting the plaintiff to attempt to prove an oral contract between the union and others to
convert the nondiscriminatory hiring hall into a discriminatory hiring hall as a preliminary in
the consideration of any liability on behalf of the local to Bair.
86 Nev. 26, 28 (1970) Bair v. Berry
any liability on behalf of the local to Bair. Bair appeals from the summary judgment releasing
the International and the Local Union seeks a writ of prohibition to halt further proceedings
against it. The appeal and writ were consolidated since the issue is common to each.
1. Bair sued in conspiracy. It is not alleged that the defendants, or any of them, made a
written or oral agreement in violation of the right-to-work law. The essence of the action is
conspiracy (NRS 613.280); a conspiracy to deny Bair employment because of his nonunion
status. Bair claims that he was prevented from working by the Local Union through its
officers, Jerry and Margaret Berry, and the International through its officers, Edward Leonard
and John Hauck (who were not served with process), by inducing employers and other
persons not to hire him. The International's liability is predicated upon its purported failure to
see that one of its local unions conducted its affairs properly.
[Headnote 1]
Bair does not accuse the International of actively participating in the wrongful acts of the
local and its officers. An invalid provision in the local bylaws was in years gone by sent to the
International and while the International disclaimed any knowledge or approval of that
provision the objection must be discounted in any event. Bair had refused to pay his dues
before any misconduct took place thus no contractual relationship existed between the
International and Bair because he was dropped from membership. More importantly, his
inability to show active complicity on the part of International is fatal to his case against him.
Without active involvement the International, being a separate and distinct entity from a local
union member (United Mine Workers of America v. Coronado Co., 259 U.S. 344, 385
(1922)), is not accountable for the misconduct of one of its local union members. Local
Union No. 984 v. Humko Co., 287 F.2d 231 (6th Cir. 1961); N.L.R.B. v. Local Union No.
751 United Bhd. of Carpenters, 285 P.2d 633, 641 (9th Cir. 1960); United Bhd. of Carpenters
v. N.L.R.B., 286 F.2d 533, 538 (D.C.Cir. 1960). It is also quite probable that the subject of
involvement of the International is preempted by the N.L.R.A. San Diego Building Trades
Council v. Garmon, 359 U.S. 236 (1959); United Ass'n of Journeymen Plumbers' Union v.
Borden, 373 U.S. 690 (1963); Iron Workers v. Perko, 373 U.S. 701 (1963).
86 Nev. 26, 29 (1970) Bair v. Berry
[Headnote 2]
2. His efforts to establish even inferentially a conspiracy must also fail. The voluminous
record is empty of any support for his accusation that a conspiracy against him existed. He
stated, It was common knowledge Berry was conspiring against me, but nowhere does it
appear who was conspiring with whom or at all. Catrone v. 105 Casino Corp., 82 Nev. 166,
170, 414 P.2d 106 (1966). A conspiracy must consist of a combination of two or more
persons, but the only persons he accuses are the Berrys who represented the union. He
admitted that he did not have knowledge of facts regarding the alleged conspiracy. He said
only that facts might be within the knowledge of his attorney or other witnesses. The court
ordered him time and again to fully respond to interrogatories and requests for admissions
regarding witnesses and their prospective testimony but he was unable to supply any
information of named conspirators nor do any appear as parties to the action or as
participants. Whenever Berry, the union official, went out on any job upon which Bair was
working, even though he may have engaged in conversations with the job steward as Bair
claims, Bair was not fired, but in all instances, by his own admission, he continued to work
until the job was finished. His sole and only complaints are directed against the Berrys and no
one else.
[Headnote 3]
In Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979 (1963), a case classic for its
liberality in permitting inferences to overcome a motion for summary judgment, at least some
minimum standards were established for the quality of facts that should be shown to allow the
trial court to pass upon as controverted evidence. But the rule is well-settled that the opposing
party is not entitled to have the motion for summary judgment denied on the mere hope that
at trial he will be able to discredit movant's evidence; he must at the hearing be able to point
out to the court something indicating the existence of a triable issue of fact. Thomas v.
Bokelman, 86 Nev. 10, 462 P.2d 1020 (1970).
[Headnote 4]
Prior to the commencement of his lawsuit in the state court Bair twice complained to the
N.L.R.B. of the union conduct of discriminating against him for employment. He was
rejected on the first application for lack of merit and he voluntarily withdrew the second.
Those applications were presented into this record and, again, as was the case of his
written statements, he did not indicate or show anything of a conspiracy between the
union and other persons except to use the word "conspire."
86 Nev. 26, 30 (1970) Bair v. Berry
this record and, again, as was the case of his written statements, he did not indicate or show
anything of a conspiracy between the union and other persons except to use the word
conspire. Having failed in any respect to assert facts from which reasonable inferences can
be drawn his cause of action must fail.
Having so decided, we do not reach the issue of federal preemption.
The summary judgments are affirmed and the writ of prohibition against further trial
proceedings is granted.
Collins, C. J., Batjer and Thompson, JJ., and Young, D. J., concur.
____________
86 Nev. 30, 30 (1970) Boyle v. State
MARVIN DEAN BOYLE, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 5915
January 22, 1970 464 P.2d 493
Appeal from a conviction by a jury of burglary. Eighth Judicial District Court, Clark
County; Alvin N. Wartman, Judge.
Defendant was convicted in district court of burglary and he appealed. The Supreme
Court, Zenoff, J., held that circumstances of defendant's arrest just past midnight as he was
coming out of building in which offices had been ransacked were enough to support
presumption that defendant intended to commit larceny even though defendant said
otherwise, and conclusion of intent to commit larceny was not arbitrary or irrational.
Affirmed.
James D. Santini, Public Defender, and H. Leon Simon, Deputy Public Defender, Clark
County, for Appellant.
Richard D. Weisbart, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law; Larceny.
Jury is not compelled to accept defendant's denial of intent to commit larceny but rather can perform its
duty to evaluate facts surrounding incident.
86 Nev. 30, 31 (1970) Boyle v. State
2. Burglary.
Circumstances of defendant's arrest just past midnight as he was coming out of building in which offices
had been ransacked were enough to support presumption that defendant intended to commit larceny even
though defendant said otherwise, and conclusion of intent to commit larceny was not arbitrary or irrational.
NRS 205.065.
OPINION
After a jury trial appellant Marvin Dean Boyle was convicted of violating NRS 205.065,
the crime of burglary.
In the course of his instructions the trial court informed the jury in the language of the
statute which states that one who unlawfully enters a building is deemed to have entered with
the intent to commit larceny unless such unlawful entry shall be explained by testimony
satisfactory to the jury to have been made without criminal intent.
1

Boyle was caught coming out of a building just past midnight on the morning of
September 2, 1968 by two sheriff deputies who were checking the doors of the warehouse on
Highland Avenue in Las Vegas. They had discovered that the front window on the door to
one of the offices had been smashed and focused their automobile headlights on the door.
After summoning help, one of the officers saw Boyle's head peep out from the rear door, look
both ways, then start out. He was immediately arrested. The officers found that two offices
had been ransacked inside the building; one owned by Alfred E. Lee Landscaping Company
for whom Boyle had worked for a short period of time about four months prior to the arrest.
The office next to Lee's was also in a state of disarray. Nothing however, in either office was
missing although the cash box normally kept in the secretary's drawer of the landscaping
company was on top of the desk. Boyle's excuse was that he had been drinking all day and
decided to go into Lee's office for his withholding tax form and to see if any back wages were
owed to him. The secretary and Lee testifying for both the prosecution and Boyle stated that
Boyle had only once several months before asked for his tax statement on the day he left
the employment and that no money was due him.
____________________

1
NRS 205.065 Presumption of intent. Every person who shall unlawfully break and enter or unlawfully enter
any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building,
tent, vessel, vehicle, vehicle trailer, semitrailer or housetrailer, or railroad car shall be deemed to have broken
and entered or entered the same with intent to commit grand or petit larceny or a felony therein, unless such
unlawful breaking and entering or unlawful entry shall be explained by testimony satisfactory to the jury to have
been made without criminal intent.
86 Nev. 30, 32 (1970) Boyle v. State
prosecution and Boyle stated that Boyle had only once several months before asked for his
tax statement on the day he left the employment and that no money was due him.
Boyle concedes the constitutionality of the statutory presumption unless such unlawful
entry shall be explained by testimony satisfactory to the jury. White v. State, 83 Nev. 292,
295, 429 P.2d 55 (1967); Schnepp v. State, 82 Nev. 257, 261, 415 P.2d 619 (1966);
McNeeley v. State, 81 Nev. 663, 667, 409 P.2d 135 (1965); cf. United States v. Gainey, 380
U.S. 63, 70 (1965); Johnson v. United States, 255 A.2d 494 (D.C.App. 1969). His contention
now is that having denied an intention to steal the presumption has been negated because
there is no evidence other than the presumption to prove intent to commit larceny.
[Headnotes 1, 2]
To the contrary, the jury is not compelled to accept solely his denial of intent to commit
the larceny but rather can perform its duty to evaluate the facts surrounding the incident. State
v. Dirienzo, 251 A.2d 99, 109 (N.J. 1969); People v. Michaels, 13 Cal.Rptr. 900, 902
(Cal.App. 1961). Boyle was arrested on the premises where he had not been employed for
four months under furtive circumstances such as the broken window for entry, his car parked
at the side of the building instead of on the parking lot, the cash box of his former employer
on the secretary's desk instead of in it where it was customarily kept, the adjoining office
ransacked although it is inconceivable that his tax form would be there where he had never
worked, and that these happenings were in the darkness of midnight. Those facts proved were
enough to support the presumption that he intended to commit larceny even if he said
otherwise. Such a conclusion cannot be said to be arbitrary or irrational under the cited
cases.
Affirmed.
____________
86 Nev. 33, 33 (1970) Winston v. Warden
FRANK WINSTON, Petitioner, v. WARDEN, Nevada
State Prison, Respondent.
No. 6065
January 22, 1970 464 P.2d 30
Original proceeding in habeas corpus.
Petitioner, who had been convicted of forgery, sought writ of habeas corpus. The Supreme
Court, Thompson, J., held that one who signs his true signature to a check on a bank in which
he has no checking account is not guilty of felony of forgery but of misdemeanor of drawing a
check on bank with which he has no account.
Petition is granted and petitioner is forthwith discharged from custody.
Johnson & Sloan, of Reno, for Petitioner.
Harvey Dickerson, Attorney General, and Robert F. List, Carson City District Attorney,
for Respondent.
1. Forgery.
Essence of forgery is making of a false writing. NRS 205.085, subd. 2, 205.090, 205.100.
2. Forgery.
Statutory provision that proof that purported drawer had no account at bank shall be deemed sufficient
evidence to sustain allegation of nonexistence of drawer applies to a fictitious person and does not apply in
face of evidence that name used as drawer is in fact name of person who drew the check. NRS 205.100.
3. False Pretenses; Forgery.
One who signs his true signature to a check on a bank in which he has no checking account is not guilty
of felony of forgery but of misdemeanor of drawing a check on bank with which he has no account. NRS
205.100, 205.130.
OPINION
This is an original proceeding for a writ of habeas corpus through which the petitioner
seeks release from the Nevada State Prison where he is serving a six year sentence for
forgery. He contends that his crime was not the felony of forgery but instead the misdemeanor
of drawing a check on a bank with which he had no account. For reasons hereafter expressed
we have concluded that his contention is valid, and direct that he be discharged from custody
forthwith.
The facts are these. The petitioner issued a $20 check payable to Bobby Page's. The check
was drawn on the Nevada Bank of Commerce, Carson City, and signed by petitioner as
drawer.
drawer. He had no account with that bank. He was charged with having violated NRS
205.100, one of the forgery sections of our Code.
[Headnote 1]
Professor Perkins advises that the essence of forgery is the making of a false writing. It is
an indispensable requirement of forgery that the writing be false. It may have been false in its
inception or may have been made so by subsequent tampering with what was originally
genuine; but it must be a false writing. In this connection it is essential to distinguish between
a false instrument and false statements in an instrument. No amount of misstatement of fact
and no amount of fraud will make a false instrument out of what purports to be the very
instrument which it is in fact and in law. Perkins on Criminal Law, p. 296 (Foundation Press
1957). See also: DeRose v. People, 171 P. 359, 360 (Colo. 1918); Marteney v. United States,
216 F.2d 760, 763-64 (10 Cir. 1954); cases collected, Annot., 41 A.L.R. 229.
The several sections of our Code describing forgery emphasize the indispensable
requirement mentioned by the Professor. For example, NRS 205.085(2) provides that
forgery shall include the false making of an instrument, and the alteration of a genuine
instrument; NRS 205.090 refers to the person who shall falsely make, after, etc.; and NRS
205.100 refers to the person who shall make, pass, utter or publish any fictitious bill, note
or check. In short, the writing must be false.
Notwithstanding these clear expressions of legislative intention, the State argues that the
wording of NRS 205.100,
1
and particularly section 2 thereof broadens the traditional
notion of forgery to include that which occurred in this case.
____________________

1
NRS 205.100 provides: 1. Every person who shall make, pass, utter or publish, with an intention to defraud
any person or persons, body politic or corporate, either in this state or elsewhere, or with the like intention shall
attempt to pass, utter or publish any fictitious bill, note or check purporting to be the bill, note or check, or other
instrument in writing, for the payment of money or property of some bank, corporation, copartnership or
individual, when in fact there shall be no such bank, corporation, copartnership or individual in existence, the
person knowing the bill, note, check or instrument in writing for the payment of money or property or any labor
claim or claims to be fictitious, shall be deemed guilty of forgery, and on conviction thereof shall be punished by
imprisonment in the state prison for a term 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.
2. Whenever such note, bill, check or other instrument in writing is drawn upon any bank, proof that the
purported drawer of the same had no account at the bank shall be deemed sufficient evidence to sustain the
allegation of the nonexistence of the drawer of such instrument.
particularly section 2 thereof broadens the traditional notion of forgery to include that which
occurred in this case. Section 1 covers, among other circumstances, the situation where one
attempts to defraud another by using the name of a nonexistent person as the drawer of the
check. And, section 2 provides that proof that the purported drawer had no account at the
bank shall be deemed sufficient evidence to sustain the allegation of the nonexistence of the
drawer. Accordingly, the State reasons that if the drawer had no account at the bank he is
nonexistent for the purposes of NRS 205.100 and may be found guilty of forgery.
[Headnote 2]
We do not so construe the statute. It is not the purpose of section 2 to deny the truth; to
make false that which is genuine. Indeed, the wording of section 2 leads inevitably to the
conclusion that it applies to a fictitious person since the words purported drawer are used,
thus indicating that the name used as drawer is not the name of the person who drew the
check. In such circumstances, the absence of an account with the bank in the drawer's name
is, by statute, made prima facie evidence that the drawer was a fictitious person. State v.
Williams, 46 Nev. 263, 270, 210 P. 995 (1923). Its apparent purpose is to aid the State in
proving a negativethe nonexistence of the drawer. It does not apply in the face of evidence
that the name used as drawer is in fact the name of the person who drew the check.
[Headnote 3]
One who signs his true signature to a check upon a bank in which he has no checking
account is not guilty of forgery. The instrument is genuine, even though the statements in it
are false.
2
Those false statements give rise to an offense within NRS 205.130; an offense
with which this petitioner was not charged.
It is ordered that the petitioner be discharged from custody.
____________________

2
The case of In re Clemons, 151 N.E.2d 553 (Ohio 1953), is contra to our view. That decision, which the
respondent so heavily relies upon, has been soundly criticized by commentators. See: 72 Harv.L.Rev. 566; 45
Va.L.Rev. 286.
____________
86 Nev. 36, 36 (1970) State ex rel. Gutting v. Lamb
THE STATE OF NEVADA, ex rel. RUSSELL GARY GUTTING, Jr., Appellant, v. RALPH
LAMB, CLARK COUNTY SHERIFF, and CIRCUS-CIRCUS, INC., Respondents.
No. 5941
January 23, 1970 464 P.2d 27
Appeal from denial of a writ of mandamus. Eighth Judicial District Court, Clark County;
Alvin N. Wartman, Judge.
Casino, by writ of attachment, impounded casino chips which had been seized by sheriff's
department when defendant was booked for allegedly committing an offense. Defendant
sought release of chips by writ of mandamus to direct court to order release of chips on
ground that goods in custody of sheriff's department could not be attached. The district court
denied petition for mandamus, and defendant appealed. The Supreme Court held that
defendant could seek to remove attachment by motion and thus had an adequate remedy at
law.
Affirmed.
Tad Porter, of Las Vegas, for Appellant.
George E. Franklin, Jr., District Attorney, and James M. Bartley, Deputy District
Attorney, Clark County, for Respondent Ralph Lamb, Clark County Sheriff.
Wiener, Goldwater & Galatz and J. Charles Thompson, of Las Vegas, for Respondent
Circus-Circus, Inc.
Mandamus.
Defendant seeking release of casino chips, seized by sheriff's department when he was booked for
allegedly committing an offense, after casino had impounded chips by writ of attachment could seek to
remove attachment by motion and thus had an adequate remedy at law, and writ of mandamus would not
lie. NRS 31.200, 34.170.
OPINION
Per Curiam:
While Russell Gutting was in jail, Circus-Circus, Inc., a Clark County casino, by writ of
attachment impounded $6,700.00 in Circus-Circus, Inc., casino chips which had been seized
by the sheriff's department when he was booked for allegedly committing an offense.
86 Nev. 36, 37 (1970) State ex rel. Gutting v. Lamb
for allegedly committing an offense. Gutting sought release of the chips by writ of mandamus
to direct the court to order release of the chips on the ground that goods in the custody of the
sheriff's department cannot be attached. He appeals from the denial of the petition for
mandamus.
The writ of mandamus lies only when there is no plain speedy and adequate remedy in
the ordinary course of law. NRS 34.170. Petitioner can seek to remove the attachment by
motion under NRS 31.200. He therefore has an adequate remedy at law.
The denial of the petition for a writ of mandamus is affirmed.
____________
86 Nev. 37, 37 (1970) Hill v. State ex rel. Department of Highways
CAPON HILL, Appellant, v. THE STATE OF NEVADA, on Relation of Its DEPARTMENT
OF HIGHWAYS, Respondent.
No. 6092
January 23, 1970 464 P.2d 468
Motion to dismiss appeal from the judgment of the trial court dismissing the complaint.
Complaint dismissed after trial without a jury in the Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
Action seeking to have set aside as null and void a quitclaim deed, after which defendant
filed its answer and counterclaim and brought a third-party action against certain other
parties. The district court dismissed the complaint, and appeal was taken. On motion to
dismiss appeal the Supreme Court held that judgment was not subject to appeal where trial
court, which entered judgment dismissing plaintiff's complaint but did not reach decision or
rule on counterclaim or third-party complaint, did not make the requisite determination of no
just reason for delay.
Dismissed.
Harvey Dickerson, Attorney General, and Melvin L. Beauchamp, Deputy Attorney
General, for Respondent.
1. Appeal and Error.
Where there is a judgment dismissing fewer than all parties to an action, and there is no express
determination that there is no just reason for delay by lower court, the judgment is not an
appealable final judgment.
no just reason for delay by lower court, the judgment is not an appealable final judgment. NRCP 72(b)(1).
Judgment was not subject to appeal where trial court, which entered judgment dismissing plaintiff's
complaint but did not reach decision or rule on counterclaim or third-party complaint, did not make the
requisite determination of no just reason for delay. NRCP 54(b), 72(b)(1).
OPINION
Per Curiam:
Appellant, who was plaintiff below, brought suit against Respondent to have set aside as
null and void a quitclaim deed executed by him conveying to Respondent certain real
property in Las Vegas. Thereafter, Respondent filed its Answer and Counterclaim and
brought a Third Party action against certain other parties. All of said pleadings were filed in
the same suit below, being that originally brought by Appellant.
After trial without a jury, the court below found against Appellant on the claim against
Respondent, and entered its judgment dismissing said complaint. No decision was reached or
ruling made on the Counterclaim or Third Party Complaint of Respondent.
Appellant has filed this appeal from the judgment of the trial court dismissing the
complaint. Respondent moved to dismiss the appeal.
NRCP 54(b) explicitly provides that when more than one claim for relief is presented in
an action, whether as a claim, counterclaim, cross claim, or third party claim, or when
multiple parties are involved, the court may direct the entry of a final judgment as to one or
more but fewer than all of the claims or parties only upon an express determination that there
is no just reason for delay. . . . (Emphasis supplied.) This rule is determinative of the issue.
[Headnote 1]
This court has repeatedly held that where there is a judgment dismissing fewer than all
parties to an action, and there is no express determination that there is no just reason for delay
by the lower court, the judgment is not a final judgment appealable under NRCP 72(b)(1).
Wilmurth v. State, 79 Nev. 490, 387 P.2d 251 (1963); Aldabe v. Evans, 83 Nev. 135, 425
P.2d 598 (1967); Donoghue v. Rosepiler, 83 Nev. 251, 427 P.2d 956 (1967).
[Headnote 2]
In this case, the trial court did not make the prerequisite determination of no just reason for
delay. Accordingly, the judgment appealed from is not subject to appeal under NRCP
72(b)(1), and Respondent's motion must be granted; without prejudice, however, to the filing
of such appeal as appellant may deem appropriate after final determination of the
counterclaim and third party complaint by the court below.
It is so ordered.
____________
86 Nev. 39, 39 (1970) City of Reno v. Folsom
CITY OF RENO, NEVADA, a Municipal Corporation, Appellant, v. D. W. FOLSOM, T. E.
and A. R. NEVIN, G. G. and G. C. HIRSCH, L. W. KNUF, J. J. and J. M. HART, J. F.
and M. C. FARNESI, Respondents.
No. 5820
January 26, 1970 464 P.2d 454
Appeal from judgment of the Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
City appealed from judgment of the district court declaring special tax assessments that
had been levied against property owners illegal on ground that city had acted arbitrarily and
fraudulently in making assessments. The Supreme Court, Mowbray, J., held that in absence of
evidence of benefit to property assessed in record of hearing before city council, order of city
council approving assessment roll was illegal and void.
Affirmed.
Clinton E. Wooster, City Attorney, of Reno, for Appellant.
Cooke & Roberts, of Reno, for Respondents.
1. Eminent Domain; Municipal Corporations.
Only justification for special assessment tax is that proposed improvements of assessment district will
result in a benefit to those property owners included in assessment, and absent a benefit to property
assessed, special assessment is illegal and void as taking of private property for public use without
compensation.
2. Municipal Corporations.
Assessment roll is prima facie evidence of the regularity of assessments, but once property owners
challenge its validity on ground that there is in fact no benefit accruing to their property as assessed, burden
shifts to administrative agency that caused roll to be prepared to show and find that there is a benefit.
Fact that owners' properties abut improved street is not alone sufficient to show that street improvement
will bring benefit to abutting property owners and justify subjecting them to assessment.
Scope of review by district court of assessments against property owners for municipal improvements is
limited to record made before administrative tribunal, and absent a showing that agency acted fraudulently
or arbitrarily, district court may not substitute its opinion for that of the city council. NRS 271.455,
subd. 1.
Testimony by witnesses on issue of benefit at district court trial reviewing assessments levied against
property owners for municipal improvements when court had before it records of proceedings of hearing
before city council went beyond permissible scope of review, but such calling of witnesses by property
owners was harmless where record of hearing before city council failed to suggest any benefit to property
assessed. NRS 271.455, subd. 1.
In absence of evidence of any benefit to property assessed by improvement of roadway abutting rear of
assessed property in record of proceedings of hearing before city council, order of city council approving
assessment roll was void. NRS 271.455, subd. 1.
OPINION
By the Court Mowbray, J.:
This is an appeal by the City of Reno from a judgment of the Second Judicial District
Court declaring special tax assessments that had been levied against certain Reno property
owners, respondents in this case, illegal on the grounds that the City had acted arbitrarily and
fraudulently in making the assessments. We agree with the conclusion of the district judge,
and we affirm the judgment.
1. The Facts
On August 22, 1966, the City Council of the City of Reno enacted Ordinance 1658, which
created a special improvement district, known as 1966 Street and Alley Improvement District
No. 1. Included in the improvements was the installation of curbs, gutters, paving, and
sidewalks on California Avenue, which is part of an east-west arterial highway running
through the City. The respondents' properties front on Vale Street in Westfield Village,
located in the City, and their backyard property lines abut the north boundary of California
Avenue. As a result of the special improvements, California Avenue was changed from a
two-lane to a four-lane highway and extended to a retaining wall constructed near the owners'
rear property line. The existing grade was increased, and a chain fence was installed along
the north boundary of the Avenue, next to the owners' properties.
installed along the north boundary of the Avenue, next to the owners' properties. The owners
were assessed on a frontage-foot basis for the cost of the sidewalk, curb, gutter, and two
traffic lanes. The two inner traffic lines were not included in the special assessment.
On September 11, 1967, the City conducted a public hearing for the purpose of reviewing
and confirming the assessment roll, which had been prepared by City Assessor Donald
Peckham. He had fixed the individual assessments as follows:
D. W. Folsom $1173.75
T. E. and A. R. Nevin 998.47
W. G. Hirsch 998.47
L. W. Knuf 998.47
J. J. and J. M. Hart 998.47
J. F. and M. C. Farnesi 1194.73
The respondents appeared with their counsel at the September hearing and challenged the
assessment roll, claiming that their properties were in no way benefited by the improvements
and that, in the absence of a showing of some benefit to the properties, the assessments were
illegal and void.
The City Council denied the property owners' pleas and confirmed the assessment roll. The
owners appealed to the district court, upon the principal contention that the City had acted
arbitrarily in refusing to consider the question of benefits, if any, to the properties assessed.
The district judge agreed with the owners, and now the City has appealed to this court seeking
a reversal.
[Headnote 1]
2. Special Benefits
A special assessment tax is predicated upon the theory that the proposed improvements of
the assessment district will result in a benefit to those property owners included in the
assessment. This is the very essence of and the only justification for the special assessment.
As the court declared in Cain v. City of Omaha, 60 N.W. 368 (Neb. 1894), at 369: . . . [T]he
only foundation for a local assessment lies in the special benefits conferred by the
improvement, and . . . a local assessment beyond the special benefits conferred is a taking of
private property for public use without compensation.
Benefit in this sense has been well defined by the California court in Spring St. Co. v.
City of Los Angeles, 148 P. 217, 219 (Cal. 1915), in these words: That the return to the
property owner by way of benefit is, under our system of government, the basic foundation
upon which this right [to levy special assessments] rests, becomes apparent from the
consideration that, if we are not able to say that the owner for the specific charge
imposed is compensated by the increased value of the property, then most manifestly we
have a special tax upon a minority of the property owners, which tax is for the benefit of
the public and which tax is special, unequal and ununiform."
special assessments] rests, becomes apparent from the consideration that, if we are not able to
say that the owner for the specific charge imposed is compensated by the increased value of
the property, then most manifestly we have a special tax upon a minority of the property
owners, which tax is for the benefit of the public and which tax is special, unequal and
ununiform.
The High Court, in the landmark case of Norwood v. Baker, 172 U.S. 269 (1898), in
emphasizing the constitutional guaranties involved in such special taxation, has laid down the
following rules. At 279: [T]he guaranties for the protection of private property would be
seriously impaired, if it were established as a rule of constitutional law, that the imposition by
the legislature upon particular private property of the entire cost of a public improvement,
irrespective of any peculiar benefits accruing to the owner from such improvement, could not
be questioned by him in the courts of the country.
At 278: [T]he principle underlying special assessments to meet the cost of public
improvements is that the property upon which they are imposed is peculiarly benefited, and
therefore the owners do not, in fact, pay anything in excess of what they receive by reason of
such improvement.
And further at 279: [T]he exaction from the owner of private property of the cost of a
public improvement in substantial excess of the special benefits accruing to him is, to the
extent of such excess, a taking, under the guise of taxation, of private property for public use
without compensation. (Emphasis in original.)
See also Safeway Stores, Inc. v. City of Burlingame, 339 P.2d 933 (Cal.App. 1959); Town
of Fort Lupton v. Union Pac. R. R. Co., 399 P.2d 248 (Colo. 1965); Village of Northbrook v.
Steerup, 158 N.E.2d 630 (Ill. 1959); Chicago & N. W. Ry. Co. v. City of Omaha, 57 N.W.2d
753 (Neb. 1953); Alf v. Flick, 204 N.E.2d 418 (Ohio Ct.Comm.Pl. 1962).
It is well established that a special assessment, absent a benefit to the property assessed, is
illegal and void.
3. Duty of City Council
We turn to consider whether in the instant case there was any consideration by the City
Council that the improvements for which the special assessments were levied against the
property owners resulted in benefits to the properties assessed. We find nothing in the record
of the proceedings before the City Council hearing on September 11 that would reflect a
finding that any benefit accrued to the properties assessed.
that any benefit accrued to the properties assessed. The record at best is sketchy, consisting of
the minutes of the meeting and certain exhibits of maps of the area involved and copies of the
ordinance and assessment roll. This becomes vitally important because, as we state later in
this opinion, the review of the action of the City Council by the district court is limited to a
consideration of the record made before the Council. As the court said in Miller & Lux, Inc.
v. Board of Supervisors, 208 P. 304, 311 (Cal. 1922), which was a case involving an
irrigation assessment district, in which the plaintiff claimed that no evidence was introduced
before the board affirmatively showing that its lands would be benefited by the proposed plan
of irrigation: The court is limited in its proceedings to review the order of the board of
supervisors to the record there made, . . . . The court further stated that in the absence of
such evidence in the record the order of the board would be overruled.
[Headnotes 2, 3]
While the assessment roll is prima facie evidence of the regularity of the assessments, it is
nothing more, and once, as in this case, the property owners challenge its validity on the
ground that there is in fact no benefit accruing to their property as assessed, then the burden
shifts to the administrative agency that caused the roll to be prepared to show and to find that
there is a benefit. This could be done by calling the official who prepared the assessment roll
and having him explain the basis for the assessmentsin this case, the City Assessor, who
was present at the September 11 hearing before the City Council but did not testify.
1
The
record of the hearing fails to reflect that benefit was ever consideredthe sole basis for the
assessment evidently being that the owners' properties abutted the improved Avenue.
2
This
will not suffice, for as the court said in Alf v. Flick, supra, at 425:
It cannot be assumed in light of modern day highway transportation that the mere
improvement of a street will bring benefit to abutting property owners and subject them to
assessment.
____________________

1
City Assessor Donald Peckham did testify later, at the October 10, 1968, trial before the district judge, that
there was no benefit to the assessed property:
Q [by Mr. Bruce Roberts, attorney for plaintiffs (respondents herein)] It is true, is it not, Mr. Peckham, that
you do not consider there has been any benefit to those lots by reason of that improvement?
A Yes, sir, that would be true.

2
According to the minutes of the meeting: Even though street improvement is painful [one] Councilman . . .
stated he did not see how the City could grant the relief requested . . . .
This fact is recognized by planning and legislative authority. The expressways are the shining
example.
3

There is nothing in the record of the proceedings before the City Council to suggest that
the question of benefit to the property assessed was even considered.
[Headnote 4]
4. Permissible Scope of Review
All the parties agree that the scope of review by the district court is limited to the record
made before the administrative tribunal and that, in the absence of a showing that the agency
acted fraudulently or arbitrarily, the district court may not substitute its opinion for that of the
City Council. NRS 271.455(1);
4
Urban Renewal Agency v. Iacometti, 79 Nev. 113, 379 P.2d
466 (1963); McKenzie v. Shelly, 77 Nev. 237, 362 P.2d 268 (1961); City of Henderson v.
Henderson Auto Wrecking, Inc., 77 Nev. 118, 359 P.2d 743 (1961); Nevada Tax Comm'n v.
Hicks, 73 Nev. 115, 310 P.2d 852 (1957).
[Headnotes 5, 6]
In the present case, at the October 10, 1968, trial, the district judge had before him the
record of the proceedings of the September 11 hearing before the City Council. Nevertheless,
trial witnesses were called by the respondents and testified without objection on the issue of
benefit. While this went beyond the permissible scope of review, it was harmless in this case,
for the reason that the record of the hearing before the City Council failed to suggest any
benefit to the property assessed, and in the absence of such evidence in that record, the order
of the City Council approving the assessment roll was illegal and void.
Affirmed.
Collins, C. J., Zenoff, Batjer, and Thompson, JJ., concur.
____________________

3
In most cases, the installation of curbs, gutters, sidewalks, and improved roadways fronting one's property
improves it. But not necessarily so when the improvement abuts the rear of the property and, because of an
increased street elevation or other factors caused by the improvement, access to the property becomes practically
impossible.

4
NRS 271.455(1):
Whenever the governing body of any municipality within this state has made any contract for any
project provided herein or shall hereafter make any assessment against any tract within any improvement
district for any purpose authorized herein, and has in making such contract or assessment acted in good
faith and without fraud, or shall hereafter act in good faith and without fraud, the contract and assessment
shall be valid and enforcible [sic] as such, and the assessment shall be a lien upon the tract upon which
the same purports to be a lien.
____________
86 Nev. 45, 45 (1970) Morris v. Morris
JOHN R. MORRIS, Appellant, v. ELIZABETH
KANE MORRIS, Respondent.
No. 5910
January 26, 1970 464 P.2d 471
Appeal from order of the Second Judicial District Court, Washoe County; Thomas 0.
Craven, Judge.
The district court granted wife's motion to set aside a default decree of divorce and the
husband appealed. The Supreme Court, Thompson, J., held that where failure of wife's
counsel to file answer timely was caused by his secretary's mistakenly noting last day to
answer or otherwise plead on calendar and rights of third parties had not intervened, setting
aside default decree of divorce was proper.
Affirmed.
Goldwater, Taber, Hill and Mortimer, of Reno, for Appellant.
Vargas, Bartlett & Dixon and Robert Marshall, of Reno, for Respondent.
Divorce.
Wife's counsel's inter office procedure of delegating to trusted secretary responsibility of calendaring
cases was not per se neglect and did not preclude setting aside default decree of divorce entered when
counsel failed to file timely answer to husband's divorce action because of secretary's mistake in noting last
day to plead where rights of third parties had not intervened.
OPINION
This appeal is from an order of the district court granting the defendant's Rule 60(b)
motion to set aside a default decree of divorce obtained by the plaintiff.
1
The motion was
promptly made upon learning that a default judgment had been entered, was accompanied by
an answer containing a meritorious defense and, by counterclaim, put in issue matters of
property and support. The sole question is whether it was permissible for the district court to
conclude that the defendant's failure to appear in time was due to the excusable neglect
of her attorney.
____________________

1
Rule 60(b) in relevant part reads: On motion and upon such terms as are just, the court may relieve a party
or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect. . . .
86 Nev. 45, 46 (1970) Morris v. Morris
district court to conclude that the defendant's failure to appear in time was due to the
excusable neglect of her attorney. We do not hesitate to affirm the lower court's
determination.
The defendant was served with process in the Kingdom of Belgium on January 3, 1969. A
copy of the summons together with a copy of a power of attorney executed on January 9,
1969, was sent from Belgium to the Nevada law firm retained to represent the defendant. In
accordance with the usual procedure of that firm a secretary noted on the calendar the last day
to answer or otherwise plead. She mistakenly noted January 29, 1969, as that day, apparently
using the day of the execution of the power of attorney from which to calculate time, rather
than the date of service of summons. On January 28, defense counsel telephoned plaintiff's
counsel that he would be filing in answer for the defendant, and was advised that the case had
been heard and a decree entered four days earlier. On January 29, defense counsel moved to
set aside the default judgment thus entered.
Through the years this court has decided many cases concerning default, and it is not
useful to recount them here. Many are cited in the opinion of Hotel Last Frontier v. Frontier
Properties, 79 Nev. 150, 380 P.2d 293 (1963). The underlying policy most frequently
mentioned is that of encouraging trial upon the merits. Howe v. Coldren, 4 Nev. 171, (1868);
Hotel Last Frontier v. Frontier Properties, supra; Blakeney v. Fremont Hotel, 77 Nev. 191,
360 P.2d 1039 (1961); Adams v. Lawson, 84 Nev. 687, 448 P.2d 695 (1968). We are
reluctant to subvert that policy. There is nothing in the record of this case to suggest that we
should overturn the trial court and preclude a trial upon the merits. The rights of third parties
have not intervened. Surely, the intraoffice procedure of delegating to a trusted secretary the
responsibility of calendaring cases is not per se neglect. In turn, her fault in discharging this
task in this case is understandable. Blakeney v. Fremont Hotel, supra. Her conduct falls short
of inexcusable neglect, words which carry the implication of offensive action. The order
below is affirmed.
____________
86 Nev. 47, 47 (1970) Williams v. Williams (Davis)
MARTIN ANDREW WILLIAMS Appellant, v. MIL-
DRED ALICE WILLIAMS (DAVIS), Respondent.
No. 5933
January 26, 1970 464 P.2d 466
Appeal from order of the Eighth Judicial District Court, Clark County; John F. Mendoza,
Judge.
Proceeding upon motion to modify final default judgment of divorce. The district court
denied the motion and an appeal was taken by the ex-husband from the denial and from a
related order. The Supreme Court, Thompson, J., held that transmutation of property held in
joint tenancy by husband and wife to community property is susceptible of proof, and that
where the wife in her divorce action alleged that real property was community property and
asked the court to make fair and equitable disposition of it, and the husband failed to appear
and allowed the court to dispose of it without contest and the court found the property to be
community property and gave it to the wife, the order was not subject to challenge three years
later.
Affirmed.
Jones & Jones, of Las Vegas, for Appellant.
George E. Marshall, of Las Vegas, for Respondent.
1. Divorce.
Where wife in her divorce action alleged that real property was community property and asked court to
make fair and equitable disposition of it, and husband failed to appear and allowed court to dispose of it
without contest and court found property to be community property and gave it to wife, order was not
subject to challenge three years later. NRCP 60.
2. Husband and Wife.
Transmutation of property held in joint tenancy by husband and wife to community property is
susceptible of proof.
OPINION
Three years after the entry of a final default judgment of divorce against him, Martin
Williams moved the district court to modify that judgment by deleting therefrom an order
directing him to deed his interest in described Nevada real property to the plaintiff Mildred.
86 Nev. 47, 48 (1970) Williams v. Williams (Davis)
to the plaintiff Mildred. It is his contention that the order was void since it exceeded the relief
requested by the plaintiff's complaint. The district court declined to accommodate Martin.
This appeal is from the order denying his motion, and from a related order. We affirm.
[Headnote 1]
Martin was personally served with process in Nevada. The plaintiff alleged that the real
property in issue was community property and asked the court to make a fair and equitable
disposition of it. Martin failed to appear in the case and allowed the court to dispose of the
real property without contest. The court found the property to be community property and
gave it to the plaintiff. The court enjoyed complete jurisdiction over the parties and the real
property, and its order is not now subject to challenge by motion under Rule 60 or otherwise.
Cf. Misty Management v. District Court, 83 Nev. 180, 182, 426 P.2d 728 (1967).
[Headnote 2]
The essence of Martin's distress is that the court found that the property was community,
when in fact it was held by him and his wife as joint tenants. His opportunity to challenge the
plaintiff's characterization of the property as community has long since passed. He should
have appeared in the case and offered appropriate proof at that time if such proof was
available to him. He did not do so. The transmutation of property held in joint tenancy by
husband and wife to community property is susceptible of proof. Mullikan v. Jones, 71 Nev.
14, 278 P.2d 876 (1955). The wife testified that the property was community, and her
testimony stands undenied and uncontroverted in the divorce action. It was permissible for
the court to characterize the property as community and dispose of it as it did. That ruling is
res judicata, and Martin's challenge is foreclosed.
Affirmed.
____________
86 Nev. 49, 49 (1970) Griffin v. Government Employees Ins.
ROBERT E. GRIFFIN, Special Administrator for the estate of JOSEPH VINCENT
MORRONE, deceased, and MARY MORRONE, Individually and as Mother and Natural
Guardian of JOSEPH V. MORRONE, Jr., a Minor, and JENNIFER LYNN MORRONE, a
Minor, Appellants, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY,
Respondent.
No. 5936
January 26, 1970 464 P.2d 502
Appeal from judgment of the Eighth Judicial District Court, Clark County; Alvin N.
Wartman, Judge.
Administrator of the estate of decedent, who was killed in an automobile accident, brought
suit against decedent's insurer pursuant to the uninsured motorist clause of decedent's policy.
The district court entered judgment for the insurer, and plaintiffs appealed. The Supreme
Court, Mowbray, J., held that insolvency of tort-feasor's insurance carrier would be
considered a denial of coverage within the meaning of uninsured motorist protection clause
of injured party's policy.
Reversed; appellants awarded their costs on appeal.
Wiener, Goldwater & Galatz, Ltd., and J. Charles Thompson, of Las Vegas, for
Appellants.
Morse, Graves, Parraguirre & Rose, Ltd., and Kent W. Michaelson and Allan R. Earl, of
Las Vegas, for Respondent.
Insurance.
Insolvency of tort-feasor's insurance carrier would be considered a denial of coverage within the
meaning of uninsured motorist protection clause of injured party's policy. NRS 693.115, subd. 6(b);
Stats. 1969, ch. 568.
OPINION
By the Court, Mowbray, J.:
The narrow issue presented for our consideration on this appeal is whether the insolvency
of a tort-feasor's insurance carrier may be considered a denial of coverage within the
meaning of the uninsured motorist protection clause of an insurance policy. The district judge
ruled that insolvency of the tort-feasor's insurance carrier did not constitute a denial of
coverage within the context of the policy.
coverage within the context of the policy. We do not agree, and we reverse the ruling of the
lower court.
In 1964, respondent, Government Employees Insurance Company, issued a policy of
automobile insurance naming Joseph V. Morrone, now deceased, as the insured. That policy
provided, in Part IV (Coverage J), for protection against uninsured motorists, as follows:
To pay all sums which the insured or his legal representative shall be legally entitled to
recover as damages from the owner or operator of an uninsured automobile because of bodily
injury, sickness or disease, including death resulting therefrom, hereinafter called bodily
injury', sustained by the insured, caused by accident and arising out of the ownership,
maintenance or use of such uninsured automobile; . . . .
The policy identified an uninsured automobile, including a trailer, as follows:
(a) an automobile or trailer with respect to the ownership, maintenance or use of which
there is, in at least the amounts specified by the financial responsibility laws of the state in
which the insured automobile is principally garaged, no bodily injury liability bond or
insurance policy applicable at the time of the accident with respect to any person or
organization legally responsible for the use of such automobile, or with respect to which there
is a bodily injury liability bond or insurance policy applicable at the time of the accident but
the company writing the same denies coverage thereunder . . . . (Emphasis added.)
On May 2, 1965, Joseph Vincent Morrone was killed in in automobile accident in Clark
County. The driver of the other vehicle involved in the accident was insured by Republic
Casualty Company of Little Rock, Arkansas, which company thereafter was placed in
receivership and declared insolvent. Appellants commenced this action in the district court to
recover from Mr. Morrone's insurer under the provisions of the uninsured motorist clause
of his policy. Government denied liability, claiming that Republic had not yet denied
coverage, but was only insolvent.
Morrone's policy was issued in 1964, prior to the amendment of NRS 693.115, approved
April 23, 1969, which provides in subsection 6, paragraph (b), that:
6. As used in this section, uninsured motor vehicle' means a motor vehicle:
. . . .
(b) With respect to the ownership, maintenance or use of which the company writing
any applicable bodily injury liability insurance or bond denies coverage or is insolvent; . . .
."
which the company writing any applicable bodily injury liability insurance or bond denies
coverage or is insolvent; . . . . (Emphasis added.)
Even before the 1969 amendment of NRS 693.115, courts in other jurisdictions had
interpreted denial of coverage as used in uninsured motorist clauses of insurance policies to
include insolvency. As Chief Justice Kenison said in McCaffery v. St. Paul Fire & Marine
Ins. Co., 236 A.2d 490, 492 (N.H. 1967): One who has an insurance policy backed by an
insolvent carrier has a paper tiger to frame on the wall but both he and the party he injures are
just as unprotected as where there is no insurance at all.
We agree with the court in Koehn v. Union Fire Ins. Co., 40 N.W.2d 874, 878 (Neb.
1950), that: The language should be considered not in accordance with what the insurer
intended the words to mean, but what a reasonable person in the position of insured would
have understood them to mean. If the contract was prepared by the insurer and contains
provisions reasonably subject to different interpretations, one favorable to the insurer and one
advantageous to the insured, the one favorable to the latter will be adopted.
In the instant case it is clear that the insured bought insurance for protection against an
uninsured motoristpure and simple.
As the court said in Stephens v. Allied Mut. Ins. Co., 156 N.W.2d 133, 137 (Neb. 1968):
The uninsured motorist on the highway is a real risk. He is a real risk because of his
probable inability to pay or respond for damages for negligent driving. The purpose of the
statute and this particular clause is to eliminate that risk. To subdivide or apportion this risk
and to make it dependent upon the whimsical uncertainty of solvency of an unidentified and
uncertain tort-feasor insurance carrier is both unrealistic and unreasonable. It invokes an
entirely unrelated and undeterminable factor that mitigates and lessens the accomplishment of
the purpose of the statute and the area of effectual coverage sought to be reached by the
voluntary inclusion of the clause in the insuring provision. The majority rule, almost without
contradiction, is that where uninsured motorist statutes or policy provisions have defined an
uninsured motorist in the same language as was used in the present policy, subsequent
insolvency of an insurer constitutes a denial of coverage within the meaning of the provisions
of the policy or statute. [Citations omitted.] (Emphasis added.)
We reverse the ruling of the district court and award appellants their costs on this appeal.
____________
86 Nev. 52, 52 (1970) Johnson v. State
WAYNE JOHNSON, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 5963
January 26, 1970 464 P.2d 465
Appeal from judgment of the Eighth Judicial District Court, Clark County; Clarence
Sundean, Judge.
Defendant was convicted before the district court of robbery, and he appealed. The
Supreme Court, Mowbray, J., held that officers, who, two minutes after hearing all points
bulletin, observed, within area of robbed office, automobile similar to description given in
bulletin of robbery getaway vehicle, had probable cause to stop automobile and to search it.
Affirmed.
James D. Santini, Public Defender, and Robert G. Legakes, Deputy Public Defender, Clark
1. Searches and Seizures.
Officers, who, two minutes after hearing all points bulletin, observed, within area of robbed office,
automobile similar to description given in bulletin of robbery getaway vehicle, had probable cause to stop
automobile and to search it.
2. Arrest; Municipal Corporations.
Officer may stop occupants of automobile for legitimate police investigation as long as there is probable
cause for such action, and such action is proper even though there is not probable cause for arrest at
moment, and if investigation conducted, together with knowledge originally available to officers, combines
to supply probable cause for arrest, arrest can then be made, and reasonable, incidental search conducted.
Once suspect has been detained if officer has reason to believe that suspect is armed and presently
dangerous to officer or others, officer may take necessary measures to determine whether
person is carrying weapon and to neutralize threat of physical harm.
others, officer may take necessary measures to determine whether person is carrying weapon and to
neutralize threat of physical harm.
OPINION
The appellant, Wayne Johnson, was found guilty by a jury of the crime of robbery. He
seeks a reversal on two grounds: (1) That the police officers who stopped the automobile in
which he was riding did not have legal cause to do so and (2) that the search of the vehicle
was unlawful. We reject both contentions, and we affirm Johnson's conviction.
[Headnotes 1, 2]
On the night of December 21, 1968, James Kramer, night manager of the Cimarron Motel
in Las Vegas, was robbed of his wallet and money by two armed men. After the robbers left,
Kramer immediately telephoned the police and gave the police dispatcher a description of the
getaway car as a yellow, two-door 1955 Chevrolet bearing a white license plate with green
numerals. An all-points bulletin was broadcast at once to the city police patrol cars, and about
two minutes later two officers observed a vehicle similar to the description given by the
victim, Kramer. The officers stopped the car. Johnson and his companion were in the vehicle,
and they were ordered out of the car. The officers searched both men and their car and found
their weapons and the victim's wallet. They were arrested, charged with robbery, and
convicted.
1. The police officers had every right to stop Johnson's vehicle, for they had reason to
believe a felony had been committed, and the vehicle they stopped closely resembled the
description provided by Kramer.
As we said in Robertson v. State, 84 Nev. 559, 562, 445 P.2d 352, 353 (1968):
It is now the settled law of this state that an officer may stop the occupants of an
automobile for legitimate police investigation so long as there is probable cause for that
action. [Citations.] This action is proper even though there is not probable cause for arrest at
the moment. But if the investigation conducted, together with knowledge originally available
to the officers combines to supply probable cause for arrest, it may then be made, and a
reasonable, incidental search conducted. Sharkey v. State, 85 Nev. 574, 459 P.2d 769
(1969); Barnes v. State, S5 Nev. 69, 450 P.2d 150 {1969); Harper v. State, S4 Nev. 233
v. State, 85 Nev. 69, 450 P.2d 150 (1969); Harper v. State, 84 Nev. 233, 440 P.2d 893
(1968).
2. Since the officers had every legal right to stop Johnson's vehicle, they had the right to
search it. We ruled in Barnes v. State, supra, 85 Nev. at 72, 450 P.2d at 152:
In a recent decision of this court, Robertson v. State [supra], 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. [Citations.]' 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.
[Headnote 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). (Emphasis added.) See Chimel v.
California, 395 U.S. 752 (1969); Thomas v. Sheriff, 85 Nev. 551, 459 P.2d 219 (1969).
The judgment of conviction is affirmed.
____________
86 Nev. 54, 54 (1970) Miner v. Lamb
DENNIS LEE MINER, Appellant, v. RALPH LAMB,
Sheriff, Clark County, Nevada, Respondent.
No. 5992
January 26, 1970 464 P.2d 451
Appeal from an order denying appellant's pre-trial petition for a writ of habeas corpus in
the Eighth Judicial District Court, Clark County; Howard W. Babcock, Judge.
Proceeding upon pretrial application for habeas corpus testing probable cause at a
preliminary hearing. The district court denied the petition, and defendant appeared. The
Supreme Court, Collins, C. J., held that testimony of the pathologist who performed an
autopsy that a woman died from cerebral concussion and subdural and subarachnoid
hemorrhage due to multiple blunt traumatic injuries to the head and face caused by multiple
blows to the head with some heavy object, such as a fist, and that witness was of the opinion
that the blows were "homicidal" permitted the magistrate to draw an inference of criminal
agency and to present a question for jury trial whether such witness or a pathologist and
toxicologist called by defendant was more credible.
86 Nev. 54, 55 (1970) Miner v. Lamb
homicidal permitted the magistrate to draw an inference of criminal agency and to present a
question for jury trial whether such witness or a pathologist and toxicologist called by
defendant was more credible. The court also held that evidence including testimony of a
long-time acquaintance of defendant and testimony given by defendant to police was
sufficient to require the defendant to answer in district court.
Affirmed.
James D. Santini, Public Defender, and Robert N. Peccole, Deputy Public Defender, Clark
Addeliar D. Guy, Deputy District Attorney, Clark County, for Respondent.
1. Habeas Corpus.
Testimony of pathologist who performed autopsy that woman died from cerebral concussion and
subdural and subarachnoid hemorrhage due to multiple blunt traumatic injuries to head and face caused by
multiple blows to head with some heavy object, such as fist, and that witness was of opinion that blows
were homicidal permitted magistrate on pretrial application for habeas corpus testing probable cause at
preliminary hearing to draw inference of criminal agency and presented question for jury trial whether such
witness or pathologist and toxicologist called by defendant was more credible.
2. Indictment and Information.
Open murder complaint charges murder in first degree and all necessarily included offenses. NRS
175.501.
3. Criminal Law.
At preliminary hearing on open murder charge, degree of proof required to hold person to answer in
district court is only that it appears to magistrate, from legal, competent evidence, that offense has been
committed and that defendant committed it. NRS 175.501.
4. Criminal Law.
At preliminary hearing on open murder charge, evidence including testimony of long-time acquaintance
of defendant and testimony given by defendant to police was sufficient to require defendant to answer in
district court. NRS 175.501.
OPINION
By the Court, Collins, C. J.:
This is an appeal from a denial of a pre-trial application for habeas corpus testing probable
cause at a preliminary hearing. We affirm the denial.
86 Nev. 54, 56 (1970) Miner v. Lamb
In July, 1968, appellant and Paula Nichols, unmarried persons, were living together in an
apartment in Las Vegas. About 11:30 p.m., July 8, John Zapantis, long-time friend of
appellant, called at the apartment. One-half hour later appellant left for work. Around 1:30
a.m., July 9, Zapantis and Paula departed for the home of a friend. About 4:00 a.m., July 9,
they returned to the apartment occupied by appellant and Paula, where they were met in front
by appellant. Appellant and Paula engaged in a conversation not overheard by Zapantis and
she then entered the apartment. Appellant then walked over to Zapantis and said, This is out
of line, you know, John. To which Zapantis replied, Well, maybe it is but there is no reason
for you to think anything wrong. Appellant then said, Maybe you are right. Nothing
further was said, and Zapantis left. Zapantis stated appellant did not seem to be upset, but that
it was unlike him to say even that much since similar occurrences had taken place before
without comment from appellant. Zapantis testified there were no marks or bruises on Paula
when he brought her back to the apartment.
During the early evening hours of July 9, police were called to the apartment by appellant's
mother, where they found Paula dead on the floor.
Appellant told the police that shortly after Paula returned home at 4:00 a.m., she appeared
groggy and later comatose. Appellant found her breathing had almost stopped and he
attempted to revive her by shaking her and slapping her face. That approach being
unsuccessful, appellant then tried mouth-to-mouth resuscitation, also without success. He
then dragged her off a couch, across the living room and into the bathroom where he placed
her in the bathtub. There he again slapped her face and turned on the cold water in an attempt
to revive her. This process continued until about 7:00 a.m. when she appeared to be breathing
normally. Appellant then placed her on a sofa and he went to sleep on a nearby couch. Upon
awaking about 8:00 p.m., appellant found Paula on the floor next to the sofa. She appeared to
be dead. He called his mother, who upon arrival at the apartment confirmed the apparent
death of Paula and called the police. Appellant was arrested and charged with Paula's murder.
During the preliminary hearing on an open murder charge, Dr. James Clarke, a pathologist
who had performed the autopsy, was called by the State as a witness. He testified that in his
opinion Paula died from a cerebral concussion and subdural and subarachnoid
hemorrhage due to multiple blunt traumatic injuries to the head and face caused by
multiple blows to the head with some heavy object, such as a fist.
86 Nev. 54, 57 (1970) Miner v. Lamb
in his opinion Paula died from a cerebral concussion and subdural and subarachnoid
hemorrhage due to multiple blunt traumatic injuries to the head and face caused by multiple
blows to the head with some heavy object, such as a fist. He was of the further opinion that
these blows were homicidal in nature. He also testified there were 12 or 14 bruises on
Paula's head and face, although he did not count them nor examine them in detail. He also
removed samples of blood, urine, tissue, stomach content and other substances from the body
for testing. He was only partially aware of the results of the toxicological testing when he
gave his testimony, but refused to change his opinion as to the cause of death when informed
of the actual results of those tests. Appellant stipulated to the qualifications of Dr. Clarke as
an expert witness.
Appellant called Dr. Thorne Butler, a pathologist and toxicologist, as his witness. Dr.
Butler had conducted various tests on the specimens removed from Paula's body and testified
that in his opinion her body contained sufficient quantities of alcohol and barbiturates to
cause her death. He had not examined her body. Dr. Butler also criticized the method used by
Dr. Clarke to determine the time of death, his failure to determine the character of the bruises
found on Paula's face and head, and his description of the blows he claimed were the cause of
death as being homicidal. That term, Dr. Butler said, was inappropriate for a forensic
pathologist. Dr. Butler specifically testified that in his opinion the cause of death was most
likely the cause of death is due to the synergistic effect of barbiturates and alcohol and that
the trauma to the head, however caused, was a secondary and contributorysecondary and
possibly contributory cause but not a primary cause in itself.
The magistrate held that the evidence adduced by the State established the corpus delicti of
the open murder charge and that there was probable cause to believe appellant committed the
crime.
Appellant contends that the testimony of Dr. Clarke was not legally sufficient to support
the order because it was based to a substantial degree upon guesswork, whereas an expert
witness's opinion must be based on all the facts and that such facts must support reasonably
certain deductions, as distinguished from mere conjecture. He cites Beasley v. State, 81 Nev.
431, 404 P.2d 911 (1965), and Levine v. Remolif, 80 Nev. 168, 390 P.2d 718 (1964). He also
contends the evidence does not establish all of the elements of an open murder charge.
86 Nev. 54, 58 (1970) Miner v. Lamb
1. In Azbill v. State, 84 Nev. 345, 350, 440 P.2d 1014 (1968), this court held:
If a death is thought to be caused by criminal means and a person is charged with a crime
for causing that death, before he can be held for trial two things must be proved by sufficient
legal evidence before a grand jury if an indictment is sought or before a magistrate if a
complaint is filed and a preliminary hearing is held. They are (1) the fact that a crime has
been committed; and (2) probable cause to believe that the person charged committed it.
In proving the crime, which is otherwise known as the corpus delicti two elements must
be established (1) the fact of death; and (2) the criminal agency of another responsible for that
death. Beasley v. Lamb, 79 Nev. 78, 80, 378 P.2d 524 (1963).
[Headnote 1]
In our opinion, the testimony of Dr. Clarke at the preliminary examination established an
inference of a criminal agency causing Paula's death. He had before him sufficient facts to
justify his opinion, thus neither Beasley v. State, supra, nor Levine v. Remolif, supra,
controls. This was sufficient proof of the hypothesis of death by criminal means. Azbill v.
State, supra, at 352. It is true there was a noncriminal inference as to the cause of her death
according to the testimony of Dr. Butler, which was equally plausible. The testimony of both
Dr. Clarke and Dr. Butler was competent and thus admissible upon the criminal agency issue.
The real question is the weight to be accorded the testimony of these witnesses. So long as an
inference of criminal agency could be drawn, it was proper for the magistrate to draw it and
leave to the jury at trial the determination of which expert witness was more credible.
2. While it is a close question on the record before the lower court and this court, we are of
the opinion that evidence presented by the State before this magistrate did establish all the
elements of an open murder charge.
[Headnote 2]
An open murder complaint charges murder in the first degree and all necessarily included
offenses. NRS 175.501; Parsons v. State, 74 Nev. 302, 329 P.2d 1070 (1958); State v.
Oschoa, 49 Nev. 194, 242 P. 582 (1926).
[Headnote 3]
At a preliminary hearing on such charge, the degree of proof required to hold a person to
answer in the district court is only that it appears to the magistrate, from legal, competent
evidence, that an offense has been committed and that the defendant committed it.
86 Nev. 54, 59 (1970) Miner v. Lamb
that it appears to the magistrate, from legal, competent evidence, that an offense has been
committed and that the defendant committed it. Goldsmith v. Sheriff, 85 Nev. 295, 454 P.2d
86 (1969).
[Headnote 4]
From the testimony of Zapantis, it is permissible to infer that appellant may have been
sufficiently angry with Paula for going out with him for appellant to kill her even though he
concealed or displayed no anger toward him.
In Azbill v. State, supra, at 351, we held:
Once the corpus delicti is determined to have been proved by lawful evidence,
confessions and admissions may clearly be considered in establishing probable cause to show
that it was the particular defendant charged who was the criminal agency causing the death. In
re Kelly, supra. [28 Nev. 491, 83 P. 223 (1905)].
From testimony of appellant given to the police, it is permissible to infer that no one was
present in the apartment but he and Paula and that if she were beaten about the face and head
to the extent of causing her death, as testified to by Dr. Clarke, appellant was the only one
who could have administered the blows. Cf. Morton v. State, 82 Nev. 223, 224, 414 P.2d 952
(1966).
The order of the lower court denying the writ is affirmed.
Zenoff, Batjer, Mowbray, and Thompson, JJ., concur.
____________
86 Nev. 59, 59 (1970) Kline v. State
NEAL ALLISON KLINE, Appellant v.
No. 5682
January 27, 1970 464 P.2d 460
Appeal from judgment of the First Judicial District Court, Ormsby County; Richard L.
Waters, Jr., Judge.
Defendant was convicted in the district court of unlawful possession of marijuana and
LSD and he appealed. The Supreme Court, Mowbray, J., held that order certifying defendant,
then 17 years of age, to stand trial in district court as an adult, which order stated that juvenile
court had examined files and records of juvenile probation officer, was lacking in the
"specificity" which is necessary to permit meaningful review of order and conviction was
void.
86 Nev. 59, 60 (1970) Kline v. State
in the specificity which is necessary to permit meaningful review of order and conviction
was void.
Reversed.
Martillaro & Bucchianeri, of Carson City, for Appellant.
Harvey Dickerson, Attorney General, and Robert F. List, District Attorney, Carson City,
for Respondent.
Infants.
Order certifying defendant, then 17 years of age, to stand trial in district court as an adult, which order
stated that juvenile court had examined files and records of juvenile probation officer, was lacking in the
specificity which is necessary to permit meaningful review of order and conviction was void.
OPINION
In May 1968 a jury found Neal Allison Kline, who was then a juvenile, guilty of the
unlawful possession of marijuana and LSD. He was sentenced to the Nevada State Prison,
where he is presently confined. He has appealed from his conviction, asserting several
assignments of error, only one of which we need to consider, for it is dispositive of the
appealnamely, whether Kline was lawfully certified as an adult to stand trial in the district
court in accordance with the mandates announced by the United States Supreme Court in
Kent v. United States, 383 U.S. 541 (1966). We find that he was not properly certified, and
we reverse his conviction.
Kline was arrested in Carson City on March 30, 1968, for unlawful possession of
marijuana and LSD. He was then 17 years of age. On April 5, 1968, he was taken before the
juvenile division of the district court and certified as an adult to stand trial in the district
court on the felony charge of unlawful possession of marijuana and the gross misdemeanor
offense of unlawful possession of LSD. A criminal complaint was filed in the justice court on
the same day; his preliminary hearing was set for May 1, at which time he was bound over to
the district court for trial. He was arraigned in that court on May 6, and his trial commenced
one week later, on May 13.
NRS 62.080 provides:
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 [juvenile division of the district] 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."
86 Nev. 59, 61 (1970) Kline v. State
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. (Emphasis added.)
In Kent v. United States, supra, at 561, the High Court, in passing on a District of
Columbia statute
1
similar to our Nevada statute, had the following to say regarding the
meaning of the words full investigation as used in the certification proceedings.
Meaningful review requires that the reviewing court should review. It should not be
remitted to assumptions. . . . It may not assume' that there were adequate reasons, nor may it
merely assume that full investigation' has been made. Accordingly, we hold that it is
incumbent upon the Juvenile Court to accompany its waiver order with a statement of the
reasons or considerations therefor. . . . [T]he statement should be sufficient to demonstrate
that the statutory requirement of full investigation' has been met; and that the question has
received the careful consideration of the Juvenile Court; and it must set forth the basis for the
order with sufficient specificity to permit meaningful review. (Emphasis added.)
We now turn to review the specificity of the juvenile court's certification order, which
reads:
The Court having examined the files and records of the Juvenile Probation Officer and
from evidence received in open Court that the subject of this petition is seventeen years of
age, having been born on May 12, 1950; and having ascertained that the subject of this
petition is charged with an offense which would be a felony if committed by an adult,
IT IS HEREBY ORDERED, ADJUDGED and DECREED that NEAL ALLISON KLINE
be certified as an adult. . . .
It is patently clear that this order does not meet the mandates of Kent, supra, for it is
completely lacking in the specificity which is necessary to permit meaningful review.
____________________

1
When a child 16 years of age or over is charged with an offense which if committed by a person 18 years
of age or over is a felony, or when a child under 18 years of age is charged with an offense which if committed
by a person 18 years of age or over is punishable by death or life imprisonment, a judge may, after full
investigation, waive jurisdiction and order the child held for trial under the regular procedure of the court which
would have jurisdiction of the offense if committed by a person 18 years of age or over; or the other court may
exercise the powers conferred upon the Juvenile Court by this chapter and subchapter I of chapter 23 of Title 16
in conducting and disposing of such cases. D.C. Code 11-1553 (1961 ed., Supp. IV, 1965). (Emphasis
added.)
86 Nev. 59, 62 (1970) Kline v. State
The State, in answer to Kline's argument, urges that Kent is not applicable because Kent
was not decided on constitutional grounds. This is not true. The High Court one year later
reiterated unequivocally in In re Gault, 387 U.S. 1, 30 (1967):
In Kent v. United States, supra, we stated that the Juvenile Court Judge's exercise of the
power of the state as parens patriae was not unlimited. We said that the admonition to
function in a parental relationship is not an invitation to procedural arbitrariness.' With
respect to the waiver by the Juvenile Court to the adult court of jurisdiction over an offense
committed by a youth, we said that there is no place in our system of law for reaching a
result of such tremendous consequences without ceremonywithout hearing, without
effective assistance of counsel, without a statement of reasons.' . . . We reiterate this view,
here in connection with a juvenile court of adjudication of delinquency,' as a requirement
which is part of the Due Process Clause of the Fourteenth Amendment of our Constitution.
(Footnotes omitted; emphasis added.) Cf. Templeton v. State, 447 P.2d 158, 162 (Kan. 1968);
State v. Piche, 442 P.2d 632, 635 (Wash. 1968); Powell v. Sheriff, 85 Nev. 684, 462 P.2d 756
(1969).
Since the certification of Kline as an adult by the juvenile division of the district court did
not meet the standards of Kent, we hold in this case that Kline's conviction is void.
Reversed.
____________
86 Nev. 62, 62 (1970) Adams v. Adams
MICHAEL B. ADAMS, Appellant, v. CHARLENE
ADELE ADAMS, Respondent.
No. 5828
January 27, 1970 464 P.2d 458
Appeal from order of Eighth Judicial District Court, Clark County, John F. Mendoza,
Judge, modifying decree of divorce.
Proceedings on motion of mother to regain custody of minor child. The district court
entered judgment for mother and father appealed. The Supreme Court, Mowbray, J., held that
where trial court made finding that physical and mental condition of mother, who had
suffered health problems of serious emotional nature and had taken barbiturates over
extensive period of time, had changed since entry of previous order awarding custody of
child to father but did not make finding that child's welfare would be substantially
enhanced by granting change of custody to mother, order was required to be reversed
and remanded for full custody hearing.
86 Nev. 62, 63 (1970) Adams v. Adams
awarding custody of child to father but did not make finding that child's welfare would be
substantially enhanced by granting change of custody to mother, order was required to be
reversed and remanded for full custody hearing.
Reversed and remanded with instructions.
Lionel & Sawyer, of Las Vegas, for Appellant.
Jones & Jones, of Las Vegas, for Respondent.
1. Parent and Child.
Change of custody is warranted only when circumstances of parents have been materially altered and
child's welfare would be substantially enhanced by change.
2. Infants.
Although district judge has wide discretion in child custody cases, such discretion is to be operational
within announced standards governing welfare of child.
Where trial court made finding that physical and mental condition of mother, who had suffered health
problems of serious emotional nature and had taken barbiturates over extensive period of time, had
changed since entry of order awarding custody of child to father but did not make finding that child's
welfare would be substantially enhanced by granting change of custody to mother, change of custody was
not authorized and order granting custody of child to mother was required to be reversed and remanded for
full custody hearing.
Doctrine that, absent finding of mother's unfitness, custody of children of tender years should be awarded
to mother was overcome at time trial court awarded child's custody to father and was not applicable to
subsequent proceedings on mother's motion to regain custody of child.
OPINION
This appeal challenges an order of the district court that modified a divorce decree by
transferring custody of a daughter, presently 6 years of age, from her father, appellant Michael
B. Adams, to her mother, Charlene Adele Adams, the respondent.
The parties were divorced in July 1968, and custody of the daughter, the only child of the
marriage, was awarded to the mother, who retained custody until June 1967, when Michael
filed a motion to modify, asking that he be awarded custody. The district court entered a
temporary custody order when Michael filed his motion, which placed the child in his custody
pending the hearing of the motion on its merits.
86 Nev. 62, 64 (1970) Adams v. Adams
pending the hearing of the motion on its merits. The hearing was held in September 1967, and
at its completion the district judge granted Michael's motion and awarded him custody of the
child subject to a 1-day-a-week visitation by Charlene. That order of September concluded
with this provision:
IT IS FURTHER ORDERED that the matter of the custody may again be presented to the
Court six months from the date hereof. In the spring of 1968, Charlene filed such a motion
to regain custody, and after a hearing on her motion the district judge in June 1968 returned
the child to Charlene. It is from this order that Michael has appealed to this court, seeking a
reversal on the ground that the evidence offered at the June hearing failed to show that the
child's welfare would be substantially enhanced by the change.
Before reviewing the record in this case, it would be well to restate the standards
controlling our function on review, which are well expressed in Murphy v. Murphy, 84 Nev.
710, 711, 447 P.2d 664, 665 (1968):
[Headnote 1]
A change of custody is warranted only when: (1) the circumstances of the parents have
been materially altered; and (2) the child's welfare would be substantially enhanced by the
change. [Citations omitted.]
[Headnote 2]
It is true that the district judge has wide discretion in child custody cases. Cosner v.
Cosner, 78 Nev. 242, 371 P.2d 278 (1962); Timney v. Timney, 76 Nev. 230, 351 P.2d 611
(1960); Black v. Black, 48 Nev. 220, 228 P. 889 (1924). That discretion, however, is to be
operational within the standards announced in Murphy, supra.
The district judge found as follows:
1. That the defendant [Michael B. Adams] has been a fit and proper person to have the
care, custody and control of the minor child of the parties and has acted as such and for the
good and welfare of the minor child since the entry of the Order herein on September 26,
1967, awarding the care, custody and control of the minor child to the defendant.
2. That the physical and mental condition of the plaintiff [Charlene Adele Adams] has
changed since the entry of the said order on September 26, 1967, and that the Court feels that
the plaintiff should be given a last chance to be a fit and proper person to have the care,
custody and control of the said minor child.
86 Nev. 62, 65 (1970) Adams v. Adams
There was no finding by the court that the child's welfare would be substantially
enhanced by the change.
We turn now to review the record to determine whether evidence was received that would
support such a finding.
Unfortunately, Charlene has had, ever since the child was born, health problems of a
serious emotional nature. Since she was awarded custody of her daughter she has attempted
suicide and has taken barbiturates over an extensive period of time. On one occasion the child
took some of Charlene's barbiturates and as a result had to be rushed to the hospital to have
her stomach pumped. It was in this sort of an environment that the child was living when
Michael filed his motion seeking her custody.
At the June 1968 hearing, Dr. Ralph W. Hemington, a physician who had examined
Charlene on one occasion, testified that she was in excellent health; Dr. Jerome Schwartz, a
psychiatrist, testified that he had last examined Charlene in February 1968 and that he had
found no evidence of mental illness.
Dr. Irving Katz, a clinical psychologist, testified that he had examined the child on
numerous occasions, commencing December 20, 1967, and as late as June 1, 1968. He
described the child's condition as he found it in December 1967 as compared with her
condition in June 1968, and he concluded that in terms of improvement made, that she
seemed to have benefited from the stable or relatively stable relationship that existed with her
step-mother, and her father, that whatever tension and instability tendency to withdraw, and
tending to a clingingness had sufficiently disappeared as to indicate she made some very
definite positive changes in terms of her concept and terms of security and terms of her
feelings of confidence.
[Headnote 3]
The court did not find, nor can we find evidence in the record that would support a
finding, that the child's welfare would be substantially enhanced by the change of custody.
The district judge in his remarks from the bench at the conclusion of the June 1968
hearing, when he awarded custody to Charlene, said, in part: The question in my mind is
what is best for this child, and each of you have your own views as to what is best. Here we
have your daughter [speaking to Charlene] who is four years of age who is entitled to have
the love and affection that only a mother who has carried this child for nine months can give.
I think you dropped your obligation and forgot your responsibility. You did this by using
these barbituates [sic] or whatever you had, and certainly your conduct has not been
complimentary or laudatory at all.
86 Nev. 62, 66 (1970) Adams v. Adams
has not been complimentary or laudatory at all. I think you flat goofed. I think you have been
a bad mother.
But it appears to me that you may have rediscovered that responsibility, and I believe you
are entitled to have one more chance. I believe that you have changed your ways, and I
believe you will probably be a very loving mother in the future.
However, I tell you this that I want it specifically understood and in the record that should
you ever revert to the use of any narcotics, should you at any time attempt suicide as you have
in the past as has been testified to, that automatically without any proceedings that your
former husband, the father of this child, can immediately apply for an order of this Court to
change the custody of this child.
. . . [I]t appears from the testimony, that Mr. Adams, you have been rather vigilant and
given your child a good home. The Court's decision is not based upon the fact you did not
take care of the child. I think you have taken care of the child. . . .
I think this woman [Charlene] is entitled to . . . one further chance and opportunity. For
that reason the Court therefore awards the custody of the child to Charlene Adele Adams.
[Headnote 4]
This court recently announced, in Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969),
the tender years doctrine that, absent a finding of a mother's unfitness, custody of children
of tender years should be awarded to the mother. That ruling, however, is not controlling in
this case, because the tender years doctrine was overcome at the time the court awarded the
child's custody to the father, Michael. Thereafter, the modification order of June 1968 and any
subsequent modification orders affecting the child's custody must be governed by the
standards of Murphy, supra.
We appreciate that for the past 18 months the daughter has been in the custody of Charlene
and that repetitive custody changes do not contribute to the security or emotional stability of a
child. We reverse the order of the district court, and we remand the case with instructions to
conduct as soon as possible a full custody hearing within the standards announced in Murphy
supra. Pending the disposition of that hearing, the custody of the child may remain with
Charlene.
____________
86 Nev. 67, 67 (1970) Hicks v. Sheriff
KENNETH HARVEY HICKS, Appellant, v. SHERIFF,
No. 5986
January 27, 1970 464 P.2d 462
Appeal from an order denying an application for a writ of habeas corpus. Eighth Judicial
District Court, Clark County; Thomas J. O'Donnell, Judge.
The Supreme Court, Batjer, J., held that the facts laid before the district court, prior to the
filing of murder information, failed to establish a corpus delicti and probable cause to believe
that defendant committed the crime as charged; on the contrary, there was absolutely no
evidence that a criminal agency of defendant or anyone else was responsible for the alleged
victim's death.
Reversed.
James D. Santini, Public Defender, Clark County, for Appellant.
Harvey Dickerson, Attorney General; George E. Franklin, Jr., District Attorney, and Alan
R. Jones, Chief Criminal Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Facts laid before lower court, prior to the filing of murder information, failed to establish a corpus delicti
and probable cause to believe that defendant committed the crime as charged; on the contrary, there was
absolutely no evidence that a criminal agency of defendant or anyone else was responsible for the alleged
victim's death. NRS 173.035, subd. 2.
2. Criminal Law.
Only after the corpus delicti has been proved by lawful evidence may confessions and admissions be
considered in establishing probable cause to show that defendant was the criminal agency causing homicide
victim's death.
3. Homicide.
In establishing corpus delicti of crime of murder, there must at the very least be established, independent
of any confession or admission by the accused, the fact of death and that it resulted from the criminal
agency of another and not from natural causes, accident or suicide.
OPINION
By the Court, Batjer, J.:
Appellant was charged with the murder of Glenn B. Christiernsson. After an extensive
preliminary examination the charge was dismissed because the state had failed to prove
the corpus delicti and had also failed to prove that Christiernsson's death was caused by
the criminal agency of the appellant.
charge was dismissed because the state had failed to prove the corpus delicti and had also
failed to prove that Christiernsson's death was caused by the criminal agency of the appellant.
Thereafter, the state filed a petition in the district court for leave to file an information
against the appellant under NRS 173.035(2),
1
attaching to the petition the transcript of the
testimony taken at the preliminary examination. Also attached to the petition was an affidavit
of a Ronald Elton King, who had been a cellmate of the appellant in the Clark County jail.
The affidavit of King alleged that the appellant, while in jail, had admitted to him, the killing
of Christiernsson. There was also attached to the petition an affidavit of a deputy district
attorney which recited that the appellant had been discharged after preliminary examination,
but alleged that the testimony adduced was sufficient compliance with NRS 173.035(2), and
that it contained sufficient facts to justify the issuance of an information against the appellant.
The district court granted leave to file the information; the appellant was rearrested and
then applied for a writ of habeas corpus which was denied by the district court.
This appeal is taken from the order denying the writ of habeas corpus. We reverse the
order of the district court.
Counsel for both the state and the appellant urge this court to determine this appeal on the
question of the state's compliance or noncompliance with the provisions of NRS 173.035(2),
as well as the question of its constitutionality.
We do not reach either the question of the degree of compliance necessary to enable the
state to take advantage of that statute nor the question of its constitutionality.
[Headnote 1]
The only question before us is whether the facts laid before the district court, prior to the
filing of the information, established a corpus delicti and probable cause to believe that the
appellant committed the crime as charged.
____________________

1
NRS 173.035(2): If, however, upon the preliminary examination the accused has been discharged, or the
affidavit or complaint upon which the examination has been held has not been delivered to the clerk of the
proper court, the district attorney may, upon affidavit of any person who has knowledge of the commission of an
offense, and who is a competent witness to testify in the case, setting forth the offense and the name of the
person or persons charged with the commission thereof, upon being furnished with the names of the witnesses
for the prosecution, by leave of the court first had, file an information, and process shall forthwith issue thereon.
The affidavit mentioned herein need not be filed in cases where the defendant has waived a preliminary
examination, or upon such preliminary examination has been bound over to appear at the court having
jurisdiction.
The record of the preliminary examination is absolutely devoid of proof of the corpus
delicti to support the filing of an information charging the crime of murder. The appellant was
properly discharged by the justice of the peace on the evidence presented at that hearing.
Except in the affidavit of King, we find no testimony or other evidence about the cause of
death of Christiernsson. All that we find relating to his death is testimony that his body was
found on December 6, 1967, in the desert; that it was identified by a military service
identification tag and a thumb print, and that the body was partially clothed. There is
absolutely no evidence before either the justice's court or the district court that a criminal
agency of the appellant or anyone else was responsible for the alleged victim's death.
[Headnote 2]
The affidavit of the appellant's fellow prisoner to the effect that the appellant admitted to
him that he had murdered the victim, does not supply the proof necessary to show that death
was caused by criminal means. Only after the corpus delicti has been proved by lawful
evidence may confessions and admissions be considered in establishing probable cause to
show that the accused was the criminal agency causing the death. Azbill v. State, 84 Nev.
345, 440 P.2d 1014 (1968). In re Kelly, 28 Nev. 491, 83 P. 223 (1905). In Kelly, supra, this
court said: . . . It is not requisite, however, that the crime charged be conclusively established
by evidence independent of the confession or admission. It is sufficient if there be other
competent evidence tending to establish the fact of the commission of the crime. Here there
is absolutely no evidence independent of the appellant's purported admission.
The testimony at the preliminary examination establishing that the deceased and the
appellant were seen together shortly before the deceased's disappearance on or about October
9, 1967, as well as testimony concerning the appellant's behavior prior to arrest, and the fact
that he was driving Christiernsson's car at the time of his arrest would only have been
material to show probable cause that the appellant was guilty of the crime of murder if the
corpus delicti of that crime had been established.
In Azbill v. State, supra, we held: If, in considering all the evidence admissible upon the
element of corpus delicti, it cannot be said there was sufficient evidence to make it appear the
death resulted from another's criminal agency the state has failed in its burden and the person
charged may not be held to stand trial on that charge.
[Headnote 3]
At the very least there must be established, independent of any confession or admission by
the accused, the fact of death and that it resulted from the criminal agency of another and not
from natural causes, accident or suicide. Sefton v. State, 72 Nev. 106, 295 P.2d 385 (1956).
In his affidavit, King swore that the appellant told him that he beat Christiernsson to death
and then stabbed him to make sure he was dead. If King is telling the truth there surely must
have been some evidence on the body of the decedent showing bruises, contusions, abrasions,
wounds or fractures.
Neither the justice of the peace, the district court judge, who ordered the information to be
filed pursuant to NRS 173.035(2), the district court judge who denied habeas corpus, nor this
court may speculate that a criminal agency caused the death. There must be sufficient proof
of the hypothesis of death by criminal means. Azbill v. State, supra.
The evidence before the district court is insufficient to show probable cause of the corpus
delicti of the crime of murder. Accordingly we reverse the order of the district court, and
order that the appellant be freed from custody under the information charging murder unless
within a reasonable time the state elects to bring a new charge against him for that crime.
Collins, C. J., Zenoff, Mowbray, and Thompson, JJ., concur.
____________
86 Nev. 70, 70 (1970) Anglin v. State
MORRIS EDWIN ANGLIN, Jr., Appellant, v.
No. 5929
February 2, 1970 464 P.2d 504
Appeal from judgment and sentence of the Second Judicial District Court, Washoe
County; Grant L. Bowen, Judge.
The district court convicted defendant of the crime of forgery and gave him a life sentence
as an habitual criminal. The defendant appealed. The Supreme Court, Thompson, J., held that
defendant who testified in his own defense during forgery trial could be cross-examined as to
number and names of prior crimes.
Affirmed.
[Rehearing denied March 11, 1970] William B.
William B. Puzey, 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. Witnesses.
Defendant who testified in his own defense during forgery trial could be cross-examined as to number
and names of prior crimes; this was permissible impeachment. NRS 48.020, 48.130.
2. Witnesses.
Exemplified copies of three prior felony convictions were properly received in evidence to impeach
credibility of defendant who testified as a witness and who denied, either outright or inferentially, the three
prior felony convictions. NRS 48.020, 48.130.
3. Criminal Law; Witnesses.
The trial court may accept the facts which exemplified copy of felony conviction purports to show; the
court may not however rely upon exemplified record, either to impeach or enhance punishment, when a
constitutional infirmity appears from the face of the record. NRS 207.010, subds. 2, 8.
OPINION
The appellant, Anglin, is serving a life sentence at the Nevada State Prison as a habitual
criminal. He was convicted in Nevada for the crime of forgery. Following a subsequent
habitual criminal proceeding the court found that the appellant had been six times previously
convicted of felonies and imposed the increased punishment directed by statute. NRS
207.010 (2):
1
This appeal questions the propriety of the ruling of the district court which
allowed exemplified copies of three of the prior felony convictions to be received in evidence
during the forgery trial to impeach the credibility of Anglin as a witness. Moreover, Anglin
challenges the constitutional validity of all six prior convictions, exemplified copies of which
were received in evidence during the habitual criminal hearing.
____________________

1
NRS 207.010(2) reads: Every person convicted in this state of any crime of which fraud or intent to
defraud is an element, or of petit larceny, or of any felony, who shall previously have been three times convicted,
whether in this state or elsewhere, of any crime which under the laws of the situs of the crime or of this state
would amount to a felony, or who shall previously have been five times convicted, whether in this state or
elsewhere, of petit larceny, or of any misdemeanor or gross misdemeanor of which fraud or intent to defraud is
an element, shall be punished by imprisonment in the state prison for life.
evidence during the habitual criminal hearing. We find no merit to either contention and
affirm the district court.
[Headnotes 1, 2]
1. Anglin testified in his own defense during the forgery trial. During cross-examination
the prosecutor inquired as to the number and names of the prior crimes. This was permissible
impeachment by virtue of statutes and case law interpreting the statutes. NRS 48.020; NRS
48.130; Plunkett v. State, 84 Nev. 145, 437 P.2d 92 (1968).
2
Three of the prior felonies were
admitted by Anglin. As to these, the court allowed no further interrogation, nor would the
court allow into evidence exemplified copies of those admitted convictions. The court did
receive in evidence exemplified copies of three other prior felony convictions since Anglin
had denied their occurrence, either outright or inferentially. For example, as to two of them,
Anglin testified that he had not been convicted officially since the cases were on appeal.
The exemplified copies established that the appeals had been affirmed in each instance, and
thus impeached his testimony. Nothing appears from the face of the exemplified copies
admitted in evidence suggesting that the convictions were unconstitutional.
2. At the recidivist hearing exemplified copies of six prior felony convictions were
received in evidence. At least five of those copies show upon their face that Anglin was either
represented by counsel or waived counsel. Accordingly, the ruling of the United States
Supreme Court in Burgett v. Texas, 389 U.S. 109 (1967), is met. See also: Eisentrager v.
State Board of Parole, 85 Nev. 672, 462 P.2d 40 (1969). Nothing appears from the face of
five of the exemplified records to suggest that the convictions therein specified were
unconstitutional.
3
[Headnote 3]

____________________

2
NRS 43.020 provides: No person shall be disqualified as a witness in any action or proceeding . . . by
reason of his conviction of felony, but such conviction may be shown for the purpose of affecting his credibility .
. . .
NRS 48.130 reads: A witness shall answer questions legal and pertinent to the matter in issue, though his
answer may establish a claim against himself, but he need not give an answer which will have a tendency to
subject him to punishment for a felony, nor need give an answer which will have a direct tendency to degrade his
character, unless it be to the very fact in issue, or to a fact from which the fact at issue would be presumed. But a
witness shall answer as to the fact of his previous conviction for felony.

3
It is immaterial that one of the exemplified records used at the recidivist hearing may not have satisfied
Burgett v. Texas, supra, since the statute (NRS 207.010(2)) is otherwise satisfied for the imposition of a life
sentence.
[Headnote 3]
3. During the forgery trial and also at the habitual hearing the appellant endeavored to
show that several of his prior felony convictions were constitutionally infirm for one reason
or another. Once identity is established, NRS 207.010(8) declares that presentation of an
exemplified copy of a felony conviction shall be prima facie evidence of conviction of a prior
felony. Accordingly, the evidentiary items contained in the exhibit (type of prior felony,
where committed, identity of sentencing court, whether defendant was represented by counsel
or had waived counsel, etc.) are prima facie evidence of the facts the exhibit purports to
show, and the trial court may accept that evidence and reject the defendant's attempted
contradiction of it. Of course, the court may not rely upon the exemplified record, either to
impeach or enhance punishment, when a constitutional infirmity appears from the face of the
record (for example: that the defendant was not represented by counsel nor had he waived
counsel, Burgett v. Texas, supra). If the infirmity does not so appear, the court may rely upon
the exemplified record and make its determination therefrom. From time to time there may be
an occasion where such prior conviction is in fact constitutionally infirm, but such infirmity is
not reflected upon the face of the exemplified record. In such instance, that infirmity is to be
established through an appropriate proceeding in the state where the conviction occurred and
not otherwise. Until it is thus established the forum court may rely upon the exemplified
record.
4. Other assignments of error have been considered and are rejected as having no merit.
Affirmed.
____________
86 Nev. 73, 73 (1970) State ex rel. Hersh v. District Court
THE STATE OF NEVADA, on the Relation of DAVE HERSH and DAVE BARNETT,
Appellants, and Relators, v. FIRST JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA, in and for the County of Ormsby, and THE HONORABLE RICHARD L.
WATERS, Judge, Respondents.
No. 5964
February 2, 1970 464 P.2d 783
Original prohibition proceeding by directors of corporation for which district court had
appointed temporary receiver. The Supreme Court, Batjer, J., held that order granting
temporary restraining order and directing that $300 cash posted by nonresident plaintiff
to secure costs be only security necessary to meet requirements of rule requiring security
before restraining order or preliminary injunction can issue was void for failure to meet
requirement that nonresident bond must remain for defendant's benefit until action is
dismissed or judgment entered.
Supreme Court, Batjer, J., held that order granting temporary restraining order and directing
that $300 cash posted by nonresident plaintiff to secure costs be only security necessary to
meet requirements of rule requiring security before restraining order or preliminary injunction
can issue was void for failure to meet requirement that nonresident bond must remain for
defendant's benefit until action is dismissed or judgment entered. The Court further held that
directors were not required to be named as defendants and served with process on show cause
order seeking temporary receiver and were not indispensable parties to litigation at that point,
and service of resident agent for purpose of appointment of temporary receiver was sufficient.
Writ granted in part and denied in part.
Laxalt & Berry, of Carson City, for Applicants and Relators.
Martillaro and Bucchianeri, Crowell and Crowell, and Ross and Crow, of Carson City,
for Respondents.
1. Injunction.
Bond posted pursuant to statute requiring nonresident plaintiff to post bond to secure costs must remain
for defendant's benefit until action is dismissed or judgment is entered, thus order granting temporary
restraining order and directing that $300 cash posted by nonresident to plaintiff be only security necessary
to meet requirements of rule requiring applicant for restraining order or preliminary injunction to give
security was improper. NRCP 65(c); NRS 18.130, subd. 1.
2. Injunction.
Granting of temporary restraining order without proper bond is a nullity. NRCP 65(c).
3. Injunction.
Order granting temporary restraining order and directing that $300 cash posted by nonresident plaintiff to
secure costs be only security necessary to meet requirements of rule requiring security before restraining
order or preliminary injunction can issue was void for failure to meet requirement that nonresident bond
remain for defendant's benefit until action is dismissed or judgment entered. NRCP 65(c); NRS
18.130, subd. 1.
4. Receivers.
Creation of receivership must be conducted as smoothly and expeditiously as possible.
5. Constitutional Law; Corporations.
Statute authorizing court to enjoin corporation from exercising any of its powers and to appoint
temporary receiver is constitutional exercise of legislative prerogative, and its provisions meet basic
requirements of notice and opportunity to be heard required by mandate of due process. NRS 78.650.
6. Corporations.
Directors were not required to be named as defendants and served with process on show cause order
seeking temporary receiver and were not indispensable parties to litigation at that point, and service of
resident agent for purpose of appointment of temporary receiver was sufficient. NRS 78.650, subd. 3.
7. Prohibition.
Contention that temporary restraining order issued in connection with show cause order resulting in
appointment of temporary receiver permanently restrained directors from interfering with duties of receiver
because of wording of order . . . until further order of court, was rendered moot by Supreme Court's
declaration that temporary restraining order and injunction were void for failure to post proper bond.
NRCP 65(c); NRS 18.130, subd. 1.
8. Corporations.
Where there was sufficient evidence to support district court's finding that officers and directors of
corporation had been guilty of gross mismanagement in conduct or control of corporation's affairs, and
district court followed legislative directive in statute governing powers of temporary receivers, temporary
receivership did not have effect of placing corporation into permanent receivership. NRS 78.650, subd.
5.
OPINION
On May 29, 1969, Irma Joyce Dwight filed her complaint against Meadow Valley
Ranchos, a Nevada corporation, asserting that she was the owner of at least one-tenth of the
issued and outstanding capital stock of that corporation, and that the officers, directors and
other stockholders thereof were guilty of fraud, ultra vires acts, conspiracy, subterfuge,
unlawful acts, charter violations, misfeasance, malfeasance or nonfeasance and prayed for the
appointment of a temporary receiver, the appointment of a receiver and an injunction
restraining the corporation from exercising its powers or doing business. An order was
entered by respondent court directing the corporation to show cause why the prayer of the
complaint should not be granted. The complaint and summons, as well as the order to show
cause, were served on the resident agent of the corporation at Carson City, Nevada, on May
31, 1969.
Upon the motion of counsel for the corporation, the scheduled hearing on the show cause
order was continued from June 9, 1969, until June 13, 1969, and was finally concluded on
June 17, 1969. On that same date the corporation, through its counsel, moved to dismiss the
complaint for failure to join the directors and stockholders of Meadow Valley Ranchos as
indispensable parties.
directors and stockholders of Meadow Valley Ranchos as indispensable parties.
The respondent court denied that motion, then entered its order appointing a temporary
receiver and granting a temporary restraining order and injunction against the president,
officers, agents and servants of the corporation.
The relators who claim to be directors of the corporation have never made an appearance
in district court, nor filed a motion or other pleadings with that court requesting their
appointment as a temporary receiver or temporary receivers, nor have they moved to have the
temporary receiver removed. Nevertheless, they have applied to this court for a writ of
prohibition upon the grounds that the trial court was without jurisdiction to appoint a
temporary receiver and grant a temporary restraining order because the relators had not
received notice of the hearing and were denied an opportunity to be heard. The relators
further complain that they were not named as parties; that the temporary restraining order and
injunction were issued without bond in contravention of NRCP 65(c); that there was
insufficient evidence of insolvency or mismanagement to warrant the appointment of a
temporary receiver; that they were deprived of property and valuable rights without due
process of law; that the respondent court acted in an unconstitutional manner; and that they
were denied their statutory right to be appointed to the position of temporary receiver. An
alternative writ of prohibition was granted by this court pending a hearing and decision on
these issues.
[Headnote 1]
Before the hearing in district court, counsel for the corporation requested that the plaintiff
post a nonresident bond pursuant to NRS 18.130(1). Cash in the statutory sum of $300 was
posted by the plaintiff, Irma Joyce Dwight. When the district court entered its order granting a
temporary restraining order it directed that this money which had been posted as a
nonresident bond be the only security necessary to meet the requirements of NRCP 65(c).
1
This order was entirely improper because the bond once posted under NRS 18.130 (1) must
remain for the defendant's benefit until the action is dismissed or judgment is entered.
____________________

1
NRCP 65(c) reads: No restraining order or preliminary injunction shall issue except upon the having of
security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as
may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such
security shall be required of the State or of an officer or agency thereof.
A surety upon a bond or undertaking under this rule submits himself to the jurisdiction of the court and
irrevocably appoints the clerk of the court as his agent upon whom any papers affecting his liability on
remain for the defendant's benefit until the action is dismissed or judgment is entered.
[Headnotes 2, 3]
The granting of a temporary restraining order without a proper bond is a nullity. That part
of the order of the trial court filed on June 19, 1969, granting a temporary restraining order is
void, and that part of the alternative writ concerning the temporary restraining order and
injunction is made permanent. Shelton v. Second Judicial Dist. Court, 64 Nev. 487, 185 P.2d
320 (1947); State v. Eighth Judicial District Court, 81 Nev. 131, 399 P.2d 632 (1965);
Brunzell Constr. v. Harrah's Club, 81 Nev. 414, 404 P.2d 902 (1965). However, this finding
that the temporary restraining order and injunction are void should not be interpreted as
precluding a temporary receiver, receiver or other interested party from hereafter petitioning
the district court, during progress of this case, for a temporary restraining order and
injunction.
[Headnotes 4, 5]
We turn now to examine the order appointing a temporary receiver. The creation of a
receivership must be conducted as smoothly and expeditiously as possible. Unless a
temporary receiver can be appointed to take control of assets and preserve the property, the
mischief complained of might well cause their dissipation before a hearing can be held on the
merits to determine if a permanent receiver should be appointed. The legislature has
recognized the problems that may result from long delays and has provided a method in NRS
78.650
2
for the appointment of a temporary receiver. We find the enactment of NRS 7S.650
to be a constitutional exercise of legislative prerogative and that its provisions meet the
basic requirements of notice and an opportunity to be heard as required by the mandate
of due process.
____________________
the bond or undertaking may be served. His liability may be enforced on motion without the necessity of an
independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk
of the court who shall forthwith mail copies to the persons giving the security if their addresses are known.

2
NRS 78.650 reads: 1. Any holder or holders of one-tenth of the issued and outstanding capital stock may
apply to the district court, held in the district where the corporation has its principal place of business, for an
order dissolving the corporation and appointing a receiver to wind up its affairs, and by injunction restrain the
corporation from exercising any of its powers or doing business whatsoever, except by and through a receiver
appointed by the court, whenever:
(a) The corporation has willfully violated its charter; or
(b) Its trustees or directors have been guilty of fraud or collusion or gross mismanagement in the conduct or
control of its affairs; or
(c) Its trustees or directors have been guilty of misfeasance, malfeasance or nonfeasance; or
(d) The corporation shall be unable to conduct the business or
NRS 78.650 to be a constitutional exercise of legislative prerogative and that its provisions
meet the basic requirements of notice and an opportunity to be heard as required by the
mandate of due process.
The relators attack the service of the order to show cause upon the basis that no attempt
was made to personally serve them or the other officers of the corporation, other than the
resident agent. Neither NRS 78.650 nor NRCP 4(d)(1) require an attempt to serve other
officers where service is made upon the resident agent. Rever v. Lapidus, 151 So.2d 61 (Fla.
1963). Here NRS 78.650(3) specifically provides that it shall be sufficient for the purposes of
a temporary appointment if notice is given to the corporation alone.
[Headnote 6]
Notwithstanding NRS 78.650(3) the relators contend that, as directors, they are
indispensable parties to this litigation,
____________________
conserve its assets by reason of the act, neglect or refusal to function of any of the directors or trustees; or
(e) The assets of the corporation are in danger of waste, sacrifice or loss through attachment, foreclosure,
litigation or otherwise; or
(f) The corporation has abandoned its business; or
(g) The corporation has not proceeded diligently to wind up its affairs, or to distribute its assets in a
reasonable time; or
(h) The corporation has become insolvent; or
(i) The corporation, although not insolvent, is for any cause not able to pay its debts or other obligation as
they mature; or
(j) The corporation is not about to resume its business with safety to the public.
2. The application may be for the appointment of a receiver, without at the same time applying for the
dissolution of the corporation, and notwithstanding the absence, if any there be, of any action or other
proceeding in the premises pending in such court.
3. In any such application for a receivership, it shall be sufficient for a temporary appointment if notice of the
same be given to the corporation alone by process as in the case of an application for a temporary restraining
order or injunction, and the hearing thereon may be had after 5 days' notice unless the court shall direct a longer
or different notice and different parties.
4. The court may, if good cause exists therefor, appoint one or more receivers for such purpose, but in all
cases directors or trustees who have been guilty of no negligence nor active breach of duty shall have the right to
be preferred in making the appointment, and the court may at any time for sufficient cause make a decree
terminating the receivership, or dissolving the corporation and terminating its existence, or both, as may be
proper.
5. Receivers so appointed shall have, among the usual powers, all the functions, powers, tenure and duties to
be exercised under the direction of the court as are conferred on receivers and as provided in NRS 78.635,
78.640 and 78.645, whether the corporation shall be insolvent or not.
must be named as defendants and served with process by reason of case decision in this state.
We are referred to the cases of Golden v. District Court, 31 Nev. 250, 101 P. 1021 (1909),
and Shelton v. District Court, 64 Nev. 487, 185 P.2d 320 (1947). Neither case concerned the
appointment of a temporary receiver and to that extent do not touch the precise issue
confronting us in this case. Those cases, however, do have relevancy to the appointment of a
permanent receiver. Should the receivership proceeding progress to a trial upon the merits to
determine the need for a permanent receiver, then, in such event, the holding of Golden and
Shelton, supra, with regard to indispensable parties and notice will become significant and
should be respected. Presumably the district court, at a proper time, will allow appropriate
amendments to enable the accomplishment of that objective.
[Headnote 7]
The relators complain that the temporary restraining order permanently restrained them
from interfering with the duties of the receiver because of the wording in the order . . . until
the further order of the court. Although this contention is not well taken it is rendered moot
by our declaration that the temporary restraining order and injunction are void.
[Headnote 8]
The relators contention that the net effect of the respondents' actions placed Meadow
Valley Ranchos into a permanent receivership is not supported by the record. The district
court simply followed the legislative directive found in NRS 78.650(5).
The record reveals that there was sufficient evidence to support the district courts finding
that the officers and directors of Meadow Valley Ranchos have been guilty of gross
mismanagement in the conduct of control of its affairs or have been guilty of malfeasance.
All other conclusions and allegations of the relators are entirely without merit and are
dismissed.
We find that the statutory provisions were met and due process was afforded for the
appointment of a temporary receiver. That part of the district court's order appointing a
temporary receiver is valid and as to that part of the order the alternate writ of prohibition was
improvidently given. That portion of the petition for a temporary writ, in this action,
concerning the appointment of a temporary receiver, is dismissed and that part of the
alternative writ quashed.
The bond in the amount of $100,000 heretofore posted with this court by the relators,
upon their offer for the use and benefit of Irma Joyce Linnick Dwight, for any damages
sustained by her as a result of the issuance of the alternate writ, is hereby transferred to
the Clerk of the First Judicial District Court in and for Carson City, upon the date that this
opinion becomes effective, to be held by him until the further order of the district court.
this court by the relators, upon their offer for the use and benefit of Irma Joyce Linnick
Dwight, for any damages sustained by her as a result of the issuance of the alternate writ, is
hereby transferred to the Clerk of the First Judicial District Court in and for Carson City,
upon the date that this opinion becomes effective, to be held by him until the further order of
the district court. Damages, if any, are to be limited to those occasioned by this proceeding
seeking a writ of prohibition.
____________
86 Nev. 80, 80 (1970) Bean v. State
THOMAS LEE BEAN, Appellant, v. THE
No. 5788
February 3, 1970 465 P.2d 133
Partial granting of writ of habeas corpus affecting death penalty sentence under
post-conviction relief statute. Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Proceeding under post-conviction relief statute. From a disposition by the district court the
petitioner appealed. The Supreme Court, Zenoff, J., held that if a juror in a capital case is
excused upon his simple statement that he is against capital punishment, reversible error is
committed and any penalty imposed cannot stand.
Petition denied except as to penalty. Reversed and a new trial ordered before a jury
to redetermine solely the issue of penalty.
Collins, C. J., and Batjer, J., concurred in part, dissented in part.
Richard O. Kwapil, Jr., and Jerry Carr Whitehead, of Reno, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and C.
Frederick Pinkerton, Deputy District Attorney, Washoe County, for Respondent.
1. Jail.
Before juror can be excluded for opposition to death penalty, he must make it unmistakably clear that he
would automatically vote against imposition of capital punishment without regard to any
evidence which might be developed at trial of case before him, or that his attitude
toward death penalty would prevent him from making impartial decision as to guilt.
86 Nev. 80, 81 (1970) Bean v. State
vote against imposition of capital punishment without regard to any evidence which might be developed at
trial of case before him, or that his attitude toward death penalty would prevent him from making impartial
decision as to guilt. NRS 175.036, subd. 1.
2. Criminal Law; Jury.
If juror in capital case is excused upon his simple statement that he is against capital punishment,
reversible error is committed and any penalty imposed cannot stand. NRS 175.036, subd. 1.
3. Courts.
Ruling of the United States Supreme Court that juror cannot be excused merely because he is opposed to
death penalty is retroactive. NRS 175.036, subd. 1.
4. Jury.
Court has duty to make it clear to prospective juror that opposition to death penalty or conscientious
scruples against such penalty would be insufficient to disqualify him from service. NRS 175.036, subd.
1.
5. Jury.
Where trial was held before federal supreme court set forth new rules in regard to excusing juror for
opposition to death penalty, defense counsel's failure to object to exclusion of prospective juror did not bar
him from subsequently claiming error. NRS 175.036, subd. 1.
6. Stipulations.
Where trial was had before federal supreme court decision set forth new rules in regard to excusing juror
for opposition to death penalty, stipulation that prospective juror might be excused for cause, made upon
erroneous assumption that juror was disqualified, did not bar subsequent claim of error. NRS 175.036,
subd. 1.
7. Criminal Law.
Where prospective jurors were improperly excused for bias against capital punishment, death penalty
must be set aside even though peremptory challenges remained unused. NRS 175.036, subd. 1.
8. Jury.
Prospective juror's statement as to death penalty in a proper case is not unacceptable as indefinite if in
general interrogation by court it is previously made clear that what constitutes proper case for death penalty
was for determination of individual jurors. NRS 175.036, subd. 1.
9. Jury.
Prospective juror's statement I dont agree with the death penalty is insufficient to disqualify, and
defect is not cured by referring to entire examination of other jurors; correct examination must be centered
on each juror. NRS 175.036, subd. 1.
10. Jury.
To ascertain what juror means by his answers in regard to capital punishment, court must consider not
only words of answers but also words of questions and, additionally, all circumstances in which colloquy
takes place. NRS 175.036, subd. 1.
11. Jury.
Prospective juror's answer not death penalty, no is not enough to disqualify him unless somewhere it is
made clear to prospective juror that it is entirely in his discretion what is proper case to
impose it.
86 Nev. 80, 82 (1970) Bean v. State
prospective juror that it is entirely in his discretion what is proper case to impose it. NRS 175.036, subd.
1.
12. Jury.
Jury must constitute segment of community within concept that jury shall be drawn from a cross section
of community. NRS 175.036, subd. 1.
13. Jury.
Defendant is entitled to jury which is not hanging jury and state is entitled to jury capable of imposing
death penalty. NRS 175.036, subd. 1.
14. Jury.
When prospective juror answers that he has religious conviction or personal scruple or opinion
concerning capital punishment which would render him unable to return verdict carrying death penalty, he
must be questioned further on nature of his beliefs and then be confronted with question whether his views
are so firm or fixed that he is unable to return death penalty in any case. NRS 175.036, subd. 1.
15. Jury.
Either juror who is unable to return death penalty in any case or juror who is firmly of view that murderer
should die may be excused for cause. NRS 175.036, subd. 1.
16. Criminal Law.
Wrongful excusing of one juror for cause destroys penalty feature of trial. NRS 175.036, subd. 1.
17. Criminal Law.
Pretrial publicity, including no showing of effort on part of news media to influence course of trial for
murder or result thereof, was not shown to be prejudicial to defendant's right of fair trial in which insanity
rather than identity was in issue.
18. Criminal Law.
Requirement of fair trial is that trial be fair, not perfect.
Before denial of due process arises on ground of inadequate counsel, trial must be sham, farce or
pretense.
20. Criminal Law.
Capital punishment is not unconstitutional as cruel and unusual punishment.
21. Criminal Law.
Statute providing for capital punishment is not infirm for want of prescribed standard for jury to follow in
application.
22. Criminal Law.
Where it was found that jurors had been improperly excused by reason of attitude toward capital
punishment, but trial was otherwise fair, conviction would stand but defendant was entitled to new hearing
on question of penalty before jury drawn according to requirements of federal Supreme Court. NRS
175.036, subd. 1.
OPINION
Thomas Bean, age 18, was convicted of the murder of Sonja McCaskie and sentenced to
death. He had not known the victim.
86 Nev. 80, 83 (1970) Bean v. State
During a customarily sleepless night he was prowling a neighborhood looking for women's
clothing on clothes lines which was his characteristic for sexual gratification. He had rape in
mind if the opportunity presented itself. Finding a door to Sonja's apartment unlocked he
removed his shoes, entered, took several precautions against detection and did several other
things preparatory to committing the act of rape upon Sonja whom he observed sleeping
alone in her bedroom. Using a garrote which he had brought with him he twisted it around her
neck and increased the pressure when she awakened and pleaded for her life. It is not clear
whether she was still alive when he stabbed her several times with his knife and committed
the act of rape, but he completed the act of rape and murder.
Thereafter, he dragged her body out of the bedroom, cut her heart out and threw it on the
floor, cut off her head, tried to skin her like a carcass in a slaughter house, slit her from the
crotch to her neck and then stuffed the body in a hope chest. Before that he had tossed the
head into the chest like a basketball. A foot was hanging out of the chest so he cut that off
and left it lying on the floor. During all of this he had stabbed her many times with his knife
and with knives taken from Sonja's kitchen. Bean then lolled around listening to her musical
records and tiring of that took her sports car for a joy ride, returned, and left. A statement of
facts is found in Bean v. State, 81 Nev. 25, 398 P.2d 251 (1965), when this court affirmed his
conviction. Bean now asserts through our post-conviction statute, NRS 177.375,
constitutional rights that had not been otherwise reviewed.
Decisions of the U.S. Supreme Court rendered after the appeal directly relate to several of
the asserted issues now before this court. Those issues are (1) that members of the jury venire
were improperly excused (2) the publicity surrounding the trial was of such nature a fair trial
was denied him, and (3) that he had been denied effective assistance of counsel. This court
referred the petition to the district court for an evidentiary hearing.
To the contentions that (a) the jury was not representative of the community where the trial
was held (b) that pretrial publicity precluded a fair trial, and (c) that Bean was denied
effective assistance of counsel the trial court ruled for the state on the last two, but did not
rule at all on the first but referred that question to this court because we had not asked the trial
court to go into the subject in the order of reference.
A. THAT THE JURY SELECTION VIOLATES THE STANDARDS ESTABLISHED IN
WITHERSPOON v. ILLINOIS, 391 U.S. 510 {196S), DECIDED BY THE U.S. SUPREME
COURT THREE YEARS AFTER WE REVIEWED BEAN'S TRIAL IN BEAN v. STATE, SUPRA.
86 Nev. 80, 84 (1970) Bean v. State
ILLINOIS, 391 U.S. 510 (1968), DECIDED BY THE U.S. SUPREME COURT THREE
YEARS AFTER WE REVIEWED BEAN'S TRIAL IN BEAN v. STATE, SUPRA.
At Bean's trial a panel of 80 prospective jurors was drawn. Thirteen of that number were
excused by the court after the typical following exchange in the voir dire examination:
Defense Counsel: Do you have a conscientious qualm against the death penalty?
Juror: Yes, I do.
Question: Do you feel that you could not render a decision for the death penalty?
Answer: I am afraid not.
Defense Counsel: I will anticipate the state's challenge and will stipulate, your honor.
Prosecutor: We will stipulate, your honor.
The Court: Based upon the stipulation, I am going to excuse you from serving and thank
you very much for coming.
[Headnote 1]
1. The U.S. Supreme Court in Witherspoon declared that a jury which excludes all those
persons with some bias against the death penalty cannot perform the task of determination of
penalty demanded of it, and that a death penalty imposed by such a death-oriented jury cannot
stand. A man who opposes the death penalty no less than one who favors it can make a
discretionary judgment entrusted by the state and can thus obey the oath he takes as a juror. P.
519. Before he can be excluded a juror must make unmistakably clear (1) that he would
automatically vote against the imposition of capital punishment without regard to any
evidence that might be developed at the trial of the case before him, or (2) that his attitude
toward the death penalty would prevent him from making an impartial decision as to the
defendant's guilt. Pp. 522-523, footnote 21.
[Headnote 2]
The standard or test pronounced and mandated by that decision is directed at the
questioning of jurors who are summoned to serve in a capital case. If they simply state that
they are against capital punishment and are thereby excused, reversible error is committed.
Whatever penalty has been imposed by a jury in that case cannot stand.
At the time of Bean's trial on June 24, 1963 our statute specifying grounds for challenge of
jurors for cause NRS 175.105(9) provided: If the offense charged is punishable with death [a
ground for challenge is], the entertaining of such conscientious opinions as would preclude
his [the juror] finding the defendant guilty; in which case he must neither be permitted nor
compelled to serve as a juror."1
[Headnote 3]
86 Nev. 80, 85 (1970) Bean v. State
the defendant guilty; in which case he must neither be permitted nor compelled to serve as a
juror.
1

[Headnote 3]
The U.S. Supreme Court directs that in order for a challenge to be properly asserted under
that statute there must be a thorough examination of each juror who asserts a bias for or
against the death penalty to determine whether or not his bias can be set aside and whether the
juror could nevertheless determine the issue of innocence or guilt and penalty upon the
evidence presented before him. If he can then he is a qualified juror and must be allowed to
sit unless excused by peremptory challenge. The fact of his bias alone is not ground for
discharge from the jury. The extent of Witherspoon does not destroy the trial, only the
penalty, but its ruling is retroactive.
2

In the case of In re Anderson, 447 P.2d 117 (Cal. 1968), the California court ruled that
where one or more of the prospective jurors were excused on the ground that it was not
unmistakably clear that he would automatically vote against the imposition of capital
punishment without regard to any evidence, or that his attitude toward the death penalty
would prevent him from making an impartial decision as to the defendant's guilt, error was
committed. Statements such as: I am opposed to the death penalty, I don't believe in
capital punishment, are insufficient to disqualify such a juror because it is not clear that he
or they could not set aside those conscientious convictions and determine the case from the
evidence. See also, In re Eli, 454 P.2d 337 (Cal. 1969); State v. Atkinson, 167 S.E.2d 241
(N.C. 1969); State v. Ruth, 170 S.E.2d 897 (N.C. 1969).
[Headnotes 4-6]
2. Defense counsel's failure to object to the exclusion of the prospective jurors does not bar
him from now claiming error. There is a duty upon the court to make it clear to the
prospective juror that opposition to the death penalty or conscientious scruples against that
penalty would be insufficient to disqualify him from service. Failure to do so is
understandable since the trial was long before the U.S. Supreme Court rendered its decision
in Witherspoon which sets forth new rules that the states are required to follow and to apply
retroactively. In re Arguello, 452 P.2d 921, 922 {Cal.
____________________

1
NRS 175.105(9) was removed from the code when Nevada revised its whole chapter on criminal procedure
in 1967. Its present counterpart is 175.036(1) which was added in 1963.

2
General illuminating discussions are contained in 82 Harv.L.Rev. 162 (1968); 42 S. Cal.L.Rev. 329 (1969);
1969 Utah L.Rev. 154.
86 Nev. 80, 86 (1970) Bean v. State
Arguello, 452 P.2d 921, 922 (Cal. 1969). Thus, there is no merit to the defendant's failure to
object in the trial court to the exclusion of the member as a bar to the present claim of error.
Boulden v. Holman, 394 U.S. 478 (1969); People v. Risenhoover, 447 P.2d 925, 936 (Cal.
1968); In re Anderson, supra; People v. Sears, 450 P.2d 248 (Cal. 1969). A stipulation that a
prospective juror may be excused for cause, made upon the erroneous assumption that the
juror is disqualified, must be similarly treated.
[Headnote 7]
3. Bean had three peremptory challenges unused, the state one, but even though
peremptory challenges still remained the court of California holds that to be of no effect.
People v. Sears, supra, at 257; People v. Beivelman, 447 P.2d 913 (Cal. 1968). Although
Bean had three unexercised peremptory challenges and one remained for the state, the factor
of unused peremptories could not overcome the total number of jurors who were invalidly
excused even were we permitted to accept the leftover peremptories argument. People v.
Speck, 242 N.E.2d 208, 227 (Ill. 1968). The record here shows a systematic exclusion of
jurors who were not examined sufficiently once they answered regarding their feelings about
the death penalty.
[Headnote 8]
4. The question by the court, Is it your frame of mind that you could not and you would
not, under any circumstances, regardless of what the evidence might be, return a verdict
carrying with it the death penalty? was satisfactory in People v. Nye, 455 P.2d 395, 399
(Cal. 1969). But the words in a proper case ordinarily lacking in precise unmistakable
clearness may be acceptable if in the general interrogation by the court it is previously made
clear that what constitutes a proper case for the death penalty was for the determination of the
individual jurors. See also People v. Mabry, 455 P.2d 759 (Cal. 1969); People v. Williams,
456 P.2d 633 (Cal. 1969); People v. Vaughn, 455 P.2d 122 (Cal. 1969); In re Hillery, 457
P.2d 565 (Cal. 1969).
[Headnotes 9-11]
I don't agree with the death penalty alone is insufficient (In re Seiterle, 456 P.2d 129
(Cal. 1969)) and the defect is not cured by referring to the entire examination of the other
jurors because the correct examination must be centered on each juror. In order to ascertain
what the juror means by his answers the court must consider not only the words of the
answers but also the words of the questions and, additionally, all of the circumstances in
which the colloquy takes place.
86 Nev. 80, 87 (1970) Bean v. State
answers but also the words of the questions and, additionally, all of the circumstances in
which the colloquy takes place. The answer not the death penalty, no is not enough to
disqualify unless somewhere it is made clear to the prospective juror that it is entirely in his
discretion what is a proper case to impose it. People v. Varnum, 450 P.2d 553, 561-62 (Cal.
1969). In re Tahl, 460 P.2d 449 (Cal. 1969); Sims v. Eyman, 405 F.2d 439 (9th Cir. 1969);
Bell v. Patterson, 402 F.2d 394 (10th Cir. 1968). The supreme court has already remanded
cases because of prejudicial jury selection violative of Witherspoon. Boulden v. Holman,
supra; Spence v. North Carolina, 392 U.S. 649, on remand, 164 S.E.2d 593 (N.C. 1968).
[Headnotes 12, 13]
5. The thesis of Witherspoon is whether the totality of the trial court's treatment of the
subject operated to deprive the defendant of being tried by a jury of representative quality.
The jury must constitute a segment of the community within the concept that a jury shall be
drawn from a cross-section of the community. State v. Mathis, 245 A.2d 20 (N.J. 1968). The
defendant is entitled to a jury that is not a hanging jury and the state is entitled to a jury
capable of imposing the death penalty.
6. Whatever the arguments may be against capital punishment, both on moral grounds and
in terms of accomplishing the purposes of punishmentand pro and con they are forceful
either waythe death penalty has been employed throughout our history and is still the law
and still may be imposed by a jury. Therefore, as stated by Justice Stanley Mosk in his
concurring opinion in Anderson, personal conviction for or against the death penalty does not
come in for consideration in this judicial determination. See also State v. Atkinson, supra.
[Headnotes 14, 15]
We are compelled to apply Witherspoon to each case. It must appear from the record that
the prospective juror is unable to return a death sentence no matter what may be the facts of
the case. Segura v. Patterson, 402 F.2d 249 (10th Cir. 1968). Whenever the vent of a juror is
for or against capital punishment he is not disqualified if he is still able to entertain the issue
of guilt or innocence on the basis of the evidence before him. Whenever a prospective juror
answers that he has a religious conviction or personal scruple or opinion concerning capital
punishment which would render him unable to return a verdict carrying a death penalty he
must be questioned further on the nature of his beliefs and then be confronted with the
question whether his views are so firm or fixed that he is unable to return the death
penalty under any case.
86 Nev. 80, 88 (1970) Bean v. State
question whether his views are so firm or fixed that he is unable to return the death penalty
under any case. If he then says he is unable to do so he may be excused for cause. So also
must a juror who is so firmly of the view that a murderer should die. State v. Mathis, supra;
State v. Forcella, 245 A.2d 181 (N.J. 1968); State v. Pruett, 248 N.E.2d 605 (Ohio 1969); cf.
State v. Wigglesworth, 248 N.E.2d 607 (Ohio 1969); People v. Speck, 242 N.E.2d 208 (Ill.
1968); People v. Moore, 246 N.E.2d 299 (Ill. 1969).
[Headnote 16]
7. So long as one or more jurors were wrongfully excused the penalty feature of the trial is
destroyed. People v. Vaughn, supra; In re Arguello, supra; cf. Bell v. Patterson, supra, at
398-399; People v. Washington, 458 P.2d 479 (Cal. 1969); People v. O'Brien, 456 P.2d 969,
974 (Cal. 1969); Whisman v. State, 164 S.E.2d 719 (Ga. 1968).
8. The comments of Collins, C. J., and Batjer, J., are unsupported by any court that has
passed upon a case arising under the Witherspoon decision. They make no reference to
citations of authorities even in face of the long list already in existence. Instead, those cases
affirm that the interpretation of Witherspoon is as we have stated it, to wit, that the record
must show a searching examination of the jurors in order to establish that their objections to
the death penalty would not automatically disqualify them. See for example the latest
reiteration of this principle in People v. Brawley, 461 P.2d 361, 373 (Cal. 1969).
The first language of the Witherspoon case which Chief Justice Collins quotes sets the
stage for what that case does not apply, to wit, that it does not decide the validity of the death
penalty as a challenge for cause in the first instance. The case decides only that prospective
jurors in a capital case who voice an opinion about the death penalty must be further
examined in order to establish whether or not they can vote on the issue of guilt and
innocence and penalty on the evidence and disregard their fixed bias.
In reference to the comments of Batjer, J., exclusive of those in which he approves of the
Collins' analysis, he further stresses that Bean's counsel, Anderson, stipulated to the
exclusion of certain jurors. Attempting to justify an affirmance on that ground is a long
stretch. The exclusion of the jurors or any one of them was not on an ad hoc (for this case
only) basis, but was pursuant to a policy or practice long existent in Nevada by which both
the state and the defense erroneously assumed that a belief concerning the death penalty
was an automatic ground for disqualification for cause.
86 Nev. 80, 89 (1970) Bean v. State
assumed that a belief concerning the death penalty was an automatic ground for
disqualification for cause. Anderson's offer to stipulate reflects that pattern. It was obviously
not given in the same sense as waivers or stipulations are ordinarily given, but was like the
no questions or failure to object as in Boulden v. Holman, supra. There the typical colloquy
was:
The Court: Do you have a fixed opinion against capital punishment?
Mr. Seibert: Yes, sir.
Prosecuting Attorney: We challenge.
The Court: Defendant?
Defense: No questions.
The Court: Stand aside. You are excused.
Other examinations of the same nature are therein recited on pages 482 and 483. The court
repeated from Witherspoon that unless a venireman states unambiguously that he would
automatically vote against the imposition of capital punishment no matter what the trial
might reveal it cannot be assumed that that was his position. The record must show that the
juror would vote against the penalty of death regardless of the facts and circumstances that
might emerge in the course of the proceedings. Most of the cases previously cited recite the
typical questions which are parallel to those cited by Chief Justice Collins and Justice Batjer.
For instance, in Anderson one prospective juror was asked, Do you know of any reason you
couldn't be a fair and impartial juror in this case? Reply: Yes, sir, I do. I don't believe in
capital punishment. Anderson, supra, at 120. The cases do not specify any importance to
whether or not there was or was not an objection when a juror was excused because of a death
penalty bias. The exclusion was in all cases held to be wrong under Witherspoon
requirements.
As to the contention of Justice Batjer that Anderson failed to object and waived any right
to object, see In re Hill, 458 P.2d 449, 464 (Cal. 1969). Since petitioners were tried before
Witherspoon, failure to object to the exclusion of the prospective jurors in question does not
bar petitioners from now claiming error. . . . We cannot assume that counsel would have
refused to undertake further examination of veniremen had Witherspoon been decided prior to
trial. Their failure to do so at this pre-Witherspoon trial therefore does nor constitute a waiver
of the right to raise error in the exclusion of prospective jurors in this collateral attack.
9. To any extent that our previous cases of State v. Williams, 50 Nev. 271, 257 P. 619
(1927); Spillers v. State, 84 Nev. 23, 436 P.2d 18 (1968); Howard v. State, 84 Nev. 599, 446
P.2d 163 (1968), are inconsistent with our ruling in this case, they are overruled.
86 Nev. 80, 90 (1970) Bean v. State
case, they are overruled. However, Howard declared only the incompatibility of our statute
with the Illinois statute in reference to the challenge for cause founded on the death penalty.
3
B.

____________________

3
The particular statutes relating to the challenge for cause when the death penalty is involved in the states
from which our cited cases derive are:
Ala. Code, Title 30, 57. On the trial for any offense which may be punished capitally, or by imprisonment in
the penitentiary, it is a good cause of challenge by the state that the person has a fixed opinion against capital or
penitentiary punishments, or thinks that a conviction should not be had on circumstantial evidence; which cause
of challenge may be proved by the oath of the person, or by other evidence.
Ariz. Rule Crim. Proc. 219(a). Any party may challenge an individual juror upon the ground that the juror:
. . . .
(14) If the offense charged is punishable by death, entertains conscientious opinions which would preclude his
finding the defendant guilty, in which case he shall neither be permitted nor compelled to serve as a juror.
Cal. Pen. Code Ann. 1074(8) is exactly the same as Nevada except it starts If the offense charged be. . . .
Colo. Rev. Stat. Ann. 78-5-3. No person summoned as a juror in a criminal case shall be disqualified to
serve as such by reason of a previously formed or expressed opinion with reference to the guilt or innocence of
the accused; provided, the court shall be satisfied, from the examination of the juror or from other evidence, that
he will render an impartial verdict, according to the law and the evidence submitted to the jury in the trial of
such cause.
N.J. Rev. Stat. 2A:73-4. Upon the trial of any cause, civil or criminal, all parties may, within the discretion
of the court, question any person summoned as a juror, after his name is drawn from the box and before he is
sworn as a juror, and without the interposition of any challenge, to elicit information for the purpose of
determining whether or not to interpose a peremptory challenge, and of disclosing whether or not there is cause
for challenge. In all cases in which a death penalty may be imposed, the examination as to competency shall be
under oath, but in other cases it shall be made without putting the juror under oath. Such questions shall be
permitted for the purpose of disclosing whether or not the juror is qualified, impartial and without interest in the
result of the action. The questioning shall be conducted under the supervision and control of the trial judge and
in open court.
N.C. Gen. Stat. 9-14 . . . . The presiding judge shall decide all questions as to the competency of jurors.
9-15(a) The court, or any party to an action, civil or criminal, shall be allowed, in selecting the jury, to make
inquiry as to the fitness and competency of any person to serve as a juror, without having such inquiry treated as
a challenge of such person, and it shall not be considered by the court that any person is challenged as a juror
until the party shall formally state that such person is so challenged.
Ohio Rev. Code Ann. 2945.25. A person called as a juror on an indictment may be challenged for the
following causes:
. . . .
(C) In the trial of a capital offense, that his opinion preclude him from finding the accused guilty of an offense
punishable with death; . . .
86 Nev. 80, 91 (1970) Bean v. State
B. THAT PRETRIAL PUBLICITY DENIED BEAN A FAIR TRIAL.
[Headnotes 17, 18]
The crime here was of a sensational nature and it was inevitable that some of the publicity
would be of the same character. The district attorney stated to the court that this was the most
horrible murder in the history of Nevada. The groundswell of publicity surrounding it was
therefore not unusual. Sonja was a comely young woman originally from England, an
Olympic skier and well known on the ski hills of this area. The news value of her terrible
death attracted national and international news representatives.
The crime and its trial occurred before Sheppard v. Maxwell, 384 U.S. 333 (1966). After
comparing news articles and pictures preceding Bean and those of Sheppard we are not
compelled to conclude that the publicity here was prejudicialsufficient at any rate to cause
a new trial on that ground. Extensive news coverage before a suspect is arrested can be
helpful to alert the community so that citizens may protect themselves and their children from
a killer at large and be of assistance to the police in keeping a watchful eye for suspicious
characters.
Eventually the act of Bean pawning Sonja's camera led to his arrest. His footprint at the
scene helped to identify him. Almost immediately he admitted the crime in all of its gory
details. Both before and after he was caught the district attorney and police chief conducted
daily and orderly news conferences in a commendable manner so that rumors did not run wild
and so that the officers were not prevented from performing their duties.
In the Sheppard case the Cleveland newspapers published cartoons and pictures, most of
which were intended to inflame the community against the husband who was known but not
yet even charged with the murder of his wife. (See Sheppard v. Maxwell, 231 F.Supp. 37
(S.D. Ohio 1964); Sheppard v. Maxwell, 346 F.2d 707, Exhibits, pp. 758-767 (6th Cir.
1965).) Nothing like that took place here. In Sheppard the newspapers clearly attempted to
influence the law enforcement and prosecution authorities. So, too, in Silverthorne v. United
States, 400 F.2d 627 (9th Cir. 1968), where the United States government officials
participated in the dissemination of prejudicial news items about the alleged misdeeds of the
bank official who was on trial.
10. Bean points to a televised reenactment of his crime as error, but that portrayal was not
such as in Estes v. Texas, 381 U.S. 532 (1965), where television cameras were allowed to
operate in the courtroom during the trial nor as in Rideau v. Louisiana, 373 U.S. 723
{1963), where the defendant actually confessing his crime was televised or a published
street poll on guilt or innocence occurred as in Irwin v.
86 Nev. 80, 92 (1970) Bean v. State
operate in the courtroom during the trial nor as in Rideau v. Louisiana, 373 U.S. 723 (1963),
where the defendant actually confessing his crime was televised or a published street poll on
guilt or innocence occurred as in Irwin v. Dowd, 366 U.S. 717 (1961). Naturally, we have no
way of knowing what effect news media reporting has on jurors, but the samples just given
are clearly distinguishable from Bean's reenactment for police authorities of the killing of
Sonja.
11. Nothing was presented by the news media that did not later appear in evidence at the
trial. It should be remembered that the fact of who committed the murder was not in doubt or
at issue. The issue was whether or not Bean was insane when he committed it. Publicity can
affect the penalty in a capital case just as much as it can direct the course of guilt or
innocence, but at no time nor in any instance did the representatives of the news attempt to
editorially steer the course of the trial or its result. Cf. People v. Speck, supra.
Trials cannot be conducted in a vacuum. They never were intended to be. The requirement
is that they be fair, not perfect. The massive pressures of Sheppard were not present in this
case. Williams v. Dutton, 400 F.2d 797, 801 (5th Cir. 1968).
C. INADEQUACY OF COUNSEL.
12. We have already indicated that Bean's defense counsel, Harry Anderson, was
competent in the defense of his client at the trial. Bean v. State, supra. Now counsel for Bean
point to Anderson's inexperience in criminal matters, his illness during the trial (he died
shortly after the trial was over) and that his defense of Bean did not meet the standards of the
community. Several attorneys testified as to how they would have handled Bean's defense and
their testimony, of course, was contrary to what Anderson did or did not do.
[Headnote 19]
Trial lawyers will always disagree on how a case should have been tried. Second guessing
is as characteristic of lawsuits as Monday morning quarterbacking is of football games. But
before a denial of due process arises on the ground of inadequate counsel the trial must be a
sham, a farce or a pretense. People v. Reeves, 415 P.2d 35 (Cal. 1966); Hollander v. State, 82
Nev. 345, 418 P.2d 802 (1966); State v. Jukich, 49 Nev. 217, 242 P. 590 (1926); Ex parte
Kramer, 61 Nev. 174, 122 P.2d 862 (1942); Staff v. Arellano, 68 Nev. 134, 227 P.2d 963
{1951); People v. Robillard, 35S P.2d 295 {Cal. 1960); People v. Rideaux, 393 P.2d 703
{Cal.
86 Nev. 80, 93 (1970) Bean v. State
963 (1951); People v. Robillard, 358 P.2d 295 (Cal. 1960); People v. Rideaux, 393 P.2d 703
(Cal. 1964); In re Beaty, 414 P.2d 817 (Cal. 1966); People v. Ibarra, 386 P.2d 487 (Cal.
1963); People v. Brooks, 410 P.2d 383 (Cal. 1966); Torres v. People, 411 P.2d 10 (Colo.
1966); Melton v. People, 401 P.2d 605 (Colo. 1965); State v. Calhoun, 399 P.2d 886 (Kan.
1965); Hicks v. Hand, 369 P.2d 250 (Kan. 1962); Loftis v. State, 417 P.2d 374 (Ariz. 1966);
Wright v. Craven, 412 F.2d 915 (9th Cir. 1969). Anderson was a respected general
practitioner of law, so we must infer, since he is no longer alive to testify, that his tactic was
to claim Bean's insanity on the premise that a jury might agree that nobody in his right mind
would commit the deeds that Bean did. Even with the right and wrong test of the M'Naghten
Rule Bean's event was so bizarre that it challenged sanity. Perhaps Anderson reasoned that
the best locale to reach that result was that in which the crime took place. Even though the
jury did not agree with him it was a logical tactic and we do not find that Bean's trial was a
sham, a farce, or a pretense.
[Headnotes 20, 21]
13. Petitioner asserts other grounds of error but all other matters where either reviewed in
the first appeal or they are without merit. For instance, he says that capital punishment is
unconstitutional because it is a cruel and unusual punishment and that furthermore our statute
is constitutionally impermissible because it has no prescribed standards to guide the jury.
Capital punishment has been long established as a lawful punishment and will not now be
declared unlawful by us nor will we declare our legislative provision infirm for lack of a
prescribed standard for a jury to follow. Segura v. Patterson, supra, at 254; Modesto v.
Nelson, 296 F.Supp. 1375, 1376 (N.D. Cal. 1969); In re Anderson, supra.
4

D. PENALTY.
[Headnote 22]
14. Our conclusion is that the claims of error that pretrial publicity and inadequate counsel
destroyed the fairness of the trial are denied. However, the jury selection was prejudicially
defective under the Witherspoon requirements. A new trial is not compelled, only the penalty
is invalid. The finding that Bean is guilty will remain, but he is entitled to a new hearing on
the question of penalty, this time before a jury drawn according to the Witherspoon
requirements.
____________________

4
Maxwell v. Bishop, presently before the U.S. Supreme Court, may decide at least one of those questions.
That court has informed us that Maxwell will be decided during the current term.
86 Nev. 80, 94 (1970) Bean v. State
Bean is guilty will remain, but he is entitled to a new hearing on the question of penalty, this
time before a jury drawn according to the Witherspoon requirements. This can be done
without the authority of a statute such as California, New York, Texas and Pennsylvania
have. People v. Friend, 306 P.2d 463, 477 (Cal. 1957); People v. Purvis, 346 P.2d 22, 31
(Cal. 1959); Alexander v. State, 168 S.E.2d 315 (Ga. 1969). Witherspoon reversed as to
penalty only, not the conviction of guilt.
The conviction will stand. The penalty of death is set aside and that phase is remanded to
the trial court for a new hearing before a jury drawn in accordance with Witherspoon for a
redetermination of punishment.
5

Thompson, J., concurs.
Mowbray, J., concurring:
I concur in the opinion of the majority under compulsion of the decision of the United
States Supreme Court in the case of Witherspoon v. Illinois, 391 U.S. 510 (1968).
Collins, C. J., concurring in part, dissenting in part:
I disagree with the majority opinion of the court holding that the jury selection violates the
standard established in Witherspoon v. Illinois, 391 U.S. 510 (1968). I concur in the
remainder of the opinion.
As I read Witherspoon, it stands for the constitutional rule that there may not be wholesale
elimination of prospective jurors for cause in a capital case who have voiced general
objections to the death penalty or expressed conscientious or religious scruples against its
infliction. That did not happen in this case, and in my judgment gives no cause for
modification of the penalty.
The record before us does not reveal exactly how many veniremen were initially
summoned for jury selection in this case. The record does reveal, however, that 80 persons
were examined as prospective jurors. It is reasonable to assume that substantially more than
80 persons were called because after the jurors and alternates were selected and sworn the
judge excused the remaining persons summoned on the venire.
A recapitulation of what happened to those 80 veniremen examined by counsel is as
follows: Veniremen examined S0
Veniremen examined S0
____________________

5
Suggested reading for guidelines in the conduct of the penalty trial are: 39 N.Y.U.L. Rev. 50 (1964); 52
Calif.L.Rev. 386 (1964); 21 Stan.L.Rev. 1297, 1311-15 (1969).
86 Nev. 80, 95 (1970) Bean v. State
Veniremen examined...................................................................................... 80
Excused by State on peremptory challenges........ 7
Excused by Defense on peremptory challenges..5
Excused for cause because of a fixed opinion of
guilt........................................................ 39
Excused by stipulation for reasons other than
having a firm or fixed opinion of guilt....6
Excused because of objection to capital
punishment............................................11
Sworn as Jurors.................................................. 12
....................................................
__

Total....................................................................................80
Without further analysis of the 11 veniremen who were excused because of their opinions
about the death penalty, it becomes immediately apparent there was no hanging jury, nor
did the State of Nevada stack the deck against appellant in the manner ruled
unconstitutional in Witherspoon. Id. at p. 523.
If one examines in detail the voir dire of the 11 persons excused because of their belief
about the death penalty, it becomes even more apparent there was no violation of appellant's
rights under the Witherspoon decision. Only two of the 11 jurors excused might be said to
have violated the proscription of Witherspoon. They are veniremen Minedew and Bilbrew.
The other nine, as I will demonstrate later, were properly excused under the Witherspoon
mandate. This is a radically different situation than Witherspoon where, as described by
United States Supreme Court, . . . the trial judge said early in the voir dire, Let's get these
conscientious objectors out of the way without wasting any time on them.' In rapid
succession, 47 veniremen were successfully challenged for cause on the basis of their
attitudes toward the death penalty.
In Witherspoon, the high court said, The issue before us is a narrow one. It does not
involve the right of the prosecution to challenge for cause those prospective jurors who state
that their reservations about capital punishment would prevent them from making an
impartial decision as to the defendant's guilt. Nor does it involve the State's assertion of a
right to exclude from the jury in a capital case those who say that they could never vote to
impose the death penalty or that they would refuse even to consider its imposition in the case
before them. Id at p. 513.
86 Nev. 80, 96 (1970) Bean v. State
In the court's own words, the rule of Witherspoon is, Specifically, we hold that a sentence
of death cannot be carried out if the jury that imposed or recommended it was chosen by
excluding veniremen for cause simply because they voiced general objections to the death
penalty or expressed convictions or religious scruples against its infliction. Id. at pp. 521,
522.
With that test in mind, limited by the high court as it was, an examination of the reasons
why 11 veniremen were excluded from the jury in this case because of objection to the death
penalty reveals as follows:
1. Mary Elizabeth Brown testified that she could not render a decision which would call
for the death penalty.
2. Bessie L. Severns testified she was afraid she could not render a penalty calling for
death.
3. Mary E. Adams testified she felt that if convinced that that [death penalty] was a proper
verdict in this case, she would be prevented from returning such a verdict.
4. Vincent B. Johnson testified he didn't think we have the right to vote to take his
[appellant's life] just because he may have taken somebody else's life.
5. Murial Vernon testified she didn't believe, in an appropriate case, she would be able to
render a verdict imposing the death penalty.
6. Dee A. Edwards testified she didn't believe in capital punishment. She believes every
person should have a chance to reform.
7. John H. Dressler testified he had a conscientious scruple against the death penalty and
against imposing the death penalty.
8. Dean R. Wilson testified he felt he could not vote for a verdict which would call for the
death penalty.
9. Joseph Ferro testified he felt he could not impose the death penalty in a proper case.
It is arguable under Witherspoon that none of the foregoing nine persons were improperly
excused as jurors.
The two who can be said to have been improperly excused pursuant to Witherspoon are:
1. Mickey Minedew testified, I could return a verdict of guilty if the facts in this case and
if the evidence presented on the part of the State was sufficient to satisfy my mind the
defendant was guilty.
2. Rosie L. Bilbrew testified, I am not for capital punishment.
The high court said in Witherspoon, . . . A jury that must choose between life
imprisonment and capital punishment can do little moreand must do nothing lessthan
express the conscience of the community on the ultimate question of life or death." Id. at
p.
86 Nev. 80, 97 (1970) Bean v. State
do little moreand must do nothing lessthan express the conscience of the community on
the ultimate question of life or death. Id. at p. 519. That court condemned the actions of the
Illinois court in these words, But when it swept from the jury all who expressed
conscientious or religious scruples against capital punishment and all who opposed it in
principle, the State crossed the line of neutrality. Id. at p. 520.
In examining the voir dire examination of the 12 persons who were selected and sworn as
trial jurors in this case, it cannot be said that all prospective jurors who expressed
conscientious or religious scruples against capital punishment and all who opposed it in
principle were swept from the jury.
Juror No. 5, Linda L. Ayala, testified that she did not have the feeling that because a
person may have killed another person he himself should be killed, and that she did not
necessarily believe in the philosophy of an eye for an eye or a tooth for a tooth, but that the
circumstances of the case would determine her agreement or disagreement with that
philosophy.
Juror No. 7, Janice A. Morris, in response to a question whether she had any conscientious
scruples against imposition of the death penalty, answered, Well, this is a question I have
been battling since I came into the courtroom. It is not something that I really knew, whether I
did or didn't. I think, if I felt that I was convinced that this was the penalty, that I could admit
it.
Several other jurors sworn to try the case testified that while they did not have religious or
conscientious scruples against the death penalty nor opposed it in principle, they would not
inflict it unless in their judgment the facts and circumstances of the case justified it. There can
be no doubt in anyone's mind from the evidence in this case that the circumstances of the
killing and mutilation of Sonja McCaskie justified the death penalty.
The United States Supreme Court said in Witherspoon, the jury in a capital case must
express the conscience of the community on the ultimate question of life or death. Id. at p.
519. And that, . . . in a nation less than half of whose people believe in the death penalty, a
jury composed exclusively of such people cannot speak for the community. Culled of all who
harbor doubts about the wisdom of capital punishmentall who would be reluctant to
pronounce the extreme penaltysuch a jury can speak only for a distinct and dwindling
minority. Id. at p. 520.
That is not so in Nevada. The death penalty is still authorized by our law, and as recently
as the 1969 session of the Nevada State Legislature efforts to outlaw capital punishment were
unsuccessful.
86 Nev. 80, 98 (1970) Bean v. State
were unsuccessful. The majority of Nevada's people, and the conscience of our communities,
permit execution in a proper case.
If Witherspoon stands for the rule that excuse of but one prospective juror for cause simply
because he voiced general objection to the death penalty or expressed conscientious or
religious scruples against its infliction constitutionally voids the death penalty, then I am
wrong in my interpretation of it. I can find no such case from the United States Supreme
Court.
Considering this case was tried nearly five full years before the United States Supreme
Court decided Witherspoon, remarkable compliance was unknowingly and unwittingly had
with that mandate. It simply cannot be said in this case that a Nevada court permitted a
hanging jury or stacked the deck against appellant.
Batjer, J., dissenting in part and concurring in part:
I join with Chief Justice Collins in his dissent, emphasizing the following points: It was
forthrightly stated in Witherspoon v. Illinois, 391 U.S. 510 (1968), that the issue in that case
was narrow, and I see the issue in this case in the same light. In Witherspoon, the High Court
placed its stamp of approval on a state's right to exclude from the jury, in a capital case, those
who say that they could never vote to impose the death penalty or that they would refuse even
to consider its imposition in the case before them.
For a prospective juror to come within these categories of exclusion it is not necessary that
he flatly state, I will never vote to impose the death penalty, or I refuse even to consider its
imposition. It is sufficient if those attitudes can be inferred from his voir dire responses.
In this case, while the examination was not as extensive as might be desirable, the message
was evident. In the answers from all but three of the eleven jurors excused under NRS
175.105(9), the message was clear that they would not vote to impose the death penalty.
Witherspoon does not require from the prospective juror a law-defying, rebellious attitude,
indicating that he would never vote for the death penalty, but it can come from his
conscience, even though that case indicates that merely having conscientious scruples
against inflicting it is not sufficient for exclusion. Apparently eligibility for exclusion is a
matter of degree. If a prospective juror has a hard core objection to the death penalty, he is
excusable, but if his attitude is just a queasy, conscientious scruple, he must serve.
As I read the responses from all but three of the eleven excused veniremen it is indicated
to me that they could not or would not impose the death penalty and their discharge was
proper.
86 Nev. 80, 99 (1970) Bean v. State
excused veniremen it is indicated to me that they could not or would not impose the death
penalty and their discharge was proper.
Now, based on the cold record and without having the opportunity to observe their
physical demeanor and reaction, I will proceed to examine the responses of veniremen
Edwards, Bilbrew and Minedew:
1. Dee A. Edwards not only stated that she didn't believe in the death penalty and believed
that every person should have a chance to reform, but she also stated that she could not be a
fair and impartial juror. The State challenged her under both NRS 175.105(9) and
[151.100(2) sic] 175.100(2).
1
Even if she might not have been disqualified under NRS
275.105(9) and Witherspoon she was properly challenged and excused under NRS 175.100(2)
for actual bias.
2. Rosie L. Bilbrew stated that she worked for a policeman, and that she had discussed the
case at some length with his wife and that she was, not for capital punishment. Whereupon,
counsel for the defense stipulated that she be excused.
While defense counsel indicated that his offer to stipulate was prompted by NRS
175.105(9), it is just as easy to believe that trial strategy prompted him to have her excused
because of her employer-employee relationship. With this strategy he saved a peremptory
challenge.
3. Mickie Minedew's responses were somewhat less than clear. At first she indicated that
she was not sure about her position with reference to the death penalty, then in substance
she stated that because of her conscientious thoughts on the general subject of capital
punishment she would be precluded from returning the death penalty. Later she specifically
denied that she would not return the death penalty and she stated that she could return a guilty
verdict if it was supported by the evidence.
It appears, that under the Witherspoon mandate, Mickie Minedew may have been
improperly excused, however, I agree with the Chief Justice that one juror improperly
excused out of the eighty that were examined is not crossing the line of neutrality and the
Bean jury was not a tribunal organized to return a verdict of death.
Based solely on the responses of the nine prospective jurors who were excused, excluding
Mickie Minedew and Rosie L.
____________________

1
NRS 175.100(2) reads: For the existence of a state of mind on the part of the juror which leads to a just
inference, in reference to the case, that he will not act with entire impartiality, which is known in this Title as
actual bias.
86 Nev. 80, 100 (1970) Bean v. State
Bilbrew, I believe that the decision of any court which would have required them to sit as
jurors in this case would have forced this case to be tried by a biased, partial and prejudiced
jury. The concept of an impartial jury as described by Justice Story in United States v.
Cornell, 25 Fed. Cas. 650 (1820), would never have been achieved: To insist on a juror's
sitting in a cause when he acknowledges himself to be under influences, no matter whether
they arise from interest, from prejudices, or from religious opinions, which will prevent him
from giving a true verdict according to law and evidence, would be to subvert the objections
of a trial by jury, and to bring into disgrace and contempt, the proceedings of courts of justice.
We do not sit here to procure the verdicts of partial and prejudiced men; but of men, honest
and indifferent in causes. This is the administration of justice [which is required]. . . .
I turn now to a point which I believe further compels us to affirm the penalty in this case.
With the exception of veniremen Minedew and Edwards, everyone of the eleven
prospective jurors who stated that they would not assess the death penalty or had voiced
general objection to conscientious or religious scruples against inflicting the death penalty
were excused upon the stipulation of defense counsel and the district attorney. In almost
every instance defense counsel offered the stipulation before the district attorney could ask
any questions of the prospective juror. These stipulations were made in open court, during
trial, in the presence of the appellant and without any objection being voiced by him.
Stipulations are of an inestimable value in the administration of justice (Hayes v. State,
252 A.2d 431 (N.H. 1969)), and valid stipulations are controlling and conclusive and both
trial and appellate courts are bound to enforce them. Burstein v. United States, 232 F.2d 19
(1956); Foote v. Maryland Casualty Company, 186 A.2d 255 (Pa. 1962); Pierson v. Allen,
409 S.W.2d 127 (Mo. 1966); Bearman v. Camatsos, 385 S.W.2d 91 (Tenn. 1964).
Stipulations made by an accused or by his counsel in his presence during trial are as
binding and enforceable thereafter as are stipulations made by parties in civil actions.
Brookhart v. Haskins, 205 N.E.2d 911 (Ohio 1965). In Scott v. Justice's Court, 84 Nev. 9,
435 P.2d 747 (1968), the statute there required that an amended complaint be filed within one
day, however, the attorney for the accused stipulated that the district attorney could be
permitted to file the amended complaint within 30 days. We approved the stipulation and
relied on Garaventa v. Gardella, 63 Nev. 304
86 Nev. 80, 101 (1970) Bean v. State
Garaventa v. Gardella, 63 Nev. 304, 169 P.2d 540 (1946), where it was held to be error when
the trial judge did not honor the stipulation of the parties waiving a rule of evidence.
Constitutionally protected rights may be waived by an accused and likewise such a waiver
can be accomplished upon the stipulation of counsel when it is made in the presence of the
accused who makes no objection to it. People v. Cohen, 210 P.2d 911 (Cal.App. 1949).
Pointer v. Texas, 380 U.S. 400 (1965), held that the right granted to an accused by the
Sixth Amendment to confront the witness against him, which includes the right of
cross-examination, is a fundamental right essential to a fair trial and is made obligatory on the
states by the Fourteenth Amendment. In People v. Andrews, 44 Cal.Rptr. 94 (1965), decided
shortly after Pointer v. Texas, supra, that court held that the stipulation of the accused's
attorney, made in open court, in the presence of the accused and without his objection, that
the case could be tried on the transcript of testimony taken at the preliminary hearing, was a
waiver by the accused of his constitutionally guaranteed right to be confronted by witnesses at
trial.
Here the attorney for the appellant offered the stipulations without any solicitation from
the district attorney. In some, but not every instance, he premised his offer by the statement:
We will anticipate the challenge of counsel.
Every person who stands accused of a felony has the right to counsel (Gideon v.
Wainwright, 372 U.S. 335), but unless counsel's power to control the strategy and tactics of
the trial are maintained and protected his efforts will become ineffective.
A stipulation excusing a prospective juror is not the same category as an accused's failure
to object in the trial court to the exclusion of a venireman. Boulden v. Holman, 394 U.S. 478
(1969). I believe that we must honor the stipulations of defense counsel as being a part of his
trial strategy and tactics and affirm the penalty in this case.
In all other respects, I concur with the majority opinion and would therefore affirm the
judgment in its entirety.
____________
86 Nev. 102, 102 (1970) Ridley v. State
FREDDIE LEE RIDLEY, Appellant, v. THE
No. 5923
February 3, 1970 464 P.2d 500
Appeal from conviction of forgery on ground that advance photo display to a witness
tainted her identification testimony. Eighth Judicial District Court, Clark County; Clarence
Sundean, Judge.
The Supreme Court, Zenoff, J., held that advance photo display to bank teller while
defendant was in custody and in absence of counsel did not taint her in-court identification
testimony which was positive and unequivocal and which was based on her eyewitness
observation of defendant's presentation of forged check to her.
Affirmed.
James D. Santini, Public Defender, and George D. Frame, Deputy Public Defender, Clark
Charles E. Thompson, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Advance photo display to bank teller while defendant was in custody and in absence of counsel did not
taint her in-court identification testimony which was positive and unequivocal and which was based on her
eyewitness observation of defendant's presentation of forged check to her. NRS 205.090.
2. Criminal Law.
The length of time that an observer is held to have seen the persons or things observed is not always the
criterion for identification; one good look can be sufficient for competent eyewitness testimony.
OPINION
Freddie Lee Ridley was convicted by a jury of violation of NRS 205.090, the crime of
forgery.
At 11:30 a.m., April 1, 1968, three men drove to the drive-in window of the
Sahara-Rancho Branch of the Nevada Bank of Commerce in Las Vegas. The lone occupant in
the back seat presented the checking account passbook of James L.
Traver to the teller, Phyllis Enns, and requested that she withdraw $200.00 for him. He
explained that he did not have a check blank so she filled out a bank check for him and
presented it to him for his signature. After he signed the check Mrs. Enns, suspicious, referred
the check to the Operations Officer, Mr. John Burdell, who was standing near her and
watching the proceedings. When the signature on the check did not match the records of
James Traver's signature Burdell noted the auto's license number and requested some
identification from the person who signed the check who replied that he had none with him.
Surreptitiously Burdell called the police giving them a description of the car with the license
number and of the three occupants. In the meantime the three drove off, but within minutes
were stopped by policemen who had received a radio report of the forgery. The occupants of
the car and the automobile matched the descriptions given them and they were arrested. Later
in the afternoon, while Ridley was in custody, the police brought three photos to show Mrs.
Enns. She identified all threeone being the driver, one being the passenger in the front seat
and the third of Ridley as the man in the rear seat.
At the trial Ridley testified that he was bowling and playing pool in the vicinity of the
bank and that two of his friends gave him a ride on his way home. He denied any complicity
in the forgery. However, in addition to the testimony of Mrs. Enns and Burdell, the police
officers were positive in their identification of Ridley as the man in the rear seat of the
automobile and who answered to the description given them, and James Traver testified that
his passbook had been missing for several days before the attempted forgery had occurred and
that he had so notified the bank.
[Headnotes 1, 2]
The jury found Ridley guilty of forgery. He appeals on the sole ground that the eyewitness
testimony of Mrs. Enns was tainted by the pretrial identification while he was in custody and
without benefit of counsel.
The prosecution concedes that under our decision in Thompson v. State, 85 Nev. 134, 451
P.2d 704 (1969), the photo identification was invalid since it took place while Ridley was in
custody and no counsel was present when the photographs were shown to Mrs. Enns.
Nevertheless her in-court identification was positive and unequivocal. She testified that she
recognized Ridley from her own eyewitness observation even though the entire confrontation
took only a matter of minutes. Were we to discount her testimony, still that of Mr. Burdell
was equally convincing and he had not been shown any pictures at all.
equally convincing and he had not been shown any pictures at all. Burdell was present during
the transaction and it was he who notified the police of the descriptions of the occupants of
the car, the license number and also described the automobile. The length of time that an
observer is held to have seen the persons or things observed is not always the criterion for
identification. One good look can be sufficient for competent eyewitness testimony. Boone v.
State, 85 Nev. 450, 456 P.2d 418 (1969); see also Simmons v. United States, 390 U.S. 377
(1968); McCray v. State, 85 Nev. 597, 460 P.2d 160 (1969); Hampton v. State, 85 Nev. 720,
462 P.2d 760 (1969); Hamlet v. State, 85 Nev. 385, 455 P.2d 915 (1969).
The conviction is affirmed.
____________
86 Nev. 104, 104 (1970) Clark v. Warden
DONALD D. CLARK, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 5961
February 3, 1970 464 P.2d 777
Appeal from judgment of the Sixth Judicial District Court, Humboldt County; Llewellyn
A. Young, Judge.
Habeas corpus proceeding. The district court denied application, and petitioner appealed.
The Supreme Court, Mowbray, J., held that petitioner's claim that he did not knowingly and
intelligently waive his constitutional right to counsel in that he was under mistaken
impression that if he pleaded nolo contendere he would not be sentenced to the Nevada
Prison but returned to California was without evidentiary basis.
Affirmed.
George G. Holden, of Battle Mountain, and Vargas, Bartlett & Dixon, of Reno, for
Appellant.
Harvey Dickerson, Attorney General, and William Macdonald, District Attorney,
Humboldt County, for Respondent.
1. Criminal Law.
Constitutional right to counsel at all critical stages of criminal proceeding may be waived, but waiver
must be clearly shown in record of court proceedings.
2. Habeas Corpus.
Habeas corpus petitioner's claim that he did not knowingly and intelligently waive his constitutional
right to counsel in that he was under mistaken impression that if he pleaded nolo contendere he would
not be sentenced to the Nevada Prison but returned to California was without evidentiary basis.
OPINION
Donald D. Clark has appealed from a denial by the district judge of his application for
habeas corpus on the sole ground that when he entered a plea of nolo contendere to the charge
of ex-felon in possession of a firearm capable of being concealed, a felony, he did not
knowingly and intelligently waive his constitutional right to counsel. We agree with the
ruling of the district judge in denying Clark's application for habeas.
1. Clark was arrested in Winnemucca on November 28, 1968, for a violation of NRS
202.360.
1
He was formally charged with that offense on December 2, 1968, and after he was
advised of his right to counsel and a preliminary examination, he waived both.
On December 4, 1968, Clark appeared in district court and was fully advised of his right to
counsel and that if he did not have funds to secure counsel an attorney would be appointed by
the State to represent him. Clark waived his right to counsel and advised the court that he
wanted to plead nolo contendere. Before the district judge would accept the plea, he
questioned Clark, an ex-felon, at length (1) as to whether he knew the consequences of his
plea and (2) as to the facts surrounding the commission of the offense and his arrest. Only
then would the district judge accept Clark's nolo contendere plea. The district judge advised
Clark of the possible sentence he could receive under the provisions of NRS 202.360 {see
footnote 1, supra) and further advised Clark that the imposition of his sentence could be
continued for a short but reasonable time if Clark desired.
____________________

1
NRS 202.360 reads, in part:
1. The terms pistol,' revolver,' and firearm capable of being concealed upon the person,' as used in this
section, apply to and include all firearms having a barrel less than 12 inches in length.
2. After July 1, 1925, no unnaturalized foreign-born person, and no person who has been convicted of a
felony in the State of Nevada, or in any one of the states of the United States of America, or in any political
subdivision thereof, or of a felony in violation of the laws of the United States of America, shall own or have in
his possession or under his custody or control any pistol, revolver or other firearm capable of being concealed
upon the person.
3. Any person who violates the provisions of this section shall be punished by imprisonment in the state
prison for not less than 1 year nor more than 6 years.
receive under the provisions of NRS 202.360 (see footnote 1, supra) and further advised
Clark that the imposition of his sentence could be continued for a short but reasonable time if
Clark desired. Clark stated that he knew the possible sentence and that he wanted it
pronounced immediately, whereupon the district judge sentenced him to 4 years'
imprisonment in the Nevada State Prison. Three months later, in March 1969, Clark filed this
habeas proceeding in the Sixth Judicial District Court, claiming that he did not knowingly
and intelligently waive his constitutional right to counsel.
[Headnote 1]
Of course, it is axiomatic now that an accused has the right to counsel at all critical stages
of a criminal proceeding. Boykin v. Alabama, 395 U.S. 238 (1969); Garnick v. Miller, 81
Nev. 372, 403 P.2d 850 (1965); Gideon v. Wainwright, 372 U.S. 335 (1963); Hamilton v.
Alabama, 368 U.S. 52 (1961). This constitutional right may be waived, but the waiver must
be clearly shown in the record of the court proceedings. In Bundrant v. Fogliani, 82 Nev. 388,
389, 419 P.2d 293 (1966), we set forth the requirements necessary to constitute a valid
waiver:
This court in Garnick v. Miller [supra], placed rigid requirements on the trial court in
advising a defendant of his rights before entering a plea. It was there stated that in order that
waiver of his right to be represented by counsel be knowingly and intelligently made he must
be informed of the right in such a manner that he comprehends the nature of the charges, the
statutory offenses included within them, the possible defenses to the charges and
circumstances in mitigation thereof, and all other facts essential to a broad understanding of
the whole matter.
[Headnote 2]
Appellant states in his habeas affidavit that he was under the mistaken impression that if
he pleaded nolo contendere he would not be sentenced to the Nevada Prison but returned to
California. He also asserts that the police officers misled him into making the plea. The
record is wholly absent of any indication or inference that such occurred. Rather, the district
judge's pre-plea colloquy with and examination of the defendant, Clark, strongly negates that
such occurred at all.
Affirmed.
____________
86 Nev. 107, 107 (1970) Marschall v. City of Carson
RICHARD MARSCHALL, JO ANNE ARDIS MARSCHALL, ROGER HEATH, a Minor
Through His Guardian ad Litem, Appellants, v. CITY OF CARSON, KENNETH WILSON,
GEORGE WENDELL and WILLIAM FURLONG, Respondents.
No. 5757
February 4, 1970 464 P.2d 494
Appeal from the judgment of the First Judicial District Court, Ormsby County; Frank B.
Gregory, Judge.
Actions arising out of arrest of juvenile subsequently found innocent. The district court
denied recovery and appeals were taken. The Supreme Court, Batjer, J., held that where
police officers had extensively questioned juvenile who implicated another juvenile in
burglary and such other juvenile's participation in burglary was confirmed by first juvenile's
brother, officers had probable cause for arrest of such other juvenile.
Affirmed.
Springer and Newton, of Reno, for Appellants.
Laxalt and Berry, of Carson City, for Respondents.
1. False Imprisonment.
To establish false imprisonment of which false arrest is integral part, it is only necessary to prove that
person be restrained of his liberty under probable imminence of force without any legal cause or
justification therefor.
Where minor was in custody of police from time he was picked up in his home until his release after
being found innocent during questioning at station, prima facie case of false arrest and false imprisonment
was established.
Continued presence of police officer furnished probable imminence of force and arrestee's innocence
established prima facie case showing no legal cause or justification for arrest.
General denial to complaint for false arrest or false imprisonment did not meet requirements for pleading
affirmative defense of justification.
Where complaint in action for false imprisonment alleged that police officers did not have reasonable
grounds to believe that minor plaintiff had committed offense, allowance of motion to amend answer so as
to set up defense of justification was not error. NRCP 1, 15(b).
6. Criminal Law.
When facts relating to existence of probable cause for arrest are not in dispute, it becomes question of
law whether facts constitute probable cause.
7. Arrest.
Where police officers had extensively questioned juvenile who implicated another juvenile in burglary
and such other juvenile's participation in burglary was confirmed by first juvenile's brother, officers had
probable cause for arrest of such other juvenile. NRS 171.124, subd. 1(d).
8. Arrest.
Probable cause for arrest exists if facts and circumstances known to officer at moment of arrest would
warrant prudent man in believing that felony had been committed by person arrested.
9. Infants.
It is preferable that procedure for apprehension of juveniles, as outlined in juvenile court act, be
employed but law enforcement officers cannot be limited to exclusive procedures of that act. NRS
62.010 et seq.
10. Infants.
Law does not prevent police officer from taking a juvenile into custody without warrant when police
officer has probable cause to believe felony has been committed and that juvenile has committed it. NRS
62.040, subd. 1(a)(5), 171.124.
11. Statutes.
If there is an irreconcilable conflict between two statutes, statute which was most recently enacted
controls provisions of earlier enactment.
OPINION
On January 12, 1966, two juveniles, who were brothers, were being questioned in the
presence of their mother by George Wendell, a Carson City police officer, who is one of the
respondents. Kenneth Wilson, another respondent, and at that time a Carson City Patrolman,
brought to Wendell's attention an unsolved burglary at the Meek Lumber Company, which he
had investigated on November 20, 1965.
Upon Wendell's continued questioning the younger juvenile eventually admitted the
lumber company burglary and implicated his brother, and a neighbor boy whose first name
was stated to be Roger.
The older brother at first denied his implication but later admitted his part and acquiesced
in his younger brother's accusation of Roger but later during the inquiry denied Roger's
presence. The questioning of the two brothers continued for several hours and included the
discussion of other unsolved crimes in the Carson City area. At approximately nine o'clock
that evening, Wendell, after consulting with his superior officer, William Furlong,
dispatched Wilson and another police officer by the name of Canfield to the residence of
Richard and Jo Ann Ardis Marschall to pick up Roger Heath and bring him to the police
station for questioning in connection with the lumber company burglary.
that evening, Wendell, after consulting with his superior officer, William Furlong, dispatched
Wilson and another police officer by the name of Canfield to the residence of Richard and Jo
Ann Ardis Marschall to pick up Roger Heath and bring him to the police station for
questioning in connection with the lumber company burglary. (Roger Heath is the son of Mrs.
Marschall.) (At the time this case was tried police officer Canfield was deceased.) When the
patrol unit, driven by Wilson, arrived at the Marschall residence, Canfield went to the door,
which was opened by Roger's sixteen-year-old brother Mike. Canfield asked if he was Roger
Heath and when informed he was his brother, Canfield inquired if their parents were home,
and upon learning that they were not went back to the police car and called the station.
Shortly thereafter Canfield went back to the front door, which was still open, opened the
screen door, stepped with one foot into the Marschall living room and requested Roger to get
his coat and come with him to the police station. Roger complied, and was taken to the
station and questioned by Wendell. Within a few minutes, after a confrontation between
Roger and the other juveniles, the younger brother broke down and admitted that he had
falsely implicated Roger. About that time Mr. and Mrs. Marschall arrived at the police station
in an upset and irate mood and Roger was released to them and they were informed that he
was clear of any criminal activity.
Through his guardian ad litem, Roger Heath brought suit against the respondents for false
arrest, false imprisonment, and assault and battery; Richard and Jo Ann Marschall sued for
damages to their home by reason of forceable breaking and entering and trespass, and Jo Ann
sued for great emotional distress and anguish, which anguish and distress caused her to
become emotionally ill.
The trial court dismissed the cause of action charging assault and battery and directed a
verdict in all the other causes of action except false arrest and false imprisonment which went
to the jury, and upon which a verdict was returned for the respondents.
The appellants complain that the trial court committed reversible error when it granted
respondents' motion to strike appellants' claim of assault and battery and granted respondents'
motion for a directed verdict on the appellants' claim of trespass and emotional and physical
distress. Without moving for a directed verdict, in the trial court, the appellants have
requested this court to order that judgment be entered for them upon all their causes of action
as a matter of law.
The appellants further complain that there was a manifest disregard by the jury of the
instructions of the trial court, that the trial court erred in allowing the respondents to amend
their complaint to include the affirmative defense of justification to false arrest and false
imprisonment, and thereafter received evidence in support of that defense; erred in refusing to
admit the answer to interrogation No. 1; erred in giving certain instructions objected to by the
appellant and in refusing to give others offered by them; erred in excluding the answer to
appellants' interrogatory No. 1; and erred in refusing to allow appellants to introduce Michael
Heath's deposition in rebuttal.
At the close of the appellants' case (plaintiffs below) the respondents (defendants below)
moved pursuant to NRCP 50(a) for a directed verdict on all causes of action in the complaint.
Although the district judge stated he was granting a motion to strike Roger Heath's cause of
action for assault and battery what he really did was grant an involuntary dismissal under
NRCP 41(b) on the ground that upon the facts and the law the plaintiff had failed to prove a
sufficient case for the jury. In this appeal all parties treated the district court judge's action as
an involuntary dismissal. At that same time the district court granted the defendants a directed
verdict on the plaintiffs' cause of action for trespass and for emotional and physical distress,
but denied the defendants' motion for a directed verdict on the cause of action for false arrest
and false imprisonment.
[Headnotes 1-3]
In their briefs, as well as in oral argument to this court, the respondents admitted that
Roger Heath was arrested and imprisoned but claimed that the appellants had failed to meet
their burden of proving either an arrest or imprisonment. We do not agree. To establish false
imprisonment of which false arrest is an integral part, it is only necessary to prove that the
person be restrained of his liberty under the probable imminence of force without any legal
cause or justification therefore. Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963). Here the
appellants established a prima facie case of false arrest and false imprisonment. Roger was in
the custody of police officers from the time he left his home until released to his parents. He
was found to be completely innocent. The continued presence of a police officer certainly
furnished the probable imminence of force and Roger's innocence established a prima facie
case showing no legal cause or justification for the arrest.
At that point in the trial the respondents could avoid liability only by proving justification,
however, as soon as the respondents attempted to offer evidence to show probable cause
for Rogers' arrest the appellants objected and claimed that the respondents were
precluded because they had failed to plead the affirmative defense of justification.
only by proving justification, however, as soon as the respondents attempted to offer evidence
to show probable cause for Rogers' arrest the appellants objected and claimed that the
respondents were precluded because they had failed to plead the affirmative defense of
justification.
[Headnote 4]
The record indicates that the district court found the appellant's objection to the
respondents' attempt to offer evidence of probable cause for Roger's arrest to be timely and
well taken. We agree, because the respondent's general denial to the appellants' complaint
does not meet the requirements for pleading the affirmative defense of justification. Kaufman
v. Brown, 209 P.2d 156 (Cal.App. 1949); Brown v. Meier & Frank Co., 86 P.2d 79 (Ore.
1939); Gill v. Montgomery Ward & Co., 129 N.Y.S.2d 288 (1954).
In Chisholm v. Redfield, 75 Nev. 502, 347 P.2d 523 (1959), we said: Under Rule 8(c)
[NRCP 8(c)], the defense (in that case the statute of frauds) must be specially pleaded, and
under Rule 12(b) and (h), if not so pleaded it is waived. Coray v. Hom, 80 Nev. 39, 389 P.2d
76 (1964).
[Headnote 5]
To meet this dilemma the respondents moved, pursuant to NRCP 15(b), to amend their
pleading to include the affirmative defense of justification, and the district court allowed the
amendment. The appellants contend this was error. We disagree. Even though the
respondents erred in failing to affirmatively plead justification, nevertheless, NRCP 15(b)
authorizes the trial court to allow the pleadings to be amended and requires that the
permission shall be freely given when the presentation of the merits of the action would be
subserved thereby and the objecting party fails to satisfy the court that the admission of such
evidence would prejudice him in maintaining his action or defense on the merits.
It is obvious that the presentation of the merits of the action would be subserved by
allowing the respondents to present evidence of probable cause. Without this evidence only
half a case would have been presented to the trial court, and the fundamental purpose of the
Nevada Rules of Civil Procedure, as stated in NRCP 1,
1
would not have been met. Unless
the respondents were permitted to present their defense there would have been no just
determination of the action.
____________________

1
NRCP 1: These rules govern the procedure in the district courts in all suits of a civil nature whether
cognizable as cases at law or in equity, with the exceptions stated in Rule 81. They shall be construed to secure
the just, speedy and inexpensive determination of every action.
respondents were permitted to present their defense there would have been no just
determination of the action.
The appellants could not successfully contend that they were prejudiced in maintaining
their action on the merits. In their complaint they alleged that: . . . [N]one of said defendant
police officers had reasonable grounds to believe the Plaintiff Roger Heath had committed a
misdemeanor or a felony. The respondents, in their answer, entered a general denial of the
appellants' allegation and the question of probable cause for the arrest and detention of Roger
was put squarely in issue. While the appellants were not required to plead or prove the want
of probable cause, having once raised the issue through their pleadings, they must have been
prepared to meet the issue of probable clause and could not have claimed to have been
surprised or unprepared. For that reason they could not have been prejudiced in maintaining
their action upon the merits.
In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (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.
In Weiler v. Ross, 80 Nev. 380, 395 P.2d 323 (1964), this court held: A motion to amend
may be made orally in open court in the presence of counsel for the adverse party
(Christensson v. Hogdal, 91 U.S.App.D.C. 251, 199 F.2d 402; 3 Moore, Federal Practice, p.
102) and leave to amend should be freely given when justice requires. NRCP 15(a). We
must apply the same rule to NRCP 15(b) where there is even greater liberality of amendment.
Good v. District Court, 71 Nev. 38, 279 P.2d 467 (1955).
We now turn our attention to the question of probable cause for the arrest and detention of
Roger Heath. An examination of the record reveals no dispute of the facts upon which the
defense of probable cause is based.
[Headnote 6]
When the facts relating to the existence of probable cause are not in dispute, it becomes a
question of law whether such facts constitute probable cause. Bonamy v. Zenoff, 77 Nev.
250, 362 P.2d 445 (1961).
[Headnote 7]
We must now decide whether the arrest was valid as a matter of law. We find that Roger
Heath's warrantless arrest was valid under NRS 171.124(1)(d), and is constitutionally sound.
Peters v. New York, 392 U.S. 40, 66 [No. 74] (1967).
[Headnote 8]
In Gordon v. State, 83 Nev. 177, 426 P.2d 424 (1967), we said: The requirements of
reliability and particularity needed to support a warrantless arrest are not less stringent than
when an arrest warrant is obtained. . . . The Fourth Amendment commands that no warrants
for either searches or arrests shall issue except upon probable cause.' That proscription is
enforcible against the States through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S.
643 (1961). Probable cause exists if the facts and circumstances known to the officer at the
moment of the arrest would warrant a prudent man in believing that a felony had been
committed by the person arrested. Beck v. Ohio, 379 U.S. 89 (1964); Henry v. United States,
361 U.S. 98 (1959); Brinegar v. United States, 338 U.S. 160 (1949); Nootenboom v. State, 82
Nev. 329, 418 P.2d 490 (1966). Fairman v. Warden, 83 Nev. 332, 431 P.2d 660 (1967);
Thomas v. Sheriff, 85 Nev. 551, 459 P.2d 219 (1969).
In a footnote to his dissent, in Terry v. Ohio, 392 U.S. 1 (1967), Justice Douglas
summarized the High Court's interpretation and application of probable cause: This Court
has always used the language of probable cause' in determining the constitutionality of an
arrest without a warrant. See, e.g., Carroll v. United States, 267 U.S. 132, 156, 161-162;
Johnson v. United States, 333 U.S. 10, 13-15; McDonald v. United States, 335 U.S. 451,
455-456; Henry v. United States, 361 U.S. 98; Wong Sun v. United States, 371 U.S. 471,
479-484. To give power to the police to seize a person on some grounds different from or less
than probable cause' would be handing them more authority than could be exercised by a
magistrate in issuing a warrant to seize a person. As we stated in Wong Sun v. United States,
371 U.S. 471, with respect to requirements for arrests without warrants: Whether or not the
requirements of reliability and particularity of the information on which an officer may act are
more stringent where an arrest warrant is absent, they surely cannot be less stringent than
where an arrest warrant is obtained.
And we said in Brinegar v. United States, 338 U.S. 160, 176: These long-prevailing
standards [for probable cause] seek to safeguard citizens from rash and unreasonable
interferences with privacy and from unfounded charges of crime. They also seek to give fair
leeway for enforcing the law in the community's protection. Because many situations which
confront officers in the course of executing their duties are more or less ambiguous, room
must be allowed for some mistakes on their part. But the mistakes must be those of
reasonable men, acting on fact leading sensibly to their conclusions of probability.
on fact leading sensibly to their conclusions of probability. The rule of probable cause is a
practical, nontechnical conception affording the best compromise that has been found for
accommodating these often opposing interests. Requiring more would unduly hamper law
enforcement. To allow less would be to leave law-abiding citizens at the mercy of the
officers' whim or caprice.'
In Spinelli v. United States, 393 U.S. 410 (1969), the court said: The affidavit, then, falls
short of the standards set forth in Aguilar [378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723
(1963)], Draper [358 U.S. 307, 79 S.Ct. 329, 2 L.Ed. 1549 (1958)], and our other decisions
that give content to the notion of probable cause. In holding as we have done, we do not
retreat from the established propositions that only the probability, and not a prima facie
showing, of criminal activity is the standard of probable cause, . . . .
At the time Roger Heath was arrested there was probable cause for the officers to believe
that he had engaged in criminal activity. Wendell had the direct statement from the younger
juvenile that Roger was with them when he and his brother broke into the lumber company.
Wilson had personally investigated the burglary at the lumber company and he had received
Wendell's radio call to bring Roger to the police station.
In Draper v. United States, supra, a federal narcotics agent was told by an informer, whom
he knew to be reliable, that Draper was selling narcotics and would arrive by train from
Chicago with a supply. The informer described Draper and told the agent, within the space of
two days, when he would arrive. When Draper arrived he was recognized and arrested and
narcotics were seized. The High Court held the arrest to be lawful and said that even hearsay
information was entitled to be considered by the arresting officer.
In Spinelli v. United States, supra, the court said: The detail provided by the informant in
Draper v. United States, [supra], provides a suitable benchmark.
Here, while the reliability of the juvenile had not been previously known to Wendell, he
did spend several hours questioning him, and during that period of time the juvenile made
what was apparently reliable statements about his participation in other criminal activity, and
he stuck to his story that Roger had been with him at the lumber company.
In discharging his duty, Wendell could give, to the information he had received, whatever
reasonable credit he deemed it warranted. Thomas v. Sheriff, supra. Furthermore, before
Wendell dispatched the patrol car to bring Roger to the police station he consulted his
superior officer.
station he consulted his superior officer. The arrest was not the result of an impulsive act or
decision on Wendell's part.
We believe that, under the facts and circumstances, Wendell had probable cause and
reasonable grounds to believe that a felony had been committed and that Roger Heath had
been present when it was committed.
The appellants argue that NRS Chap. 62 (The Juvenile Court Act) precluded the officer
from proceeding to bring Roger to the police station.
[Headnotes 9, 10]
While it is preferable that the procedure for apprehension of juveniles, as outlined in the
juvenile court act, be employed, law enforcement officers cannot be limited to the exclusive
procedures of that act. There is nothing in the law to prevent a police officer from taking a
juvenile into custody without a warrant when the police officer has probable cause to believe
a felony has been committed, and that the juvenile has committed it. Harper v. Strange, 158
F.2d 408 (D.C. 1946).
NRS 171.124 authorizes a peace officer to, without a warrant, arrest a person on a charge
made, upon a reasonable cause of the commission of a felony by the party arrested. (Emphasis
added.)
[Headnote 11]
We find no irreconcilable conflict between NRS 171.124(1)(d)
2
and NRS
62.040(1)(a)(5),
3
however, in the event such a conflict could be discerned, we note that NRS
171.124, was enacted, in its entirety, at the legislative session held in 1967, while NRS
62.040 was first enacted in 1943 and last amended in 1963. If there is an irreconcilable
conflict between two statutes, the statute which was most recently enacted controls the
provisions of the earlier enactment. State ex rel. Douglass Gold Mines Inc. v. District Court,
51 Nev. 330, 275 P. 1 (1929); State v. Esser, 35 Nev. 429, 129 P. 557 (1913).
The appellants' causes of action for breaking and entering and trespass, as well as for
emotional and physical distress, and for assault and battery, were dependent upon an
unlawful arrest.
____________________

2
NRS 171.124(1)(d): A peace officer may make an arrest in obedience to a warrant delivered to him, or
may, without a warrant arrest a person:
On a charge made, upon a reasonable cause, of the commission of a felony by the party arrested.

3
NRS 62.040(1) (a) (5): Except as otherwise provided in this chapter, the court shall have exclusive original
jurisdiction in proceeding:
Concerning any child living or found within the county:
Who violates any state law or municipal ordinance, or any other rule or regulation having the force of law.
for assault and battery, were dependent upon an unlawful arrest. Having found Roger Heath's
arrest was valid, as a matter of law, these causes of action fail.
The remainder of the appellants' assignments of error were also dependent upon an
unlawful arrest. The arrest being valid, we find them to be without merit.
The judgment of the trial court is affirmed.
____________
86 Nev. 116, 116 (1970) Utley v. Airoso
WOODROW UTLEY and ANNA BETH UTLEY, His Wife, Appellants, v. JOE AIROSO
and EMILY AIROSO; KANSAS CITY TITLE INSURANCE COMPANY, E. C. SMITH
and CALED REALTY, Respondents.
No. 5931
February 6, 1970 464 P.2d 778
Appeal from judgment and from subsequent orders denying appellants' motion to amend
findings of fact; Second Judicial District Court, Washoe County; Thomas O. Craven, Judge.
Vendors' action against real estate agent and escrow agent and holders of deed of trust. The
district court rendered judgment, and plaintiffs appealed. The Supreme Court, Mowbray, J.,
held that evidence was insufficient to show fraud on part of defendants.
Affirmed.
A. D. Jensen, of Reno, for Appellants.
Streeter, Sala & McAuliffe, of Reno, for Respondents.
Where the district judge decides on the merits of the case, the substantial evidence rule then becomes
the standard by which Supreme Court must consider appeal to determine whether there is substantial
evidence in record to support findings and judgment of district judge.
2. Fraud.
In vendors' action against real estate agent and escrow agent and holders of first deed of trust, evidence
was insufficient to show that defendants fraudulently altered and changed receipt and agreement of
purchase and caused deed of trust to become first lien on property.
agreement of purchase and caused deed of trust to become first lien on property.
OPINION
This case involves a sale of real property in October 1965 by Woodrow Utley and Anna
Beth Utley, his wife, who are the appellants, to Wayne Pirtle, who was named as a defendant
in the cause below, but who was never served with process and is not involved in this appeal.
The Utleys commenced this action in district court in May 1967, designating the following
as defendants: Pirtle, the buyer; E. C. Smith, doing business as Caled Realty, the realtor who
handled the transaction; Land Title Insurance Agency, Inc., and its agent, Elmer Griggs, the
escrow agent; Kansas City Title Insurance Company, who issued the title policy; Joe and
Emily Airoso, holders of a first deed of trust; and their trustee under the deed of trust, Nevada
Title Guaranty Company, which trustee's foreclosure sale was scheduled for the day following
the filing of the action.
The complaint consisted of three causes of action. The first cause sounded in fraud and
sought damages in the sum of $50,000. It alleged that Smith, Griggs, and other, unknown
defendants did fraudulently alter and change the [Utley-Pirtle] Receipt and Agreement of
Purchase and cause the Airosos' deed of trust to become a first lien on the property. The
second cause sought $6,500 damages from Kansas City Title under the Utleys' title insurance
policy. And the third and final cause was directed against the Airosos and Nevada Title,
seeking an injunction to prevent the imminent foreclosure sale.
The case was tried to the district judge sitting without a jury. He found against the plaintiff
Utleys on all three causes of action and dissolved the temporary restraining order. The
Airosos' deed of trust was foreclosed, and the property was sold. Hence this appeal.
1. A Threshold Issue
[Headnote 1]
Appellants contend that the district judge dismissed plaintiffs' case pursuant to NRCP
41(b)
1
and that therefore the trier of the facts should have accepted as true the plaintiffs'
evidence and should have drawn all reasonable inferences in plaintiffs' favor.
____________________

1
NRCP 41(b):
For failure of the plaintiff to comply with these rules or any order of court, a defendant may move for
dismissal of an action or of any claim against him. After the plaintiff has completed the presentation of
evidence and should have drawn all reasonable inferences in plaintiffs' favor. Bates v.
Cottonwood Cove Corp., 84 Nev. 388, 441 P.2d 622 (1968); Havas v. Carter, 85 Nev. 132,
451 P.2d 711 (1969).
The record does not support appellants' position. It is true that, in his colloquy with
counsel at the conclusion of plaintiffs' case, the district judge stated he would entertain a Rule
41(b) motion, but counsel for the defendants made it clear that they would not make a Rule
41(b) motion, but rather that they would submit the case on its merits.
2

We construe the ruling of the district judge as a decision on the merits of the case. The
substantial evidence rule then becomes the standard by which we must consider this appeal
to determine whether there is substantial evidence in the record to support the findings and
judgment of the district judge. We believe that standard has been met, and we affirm the
judgment of the lower court.
2. The Facts
In October 1965, the Utleys signed a Receipt and Agreement to Purchase that had been
prepared by E. C. Smith, the realtor, wherein the Utleys agreed to sell a parcel of realty they
owned in Reno for the total purchase price of $22,500$6,000 being payable before close
of escrow and the Balance of $16,500.00 shall be a note secured by a deed of trust; said
note shall be payable in full including interest at 7% on or before one year from date of said
note.
____________________
his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted,
may move for a dismissal on the ground that upon the facts and the law the plaintiff has failed to prove a
sufficient case for the court or jury. Unless the court in its order for dismissal otherwise specifies, a dismissal
under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of
jurisdiction, or for lack of an indispensable party, operates as an adjudication upon the merits.

2
Mr. Jensen [attorney for plaintiffs]: If the Court please, first of all, has a motion been made under 41-B?
The Court: It hasn't yet. I said I would entertain it. I want to hear from you first because I anticipate it will be
made.
. . . .
Mr. Sala [attorney for defendants Kansas City Title and the Airosos]: Excuse me, your Honor. Mr. Brown
[attorney for defendants Caled Realty and E. C. Smith] and I will not make a motion as to 41-B. We have no
evidence to offer and we will submit the matter on its merits.
Following the district judge's decision, counsel for defendants stated again:
Mr. Sala: Your Honor, we have submitted the matter. This is a judgment on the merits.
The Court: All right.
The document continues:
Seller agrees that the above mentioned note shall be second and junior in lein [sic] to a
first note and deed of trust not to exceed $150,000.00 and shall bear interest of not more than
10% and a repayment in not more than 29 years. (Emphasis added.)
There also appears on the original Receipt and Agreement to Purchase, after the
subordination clause, supra, the following inked-in notation: Buyer to submit loan of
commitment to Seller. The Receipt and Agreement to Purchase was received in evidence as
plaintiffs' Exhibit J, and when it was offered at trial the notation, Buyer to submit loan of
commitment to Seller. was x-ed out, with the initials ECS. (E. C. Smith) and W.U.
(Woodrow Utley) immediately following the clause. Smith testified that the notation, Buyer
to submit loan of commitment to Seller. was added to the agreement when he first submitted
it to Mr. Utley for his approval, but that it was later x-ed out in the presence of Mr. Utley and
Mr. Pirtle at Smith's office, at the time Utley returned the signed agreement. Mr. Utley flatly
denied that the notation was ever struck from the agreement in his presence.
An escrow was opened at Land Title Insurance Co. On November 3, 1965, the Utleys went
to Land Title and signed their sellers' instructions, which had been prepared by Land Title in
accordance with the terms of the Receipt and Agreement to Purchase. There was no mention
in the sellers' instructions of a requirement that the buyer was to submit any loan commitment
to the Utleys. The sellers' instructions provided for a Note and Trust Deed for $16,500.00 all
due and payable 1 year from close of escrow together with 7% interest which seller agrees to
subordinate to a 1st note and deed of trust not to exceed $150,000.00 with interest not to
exceed 10 percent amertized [sic] for 29 years.
Mr. Utley, who holds a Nevada real estate salesman's license, testified that neither he nor
Mrs. Utley read the sellers' instructions prior to signing them.
3

____________________
3 Q [by Mr. Jensen] Well, I show you plaintiffs' Exhibit A [the Utleys' instructions to Land Title] . . . And
there appears to be two signatures on the bottom of that. Is that your signature?
A [by Mr. Utley] Yes, sir.
. . . .
Q You are familiar with your wife's signature?
A I am sure I am.
Q Did you read that document before you signed it, plaintiffs' Exhibit A in evidence?
A I did not.
Mr. Pirtle signed the customary buyer's instructions and signed a promissory note to the
Utleys in the principal sum of $16,500, with 7 percent interestthe principal and interest to
be payable in 1 year. The deed of trust contained the following provision regarding
subordination:
This deed of trust is junior and subordinate to certain deed of trust recorded concurrently
herewith and any other deed of trust for the purpose of interim financing, not to exceed an
aggregate of $150,000.00. . . . (Emphasis added.)
The certain deed of trust recorded concurrently herewith was a deed of trust securing the
Airosos' promissory note for $11,000, payable in 1 year, including interest at the rate of 10%.
Pirtle actually received only $10,000 from the Airosos, which sum was delivered to Land
Title and disbursed as follows:
Caled Realty Real Estate Commission.................................. $1,000.00
Title Fee.................................................................................. 198.00
Revenue Stamps.................................................................... 24.75
Escrow Fees............................................................................ 80.00
Drawing Deed Fee.............................................................. 30.00
Lawyers Title, Trustee of Buyer's Deed of
Trust, a Prior Lien on the Property:
Principal................................................ $4,705.85
Interest.................................................. 27.45
Recon & Recording.............................. 9.55
Collection.............................................. 11.76

________

4,754.61
Utleys...................................................................................... 7.64

________

Total........................................................................................ $6,095.00
The balance of the $10,000, amounting to $3,905, was retained by Pirtle, who defaulted on
the Utley and Airoso notes. The Airosos filed notice of default, and the foreclosure sale on
their deed of trust was first noticed for February 10, 1967, and then continued to May 5, 1967.
3. The Fraud Charge
[Headnote 2]
The record supports the district judge's finding that the named defendants were not
chargeable with fraud as alleged in the Utleys' first cause of action. The thrust of the Utleys'
argument is that any loan obtained by Pirtle under the subordination provision of their
$16,500 deed of trust was subject to their prior approval and to be used only for interim
financing to build the multiunit apartment building on the property sold to Pirtle.
to their prior approval and to be used only for interim financing to build the multiunit
apartment building on the property sold to Pirtle. The respondents agree that there was in the
two documentsthe Receipt and Purchase Agreement and the escrow instructionsan
understanding between the Utleys and Pirtle for subordination, but that the purpose of
subordination, that of interim financing, was not expressed, if that was the purpose, and that
the first expression of the purpose of subordination for interim financing is contained in the
$16,500 deed of trust that was unilaterally executed by Pirtle. Respondents concede that there
is a conflict in the evidence, but assert that the Receipt and Purchase Agreement and the
escrow instructions support the lower court's finding that the subordination was unrestricted,
which finding may not be disturbed on appeal. We agree.
Interim financing, by its very terms, means temporary financing, as C. W. Baker, a
mortgage banker, builder and developer, who was examined by Mr. Jensen, testified in
response to counsel's question.
Q [by Mr. Jensen] Well, if somebody indicated to you that they had interim financing,
what does that mean in your business?
A It would be interim financing for construction of a residence, or a building, whereby
the final loan was going to a permanent investor.
In the instant case the purported interim financing was for a loan not to exceed
$150,000, payable in 29 years at 10 percent interest.
The Utleys argue that they had no knowledge of the Airoso note and deed of trust; yet the
record shows that the $16,500 deed of trust that the Utleys received recited that it was junior
and subordinate to certain deed of trust recorded concurrently herewith find any other deed
of trust . . . not to exceed an aggregate of $150,000.00. . . . (Emphasis added.) The closing
escrow statement that the Utleys received identified the $16,500 balance of their purchase
price as being evidenced by a 2nd Note and Trust Deed16,500.00. (Emphasis added.)
The title policy issued by Kansas City Title insuring the Utleys' $16,500 deed of trust, the
issuance of which they acknowledge in paragraph IV of their second cause of action in their
complaint verified by Mr. Utley,
4
clearly sets forth in Schedule B of the policy the Airoso
deed of trust as being prior to the Utley security.
____________________

4
IV. That the defendant, KANSAS CITY TITLE INSURANCE COMPANY, did duly issue to plaintiffs its
policy of title insurance.
We conclude that there is substantial evidence in the record to support the district judge's
ruling in denying the Utleys' claim set forth in their first cause of action.
4. Liability of Kansas City Title Insurance Company
The record shows that the escrow agent did in fact pay to Lawyers Title of Reno
$4,754.61, as trustee, the amount due on a promissory note secured by a preexisting deed of
trust, but that Lawyers Title, who is not a party to this action, failed to record its deed of
reconveyance until after the Utleys' complaint was filed. The note had been paid pursuant to
the escrow instructions. The district judge ruled correctly in denying the Utleys damages on
their second cause of action.
5. The Airosos' Foreclosure
There is nothing in the record to show that the Airosos were not entitled to proceed with
their pending foreclosure sale of the property, as the note for which it was security had been
in default for several months. The district judge properly dissolved the temporary restraining
order prohibiting the foreclosure sale, which was issued at the time the Utleys filed their
complaint.
6. The Default of Land Title Insurance Co.
Land Title failed to answer, and a default judgment was entered against the company. The
district judge entered an order in favor of all the defendants. Appellants assert that it was
error to absolve Land Title. We do not agree. Under the facts presented, we know of no
theory that would support any finding that Land Title was liable in damages to the appellants.
Cf. Peterson v. City of Reno, 84 Nev. 60, 436 P.2d 417 (1968); In re Forsyth's Estate, 45 Nev.
385, 204 P. 887 (1922); Bullion Mining Co. v. Croesus Gold & Silver Mining Co., 3 Nev.
336 (1867).
The judgment of the district court is affirmed.
____________
86 Nev. 123, 123 (1970) Randono v. Turk
GENE C. RANDONO, Individually, and dba LAS VEGAS COLLECTION &
ADJUSTMENT BUREAU, INC.; LAS VEGAS COLLECTION & ADJUSTMENT
BUREAU, INC., a Partnership, and LAS VEGAS COLLECTION & ADJUSTMENT
BUREAU, INC., a Corporation, Appellants, v. ARTHUR E. TURK, Also Known as
ARTHUR JOHNSON, or ART JOHNSON, and FLORENCE M. TURK, Also Known as
FLO WALTERS, Respondents.
No. 5672
February 24, 1970 466 P.2d 218
Appeal from the Eighth Judicial District Court, Clark County; William P. Compton,
Judge.
Action against business promoter and real estate salesman and others by couple promoter
had counseled as to their investments to recover on oral promise to repurchase stock in
defunct business, promise to repurchase assigned notes if notes went bad and to impose
constructive trust on land purchased with couple's money, in which promoter counterclaimed
for judgment on couple's note. The district court rendered judgment in favor of plaintiffs and
in favor of promoter on counterclaim and defendants appealed. The Supreme Court, Collins,
C. J., held that imposition of constructive trust on 520 acres of realty was authorized on
findings that confidential relationship existed between real estate salesman and husband and
wife, that salesman had fraudulently induced couple to give him $3,364.14 toward purchase
of 320 acres of land at $20 an acre, which in fact was purchased for $11 an acre, and that
salesman failed to disclose purchase of additional 200 acres with money advanced.
Affirmed as modified.
Edwin S. Pomeranz and Daryl Engebregson, of Las Vegas, for Appellants.
Rudiak & Publow, of Las Vegas, for Respondents.
1. Trusts.
Proof of circumstances warranting imposition of constructive trust must be by clear and convincing
evidence.
2. Trusts.
Parol evidence is admissible to prove facts and circumstances constituting fraud from which constructive
trust arises.
3. Trusts.
Imposition of constructive trust on 520 acres of realty was authorized on findings that confidential
relationship existed between real estate salesman and husband and wife he advised concerning their
investments, that salesman had fraudulently induced couple to give him $3,364.14 toward purchase of 320
acres of land at $20 an acre, which in fact was purchased for $11 an acre, and that salesman failed to
disclose purchase of additional 200 acres with money couple advanced.
In the absence of express finding, the law implies a finding in favor of a judgment.
5. Joint Adventures; Trusts.
Where land was jointly purchased to be held for six months and then resold in small parcels, transaction
constituted a joint adventure and joint adventurers who had been fraudulently induced to advance funds
were entitled to imposition of constructive trust on property other adventurer had purchased in his own
name.
6. Joint Adventures.
Joint adventurers owe each other a fiduciary duty.
7. Trusts.
Award, on imposition of constructive trust, of 50 percent interest in property to joint adventurers who had
been fraudulently induced to advance funds and to other adventurer rather than giving adventurers who had
advanced funds a 53.76 percent interest to reflect their monetary contribution was supported by substantial
evidence.
8. Fraud.
Award to stockholders of money damages rather than return of stock certificates business promoter had
agreed to repurchase when business failed was not error where award sounded in tort for fraudulent
deprivation of property and not on contract theory of rescission or novation.
9. Fraud.
Damages for fraudulent misrepresentation can be awarded under two theories, one of which allows a
defrauded party to recover the benefit-of-his-bargain, that is the value of what he would have if
representations were true, less what he received and the second of which allows him to recover only what
he lost out-of-pocket, that is difference between what he gave and what he actually received.
10. Fraud.
Where award in action against business promoter for breach of oral agreement to repurchase stock in
defunct business, to make good if notes he assigned went bad and to impose constructive trust on property
he acquired with plaintiffs' money was in tort not contract, exemplary damages were properly awarded.
NRS 42.010.
11. Damages.
Amount awarded as exemplary damages need have no relationship to amount of compensatory damages.
NRS 42.010.
12. Mortgages.
Finding assignor liable on oral promise to repurchase note secured by second deeds of trust was
authorized under substantial, albeit conflicting, evidence that assignor told assignee notes were as good
as gold and that he would buy them back if at any time they went bad; assignor's
liability was not discharged by trustee's sale.
as good as gold and that he would buy them back if at any time they went bad; assignor's liability was not
discharged by trustee's sale.
Entire community property was subject to liability of judgments rendered against husband in action to
recover on husband's oral promise to repurchase assigned notes if they went bad and to repurchase stock in
corporation which had become defunct, notwithstanding wife was not party to suit. NRS 123.220.
Community property is subject to husband's debts during his lifetime whether debts arise out of tort or
contract and wife need not be made a party when husband is defending action against community property,
since in legal effect she is a party to every action involving such property. NRS 123.220, 123.260.
15. Costs.
Motion to retax costs in proceeding involving causes of action for damages and title to realty was
untimely where it was not filed within three days of filing of cost bill, notwithstanding judgment may not
have become final until some nine months thereafter when notice was given by amendment thereto, nunc
pro tunc. NRS 18.020, 18.110.
16. Costs.
While determination of costs may be a factor in determining finality of a judgment, judgment need not be
final before a motion to retax costs deed be filed. NRS 18.110.
Affirmative defense of illegality would not be considered for first time on appeal from judgment in favor
of assignor on counterclaim to recover on promissory note. NRCP 8(c).
OPINION
This is an appeal from a judgment in favor of respondents (plaintiffs below) against
appellants (defendants below). Appeal is also taken from an order amending the findings,
conclusions and judgment and from an order refusing to retax costs. Respondents cross
appeal from a judgment in favor of appellants on a promissory note.
We affirm in all respects.
The suit commenced by respondents, hereinafter referred to as Turks, concerns a series
of dealings with appellants, hereinafter referred to as Randono, commencing in 1959 and
continuing for two or three years thereafter.
Turks are entertainers. Randono is a promoter of business deals and a real estate salesman.
Turks and Randono became acquainted in the summer of 1959 when he handled the sale of
Turks' residence and purchase of a new one. Turks gave him a promissory note for his
commission, which is the subject of their cross appeal.
promissory note for his commission, which is the subject of their cross appeal.
The parties became good friends socially and developed a close relationship. Several
business transactions resulted in which Randono undertook to aid, counsel and advise Turks
in investment of their earnings and savings.
The three transactions between the parties which are the subject of this appeal will be
stated separately.
Arizona Lands
In the latter part of 1959, or early January, 1960, Randono informed the Turks of an
opportunity for them to acquire a half interest in 320 acres of Arizona land which could later
be subdivided and resold for a profit. The Turks claim Randono told them they would go
together and buy the 320 acres at $21 an acre. Randono claims he told them he had purchased
the land and would sell them a half interest for $3,400.
Randono had entered an escrow agreement with another person in December, 1959, to buy
a 320-acre plot, a 160-acre plot and a 40-acre plot from parties in Arizona for $11 an acre.
This escrow was cancelled, and one with Randono only, as buyer, was opened in January,
1960. Another escrow was opened in January, 1960, with Randono as seller and the Turks as
buyers of a 50 percent undivided interest in the 320-acre plot. The Turks gave Randono a
$3,360 check to be placed in their escrow account. No money was ever placed in this account,
but one check in the same amount was deposited in the escrow account of Randono's for
purchase of the full 520 acres. Title to the entire 520 acres was taken in Randono's name and
never changed.
Collection Agency
In November, 1960, Randono purchased Las Vegas Collection & Adjustment Bureau, Inc.,
for $4,000. He paid $100 down and gave the sellers a note for the balance payable at $60 per
month.
In early 1961, Randono suggested to the Turks that this would be a good investment. Here
again, the testimony differs. Randono claims he offered them half of the stock in the agency,
for which the Turks gave him $12,435, and 1,315 shares of Steam Wells, Inc. stock. This
stock had been sold to the Turks earlier by Randono, who was then an officer of the company
offering the stock and president of Steam Wells, Inc. The Turks had paid $1 per share for
1,000 shares and received 315 more for getting friends to buy the stock. Randono told the
Turks the agency was for sale for $25,000 and they would go partners, putting up
$12,500 each plus $1,250 for operating expenses.
Turks the agency was for sale for $25,000 and they would go partners, putting up $12,500
each plus $1,250 for operating expenses. The Turks stated that throughout the negotiations
Randono treated it as though they were negotiating with someone else; he never admitted he
was already the owner. Two stock certificates were issued to the Turks, but they thought they
were in a partnership with Randono until their tax accountant informed them differently.
For several months the Turks received $84 per month for what they testified was an agreed
upon return on investment. Randono suggested that this money was for services rendered, but
the Turks rendered none. When asked how the $84 figure was arrived at, Randono stated it
was based upon 6 percent of the price of the stock.
Within eight months of the sale to the Turks, the collection agency, having made no
money at all, was defunct. The assets were transferred for no consideration to a credit bureau
owned by Randono. The same people who ran the collection agency also ran Randono's credit
bureau.
After the Turks complained to Randono about not receiving their $84 per month, and after
he had stalled them for several months with various excuses, he orally agreed to buy back
their share of the business for the price they paid. This promise was never kept.
Promissory Notes
In 1960, Randono obtained two notes secured by second deeds of trust on apartment
houses. Around the first of March, 1961, the Turks acquired the notes from Randono by
assignment. The notes were not endorsed over to them. Randono claimed the notes were sold
to the Turks for their face value. The Turks contended they loaned Randono $8,816.98. At the
time of the transaction, the notes had a balance due of $8,785.70. The Turks said the reason
the notes were assigned was so that they could receive the interest, which was higher than
they had been getting on their money at the bank, and thus they would not lose money while
their friend was using theirs.
In November, 1961, the apartment houses were sold to Prudential Diversified Investors.
Randono was the broker and received a $40,000 note for his commission from the buyer.
Prudential later sold the apartments to one of its officers, and in 1963 he defaulted on the
notes secured by the apartments.
Randono told the Turks the notes were as good as gold and he would buy them back if
they went bad. The Turks claimed they tried unsuccessfully to get Randono to buy the notes
back when they were in default. Finally, the Turks bid $1 on each note at a trustee's sale,
but realized nothing on the security because the first deeds of trust were also in default
and were shortly thereafter sold, wiping out the security for the notes held by the Turks.
on each note at a trustee's sale, but realized nothing on the security because the first deeds of
trust were also in default and were shortly thereafter sold, wiping out the security for the
notes held by the Turks.
ISSUES
I. Did the trial court err in applying a constructive trust on the entire 520 acres in Arizona?
II. Did the trial court err with respect to the collection agency transaction by awarding
money damages instead of restitution of money and stock and by awarding exemplary
damages?
III. Did the trial court err in finding Randono liable on an oral promise to repurchase the
promissory notes and was this liability discharged by the trustee's sale?
IV. Did the trial court err in amending its judgment to make community property of
appellant and his wife liable for the judgments even though she was not a party to the suit?
V. Did the trial court err in denying appellant's motion to retax costs on the grounds it was
not timely filed?
VI. Did the trial court err in awarding judgment to Randono on his counterclaim for the
amount payable to him under the Turks' promissory note?
1. The trial court imposed a constructive trust upon the entire 520 acres of the Arizona
property and adjudged Turks to be a 50 percent owner therein. This conclusion was
predicated upon a finding that Randono had fraudulently induced Turks to give him
$3,364.14 toward purchase of 320 acres of land at $20 per acre, which in fact was purchased
for $11 per acre, and that Randono failed to disclose purchase of the additional 200 acres with
the Turks' money.
[Headnotes 1, 2]
A constructive trust arises when (1) the circumstances under which property was acquired
makes it inequitable that it should be retained by him who holds the legal title. . .; (2) some
confidential relationship exists between the two. . .; (3) the raising of the trust is necessary
to prevent a failure of justice. Schmidt v. Merriweather, 82 Nev. 372, 375, 418 P.2d 991
(1966). Proof of those circumstances must be by clear and convincing evidence. Garteiz v.
Garteiz, 70 Nev. 77, 82, 254 P.2d 804 (1953). Parole evidence is admissible to prove the facts
and circumstances constituting fraud from which the trust arises. Moore v. De Bernardi, 47
Nev. 33, 50, 213 P. 1041 (1923).
Appellants contend, however, there was no specific finding of a confidential relationship
between Randono and the Turks, nor as a matter of law could such relationship exist.
a confidential relationship between Randono and the Turks, nor as a matter of law could such
relationship exist.
A confidential relation exists between two persons, whether their relations be such as
are technically fiduciary or merely informal, whenever one trusts in and relies on the other.
The question in such case is always whether or not trust is reposed'. . . . In order for such
relation to exist there must be evidence of a special trust with respect to the property or
business.' (Emphasis added.) Wilhoit v. Fite, 341 S.W.2d 806, 813 (Mo. 1960) (quoting
Hedrick v. Hedrick, 168 S.W.2d 69 (Mo. 1943)).
Additionally, in G. Bogert, The Law of Trusts and Trustees 482 (2d ed. 1960), it is
written, Investment advisors have been held to occupy a confidential relation toward those
advised. In that same work, at 483, it is provided, Where a trustee or other fiduciary holds
property to be used for the benefit of his cestui, it is, of course, a breach of his trust to employ
the property for his own private advantage, as where he spends or consumes it for his own
benefit, or uses it directly to acquire other property in his own name. This civil wrong, the
breach of trust, is as reprehensible as the criminal act of embezzlement, from the point of
view of equity. It is readily admitted to be a sufficient basis for charging the fiduciary with a
constructive trust as to any avails of the breach of his express trust. (Emphasis added.)
[Headnotes 3-6]
There was, in our opinion, sufficient evidence to support a finding of the trial court of a
confidential relationship. See Kinert v. Wright, 185 P.2d 364 (Cal.Dist.Ct.App. 1947). In the
absence of an express finding, the law implies a finding in favor of the judgment. Richfield
Oil Corp. v. Harbor Ins. Co., 85 Nev. 185, 452 P.2d 462 (1969).
Alternatively, the lower court's findings that the land was jointly purchased to be held for
six months and then resold in small parcels established a joint adventure. Joint adventurers
owe each other a fiduciary duty. Botsford v. Van Riper, 33 Nev. 156, 192 (1910).
[Headnote 7]
We will not disturb the trial court's judgment awarding each of the parties a 50 percent
interest in the Arizona lands instead of giving respondents a 53.76 percent interest because of
their monetary contribution as urged in their cross assignment of error. There was substantial
evidence to support the trial court's ruling.
2. On the collection agency transaction, the lower court found that Randono falsely
represented the value of the interest sold to the Turks, fraudulently failed to disclose he
was the owner at the time of the sale, transferred the assets without notice to the Turks
to a corporation owned by him and subsequently agreed to repurchase their interest,
which he failed to do.
found that Randono falsely represented the value of the interest sold to the Turks,
fraudulently failed to disclose he was the owner at the time of the sale, transferred the assets
without notice to the Turks to a corporation owned by him and subsequently agreed to
repurchase their interest, which he failed to do. That court determined the Turks suffered
actual damages of $13,750, less three payments of $84, as a result of that fraud. Punitive
damages of $10,000 were assessed against Randono.
[Headnote 8]
Appellants contend the lower court erred in awarding the Turks $1,315 in money rather
than ordering a return of the stock certificates given him by the Turks. The lower court
obviously awarded damages in tort for fraudulent deprivation of property and not upon the
contract theories of rescission or novation. Substantial evidence supports that holding.
[Headnote 9]
The measure of damages for fraudulent misrepresentation can be determined in one of two
ways. The first allows the defrauded party to recover the benefit-of-his-bargain, that is, the
value of what he would have if the representations were true, less what he had received. The
second allows the defrauded party to recover only what he has lost out-of-pocket, that is,
the difference between what he gave and what he actually received. McCormick on Damages
121 (1935); Annot., 13 A.L.R.3d 875, 881-82 (1967).
While Nevada has never specifically adopted one or the other of those two rules, it does
not appear we need to in this case because the result would be approximately the same,
whichever method was followed.
[Headnotes 10, 11]
Next, appellants contend we should not approve the lower court's award of exemplary
damages because of the provisions of NRS 42.010.
1
Appellants misconceive the theory of
the lower court's award. It was in tort, not contract. NRS 42.010 is applicable and does
authorize the award. We are not shocked by the amount of the award because it need have no
relationship to the amount of compensatory damages. Alper v. Western Motels, Inc., 84 Nev.
472, 443 P.2d 557 (1968). There appears sufficient evidence and reason to justify the fact
of and amount of the award.
____________________

1
NRS 42.010. In an action for the breach of an obligation not arising from contract, where the defendant has
been guilty of oppression, fraud or malice, express or implied, the plaintiff, in addition to the actual damages,
may recover damages for the sake of example and by way of punishing the defendant.
appears sufficient evidence and reason to justify the fact of and amount of the award.
[Headnote 12]
3. There was no error on the part of the trial court in finding Randono liable on an oral
promise to repurchase promissory notes assigned to the Turks and secured by second trust
deeds. Nor was that liability discharged by the trustee's sale.
The case of Swenson v. Stoltz, 78 P. 999 (Wash. 1904), is directly in point and controls
this issue. In Swenson, the plaintiff purchased, for value, a note payable to defendant's order.
Defendant did not endorse the note, but it was found he made an oral guarantee that the note
was perfectly goodas good as goldand would be paid by said makers when it became
due . . . . Id. at 999. The rule announced in Swenson, which we adopt, is as follows: The
guaranty of a note is not a promise to answer for the debt of the maker, and is not within the
statute of frauds, when it is negotiated in consideration of value received by the guarantor, but
it becomes the original and absolute obligation of the guarantor himself, whereby he promises
to pay his own debt to the guarantee; that is to say, the debt he owes his guarantee for what he
has received from the latter. The note meanwhile is delivered and held as collateral to the
promise of the guarantor. If the maker pays it at the date of its maturity, the guarantor's
obligation is by that fact discharged; but, if the maker fails to pay, the guarantor remains
liable upon his own obligation, which is absolute and independent of the note itself. Id. at
1000. There was substantial, albeit conflicting, evidence in the record that Randono said to
Turks, the notes were good as gold and . . . if at any time they go bad, I will buy them back
from you.
Moreover, by proceeding to trustee's sale on the security, the Turks realized no gain but
merely preserved Randono's rights under the notes to proceed against the makers or their
assigns. Had they not done so, those rights would have been destroyed by the sale under the
first deeds of trust. We see no error.
[Headnote 13]
4. The lower court committed no error by its unnecessary order amending the judgment to
make the community property of appellant and his wife liable for the judgment, even though
she was not a party to the suit in the lower court. We conclude the entire community property
of the Randonos was subject to liability of the judgments, irrespective of whether the wife
was a party to the suit.
NRS 123.220
2
has been construed to provide that property acquired after marriage,
through the toil or talent or other productive faculty of either spouse is community
property. Fredrickson & Watson Const. Co. v. Boyd, 60 Nev. 117, 121, 102 P.2d 627 (1940).
NRS 123.230 provides that the husband is to have the entire management and control of the
community property, with the like absolute power of disposition thereof, except as provided
in this chapter, as of his own separate estate. The exceptions are found in NRS 123.040,
which directs that a wife's earnings are not liable for the husband's debts; and NRS 123.210,
which exempts the wife's separate property from liability for the husband's debts.
On the other hand, NRS 123.260, covering disposition of the community property on the
death of the marital partners, provides: Community property passing from the control of the
husband, either by reason of his death or by virtue of testamentary disposition by the wife, is
subject to his debts. . . .
[Headnote 14]
If community property can be given away by the husband (Nixon v. Brown, 46 Nev. 439,
214 P. 524 (1923)) and is subject to his debts upon his death (NRS 123.260), we see no
reason why it is not subject to his debts, whether arising out of tort or contract, during his
lifetime. This court has previously held in Jones v. Edwards, 49 Nev. 299, 307-08, 245 P. 292
(1926), that the wife need not be made a party when the husband is defending an action
against the community property, since in legal effect she is a party to every action involving
the community property. See also Carlson v. McCall, 70 Nev. 437, 271 P.2d 1002 (1954).
[Headnotes 15, 16]
5. The trial court committed no error in denying appellants' motion to retax costs, since it
was not timely filed. Randono contends he was not required to file his motion to retax costs
until the judgment became final, and the judgment of March 27, 1968, did not become final
until January 2, 1969, when notice was given by amendment to the judgment, nunc pro tunc.
Respondents contend the motion to retax costs had to be filed within three days of the filing
of their cost bill on March 27, 1968.
NRS 18.110 requires the memorandum of costs to be filed "within 5 days after the
verdict or notice of the entry of judgment of the court. . . ."
____________________

2
All property, other than that stated in NRS 123.130, acquired after marriage by either husband or wife, or
both, except as provided in NRS 123.180 and 123.190, is community property.
within 5 days after the verdict or notice of the entry of judgment of the court. . . . The
Motion to Retax must be filed [w]ithin 3 days after service of a copy of the memorandum. . .
. Id. It must be noted nothing is said in that statute about the judgment having to be final
before the cost bill and motion to retax costs must be filed. Costs in this suit were mandatory
because it involved causes of action for damages and title to real estate, both covered by NRS
18.020. Thus, the rule in Nelson v. Paul, 68 Nev. 365, 233 P.2d 857 (1951), governs, and not
that of Magee v. Whitacre, 60 Nev. 202, 96 P.2d 201 (1939), an equity action in which the
awarding of costs was discretionary. While determination of costs may be a factor in
determining the finality of a judgment, the judgment need not be final before a motion to
retax costs need be filed.
[Headnote 17]
6. The lower court did not err in awarding Randono judgment on his counterclaim upon a
note in which he was payee and the Turks were makers. Respondents claim error because of
illegality. That affirmative defense was not pleaded as required by NRCP 8(c). We will not
consider it for the first time on appeal.
Accordingly, judgment of the lower court is affirmed in all respects, except that in the
judgment resulting from the collection agency transaction in favor of respondents and against
appellants in the amount of $13,750, that sum should be reduced by $252, payments found to
be made by the trial court but inadvertently not deducted.
____________
86 Nev. 133, 133 (1970) McIntosh v. State
LLOYD ALVIN McINTOSH, Appellant, v. THE
No. 5801
February 24, 1970 466 P.2d 656
Appeal from judgment of the Second Judicial District Court; John E. Gabrielli, Judge.
Defendant was convicted in the district court of receiving stolen goods and he appealed.
The Supreme Court, Collins, C. J., held that police officer's testimony with respect to
defendant's alleged consent to search of trunk of automobile and suitcase in trunk was
clear and convincing evidence justifying admission of stolen items into evidence.
C. J., held that police officer's testimony with respect to defendant's alleged consent to search
of trunk of automobile and suitcase in trunk was clear and convincing evidence justifying
admission of stolen items into evidence.
Affirmed.
Vargas, Bartlett & Dixon and Melvin Brunetti, of Reno, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, Virgil D. Dutt,
and Kathleen M. Wall, Deputy District Attorneys, Washoe County, for Respondent.
Consent to search must be freely and voluntarily given.
2. Criminal Law.
Proof of voluntariness of consent to search is question of fact.
State bears burden of proving consent to search by clear and persuasive evidence.
Mere fact that consent to search was given while in custody of police officer does not render consent
involuntary.
5. Criminal Law.
Police officer's testimony with respect to defendant's alleged consent to search of trunk of automobile and
suitcase in trunk was clear and convincing evidence justifying admission of stolen items into evidence.
6. Criminal Law.
Trial court's allowing in evidence defendant's admissions and confessions relating to his possession of
stolen property prior to proof of corpus delicti of crime was within trial court's discretion.
7. Criminal Law.
So long as there is sufficient evidence to establish corpus delicti independent of confessions and possible
admissions, order of proof is subject to sound discretion of trial court.
OPINION
Appellant was convicted of the offense of Receiving Stolen Goods, a felony. He appeals
from that judgment and from an order denying his motion to suppress certain items of
evidence. We affirm the conviction.
On January 14, 1968, at approximately 3:00 a.m., Officer Lea was on patrol in a Sparks
residential area. He observed a sedan with the trunk lid open, but the lights off, parked in
front of a residence on Xman Way.
of a residence on Xman Way. The house and porch lights were on.
The officer observed appellant emerge from the house carrying a round, brown suitcase,
place it in the trunk, close the lid, enter the car and drive off. The officer, suspecting a house
burglary, radioed for help and followed appellant's car. Appellant was stopped by the two
officers a short distance away.
Appellant, who stopped readily when signaled by the officer, produced a valid Alaska
driver's license, stated he was moving to Reno, that he had been in Alaska and Nebraska prior
to moving to Nevada, and had been living with a friend for three weeks in the house on Xman
Way. He stated the auto was borrowed from the friend. These statements were later
confirmed.
Appellant was not placed under arrest for either a felony relating to the suspected burglary
or misdemeanor relating to the auto at the time he was stopped. The officer had no warrants
either for the arrest of appellant or search of the car. He was not advised of any rights relating
to counsel nor the search of the car or suitcase.
The critical event in this case has to do with a search by the officers of the suitcase seen
placed in the trunk of the car by appellant. There is conflicting testimony on the consent
issue. There can be no doubt appellant gave the officers permission to look into the trunk of
the car. He opened it for them. The problem arises in connection with consent to look into the
suitcase. Officer Lea testified that he asked appellant what he had in the trunk of the car and,
Do you have any objection if we see it at this time? Appellant answered, There is nothing
in there but my wife's clothing, but if you would like to see it, okay. Appellant denied at the
preliminary hearing, on the motion to suppress, and during trial that he gave the officers
consent to look into the suitcase.
In any event, the officers opened the suitcase and there found two new items of female
clothing, both with whole tags from Gray Reid's Department Store attached. The officers,
suspecting the items might have been stolen, asked appellant to follow them to the police
station, which he did. At the station, a security officer from Gray Reid's was called. He
checked the tags and indicated the clothing was probably stolen because tags of that type were
normally torn in half when the merchandise was sold. Appellant was placed under arrest for
investigation of receiving stolen property.
At the trial, a clerk from Gray Reid's Department Store in Carson City was allowed to
testify over objection that she had shown the garments to appellant a few days before; that she
had not sold them to him; that there was no record of them being sold, and that they were
missing from the store.
had not sold them to him; that there was no record of them being sold, and that they were
missing from the store.
Prior to trial, appellant brought a motion to suppress the garments as evidence on the
ground they were obtained as a result of in unlawful search and seizure and appellant had not
consented to the search. The motion was denied then and again later when renewed at trial on
the ground that consent had been given to search the trunk of the auto and that included
consent to search the suitcase. The judge also stated he believed the officers instead of
appellant on the disputed testimony whether consent was given to search the suitcase.
[Headnotes 1-4]
1. Obviously, the search of the suitcase was not incident to a valid arrest, and if it is to be
upheld it must depend upon appellant's consent. Consent for the search must be freely and
voluntarily given by the individual. Proof of the voluntariness is a question of fact. State v.
Plas, 80 Nev. 251, 391 P.2d 867 (1964). The State bears the burden of proving consent by
[c]lear and persuasive evidence. Thurlow v. State, 81 Nev. 510, 515, 406 P.2d 918 (1965).
Accord Judd v. United States, 190 F.2d 649 (D.C. Cir. 1951), which held that consent must
be proved by clear and positive testimony. Id. at 651. A showing must be made that it is
unequivocal and specific. However, the mere fact that the consent was given while in the
custody of a police officer does not render the consent involuntary. State v. Plas, supra, citing
United States v. Mitchell, 322 U.S. 65 (1944).
[Headnote 5]
We conclude consent for the search was proven by clear and convincing evidence and
justified admission of the garments into evidence. Thurlow v. State, supra; Wren v. United
States, 352 P.2d 617 (1965); see also Bumper v. North Carolina, 391 U.S. 543 (1968).
[Headnotes 6, 7]
2. Appellant next urges as error that the trial court allowed in evidence his admissions and
confessions relating to his possession of the stolen property prior to proof of the corpus delicti
of the crime. So long as there was sufficient evidence to establish the corpus delicti
independent of confessions and possible admissions, the order of proof is subject to the sound
discretion of the trial court. Azbill v. State, 84 Nev. 345, 440 P.2d 1014 (1968). See also
Witkin, California Criminal Procedure 432 (1963).
3. Other errors were urged, but they have no merit.
Conviction affirmed.
____________
86 Nev. 137, 137 (1970) Villa v. Arrizabalaga
A. WILLIAM VILLA, Appellant, v. RAMON ARRIZABALAGA, MRS. HAZEL ERSKINE,
SAMUEL W. BELFORD, O. H. CHRISTOFFERSEN, MRS. DEL HARRISON, GEORGE
JURAD, KEITH W. MACDONALD, Comprising the NEVADA STATE WELFARE
BOARD, Respondents.
No. 5817
February 24, 1970 466 P.2d 663
Appeal from the Eighth Judicial District Court, Clark County; Howard W. Babcock,
Judge.
Proceeding on petition for writ of mandamus, later amended to allege cause of action for
judicial review of decision of welfare board. The district court denied petition for writ of
mandamus, vacated alternative writ of mandamus, and affirmed findings and decision of
welfare board relating to petitioner's application for increased aid to blind. Appeal was taken.
The Supreme Court, Collins, C. J., held that term actual need as used in statute providing
for welfare division's issuance of order for aid to blind persons referred to needs in fact of
particular recipient rather than to need standards as developed by welfare division.
Harry E. Claiborne and James J. Brown, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, and Norman H. Samuelson, Deputy Attorney
General, for Respondents.
1. Social Security and Public Welfare.
Judicial review rather than petition for writ of mandamus is proper procedure for applicant to take from
welfare board's denial of application for increased aid to blind. NRS 34.170, 426.010, 426.400,
426.420, 426.450.
Any regulations adopted by welfare board relating to actual need of blind recipient authorized by statute
providing for welfare division's issuance of order for aid to blind persons must be
reasonable.
division's issuance of order for aid to blind persons must be reasonable. NRS 426.420.
Term actual need as used in statute providing for welfare division's issuance of order for aid to blind
persons refers to needs in fact of particular recipient rather than to need standards as developed by welfare
division. NRS 233B.020-233B.040, 426.030, subd. 3, 426.310, subd. 3, 426.040, subd. 2, 426.400,
426.420.
Welfare division is obligated to fix uniform statewide standards according to reasonable actual needs of
blind recipients and to pay them such sums insofar as there are available funds. NRS 422.140.
Individuals comprising state welfare board were proper parties to action seeking judicial review of
board's denial of application for increased aid to blind. NRS 422.070, 422.140.
OPINION
This is an appeal from an order of the Eighth Judicial District Court denying a petition for
a writ of mandamus, vacating an alternative writ of mandamus, and from an order affirming
the findings and decision of the Nevada State Welfare Board relating to appellant's
application for increased aid to the blind.
Appellant is and has been for some years recipient of financial aid to the blind under NRS
426.010426.500. At the time of the hearing, appellant was receiving $198 per month. He
claims his actual needs are $291.67 per month.
Incident to his application for increased aid, appellant requested and was granted a hearing
before an examiner of the Nevada State Welfare Board pursuant to NRS 426.450. At the
hearing, both appellant and the District Administrator of the Welfare Division presented
evidence.
Specifically, appellant contended by factual presentation and argument of law he was not
receiving his actual need as provided in NRS 426.420.
On review of the transcript by the Welfare Board, appellant's claim for additional benefits
was denied. The Board found that appellant's grant of $198 per month was correctly
computed in accordance with uniform standards developed by the Welfare Division. The
Board concluded that actual need referred to in NRS 426.420 meant need standards
developed by the Welfare Division and approved by the Welfare Board. That meaning does
not relate to actual need in fact in the ordinary sense of the words, but payments limited by
legislative appropriation.
[Headnote 1]
Appellant first sought mandamus from the lower court, later amending his petition
alleging a second cause of action for judicial review of the decision by the Welfare Board
pursuant to NRS 426.450. We think the proper procedure is judicial review, because it is an
adequate remedy in law. See NRS 34.170.
The issues thus presented for our review in determining whether the lower court erred in
affirming the findings and conclusions of the Welfare Board decision are these:
I. Does the term actual need as used in NRS 426.420 refer to need standards developed
by the Welfare Division or to the needs in fact of a particular recipient?
II. May the term actual need be limited by the appropriation of funds for aid to the blind
by the legislature?
A subordinate issue requires our determining whether respondents are proper parties to
this action.
1. Certain legislative enactments establish the right of needy blind persons in Nevada to
financial aid from the state. The legislature has seen fit to deal with this class of person
separate and distinct from all other welfare recipients. Blind persons are a special class
(NRS 426.030(3)); their needs may differ materially from the needs and problems of other
classes of aid recipients (NRS 426.030(3), 426.310(3)); the aid contemplated to be given is
for the individual needs of the blind claimant (NRS 426.040(2)); each claimant should
receive the maximum amount of aid to which he is entitled (NRS 426.400); and where a
claimant's needs exceed the prescribed minimum he shall be entitled to receive aid in an
amount which shall meet such actual need (NRS 426.420). Those functions are assigned to
the Welfare Division by the legislature.
The Administrative Procedure Act applies to all agencies of the executive department
(NRS 233B.020), and agency means each public agency, bureau, board, commission,
department, division, office or employee of the executive department (NRS 233B.030). NRS
233B.040 provides that each agency may adopt reasonable regulations to aid it in carrying
out the functions assigned to it by law and shall adopt such regulations as are necessary to the
proper execution of those functions. . . . In every instance, the power to adopt regulations to
carry out a particular function is limited by the terms of the grant of authority under which
the function was assigned. (Emphasis added.)
[Headnote 2]
Thus, any regulations adopted by the Welfare Board relating to "actual need" of a blind
recipient authorized by NRS 426.420 must be reasonable.
to actual need of a blind recipient authorized by NRS 426.420 must be reasonable.
The regulations adopted by the Welfare Board relative to actual need established
uniform state-wide standards, predicated principally upon the amount of funds appropriated
by the legislature rather than actual need in fact of any authorized recipient. The decision of
the Welfare Board relating to appellant found that appellant's grant was correctly computed
using those principles, and denied any increase.
Evidence presented at the hearing by the representative of the Welfare Division upon the
question whether appellant's grant in fact met his actual need was as follows: The food
allowances are based upon 1959 standards and so is the clothing allowance. We agree. There
is no difference of opinion on the basis of anyone in this agency including Mr. Emery [State
Welfare Administrator] that these allowances are a disgrace to the State of Nevada. There is
no question about that.
[Headnote 3]
We hold the Welfare Division's definition of actual need is not reasonable and the
application of that principle in denying appellant's request for an increase in his allowance is
arbitrary and capricious.
2. The lower court, in reviewing the decision of the Welfare Division, held that payments
to the blind are limited to those monies appropriated by the legislature to the fund for blind
support. That ruling approved the method followed by the Welfare Division in prorating
funds appropriated by the legislature over an entire year in accordance with its formula, when
those payments did not meet the actual need of appellant by the Division's own admission.
[Headnote 4]
Accordingly, we hold the Welfare Division is obligated to fix uniform state-wide standards
according to the reasonable actual needs of blind recipients and pay them such sums insofar
as there are available funds.
1
Straub v. Department of Public Welfare, 198 P.2d 817 (Wash.
1948).
We do not feel there is any question before us relative to loss of federal funding; hence,
Pearson v. State Social Welfare Board, 353 P.2d 33 (Cal. 1960), cited by respondents, is
inapposite.
____________________

1
We do not decide what rights, if any, appellant may have against the state should there be insufficient
money appropriated by the legislature to meet his actual need, as herein defined, for the entire fiscal year.
[Headnote 5]
3. Respondents are proper parties to this action. The Welfare Board is invested with the
power and responsibility to: Formulate all standards and policies and establish all rules and
regulations authorized by law for administration of the programs for which the welfare
division is responsible. NRS 422.140. Furthermore. NRS 422.070, which created the
Welfare Board, reads: There is hereby created in the welfare division a bipartisan state
welfare board composed of seven members appointed by the governor.
The Welfare Board is the policy-making and adjudicatory arm of the Welfare Division and
is necessarily included therein.
Accordingly, the order of the lower court is reversed and the matter remanded to the
Welfare Board with instructions to grant appellant his reasonable actual needs in accordance
with uniform state-wide standards and pay him such sums as are available through legislative
appropriation for that purpose.
____________
86 Nev. 141, 141 (1970) Neal v. State
JERRY MONTGOMERY NEAL, Appellant, v. THE
No. 6050
February 24, 1970 466 P.2d 666
Appeal from judgment of conviction after jury verdict of guilty of assault with a deadly
weapon with intent to do bodily harm, Eighth Judicial District Court, Clark County; Clarence
Sundean, Judge.
The Supreme Court held that substantial evidence supported conviction.
Affirmed.
James D. Santini, Public Defender, and Jeffrey D. Sobel, Deputy Public Defender, Clark
86 Nev. 141, 142 (1970) Neal v. State
Assault and Battery.
Substantial evidence supported jury verdict of guilty of assault with deadly weapon with intent to do
bodily harm.
OPINION
Per Curiam:
The briefs and the record on appeal having been given full consideration, and finding that
there is substantial competent evidence to support the jury verdict below, and that appellant
has failed to demonstrate reversible error, this appeal is dismissed. Anders v. California, 386
U.S. 738 (1967), and Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969).
____________
86 Nev. 142, 142 (1970) Sanchez v. Sheriff
JOE R. SANCHEZ, Appellant, v. SHERIFF, WASHOE
No. 6056
February 24, 1970 466 P.2d 670
Appeal from an order of the Second Judicial District Court, Washoe County, denying a
pretrial application for a writ of habeas corpus; John W. Barrett, Judge.
The Supreme Court held that contentions that petitioner's pretrial identification by robbery
victim and victim's subsequent testimony at preliminary hearing violated petitioner's
constitutional rights were grounds for motion to suppress but not grounds for habeas corpus.
Appeal dismissed.
Nelson, Bull & Hickey, of Reno, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and Kathleen
Criminal Law; Habeas Corpus.
Contentions that petitioner's pretrial identification by robbery victim and victim's subsequent testimony at
preliminary hearing violated petitioner's constitutional rights were grounds for motion to suppress but not
grounds for habeas corpus.
OPINION
Per Curiam:
This is an appeal from a denial of a pretrial application for a writ of habeas corpus.
Respondent moved for a dismissal of the appeal because it was based solely on the issue of
the admissibility of evidence on constitutional grounds.
86 Nev. 142, 143 (1970) Sanchez v. Sheriff
appeal because it was based solely on the issue of the admissibility of evidence on
constitutional grounds.
We have examined the record and the briefs, and find that appellant's contentions that his
pretrial identification by the robbery victim, and the victim's subsequent testimony at the
preliminary hearing, violated his constitutional rights, are grounds for a motion to suppress,
but not grounds for habeas corpus. Cook v. State, 85 Nev. 692, 462 P.2d 523 (1969).
Accordingly, the motion to dismiss of respondent is granted, and this appeal is dismissed.
____________
86 Nev. 143, 143 (1970) Schwende v. Sheriff
PETER QUENTEN SCHWENDE, Appellant, v. SHERIFF, WASHOE COUNTY,
NEVADA, Respondent.
No. 6062
February 24, 1970 466 P.2d 658
Appeal from an order of the Second Judicial District Court, Washoe County, denying a
motion to suppress evidence and a pretrial petition for a writ of habeas corpus; Grant L.
Bowen, Judge.
Proceeding on consolidated motion to suppress evidence and petition for writ of habeas
corpus after preliminary hearing, but before trial. The district court denied both motion and
writ, and defendant appealed. On motion to dismiss appeal, the Supreme Court held that
defendant was not entitled to appeal from denial of pretrial habeas for purpose of challenging
admissibility of evidence used to determine if probable cause existed to bind him over for
trial.
Appeal dismissed.
William K. Lohse, of Reno, for Appellant.
1. Habeas Corpus.
Defendant, whose motion to suppress evidence and petition for writ of habeas corpus had been denied,
was not entitled to appeal from denial of pretrial habeas for purpose of challenging admissibility of
evidence used to determine if probable cause existed to bind him over for trial.
2. Criminal Law.
Trial court's ruling on motion to suppress evidence can be appealed only after trial and conviction.
3. Criminal Law.
Until evidence which is subject of motion to suppress is stricken, it remains in record for consideration by
court and, as evidence, it may be used to determine if there is probable cause to bind over accused for trial.
OPINION
Per Curiam:
Appellant made a motion to suppress evidence and petitioned for a writ of habeas corpus
after the preliminary hearing but before trial, which were consolidated for hearing by
stipulation, and after the hearing thereon the trial court denied both the motion to suppress
and the writ. It is from that order that this appeal is taken.
Respondent moved to dismiss the appeal because it is from a denial of pretrial habeas on
constitutional grounds, and because there is no interlocutory appeal from a denial of a motion
to suppress.
The pretrial application for habeas corpus in this case was not made on the grounds that
there does not exist evidence in the record to establish probable cause to hold appellant for
trial. Rather, it is appellant's contention that the evidence on which he was bound over for
trial was obtained in violation of his constitutional rights and, therefore, it should have been
suppressed on his motion. As a consequence, he contends, there is no legally obtained, and
thus admissible, evidence upon which to bind him over for trial, and his pretrial application
for habeas corpus should have been granted for lack of sufficient evidence to constitute
probable cause.
[Headnotes 1-3]
Appellant seeks to do indirectly via appeal from the denial of pretrial habeas what he
cannot do directly via appeal from denial of his motion to suppress. In effect, he challenges
the admissibility of the evidence used to determine if probable cause existed to bind him over
for trial. This we have held can no longer be done. Cook v. State, 85 Nev. 692, 462 P.2d 523
(1969). The trial court's ruling on a motion to suppress can be appealed only after trial and
conviction, because there is no provision for a interlocutory appeal from such a ruling. Cook
v. State, supra. Therefore, until the evidence which is the subject of a motion to suppress is
stricken, it remains in the record for consideration by the court and, as evidence, it may be
used to determine if there is probable cause to bind over an accused for trial.
Accordingly, respondent's motion to dismiss is granted and this appeal is dismissed.
____________
86 Nev. 145, 145 (1970) Scott v. State
GREGORY SCOTT, Appellant, v. STATE
Nos. 5897 and 5901
February 27, 1970 465 P.2d 620
Consolidated appeals from judgments of the Second Judicial District Court, Washoe
County; Case No. 5897, John E. Gabrielli, Judge; Case No. 5901, John W. Barrett, Judge.
Defendant was convicted in separate trials in the district court of two robberies and he
appealed. The appeals were consolidated for argument. The Supreme Court, Thompson, J.,
held that gun and money taken from defendant's automobile three days after defendant's arrest
during search of automobile without warrant or consent and while it was in police custody to
see if automobile was stolen were products of an illegal search and seizure and admission of
the gun and money was not harmless error in prosecution wherein conflicting testimony of
eyewitness and defendant raised question as to robber's identity, but admission of gun was
harmless error in case where defendant did not testify and witness' positive identification of
defendant as robber was corroborated.
Case No. 5897 is affirmed.
Case No. 5901 is reversed and remanded for a new trial.
Collins, C. J., dissented.
J. Rayner Kjeldsen, of Reno, for Appellant.
1. Arrest.
Search of defendant's automobile made at police impound lot three days after defendant's arrest was not
incident to arrest.
2. Arrest.
Where search of automobile is not aimed at finding evidence related to crime for which defendant was
arrested, it is invalid even though it is conducted shortly after arrest at nearby police
station.
86 Nev. 145, 146 (1970) Scott v. State
even though it is conducted shortly after arrest at nearby police station.
3. Arrest.
Gun and money taken from defendant's automobile three days after defendant's arrest during search of
automobile without warrant or consent and while it was in police custody to see if automobile was stolen
were products of an illegal search and seizure. U.S.C.A.Const. Amend. 4.
4. Criminal Law.
Automatic reversal is not mandated when evidence obtained by means of unreasonable search and seizure
is received at trial, but reviewing court cannot declare federal constitutional error harmless unless court
sincerely believes that it was harmless beyond reasonable doubt. U.S.C.A.Const. Amend. 4.
5. Criminal Law.
Admission of gun and money which were the product of an illegal search in prosecution against
defendant for robbery was not harmless error where conflicting testimony of eyewitness and defendant
raised question as to robber's identity. U.S.C.A.Const. Amend. 4.
6. Criminal Law.
Admission of gun which was product of illegal search was harmless error in case where defendant,
charged with robbery, did not testify and witness' positive identification of defendant as robber was
corroborated. U.S.C.A.Const. Amend. 4.
OPINION
These direct appeals were consolidated for argument since the claimed errors in each case
are identical. Scott was convicted in separate trials of the Zanzibar Motel and Holiday Inn
robberies. The main question is whether certain items of evidence found in the small console
compartment ahead of the gearshift handle of Scott's automobile were the product of an
illegal search. The search was made without a warrant, was not incident to Scott's arrest, nor
consented to by him. Nonetheless, the State contends that the search and seizure of evidence
was reasonable within the context of this case and not violative of the proscriptions of the
Fourth Amendment.
The challenged search occurred at the police impound lot three days after Scott's arrest.
His car had been twice previously searched by police officers, initially at the time of arrest
and again the following day at the impound lot. The second search was pursuant to a warrant.
Neither search turned up incriminating evidence.
86 Nev. 145, 147 (1970) Scott v. State
The third search, with which we are concerned, came about in the following manner. A
police officer assigned to the auto theft department checked out the impound report on the
car. He learned that no evidence of registration was taken from the car when impounded and
none was found on Scott's person when he was arrested. The car bore an Alabama license
plate. In checking with Alabama the officer was informed that the serial number on the car, a
Mercury, had never been registered in Alabama. Although the license plate on the Mercury
was registered to Scott, it belonged to a 1967 Chevrolet. With this information the officer
decided to search the car for some formal indicia of ownership. He found none. However, he
did find a gun and some money in the small console compartment ahead of the gearshift
handle. These items were received in evidence at the trials which followed.
[Headnote 1]
1. The proper starting point for our discussion is the important United States Supreme
Court opinion in Preston v. United States, 376 U.S. 364 (1964). In that case the police
arrested three men for vagrancy after receiving a report that the men were acting suspiciously
because they had spent most of the night seated in a motor car parked in a business district.
When arrested, they were searched for weapons and then taken to the police station. The car
was not searched at that time. Later the police towed the car to a garage and twice searched it.
They found evidence of a planned robbery for which the trio was charged and convicted.
These searches were without warrants. The prosecutor attempted to justify them on the
ground that they were incident to a lawful arrest. The High Court rejected that contention in
these words: The rule allowing contemporaneous searches is justified, for example, by the
need to seize weapons and other things which might be used to assault an officer or effect an
escape, as well as by the need to prevent the destruction of evidence of the crimethings
which might easily happen where the weapon or evidence is on the accused's person or under
his immediate control. But these justifications are absent where a search is remote in time and
place from the arrest. Once an accused is under arrest and in custody, then a search made at
another place, without a warrant, is simply not incident to the arrest. Id. at 367. It is apparent
that the search in the instant matter was not incident to Scott's arrest, since it was remote in
time and place from his arrest. Thurlow v. State, 81 Nev. 510, 406 P.2d 91S {1965).1
Indeed, the State does not suggest that the search may be upheld as a search incident to
arrest.
86 Nev. 145, 148 (1970) Scott v. State
P.2d 918 (1965).
1
Indeed, the State does not suggest that the search may be upheld as a
search incident to arrest. The State does urge, however, that Preston does not automatically
invalidate every search which is remote in time and place from the arrest. All that Preston
stands for, according to the State, is that such a search cannot be deemed incident to arrest.
Consequently, other circumstances may exist in a particular case which will allow a court to
declare a search reasonable within the intendment of the Fourth Amendment notwithstanding
the fact that it was not substantially contemporaneous with the arrest. We are referred to the
post-Preston opinions of the High Court in Cooper v. California, 386 U.S. 58 (1967), and
Harris v. United States, 390 U.8. 234 (1967), and to the California intermediate appellate
court opinion of People v. Prochnau, 59 Cal.Rptr. 265 (1967). We turn to consider this
contention.
2. Cooper v. California, supra, upheld a warrantless search of a car impounded as
evidence pursuant to a state statute. The police there were required to seize the car and to
keep it until forfeiture proceedings could be completed. The search occurred a week after
Cooper's arrest. In those limited circumstances the court wrote, it would be unreasonable to
hold that the police, having to retain the car in their custody for such a length of time, had no
right, even for their own protection to search it. Id. at 61-62. Cf. NRS 453.145 directing
forfeiture of an automobile used for the illegal keeping of narcotic drugs. And in Harris v.
United States, supra, an examination of an impounded car was upheld because, while engaged
in the performance of their duty to protect the car, the police came across incriminating
evidence which was plainly visible. Indeed, in that case there was no search at all, and the
question was whether evidence in plain view was subject to seizure.
[Headnote 2]
It is apparent that the doctrine of Cooper does not validate the search in this case. Scott's
car was not impounded pursuant to a state statute directing such conduct when a car is used to
keep or transport narcotics, as was the case in Cooper. Moreover, the purpose of the instant
search was not related to the crime for which Scott was arrested. That relationship existed in
Cooper. Here, the two prior searches were conducted to find evidence of the robberies and
nothing was discovered.
____________________

1
In the later decision of Heffley v. State, 83 Nev. 100, 423 P.2d 666 (1967), one justice dissenting, Preston
and Thurlow were not followed. That decision was recently set aside by the Ninth Circuit Court of Appeals,
Heffley v. Hocker, 420 F.2d 881 (1969).
86 Nev. 145, 149 (1970) Scott v. State
find evidence of the robberies and nothing was discovered. The third search was to ascertain
whether a different crime had been committedauto theft. This significant fact also
distinguishes this case from the California intermediate appellate court decision of People v.
Prochnau, supra. Indeed, where the search is not aimed at finding evidence related to the
crime for which the defendant was arrested, it has been held invalid even though conducted
shortly after the arrest at a nearby police station. Barnett v. United States, 384 F.2d 848 (5
Cir. 1967).
Neither is Harris v. United States, supra, of aid to the State. We simply may not conclude,
as did the Court in Harris, that there was no search since the incriminating evidence was in
plain sight. Here, the evidence was hidden. Neither Cooper nor Harris have materially diluted
the doctrine of Preston. That doctrine continues to be viable as is evidenced by the High
Court's reliance upon it in Dyke v. Taylor Implement Co., 391 U.S. 216 (1969), and its
approving reference to Preston in Chimel v. California, 395 U.S. 782 (1969).
[Headnote 3]
Finally, we must accord due respect to the recent decision of the Ninth Circuit Court of
Appeals in Heffley v. Hocker, supra, footnote 1. That decision used the doctrine of Preston to
overturn our decision in Heffley v. State, 83 Nev. 100, 423 P.2d 666 (1967). We hold,
therefore, that the challenged search violated the Fourth Amendment.
[Headnote 4]
3. The State suggests that if constitutional error occurred, it was harmless. It is true that an
automatic reversal is not mandated when evidence obtained by means of an unreasonable
search and seizure is received at trial. Thurlow v. State, 81 Nev. 510, 516, 406 P.2d 918
(1965); Fahy v. Connecticut, 375 U.S. 85 (1963). We may review the record with the doctrine
of harmless error in mind. The applicable standard, however, is strict. We cannot declare
federal constitutional error harmless unless we sincerely believe that it was harmless beyond a
reasonable doubt. Chapman v. California, 386 U.S. 18 (1967).
[Headnote 5]
Applying the Chapman standard to the Zanzibar Motel case we are unable to conclude that
the error was harmless as to Scott. The robbery was at gun point and $134 was taken from the
till. The challenged search of Scott's car produced a gun and $134, and these were received in
evidence at the trial.
86 Nev. 145, 150 (1970) Scott v. State
Although eyewitnesses identified Scott as the robber, Scott testified that he was not the
perpetrator. The gun and money must have had a significant effect in persuading the jury to
reject Scott's disclaimer.
[Headnote 6]
The Holiday Inn case is a different matter. Scott did not testify at that trial. The State's
main witness positively identified Scott as the robber and that identification was corroborated
to some extent by the testimony of a handwriting expert who compared Scott's registration
card at the Inn with an exemplar of his handwriting and found both to have been written by
the same person. The introduction of the gun into evidence without the fruits of the robbery
was insignificant and harmless.
We have examined all other claims of error in each case and find them to be without merit.
The conviction in the Zanzibar Motel case is reversed and that matter is remanded for a
new trial. The conviction in the Holiday Inn case is affirmed.
Zenoff, Batjer, and Mowbray, JJ., concur.
Collins, C. J., dissenting:
It appears to me there is a theory upon which the evidence found by the police officer in
the third search may be admissible and not in violation of appellant's Fourth Amendment
rights.
In Katz v. United States, 389 U.S. 347 (1967), the U.S. Supreme Court held that the
Fourth Amendment protects People, not places. Id. 351. Mr. Justice Stewart, speaking for the
court, said, . . . once it is recognized that the Fourth Amendment protects peopleand not
simply areasagainst unreasonable searches and seizures, it becomes clear that the reach
of the Fourth Amendment cannot turn upon the presence or absence of physical intrusion into
any given enclosure. Id. 353. In a concurring opinion, Mr. Justice Harlan explained the
meaning of Katz in a slightly different way. He said, My understanding of the rule that has
emerged from prior decisions is that there is a twofold requirement, first, that a person have
exhibited a actual (subjective) expectation of privacy and, second, that the expectation be one
that society is prepared to recognize as reasonable.' Id. 361. I am of the opinion that Katz
controls the admissibility of evidence in this case rather than Preston v. United States, 376
U.S. 364 (1964), and Heffley v. Hocker, 420 F.2d 881 (1969).
86 Nev. 145, 151 (1970) Scott v. State
The gun and money found in the console compartment of the automobile by the third
officer whose search was not incident to appellant's arrest nor pursuant to a search warrant,
was properly admitted for two reasons: first, the expectation of privacy which the Fourth
Amendment protects had already been thwarted by the prior search warrant, and nothing was
left to be protected by the issuance of another warrant. Katz v. United States, supra. Second,
since the third search did not exceed the scope of the second search which was predicated
upon a valid search warrant, no end is served by excluding otherwise admissible and relevant
evidence. Hence, it was not unreasonable.
As indicated in Katz, the Fourth Amendment now protects an individual's expectation of
privacy, not a particular area. Appellant's expectations of privacy as to anything secretly
hidden in the automobile were effectively thwarted by the second search under a warrant.
There was no justifiable reliance by appellant on privacy of the contents of the automobile
following the second search. See From Private Places to Personal Privacy: A Post-Katz Study
of Fourth Amendment Protection, 43 N.Y.U.L.Rev. 968 (1968). The automobile was
constantly in custody of the police from the time of the second search until the third search.
Appellant therefore had no opportunity to re-establish any justifiable reliance on privacy in
the contents of the automobile. Had the automobile been restored to appellant's custody, then
his Fourth Amendment rights can be said to have been revitalized. But to preclude a third
search under the circumstances present here would be to exalt form over substance and add
nothing to the protection of appellant's Fourth Amendment rights.
I would sustain both convictions.
____________
86 Nev. 151, 151 (1970) Pahlmann v. First National Bank
JOHN H. PAHLMANN, as Successor Trustee for Two Trusts for the Benefit of JOSEPH
DAVIDOW NEWMAN, Appellant, v. FIRST NATIONAL BANK OF NEVADA AND
MERCANTILE TRUST COMPANY NATIONAL ASSOCIATION, Co-Executors,
Respondents.
No. 5821
March 2, 1970 465 P.2d 616
Appeal from the Eighth Judicial District Court, Clark County; John Mendoza, Judge.
Proceeding on successor trustee's motion to file late claims against decedent's estate. The
district court entered judgment for administrators of estate and successor trustee appealed.
The Supreme Court, Collins, C. J., held that successor trustee named in decedent's will did
not become trustee until he committed an affirmative act manifesting acceptance of
trusteeship and where he did not manifest acceptance until after time for filing claim against
estate had expired, claim submitted against estate by trustee on behalf of trust should have
been allowed even though trustee, as an individual, had notice of period within which to file
claims against estate.
Reversed and remanded for further proceedings.
Calvin C. Magleby, of Las Vegas, and Israel Treiman, of St. Louis, Missouri, for
Appellant.
Wiener, Goldwater & Galatz, John Marshall and J. Charles Thompson, of Las Vegas, for
Respondents.
1. Trusts.
Person designated as trustee by another must accept trusteeship before he is chargeable with those
responsibilities.
2. Trusts.
Neither acceptance nor disclaimer of trusteeship requires any specific formality to be effective.
3. Trusts.
Inaction on part of named trustee should be deemed disclaimer of trusteeship.
4. Executors and Administrators; Trusts.
Successor trustee named in decedent's will did not become trustee until he committed an affirmative act
manifesting acceptance of trusteeship and, where he did not manifest acceptance until after time for filing
claim against decedent's estate had expired, claim submitted against estate on behalf of trust by trustee
should have been allowed even though trustee, as an individual, had notice of period within which to file
claims against estate. NRS 147.040, 147.040, subd. 1.
5. Executors and Administrators.
Claim filed by successor trustee against estate of decedent for failure of decedent, as trustee of trust in
favor of his son, to pay over proceeds of check in repayment of loan made by trustee from trust funds was
not claim which was required to be filed within three months from first publication of notice to decedent's
creditors. NRS 147.070, 147.040, subd. 1.
Failure of trust beneficiary who was also named as cotrustee to file claims against decedent's estate on
behalf of trust did not estop successor trustee from making claim against estate where beneficiary's powers
as cotrustee were so restricted that it was doubtful that he had authority to file such claims.
doubtful that he had authority to file such claims. NRS 11.010, 11.190, subd. 3(d).
OPINION
This is an appeal from an order and judgment thereon denying a motion to file late claims
against the Estate of Joseph Newman, deceased, by a successor trustee of two trusts for
alleged breach of trust by decedent, the original trustee.
We reverse the lower court's order and remand for a further hearing.
In 1946, Joseph and Beatrice Newman, residents of St. Louis, Missouri, established
identical trusts for their infant son, Joseph D. Newman. Joseph was named trustee for both
trusts, which were to terminate when Joseph D. reached are 50. If he died before 50, his
surviving wife and children, if any, were alternate beneficiaries. Joseph D. is now married
and has one child. In 1966 the trust instruments were amended to allow trustee Joseph to
appoint successor trustees by will or other instrument after first giving written notice to
beneficiaries entitled to income from the trusts. Also at that time, Joseph D. was named
co-trustee, but his powers were greatly restricted and the instruments vested the sole right to
exercise all the powers, duties, rights and privileges over the trust to Joseph as senior trustee
or the successor trustees named by Joseph. In 1967, after Joseph moved to Las Vegas,
Nevada, he and Beatrice were divorced. On December 8, 1967, Joseph was killed in an
airplane crash in Lima, Peru.
John H. Pahlmann and the Mercantile Trust Company, N. A., both of St. Louis, were
named as co-executors in Joseph's will. Pahlmann declined the appointment. Mercantile and
the First National Bank of Nevada, Las Vegas, were then appointed co-executors and letters
testamentary issued to them in Las Vegas on February 15, 1968.
The will also named Pahlmann as successor, senior trustee of the two trusts. He did not,
however, immediately assume those duties. Neither did he expressly decline them.
The basic documents relating to Joseph's estate were found among his effects in Las
Vegas. The First National Bank assembled them and placed them in two boxes which were
mailed to the Mercantile Trust Company in St. Louis. Both boxes arrived there, but one box,
assumed to have contained the original trust instruments, was inadvertently destroyed as
trash.
trash. That box and the documents it contained were never found. Its loss created the
problems causing this suit and resulting appeal.
The evidence before the lower court, although conflicting, indicates Pahlmann, upon the
advice of counsel, would not accept the responsibilities as successor trustee until the original
documents conclusively establishing his authority were found. They were never found.
Unsigned copies of the amendments to the trust instruments were finally located in an
attorney's office in St. Louis, and upon the petition of Joseph D. Newman, as beneficiary,
contending they were copies of the lost originals, Pahlmann was finally appointed successor,
senior trustee of the two trusts by order of a St. Louis court on July 25, 1968. He immediately
entered upon his duties.
Meanwhile, the co-executor of Joseph's estate in Las Vegas gave notice to creditors. The
time for filing claims expired on May 16, 1968.
Approximately 1 1/2 months after his court appointment as successor, senior trustee,
Pahlmann submitted claims against Joseph's estate, alleging Joseph Newman, as trustee of the
two trusts, had made unlawful loans from trust funds in the amount of $307,328 to companies
owned and operated by Joseph D. and a cashier's check in the amount of $32,078.24, payable
to and endorsed by Joseph D. and given to his father, Joseph, for repayment to the trusts of a
loan made by Joseph to third parties, was never credited to the trusts but apparently was
cashed and used by Joseph personally. The co-executors of Joseph's estate denied the claims
because they were filed after notice to creditors had expired on May 16, 1968. Suit was
brought, and a judgment entered denying the right to file the claims, from which this appeal
was taken.
The lower court, in ruling upon the motion to file late claims, presumed that Pahlmann or
Joseph D. Newman were trustees prior to the time when notice to creditors expired on May
16, 1968, found they had actual notice of the probate of Joseph Newman's estate in Las
Vegas, and relying upon our decision in Gardner Hotel Supply v. Estate of Clark, 83 Nev.
388, 432 P.2d 495 (1967), and Continental Coffee Co. v. Estate of Clark, 84 Nev. 208, 438
P.2d 818 (1968), denied the motions for late filing of the claims. We think that was error
requiring reversal and remand for further hearing and findings.
With those circumstances in mind, we think the issues dispositive of the appeal before us
are these: I.
I. May a person named as a trustee be deemed a trustee before he acts in that capacity if he
has not expressly accepted or rejected the appointment?
II. If the statutory time for filing claims against an estate runs before a person becomes a
trustee and he had notice as an individual within the statutory time period, may be, after
appointment as a trustee, claim lack of notice that would warrant his filing late claims on
behalf of the trust?
1. We think it was necessary for the lower court to first decide from the conflicting
evidence before it whether Pahlmann or Joseph D. were trustees of the two trusts prior to the
running of the statutory time for filing of claims against Joseph's estate. If they were, then the
court's finding they had actual notice of the pending of the probate would, under certain
circumstances, preclude the late filing of the $307,328 claim under our Gardner and
Continental decisions. The $32,078.24 claim is governed by a different rule and would not be
barred in any event, as will be hereinafter discussed.
[Headnote 1]
A person designated a trustee by another must accept the trusteeship before he is
chargeable with those responsibilities. See Mavrich v. Grier, 3 Nev. 52, 57 (1867). In G.
Bogert, The Law of Trusts and Trustees 150, at 64-65 (2d ed. 1965), it is written: The
cases fully sustain the position that a trustee named in a deed or will always has the election
of accepting the trust or rejecting it. No one can be compelled to undertake the burdens of
trusteeship against his desire. Thus, acceptance of a trust is necessary to the commencement
of a trusteeship with a particular trustee acting in the representative position. (Emphasis
added.) See also 1 A. Scott, The Law of Trusts 35, at 287 (3d ed. 1967), and Restatement
(Second) of Trusts 102, comment (a) (1959).
[Headnotes 2, 3]
Neither acceptance nor disclaimer requires any specific formality to be effective. Conduct
will suffice. See Restatement (Second) of Trusts, supra, comments (b) & (c); G. Bogert,
supra, 150, at 72-73; 2 A. Scott, supra, 102.1. Inaction on the part of a named trustee
should be deemed a disclaimer. The rule we think should be followed is stated in G. Bogert,
supra, at 72-73: Since the trust does involve a relation requiring high good faith and much
responsibility, it seems of doubtful expediency to indulge in presumptions of acceptance
where there is no affirmative action by the trustee.
trustee. Such presumptions are fictional. It is better to demand proof of some active step in
order to fasten the burdens of the trusteeship on a particular individual.
[Headnote 4]
2. If Pahlmann and Joseph D. are determined not to be trustees prior to the expiration of
notice to creditors on May 16, 1968, then it does not appear to us there was anyone with
authority to act on behalf of the trusts who could be chargeable with notice during the running
of the statutory period within which to file claims against Joseph Newman's estate. NRS
147.040 and our decisions in Gardner and Continental presume there is some person in either
an individual or authorized representative capacity capable of receiving the statutory notice.
Prior to their appointment or acceptance of trusteeship, neither Pahlmann nor Joseph D.
would have capacity to act for the trusts or to receive notice for the trusts.
[Headnote 5]
3. The claim for failure of Joseph to pay over to the trusts the check for $32,078.24 in
repayment of a loan made by him from trust funds is not a claim within the contemplation of
NRS 147.040(1). This court held in Reed v. District Court, 75 Nev. 338, 341 P.2d 100
(1959), that not all rights asserted against a decedent are included within the bar of
nonclaim. An example is the recovery of property held by the decedent in trust. Since such
property does not form a portion of the assets of the estate, its recovery in no wise diminishes
the estate and a claim to it is not a claim against the property constituting the estate. Accord,
Lewis v. Neblett, 10 Cal.Rptr. 441 (Dist.Ct.App. 1961).
If there is cash in the estate of Joseph Newman, deceased, and funds from the cashed
check can be traced by the successor trustee into his estate, those funds would be trust
property and not an asset of the estate subject to creditors' claims under NRS 147.040. The
claim is for breach of trust to recover specific, fungible property not belonging to Joseph
Newman, the individual, nor his estate. See G. Bogert, supra, 924, at 331.
4. Since this case must be retried, we think the court and counsel should consider whether
the $307,328 claim is one that existed at all during the running of the statutory period
prescribed by NRS 147.040. The facts appear to show that Joseph Newman's lending of those
trust funds was a breach of his fiduciary duty to the trusts. If it is determined that his breach
of duty arose from fraud or mistake, it may be that NRS 11.190{3){d)1 would apply.
NRS 11.190(3)(d)
1
would apply. If a claim against an estate is equivalent to a civil action
which can only be commenced after the cause of action shall have accrued (NRS 11.010), a
determination may be required whether the successor trustees Pahlmann and Joseph D.
Newman acquired sufficient knowledge of the facts giving rise to the claim or cause of action
before the running of the statutory period.
[Headnote 6]
5. We hold that Joseph D. Newman's failure to take action, if found to be a trustee, before
the claim period ran, or as a beneficiary, does not estop the trusts from making claim against
the estate of Joseph Newman. Joseph D.'s wife and child were contingent beneficiaries if he
were to die before 50. Their rights in the trust property were entitled to protection. His right
to act, even if he were deemed to be a trustee prior to running of the claim period, was so
limited it is doubtful the duty even fell to him. His failure as a beneficiary to act, if such is
found to be the case, cannot be allowed to prejudice the rights of the other beneficiaries
whose rights were entitled to be protected by the senior successor trustee Pahlmann.
Accordingly, the judgment is reversed and the proceeding remanded for rehearing in
accordance with the views expressed herein.
____________
86 Nev. 157, 157 (1970) Hampton v. Sheriff
BILLY DOYLE HAMPTON, Appellant, v. SHERIFF,
No. 6001
March 2, 1970 465 P.2d 615
Appeal from order of Eighth Judicial District Court, Clark County, denying pretrial
application for writ of habeas corpus; Thomas J. O'Donnell, Judge.
The Supreme Court held that any delay in brining petitioner to trial was a direct result of
his conduct and choice of procedural maneuvers, where petitioner had, either personally or
through his various attorneys, filed more than 20 motions and applications for writs,
where he had caused the arraignment to be postponed seven times and the trial dates
reset twice, where he had discharged three attorneys who were appointed by the court to
conduct his defense and then sought to represent himself, and where he had refused to
submit to a psychiatric examination after having consented to the same.
____________________

1
A cause of action for fraud or mistake is not deemed to have accrued until the discovery by the aggrieved
party of the facts constituting the fraud or mistake.
through his various attorneys, filed more than 20 motions and applications for writs, where he
had caused the arraignment to be postponed seven times and the trial dates reset twice, where
he had discharged three attorneys who were appointed by the court to conduct his defense and
then sought to represent himself, and where he had refused to submit to a psychiatric
examination after having consented to the same.
Affirmed.
Oscar B. Goodman, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General; George E. Franklin, Jr., District Attorney, and Lorin
D. Parraguirre, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Every person accused of a crime has the fundamental constitutional right to a speedy trial.
2. Criminal Law.
Any delay in bringing habeas corpus petitioner to trial was a direct result of his conduct and choice of
procedural maneuvers, where the petitioner had, either personally or through his various attorneys, filed
more than 20 motions and applications for writs, where he had caused the arraignment to be postponed
seven times and the trial dates reset twice, where he had discharged three attorneys who were appointed by
the court to conduct his defense and then sought to represent himself, and where he had refused to submit
to a psychiatric examination after having consented to the same. NRS 178.556, 207.010.
OPINION
Per Curiam:
After preliminary hearing on December 9, 1968, the appellant was bound over to district
court for trial on a charge of assault with intent to commit rape (NRS 200.400). On December
31, 1968, an information was filed against appellant on that charge, and on February 4, 1969,
the state filed an amended information, without objection, including the additional charge of
being an habitual criminal (NRS 207.010). On March 24, 1969, the appellant sent to the
district court a handwritten petition for habeas corpus, which was received by that court on or
about April 3, 1969. In the petition the appellant sought to invoke the 60-day rule (NRS
178.556). On April 15, 1969, the appellant's pretrial habeas was denied, and it is from that
order that this appeal is taken.
[Headnote 1]
At the outset it is conceded that it is the fundamental constitutional right of every person
accused of a crime to a speedy trial, and that principle requires no citation of authority.
However, we have held that whether or not that right has been denied depends upon the
circumstances of the particular case. Bates v. State, 84 Nev. 43, 436 P.2d 27 (1968); Stone v.
State, 85 Nev. 60 450 P.2d 136 (1969).
[Headnote 2]
In this case, between the date of the preliminary hearing and the denial of habeas, appellant
either personally or through his various attorneys, filed more than twenty motions and
applications for writs; caused the arraignment to be postponed some seven times, and the trial
dates to be reset twice; discharged three attorneys who were appointed by the court to conduct
his defense, and then sought to represent himself, and refused to submit to a psychiatric
examination after having consented to the same. From an examination of the record it is
abundantly clear that any delay in bringing the appellant to trial was a direct result of his
conduct and choice of procedural maneuvers. There is no evidence to support the appellant's
contention that the state denied him his constitutional rights. Klopfer v. North Carolina, 386
U.S. 213 (1967); Bates v. State, supra; Barker v. State, 84 Nev. 224, 438 P.2d 798 (1968);
Nall v. State, 85 Nev. 1, 448 P.2d 826 (1969).
Accordingly, the order denying the application for pretrial habeas corpus is affirmed, and
the matter is remanded for trial.
____________
86 Nev. 159, 159 (1970) Lucas v. Sheriff
GLENN LUCAS, Appellant, v. SHERIFF OF LYON
No. 6094
March 4, 1970 466 P.2d 659
Appeal from order of the First Judicial District Court, Lyon County, denying habeas relief;
Frank B. Gregory, Judge.
Petition for habeas corpus. The district court denied relief, and petitioner appealed. The
Supreme Court, Thompson, J., held that petitioner's claim, that to permit his extradition to
another state to stand trial on charge of being an accessory before the fact to murder would
constitute a violation of his right not to be put twice in jeopardy for same offense in that
crime of murder with which he had been previously charged, tried and convicted within
asylum state arose out of same series of events forming basis of crime for which
extradition was sought would have to be presented, if at all, to courts of demanding state.
right not to be put twice in jeopardy for same offense in that crime of murder with which he
had been previously charged, tried and convicted within asylum state arose out of same series
of events forming basis of crime for which extradition was sought would have to be
presented, if at all, to courts of demanding state.
Affirmed.
Martillaro & Bucchianeri, of Carson City, for Appellant.
Harvey Dickerson, Attorney General, and Daniel R. Walsh, Deputy Attorney General, for
Respondent.
Habeas Corpus.
Accused's constitutional right not to twice be put in jeopardy for same offense is an
issue to be decided by courts of demanding state and is not to be considered by asylum
state when extradition is requested. U.S.C.A.Const. Amend. 5.
OPINION
This is an appeal from an order of the district court denying the petition of Glenn Lucas for
a writ of habeas corpus. The petition sought to preclude the extradition of Lucas to the State
of Wyoming to stand trial upon the charge of being an accessory before the fact to the murder
of one Larry Olinger. Lucas previously had been charged in Nevada with the murder of
Olinger, tried upon that charge and acquitted by a jury. The record before us shows that the
papers received from the demanding state are in proper form; that the Glenn Lucas therein
described is the Glenn Lucas found in Nevada; that he is a fugitive from justice, and has been
charged in Wyoming with a substantial crime. Notwithstanding these factors, it is the
contention of the petitioner that extradition is not warranted since the crime for which he was
tried in Nevada arose out of the same series of events forming the basis of the crime with
which he is now charged in Wyoming. By reason of this circumstance, he argues that his Fifth
Amendment right not to be twice put in jeopardy from the same offense is violated. We reject
this argument and affirm the order entered below.
In line with established law elsewhere we recently ruled that an accused's constitutional
right to a speedy trial is an issue to be decided by the courts of the demanding state, and is not
to be considered by the asylum state when extradition is requested.
requested. Roberts v. Hocker, 85 Nev. 390, 456 P.2d 425 (1969). We now apply that rule to
an accused's right not to twice be put in jeopardy for the same offense. That contention must
be presented, if at all, to the courts of the demanding state. People v. Reilly, 240 N.Y.S. 27
(Sp.Ct.App.Div. N.Y. 1930). To hold otherwise would make interstate accommodation of
criminal matters in our mobile society difficult of achievement.
Affirmed.
____________
86 Nev. 161, 161 (1970) Law v. State
ELMO LAW, Appellant, v. THE STATE
No. 6033
March 5, 1970 466 P.2d 656
Appeal from a judgment on conviction for the crime of first degree burglary after a jury
trial, Eighth Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.
Defendant was convicted in the district court of burglary in the first degree and he
appealed. The Supreme Court held that evidence was sufficient to support conviction.
Affirmed.
Burglary.
Evidence was sufficient to support conviction for first degree burglary.
OPINION
Per Curiam:
The briefs and the record on appeal having been given full consideration, and finding that
there is substantial competent evidence in the record to support the jury verdict below, and
that the appellant has failed to demonstrate reversible error, the respondent's motion to
dismiss this appeal is granted, and this appeal is dismissed.
86 Nev. 161, 162 (1970) Law v. State
that the appellant has failed to demonstrate reversible error, the respondent's motion to
dismiss this appeal is granted, and this appeal is dismissed. Anders v. California, 386 U.S.
738 (1967), and Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969).
____________
86 Nev. 162, 162 (1970) Wammack v. Sheriff
JOE LAWRENCE WAMMACK, Appellant, v. SHERIFF,
WASHOE COUNTY, NEVADA, Respondent.
No. 6031
March 6, 1970 466 P.2d 849
Appeal from an order of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Application for writ of habeas corpus. The district court denied application, and applicant
appealed. The Supreme Court held that petitioner's constitutional rights were not violated on
theory that state failed to take him before a magistrate without unnecessary delay, as required
by statute, where petitioner was in federal custody throughout times complained of and arrest
was not made after issuance of complaint.
Affirmed.
Ralph M. Tucker, of Reno, for Appellant
1. Criminal Law.
Petitioner's constitutional rights were not violated on theory that state failed to take him before a
magistrate without unnecessary delay, as required by statute, where petitioner was in federal custody
throughout times complained of and arrest was not made after issuance of complaint. NRS 171.178.
2. Criminal Law.
Statute governing appearance before a magistrate is applicable to persons who are under arrest on a
complaint or in event of warrantless arrest. NRS 171.178.
3. Criminal Law.
Petitioner was not denied right to speedy trial where proof was not clear when request for speedy trial
was made, when it was received by district court or when it was made known to district attorney and it was
found that district attorney acted with due diligence and within a reasonable time after
becoming aware of demand and that there was no undue delay which operated to
petitioner's detriment.
86 Nev. 162, 163 (1970) Wammack v. Sheriff
due diligence and within a reasonable time after becoming aware of demand and that there was no undue
delay which operated to petitioner's detriment.
OPINION
Per Curiam:
This is an appeal from an order of the Second Judicial District Court denying appellant's
application for a writ of habeas corpus.
[Headnotes 1, 2]
Appellant first contends that his constitutional rights were violated by the State when it
failed to take him before a magistrate without unnecessary delay as required by NRS 171.178.
He was in federal custody throughout the times complained of, and an arrest was not made
after issuance of the complaint. NRS 171.178 is applicable to persons who are under arrest on
a complaint or in the event of a warrantless arrest. Tellis v. Sheriff, 85 Nev. 557, 459 P.2d
364 (1969). Accordingly, there is no merit to this contention because appellant was not placed
under such arrest as is contemplated by NRS 171.178.
[Headnote 3]
Appellant further contends that he made a demand to be brought to trial on the State
charge, and that irrespective thereof the State denied him his right to a speedy trial. However,
the proof is not clear when appellant made his request for a speedy trial, or when it was
received by the district court, or when it was made known to the district attorney.
Accordingly, there is nothing in the record which tends to substantiate this contention.
The court below found that the district attorney acted with due diligence and within a
reasonable time after becoming aware of the demand for a speedy trial, and that there was no
undue delay which operated to the detriment of appellant. We find no error below and,
accordingly, the denial of the application for a writ of habeas corpus is affirmed.
____________
86 Nev. 164, 164 (1970) Second Baptist Church v. Mount Zion Baptist Church
SECOND BAPTIST CHURCH OF RENO, NEVADA a Nevada Corporation, Appellant, v.
MOUNT ZION BAPTIST CHURCH, a Nevada Corporation, LeROY W. MOSES, REV.
WILLIAM C. WEBB, FLORA D. HOUSTON, SYLVESTER G. SCOTT, WOODVUL
ROBERSON, CORDELIA TATUM, HOWARD JONES, FLORENCE BELL, AUTRIE
ANDERSON and JAMES C. THIGPEN, Respondents.
No. 5798
March 11, 1970 466 P.2d 212
Appeal from judgment of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Action between church factions to determine which was entitled to use of church name
and to possession of church funds and property. The district court entered its judgment and
the losing faction appealed. The Supreme Court, Batjer, J., held that where congregation had
taken no steps to determine that failure of two members to attend and contribute was without
reason within provision of church bylaws pertaining to expulsion, the two members were
eligible to vote in church election even though they had moved from city prior to date that
eligibility to vote was fixed.
Affirmed.
Robert R. Herz, of Reno, for Appellant.
Charles L. Kellar, of Las Vegas, for Respondents.
1. Religious Societies.
The district court has authority and power to order and supervise a church election. NRS 86.110, subd.
1.
A Baptist church is congregational in nature and will of the church is expressed by a majority vote of its
members.
In supervising election to determine which faction of church was entitled to use of church name and to
possession of church property, trial court properly required each side to submit list of members claimed to
be eligible to vote, amalgamated the list and allowed challenges at time ballots were cast and properly
permitted each member of congregation, whose name appeared on amalgamated list, to vote, subject to
challenge.
Membership in a church must be determined objectively by the congregation, in light of its constitution
and bylaws.
Subjective statement by an individual expressing his belief about his membership in a church is of no
evidentiary value in determination of his membership.
Trial court did not abuse its discretion in supervision of church election by its selection of date when
schism in congregation occurred as the date for determination of members' eligibility to vote.
Conduct or status of church members subsequent to date of schism in congregation and date on which
eligibility to vote in church election was established could not be properly considered in determination of
challenges to ballots.
Nonpayment of dues and nonattendance at church services did not ipso facto terminate church
membership under church bylaws which provided for termination when failure to attend and contribute is
without reason.
Where church bylaws provided that failure to attend and contribute must be without reason if member's
name is to be removed from church rolls, member must be given opportunity to appear and give his reason
for his failure to attend or contribute before his name could properly be removed from the rolls.
Where congregation had taken no steps to determine that failure of two members to attend and contribute
was without reason within provision of church bylaws pertaining to expulsion, the two members were
eligible to vote in church election even though they had moved from city prior to date that eligibility to
vote was fixed.
That individual had joined another church was best evidence that individual's membership in church had
been voluntarily terminated.
12. Attorney and Client.
Where counsel for challenging church faction advised trial court that challenged voter had joined another
church subsequent to date on which eligibility to vote in church election was determined, challenging
faction was not entitled to have challenged vote set aside after it had first been allowed because of evidence
that owner had joined another church prior to the eligibility date.
Husband's act of joining another church prior to date of church schism could not properly be imputed to
his wife on challenge to wife's vote in church election.
Trial court's suggestion to disputing church factions that they settle their differences was not error in
action between church factions to determine which faction was entitled to use church name and to
possession of church property.
15. Trial.
It is prerogative of trial court to suggest a settlement in case tried to the court without a jury.
16. Attorney and Client.
Attorney for one of disputing church factions was not guilty of misconduct when he advised trial court
that the opposing faction had refused to settle in action between factions to determine which was entitled to
use church name and to possession of church property.
17. Stipulations.
Where counsel for disputing church factions stipulated to be bound by outcome of church election, losing
faction was not entitled to extricate itself from force and effect of the stipulation.
18. Stipulations.
Stipulations are of inestimable value in administration of justice and valid stipulations are controlling and
conclusive and both trial and appellate courts are bound to enforce them.
19. Stipulations.
Where counsel for both disputing church factions stipulated to be bound by outcome of church election,
trial court properly awarded winning faction church funds which had been interpleaded to the trial court by
the bank in which funds had been deposited.
OPINION
This case involves a dispute between two factions of the Second Baptist Church of Reno,
Nevada, over the control of the church assets and the use of the church name.
In 1965 the church building and real property located at 337 East Eighth Street, Reno,
Nevada, was purchased for the sum of $26,000 by the State of Nevada for a highway
right-of-way. Faced with the problem of having to find a new place to worship, the
congregation, acting through its trustees, started negotiations with the Mount Zion Baptist
Church for merger and acquisition of their church property. These negotiations terminated on
February 6, 1966, when a schism developed in the congregation of the Second Baptist
Church. Part of the congregation stayed with the pastor and worshiped, first at the Mount
Zion site and later at the Grace Baptist Church. The other segment withdrew to worship in the
Pythian Hall at 419 North Virginia Street in Reno, Nevada.
On April 21, 1966, the appellant commenced this action against the respondents.
Innumerable pleadings were filed and various legal maneuvers were pursued by both parties,
including a petition for a writ of prohibition to this court to prevent judicial intervention in
the church controversy. That petition was denied and this court recognized the judicial power
to determine and protect the property rights of religious associations. Mt. Zion Bapt. Ch. v.
Second Bapt. Ch., S3 Nev. 367
determine and protect the property rights of religious associations. Mt. Zion Bapt. Ch. v.
Second Bapt. Ch., 83 Nev. 367, 432 P.2d 328 (1967).
After the writ of prohibition was denied the trial court commenced the trial of the case, but
recessed at the end of the appellant's (plaintiff's) case to afford the litigants an opportunity to
explore the possibility of a settlement. This effort proved fruitless and more legal maneuvers
ensued until May 20, 1968, when the judge of the trial court suggested a church election to
determine which faction constituted the majority of the congregation.
Both parties concurred in the court's suggestion of a supervised election and they each
submitted lists of church members. The lists were amalgamated and all persons on that list
were mailed a notice
1
of the election to be held in Department 1 courtroom, Washoe County
courthouse, under the auspices of the trial court.
There was reserved to each party litigant the right to challenge a voter's eligibility. The
challenged ballot was to be placed in a special envelope and segregated from the
unchallenged ballots, and a challenge hearing was scheduled to be held, if necessary, after the
election. At the time the membership lists were amalgamated, the appellant requested
permission to put all challenged voters under oath and question them about their church
membership.
____________________

1
SECOND BAPTIST CHURCH
Reno, Nevada
NOTICE OF MEETING
PLEASE TAKE NOTICE that, pursuant to an order of the undersigned District Judge of the Second Judicial
District Court in and for the County of Washoe, State of Nevada, a meeting of the Second Baptist Church will be
held in Department No. 1, Third Floor, Washoe County Court House, Reno, Nevada on Friday evening, June 7,
1968 between the hours of 8:00 p.m. and 10:00 p.m. at which time members of the Second Baptist Church as of
February 6, 1966 shall be entitled to vote on the following:
Vote for one
I FAVOR THE CHURCH GROUP AT GRACE BAPTIST
CHURCH, 1265 MONTELLO ST., RENO, NEVADA

I FAVOR THE CHURCH GROUP AT PYTHIAN HALL,
419 NORTH VIRGINIA STREET, RENO, NEVADA

DATED this 22nd day of May, 1968.
/s/ Grant L. Bowen
GRANT L. BOWEN
District Judge
their church membership. This request was denied by the trial judge and he indicated that all
evidence to support each challenge would be considered at the challenge hearing.
The election was held, as scheduled, on June 7, 1968, and there were numerous challenges
made by both sides, so a challenge hearing was held on June 19, 1968. Six of the appellant's
challenges were allowed, while all of the respondents' challenges were denied. The ballots
were then counted and the respondent faction received thirty-one votes to twenty-eight votes
for the appellant faction.
On the basis of the election results the trial court dismissed the appellant's complaint and
adjudged that the respondents were not only entitled to the use of the name, Second Baptist
Church, Reno, Nevada, but were also entitled to all the church property including the cash on
deposit with the court through the interpleader action filed by the First National Bank of
Nevada. The trial court further held that the respondents were entitled to prosecute the action
previously filed against Angass Polk, and to defend or prosecute any other litigation.
Furthermore, the appellant was specifically enjoined from using the name Second Baptist
Church of Reno, Nevada.
The appellant filed a motion for a new trial; a motion to amend judgment; a motion for a
stay of proceedings to enforce judgment, and a motion for a temporary restraining order.
These motions were based principally upon the contention that the trial court erred when it
denied the challenge to the votes cast by Charles Carr, Charlene Carr, Norman Shepard and
Mrs. Norman Shepard. The motions were denied and this appeal is taken from the final
judgment and from the order denying the motions.
The appellant contends that the trial court deprived the appellant of a fair trial and failed to
conduct a fair church election when it established the church voting list as of February 6,
1966, instead of June 7, 1968; when it denied the appellant's motion to strike certain names
from the voting list; when it refused to allow the appellant to examine voting members under
oath; and when it denied the appellant's motion to vacate or quash the election results. The
appellant also contends that the trial court committed error when it urged settlement and that
respondents' counsel committed misconduct when he advised the court that the appellant had
refused to settle. The appellant further contends that the trial court committed error when it
awarded to the respondents the church money that had been deposited with the trial court in
the separate interpleader action.
Cutting through the maze of pleadings, motions, and hearings, it becomes clear that there is
only one basic question. Which faction of the congregation of the Second Baptist Church of
Reno, Nevada, constituted the majority on February 6, 1966?
[Headnote 1]
It is conceded by the parties that a court has the authority and power to order and supervise
a church election. This position has support from the statutes and decided cases. NRS
86.110(1); Mt. Zion Bapt. Ch. v. Second Bapt. Ch., supra; Providence Baptist Church v.
Superior Court, 251 P.2d 10, (Cal. 1952); Burnett v. Banks, 279 P.2d 579 (Cal. 1955).
[Headnote 2]
Furthermore, the parties agree that a Baptist church is congregational in nature and that the
will of the church is expressed by a majority vote of its members. First Independent
Missionary Baptist Ch. v. McMillan, 153 So.2d 337 (Fla. 1963); Austin v. Mt. Zion Prim.
Bapt. Church of West Palm Beach, 165 So.2d 412 (Fla. 1964); Ables v. Garner, 246 S.W.2d
732 (Ark. 1952); Moorman v. Goodman, 157 A.2d 519, 59 N.J. Super. 181 (1960).
Here agreement ends and the appellant attacks the election, its validity, its outcome and
the results that flowed from it.
[Headnote 3]
We find that the trial court followed a logical and sensible procedure when it required each
side to submit a list of members whom they claimed to be eligible to vote, then amalgamated
the lists and allowed challenges at the time the ballots were cast. Each member of the
congregation, whose name appeared on the amalgamated list, was eligible to vote, but subject
to challenge.
The court wisely refused to consider challenges immediately after the membership voting
lists were amalgamated, for at that time there was no way of determining who would be
present to vote. The appellant argues that in lieu of an opportunity to question the alleged
members at the time their names first appeared on the amalgamated list, they should have
been able to put the challenged voter under oath at the polls and question him about his
church membership, or at the very least to put the members under oath before the challenge
hearing and make the inquiry. Such a procedure would have been cumbersome and fraught
with the frailties of a subjective response.
[Headnotes 4, 5]
Membership in a church must be determined objectively by the congregation, in the light of
its constitution and by-laws, and the subjective statement by an individual expressing his
belief about his membership in a church is of almost no evidentiary value. A person could
honestly believe, and so testify, that he is a member of a certain congregation and yet the facts
might show that he had not met or maintained the necessary requirements to be a member.
Knowledge of the amalgamated list afforded both parties ample time and opportunity to
acquire evidence of nonmembership or other disqualifications prior to the challenge hearing,
which was held some twelve days after the election.
[Headnote 6]
While February 6, 1966 was a date distant in time from election day, June 7, 1968, it was the
only date that could have been logically used. That was the day when the schism in the
congregation occurred, and that fact is acknowledged by all parties. It would have been
desirable to hold the election within a few weeks after the schism, however, the parties
engaged in numerous legal maneuvers including an application for a writ of prohibition to
this court, and the election was held at a time determined by the trial court to be the most
convenient. Neither party objected to the holding of the election. As a matter of fact all
parties and their respective attorneys cooperated in the preelection procedures. We find no
abuse of discretion by the trial court.
[Headnote 7]
Neither the trial court nor this court can look to what the individuals whose names appeared
on the voting list did after February 6, 1966, but only to their status in the church before that
date.
The appellant's contention, that the court supervised election was unfair, is based mostly on
the claim that the votes of Charles and Charlene Carr and Mr. and Mrs. Norman Shepard
should not have been counted. Apparently the challenges to the Carr's vote was premised
upon the fact that they had moved from Reno, Nevada before February 6, 1966, and it could
be inferred that they had neither attended church functions nor contributed to its support.
There was testimony by Mrs. Clara Fells that the Carrs had been dropped from the church
rolls, however, her testimony was refuted by the church minutes and was categorically denied
by the church secretary. The appellants urge that the results of the entire election should have
been quashed because one of the respondents' witnesses testified that the Carrs left
Reno, Nevada in June 1966 when other evidence was later produced which indicated they
had moved in June 1965.
been quashed because one of the respondents' witnesses testified that the Carrs left Reno,
Nevada in June 1966 when other evidence was later produced which indicated they had
moved in June 1965. The appellant ignores the fact that its witness, Mrs. Fell, testified that
they moved in March 1964.
[Headnotes 8-10]
It is our view that this testimony was immaterial. The trial court correctly recognized that
nonpayment of dues and nonattendance at church services did not ipso facto terminate
membership. According to the by-laws,
2
failure to attend and contribute must be without
reason. Before a member's name could be removed from the rolls, he must be given an
opportunity to appear and give his reason for his failure to attend or contribute. There is
nothing in the record to indicate that there was any steps taken by the congregation, prior to
February 6, 1966, to determine that the Carr's failure to attend and contribute was without
reason, therefore, the Carrs were eligible to vote and the challenges were properly denied.
[Headnotes 11-13]
The trial court probably should have allowed the appellant's challenge of Norman
Shepard's vote, because there was evidence in the record before the court, that he had joined
another church on January 9, 1966, and that is the best evidence that membership has been
voluntarily terminated, however, when the challenge was made, counsel for the appellant
advised the trial court that Shepard had joined the other church in December 1966, which
would have been after the schism date of February 6, 1966. If the court was misled the
appellant must bear the responsibility. In any event this error would not have changed the
result of the election. The denial of the challenge of Mrs. Norman Shepard's vote was not
strongly pursued by the appellant. The challenge was properly denied. There is no evidence
that she stopped attending or supporting the church before February 6, 1966, nor is there any
evidence to indicate that she had voluntarily joined another church. Norman Shepard's act of
joining another church prior to the schism cannot be imputed to her.
____________________

2
AMENDMENTS TO BY-LAWS OF SECOND BAPTIST CHURCH OF RENO, NEVADA:
Article II, Paragraph 3 shall read:
Any adult member more than sixty (60) days delinquent in paying dues or ninety (90) days delinquent
in attendance without a reasonable excuse, will forfeit his or her right to vote or voice an opinion at any
meeting. . . .
The appellant's claim that the election was unfair is further eroded by the fact that the trial
court erroneously allowed the appellant's challenge to the vote of Lowell Jones and Lillie
Rogers. Those people are in the same relative position as the Carrs. It appears that they may
not have attended church services and may not have contributed financially to the church
before February 6, 1966, but like the Carrs, there is no evidence of a congregational
determination that their failure to attend and contribute was without reason.
We find the church election held under the auspices of the trial court to be eminently fair
in all respects.
[Headnotes 14-16]
The appellant's contention that the trial court erred in urging settlement, and that the
respondents' counsel committed misconduct when he advised the trial court that the appellant
had refused to settle, is without merit. It is a prerogative of a trial court to suggest a
settlement. An examination of the record in this case shows that settlement should have been
explored shortly after February 6, 1966, and certainly settlement was a proper object of
explanation at the time it was suggested by the trial court. The cases relied upon by the
appellant to support its position all involved jury trials, where an entirely different rule
prevails. In his role in this settlement effort we find no misconduct on the part of the
respondents' counsel.
[Headnotes 17-19]
The appellant's contention that the trial court erred in awarding the church money, which
was held by the court, to the respondents, is likewise without merit. Counsel for the appellant
stipulated to be bound by the outcome of the election.
3
Appellant can not now extricate itself
from the force and effect of that stipulation. Stipulations are of an inestimable value in the
administration of justice (Hayes v. State, 252 A.2d 431 (N.H. 1969)), and valid stipulations
are controlling and conclusive and both trial and appellate courts are bound to enforce them.
Burstein v. United States, 232 F.2d 19 (1956); Foote v. Maryland Casualty Company, 186
A.2d 255 (Pa. 1962); Pierson v. Allen 409 S.W.2d 127 {Mo. 1966); Bearman v. Camatsos,
3S5 S.W.2d 91 {Tenn. 1964); Brookhart v. Haskins, 205 N.E.2d 911 {Ohio 1965). In
Garaventa v. Gardella, 63 Nev. 304
____________________

3
Mr. Herz (attorney for Appellant): The second item is that there is an interpleader's suit filed by the First
National Bank which named everybody in this suit as defendants because the First National Bank did not know
who owned the money, and the money is on deposit in the Union Federal Savings & Loan Association, in a
savings account, under the Washoe County Clerk as trustee for the Second Baptist Church.
I am willing to stipulate with counsel that your decision in this case will be the controlling factor in that
case, and direct the money to be disbursed in accordance with your decision, so that we will wind both suits up
at the same time.
Pierson v. Allen 409 S.W.2d 127 (Mo. 1966); Bearman v. Camatsos, 385 S.W.2d 91 (Tenn.
1964); Brookhart v. Haskins, 205 N.E.2d 911 (Ohio 1965). In Garaventa v. Gardella, 63 Nev.
304, 169 P.2d 540 (1946), it was held to be error when the trial judge did not honor the
stipulation of the parties where a rule of evidence (the deadman's statute) was waived. (See
also, Scott v. Justice's Court of Tahoe Township, 84 Nev. 9, 435 P.2d 747 (1968).)
All other claims and contentions of the appellant are also found to be without merit.
The judgment of the trial court is affirmed in its entirety. Costs connected with this appeal
are not allowed.
____________
86 Nev. 173, 173 (1970) Laney v. State
JERRY CHARLES LANEY, VEDA SHARON LANEY and FRED EDWARD
WISSINGER, Appellants, v. THE STATE OF NEVADA, Respondent.
No. 5891
March 11, 1970 466 P.2d 666
Appeal from a judgment of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Defendants were convicted in the district court of use of cheating device to facilitate
removing from a slot machine the contents thereof. The defendants appealed. The Supreme
Court, Batjer, J., held that forged keys which defendants used to open slot machine were
cheating devices within statute prohibiting use of any cheating or thieving device to
facilitate removing from any slot machine any part of the contents thereof.
Affirmed.
Daniel J. Olguin and Charles E. Springer, of Reno, for Appellants.
1. Fraud.
Evidence was sufficient to support conviction of defendant for use of forged keys to open slot machine in
violation of statute prohibiting the use of any cheating or thieving device to facilitate
removing from any slot machine any part of the contents thereof.
86 Nev. 173, 174 (1970) Laney v. State
prohibiting the use of any cheating or thieving device to facilitate removing from any slot machine any part
of the contents thereof. NRS 465.080.
2. Fraud.
Evidence was sufficient to support conviction of defendant for aiding and abetting codefendant in the use
of forged keys to open slot machine and to remove the contents thereof. NRS 195.020, 465.080.
3. Fraud.
Any physical object used for purpose for which it was not intended, and in such a manner so as to cheat,
deceive, or defraud is a cheating device within statute making it unlawful to use any cheating device to
facilitate removing from any slot machine, lawful vending machine, coin box, telephone or other receptacle
any part of the contents thereof. NRS 465.080.
4. Fraud.
Forged keys which defendants used to open slot machine were cheating devices within statute
prohibiting use of any cheating or thieving device to facilitate removing from any slot machine any part of
the contents thereof. NRS 465.080.
5. Criminal Law.
Statute prohibiting the use of any cheating or thieving device to facilitate removing from any slot
machine, lawful vending machine, coin box, telephone or other receptacle any part of the contents thereof
is not unconstitutional on ground that term cheating device is so vague and undefined as to make entire
statute uncertain. NRS 465.080.
6. Fraud.
Information was sufficient to charge violation of statute prohibiting the use of any cheating device to
facilitate removing from any slot machine any part of the contents thereof. NRS 173.075, 465.080.
7. Criminal Law.
Judgment will not be set aside or new trial granted in criminal case unless accused is able to affirmatively
demonstrate that information is so insufficient that it results in miscarriage of justice or actually prejudices
him in respect to a substantial right. NRS 173.075.
OPINION
During the afternoon of August 22, 1968, the appellants were playing slot machines in the
Nevada Club in Reno, Nevada. Veda Sharon Laney was playing a dime slot machine in one
aisle of the club and Jerry Charles Laney and Fred Edward Wissinger were playing quarter
machines in the next aisle across from Mrs. Laney. During this time Mrs. Laney was talking
to her husband and Wissinger over the back of the slot machines. Two witnesses testified that
they observed Wissinger insert a key into the top lock of the slot machine he was playing {it
took two keys to open this machine).
86 Nev. 173, 175 (1970) Laney v. State
was playing (it took two keys to open this machine). At this time, Laney was standing next to
Wissinger at the same machine, and although their positions were such that no witness could
actually testify that they saw Laney's hand insert a key, one witness saw two hands insert
keys, but could only identify Wissinger's hand.
After the door of the machine was opened, Wissinger was grabbed by a club employee and
wrestled to the floor. At the moment he was grabbed, Wissinger was trying to get a key out of
the machine and one club employee observed him throw two keys across the aisle to Mrs.
Laney. That same employee picked up one of the keys, saw Mrs. Laney pick up the other, and
retrieved it from her. The chain of possession of these keys was meticulously preserved until
they were introduced into evidence, without objection, at the trial. It was established by
unrefuted evidence at the trial that the keys in question were not the property of the Nevada
Club, but were forgeries.
While Wissinger was being apprehended, another club employee rushed to the aid of his
fellow employee, brushed Laney's arm. Laney immediately struck the second employee, in the
jaw, and started to leave the club but was apprehended before he could escape.
The appellants contend that there was insufficient evidence to support a finding on any of
the essential elements of the crime charged; that NRS 465.080
1
under which they were
convicted is void for uncertainty; and that the information fails to state a public offense.
____________________

1
NRS 465.080: 1. It shall be unlawful for any person playing any licensed gambling game:
(a) To use bogus or counterfeit chips, or to substitute and use in any such game cards or dice that have been
marked, loaded or tampered with; or
(b) To employ or have on his person any cheating device to facilitate cheating in such games.
2. It shall be unlawful for any person, in playing or using any slot machine, lawful vending machine, coin
box, telephone or other receptacle designed to receive or be operated by lawful coin of the United States of
America in furtherance of or in connection with the sale, use or enjoyment of property or service:
(a) To use other than lawful coin, legal tender of the United States of America, not of the same
denomination as the coin intended to be used in such device, except that in the playing of any slot machine, it
shall be lawful for any such person to use tokens or similar objects therein which are approved by the state
gaming control board; or
(b) To use or have on his person any cheating or thieving device to facilitate removing from any slot
machine, lawful vending machine, coin box, telephone or other receptacle any part of the contents thereof.
3. Any violation of the provisions of this section shall be a gross misdemeanor.
86 Nev. 173, 176 (1970) Laney v. State
convicted is void for uncertainty; and that the information fails to state a public offense.
[Headnotes 1, 2]
The evidence adequately supports the conviction of all the appellants. The evidence
against Wissinger is overwhelming and conclusive. If there was any doubt raised about the
direct participation by either Laney or his wife, the evidence strongly supports their
conviction under NRS 195.020.
2
They both became principals to Wissinger's use of forged
keys to open the slot machine.
The case of State v. Vanicor, 118 So.2d 438 (La. 1960), relied upon the appellants is
inapposite. There a statute, which made it a criminal offense to possess any electrical device
in or around a fishing boat or watercraft, was declared unconstitutional. The Louisiana court
pointed out that under the terms of that statute it would have been impossible to operate a
motorboat requiring the use of batteries, generators, or other electrical devices for any
purpose whatsoever without committing a crime. The term cheating device as used in NRS
465.080 creates no such problem.
The statutory predecessor of NRS 465.080 was first enacted in 1951. Since 1955 there
have been no significant amendments that would have any bearing on the posture of this case.
At least two cases involving convictions pursuant to NRS 465.080, have been before this
court (Ex parte Boley, 76 Nev. 138, 350 P.2d 638 (1960); Stokes v. State, 76 Nev. 474, 357
P.2d 851 (1960)), however, in neither of those cases was there a direct attack upon the
validity of the statute.
In support of their contentions that NRS 465.080 is void and that the information fails to
state a public offense, the appellants urge that the term cheating device is so vague and
undefined as to make the entire statute uncertain, and that, in any event, a key cannot come
within that term.
____________________

2
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.
86 Nev. 173, 177 (1970) Laney v. State
[Headnotes 3-5]
Any physical object used for a purpose for which it was not intended, and in such a
manner so as to cheat, deceive, or defraud, is a cheating device. The moment the appellants
inserted those forged keys into the slot machine and opened the door, those keys became
cheating devices. They knew that those keys were being used to surreptitiously cheat the
owner of that slot machine, and anyone acting in a like manner would have been equally
aware that they were being used to cheat. The mandate of NRS 465.080 that decrees it to be
unlawful for any person playing any licensed gambling game to employ a cheating device to
facilitate cheating in such game is definite and certain and not susceptible to interpretation.
[Headnotes 6, 7]
The appellants' contention that the information fails to state a public offense is equally
without merit. Even though the legislature repealed NRS 173.320 as of January 1, 1968, we
do not propose to abandon the common sense principal that a judgment will not be set aside
or a new trial granted, in a criminal case, unless the accused is able to affirmatively
demonstrate that the information is so insufficient that it results in a miscarriage of justice or
actually prejudices him in respect to a substantial right. Langley v. State, 84 Nev. 295, 439
P.2d 986 (1968); Gallegos v. State, 84 Nev. 608, 446 P.2d 656 (1968).
When the legislature repealed NRS 173.090, NRS 173.100; NRS 173.210; NRS 173.300;
NRS 173.310 together with NRS 173.320, they enacted NRS 173.075
3
in lieu of those
statutes. The source of NRS 173.075 is Rule 7(c), F.R. Crim.P., 18 U.S.C.A.
____________________

3
NRS 173.075: 1. The indictment or the information shall be a plain, concise and definite written statement
of the essential facts constituting the offense charged. It shall be signed by the district attorney. It need not
contain a formal commencement, a formal conclusion or any other matter not necessary to such statement.
2. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a
single count that the means by which the defendant committed the offense are unknown or that he committed it
by one or more specified means.
3. The indictment or information shall state for each count the official or customary citation of the statute,
rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the
citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a
conviction if the error or omission did not mislead the defendant to his prejudice.
86 Nev. 173, 178 (1970) Laney v. State
In Clay v. United States, 326 F.2d 196 (10 Cir. 1963) that court said: Rule 7(c),
F.R.Crim.P., 18 U.S.C.A., provides that an indictment or information . . . shall be a plain,
concise and definite written statement of the essential facts constituting the offense charged. .
. .' The sufficiency of an indictment or information is to be determined by practical rather than
technical considerations. The test is not whether the indictment could have been made more
definite and certain. Rather, before a conviction, the indictment standing alone must contain
the elements of the offense intended to be charged and must be sufficient to apprise the
accused of the nature of the offense so that he may adequately prepare a defense. And, after a
conviction, the entire record of the case must be sufficient so as to enable the accused to
subsequently avail himself of the plea of former jeopardy if the need to do so should ever
arise. The same rule or test is applicable on a collateral attack by motion under section 2255
to vacate and set aside a conviction and sentence. However, after a verdict or plea of guilty,
every intendment must be indulged in support of the indictment or information and such a
verdict or plea cures mere technical defects unless it is apparent that they have resulted in
prejudice to the defendant. Prejudice to the defendant is, of course, a controlling
consideration in determining whether an indictment or information is sufficient. (Citations
omitted.) Duke v. United States, 233 F.2d 897 (5 Cir. 1956); Hayes v. United States, 296 F.2d
657 (8 Cir. 1961); Medrano v. United States, 285 F.2d 23 (9 Cir. 1960).
Here the sufficiency of the information is questioned for the first time on appeal. In State
v. Hurley, 66 Nev. 350, 210 P.2d 1922 (1949), this court said: This court held an indictment
good in State v. Raymond, 34 Nev. 198, 117 P. 17, especially so when no objection was made
thereto until after verdict. The court referred to the recent tendency to be less technical than
formerly in construing indictments especially so where no demurrer was interposed to the
indictment and an opportunity afforded to cure the defect prior to trial. In State v. Hughes, 31
Nev. 270, 102 P. 562, this court said:
The indictment, it must be admitted, is far from being a model. Where, however, the
sufficiency of an indictment is questioned for the first time upon appeal, it will not be held
insufficient to support the judgment, unless it is so defective that by no construction, within
the reasonable limits of the language used, can it be said to charge the offense for which the
defendant was convicted. Virtually the same is said by this court in State v. Lovelace, 29
Nev. 43
86 Nev. 173, 179 (1970) Laney v. State
court in State v. Lovelace, 29 Nev. 43, 83 P. 330, referred to in the Hughes case.
The information in this case made specific reference to the entire statute under which the
appellants were being charged, and in addition specifically apprised them of the fact that they
were being charged with using a cheating device on a slot machine. The charge was
sufficiently clear to enable the appellants to adequately prepare a defense, and the information
is sufficiently clear under the general principles of law by which it must be tested.
Furthermore, the appellants have failed to show any prejudice to them based on their
contention that the information failed to state a public offense.
____________
86 Nev. 179, 179 (1970) Lamb v. Cree
RALPH LAMB, Sheriff of Clark County, Nevada,
Appellant, v. SHIRLEY MEEKER CREE, Respondent.
No. 5988
March 12, 1970 466 P.2d 660
Appeal from order of Eighth Judicial District Court, Clark County, granting writ of habeas
corpus; Clarence Sundean, Judge.
Habeas corpus proceeding. The district court granted relief, and sheriff appealed. The
Supreme Court, Mowbray, J., held that although disfigurement was slight due to successful
plastic surgery replacing missing portion of ear, defendant in mayhem complaint was not
entitled to be discharged on ground that victim did not suffer a permanent disfigurement.
Reversed.
George H. Spizzirri and Donald K. Wadsworth, Deputy District Attorneys, Clark County, for
Appellant.
George W. Johnson, of Las Vegas, for Respondent.
1. Mayhem.
For purposes of statute providing that a person who slits an ear is guilty of mayhem, biting off a portion
of ear is equivalent to a slitting of the ear. NRS 200.280, 200.290.
86 Nev. 179, 180 (1970) Lamb v. Cree
2. Mayhem.
Intent to maim may be presumed from circumstances connected with the commission of the act; one is
presumed to intend the natural consequences of his act. NRS 200.280.
3. Mayhem.
Biting a portion of someone's ear to extent that it becomes separated from the ear itself and then spitting
out the dismembered portion of the organ would to a reasonable person infer that the assailant intended to
disfigure. NRS 200.280.
4. Mayhem.
Specific intent to maim may be inferred or presumed; to accomplish such end, it is necessary that the
disfigurement was reasonably to be apprehended as the natural and probable consequence of the act. NRS
200.280.
5. Mayhem.
In mayhem prosecution based on ear-biting incident involving two ladies, record of preliminary hearing
was sufficient to establish malicious intent, particularly when accused added the comment after the assault,
Good . . . go to the doctor and get it sewed. NRS 200.280.
6. Mayhem.
Although disfigurement was slight due to successful plastic surgery replacing missing portion of ear,
defendant in mayhem complaint was not entitled to be discharged on ground the victim did not suffer a
permanent disfigurement. NRS 200.280.
7. Mayhem.
Skill of a surgeon in correcting a disfigurement by plastic surgery should not give license to one desirous
of committing mayhem. NRS 200.280.
8. Criminal Law.
Degree of proof at a preliminary hearing need not be as great as at trial, where every element of crime
must be proved beyond a reasonable doubt.
9. Criminal Law.
At a preliminary hearing, the evidence to meet the standard need only show that a crime has been
committed and that there exist reasonable grounds to believe that the defendant committed it.
OPINION
This appeal is an ear-biting case involving two ladies in Searchlight, Nevada, and arising
out of an application for a writ of habeas corpus. The district judge granted habeas,
discharging the assailant, who was the defendant in a mayhem complaint in the court below,
on the ground that she failed to bite off a large enough portion of the victim's ear to constitute
permanent disfiguration. We believe that, under the facts presented, the district judge
should have denied the habeas petition and permitted the jury to pass on that issue.
86 Nev. 179, 181 (1970) Lamb v. Cree
1. The Facts
On March 8, 1969, Mrs. Mary Ann McInnis, the victim, drove her car to respondent's
husband's service station in Searchlight to return a chain she had borrowed. When Mary Ann
arrived, she met the respondent-defendant, Shirley Cree, and they engaged in a heated
argument. Shirley opened Mary Ann's car door, pulled her to the ground, and began to pull
her hair, scratch, hit, and bite her. Shirley's husband came to the rescue and separated the
ladies, whereupon Mary Ann, who was bleeding profusely and appeared to be the worse for
the engagement, grabbed her ear and discovered that part of it was missing. She screamed,
Shirley, you bit a hunk out of my ear. Shirley retorted, Good . . . go to the doctor and get it
sewed.
On March 18, 1969, Shirley was charged with mayhem. NRS 200.280.
1
At the
preliminary hearing on May 6, Mary Ann testified to the facts above recited. Shirley was
bound over to stand trial, and before entry of plea in the district court she filed this habeas
petition challenging the sufficiency of the evidence adduced at the preliminary hearing on two
principal grounds: (1) There was no showing of malice or specific intent, and (2) Mary Ann
did not suffer a permanent disfigurement.
2. Slitting the Ear
[Headnote 1]
Under our law, biting off a portion of the ear is equivalent to a slitting of the ear. NRS
200.290 provides that it is immaterial by what means or instrument or in what manner the
injury was inflicted. In State v. Enkhouse, 40 Nev. 1, 5, 160 P. 23, 24 (1916), an ear-biting
mayhem case, this court said:
. . . [T]he information in question here charges that the appellant did bite off with his
teeth a portion of the right ear * * * and thereby disabled and disfigured said ear.' The
information, therefore, charges a completed act, which completed act is equivalent to a
slitting of the ear, for, by the provisions of section 152 [identical to NRS 200.290], it is
immaterial by what means the injury or disfigurement is effected."
____________________

1
NRS 200.280:
1. Mayhem consists of unlawfully depriving a human being of a member of his body, or disfiguring or
rendering it useless. If any person shall cut out or disable the tongue, put out an eye, slit the nose, ear or lip, or
disable any limb or member of another, or shall voluntarily, or of purpose, put out an eye or eyes, every such
person shall be guilty of mayhem.
2. The crime of mayhem shall be punishable by imprisonment in the state prison for not less than 1 year nor
more than 10 years.
86 Nev. 179, 182 (1970) Lamb v. Cree
immaterial by what means the injury or disfigurement is effected.
3. Malicious Intent
[Headnotes 2, 3]
The intent to maim may be presumed from the circumstances connected with the
commission of the act. One is presumed to intend the natural consequences of his act. Biting
a portion of someone's ear to the extent that it becomes separated from the ear itself and then
spitting out the dismembered portion of the organ would to a reasonable person infer that the
assailant intended to disfigure. As we said in In re Ralls, 71 Nev.276, 279, 288 P.2d 450, 451
(1955):
[Headnote 4]
It does not follow that a specific intent to maim must be proved. It may be inferred or
presumed. To accomplish such an end, however, it is necessary that the disfigurement was
reasonably to be apprehended as the natural and probable consequence of the act. [Citations
omitted.]
[Headnote 5]
We believe the record of the preliminary hearing in this case is sufficient to establish
malicious intent, particularly when Shirley added the comment after the assault, Good . . . go
to the doctor and get it sewed.
4. Permanent Disfigurement
Whenever upon a trial for mayhem it shall appear that the injury inflicted will not result
in any permanent disfiguration of appearance, diminution of vigor, or other permanent injury,
no conviction for maiming shall be had, but the defendant may be convicted of assault in any
degree. (Emphasis added.)
[Headnotes 6-9]
It is the that the disfigurement in this case was slight, but that was due to the successful
plastic surgery that replaced the missing portion of the ear. Absent the plastic surgery,
disfigurement may have existed. We do not believe the skill of a surgeon in correcting a
disfigurement by plastic surgery should give license to one desirous of committing mayhem.
The degree of proof at a preliminary hearing need not be as great as at trial, where every
element of the crime must be proved beyond a reasonable doubt. At a preliminary hearing, as
we have often held, the evidence to meet the standard need only show that a crime has been
committed and that there exist reasonable grounds to believe the defendant committed it.
86 Nev. 179, 183 (1970) Lamb v. Cree
NRS 200.300, supra, permits the jury to find the defendant guilty of a lesser offense if
permanent disfiguration is not established at trial.
Reversed.
____________
86 Nev. 183, 183 (1970) Kaye v. United Mortgage Co.
S. H. KAYE, Appellant, v. UNITED MORTGAGE COMPANY,
A Corporation, Respondent.
No. 5942
March 16, 1970 466 P.2d 848
Appeal from summary judgment of the Eighth Judicial District Court, Clark County; Alvin
N. Wartman, Judge.
Action by grantee of judgment debtor against judgment creditor which levied execution.
The district court granted judgment creditor's motion for summary judgment and grantee
appealed. The Supreme Court, Thompson, J., held that where judgment debtor's successor in
interest redeemed from execution sale, lien for deficiency in judgment did not attach.
Bible, McDonald, Carano & Wilson and Gary A. Wood, of Reno, and David Abbatangelo,
of Las Vegas, for Appellant.
Deaner, Butler & Adamson, of Las Vegas, for Respondent.
1. Execution.
Judgment debtor's title or interest in property passes to purchaser at execution sale subject to defeasance
in event of redemption. NRS 21.190.
2. Execution.
If judgment debtor redeems from execution sale, he reacquires his title or interest in property, and lien for
deficiency in judgment attaches once more.
3. Execution.
Where judgment debtor's successor in interest redeemed from execution sale, lien for deficiency in
judgment did not attach.
OPINION
This case comes to us on appeal from a summary judgment for United Mortgage in an
action for damages commenced by Kaye.
Kaye. The issue presented is whether a redeeming grantee of a judgment debtor's statutory
right of redemption takes the property free from the judgment lien under which the property
was sold. The district court ruled that the property continued to be subject to the judgment
lien. For reasons hereafter expressed we reverse that determination and remand for further
proceedings.
The relevant facts are these. United Mortgage secured a judgment for $52,650 against one
McMillan, a lessee of real property. McMillan's leasehold interest was sold to United
Mortgage for $5,000 upon execution sale. That sum was credited against the judgment.
Thereafter McMillan assigned his statutory right of redemption to Kaye who redeemed,
receiving a certificate of redemption from the sheriff. United Mortgage renewed the writ of
execution and caused the sheriff to again levy upon the leasehold. At the second sheriff's sale
United Mortgage repurchased the leasehold for $18,087.40. Kaye then commenced this action
against United Mortgage for damages caused by the second levy and sale.
[Headnotes 1-3]
1. Since Nevada statutory provisions governing redemption are identical in all material
respects to California Code provisions, we are persuaded, as was Montana [see McQueeney
v. Toomey, 92 P. 561 (Mont. 1907)], to follow relevant California case authority. For almost
a century it has been the law of California that when the right to redeem has been exercised
by a successor in interest to the judgment debtor, title is vested in such successor free of the
lien created by the judgment. Simpson v. Castle, 52 Cal. 644 (1878); Siegel v. Farrar, 7 P.2d
319 (1932); Haskins v. Certified Escrow & Mortgage Co., 216 P.2d 90 (1950); Moore v.
Hall, 58 Cal.Rptr. 70 (1967). Upon execution sale the purchaser acquires the interest of the
judgment debtor, subject to redemption. Our statute so declares.
1
This means simply that the
judgment debtor's title or interest passes to the purchaser subject to defeasance in the event of
redemption. Moore v. Hall, supra; Noble v. Beach, 130 P.2d 426 (Cal. 1942). If the judgment
debtor redeems he reacquires his title or interest in the property, and a lien for the deficiency
in the judgment attaches once more, just as though an execution sale had not occurred.
____________________

1
NRS 21.190 reads: Upon a sale of real property, the purchaser shall be substituted to and acquire all the
right, title, interest and claim of the judgment debtor thereto. When the estate is less than a leasehold of 2 years'
unexpired term, the sale shall be absolute. In all other cases the real property shall be subject to redemption as
provided in this chapter. . . .
in the judgment attaches once more, just as though an execution sale had not occurred.
However, a different consequence follows when the debtor's successor in interest redeems.
There is no judgment outstanding against him to which a lien can attach. There exists no
reason to subject his property to the lien of a judgment secured against someone else. This
difference in result (flowing from the identity of the redeemer; debtor or successor in interest)
serves to promote one of the primary purposes of statutory redemptionforcing the purchaser
at execution sale to bid on the property at a price approximating its fair value. Moore v. Hall,
supra; Salsbery v. Ritter, 306 P.2d 897 (Cal. 1957).
2. The respondent suggests that there should be no distinction between redemption by the
judgment debtor and redemption by the debtor's successor in interest. The suggestion rests
primarily upon the Oregon decision of Flanders v. Aumack, 51 P. 447 (Ore. 1897). That
decision is inapposite since the Oregon statutory scheme was different, a fact which the
Oregon court acknowledged in discussing California case law. Id. at 448.
The summary judgment for United Mortgage is reversed and this case is remanded to the
district court for further proceedings.
____________
86 Nev. 185, 185 (1970) Young Electric Sign Co. v. Fohrman
YOUNG ELECTRIC SIGN COMPANY, a Nevada Corporation, Appellant, v. BENJAMIN
F. FOHRMAN, dba LEE HOTEL, Respondent.
No. 5945
March 16, 1970 466 P.2d 846
Appeal from judgment of the Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Lessor of signs brought action against lessee for liquidated damages due upon lessee's
failure to pay rent. From the judgment of the district court the lessor appealed. The Supreme
Court, Thompson, J., held that under lease providing that in case of his default in payment of
rent, lessee would pay lessor forthwith liquidated damages of three-fourths of the balance of
rental payable, lessor was entitled to 75 percent of the balance of the rent payable upon
lessee's default even though the largest of the six signs rented to lessee was destroyed by
a storm more than three and a half months after commencement of lessor's suit.
rental payable, lessor was entitled to 75 percent of the balance of the rent payable upon
lessee's default even though the largest of the six signs rented to lessee was destroyed by a
storm more than three and a half months after commencement of lessor's suit.
Remanded with directions to the district court to amend its findings and judgment in
accordance with this opinion.
[Rehearing denied April 15, 1970]
Lionel & Sawyer and George C. Abernathy, of Las Vegas, for Appellant.
Cromer & Barker, of Las Vegas, for Respondent.
1. Damages.
Under lease providing that in case of lessee's default in the payment of rent for signs, lessee would pay
lessor forthwith liquidated damages of three-fourths of the balance of rental payable, lessor was entitled,
upon lessee's default in rental payments, to 75 percent of balance of rental payable even though, more than
three and one-half months after commencement of lessor's suit and several weeks before lessee's answer to
the complaint was filed, largest of six leased signs was destroyed and not replaced.
2. Damages.
Sign lease which provided that in case of default in the payment of rent lessee would pay lessor forthwith
liquidated damages of three-fourths of the balance of rental payable negated any implication that the
destruction by a storm of one of the leased signs after lessee's default constituted a failure of consideration
which would excuse lessee from liability for the liquidated damages.
OPINION
Young Electric, the plaintiff below, appeals from a judgment entered in its favor
contending that error occurred when the trial court declined to award the full amount of
liquidated damages due under a sign rental agreement which the defendant, Fohrman, had
breached. We agree with the contention of Young Electric and direct the district court to
amend its findings and judgment in accordance with this opinion.
On May 27, 1963, Young Electric and Fohrman entered into a written agreement whereby
Fohrman agreed to lease from Young Electric six signs to be installed on Fohrman's Lee
Hotel, for a period of sixty months at a rental of $200 per month plus Nevada sales tax.
Fohrman paid Young Electric $1,000 as security for his performance of the agreement. A
dispute arose between them, and Fohrman refused to pay rent.
dispute arose between them, and Fohrman refused to pay rent. Young Electric filed this action
in February 1964 claiming default in the payment of rentals and requesting liquidated
damages under the agreement in the sum of $9,472.34, interest thereon, attorneys' fees of
$3,500 and costs.
On June 9, 1964, more than three and one half months after commencement of suit and
several weeks after the answer to the complaint was filed alleging fraudulent
misrepresentations as the basic defense, a storm in Las Vegas caused the largest of the six
signs on Lee Hotel to fall and be destroyed. Young Electric did not replace the sign. Fohrman
continued to use the other five signs and was using them at the time of trial.
The trial court made the following relevant findings: Fohrman's defense that Young
Electric was guilty of misrepresentations which induced Fohrman to enter into the agreement
was not established; that Young Electric performed all terms of the agreement on its part to
be performed; that Fohrman breached the agreement by failing to pay rent; that Young
Electric was entitled to the full monthly rentals unpaid, $1,200, plus sales tax of $24; that
Young Electric would be entitled to liquidated damages of 75 percent of the monthly rental
for the remaining 54 months, but because of the destruction of the large sign on June 9, 1964,
Young Electric should receive such liquidated damages only for the period from the end of
February 1964 to June 9, 1964, in the sum of $490 plus sales tax of $9.80. The latter finding
was based upon the trial court's belief that the destruction of the large sign on June 9, 1964,
caused a failure of consideration and precluded an award of liquidated damages to Young
Electric for any period after that date. It is this finding and conclusion to which the appeal is
directed. Young Electric unsuccessfully sought to amend that finding and alter judgment by
appropriate motion to the trial court.
The relevant provisions of the sign rental agreement are quoted in the footnote.
1
Young
Electric's duty to maintain the signs and rebuild in the event of destruction existed only if the
lessee was not in material default. The lessee's material breach in failing to pay rent excused
further performance by the lessor.
____________________

1
(g) . . . . In the event of the destruction of or substantial damage to the SIGN, under the conditions other
than as in this paragraph heretofore provided, Lessor shall have the option of rebuilding the SIGN and extending
the time as may be required to so rebuild the SIGN, or at its option, to end the term of this agreement.
(h) In the event of failure of Lessee to pay any installment of the rental called for hereunder at the time
provided, Lessor shall have the right to terminate this agreement and, in addition, to repossess the SIGN.
Repossession shall not be construed to be an acceptance of a surrender of this lease, and neither termination nor
repossession shall
Rest. of Contracts (1932) 397. The agreement required the lessor to construct and erect
certain signs and required the lessee to pay rent for them. The lessor performed its duty and
the lessee breached his. Such a material breach by one party entitles the other to total
damages therefor. Walker & Co. v. Harrison, 81 N.W.2d 352 (Mich. 1957).
[Headnotes 1, 2]
Here, the lessee agreed that in case of his default in the payment of rent, he would pay
lessor forthwith liquidated damages of three-fourths of the balance of the rental payable.
This negated any implication of failure of consideration occurring thereafter. Lessor, upon
lessee's default, had the immediate right to repossess the sign and, in addition, to collect
liquidated damages for the remainder of the contract term. The subsequent accidental
destruction of the sign can no more be called a failure of consideration than the intentional
repossession of the same. The result is the same in both cases. The lessee is deprived of his
use of the sign and is liable for the payment of liquidated damages.
We remand this case to the district court and order that the findings and judgment be
amended so as to award Young Electric liquidated damages from February 1964 to the end of
the lease term, together with interest thereon. That court shall reconsider its award of counsel
fees in the light of the amended judgment which we have ordered.
Collins C. J., Zenoff, Batjer, and Mowbray, JJ., concur.
____________________
deprive Lessor of the right to recover unpaid rentals and damages for Lessee's breach of this agreement.
(i) It is agreed by the parties hereto that the SIGN is of special construction made for the uses and purposes
of Lessee and no other, and that except for use by Lessee the SIGN has no value. Lessee agrees that in the event
he shall be in default in the payment of rental when due, or shall fail to perform any other of his obligations
hereunder, he shall be indebted to, and hereby agrees to pay to Lessor forthwith, in addition to the full rental for
such time as Lessee retains possession of the SIGN, liquidated damages for his breach hereunder in an amount
equal to three-fourths of the balance of the rental payable hereunder, whether the same may be due or not. The
parties hereto agree that in such event, the said three-fourths of the balance of the rental payable hereunder is and
will be fair and reasonable compensation for the damage to Lessor arising from such breach by Lessee. . . . The
agreement to pay such liquidated damages shall be in addition to any other remedy given Lessor herein or by
law. In the event this agreement is placed by Lessor in the hands of an attorney after default for enforcement or
collection, Lessee will pay a reasonable attorney's fee.
____________
86 Nev. 189, 189 (1970) Werner v. Utah Cooperative Association
WILLIAM WERNER and J. GORDON HOOPES, Individually and dba WERNER &
HOOPES, a Partnership, Appellants, v. UTAH COOPERATIVE ASSOCIATION, a Utah
Corporation; and GOULD NATIONAL BATTERIES, INC., a Delaware Corporation; and
UNITED STATES RUBBER COMPANY, a Corporation, Respondents.
No. 5956
March 16, 1970 466 P.2d 671
Appeal from judgment of the Eighth Judicial District Court, Clark County; William P.
Compton, Judge.
Creditors of vendor filed suit against service station purchaser for violation of the Bulk
Sales Law. The district court entered judgment in favor of plaintiffs, and an appeal was taken.
The Supreme Court, Thompson, J., held that the sale, which included equipment, goods,
wares, fixtures, and an assignment of all leases, subleases and produce purchase agreements,
came within the Bulk Sales Law and that the vendor's creditors were thus entitled to the
protection of that law.
Affirmed.
Magleby and Cahlan, of Las Vegas, for Appellants.
Keith C. Hayes, of Las Vegas, for Respondents Utah Cooperative Association and
Gould-National Batteries, Inc.
V. Gray Gubler, of Las Vegas, for Respondent United States Rubber Company.
1. Fraudulent Conveyances.
Record established that service station sale, which included equipment, goods, wares, fixtures and an
assignment of all leases, subleases and produce purchase agreements, came within the Bulk Sales Law and
that the vendor's creditors were thus entitled to the protection of that law. NRS 98.010, subd. 2, 98.020,
98.030.
2. Fraudulent Conveyances.
Main purpose of the Bulk Sales Law is to protect creditors of a bulk sales vendor and to prevent transfers
which are fraudulent as to them. NRS 98.010, subd. 2, 98.020, 98.030.
OPINION
[Headnote 1]
This appeal proposes to nullify a judgment for money in favor of certain creditors [Utah
Cooperative Association, Gould-National Batteries and United States Rubber] of a bulk
sales vendor [Valley View Distributors of Nevada] against the bulk sales vendee [Werner
& Hoopes], for the latter's failure to comply with the Bulk Sales Law.
86 Nev. 189, 190 (1970) Werner v. Utah Cooperative Association
Gould-National Batteries and United States Rubber] of a bulk sales vendor [Valley View
Distributors of Nevada] against the bulk sales vendee [Werner & Hoopes], for the latter's
failure to comply with the Bulk Sales Law. The amount of the judgment is not in dispute nor
its apportionment between the named creditors. The sole appellate contention of the vendee,
Werner & Hoopes, is that the sale was not within the Bulk Sales Law and the vendor's
creditors were not, therefore, entitled to the protection of that act. It is our opinion that the
district court properly decided this dispute and we affirm the judgment.
In 1962 Valley View sold to Werner & Hoopes a service station in Las Vegas together
with equipment, goods, wares, fixtures and an assignment of all leases, subleases and produce
purchase agreements. The purchase price was $76,000 less any indebtedness required to be
paid at the time of sale. Werner & Hoopes failed to demand and receive from Valley View a
verified written statement listing the names and addresses of all creditors of Valley View
(NRS 98.020), failed to give notice of the proposed sale (NRS 98.030), and failed to see that
the purchase money was applied to the payment of bona fide claims (NRS 98.030). In these
circumstances the act provides that the vendee shall be deemed to assume the liability of the
vendor in an amount equal to the market value of the goods and property purchased.
[Headnote 2]
The broad language of NRS 98.010(2): whenever an interest in or to the business or trade
of the vendor is sold or conveyed. . . . embraces the instant sale. Since the main purpose of
the Bulk Sales Law is to protect creditors of bulk sales vendors and to prevent transfers which
are fraudulent as to them [Escalle v. Mark, 43 Nev. 172, 183 P. 387 (1919)] we do not
hesitate to affirm the district court judgment.
____________
86 Nev. 191, 191 (1970) Anushevitz v. Warden
WALTER PAUL ANUSHEVITZ aka CHESTER J. WILTSE, Appellant v. WARDEN,
No. 5867
TRACY BOSLEY, Appellant, v. WARDEN, NEVADA
STATE PRISON, Respondent.
No. 5868
March 25, 1970 467 P.2d 115
Appeal from denial of writs of habeas corpus by Eighth Judicial District Court, Clark
County; Alvin N. Wartman, Judge.
Petitions for writs of habeas corpus were brought under post-conviction relief statute. The
district court denied writs, and petitioners appealed. The Supreme Court, Mowbray, J., held
that trial court had no duty to advise a defendant regarding prospects for parole as part of
advising of consequences of plea of guilty before acceptance of guilty plea.
Affirmed.
County, for Appellants.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, and Alan
R. Johns and Neil J. Beller, Deputy District Attorneys, Clark County, for Respondents.
1. Criminal Law.
Trial court had no duty to advise a defendant regarding prospects for parole as part of advising of
consequences of plea of guilty before acceptance of guilty plea. NRS 174.035, subd. 1, 177.315,
213.110.
2. Pardon and Parole.
Noneligibility for parole is not a consequence of a plea of guilty; rather, it is a consequence of the
withholding of legislative grace. NRS 213.110.
OPINION
These two cases have been consolidated for the purposes of appeal, because the same issue
is involved in each case.
The appellant-petitioners, Walter Paul Anushevitz and Tracy Bosley, commenced habeas
proceedings in the district court under Nevada's Post-Conviction Relief Statute, NRS
177.315.1 Both petitioners had been charged with felonies.2 Each defendant pleaded
guilty as charged.
Tracy Bosley, commenced habeas proceedings in the district court under Nevada's
Post-Conviction Relief Statute, NRS 177.315.
1
Both petitioners had been charged with
felonies.
2
Each defendant pleaded guilty as charged. They were both represented by counsel
at all stages of the proceedings.
3
Appellants concede that the record shows that their pleas
were intelligently and voluntarily made.
4
The petitioner-defendants were later sentenced.
____________________

1
NRS 177.315 provides in pertinent 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 court was without jurisdiction to impose the sentence, or that
the sentence exceeds the maximum authorized by law, or that the conviction of 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.

2
Anushevitz was charged with robbery; Bosley, with burglary.

3
The Clark County Public Defender's office represented them from arraignment through sentencing.

4
Judge Babcock, who received Anushevitz's plea, conducted the following colloquy with him before
accepting his plea. (It is conceded that a similar inquiry was conducted before Bosley entered his plea.)
The Court: Is the defendant [Anushevitz] ready to enter his plea?
Mr. Legakes [Deputy Public Defender, counsel for Anushevitz]: Yes, he is, your Honor.
The Court: Chester J. Wiltse [another name used by Anushevitz], what is your plea to the information filed in
these proceedings on May 23, 1968, charging you with the crime of robbery?
Mr. Wiltse: Guilty.
The Court: Guilty?
Mr. Wiltse: Yes.
The Court: Is your plea of guilty freely and voluntarily made
Mr. Wiltse: Yes.
The Court: without threat or fear to yourself or anyone closely related to or associated with you?
Mr. Wiltse: Yes.
The Court: You understand the nature of the charge against you?
Mr. Wiltse: Yes.
The Court: What is the charge against you?
Mr. Wiltse: Robbery.
The Court: Mr. Legakes, did you advise the defendant of the sentence that could be imposed by reason of his
plea of guilty?
Mr. Legakes: Yes, I did, your Honor.
The Court: What did you advise him?
Mr. Legakes: One to 15 years.
The Court: Yes.
Mr. Wiltse, has anyone made any promise of a lesser sentence,
were later sentenced. Anushevitz had six prior felony convictions and Bosley, six. After the
petitioners were sentenced, they learned that, as a result of an opinion of the Attorney General
(No. 489, February 8, 1968) construing NRS 213.110, they were ineligible for parole.
5

Petitioners now assert that the district judges who received their pleas had the duty to
advise them of NRS 213.110 and of their ineligibility for parole.
Petitioners argue in their opening briefs that the case of Munich v. United States, 337 F.2d
356 (9th Cir. 1964), is controlling in their cases. In Munich, the court said at 361:
. . . In our opinion one who, at the time of entering a plea of guilty, is not aware of the
fact that he will not be eligible for probation or parole, does not plead with understanding of
the consequences of such a plea. (Footnote omitted.)
In other circuits, however, the courts have not so held. In Jenkins v. United States, 289
F.Supp. 415 (N.D. Okla. 1968), the court, in commenting on the Munich decision, stated at
417-418:
. . . Other circuits do not go this far. See Trujillo v. United States (Fifth Cir. 1967), 377
F.2d 266, . . . and Smith v. United States (1963), 116 U.S.App. D.C. 404, 324 F.2d
436 . . . . It is felt that the better rule and the one that the Tenth Circuit would adopt is that a
failure to advise that probation cannot be granted in a narcotics conviction does not
constitute a failure to adequately advise the accused of the 'consequences' of a plea of
guilty."
____________________
probation, reward, immunity or anything else to induce you to plead guilty?
Mr. Wiltse: No, sir.
The Court: You understand the manner of probation and sentence is determined solely by the Court and by
no one else?
Mr. Wiltse: Yes.
The Court: Are you pleading guilty because in truth and in fact you are guilty and for no other reason?
Mr. Wiltse: I am guilty of the charge, yes.
The Court: The Court accepts defendant's plea of guilty.

5
NRS 213.110 provides in relevant part:
1. Subject to the provisions of NRS 213.120, the board [state board of parole commissioners] 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.
This statute and earlier ones of like effect had been the law for many years, but until the issuance of the
Attorney General's Opinion No. 489, supra, they had not been generally followed.
Tenth Circuit would adopt is that a failure to advise that probation cannot be granted in a
narcotics conviction does not constitute a failure to adequately advise the accused of the
consequences' of a plea of guilty.
We decline to follow Munich in the instant cases, for in any event, in the context of these
appeals we are satisfied that even the Ninth Circuit Court would be obliged to find the
omission complained of harmless error.
In their supplemental brief, petitioners rely heavily on the United States Supreme Court
decision in Boykin v. Alabama, 395 U.S. 238, rendered June 2, 1969. Boykin, who had
counsel, entered a guilty plea to five indictments for the common-law crime of robbery. The
judge who received Boykin's plea asked no questions concerning the plea, and Boykin did not
address the court.
[Headnote 1]
Quite the contrary in the instant case. See footnote 4, supra. The district judge, by his
colloquy with Anushevitz, demonstrated in the record that the plea was voluntarily and
knowingly made, as mandated by NRS 174.035(1).
6
We find nothing in Boykin that
suggests any duty upon the court to advise a defendant regarding the prospects for parole, the
granting of which is wholly beyond the jurisdiction of the district judge. Not so, of course, in
the case of probation, and the district judge covered that contingency in his colloquy.
The rights about which the High Court speaks in Boykin are constitutional trial rights. As
Mr. Justice Douglas, in writing for the majority, said at 243:
Several federal constitutional rights are involved in a waiver that takes place when a plea
of guilty is entered in a state criminal trial. First, is the privilege against compulsory
self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason
of the Fourteenth. Malloy v. Hogan, 378 U.S. 1. Second, is the right to trial by jury. Duncan
v. Louisiana, 391 U.S. 145. Third, is the right to confront one's accusers. Pointer v. Texas,
380 U.S. 400.
[Headnote 2]
On the other hand, parole is a matter of legislative grace.
____________________

6
NRS 174.035(1):
1. A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court
may refuse to accept a plea of guilty, and shall nor accept such plea or a plea of nolo contendere without first
addressing the defendant personally and determining that the plea is made voluntarily with understanding of the
nature of the charge and consequences of the plea. (Emphasis added.)
As the court said in Smith v. United States, 324 P.2d 436, 441 (1963): [E]ligibility for parole
is not a consequence, of a plea of guilty, but a matter of legislative grace. It is equally true
that non-eligibility for parole is not a consequence' of a plea of guilty . . . rather, it is a
consequence of the withholding of legislative grace. Our own court has so held. Eisentrager
v. State Bd. of Parole Comm'rs, 85 Nev. 672, 462 P.2d 40 (1969); Pinana v. State, 76 Nev.
274, 352 P.2d 824 (1960).
We find no merit in the appellants' applications for habeas, and we therefore affirm the
rulings of the lower court in denying the writs.
____________
86 Nev. 195, 195 (1970) Pease v. Taylor
ARTHUR E. PEASE, aka EMERY ARTHUR PEASE,
Appellant, v. WESLEY S. TAYLOR, Respondent.
No. 5909
March 25, 1970 467 P.2d 109
Appeal from judgment of the First Judicial District Court, Douglas County; Richard L.
Waters, Jr., Judge.
Action upon note, defended on the ground of usury. From a judgment of the district court
in favor of the named beneficiary of the note, the defendant co-maker appealed. The Supreme
Court, Mowbray, J., held that where the trial court found only that the note had been executed
and delivered for a valuable consideration and remained unpaid and in default and that the
holder was owed a specified sum with interest and was entitled to reasonable attorney's fees,
findings with respect to the usury question could not be implied, the record not being clear,
and the reviewing court therefore could not reach the usury question.
Remanded with instructions.
Ross & Crow, of Carson City, for Appellant.
Lester H. Berkson, of Zephyr Cove, and Jerry C. Lane, of Carson City, for Respondent.
Findings may not be implied when record is not clear. NRCP 52.
Where action upon note was defended on ground of usury and trial court found only that note had been
executed and delivered for valuable consideration and remained unpaid and in default and that holder was
owed specified sum with interest and was entitled to reasonable attorney's fees, findings with respect to
usury question could not be implied, the record not being clear, and reviewing court therefore could not
reach usury question and case would be remanded for preparation of adequate findings of fact and
conclusions of law. NRS 99.050; NRCP 52.
OPINION
Appellant Arthur E. Pease was one of three comakers of a 90-day, $16,500 promissory
note dated September 15, 1966. Respondent Wesley S. Taylor was the named beneficiary of
the note. The note was not paid. Taylor sued Pease for the $16,500 plus interest and attorney
fees. Pease's only defense was that the transaction was usurious.
1
Pease contends (1) that an
amount less than the $16,500 was advance by Taylor and (2) that from that amount Taylor
further withheld brokers' fees that constituted prepaid interest in excess of the legal rate.
2
We cannot reach that question, because the findings of the district judge make no reference,
express or implied, to the usury question.
3

NRCP 52 provides in part:
(a) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the
court shall find the facts specially and state separately its conclusions of law thereon and
direct the entry of the appropriate judgment . . . ."
____________________

1
NRS 99.050:
1. Parties may agree, for the payment of any rate of interest on money due, or to become due, on any
contract, not exceeding, however, the rate of 12 percent per annum. Any judgment rendered on any such contract
shall conform thereto, and shall bear the interest agreed upon by the parties, and which shall be specified in the
judgment; but only the amount of the original claim or demand shall draw interest after judgment.
2. Any agreement for a greater rate of interest than herein specified shall be null and void and of no effect as
to such excessive rate of interest.

2
The oral testimony and documentary evidence received during the trial centered about that contention.

3
Now, Therefore, as Findings of Fact the Court finds:
1. That on or about September 15, 1966 the Defendant executed and delivered for valuable consideration a
promissory note in the amount of $16,500.00 to Plaintiff, which note is in evidence as Plaintiff's Exhibit A.
2. That the Exhibit A promissory note has not been paid and is in default from September 15, 1966.
3. That Plaintiff is owed by Defendant the sum of $16,500.00
jury or with an advisory jury, the court shall find the facts specially and state separately its
conclusions of law thereon and direct the entry of the appropriate judgment . . . .
It is true that this court has repeatedly held that even in the absence of express findings, if
the record is clear and will support the judgment, findings may be implied. State ex rel. Dept.
of Highways v. Olsen, 76 Nev. 176, 351 P.2d 186 (1960); Chisholm v. Redfield, 75 Nev. 502,
347 P.2d 523 (1959).
[Headnotes 1, 2]
Not so, when the record is not clear, as in this case. Richfield Oil Corp. v. Harbor Ins. Co.,
85 Nev. 185, 452 P.2d 462 (1969); Lagrange Constr., Inc. v. Del E. Webb Corp., 83 Nev.
524, 435 P.2d 515 (1967); Robison v. Bate, 78 Nev. 501, 376 P.2d 763 (1962); Janzen v.
Goos, 302 F.2d 421 (8th Cir. 1962).
We therefore remand the case to the district court, so that adequate findings of fact and
conclusions of law may be made by the district judge to the end that this court may
appropriately review the issues presented on this appeal.
____________________
with interest thereon at 7% per annum from September 15, 1966 until paid.
4. That pursuant to the terms of said note the Plaintiff is entitled to reasonable attorneys fees.
CONCLUSIONS OF LAW
1. That Plaintiff is entitled to Judgment in the sum of $16,500.00 together with interest thereon at 7% per
annum from September 15, 1966 until paid.
2. That Plaintiff is entitled to reasonable attorneys fees in the sum of $2,500.00.
____________
86 Nev. 197, 197 (1970) Harris v. State
ALMALYNN HARRIS, Appellant, v. STATE OF
NEVADA, Respondent.
No. 5935
March 25, 1970 466 P.2d 850
Appeal from order of the Eighth Judicial District Court, Clark County, denying a pretrial
petition for habeas corpus; Thomas J. O'Donnell, Judge.
Proceeding upon pretrial petition for writ of habeas corpus on ground that petitioner, in
violation of statute, was not brought to trial within 60 days after filing of information. The
district court denied the petition, and petitioner appealed. The Supreme Court, Thompson, J.,
held that where defendant filed to timely object to trial date but instead initiated the habeas
corpus proceeding asset to trial date but instead initiated the habeas corpus proceeding
asserting delay, his failure of timely objection together with initiation of the habeas corpus
proceeding rendered speedy trial impossible and the delay was the fault of defendant, not
attributable to the state.
Affirmed.
Melvin T. Harmon, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Where record on appeal did not disclose date of arrest, reviewing court was unable to determine whether
defendant had been brought before magistrate without unnecessary delay. NRS 171.178.
Filing of amended information was permissible where different offense was not charged and substantial
rights of defendant were not prejudiced. NRS 173.095.
3. Criminal Law.
Where defendant failed to timely object to trial date but instead initiated habeas corpus proceeding
asserting delay, his failure to timely object together with initiation of habeas corpus proceeding rendered
speedy trial impossible and delay and failure to bring him to trial within 60 days after filing of
information was fault of defendant, not attributable to state. NRS 178.556.
OPINION
This is an appeal from an order of the district court denying the pretrial petition of Harris
for a writ of habeas corpus. He complains that he was not brought to trial within 60 days after
the filing of the information in violation of NRS 178.556.
[Headnote 1]
On November 27, 1968, a criminal complaint was filed against Harris, and a warrant of
arrest issued. He appeared with counsel before the magistrate on December 11, 1968.
The record does not disclose the date of his arrest on the instant charge, and we are,
therefore, unable to determine whether he was brought before the magistrate without
unnecessary delay (NRS 171.178). In any event, counsel did not, on December 11, complain
of delay. On that occasion the magistrate informed the accused of his rights as required by
NRS 171.186, and within 15 days thereafter (NRS 171.196) a preliminary examination was
held. He was bound over to the district court for trial.
An information was filed against him on December 30, 1968, well within the 15-day
limitation designated by NRS 173.035(3) and NRS 178.556. He was arraigned upon that
information on February 4, 1969, and entered his plea of not guilty. His trial was then
scheduled to commence on March 5, 1969, 65 days later. Counsel did not object to the trial
date, or in any manner endeavor to secure an earlier setting, thereby waiving any right to later
complain.
[Headnote 2]
On February 24, 1969, the state filed an amended information. This was permissible since
a different offense was not charged nor were the substantial rights of the defendant prejudiced
(NRS 173.095). He was arraigned upon the amended information on March 4, 1969, and
pleaded not guilty. On that occasion the court advised the defendant and his counsel that the
trial could be set over to another date if they wished. They declined, and the trial date of
March 5, 1969, remained firm. Instead of going to trial on that day, the defendant initiated
this habeas corpus proceeding asserting delay.
[Headnote 3]
The contention is patently frivolous. Had he objected to the trial date when it was
designated, the court undoubtedly would have made every reasonable effort to accommodate
him and secure a date five days or more earlier than March 5. His failure to timely object to
the trial setting coupled with this habeas proceeding has rendered a speedy trial impossible.
The fault is the defendant's, and is not attributable to the state.
Affirmed.
____________
86 Nev. 200, 200 (1970) Quillian v. Mathews
BETTY MARLYN QUILLIAN, Individually and as Guardian Ad Litem for CATHERINE
ANN QUILLIAN, a Minor, Appellants, v. ELLEN FERN MATHEWS and H. CLYDE
MATHEWS, Jr., Wife and Husband, and EDWIN A. MITCHELL, Respondents.
No. 5984
March 25, 1970 467 P.2d 111
Appeal from verdict and judgment of the Second Judicial District Court, Washoe County;
Emile J. Gezelin, Judge.
Action against motorist and others for injuries six-year-old child sustained when struck by
motorist's vehicle as child was attempting to cross intersection of city street. The district court
rendered judgment for defendants and plaintiff appealed. The Supreme Court, Thompson, J.,
held that evidence generated jury question whether six-year-old child, who was found to
possess capacity of a normal six-year-old, who had crossed intersection several times without
adult supervision and who was injured when she was struck by automobile while crossing
intersection without adult supervision, was contributorily negligent in leaving safety of media
strip and darting into path of oncoming automobile; fact that child was only six years of age
did not establish that she was incapable of negligence as a matter of law.
Affirmed.
Goldwater, Taber, Hill and Mortimer, of Reno, for Appellants.
Leslie B. Gray and Richard P. Wait, of Reno, for Respondents Ellen Fern Mathews and H.
Clyde Mathews, Jr.
Wait & Shamberger, of Reno, for Respondent Edwin A. Mitchell.
1. Automobiles.
Evidence generated jury question whether six-year-old child, who was found to possess capacity of a
normal six-year-old, who had crossed intersection several times without adult supervision and who was
injured when she was struck by automobile while crossing intersection without adult supervision, was
contributorily negligent in leaving safety of median strip and darting into path of oncoming automobile;
fact that child was only six years of age did not establish that she was incapable of negligence as a matter of
law.
2. Trial.
Instruction that no pedestrian shall suddenly leave a curb or other place of safety and enter path of vehicle
which is so close that it is impossible for driver to yield was proper in action by six-year-old child for
injuries sustained when she left safety of median strip and darted into path of oncoming automobile where
by separate instruction jury was advised that violation of related portion of ordinance by any of defendant
motorists was negligence as a matter of law and that standard of care applicable to child applies even when
evidence shows that child may have violated an ordinance and jury was not informed that child's violation
of ordinance was negligence per se.
OPINION
This appeal is from a verdict and judgment for the defendants in a personal injury action
commenced by a mother on behalf of her six-year-old daughter. The main issue is whether a
child of that age may possess the capacity to be contributorily negligent. The district court,
after questioning the child out of the Presence of the jury, determined that the issue of her
contributory negligence should be submitted to the jury for resolution under appropriate
instruction. The appellants contend that this was reversible error. A subordinate claim of error
concerning jury instructions also is pressed. We have concluded that the district court ruled
properly throughout and affirm the judgment.
The daytime accident giving rise to this litigation happened when the six-year-old child
was attempting to cross East Plumb Lane at its intersection with Locust Street in Reno,
Nevada. East Plumb Lane is an east-west arterial with four lanes of traffic, two in each
direction, plus a left-turn lane for cars traveling east on Plumb and intending to turn north
onto Locust. A narrow island, or median strip, separates the west and east lanes on Plumb.
There was a stop sign for those driving south on Locust. There were no other traffic controls
at the intersection. The speed limit on Plumb Lane was 30 miles per hour.
The six-year-old child and her eight-year-old playmate, each with parental permission, had
gone to the Mayfair Market, walking north across Plumb to get there. After buying candy they
separated, and the six-year-old started home alone. She crossed the westbound lanes of Plumb
to the narrow island or median strip. At that moment the defendant Mitchell's car was
stopped on Plumb, short of the crosswalk, in the left-turn lane, intending to turn north
onto Locust.
was stopped on Plumb, short of the crosswalk, in the left-turn lane, intending to turn north
onto Locust. The defendant Mathews was driving east on Plumb within the speed limit in the
lane adjoining that occupied by the Mitchell car and a couple of car lengths behind. The
child, without looking to the right or left, ran in front of the Mitchell car and was struck by
the Mathews car which, with brakes applied, could not stop in time. The child was seriously
injured. She had crossed that intersection several times before without adult supervision and
had been instructed at home and school how to safely cross a street. The facts concerning the
accident were controverted. We have related those which support the verdict reached by the
jury.
1. The court instructed the jury on the subject of contributory negligence. The degree of
care applicable to a six-year-old child was properly stated.
1
The appellants simply contend
that the instruction should not have been given at all since a six-year-old child is incapable of
negligence, as a matter of law. This point of view has found the approval of some courts and
has been rejected by others. The cases are collected in a series of annotations, 107 A.L.R. 4,
174 A.L.R. 1080 and 77 A.L.R. 2d 917. Nevada has not decided the point. Perhaps the best
expression in support of the appellants' position is the case of Holbrock v. Hamilton
Distributing, Inc., 228 N.E.2d 628 (Ohio 1967). The court mentioned the three choices
available to it: first, that a child under seven years of age is conclusively presumed to be
incapable of contributory negligence; second, that a child under seven years of age is
presumed to be incapable of contributory negligence but the presumption is rebuttable; third,
that the question of contributory negligence of a child is always a fact question for the jury
upon proper instructions concerning the child's special standard of care, unless, of course,
reasonable minds could come to but one conclusion from the evidence.
____________________

1
The instruction read: A child is not held to the same standard of conduct as an adult and is only required to
exercise that degree of care which ordinarily would be exercised by children of the same age, intelligence and
experience. There is no precise age at which, as a matter of law, a child comes to be held accountable for his
actions by the same standard as applies to an adult. It is for you to determine whether the conduct of Catherine
Quillian, was or was not such as might reasonably have been expected from a child of the same age, intelligence
and experience under the same or similar circumstances. If you determine that it was, then her conduct was not
negligence. If you find that it was not, then her conduct was negligence.
The rule just stated applies even when the evidence shows a child may have violated an ordinance. The
question whether or not the child was negligent must still be answered by the above standard as I have stated it
to you.
child is always a fact question for the jury upon proper instructions concerning the child's
special standard of care, unless, of course, reasonable minds could come to but one
conclusion from the evidence. The Ohio court then adopted the conclusive presumption
approach. The numerical weight of authority appears to favor the third approach mentioned.
The California (Courtell v. McEachen, 334 P.2d 870 (1959)) and Utah (Mann v. Fairbourn,
366 P.2d 603 (1961)) cases are illustrative. Professor Prosser states: The great majority of
the courts have rejected any such fixed and arbitrary rules of delimitation, and have held that
children well under the age of seven can be capable of some negligent conduct. Undoubtedly
there is an irreducible minimum, probably somewhere in the neighborhood of four years of
age, but it ought not be fixed by rules laid down in advance without regard to the particular
case. As the age decreases, there are simply fewer possibilities of negligence, until finally, at
some indeterminate point, there are none at all. Prosser on Torts, pp. 158-159 (3d ed. 1964).
Accord: Rest. of Torts, Second, Sec. 283a.
[Headnote 1]
In our opinion it is not advisable to establish a fixed and arbitrary rule, and we reject the
view espoused by the Ohio court in Holbrock v. Hamilton Distributing, Inc., supra. We prefer
to treat the issue of contributory negligence of a child as a fact issue for the jury upon proper
instructions unless reasonable minds could come to but one conclusion from the evidence.
This allows for a degree of flexibility in the handling of each case as it comes before the trial
court. That court may decide initially whether reasonable minds could believe that the
particular child has the capacity to exercise that degree of care expected of children of the
same age, experience and intelligence in similar circumstances. Should the court determine
that the child has such capacity, the jury then is to decide whether such care was exercised in
the particular case. Should the court rule otherwise, then, of course, the issue of contributory
fault would not be submitted for jury resolution. This procedure was followed in the case at
hand, and we approve it. The evidence supports the court's conclusion that the plaintiff-child
possessed the capacity of a normal six-year-old. Indeed, the appellants do not contend
otherwise.
[Headnote 2]
2. The trial court instructed the jury about a city traffic ordinance which concerned the
right of way of pedestrians in a crosswalk.2 By a separate instruction the jury was advised
that a violation of that ordinance by any of the defendants was negligence as a matter of
law.
a crosswalk.
2
By a separate instruction the jury was advised that a violation of that ordinance
by any of the defendants was negligence as a matter of law.
The plaintiffs-appellants complain of paragraph (b) of that instruction, and contend that
the jury should have been advised that the provision of that paragraph does not apply to a
six-year-old child. In another instruction the court informed the jury that the standard of care
applicable to a child applies even when the evidence shows a child may have violated an
ordinance. See instruction quoted in footnote 1. The court did not, at any time, inform the
jury that an ordinance violated by the child was negligence per se. This case is thus set apart
from the California decision in Daun v. Truax, 365 P.2d 407 (1961), upon which this claim of
error rests. In Daun v. Truax, the trial court gave instructions almost identical to those here
involved, but in addition, advised the jury that a violation constituted negligence as a matter
of law. Id. at 410. This created an important contradiction which caused the appellate court to
reverse. That contradiction is not present in the instructions given to the jury in this case.
Affirmed.
____________________

2
The instruction: On August 27, 1966, there was in force in the City of Reno, State of Nevada, an
Ordinance, the pertinent parts of which read as follows:
Section 10-122. Pedestrians' Right of Way in Cross Walks. (a) When traffic-control signals are in
place and in operation, or not in place, or not in operation, the driver of a vehicle shall yield the
right-of-way, slowing down or stopping if need be, to so yield to a pedestrian crossing the roadway within
a cross walk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or
when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger.
(b) No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a
vehicle which is so close that it is impossible for the driver to yield.
* * * *
(d) Whenever a vehicle is stopped at a marked cross walk or at any unmarked cross walk at an
intersection, to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from
the rear shall not overtake and pass such stopped vehicle.
____________
86 Nev. 205, 205 (1970) Carmichel v. State
HOLLIS CARMICHEL, Appellant, v. STATE
No. 6009
March 25, 1970 467 P.2d 108
Appeal from judgment of the Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
Defendant was convicted in the district court of robbery, and he appealed. The Supreme
Court, Thompson, J., held that where pretrial identification of defendant was made by victim
from photographs submitted by police in absence of defense counsel whose presence was not
waived and photographs were not presented to court for its study and for cross-examination
of defense counsel, constitutional error occurred, but inasmuch as there was nothing to
intimate that the in-court identification by victim was tainted by his pretrial photographic
identification and the in-court identification had a solid independent origin, error was
harmless.
Affirmed.
Criminal Law.
Where pretrial identification of defendant was made by victim from photographs submitted by police in
absence of defense counsel whose presence was not waived, and photographs were not presented to court
for its study and for cross-examination of defense counsel, constitutional error occurred, but inasmuch as
there was nothing to intimate that the in-court identification by victim was tainted by his pretrial
photographic identification and the in-court identification had a solid independent origin, error was
harmless.
OPINION
By this direct appeal we are asked to set aside Carmichel's robbery conviction for the sole
reason that the trial court refused to suppress the in-court identification of him by the victim
whose pretrial identification was made from photographs submitted by the police and in the
absence of his counsel.
86 Nev. 205, 206 (1970) Carmichel v. State
submitted by the police and in the absence of his counsel. We decline to do so and affirm the
judgment entered below.
When the victim viewed the photographs, Carmichel was in custody, and the prosecutorial
process apparently had focused upon him. He was without counsel and had not waived his
right to counsel. The photographs were not offered to the trial court and consequently are not
before us. Thus, it is not certain whether they contained the possibility of irreparable
suggestion, although the testimony regarding them, received without objection, does not
indicate unfairness. Within this context our opinion in Thompson v. State, 85 Nev. 134, 451
P.2d 704 (1969), is relevant. Were there held that a lineup of photos and a lineup of persons
are to be accorded the same treatment insofar as the constitutional safeguards required by
United States v. Wade, 388 U.S. 218 (1967), are concerned; i.e., the presence of counsel, a
waiver thereof, or an adequate substitute for his presence. Without such protection or a
waiver of it, constitutional error occurs.
Constitutional error occurred in the case at hand since the photographic identification was
made in the absence of defense counsel whose presence was not waived and the photographs
were not presented to the court for its study, and the study and cross-examination of defense
counsel. Thompson v. State, supra. Thus, it is our task to decide in the first instance [Foster v.
California, 394 U.S. 440 (1969)] whether this error is harmless under the standard of
Chapman v. California, 386 U.S. 18 (1967).
There is nothing to intimate that the in-court identification by the victim was tainted by his
pretrial photographic identification. The in-court identification had a solid independent
origin. The victim and Carmichel were together for two or three hours before the robbery.
They had previously known each other in jail. The identity of Carmichel as the perpetrator of
the crime was not controverted. He did not testify in his own defense. The evidence pointing
to his guilt is strong and convincing. The scanty testimony about the photographs does not
indicate that they may have been so unnecessarily suggestive and conducive to irreparable
mistaken identification as to be a denial of due process of law. Stovall v. Denno, 388 U.S.
293, 302 (1967); Simmons v. United States, 390 U.S. 377 (1968); McCray v. State, 85 Nev.
597, 460 P.2d 160 (1969). The error was harmless.
Affirmed.
____________
86 Nev. 207, 207 (1970) Andrews v. State Board of Cosmetology
RUTH ANDREWS, Petitioner, v. NEVADA STATE BOARD OF COSMETOLOGY;
ARNOLD ALMOND, President; BERNICE RANDALL, Secretary, Respondents.
No. 6084
March 25, 1970 467 P.2d 96
Original proceedings in mandamus.
Mandamus proceeding asking the court to order State Board of Cosmetology to issue eight
blank subpoenas to be utilized in requiring attendance of witnesses at hearing scheduled
before Board. The Supreme Court, Mowbray, J., held that in absence of a specific grant of
authority, State Board of Cosmetology had no power to issue subpoenas to compel attendance
of witnesses.
Petition denied.
Richards & Demetras, of Reno, for Petitioner.
Harvey Dickerson, Attorney General, and Michael L. Melner, Deputy Attorney General,
for Respondents.
1. Administrative Law and Procedure; Licenses.
State Board of Cosmetology is a state administrative agency which has no general or common-law
powers but only such powers as have been conferred by law expressly or by implication. NRS 644.010
et seq.
2. Administrative Law and Procedure.
Official powers of an administrative agency cannot be assumed by agency nor can they be created by
courts in exercise of their judicial function.
3. Administrative Law and Procedures.
Subpoenas can be enforced by courts only when issued by officer properly endowed with authority to
issue subpoenas.
In absence of a specific grant of authority, State Board of Cosmetology had no power to issue subpoenas
to compel attendance of witnesses at its hearing. NRS 233B.123, subd, 3, 644.010 et seq.
Statute providing that each party may call and examine witnesses does not disclose an intent to grant
subpoena power to all state administrative agencies, and the subpoena power is limited to those agencies to
whom legislature expressly granted it. NRS 233B.123, subd.3.
OPINION
This is a mandamus proceeding asking this court to order the State Board of Cosmetology
to issue to petitioner, Ruth Andrews, eight blank subpoenas, so that Andrews may utilize
the subpoenas to require the attendance of witnesses at a hearing scheduled before the
Board of Cosmetology to determine whether petitioner's beauty salon license should be
revoked for employing an unlicensed hairdresser in violation of NRS 644.430.
Andrews, eight blank subpoenas, so that Andrews may utilize the subpoenas to require the
attendance of witnesses at a hearing scheduled before the Board of Cosmetology to determine
whether petitioner's beauty salon license should be revoked for employing an unlicensed
hairdresser in violation of NRS 644.430.
We find that the Board does not have the power to issue the subpoenas, and we deny
petitioner's request for mandamus.
[Headnotes 1-4]
The Board is a state administrative agency created by the Legislature pursuant to the
provisions of chapter 644 of the Nevada Revised Statutes. Its powers are limited to those
powers specifically set forth in chapter 644. As an administrative agency the Board has no
general or common law powers, but only such powers as have been conferred by law
expressly or by implication. Civil Aeronautics Bd. v. Delta Air Lines, Inc., 367 U.S. 316
(1961); L. & A. Constr. Co. v. McCharen, 198 So.2d 240 (Miss. 1967), cert. denied, 389 U.S.
945 (1967); 1 K. Davis, Administrative Law Treatise 2.01-2.16 (1958). Official powers of
an administrative agency cannot be assumed by the agency, nor can they be created by the
courts in the exercise of their judicial function. Federal Trade Comm'n v. Raladam Co., 283
U.S. 643 (1931); Cabell v. City of Cottage Grove, 130 P.2d 1013 (Ore. 1942). The grant of
authority to the agency must be clear. There is no authority in chapter 644 giving the Board
the power to issue subpoenas. Subpoenas can be enforced by courts only when issued by an
officer properly endowed with the authority to issue the subpoenas. Cudahy Packing Co. v.
Holland, 315 U.S. 357 (1942); Lowell Sun Co. v. Fleming, 120 F.2d 213 (1st Cir. 1941),
aff'd, 315 U.S. 784 (1942); Fleming v. Arsenal Bldg. Corp., 38 F.Supp. 675 (S.D.N.Y. 1940).
[Headnote 5]
Petitioner urges that, absent a specific grant to the Board to issue subpoenas under the
provisions of chapter 644, the Board may issue subpoenas under the provisions of the Nevada
Administrative Procedure Act. NRS 233B.123(3) in that Act provides:
Each party may call and examine witnesses, introduce exhibits, cross-examine opposing
witnesses on any matter relevant to the issues even though such matter was not covered in the
direct examination, impeach any witness regardless of which party first called him to testify,
and rebut the evidence against him.
Petitioner argues that the language of this statute, as well as the express purpose of the Act
to provide minimum procedural requirements, demonstrates a legislative intent to grant
subpoena power to all administrative agencies. We do not agree. During the Fifty-fourth
Session of the Legislature, in 1967, when NRS 233B.123, supra, was enacted, the Legislature
in that session and at that time granted subpoena power to the following State administrative
agencies: (1) State Department of Agriculture, NRS 561.146(1);
1
(2) State Air Pollution
Control Hearing Board, NRS 445.555;
2
and State Board of Pharmacy, NRS 639.246.
3

It is clear that, had the Nevada Legislature intended, when it enacted NRS 233B.123,
supra, during the Fifty-fourth Session in 1967, to grant subpoena powers to all state
administrative agencies, as petitioner contends, then the specific grants of subpoena power to
the State Department of Agriculture, State Air Pollution Control Hearing Board, and State
Board of Pharmacy would not have been necessary. We may only interpret such action as
manifesting an intent by the Legislature during that session to limit subpoena power to
those state agencies to whom it was expressly granted, and none other.
____________________

1
NRS 561.146(1):
1. Whenever the executive director [of the state department of agriculture] is authorized or required by law
to conduct a hearing, he shall have authority to issue subpenas requiring the attendance of witnesses before him,
together with all books, memoranda, papers and other documents relative to the matters for which the hearing is
called, to administer oaths and take testimony thereunder, and to take depositions within or without the state, as
the circumstances of the case may require. (Added to NRS by 1967, 420.)

2
NRS 445.555:
The chairman or, in his absence, the vice chairman of the state air pollution control hearing board or of a
county or district air pollution control hearing board may issue subpenas to compel attendance of any person at a
hearing and require the production of books, records and other documents material to a hearing. (Added to
NRS by 1967, 1072.)

3
NRS 639.246:
1. The secretary of the board [state board of pharmacy] shall issue subpenas for the production of witnesses,
documents or papers, in accordance with statutory provisions, at the request of any party to a hearing.
2. Witnesses appearing pursuant to a subpena shall receive expenses and witness fees in the amounts and
under the same circumstances as prescribed by law for witnesses in civil actions. Such expenses and fees shall be
paid in full by the party at whose request the witness is subpenaed.
3. Subpenas shall be served in the same manner as prescribed by law for the service of subpenas in civil
actions, and failure to comply with the order shall be punishable as contempt. (Added to NRS by 1967, 1659.)
interpret such action as manifesting an intent by the Legislature during that session to limit
subpoena power to those state agencies to whom it was expressly granted, and none other.
Petition denied.
Zenoff, Batjer, and Thompson, JJ., concur.
Collins, C. J., concurring:
I concur in the majority opinion and add these additional comments: Petitioner's
occupation is a lawful one and she may not be deprived of that right by revocation or
suspension of her license except through due process of law. Should she be prevented from
presenting her defenses to the charge through inability to compel attendance of witnesses or
otherwise secure their testimony because of lack of the subpoena power, due process may be
violated. See Jewell v. McCann, 116 N.E. 42 (Ohio 1917); followed in Geer v. State, 121
N.E. 901 (1918); reaffirmed in State v. O'Brien, 196 N.E. 664, 666 (Ohio 1935). See also 1
K. Davis, Administrative Law Treatise 8.15 (1958).
____________
86 Nev. 210, 210 (1970) Summers v. State
JACK ELMER SUMMERS, Appellant, v. THE STATE
No. 5904
March 26, 1970 467 P.2d 98
Appeal from conviction of first degree murder and sentence of death by a jury. Second
Judicial District Court, Washoe County; Thomas O. Craven, Judge.
Defendant was convicted in the district court of first-degree murder, and he appealed. The
Supreme Court, Zenoff, J., held that mere absence of defendant's reading glasses was not such
coercion of defendant as to constitute third-degree forced confession and that admission
into evidence of pictures of corpse of deceased showing location of six bullet holes for
purpose of establishing degree of crime was not error.
Affirmed.
Samuel B. Francovich, of Reno, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and Herbert F.
Ahlswede, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Mere absence of defendant's reading glasses was not such coercion of defendant as to constitute
third-degree forced confession in light of fact that indications were that defendant's headache was not
caused from depriving him of his glasses but was hangover.
2. Criminal Law.
In charge of murder, determination of whether parole should be considered at some future date is within
province of jury. NRS 200.030, subd. 3.
3. Criminal Law.
An instruction that discusses parole in murder case is proper if jury is not misled and so long as it does
not enlarge upon matter of parole such as requirements for eligibility, how scheme works, and the like.
NRS 200.030, subd. 3.
4. Criminal Law.
Admission into evidence in first-degree murder prosecution of pictures of corpse of deceased showing
location of six bullet holes for purpose of establishing degree of crime was not error.
5. Criminal Law.
Refusal of defendant's requested instructions which were included in other instructions given to jury was
not error.
OPINION
The early background to this case was summarized in Thomas v. Bokelman, 86 Nev. 10,
462 P.2d 1020 (1970), a civil suit by the surviving husband and foster children of Mrs. Mary
Thomas for monetary recovery for her murder by Jack Elmer Summers. Summers, after his
release from prison on a rape charge, resided with his half brother, William Bokelman.
Bokelman was unable to support Summers after a few weeks and asked Summers to leave the
household. Apparently angered, Summers went on a drinking spree during which he
surreptitiously shot Mary Thomas while Mrs. Thomas and Mrs. Bokelman were in the
Bokelman home. He was convicted of murder and sentenced to death by the jury.
Summers' grounds for this appeal variously assert that he should have a new trial because,
first, he gave his confession under duress, the basis of which was that he had been deprived
of his glasses and that this caused a headache at the time the confessions were given; second,
that the trial judge erred in his reply to a question from the jury; third, photographs of the
deceased were wrongly admitted into evidence; and, finally, that certain requested
instructions should have been given but were refused.
erred in his reply to a question from the jury; third, photographs of the deceased were wrongly
admitted into evidence; and, finally, that certain requested instructions should have been
given but were refused.
The murder took place about 1:00 p.m. on July 8th. Summers was apprehended about 2:45
a.m. on July 9th. He was given the Miranda warning (Miranda v. Arizona, 384 U.S. 436
(1966)) when arrested though it was obvious to the arresting police officer that Summers had
been drinking. Later, about 11:00 a.m., officer Benham interrogated Summers after giving
him another Miranda admonition. Summers then made an oral confession to Benham.
Benham summoned a court reporter and Summers confessed again. However, at the first
confession he had requested his glasses saying he could not read without them and that he
was subject to headaches without his glasses. Benham told him he would ask the jail
personnel for the glasses which he did after the second confession, but Summers never
received his glasses.
[Headnote 1]
1. The trial court conducted a hearing out of the presence of the jury to determine the
propriety of the confessions. The arresting officer testified that it was his opinion that
Summers knew what he was doing and understood the Miranda warning. In fact Summers
signed a card acknowledging his awareness at about 3:00 a.m. After other testimony was
received as to Summers' condition and capacity to understand, the trial judge ruled that the
statements were voluntarily made and could be used against Summers. We agree with his
conclusion.
The mere absence of his reading glasses was not such coercion upon Summers as to
constitute a third degree forced confession. Wallace v. State, 84 Nev. 603, 447 P.2d 30
(1968); see also Miranda v. Arizona, supra, at 445-458. Rocking chair treatment is not a
condition to the taking or admissibility of a confession. The indications are that Summers'
headache was not caused from depriving him of his glasses but was a hangover.
2. After the jury retired for deliberation the foreman sent a note to the judge reading as
follows:
Re: punishment to be confinement in the State Prison for life, without possibility of
parole.
Is such a decision subject to review at a later date which would result in the release of
defendant?
Defense counsel, not satisfied with a proposed written answer of the judge, submitted a
response that the judge gave to the jury.
answer of the judge, submitted a response that the judge gave to the jury. It was as follows:
The Court advises you that the question propounded must be divided into two parts.
The first part is as follows: Is such a decision subject to review at a later date . . .?
The Court informs you that the answer to that part of the question is in the affirmative.
Under the laws of the State of Nevada any sentence imposed may be reviewed by the State
Board of Pardon Commissioners.
The second part of the question is as follows:
. . . which would result in the release of the defendant? (Italics supplied.)
The Court informs you that as to this part of the question it cannot be answered by this
Court. This Court loses jurisdiction after sentence is pronounced. If you recommend sentence
of life imprisonment without possibility of parole, this Court will impose that sentence.
Whether or not the State Board of Pardon Commissioners upon review, if requested by the
defendant, would change that sentence, this Court has no way of knowing. The State Board of
Pardon Commissioners, however, would have the power to modify the sentence at a later date
as pointed out in answer to the first part of the question.
We reaffirm the rule announced by this court in Serrano v. State, 84 Nev. 676, 679-680,
447 P.2d 497 (1968), concerning what the jury should be told about parole in a murder case.
See also Bean v. State, 81 Nev. 25, 398 P.2d 251 (1965), although in that case the subject of
the jury considering parole arose through a prosecutor's comment to the jury instead of by
court instruction.
[Headnotes 2, 3]
In a charge of murder the determination of whether parole should be considered at some
future date is within the province of the jury. Serrano v. State, supra.
1
An instruction that
discusses parole in a murder case is proper if the jury is not misled and so long as it does not
enlarge upon the matter of parole such as requirements for eligibility, how the scheme works,
etc. Bean v. State, supra, at 35.
____________________

1
NRS 200.030(3): If the jury shall find the defendant guilty of murder in the first degree, then the jury by its
verdict shall fix the penalty at death or imprisonment in the state prison for life with or without possibility of
parole. . . .
[Headnote 4]
3. Two colored pictures of the corpse of the deceased were admitted into evidence
showing the location of the six bullet holes. The prosecutor offered the pictures for the
purpose of establishing the degree of the crime. He theorized that since Mrs. Bokelman
testified to hearing three shots before she ran from the scene of the shooting the three more
bullet holes would tend to show Summers' premeditation. No error was committed by
admitting the pictures into evidence. Wallace v. State, supra; Langley v. State, 84 Nev. 295,
297, 439 P.2d 986 (1968).
[Headnote 5]
4. Defendant's requested instructions which were refused were included in other
instructions given to the jury. Wallace v. State, supra, at 605.
We find no error.
Affirmed.
____________
86 Nev. 214, 214 (1970) Lewis v. State
DONALD FRANCIS LEWIS, Appellant, v. THE STATE
No. 5989
March 26, 1970 467 P.2d 114
Appeal from a conviction of felony drunk driving, failure to stop and report a motor
vehicle accident and involuntary manslaughter. Second Judicial District Court, Washoe
The district court rendered judgment, and the defendant appealed. The Supreme Court,
Zenoff, J., held that exculpatory statements of defendant, who had been advised by officers
three times of his rights, were admissible, where evidence supported ruling of district court
that statements were freely and voluntarily given by defendant though he was intoxicated.
Affirmed.
John M. Barry, of Reno, for Appellant.
86 Nev. 214, 215 (1970) Lewis v. State
1. Criminal Law.
Where question is raised as to voluntariness of defendant's statements, exculpatory or inculpatory
statements are subject to same exclusionary rule.
2. Criminal Law.
Exculpatory statements of defendant, who had been advised by officers three times of his rights, were
admissible in prosecution for felony of driving while intoxicated, failure to stop and report a motor vehicle
accident, and involuntary manslaughter, where evidence supported ruling of trial court that statements were
freely and voluntarily given by defendant though he was intoxicated.
OPINION
At or about 1:50 a.m. of January 19, 1969 two police cars were proceeding north of Reno
on Highway 395 to check on a 1958 Ford that was parked in the parking lot of a super
market. One police car stopped behind the parked Ford, left the headlights and taillights
burning and the officer focused a spotlight on the parked auto. The other police car drew up
to the right of the Ford with its red light and two spotlights operating. The scene of the
accident that followed was therefore well lighted.
Police officer Nearpass engaged Hampton, the driver of the Ford, in conversation on the
driver's side. Officer Raue was questioning a man named Hunt on the passenger's side.
Officer Mills was standing by the left rear fender of the Ford which was facing north about 18
feet off the roadway. An approaching speeding car was seen by Officer Raue who screamed a
warning, but it was too late. The car struck Mills, Nearpass and Hampton killing Mills and
seriously injuring the other two.
Later a 1960 DeSoto was found at the bottom of a nearby gully without an occupant.
Police officer Goodson had seen that car and Donald Francis Lewis earlier in the evening at
the Mapes Hotel in Reno. His description was the same as that of a person observed in a
trailer close to the area of the accident. Lewis was found there, arrested and was later
convicted of the crimes of felony drunk driving, failure to stop and report a motor vehicle
accident and involuntary manslaughter.
On appeal Lewis principally relies on what he claimed to have been improper admonitions
from law enforcement officers prior to his certain statements, i.e., that on the evening of the
accident he was the victim of a hitchhiker who beat and robbed him, and that it was the
hitchhiker driving when the accident happened, not Lewis.
86 Nev. 214, 216 (1970) Lewis v. State
accident happened, not Lewis. Tests showed Lewis was quite intoxicated.
[Headnotes 1, 2]
1. When the officers first entered the trailer they asked Lewis to identify himself, which he
did, whereupon they arrested him. They advised him of his rights three times. After being
advised of his rights Lewis repeated the hitchhiker story several times. It is not clear just what
his objection is but, in any event, exculpatory or inculpatory statements are subject to the
same exclusionary rule. State v. Owen, 394 P.2d 206 (Ariz. 1964). The exculpatory
statements were admissible. Even though Lewis was intoxicated the evidence supports the
trial court's ruling that the statements were freely and voluntarily given after appropriate
warnings. Wallace v. State, 84 Nev. 603, 447 P.2d 30 (1968).
2. Other assignments of error also are without merit. Lewis complained of excessive
publicity but there was not such news saturation as to be prejudicial. Bean v. State, 86 Nev.
80, 465 P.2d 133 (1970); Walker v. State, 85 Nev. 337, 455 P.2d 34 (1969); Hanley v. State,
83 Nev. 461, 434 P.2d 440 (1967). Neither do we find a problem of ineffective counsel, Bean
v. State, supra, nor of error in the admission of certain photos and a parking ticket into
evidence.
Affirmed.
____________
86 Nev. 216, 216 (1970) Checker, Inc. v. Zeman
CHECKER, INCORPORATED, Appellant, v. I. M. ZEMAN, S. A. TULLER, E. BOYER, D.
GOLDBERG, A. LANDMAN, C. CHAZEN, R. D. GRUBER, A. L. LIPKIN, D. A.
MESSING, H. W. BROTMAN, and D. LEMBARK, A Copartnership, Doing Business Under
the Firm Name and Style of ZEMAN, TULLER, BOYER & GOLDBERG, Respondents.
No. 5991
March 26, 1970 467 P.2d 100
Appeal from judgment allowing compensation for accounting services. Eighth Judicial
District Court, Clark County; Howard W. Babcock, Judge.
Action for accounting services performed by plaintiffs for taxicab company. The district
court rendered judgment allowing compensation for services, and the taxicab company
appealed. The Supreme Court, Zenoff, J., held that the accounting services were of the
value of $1,150 and that interest was recoverable for such services.
appealed. The Supreme Court, Zenoff, J., held that the accounting services were of the value
of $1,150 and that interest was recoverable for such services.
Affirmed.
E. M. Gunderson, of Las Vegas, for Appellant.
Lionel, Sawyer & Wartman, and Steve Morris, of Las Vegas, for Respondents.
1. Work and Labor.
When one performs services for another at latter's request and there is no express agreement as to
compensation, promise to pay reasonable value thereof will be implied.
2. Work and Labor.
Where services are requested a presumption or inference arises that beneficiary promises to pay.
3. Work and Labor.
Evidence supported finding that accounting services performed by plaintiffs for taxicab company were of
the value of $1,150.
4. Interest.
Under statute allowing interest on express or implied contracts from time money becomes due, interest
may be calculated from date prior to judgment. NRS 99.040.
5. Interest.
A book account is open account upon which no interest can be awarded. NRS 99.040, subd. 1.
6. Interest.
Accounting services performed by plaintiffs for taxicab company did not constitute book account
within exception that interest does not run on book account, where there was no running account with
changing balance but only one bill given at end of period when work had been performed. NRS 99.040,
99.040, subd. 1.
7. Interest.
Interest was recoverable for accounting services performed by plaintiffs for taxicab company even if
accountants made no claim for it in their prayer for relief. NRCP 54(c).
OPINION
Respondents are a public accounting firm which brought suit for $1,150 against Checker,
Inc., a taxicab company in Las Vegas, for services rendered.
The complainants were hired in 1961 or 1962 by Checker, Inc., to perform certain periodic
auditing which were from that time performed.
that time performed. A Mr. Woxberg who did the hiring was the president of Checker. The
firm was paid after each audit until the period ending March 31, 1964. In the examination for
that period the accountants discovered a substantial discrepancy in money taken in but not
deposited. Woxberg was notified by David Messing, a member of the firm, and conversations
concerning what to do about the findings were held between them. The actual auditing in
question had been done by a Mr. Copeland who died before the case came to trial.
Messing testified on behalf of the respondents from the books and records of the firm, plus
his own supervisory participation. A few days after the cab company was billed he learned
that a sale of the company was pending so he called Woxberg to insure payment. Woxberg
not only acknowledged the bill but he also promised to pay it. Before doing so, he sold his
stock in the company and the new operators refused to pay the bill contending that the work
was unsatisfactory and without value.
Only one witness testified on the taxicab company's behalf. He was an accountant who
was made an officer in the corporation after Woxberg left. He complained that the
discrepancies turned out to be substantial defalcations. He also acknowledged that the
company was reimbursed for the losses from insurance.
The trial court ruled that the accounting services and rates charged were proper and
entered judgment for the accountants for $1,150, plus attorney's fees, costs and interest. The
cab company appeals from that judgment, claiming failure of proof of value of the accounting
services, that interest should not have been imposed and that some evidence was excluded
that should have been allowed.
1. The respondents were hired to do certain services and they were performed. The
principal of the corporation, Woxberg, was satisfied with all of the services rendered and paid
for them except for the last period of time and as to those services he did not dispute the
amount or the value. Only the new owners attempted to show that the accountants should
have done more than they did or what they did do was wrong. Theirs was a reconstruction and
interpretation because they were not present when the job was done.
[Headnotes 1-3]
The accounting services and rates charged conformed to a pattern since the early
relationship between the parties. Where one performs services for another at the latter's
request and there is no express agreement as to compensation a promise to pay the
reasonable value thereof will be implied.
one performs services for another at the latter's request and there is no express agreement as
to compensation a promise to pay the reasonable value thereof will be implied. Whiteman v.
Brandis, 78 Nev. 320, 372 P.2d 468 (1962). Where services are requested a presumption or
inference arises that the beneficiary promises to pay. Willard v. Buck, 85 Nev. 34, 449 P.2d
471 (1969). In this case the appellant tried to show that the services were of absolutely no
value, not of mere lesser value, and the trial court made its findings upon the evidence
presented. The evidence is sufficiently substantial to support the findings. Wilkins v.
Capurro, 72 Nev. 49, 293 P.2d 427 (1956); 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).
[Headnotes 4-6]
2. NRS 99.040 allows interest on express or implied contracts from the time the money
becomes due. This has been interpreted to mean that the interest may be calculated from a
date prior to judgment. Paradise Homes, Inc. v. Central Surety & Ins. Corp., 84 Nev. 109, 437
P.2d 78 (1968). The taxicab company contests here that the contract (for accounting services)
comes within the exception to NRS 99.040(1) . . . book accounts. A book account is taken to
mean the same as an open account and appellant relies on Flannery v. Anderson, 4 Nev. 437
(1868), which held that no interest could be awarded on an open account. Here there was no
running account with a changing balance but only one bill given at the end of a period when
the work had been performed. Therefore, the services performed by the accountants cannot be
labeled a book account which would preclude any interest award for respondent.
[Headnote 7]
3. The cab company also claims that the accountants are not entitled to interest because
they made no claim for it in their prayer for relief. NRCP 54(c) allows relief to be granted in
favor of a party who is entitled to it even if the party has not demanded such relief in his
pleadings. Paradise Homes, Inc. v. Central Surety & Ins. Corp., supra, holds that interest is
recoverable as a matter of right in actions of contract express or implied upon all money from
the time it becomes due. We are satisfied that interest should be awarded upon the authority
of NRCP 54(c) and the cited case.
4. Appellant's allegations that certain material evidence was excluded is without merit.
Affirmed.
Collins, C.J., Batjer, Mowbray and Thompson, JJ., concur.
____________
86 Nev. 220, 220 (1970) Cooley v. Cooley
CECIL J. COOLEY, Appellant, v. DIANE COOLEY,
Respondent.
No. 5974
March 26, 1970 467 P.2d 103
Appeal from judgment of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Child custody proceeding. The district court rendered judgment from which appeal was
taken. The Supreme Court, Mowbray, J., held that award of custody of ten-year-old boy and
eight-year-old girl to mother, who had been given custody by separation agreement prior to
divorce action, was not abuse of discretion, notwithstanding that children were present in
mother's home during month she lived, absent benefit of clergy, with paramour, whom she
later married.
Affirmed.
Thompson, J., and Collins, C. J., dissented.
Paul J. Williams, of Reno, for Appellant.
Hawkins, Rhodes & Hawkins, of Reno, for Respondent.
1. Divorce.
Award of custody of ten-year-old boy and eight-year-old girl to mother, who had been given custody by
separation agreement prior to divorce action, was not abuse of discretion, notwithstanding that children
were present in mother's home during month she lived absent benefit of clergy, with paramour, whom she
later married; overruling any inconsistency with Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98 (1961).
2. Divorce.
Broad discretion rests in district judges as to which party to award custody of children on divorce. NRS
125.140.
OPINION
This is a child custody case involving a boy aged 10 and a girl aged 8.
The parties, Cecil J. and Diane Cooley, were married April 12, 1959. In early 1968, they
agreed to go their separate ways. On April 1 of that year they entered into a separation
agreement settling, among other things, the custody and support of their children. It was
agreed that Diane should have the children's custody, with Cecil having reasonable rights of
visitation. Later, in October 1968, Diane filed for divorce. In December, Diane sent the
children to Everett, Washington, so that they could spend the holidays with Cecil, where they
still reside.
The contested divorce action was heard by the district judge in June 1969. At that hearing
it was shown that Diane lived, absent benefit of clergy, for over a month with her paramour,
whom she later married. This was after Cecil and Diane had agreed to separate and after the
commencement of the divorce action. The children were present in the home during this
period. Diane wrote Cecil of the arrangement before she sent the children to him for the
Christmas holidays.
Based on this court's holding in Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98 (1961), Cecil
seeks a reversal of the decision of the district judge, who awarded custody of the children to
Diane.
1

[Headnote 1]
Cecil urges that, as a matter of law, the district court abused its discretion in awarding the
children's custody to Diane. We do not agree, and we affirm the ruling of the district judge.
It is true that this court, in Sisson, supra, reversed the district judge's award of custody to
an adulterous mother because such conduct precluded any conclusion that she was a good
mother and a fit and proper person to be awarded custody of the children. In that case, the
court said, 77 Nev. at 488, 367 P.2d at 103:
. . . Adult passions, apparently, sometimes provoke illicit togetherness. However, we
cannot approve such conduct, especially its exhibition before beloved children. This is not a
case where adultery is but an isolated occurrence. To the contrary, the wife-mother
deliberately subjected her children to a shameful, immoral, unwholesome environment of
more than a year's duration."
____________________

1
The district judge in his decision said in part:
. . . In making this award the Court wishes to make it abundantly clear that it is not in any way condoning
her [Diane's] admitted actions regarding the other man as brought out by the evidence and discussed in counsel's
legal briefs on file herein. . . . The Court accepts the premise here that one indiscretion on the part of the Plaintiff
in the light of all the facts and circumstances in proof, does not make her a bad mother or render her unfit to
have custody of these minor children.
the wife-mother deliberately subjected her children to a shameful, immoral, unwholesome
environment of more than a year's duration.
[Headnote 2]
Admittedly, child custody decisions present difficult problems for the district courts. That
is the reason broad discretion is given to the district judges, who have before them the parties
and the children. Adams v. Adams, 86 Nev. 62, 464 P.2d 458 (1970); Boisen v. Boisen, 85
Nev. 122, 451 P.2d 363 (1969); Cosner v. Cosner, 78 Nev. 242, 371 P.2d 278 (1962); Timney
v. Timney, 76 Nev. 230, 351 P.2d 611 (1960). Of course, that discretion must be operated
within the standards of NRS 125.140, which provides, in part:
1. The court, in granting a 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.
In the instant case the wife-mother and her paramour did not cohabit, as was done in
Sisson, supra, openly and notoriously in excess of a year. In Sisson, the court said, 77 Nev. at
489, 367 P.2d at 103:
We acknowledge that one may be a bad wife, but a good mother; that adultery is many
times considered, because of the particular facts involved, a most serious offense against the
spouse and not as serious an offense against the children.
As the Supreme Court of Washington observed in Norman v. Norman, 176 P.2d 349, 351
(Wash. 1947):
. . . Is the respondent who, although not promiscuous, admits she is an adulteress,
necessarily, by reason of that fact alone, conclusively shown to be an unfit person to have
custody of her child? The trial court, in awarding custody of children in divorce actions, must
consider many imponderable factors bearing upon the future welfare of the children. The
adultery of a mother is, of course, a very weighty factor, but we are not prepared to say that it
excludes the consideration of all other factors and is alone completely determinative of the
issue. See Bialac v. Bialac, 50 Cal.Rptr. 12 (Cal.App. 1966); Mason v. Mason, 179 A.2d
897 (Md. 1962); Standley v. Standley, 379 P.2d 868 (Ore. 1963); Dearden v. Dearden, 388
P.2d 230 (Utah 1964); 2 W. Nelson, Divorce and Annulment, 15.06 (2d ed. 1961); 30
Geo.L.J. 313 (1942).
The remaining evidence before the district judge indicated that Diane had been a good
mother. Indeed, Cecil apparently was of that opinion when he agreed in their separation
agreement that Diane should have custody of the children, subject to his right of
reasonable visitation.
was of that opinion when he agreed in their separation agreement that Diane should have
custody of the children, subject to his right of reasonable visitation.
Based upon the record in this case, we cannot say as a matter of law that the district judge
abused his discretion in awarding custody of the children to Diane with visitation rights to
Cecil. We therefore affirm the judgment.
2

Zenoff and Batjer, JJ., concur.
Thompson, J., dissenting:
The responsibility placed upon a trial court to decide which parent shall have the privilege
of child custody is awesome in nature and exceedingly difficult to discharge. The difficulty
multiplies when we are asked to review a custody order since we are removed from the
atmosphere of the trial and must rest our decision upon a cold record. It is for this reason that
a wide discretion is accorded to the trial court, with an attendant reluctance on our part to
interfere with the trial court's point of view. Realizing our inadequacy in these matters, we
have, nonetheless, proclaimed certain guidelines within which trial court discretion is to be
exercised, and beyond which an abuse of discretion will be declared. This is our appellate
function in this troublesome area.
These guidelines have been announced mainly in those custody cases in which the party
denied custody has been found to be fit. For example, in McGlone v. McGlone, 86 Nev. 14,
464 P.2d 27 (1970), we ruled that a fit parent is to be preferred over nonparents with respect
to child custody and reversed an order of the trial court granting the custody of two children
to their maternal grandparents. In Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969), we
held that, as between fit parents, the mother should have custody of children of tender years,
and reversed an order of the trial court granting such custody to the father. And in Sisson v.
Sisson, 77 Nev. 478, 367 P.2d 98 (1961), we held that a mother who had lived in adultery
with her paramour before her children of discerning years could not be granted the privilege
of custody over a fit father; see also, Toth v. Toth, 80 Nev. 33, 389 P.2d 73 (1964), a
modification proceeding. None of these guidelines are rigid and inflexible in application, but
are generally to be followed unless solid reasons exist for not doing so.
____________________

2
We expressly overrule any views in Sisson, supra, which may be inconsistent with those expressed herein.
so. In most cases, each of the mentioned guides to the exercise of discretion is wholly
compatible with the best interests of the child or children involved.
In the case at hand I find no true basis upon which to distinguish Sisson v. Sisson, supra.
The guideline established by that decision is, in my view, sound and should not be
overturned.
Respectfully, I dissent.
Collins, C. J., concurs.
____________
86 Nev. 224, 224 (1970) Revuelta v. State
MANUEL REVUELTA, Appellant, v. THE STATE
No. 6100
March 26, 1970 467 P.2d 105
Appeal from a judgment of the Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Defendant was convicted in the district court of possession of narcotics, and he appealed.
The Supreme Court, Batjer, J., held that overruling of defendant's objection to question
addressed to him as to his status as an ex-felon, although error, was harmless.
Affirmed.
James D. Santini, Public Defender, David M. Schreiber, Deputy Public Defender, Clark
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, Melvyn T.
Harmon, Deputy District Attorney, Clark County, for Respondent.
1. Witnesses.
Where failure to include legal essential of penal sentence in written judgment of defendant's former
conviction rendered it incomplete at time it was offered in evidence to impeach defendant's denial of any
prior convictions, denial of State's request to impeach defendant on basis of such judgment was not error.
NRS 176.105; Fed.Rules Crim.Proc. rule 32(b), 18 U.S.C.A.
2. Witnesses.
Certified or exemplified copy of judgment of conviction is proper rebuttal evidence to defendant's denial
of a prior conviction. NRS 48.130.
3. Witnesses.
Where defendant's denial of his status as an ex-felon, when asked in prosecution for possession of
narcotics if he had ever been convicted of a felony, was correct since prior judgment of conviction for
possession of narcotics was incomplete, overruling of defendant's objection to State's question and
requiring of defendant to answer was error. NRS 48.130.
4. Criminal Law.
Where evidence establishing defendant's guilt of possession of narcotics was substantial, error in
overruling of defendant's objection to State's question as to whether he had ever been convicted of a felony
was harmless. NRS 48.130, 177.255.
OPINION
The appellant was originally charged with the sale of narcotics. After a preliminary
examination he was bound over to district court for possession of narcotics, a felony. He was
tried before a jury and convicted. This appeal is taken from that conviction.
During the trial the appellant took the witness stand and on cross-examination the
prosecutor asked him if he had ever been convicted of a felony. Counsel for the appellant
objected to the question. There was an unreported conference at the bench between both
attorneys and the presiding judge, after which, the judge required the appellant to answer, but
denied the respondent the right to cross-examine any further on the question. The appellant's
answer was no. His counsel then moved for a mistrial. That motion was later withdrawn at
the request of the appellant.
Relying on Fairman v. State, 83 Nev. 287, 429 P.2d 63 (1967), and Boley v. State, 85 Nev.
466, 456 P.2d 447 (1969), the appellant claims that the trial court erred when it required him,
over his objection, to answer the respondent's question about his status as an ex-felon.
Both Fairman v. State, supra, and Boley v. State, supra, are distinguishable from this case
on the facts. In Fairman, during his cross-examination, the accused was asked if he had ever
been convicted of a felony. When he answered in the negative, the prosecution called the
county clerk, who had been present at the previous trial, and she testified to the fact of the
jury verdict of guilty. This court held that a verdict of the jury is not a judgment of the court,
nor is it a final determination for the purpose of proving that an accused, who has offered
himself as a witness, had been previously convicted of a felony.
a felony. In Boley the accused was asked, on cross-examination, about prior alleged felony
convictions. She denied any such convictions. At that time the prosecution did not have
available exemplified copies of her conviction record. When the exemplified copies became
available they revealed that the accused had not been previously convicted of a felony. This
fact was expressly stated to the jury by the district judge.
In both Fairman and Boley we held that it was error, although harmless, for the
prosecution to ask the question about a prior felony conviction if it was unprepared to prove
such prior conviction in the event of the accused's denial.
The alleged error in this case relates to a prior trial wherein the appellant, Manuel
Revuelta, was charged with the crime of possession of narcotics, a felony, arising from a
different transaction than the one here involved. That case was tried before a jury in another
department of the Eighth Judicial District Court, and a verdict of guilty was returned on July
29, 1969. On August 1, 1969, the presiding district judge specifically found Revuelta guilty,
but continued the time for sentencing until September 19, 1969. On September 15, 1969, the
same district judge signed and caused to be filed, in that case, a judgment of conviction
against Revuelta, again without passing sentence.
In the instant case, after the trial judge denied the respondent the opportunity to impeach
the appellant, the respondent made an offer of proof to show that Revuelta was a convicted
felon. The offer was supported by a certified copy of the judgment of conviction filed with
the clerk of the Eighth Judicial District Court on September 16, 1969. NRS 49.040. The
respondent's offer of proof was rejected by the trial court, because the judge believed that the
judgment of conviction entered against Revuelta in the prior case was incomplete because it
did not contain a penal sentence. NRS 176.105.
1
We agree.
The source of NRS 176.105 is Rule 32(b), F.R.Crim.P., 18 U.S.C.A. In Sanders v.
Johnston, 165 F.2d 736, (9th Cir. 1948), where the written judgment failed to include all
matters prescribed by Rule 32(b), F.R.Crim.P., 18 U.S.C.A., that court said: The enactment
of Rule 32(b) had for its purpose the prescribing of a uniform practice for the guidance of
trial courts in pronouncing judgment, so that by following its provisions confusion, such
as exists in this case, would not result.
____________________

1
NRS 176.105: A judgment of conviction shall set forth the plea, the verdict or findings, and the
adjudication and sentence. If the defendant is found not guilty or for any other reason is entitled to be
discharged, judgment shall be entered accordingly. The judgment shall be signed by the judge and entered by the
clerk.
of trial courts in pronouncing judgment, so that by following its provisions confusion, such as
exists in this case, would not result. However, it is the process actually employed which
determines the legality of a conviction and not a failure to make written evidence of it in the
judgment. In the event of failure to make such written evidence recourse to all the records of
the court may be had and where all legal essentials are thereby made to appeal habeas corpus
will not lie.
[Headnote 1]
In the case before us the legal essential of a penal sentence is missing and the record
expressly reveals that it was purposely excluded from the written judgment of conviction. The
failure to include the penal sentence in the written judgment rendered it incomplete at the
time it was offered in evidence and the trial court acted correctly in denying the respondent's
request to impeach the appellant on the basis of that judgment.
[Headnotes 2, 3]
When a defendant takes the witness stand it is permissible to ask him if he has ever been
convicted of a felony. NRS 48.130. In the event the witness denies a prior conviction, a
certified or exemplied copy of the judgment is proper evidence. Here the state offered a
certified copy of a prior judgment of conviction filed in a district court of this state. The trial
judge found that judgment incomplete and we have now affirmed his ruling. Therefore, the
appellant's denial of his status as an ex-felon was, at that time, correct, and the trial court
erred when it overruled the appellant's objection to the respondent's question, and required
him to answer.
[Headnote 4]
However, a review of the record indicates that the error was harmless. NRS 177.255.
2
Fairman v. State, supra, and Boley v. State, supra. In this case the evidence establishing the
guilt of the appellant is substantial. A police officer as well as other witnesses testified that
the appellant, in their presence, possessed and displayed a substance which was proven, at
trial, to be an illegal narcotic.
In Boley v. State, supra, we said: 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
[July 14, 1969] 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."
____________________

2
NRS 177.255: After hearing the appeal, the court shall give judgment without regard to technical error or
defect which does not affect the substantial rights of the parties.
a question and is not prepared to document the conviction, we shall review the point with
great care.
Here we have reviewed the record with great care and we find that the respondent acted in
good faith and did have a certified copy of a judgment of conviction in his possession when
he asked the question. The validity or invalidity of the judgment depended upon the
interpretation by the trial court and by this court of a newly enacted statute and was not
readily discernible.
____________
86 Nev. 228, 228 (1970) Walker v. Reynolds Electrical & Engineering Co.
PRENTISS WALKER, Appellant, v. REYNOLDS ELECTRICAL and ENGINEERING
COMPANY, INC., Respondent.
No. 5819
April 15, 1970 468 P.2d 1
Appeal from the Eighth Judicial District Court, Clark County; George F. Wright, Judge.
Action against employer by employee for breach of contract. The district court rendered
judgment for defendant and plaintiff appealed. The Supreme Court, Collins, C. J., held that
named judge of Fourth Judicial District, who was substituted to retry action in Eighth Judicial
District after judge who presided at trial died prior to rendering any decision or findings, was
not without jurisdiction to hear and decide case, notwithstanding that party's stipulation that
named judge retry case was only approved and substitution ordered by another judge of
Eighth Judicial District and no order approving substitution or assigning judge was sought or
issued by the Chief Justice of the Supreme Court.
Affirmed.
Michael L. Hines and Henry R. Gordon, of Las Vegas, for Appellant.
V. Gray Gubler, of Las Vegas, for Respondent.
1. Stipulations.
Named judge of Fourth Judicial District, who was substituted to retry action in Eighth Judicial District
after judge who had presided at trial died prior to rendering any decision or findings, was not without
jurisdiction to hear and decide case, notwithstanding that party's stipulation that named judge retry case
was only approved and substitution ordered by another judge of Eighth Judicial
District and no order approving substitution or assigning judge was sought or issued
by the Chief Justice of the Supreme Court.
only approved and substitution ordered by another judge of Eighth Judicial District and no order approving
substitution or assigning judge was sought or issued by the Chief Justice of the Supreme Court. NRS
1.230, subd. 5, 1.240, 3.040, 3.220.
2. Stipulations.
Stipulation, which parties in action commenced in Eighth Judicial District entered into on death of judge
who heard case and which sought to substitute named judge of Fourth Judicial District, was not void as
purporting to assign cause to Fourth Judicial District since phrases, in and for the Fourth Judicial District
Court modified District Judge and were part of judge's title and not an indication of change of venue.
3. Trial.
Record on appeal from judgment in favor of employer in employee's action for breach of contract
established that judge, who was substituted to retry case on records and files after judge who had presided
at trial died, considered and decided adversely to employee issue whether employer had agreed that
employee would be eligible for rehire after 90 days.
OPINION
This is an appeal from a judgment in favor of respondent (defendant below), in an action
for breach of contract brought by appellant (plaintiff below). We affirm the judgment.
On January 15, 1963, appellant filed suit against respondent alleging that respondent, for
whom appellant worked as a carpenter on the Nevada test site, unlawfully discharged
appellant solely because of his race and color. Appellant further alleged that respondent had
breached an agreement to re-employ appellant after a 90-day period, the agreement being in
consideration of appellant's forbearance of suit. Respondent denied these allegations,
claiming that appellant had been fired for cause and had not been referred to respondent by
the Union Hiring Hall for rehire until February, 1963, at which time appellant was rehired. In
what was claimed to be a reduction in work force, appellant was again laid off the last of
March, 1963.
The matter came to trial in the Eighth Judicial District Court on September 2 and 3 and
October 11, 1965, before Judge Peter Breen. After the trial, but before rendering any decision,
findings, or judgment, Judge Breen died. Thereafter, the parties agreed by stipulation that the
matter would be retried on the records and files, including the reporter's transcript of the
previous trial. It was further stipulated that the retrial be before Judge Wright of the Fourth
Judicial District or Judge Young of the Sixth Judicial District.
or Judge Young of the Sixth Judicial District. The stipulation was approved and it was so
ordered by Judge Alvin N. Wartman of the Eighth Judicial District. No order was sought nor
issued by the Chief Justice of Nevada approving the substitution of judges nor assigning
Judge Wright to the Eighth Judicial District to retry this case.
On September 9 and November 8, 1968, Judge Wright retried the case in the Eighth
Judicial District Court in Las Vegas. On December 18, 1968, he filed in the Eighth Judicial
District Court an Opinion and Decision, and on January 3, 1969, he filed in the Eighth
Judicial District Court Findings of Fact and Conclusions of Law, and Judgment signed by
him in Elko on December 31, 1968. Each of these documents was entitled in and related to
the Eighth Judicial District Court, and not Judge Wright's own Fourth Judicial District Court.
Appellant now contends, notwithstanding his stipulation, that Judge Wright did not have
jurisdiction to hear and decide this case absent his assignment to the Eighth Judicial District
Court by the Chief Justice of Nevada pursuant to NRS 3.040.
1
He concedes NRS 3.220
2
confers power upon district judges to hold court anywhere in the state, but argues that power
may be exercised only after formal assignment.
____________________

1
1. The district judges provided in NRS 3.010 shall also serve as ex officio circuit judges, and in that
capacity shall perform such judicial duties as may be designated by the chief justice of the supreme court as
hereinafter provided.
2. The chief justice of the supreme court shall seek to expedite judicial business and to equalize the work of
the district judges, and shall provide for the assignment of any district judge to another district court to assist a
court or judge whose calendar is congested, to act for a district judge who is disqualified or unable to act, or to
sit and hold court where a vacancy in the office of district judge has occurred. (Emphasis added.)

2
The district judges shall possess equal co-extensive and concurrent jurisdiction and power. They each shall
have power to hold court in any county of this state. They each shall exercise and perform the powers, duties and
functions of the court and of judges thereof and of judges at chambers. The decision in an action or proceeding
may be written or signed at any place in the state by the judge who acted on the trial and may be forwarded to
and filed by the clerk, who shall thereupon enter judgment as directed in the decision, or judgment may be
rendered in open court, and, if so rendered, shall be entered by the clerk accordingly. If the public business
requires, each judge may try causes and transact judicial business in the same county at the same time. Each
judge shall have power to transact business which may be done in chambers at any point within the state, and
court shall be held in each county at least once in every 6 months and as often and as long as the business of the
county requires. All of this section is subject to the provision that each judge may direct and control the
business in his own district and shall see that it is properly performed. (Emphasis added.)
be exercised only after formal assignment. He next contends the stipulation erroneously
agreed for the case to be retried in the Fourth or Sixth Judicial District Courts. Finally, he
contends Judge Wright failed to consider or rule upon the issue whether the parties had
agreed that appellant would be eligible for rehire after a 90-day period. None of the errors
urged by appellant have merit.
1. In 1885 a statute was enacted making the entire state one judicial district. Section 4 of
ch. 56, [1885] Stats. of Nev. 60 reads: The District Judges shall possess equal, co-extensive
and concurrent jurisdiction and power. They shall each have power to hold court in any
county of this State. They shall each exercise and perform the powers, duties and functions of
the Court, and of Judges thereof, and of Judges at chambers. If the public business requires,
each Judge may try causes and transact judicial business in the same county at the same
time.
In State ex rel. Coffin v. Atherton, 19 Nev. 332, 345-46, 10 P. 901 (1886), Section 4 of the
1885 Act was interpreted and explained by the court as follows: Having made one district,
and provided for the election of three judges therein, it was necessary to insert this section so
as to give the judges, as was given in the constitution to the three judges in Storey county,
co-extensive and concurrent jurisdiction' throughout the entire state, and to make certain the
point, which might otherwise be disputed, that although there were three judges in one
district, it only required one judge to constitute a court. (Emphasis added.)
In 1895, the 1885 Act was amended,3 and that part relevant here continues unchanged to
the present as NRS 3.220.
The 1895 Act was construed and interpreted by this court on the power of one district
judge to act as judge of another district in Twaddle v. Winters, 29 Nev. 88, 85 P. 280 (1906).
According to that case, Judge Curler of the Second Judicial District Court entered an order in
the minutes that all business and all cases and proceedings that have not been completed or
in the process of completion, and all new business that may be brought before the court
during the absence of the presiding judge, be referred to Judge M. A. Murphy, of the First
Judicial District Court of the State of Nevada, and that he be requested to try, determine, and
dispose of all cases and business now before the court in the absence of the judge of this
district.' 29 Nev. at 96. (Emphasis added.) Pursuant to this request, Judge Murphy sat on the
bench in Reno and later, in his own chambers at Carson City, issued an order granting
additional time in which to file a notice and motion for a new trial.
____________________

3
Ch. 59, [1895] Stats. of Nev. 56.
later, in his own chambers at Carson City, issued an order granting additional time in which
to file a notice and motion for a new trial. When the validity of that order was challenged, this
court said, applying what is now NRS 3.220, that Judge Murphy could have made the order if
he had been on the bench in Reno, and, since the order was one that could be made in
chambers, it could be made anywhere in the state. See also Roberts M. & M. Co. v. District
Court, 56 Nev. 299, 50 P.2d 512 (1935), construing the same statute (now NRS 3.220).
Thereafter, NRS 3.040
4
was enacted in 1955. Appellant claims NRS 3.040 limits or
restricts NRS 3.220. We disagree and hold that the two statutes, when carefully examined,
can each be given effect in harmony with the other.
2. NRS 3.220 grants co-extensive, equal power and jurisdiction to every district judge to
sit in any county in this state any time he is called upon, is needed, or consents to serve. This
statute recognizes the judicial business of this state is fluid and ever changing, and it provides
a statewide reservoir of judicial manpower which can be shifted with ease and without
question of authority the length and breadth of this vast state as the public business requires.
Historically, and long before enactment of NRS 3.040, district judges carried out the
provisions of NRS 3.220 in responsibly administering the judicial business of Nevada,
without specific, formal or written orders from the chief justice. In fact, a great tradition has
developed among district judges that they will not refuse a request or call to sit in another
county unless the judicial obligations in their home county absolutely preclude response. The
practice of assigning cases by a disqualified judge of one county to a judge of another county,
without necessity of an order from the chief justice is sanctioned by statute. See NRS
1.230(5). Parties to an action in which there is a disqualification are entitled to be heard and
urge their objection before the case is assigned to another [convenient] judge. NRS 1.240.
[Headnote 1]
NRS 3.040 was obviously enacted as a supplement to NRS 3.220 to give the chief justice
clear statutory authority to order assignments of district judges from one county to another to
aid and attempt to further improve the administration of judicial business in Nevada. There
was obviously little or no effective coordination of assignments of judges from one county to
another in a state-wide effort to expedite judicial business and equalize the caseload.
____________________

4
Ch. 440, 5, [1955] Stats. of Nev. 917.
to another in a state-wide effort to expedite judicial business and equalize the caseload.
Clearly, the legislature intended the chief justice to have specific statutory power, in addition
to his broad, inherent, constitutional power, to assist and direct the district judges in the most
effective state-wide use of their limited manpower. While it is unthinkable a district judge
would arbitrarily refuse a request to sit in another county when his own calendar permitted it,
under NRS 3.040, the chief justice could compel him to serve by proper order. So too, if a
particular trial were greatly protracted or burdensome because of the issue to be tried, the
chief justice could draw up a plan involving some or all the judges of the state and order
assignments to permit effective and efficient handling of the judicial business of one or all the
counties of the state. The number of situations which could be cited demonstrating the
operation of NRS 3.040 as a supplement to NRS 3.220 are almost endless. We therefore hold
the two statutes can be given simultaneous effect without conflict and in pari materia. See 2
Sutherland Statutory Construction 5201 (3d ed. 1943).
[Headnote 2]
3. We see no merit to appellant's contention that the stipulation was void because it
purported to assign the cause to the Fourth or Sixth Judicial District Courts. The phrases in
and for the .......... Judicial District Court, .............. Nevada contained in the stipulation
modify District Judge and are part of the judge's title, not an indication of change of venue.
[Headnote 3]
4. Judge Wright in his opinion and decision of December 18, 1968, listed the first issue to
be decided as, Did defendant agree to hire plaintiff 90 days after March 2, 1962? Further
issues listed were, Did the defendant permanently discharge plaintiff, and, If the defendant
discharged plaintiff permanently, can the plaintiff recover damages?
In his Findings of Fact and Conclusions of Law filed January 3, 1969, Judge Wright found
that, a letter of intent or statement of status was signed on March 2, 1962, by the plaintiff
and the defendant wherein the following words were used, to-wit: finally, Mr. Crocker (for
defendant) and Mr. Walker, (plaintiff) mutually agree that it would be appropriate for a
waiting period of ninety (90) days to elapse before Mr. Walker regains his eligibility for
employment with the Company.' "The Court finds that the above was not an agreement
based upon valuable consideration but was in the nature of a statement or memorandum
and that the defendant did not agree that at the end of 90 days that defendant would
employ plaintiff but the parties did mutually agree that such was a memorandum and not
an agreement."
The Court finds that the above was not an agreement based upon valuable consideration
but was in the nature of a statement or memorandum and that the defendant did not agree that
at the end of 90 days that defendant would employ plaintiff but the parties did mutually agree
that such was a memorandum and not an agreement.
He further found, That plaintiff has never been permanently fired by the defendant but
plaintiff is still carried by the defendant as eligible for employment and without any
discrimination.
It is obvious the lower court did consider the matter of rehiring plaintiff after 90 days and
found against him.
5

Judgment affirmed.
____________________

5
No issues were raised whether the findings were erroneous or not based upon substantial evidence. We
express no opinion upon those points.
____________
86 Nev. 234, 234 (1970) Home Indemnity Co. v. Desert Palace, Inc.
THE HOME INDEMNITY COMPANY, a Corporation, Appellant, v. DESERT PALACE,
INC., a Nevada Corporation, dba CAESARS PALACE, Respondent.
No. 5830
April 15, 1970 468 P.2d 19
Appeal from the Eighth Judicial District Court, Clark County; Howard W. Babcock,
Judge.
Suit concerning interpretation of clause in insurance contract. The district court entered
judgment for insured, and insurer appealed. The Supreme Court, Collins, C. J., held that
casino chips left in locked automobile while security guard entered hotel to make chip
exchange were being conveyed within meaning of policy clause as to loss of money and
securities by actual destruction, disappearance or wrongful abstraction thereof outside
premises while being conveyed by messenger.
Affirmed.
Morse, Graves, Parraguirre & Rose, Ltd., and Kent W. Michaelson, of Las Vegas, for
Appellant.
V. Gray Gubler, Las Vegas, for Respondent.
1. Insurance.
In construing language of insurance contract, intention of parties should control and terms should be
taken and understood in their plain, ordinary and popular sense.
2. Insurance.
Care and custody within meaning of policy protecting money and securities in transit and defining
messenger to include any employee duly authorized by insured to have care and custody of insured
property outside premises did not mean actual custody but protective custody and was satisfied by
reasonable attempts to protect and secure the insured property.
3. Insurance.
Casino chips left in locked automobile while security guard entered hotel to make chip exchange were
being conveyed within meaning of policy clause as to loss of money and securities by actual destruction,
disappearance or wrongful abstraction thereof outside premises while being conveyed by messenger.
4. Insurance.
Conveyed within meaning of policy clause as to loss of money and securities by actual destruction,
disappearance or wrongful abstraction thereof outside premises while being conveyed by messenger
included periods or instances of stops or nonmotion reasonably necessary to accomplish insured's operation
as contemplated by parties, including stops of automobile for traffic signals, necessary repairs or fuel or
pickups or deliveries.
OPINION
This is an appeal from a judgment rendered upon stipulated facts and concerns
interpretation of a clause in an insurance contract. The trial judge ruled for respondent. We
affirm that ruling.
Appellant, as insurer, entered into a contract of insurance protecting money and securities
in transit with respondent which contained the following clause: Loss of Money and
Securities by the actual destruction, disappearance or wrongful abstraction thereof outside the
Premises while being conveyed by a Messenger or any armored motor vehicle company, or
while within the living quarters in the home of any Messenger.
In that same policy messenger was defined to include any Employee who is duly
authorized by the Insured to have the care and custody of the insured property outside the
Premises.
The stipulated facts are summarized as follows: A security guard from Caesars Palace was
given chips of other casinos in Las Vegas and directed to exchange them with the other
casinos for Caesars Palace chips or cash. This procedure was regularly followed by casinos
in Las Vegas. The guard, driving a Caesars Palace car, began his rounds about S:15 a.m.,
February 7, 1967. About 10:00 a.m., after making exchanges of chips at seven other
casinos, the security guard arrived at the Aladdin Hotel with $10,664 in Caesars Palace
chips.
regularly followed by casinos in Las Vegas. The guard, driving a Caesars Palace car, began
his rounds about 8:15 a.m., February 7, 1967. About 10:00 a.m., after making exchanges of
chips at seven other casinos, the security guard arrived at the Aladdin Hotel with $10,664 in
Caesars Palace chips. He parked the car at the south entrance and, after checking to insure
that all the doors were locked, proceeded into the Aladdin Hotel to make a chip exchange,
leaving two bags of Caesars Palace chips, weighing 40 or 50 pounds, in the car. Upon
returning to the car after being gone about five minutes, the security guard discovered the
front door on the driver's side jimmied open and the $10,664 in Caesars Palace chips missing.
The issues to be decided in this appeal are whether, under the terms of the policy:
1. The chips were in the care and custody of the security guard when taken?
2. The chips were being conveyed when taken?
[Headnote 1]
1. In Richfield Oil Corp. v. Harbor Ins. Co., 85 Nev. 185, 452 P.2d 462 (1969), this court
said that in construing the language of an insurance 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. . . . In determining the intent of the parties a court should
consider all the salient facts. . . . In the case of Gerhauser v. North British and Merc. Ins.
Co., 7 Nev. 174, at 185 (1871), this court said, If . . . there is room for construction or doubt,
the benefit of the doubt must be given to the assured. This rule was reiterated in Smith v.
North Am. Acc. Ins. Co., 46 Nev. 30, 205 P. 801 (1922). The Nevada rule is in accord with
the general rule on the construction of insurance contracts. See 1 Couch on Insurance 2d
15:14; 10 Id. 42.64.
2. Appellant contends care and custody means continuous, personal custody of the
messenger or guard within the meaning of the policy. We do not agree. Webster's New
International Dictionary Second Edition, at 650, defines custody as: A keeping or
guarding; care, watch, inspection, for keeping, preservation, or security. A second definition
given is: control of a thing or person with such actual or constructive possession as fulfills
the purpose of the law or duty requiring it . . . .
[Headnote 2]
In construing language identical to that found in this policy, the Georgia Court of Appeals
said in Atlanta Tallow Co. v. Fireman's Fund Ins. Co., 167 S.E.2d 361, 364-65 {Ga.Ct.
the Georgia Court of Appeals said in Atlanta Tallow Co. v. Fireman's Fund Ins. Co., 167
S.E.2d 361, 364-65 (Ga.Ct. App. 1969) (concurring opinions, Deen & Hall, JJ.) that care and
custody does not mean actual custody, but protective custody, which is satisfied by
reasonable attempts to protect and secure the insured property. Similarly, that same court, in
an earlier opinion, construing identical policy terms, ruling, however, in favor of the insurer,
reasoned: Since there is a requirement of custody and this requirement extends to various
types of property, the standard to be applied must be determined by taking into account the
nature of the property being conveyed and the attendant circumstances. Cleveland Ave.
Liquor Store v. Home Ins. Co., 156 S.E.2d 202, 204-05 (Ga.Ct.App. 1967) (money bag left
on seat of unlocked automobile). While there are cases indicating that custody in such a
policy means personal custody, Sansone v. American Ins. Co., 160 So.2d 575 (La. 1964),
and Monteleone v. American Employers' Ins. Co., 120 So.2d 70 (La. 1960), we prefer the
former rather than the latter construction as more realistic and within the contemplation of the
parties.
The Caesars Palace messenger, in his care and custody of the chips took reasonable
precautions in protecting the insured property from others, as shown by the stipulated facts. If
appellant insists on personal, actual custody of the insured property at all times a messenger
has custody, it can so word the contract of insurance.
[Headnote 3]
3. Appellant next argues that the chips were not being conveyed when they were taken
because the automobile was parked and not in motion or under way, and hence the loss was
not covered by the policy terms. The relevant cases construing the words while being
conveyed are these: J & C Drug Co. v. Maryland Cas. Co., 298 S.W.2d 516 (Mo.Ct. App.
1957); Sansone v. American Ins. Co., supra; O.K. Express Corp. v. Maryland Cas. Co., 198
N.Y.S.2d 105 (App.Div. 1960); Monteleone v. American Employers' Ins. Co., supra; Trad
Television Corp. v. Hartford Acc. & Indem. Co., 113 A.2d 47 (N.J.App.Div. 1955); Atlanta
Tallow Co. v. Fireman's Fund Ins. Co., supra. Atlanta Tallow Co. is the only case decided
upon facts similar to the facts in this case, and contains the most persuasive reasoning.
[Headnote 4]
In Atlanta Tallow Co., the messenger stopped en route for lunch, leaving the money he
was conveying in a box locked in the glove compartment of his locked automobile.
in the glove compartment of his locked automobile. During the 10-minute interval he was
gone from his automobile, it was burglarized and the money was taken. In construing the
word conveyed, the court said: It cannot reasonably be said that the money was not being
transported or carried from the bank to the company premises at the time of the theft, and
there is no policy provision which required the automobile to be in actual motion at the time
of the disappearance or abstractions of the goods. 167 S.E.2d at 363. We conclude the word
conveyed includes those periods or instances of stops or nonmotion reasonably necessary to
accomplish the insured operation as contemplated by the parties. Examples of those periods
or instances of nonmotion would include stops for traffic signals, necessary repairs or fuel,
pickups or deliveries, and the like.
Judgment affirmed.
____________
86 Nev. 238, 238 (1970) Nevada Bank of Commerce v. Esquire Real Estate, Inc.
NEVADA BANK OF COMMERCE, a Nevada Banking Corporation, Appellant, v.
ESQUIRE REAL ESTATE, INC., a Nevada Corporation, M. J. SCHIFF, CALVIN C.
MAGLEBY, and BETTE MAGLEBY, Respondents.
No. 5861
April 15, 1970 468 P.2d 22
Appeal from the Eighth Judicial District Court, Clark County; Thomas J. O'Donnell,
Judge.
Action on guarantee for deficiency on note. The district court entered judgment, and
plaintiff appealed. The Supreme Court, Collins, C. J., held that evidence supported findings
that revision agreement was given by holder of deed of trust on property on which there was
chattel mortgage securing note and was received by payee of note in complete satisfaction of
debt and constituted novation discharging guarantors of original debt.
Affirmed.
Hilbrecht, Jones & Schreck, of Las Vegas, for Appellant.
Magleby & Cahlan, of Las Vegas, for Respondents Calvin C. and Bette Magleby.
Parraguirre, Rose, Pico & Norwood, of Las Vegas, for Respondents Esquire Real Estate,
Inc., and M. J. Schiff.
1. Guaranty.
Absent consent to a novation, a guarantor is absolved of his liability because debt to which his obligation
was collateral has been discharged.
2. Novation.
Revision agreement given by holder of deed of trust on property on which there was chattel mortgage
securing note and received by payee of note in complete satisfaction of debt constituted novation
discharging guarantors of original debt.
OPINION
This is an appeal from a judgment of the lower court in favor of respondents relieving
them of liability on a promissory note of which appellant was payee, Esquire Real Estate,
Inc., was maker, and Calvin C. and Bette Magleby were guarantors. The judgment also
awarded respondents $2,000 in counsel fees and their costs. We affirm the judgment.
On August 13, 1964, respondent Esquire Real Estate, Inc. (hereinafter referred to as
Esquire), by and through Calvin C. Magleby and M. J. Schiff, officers of the corporation,
executed a corporate promissory note in the sum of $42,761.60 payable to Nevada Bank of
Commerce (hereinafter referred to as NBC) in one monthly installment of $1,781.80 and 23
monthly installments of $1,781.73, commencing September 17, 1964. This note had
previously been secured by a guarantee executed by respondents Calvin C. and Bette Magleby
dated May 8, 1964, guaranteeing all indebtedness owing appellant from respondent Esquire
up to $75,000. The note was also secured by a chattel mortgage on all draperies and
appliances located in certain apartments owned by respondent Esquire. These apartments
were subject to a first deed of trust held by First Western Savings & Loan Association
(hereinafter referred to as First Western).
Sometime prior to January 29, 1965, Esquire defaulted on the deed of trust held by First
Western, who then took possession of the apartments. The third and last payment made by
Esquire on the note to NBC was paid November 17, 1964. On January 29, 1965, a document
entitled Revision Agreement Installment Loan was executed by Earl C. Gross, who signed
for Esquire Real Estate, First Western Savings and Loan Association, Mortgagee in
possession."
Association, Mortgagee in possession. This document purported to amend the note from
Esquire to NBC. It provided for payment by one installment of $1,131.50 and 35 monthly
installments of $1,131.36 beginning January 17, 1965. At this time the unpaid balance of the
note was increased from $37,334.88 to $40,729.10. Revision Charges were listed as
$6,212.91. Mr. Gross signed only for First Western. He had no authority to act for Esquire.
The only reason appearing of record for the agreement between NBC and First Western was
the assertion that First Western felt obligated to do so because of the appliances and draperies
in the apartments upon which NBC had a chattel mortgage.
At the time of the agreement, no notice of default had been served upon Esquire, and it
was not until after First Western failed to make the fourth payment that foreclosure
proceedings were commenced. August 26, 1965, appellant's counsel sent a letter on his own
letterhead to respondents herein, informing them that the property in the chattel mortgage
would be sold in 10 days. NBC, on September 9, 1965, sold the appliances and draperies
listed in the chattel mortgage for $27,000, which it applied to the note in question, and then
commenced this action against respondents on their guarantee for a deficiency on the note in
the amount of $6,183.69.
The lower court found that appellant and First Western entered an agreement whereby
First Western agreed to pay Esquire's note for an increased principal sum, the repayment
terms of which were different from those of the original note.
The issue presented for our review is whether the revision agreement between appellant
and First Western constituted a novation discharging Esquire from all obligations on its
promissory note and the Maglebys from obligation under their guarantee.
[Headnote 1]
1. In Williams v. Crusader Disc. Corp., 75 Nev. 67, 334 P.2d 843 (1959), this court held
that the substitution of a new obligation for an existing one effects a novation, which thereby
discharges the parties from all of their obligations under the former agreement inasmuch as
such obligations are extinguished by the novation. 75 Nev. at 70. It is also clear that, absent
consent to a novation, a guarantor is absolved of his liability, because the debt to which his
obligation was collateral has been discharged. Id. at 70-71. See also Walker v. Shrake, 75
Nev. 241, 339 P.2d 124 (1959).
The creditor must assent to the substitution of the new obligor in place of the original
obligor, but, "[a]s in other contract cases, the creditor's assent to the substitution of a
new obligor may be inferred from his conduct and other circumstances; his acceptance of
a part performance by the third party, knowing that it is made with the understanding
that a complete substitution {novation) is proposed, may be sufficient evidence of
assent."
obligor in place of the original obligor, but, [a]s in other contract cases, the creditor's assent
to the substitution of a new obligor may be inferred from his conduct and other
circumstances; his acceptance of a part performance by the third party, knowing that it is
made with the understanding that a complete substitution (novation) is proposed, may be
sufficient evidence of assent. 6 Corbin on Contracts 1297, at 214-15.
[Headnote 2]
2. The lower court could and obviously did conclude that the Revision Agreement was
given by First Western and received by NBC in complete satisfaction of Esquire's debt. It
further concluded the agreement constituted a novation discharging Calvin and Bette
Magleby from their guarantee of Esquire's debt to appellant.
There was substantial evidence to support those findings and conclusions of the trial court,
and they will be sustained on appeal. Briggs v. Zamalloa, 83 Nev. 400, 432 P.2d 672 (1967);
Harvey v. Streeter, 81 Nev. 177, 400 P.2d 761 (1965); Close v. Redelius, 67 Nev. 158, 215
P.2d 659 (1950); Friendly v. Larsen, 62 Nev. 135, 144 P.2d 747 (1944).
Judgment affirmed.
____________
86 Nev. 241, 241 (1970) Miller v. Ashurst
WANDA L. MILLER, Appellant, v. JUDITH ANN
ASHURST, KENT ASHURST, et al., Respondents.
No. 5885
April 15, 1970 468 P.2d 357
Appeal from an Order entered changing the place of trial of the action from the Sixth
Judicial District Court to the Second Judicial District Court; Llewellyn A. Young, Judge.
The Supreme Court, Collins, C. J., held that where factfinding session of Sixth Judicial
District Court was held in open court in another judicial district, order resulting was void.
Wait & Shamberger and Larry D. Struve, of Reno, for Appellant.
Laxalt, Bell, Berry, Allison & Le Baron, of Carson City, for Respondents.
1. Courts.
Decision of Supreme Court on January 6, 1969 that any proceeding which requires evidence, testimony,
or fact-finding must be heard in open court where particular court sits was applicable to order of January
10, 1969 changing place of trial of action from Sixth Judicial District Court to Second Judicial District
Court for convenience of witnesses and to promote ends of justice. NRS 13.050, subd. 2(c).
2. Statutes.
Statute providing that parties to action in a district court may stipulate, with approval of court, that action
may be tried before that court at any other place in state where a district court is regularly held is not
retroactive. NRS 1.050.
3. Statutes.
Courts will not give retrospective interpretation to statutes unless intention of lawmakers is so plain,
either by express words, or by unavoidable implication, as not to fairly admit of opposite construction.
Supreme Court will not undertake to decide constitutional questions involved in statute until issues are
presented in proper case.
5. Courts.
Where fact-finding session of Sixth Judicial District Court was held in open court in another judicial
district, order resulting was void.
OPINION
This is an appeal from an Order entered January 10, 1969, changing the place of trial of
the action from the Sixth Judicial District Court to the Second Judicial District Court, for the
convenience of the witnesses and to promote the ends of justice as authorized by NRS
13.050(2)(c).
On September 18, 1968, respondents (plaintiffs below) moved the Sixth Judicial District
Court for an order changing the place of trial from that court to the Second Judicial District
Court pursuant to NRS 13.050(2)(c). That provision authorizes a change of venue [w]hen
the convenience of the witnesses and the ends of justice would be promoted by the change.
By stipulation, the parties set the matter for hearing before Judge Young of the Sixth Judicial
District Court in Reno on December 20, 1968. On the date set, the hearing was held in a court
room of the Second Judicial District Court. There was a reporter present who transcribed the
hearing, and that transcript is part of the record before this court on appeal.
and that transcript is part of the record before this court on appeal. It also appears there was a
deputy clerk of the Second Judicial District Court in attendance.
At the close of the hearing, Judge Young granted the motion and said he would prepare a
formal order for the attorneys' records. Subsequently, on January 10, 1969, Judge Young
entered his order granting the change of venue and accompanied this order with findings of
fact and conclusions of law.
In the meantime, on January 6, 1969, this court filed its opinion in Madison Nat'l Life Ins.
Co. v. Second Judicial Dist. Ct., 85 Nev. 6, 449 P.2d 256 (1969). In that case, this court said:
[(A]ny 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). The court further held 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. Madison concerned a
hearing on a petition for counsel fees heard by Judge Wilkes of the Seventh Judicial District
Court, in Ely, while sitting as a judge of the Second Judicial District Court. This court said,
Because there was fact finding in an open session of the Second Judicial District Court held
in Ely, Nevada, the order was void.
[Headnote 1]
1. The rule announced in Madison is clearly applicable to the issue involved here. The
record is replete with evidence that the hearing was fact finding procedure. NRS 13.050
requires the trial judge to find factually that an order changing venue would promote the
convenience of witnesses and the ends of justice. Indeed, it is difficult to discern what, if any,
issue of law was before the lower court in ordering the change of venue.
[Headnote 2]
2. Respondents argue, however, that the rule in Madison should be applied prospectively
only and not control the issues in this case. They also urge the court to take into consideration
ch. 338 [1969], Stats. of Nev. 591, effective July 1, 1969,
1
nearly six months after the order
in this case and our decision in Madison. We are not persuaded by either argument.
____________________

1
The parties to an action in a district court may stipulate, with the approval of the court, that the action may
be tried, or any proceeding related to the action may be had, before that court at any other place in this state
where a district court is regularly held.
There are instances where appellate decisions have been made prospective only, but where
that has been done, prospective application has been specifically ordered for compelling
reasons. No compelling reasons have been shown and none appear to this court for such an
order.
[Headnotes 3, 4]
In Volume 1 of this court's opinions, it was held in passing upon the question of
retroactivity of a legislative enactment, the courts will not give a retrospective interpretation
to statutes unless the intention of the lawmakers is so plain, either by express words, or by
unavoidable implication, as not to fairly admit of the opposite construction. Milliken v.
Sloat, 1 Nev. 573, 577-78 (1865). Furthermore, application and interpretation of that statute
may give rise to constitutional questions.
2
We will not undertake to decide those issues until
they are presented to us in a proper case.
[Headnote 5]
3. Where, as here, a fact finding session of the Sixth Judicial District Court was held in
open court in another judicial district, the order resulting was void. Madison Nat'l Life Ins.
Co. v. Second Judicial Dist. Ct., supra.
____________________

2
See Article 6, Section 7 of the Nevada Constitution and Ex parte Wonacott, 27 Nev. 102, 73 P. 661 (1903).
____________
86 Nev. 244, 244 (1970) Riley v. State
JOSEPH RILEY, Jr., Appellant, v. THE STATE
No. 5914
April 15, 1970 468 P.2d 11
Appeal from the Eighth Judicial District Court, Clark County; Clarence Sundean, Judge.
Defendant was convicted in the district court of grand larceny, and he appealed. The
Supreme Court held that clear and convincing evidence supported trial court's finding that
in-court identification by desk clerk who saw thief at front desk of hotel in brightly lit area
from distance of 12 to 15 feet for seven seconds or less and who saw thief again on street
before thief disappeared around corner was not tainted by pretrial confrontation or lineup
with respect to which defendant had neither been provided counsel nor waived right to
counsel.
86 Nev. 244, 245 (1970) Riley v. State
thief disappeared around corner was not tainted by pretrial confrontation or lineup with
respect to which defendant had neither been provided counsel nor waived right to counsel.
Affirmed.
1. Criminal Law.
Trial court's determination that an in-court identification was not tainted by pretrial confrontation or
lineup will be upheld if there is clear and convincing evidence to support finding that in-court
identifications were based on observations of suspect other than lineup identification.
2. Criminal Law.
Clear and convincing evidence supported trial court's finding that in-court identification by desk
clerk, who saw thief at front desk of hotel in brightly lit area from distance of 12 to 15 feet for seven
seconds or less, and who saw thief again on street before thief disappeared around corner was not
tainted by pretrial confrontation or lineup with respect to which defendant had neither been provided
counsel nor waived right to counsel.
OPINION
Per Curiam:
This appeal from a jury conviction of the crime of Grand Larceny, seeks review of the trial
court's determination that appellant's courtroom identification by an eye witness to the crime
was not tainted by an earlier confrontation or police lineup. We affirm the ruling and the
conviction.
On October 29, 1968, Louis Oloff, desk clerk at the Four Queens Hotel in Las Vegas, saw
a man removing money from a cash drawer at the front desk of the hotel. At that time Oloff
was 12-15 feet away from the thief who was in a brightly lit area. The thief was in view for
about seven seconds or less before he ran downstairs and disappeared from view. Oloff saw
him again on the street before he disappeared around a corner.
A short time later the police arrived to take Oloff to the police station. Enroute to the
police station two stops were made to have Oloff look at suspects who had been apprehended.
Oloff immediately cleared the first suspect because he was too short and was dressed
wrong.
86 Nev. 244, 246 (1970) Riley v. State
was too short and was dressed wrong. The second suspect, the appellant here, was identified
by Oloff as the culprit. Later, a lineup was held at the police station and Oloff again identified
appellant as the thief he had seen in the cash drawer. In connection with those two instances
of identification, appellant had neither been provided counsel nor waived the right.
At the trial, a motion to suppress was granted in part and Oloff was barred from testifying
concerning his identification at the confrontation or the police lineup. Also, during the trial a
hearing was held out of the presence of the jury, and the trial judge determined that Oloff's
courtroom identification was not tainted by the confrontation or by the police lineup.
In United States v. Wade, 388 U.S. 218 (1967), the Supreme Court said that where
evidence of identification at a lineup was inadmissible, the courtroom identification would
not be excluded if it could be shown by clear and convincing evidence that the in-court
identifications were based upon observations of the suspect other than the lineup
identification. 388 U.S. at 240.
[Headnote 1]
We have held in several recent cases the trial court's determination that an in-court
identification was not tainted by pretrial confrontation or lineup will be upheld if there is
evidence to support such a finding of the type and quality required by Wade. E.g., McCray v.
State, 85 Nev. 597, 460 P.2d 160 (1969); Boone v. State, 85 Nev. 450, 456 P.2d 418 (1969).
[Headnote 2]
We have reviewed the record in this case, and the lower court's finding and ruling are
supported by clear and convincing evidence.
____________
86 Nev. 247, 247 (1970) Bell v. Krupp
R. GORDON BELL, dba GORDON BELL REALTY, Appellant, v. VERA KRUPP VON
BOHLEN UND HALBACH and BANK OF CALIFORNIA N. A. and BANK OF NEVADA,
Co-Executors of the Estate of Vera Krupp von Bohlen und Halbach, Respondents.
No. 5918
April 15, 1970 467 P.2d 1013
Appeal from summary judgment of the Eighth Judicial District Court, Clark County; John
F. Mendoza, Judge.
Action by broker to recover real estate commission allegedly due him from vendor. The
district court granted summary judgment in favor of vendor, and broker appealed. The
Supreme Court, Mowbray, J., held that where order to pay commission of broker provided
that broker's commission be paid from receipts of sale of property to purchaser, whether sale
was consummated or whether vendor could have sued purchaser successfully to enforce sale
was relevant to issue of broker's commission, and that broker who was seeking a commission
on terms different from those provided in escrow instructions and on an order of payment for
his fees, both of which he signed, would not be permitted to deny his representations on basis
of a different and prior oral agreement.
Affirmed.
Wiener, Goldwater & Galatz, Ltd., and J. Charles Thompson, of Las Vegas, for Appellant.
Lionel & Sawyer, Ltd., of Las Vegas, for Respondents.
1. Brokers.
Where broker and owner signed order that broker's commission be paid from receipts of sale of property
to purchaser, whether sale was consummated or whether vendor could have sued purchaser successfully to
enforce sale was relevant to issue of broker's commission.
2. Brokers.
In absence of some other agreement, broker has earned his commission when he has produced a buyer
ready, willing, and able to purchase property upon terms prescribed by the seller.
3. Brokers.
Payment of broker's commission may be predicated on a specified condition.
OPINION
Appellant R. Gordon Bell commenced this action in the district court to recover
$110,000, representing a broker's real estate commission allegedly due him from Vera
Krupp von Bohlen und Halbach.1 The respondents moved before trial for a summary
judgment.
86 Nev. 247, 248 (1970) Bell v. Krupp
district court to recover $110,000, representing a broker's real estate commission allegedly
due him from Vera Krupp von Bohlen und Halbach.
1
The respondents moved before trial for
a summary judgment. NRCP 56, paragraphs (b) and (c).
2
The district judge granted the
motion and dismissed Bell's complaint with costs. Hence, this appeal. We affirm the court's
order granting summary judgment in favor of Mrs. Krupp.
1. The Facts.
Sometime prior to 1966, R. Gordon Bell, a licensed real estate broker in Las Vegas,
discussed with Mrs. Krupp the possibility of selling the Krupp ranch located in Clark County.
Bell claimed in his deposition, which was submitted to the court, that Mrs. Krupp had orally
listed the property with him and that she had agreed to pay him a commission for sale of the
property equal to 10 percent of the sales price.
In early 1967, Bell discussed with representatives of Clark County the possibility of selling
the ranch to the County for the total purchase price of $1,110,000. In March 1967, at a
recessed regular session, the County Commissioners passed a resolution to purchase the
ranch for $1,110,000, . . . including all appurtenances, furniture, fixtures, appliances and
personal property for park, recreation and other purposes. Mr. David Henry, the County
Manager, drew and delivered to Bell a $10,000 check as a deposit on the purchase price. Bell
accepted the check and went immediately to Chicago Title Insurance Company in Las Vegas
and directed the preparation of escrow instructions for the purpose of consummating the
sale.
____________________

1
Mrs. Krupp died after the commencement of the action. The other respondents, Bank of California N. A.
and Bank of Nevada, her appointed executors, were named defendants in a supplemental complaint.

2
NRCP 56 reads in relevant part:
RULE 56. SUMMARY JUDGMENT
. . .
(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a
declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary
judgment in his favor as to all or any part thereof.
(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed
for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment
sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may
be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
86 Nev. 247, 249 (1970) Bell v. Krupp
Insurance Company in Las Vegas and directed the preparation of escrow instructions for the
purpose of consummating the sale. Bell took the prepared escrow instructions to the Clark
County District Attorney, secured his approval and signature, and left by plane for Los
Angeles to obtain Mrs. Krupp's approval.
Mrs. Krupp signed the instructions. Before she did so, however, she shortened, by
interlineation, the escrow period from 90 to 60 days. Bell returned to Las Vegas and
presented the escrow instructions to the Commissioners. They apparently were concerned
about the change from 90 to 60 days, made by Mrs. Krupp, and at their regular meeting on
April 20 they voted that, in view of Mrs. Krupp's modification of the escrow terms, they
would hold the matter in abeyance.
3

In June 1967 the ranch was sold to Richard Gray, Trustee for the Hughes Tool Company.
Bell was not involved in that sale.
2. The Order for Payment of Broker's Fees.
When Bell directed the preparation of the escrow instructions, which he signed, he
provided for the payment of his commission from the proceeds of the sale. At that time Bell
also caused to be prepared an ORDER TO PAY COMMISSION TO BROKER, which he
and Mrs. Krupp signed.
4
The Order provided that Bell's commission would be paid from the
receipts of the sale of the property to the County.
____________________

3
Commissioner Ryan had earlier initialed the Krupp change.
ORDER TO PAY COMMISSION TO BROKER
Date March 23, 1967
Escrow No LV-23521 KS
CHICAGO TITLE INSURANCE CO.
Nevada Title Office
You are hereby instructed and directed to Pay Real Estate Brokers Commission from the funds due me at the
close of your above numbered escrow as follows:
382-9060
Broker
1 GORDON BELL REALTY
BERT BAUER REALTY
2 xxxxxxxxxxxxxxxxxxx [sic]
3 Ackerman Realty

}

AMOUNT
$110,000.00
Other Instructions: It is understood and agreed that the commission shall be paid in the following manner
$50,000.00 out of the close of escrow and $30,000.00 each out of the two succeeding payments, balance shall
bear 7% int. In the event payment is made
86 Nev. 247, 250 (1970) Bell v. Krupp
from the receipts of the sale of the property to the County. Bell, however, in his deposition
now contends that Mrs. Krupp had orally agreed with him sometime prior to 1967 to pay a
sales commission upon Bell's finding a purchaser who was acceptable to Mrs. Krupp; that
when, as in this case, Mrs. Krupp signed the escrow instructions, she accepted the County as
the purchaser of the ranch; and that at that moment Bell had earned and was entitled to his
commission.
[Headnotes 1-3]
In his argument, Bell insists that whether the sale was consummated or whether Mrs.
Krupp could have sued the County successfully to enforce the sale is, in this case, entirely
irrelevant. We do not agree. Whether a seller could successfully sue a buyer might be
irrelevant in certain situations, but in the instant case the relationship between the buyer and
the seller, insofar as it had to do with the consummation of the sale, is relevant to the issue of
the broker's commission. It is true that the general rule, which has been stated many times, is
that, in the absence of some other agreement, a broker has earned his commission when he
has produced a buyer ready, willing, and able to purchase the property upon the terms
prescribed by the seller. 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).
The payment of a broker's commission, however, may be predicated on a specified
condition. As summarized in 10 S. Williston, Contracts, 1287A at 978 (3d ed. W. Jaeger
1967):
Whatever may be the customs and usages respecting the broker's right to a commission,
when he presents a purchaser ready, willing and able to perform, the parties by their
agreement may make this right dependent on an express condition such as actual sale.
____________________
in full prior to the maturity date entire commission to be paid in full at that time.
Vera Krupp Von Bohlen und Halbach
Vera Krupp Von Bohlen und Halbach
The foregoing order is hereby approved
GORDON BELL REALTY
BY: R. Gordon Bell
Broker
xxxxx [sic]
Sellers escrow and title fees to be paid by brokerR. Gordon Bell
86 Nev. 247, 251 (1970) Bell v. Krupp
such as actual sale. Or, other qualifications may be incorporated such as out of purchase
money,' cash payment,' upon effecting a sale,' upon consummation of sale,' on the closing
of title,' when title passed,' if deal went through,' or, on the date formal transfer is made.'
Payment of the broker's commission may also be predicated on specified conditions
precedent, or other factors affecting the coming into being of a valid contract. (Footnotes
omitted.) See also Fitch v. LaTourrette, 75 Nev. 484, 346 P.2d 704 (1959); Cochran v.
Ellsworth, 272 P.2d 904 (Cal. App. 1954); Wilson v. Security-First Nat'l Bank, 190 P.2d 975
(Cal.App. 1948).
We conclude that a broker who is seeking a commission (1) on different terms from those
provided in escrow instructions and (2) on an order of payment for his fees, both of which he
signed, may not now be permitted to deny his representations on the basis of a different and
prior oral agreement. Cf. Aldabe v. Adams, 81 Nev. 280, 402 P.2d 34 (1965).
The order granting summary judgment is affirmed.
____________
86 Nev. 251, 251 (1970) Kroc v. State
JAMES EDWARD KROC, Appellant, v. STATE
No. 6000
April 15, 1970 467 P.2d 264
Appeal from judgment of the Eighth Judicial District Court, Clark County; Clarence
Sundean, Judge.
Affirmed.
Alfred Becker, of Las Vegas, for Appellant.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction rendered upon jury verdicts of guilty of
robbery and assault with a deadly weapon with intent to do bodily harm.
86 Nev. 251, 252 (1970) Kroc v. State
We have examined the various assignments of error and find none to be supported by
relevant authority. We therefore affirm the judgment entered below.
____________
86 Nev. 252, 252 (1970) Goldsworthy v. Hannifin
DENNIS FREDERICK GOLDSWORTHY, Petitioner, v. PHILIP P. HANNIFIN Chief,
Department of Parole and Probation, BOARD OF PAROLE COMMISSIONERS, and
STATE OF NEVADA, Respondents.
No. 6022
April 15, 1970 468 P.2d 350
Petition for writ of mandate directing chief of Department of Parole and Probation to allow
petitioner to file and requiring State Board of Parole Commissioners to consider application
for parole. The Supreme Court, Collins, C. J., held that statute defining minimum time, for
purpose of parole, to be served by prisoner sentenced on or after July 1, 1967 to an
indeterminate period of imprisonment on conviction of crime committed prior to July 1, 1967
is unconstitutional as ex post facto legislation.
Application granted; writ shall issued.
Richards and Arrascada, of Reno, for Petitioner.
Harvey Dickerson, Attorney General, and Robert A. Groves, Deputy Attorney General, for
Respondents.
1. Constitutional Law; Pardon and Parole.
Statute defining minimum time for purpose of parole to be served by prisoner sentenced on or after July
1, 1967 to an indeterminate period of imprisonment on conviction of crime committed prior to July 1, 1967
is unconstitutional as ex post facto legislation. Stats. 1969, ch. 98; Const. art. 1, 15; U.S.C.A.Const.
art. 1, 9, 10.
Ex post facto laws are those laws which inflict greater punishment than that affixed when the offense was
committed.
A legislative act increasing sentence to be given an offender for crime committed before the law was
passed is ex post facto and constitutionally prohibited.
Parole is not a constitutional right but is a right bestowed by legislative grace.
5. Constitutional Law; Pardon and Parole.
Although parole is not a constitutional right, if a legislature undertakes to enact laws granting parole
those rights granted as acts of clemency or grace must be administered in accordance with due process and
may not arbitrarily increase punishment previously imposed in unequal and illogical manner. Const. art.
1, 15; U.S.C.A.Const. art. 1, 9, 10.
OPINION
Petitioner seeks a Writ of Mandate directing the Chief of the Department of Parole and
Probation to allow him to file, and requiring the State Board of Parole Commissioners to
consider, his application for parole which they otherwise have refused to do relying upon ch.
98, [1969] Stats. of Nev. 125. We direct that the writ shall issue.
Petitioner was charged with kidnapping which occurred on May 25, 1967. On August 4,
1967, he entered a plea of guilty to the charge in the Second Judicial District Court and was
sentenced to an indefinite term of imprisonment of 10-15 years in the Nevada State Prison.
On July 1, 1967, the entire scheme of handling criminal penalties in the State of Nevada
was changed by the legislature from indefinite to definite sentencing. A concomitant change
was made in the statute dealing with eligibility for parole to make it compatible with the new
penalty scheme.
Prior to July 1, 1967, NRS 213.120, relating to parole eligibility under the indefinite
penalty scheme, read in pertinent part: No prisoner may be paroled until he has served the
minimum term of imprisonment provided by law for the offense of which he was convicted,
except that any prisoner whose minimum term of imprisonment is more than 1 year, other
than a prisoner who has been sentenced for rape to a term of not less than 5 years which may
extend to life, may be paroled at any time after the expiration of one-third of such minimum
term, less good time credits, if he has served not less than 1 calendar year, less good time
credits. See ch. 211, 237, [1967] Stats. of Nev. 527.
As amended effective July 1, 1967, to conform to the definite penalty plan, NRS 213.120
reads: Except as otherwise limited by statute for certain specified offenses, a prisoner
may be paroled when he has served:
limited by statute for certain specified offenses, a prisoner may be paroled when he has
served:
1. One-fourth of the definite period of time for which he has been sentenced pursuant to
NRS 176.033, less good time credits; or
2. One year, whichever is longer.
The change over from indefinite to definite sentencing on July 1, 1967, produced a certain
amount of confusion in the trial courts. However, in Tellis v. State, 84 Nev. 587, 592, 445
P.2d 938 (1968), this court held that NRS 193.130 constituted a legislatively enacted savings
clause by providing that a determinate sentence was to be imposed unless the statute in force
at the time of commission of such felony prescribed a different penalty. This is exactly what
occurred in petitioner's case. He committed the crime on May 25, 1967, and he was sentenced
on August 4, 1967, to an indefinite term of imprisonment of not less than 10 nor more than 15
years in accord with the statutory provision in effect when the crime was committed.
Still further confusion arose as to what law would be applied in determining eligibility for
parole. It is difficult to understand why the confusion arose, because the parole eligibility
statute relating to the definite sentencing scheme clearly was in no manner compatible with
an indefinite sentence. The logical action would have been to apply the eligibility for parole
statute as it existed under the indefinite sentencing scheme, and no difficulty would have
resulted.
For a reason not entirely clear to us, however, the 1969 legislature, in attempting to deal
with a problem which did not exist, enacted ch. 98, [1969] Stats. of Nev. 125, which
provides: A prisoner who is sentenced on or after July 1, 1967, to an indeterminate period of
imprisonment in the state prison, upon conviction of a crime committed prior to July 1, 1967,
and whose sentence does not preclude parole, may be paroled when he has served:
(a) The minimum period for which he was sentenced, less good time credits; or
(b) One year, whichever is longer.
Respondents refused to allow petitioner to apply for parole in accordance with the
eligibility for parole statute in effect prior to July 1, 1967, but instead undertook to apply ch.
98 to his case. It is that action of which he complains in this application and claims, whether
he is granted parole or not, he is legally entitled to make application under the statute in effect
prior to July 1, 1967.
prior to July 1, 1967. The difference in time within which petitioner is entitled to apply for
parole under the two different statutes is substantial. Under NRS 213.120, prior to the
amendment effective July 1, 1967, he could apply in approximately 30 months. Under ch. 98,
he is required to serve the minimum of 10 years, less good time credit.
Petitioner therefore contends ch. 98 is an ex post facto law, in that it increases his
punishment and is in violation of the state and federal constitutions. Respondents, on the
other hand, in defending ch. 98, contend that parole itself it not a constitutional right but an
act of legislative clemency or grace, and, regardless of the effect of ch. 98 on petitioner, none
of his constitutional rights have been violated.
[Headnote 1]
While it is regrettable that we must pass upon the constitutionality of the statute at all,
there appears no other course of action for us in resolving these conflicting positions. We
declare ch. 98, [1969] Stats. of Nev. 125 unconstitutional as ex post facto.
[Headnote 2]
1. Ex post facto laws have been defined by the United States Supreme Court as those laws
which inflict greater punishment than that affixed when the offense was committed. Calder v.
Bull, 3 U.S. (3 Dall.) 386 (1798). That court in In re Medley, 134 U.S. 160, 171 (1889), held:
any law which was passed after the commission of the offence for which the party is being
tried is an ex post facto law, when it inflicts a greater punishment than the law annexed to the
crime at the time it was committed, . . . or which alters the situation of the accused to his
disadvantage. . . .
[Headnote 3]
It is clear, therefore, that a legislative act increasing the sentence to be given an offender
for a crime committed before the law was passed would be ex post facto and constitutionally
prohibited.
A more difficult problem arises when a legislative act does not increase the sentence, but,
in some other manner, alters the punishment to the detriment of the individual after the crime
has been committed, or, as in this case, after sentence has been imposed. The case before us
involves that issue, because petitioner asserts that his punishment was increased by the
enactment of ch. 98 and its application to him by respondents.
When the increase in punishment results from a change in the law affecting parole after the
prisoner committed a crime and has been sentenced, there are two lines of authority dealing
with the constitutional ex post facto issue thus raised.
2. One group of courts holds that because parole is a matter of legislative grace, statutes
enacted after a sentence has been imposed which changes or modifies eligibility for parole in
a manner detrimental to a prisoner are not ex post facto laws, and not unconstitutional. See
Zink v. Lear, 101 A.2d 72 (N.J.App.Div. 1953); State ex rel. Koalska v. Swenson, 66 N.W.2d
337 (Minn. 1954), cert. denied, 348 U.S. 908 (1955).
There are, however, a growing list of well reasoned authorities holding the other way.
The Supreme Court of California, in In re Griffin, 408 P.2d 959, 961 (Cal. 1965), said, in
construing a new law changing eligibility for parole after Griffin was sentenced and released
on parole: Whatever the technical nature of a parole may be, from a realistic point of view it
is our opinion that such a statute increases the punishment rather than decreases it. . . . It is
elementary, of course, that a statute amended after an act is committed so as to increase the
punishment cannot be made applicable to an accused, because to do so would run afoul of the
prohibition against ex post facto laws. (Emphasis added.) Accord Greenfield v. Scafiti, 277
F.Supp. 644 (D. Mass. 1967), Aff'd, 390 U.S. 713 (1968). See also In re Beaton, 241 N.E.2d
845 (Mass. 1968); Still v. Nichols, 412 F.2d 778 (1st Cir. 1969).
[Headnote 4]
3. This court has pointedly held in Pinana v. State, 76 Nev. 274, 283, 352 P.2d 824 (1960),
that: 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 5]
Nevertheless, if the legislature undertakes to enact laws granting parole
1
when it need not
constitutionally have done so, we think those rights granted as acts of clemency or grace must
be administered in accordance with concepts of due process and may not arbitrarily increase
the punishment previously imposed in the unequal and illogical manner done here.
____________________

1
See generally NRS 213.107-213.210.
See Griffin v. Illinois, 351 U.S. 12, 18 (1956), where, in dealing with a similar type of
problem relating to appellate review, the Supreme Court said: It is true that a State is not
required by the Federal Constitution to provide appellate courts or a right to appellate review
at all. [Citations omitted.] But that is not to say that a State that grants appellate review can
do so in a way that discriminates against some convicted defendants on account of their
poverty.
4. Respondents urge that Eisentrager v. State Board of Parole, 85 Nev. 672, 462 P.2d 40
(1969), is decisive of the issue in this case in their favor. We do not agree. We held in that
case the legislature was merely exercising its constitutional powers to determine the terms
and conditions of parole when it enacted NRS 213.110 which precluded parole being granted
to a prisoner who had been previously convicted of more than three felonies. There was no
issue raised or decided in that case dealing with the ex post facto question.
5. We subscribe to the rule announced in In re Griffin, supra, and hold that ch. 98, [1969]
Stats. of Nev. 125, is unconstitutional in that it is an ex post facto law and in violation of Art.
1, 15, of the Nevada Constitution and Art. 1, 9 and 10, of the U.S. Constitution.
The application is granted and a Writ of Mandate shall issue commanding respondents to
permit petitioner to file and directing respondents to consider his request for parole.
____________
86 Nev. 257, 257 (1970) State ex rel. Department of Highways v. Linnecke
THE STATE OF NEVADA, on Relation of Its Department of Highways, Appellant, v.
HARRY F. LINNECKE and LILLIAN B. LINNECKE, His Wife, Respondents.
No. 5978
April 16, 1970 468 P.2d 8
Condemnation of land abutting highway with access and egress to be provided by frontage
road. Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
The Supreme Court, Zenoff, J., held that, where taking resulted in substantial impairment
of access, abutting property owners were entitled to compensation for severance damages.
Affirmed.
Harvey Dickerson, Attorney General, Kermitt L. Waters and Raymond Free, Deputy
Attorneys General, for Appellant.
Frank R. Peterson, of Reno, for Respondents.
1. Eminent Domain; Highways.
Owner of property abutting public highway has special right of easement in highway for access purposes,
which is property right that cannot be damaged or taken from owner without due compensation, in addition
to damages for any land taken.
2. Highways.
Though entire access to property abutting highway cannot be cut off without compensation, abutting
property owner is not entitled to access to his land at all points in boundary between it and highway and has
no cause for complaint if means of egress and ingress are not substantially interfered with.
3. Eminent Domain.
Though extent of impairment of access to land abutting highway is question of fact, determination of
whether there is such substantial impairment as to entitle abutting property owner to compensation is
question of law.
4. Highways.
Where freeway is constructed where no road previously existed, construction of the freeway gives
abutting property owner no right of access.
5. Highways.
Right of access to property abutting highway is subject to exercise of public's primary right of travel on
the road, effectuated by reasonable traffic regulations under the police power.
6. Eminent Domain.
Determination of market value of land remaining after taking includes consideration of any elements that
fairly enter into question of value which reasonable businessman would consider when purchasing, such as
obliteration of direct access and mitigation by construction of frontage road. NRS 37.110.
7. Eminent Domain.
Abutting property owner has right of action when highway suffers substantial change in relation to the
property. NRS 37.110.
8. Eminent Domain.
Abutting property owners were entitled to compensation for severance damages, where part of their lands
was taken to convert conventional highway into controlled-access highway, so that access to highway from
remaining property was controlled by frontage road, resulting in substantial impairment of access.
OPINION
This is an action in eminent domain. The state was taking .726 of an acre of property
abutting Highway 40 owned by Harry and Lillian Linnecke, husband and wife.
Harry and Lillian Linnecke, husband and wife. Highway 40 was to be made into a
controlled-access highway which would become Interstate 80, part of the federal highway
system.
Before the taking, the Linneckes had direct access from their land onto Highway 40, but
after the taking their access from the land was by a frontage road which required them to
travel one and one half miles farther in order to reach their land from the highway or to get to
the highway from their land. Respondents successfully contended in the trial court that the
enforced circuity of travel to and from the property may be taken into account in fixing
severance damages.
The trial court ruled, first, as a matter of law that direct access to the land was substantially
impaired entitling the owners to compensation and, secondly, that the jury should assess
damages in relation to special benefits that might accrue. The state appeals from the jury
award of $25,000 representing $2,000 for the value of the property taken and $23,000 in
severance damages to the remainder of the parcel.
The basic problem on appeal is: Does an abutting property owner's right of access to a
public highway entitle him to compensation for severance damages where part of his land is
taken in order to convert a conventional highway into a controlled-access highway so that
access to and from his remaining property is controlled by a frontage road?
The state courts are divided in their resolution of this problem. Cf. People v. Ricciardi, 144
P.2d 799 (Cal. 1943); State v. Danfelser, 384 P.2d 241 (N.M. 1963); Selig v. State, 176
N.E.2d 59, 61 (N.Y. 1961); Northern Lights Shopping Center, Inc. v. State, 247 N.Y.S.2d 333
(N.Y.App. 1964), affirmed 204 N.E.2d 333 (N.Y. 1965); Bopp v. State, 227 N.E.2d 37 (N.Y.
1967). But see Priestly v. State, 242 N.E.2d 827 (N.Y. 1968), where the court held that the
circuity of travel may be unsuitable access for the highest and best use of the remaining
property. Since Priestly v. State, supra, the following cases support the awarding of
compensation in circuity of travel-access cases: Argersinger v. State, 299 N.Y.S.2d 882
(N.Y.App. 1969); Columbus Holding Corp. v. State, 302 N.Y.S.2d 407 (Ct.Cl.N.Y. 1969);
Taylor v. State, 302 N.Y.S.2d 174 (N.Y.App. 1969); In re New Police Station House Pct. No.
68, 304 N.Y.S.2d 74 (N.Y.App. 1969).
Generally, the emerging weight of authority holds that [w]hen the controlled-access
highway is constructed upon the right of way of the conventional highway and the owner's
ingress and egress to abutting property has been destroyed or substantially impaired he
may recover damages therefor.
right of way of the conventional highway and the owner's ingress and egress to abutting
property has been destroyed or substantially impaired he may recover damages therefor. The
damages may be merely nominal or they may be severe. Other means of access such as
frontage roads as in the instant case may be taken into consideration in determining the
amount which would be just under the circumstances. State v. Thelberg, 350 P.2d 988, 992
(Ariz. 1960).
[Headnotes 1-3]
An abutting owner of a public highway has a special right of easement in a public road for
access purposes. This is a property right of easement which cannot be damaged or taken from
the owner without due compensation. People v. Murray, 342 P.2d 485, 488 (Cal.App. 1959).
But an owner is not entitled to access to his land at all points in the boundary to it and the
highway, although entire access to his property cannot be cut off. If he has free and
convenient access to his property and his means of egress and ingress are not substantially
interfered with, he has no cause for complaint. Breidert v. So. Pac. Co., 394 P.2d 719, 722
(Cal. 1964); City of Phoenix v. Wade, 428 P.2d 450, 454 (Ariz.App. 1967). The
determination of whether such substantial impairment has been established must be reached
as a matter of law. The extent of such impairment must be fixed as a matter of fact. Breidert
v. So. Pac. Co., supra; People v. Ricciardi, supra; City of Phoenix v. Wade, supra; State
Highway Comm'n v. Manry, 390 P.2d 97 (Mont. 1963); Thomsen v. State, 170 N.W.2d 575,
580 (Minn. 1969); McMoran v. State, 345 P.2d 598 (Wash. 1959); State v. Wilson, 438 P.2d
760 (Ariz. 1968); Balog v. State, 131 N.W.2d 402 (Neb. 1964).
2. A frontage road or service road is a highway facility adjacent to and part of a access-free
road designed to provide access to the abutting land which, because of the control of access
on the express road, is without means of ingress or egress from that road.
[Headnote 4]
This present problem is one where the new interstate road is built on the location of a
pre-existing conventional road. When the interstate road is built on a new location or
alignment, i.e., where no road previously existed, the construction of the freeway gives the
abutting property owner no right of access. The owner still has access to the old road, his only
loss is access to a major thoroughfare that has been relocated.
to a major thoroughfare that has been relocated. 56 Nw.U.L. Rev. 587 (1961).
1

[Headnote 5]
If the abutter has suffered any compensable damage, it is because his right of access has
been restricted, impaired or otherwise injured. He is, of course, also entitled to damages for
any land taken. A right of access is the right of an owner of property abutting on a street or
highway to ingress or egress to and from his premises by way of such street or highway. Still,
the right of access is subject to the exercise of the public's primary right of travel on the road.
These primary rights under the police power fall into the category of reasonable traffic
regulations to which the right of access is subject. State v. Danfelser, supra.
The cases which grant compensation treat the frontage road as a factor mitigating
damages. A substantial impairment with the direct access must be first shown. Once that
finding is made, the measure of the harm is the decline in market value on a before-and-after
valuation. The variables to be considered in arriving at a money figure are for the jury.
Nevada provides for severance damages in condemnation cases by NRS 37.110: The
court, jury, commissioners or masters must hear such legal testimony as may be offered by
any of the parties to the proceedings, and thereupon must ascertain and assess:
. . .
2. If the property sought to be condemned constitutes only a part of a large parcel, the
damages which will accrue to the portion not sought to be condemned, by reason of its
severance from the portion sought to be condemned, and the construction of the improvement
in the manner proposed by the plaintiff.
. . .
4. Separately, how much the portion not sought to be condemned, and each estate or
interest therein, will be benefited, if at all, by the construction of the improvement proposed
by the plaintiff; . . . .
[Headnote 6]
The determination of market value includes the consideration of any elements that fairly
enter into the question of value which a reasonable businessman would consider when
purchasing.
____________________

1
This excellent law review article is quoted extensively, although its conclusion is not in line with judicial
decisions and is seldom followed. At page 600, we note the policy of the Nevada Highway Department has been
to compensate abutting land owners.
of any elements that fairly enter into the question of value which a reasonable businessman
would consider when purchasing. Clark County School District v. Mueller, 76 Nev. 11, 348
P.2d 164 (1960); State v. Shaddock, 75 Nev. 392, 344 P.2d 191 (1959). Ordinarily, the
complete obliteration of direct access to property abutting a highway diminishes its market
value. Mitigation by construction of a frontage road lessens the loss.
[Headnotes 7, 8]
We adopt the rule that there is right of action when the highway suffers a substantial
change in relation to the property. In this case, the trial court decided that there was
substantial impairment due to the taking away of the direct access to the Linnecke's property.
The jury set the amount of the damage. We agree with the method and the result as being in
accordance with the weight of authority.
Affirmed.
____________
86 Nev. 262, 262 (1970) McGuire v. State
HARRY EUGENE McGUIRE, Appellant, v. THE STATE
No. 5995
April 16, 1970 468 P.2d 12
Appeal from order denying motion for a new trial and from judgment of Second Judicial
District Court, Washoe County; Emile J. Gezelin, Judge.
Defendant was convicted in the district court of burglary, and he appealed. The Supreme
Court, Mowbray, J., held that where there was no search or frisking of defendant's person,
where sack and its contents of restaurant food and utensils were found in field near where
defendant was hiding following his flight from investigating officer, and his gloves and
glasses had fallen from his jacket, such evidence was not illegally obtained and was not
inadmissible on ground that officer did not have sufficient cause to stop and search defendant,
and that record contained sufficient facts from which reasonable inferences could be drawn to
prove each and every material element of offense charged.
Affirmed.
1. Criminal Law.
Where there was no search or frisking of burglary suspect's person, where sack and its contents of
restaurant food and utensils were found in field near where suspect was hiding following his flight from
investigating officer, and his gloves and glasses had fallen from his jacket, such evidence was not illegally
obtained and was not inadmissible on ground that officer did not have sufficient cause to stop and search
suspect.
2. Criminal Law.
Where statute requiring magistrate to advise defendant of his right to make statement had been repealed
before defendant's arrest and hearing throughout which defendant had counsel, failure of presiding
magistrate at preliminary hearing to advise defendant of his right was not error. NRS 171.410.
3. Criminal Law.
Giving of instructions, in burglary prosecution of defendant who fled from investigating officer,
permitting presumption of criminal intention if jury found from evidence that an illegal entry had been
made and providing that flight, if proved, could be considered by jury with all other facts in deciding
question of guilt was not error. NRS 205.060.
4. Criminal Law.
Instructions regarding other offenses are proper only when there is evidence of such offenses.
5. Criminal Law.
Failure to give instruction concerning lesser included offenses of receiving stolen property and larceny
was not error in defendant's burglary prosecution where record was devoid of any evidence that would
support any theory upon which jury could have found defendant guilty of either receiving stolen property
or larceny.
6. Criminal Law.
Defendant's testimony in his burglary prosecution regarding convictions of eight prior felonies did not
constitute error denying his constitutional right to fair trial.
7. Criminal Law.
It is the function of the jury and not reviewing court to weigh the evidence.
OPINION
A jury found Harry Eugene McGuire guilty of burglary. He seeks reversal of the judgment
of conviction upon the grounds set forth infra. We affirm the guilty verdict.
1. The Facts.
On January 2, 1969, at about 11 p.m., Police Officer Don Kelly observed McGuire
walking on B Street near the Dollar Diner in Sparks, Nevada. McGuire had a sack thrown
over his shoulder. His suspicious demeanor prompted the officer to stop him and question
him. When Kelly started toward McGuire for that purpose, McGuire took off and ran and
hid in a nearby large vacant field. Kelly reported by radio to his headquarters and requested
assistance. Sergeant Lowe arrived on the scene. Both officers searched the field. Lowe found
McGuire crouched down behind a clump of weeds. Kelly found his sack about 75 feet from
where McGuire was hiding. The sack contained items of restaurant food and utensils. The
two officers then checked the nearby Dollar Diner restaurant. They found the rear door open
and glass strewn on the ground under a broken window. They then checked a nearby house
trailer. They were informed by the occupant that a tall man with a sack thrown over his
shoulder had exited the restaurant about 20 minutes earlier via the rear door. McGuire was
charged with burglary, was bound over to district court after a preliminary hearing to answer
the charge, and was convicted by a jury.
2. Admissibility of the Evidence.
[Headnote 1]
The sack and contents were received in evidence. The judge also admitted a pair of gloves
and sun glasses which had fallen from McGuire's jacket when he picked himself up out of the
weeds. McGuire contends that the evidence was illegally obtained and not admissible, on the
ground that the officer did not have sufficient cause to stop and search McGuire. The
argument misses the point. There was no search or frisking of McGuire's person. The sack
and contents were found in the field near where McGuire was hiding. The gloves and glasses
fell from his jacket. Nevertheless, the officer had every right to stop McGuire and investigate
his behavior. As the court said in People v. Ellsworth, 12 Cal.Rptr. 433, 435 (Cal.App. 1961):
The courts of this state consistently have adhered to the proposition that a police officer
may question a person outdoors at night when the circumstances are such as would indicate to
a reasonable man in like position that such a course is necessary to the discharge of his duties.
. . . See also People v. Mickelson, 380 P.2d 658 (Cal. 1963); People v. Nichols, 16 Cal.Rptr.
328 (Cal.App. 1961); Gisske v. Sanders, 98 P. 43 (Cal.App. 1908).
The Supreme Court of the United States ruled in Terry v. Ohio, 392 U.S. 1, 30 {196S),
that where a police officer observes unusual conduct that leads him reasonably to
conclude in light of his experience that criminal activity may be afoot, the officer may stop
the suspect and, after identifying himself as a police officer, may make reasonable
inquiries of him and conduct a carefully limited search of his person.
Ohio, 392 U.S. 1, 30 (1968), that where a police officer observes unusual conduct that leads
him reasonably to conclude in light of his experience that criminal activity may be afoot, the
officer may stop the suspect and, after identifying himself as a police officer, may make
reasonable inquiries of him and conduct a carefully limited search of his person. The sack,
contents, gloves, and glasses were properly received in evidence in the instant case.
3. The Preliminary Hearing.
[Headnote 2]
McGuire complains that the presiding magistrate failed at the preliminary hearing to
advise him of his right to testify. In his argument, counsel refers to the admonition formerly
given by the magistrate under the mandate of NRS 171.410.
1
This statute was repealed
effective January 1, 1968, long before McGuire's arrest and hearing. McGuire had counsel
throughout the hearing. The magistrate had no duty to advise McGuire of his right to testify,
as his present counsel suggests. His rights were in no way violated. Cf. Payne v. Warden, 85
Nev. 648, 461 P.2d 406 (1969).
4. The Instructions.
[Headnote 3]
A. Instructions Given. The court gave the jury, among its instructions, Instructions Nos. 14
and 15,
2
each of which appellant asserts constitutes error.
____________________

1
NRS 171.410:
When the examination of the witnesses on the part of the people is closed, the magistrate must distinctly
inform the defendant:
1. That it is his right to make a statement in relation to the charge against him (stating to him the nature
thereof).
2. That the statement is designed to enable him, if he sees fit, to answer the charge, and to explain the facts
alleged against him.
3. That he is at liberty to waive making a statement.
4. That his waiver cannot be used against him on the trial.
[Repealed effective January 1, 1968.]

2
Instruction No. 14:
Every person who shall unlawfully enter any building shall be deemed to have entered the same with intent
to commit a crime therein, unless such unlawful entry shall be explained by testimony satisfactory to the jury to
have been made without criminal intent.
Instruction No. 15:
The flight 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 you in the light of all other proved facts in deciding the question of his guilt or innocence. Whether or not
evidence of flight shows a consciousness of guilt and the significance to be attached to such a circumstance are
matters for your determination. (Emphasis added.)
appellant asserts constitutes error. Instruction 14 permitted a presumption of criminal
intention if the jury found from the evidence that an illegal entry had been made. Such a
presumption is permissible. See McNeeley v. State, 81 Nev. 663, 409 P.2d 135 (1965).
Instruction 15 provides that the flight, if proved, may be considered by the jury with all other
facts in deciding the question of guilt. Where there is evidence, as there is in this case, of
flight as a deliberate attempt to avoid apprehension, a flight instruction is proper. See People
v. Ross, 44 Cal.Rptr. 722 (Cal.App. 1965), Gallegos v. People, 444 P.2d 267 (Colo. 1968),
People v. Lobb, 161 N.E.2d 325 (Ill. 1959), State v. Van Auken, 460 P.2d 277 (Wash. 1969).
Cf. State v. Rothrock, 45 Nev. 214, 200 P. 525 (1921).
[Headnotes 4, 5]
B. Instructions Not Given. McGuire complains that the court, sua sponte, should have
given an instruction covering lesser included offenses, i.e., (1) receiving stolen property and
(2) larceny. Instructions regarding other offenses are proper only when there is evidence of
such an offense. In this case there was none. We said in Lisby v. State, 82 Nev. 183, 414 P.2d
592 (1966), at 188: [I]f the prosecution has met its burden of proof on the greater offense
and there is no evidence at the trial tending to reduce the greater offense, an instruction on a
lesser included offense may properly be refused. (Emphasis in original.) The record is void
of any evidence that would support any theory upon which the jury could have found
McGuire guilty of either receiving stolen property or larceny. Indeed, McGuire's testimony
was that he found the sack and contents on a bench.
5. Prior Felonies.
[Headnote 6]
McGuire had been convicted of eight prior felonies. He testified upon questions put to him
by his attorney regarding each and all of them.
3
McGuire's contention on appeal is that his
own testimony constituted error denying him his constitutional right to a fair trial, which
contention we reject as wholly meritless. Cf. Cross v. State, 85 Nev. 580, 460 P.2d 151
(1969).
6. Sufficiency of the Evidence.
[Headnote 7]
Finally, McGuire asserts that there is insufficient evidence in the record to support the
guilty verdict.
____________________

3
McGuire's explanation for fleeing from the officer was that he had a record and was fearful of being held as
a vagrant.
the record to support the guilty verdict. NRS 205.060 defines burglary thus: Every person
who enters any . . . building . . . , with intent to commit grand or petit larceny, or any felony,
is guilty of burglary. We shall not restate the evidence of the record in this opinion. It would
serve no purpose to do so. Suffice it to say that the record contains sufficient facts from which
reasonable inferences could be drawn to prove each and every material element of the offense
charged. It is the function of the jury and not the reviewing court to weigh the evidence. See
Cross v. State, supra; Crowe v. State, 84 Nev. 358, 441 P.2d 90 (1968).
Affirmed.
____________
86 Nev. 267, 267 (1970) Froggatt v. State
EDWIN ROBERT FROGGATT, Appellant, v. THE
No. 6003
April 16, 1970 467 P.2d 1011
Appeal from judgment of the Second Judicial District Court, Washoe County; Thomas 0.
Craven, Judge.
Defendant was convicted in the district court of unlawful sale of a narcotic drug, and he
appealed. The Supreme Court, Mowbray, J., held that where it was possible for jury to have
found that criminal intent originated with State, since some of the evidence, if believed,
showed not only that state agent purchased marijuana, but that, in addition, another state
agent placed marijuana in defendant's automobile, such evidence tended to support defense of
entrapment and defendant was entitled to instruction upon such defense.
William M. O'Mara, of Reno, for Appellant.
Criminal Law.
Where it was possible for jury to have found from evidence that criminal intent originated with State,
since some of the evidence, if believed, showed not only that state agent purchased marijuana, but
that, in addition, another state agent placed marijuana in defendant's automobile,
defendant was entitled to instruction upon defense of entrapment.
marijuana, but that, in addition, another state agent placed marijuana in defendant's automobile, defendant
was entitled to instruction upon defense of entrapment. NRS 453.030.
OPINION
The narrow issue presented for our determination on this appeal is whether the jury that
found the appellant-defendant, Edwin Robert Froggatt, guilty of a violation of NRS 453.030
1
(Unlawful Sale of a Narcotic Drug), should have been instructed on the law of entrapment.
Under the facts of this record, we have concluded that an instruction on entrapment should
have been given; therefore, we reverse the case and remand it to the district court for a new
trial.
1. Factual Background.
In January 1969 appellant-defendant Froggatt commenced work as a trainee craps dealer at
the Nevada Lodge Gaming Casino in Crystal Bay, Nevada. He testified that during the latter
part of January he met two gentlemen, Frank Clay and C. T.,
2
who were undercover agents
for the police.
3
On several occasions in early February 1969, Clay discussed with Froggatt
the use and sale of marijuana. A few days later, C. T. also discussed its use with Froggatt.
Nothing else occurred until February 16, when C. T., according to Froggatt's testimony,
placed four lids of marijuana in the spare-tire compartment of Froggatt's car, which was
parked in the Nevada Lodge parking lot. C. T. then told Froggatt that he had supplied him
with some marijuana and described its location in Froggatt's car. The next day, February 17,
Clay introduced one Ron Garner to Froggatt. Garner, who was a Deputy Sheriff of Washoe
County, sought to buy the marijuana from Froggatt, but was unable to do so. The following
evening, February 18, at about 5:15 p.m., as Froggatt was leaving the parking lot in a
borrowed pickup truck, Garner, riding in another car, stopped Froggatt in the pickup in front
of Froggatt's own car, which still had the marijuana in the spare-tire compartment.
____________________

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

2
C. T.'s full name appears nowhere in the record, and he did not testify during the trial.

3
The record is not clear as to when C. T. officially commenced his work as an undercover agent.
Froggatt in the pickup in front of Froggatt's own car, which still had the marijuana in the
spare-tire compartment. Deputy Garner again sought to purchase the marijuana from
Froggatt, and this time he succeeded. During the Garner-Froggatt sale, Clay and C. T.
remained seated in Garner's car. Immediately thereafter, Froggatt was arrested and charged
with violating NRS 453.030, supra. He was convicted of the charge after a jury trial.
2. The Entrapment.
Froggatt requested the district judge to instruct the jury on the law of entrapment. The
State objected, on the ground that there was insufficient evidence, express or implied, upon
which the jury could have drawn any inference that Froggatt was entrapped with respect to
the sale of the marijuana.
4
We do not agree. The State contends that C. T., who planted the
marijuana in the spare-tire compartment of Froggatt's car, was not a police informer when he
made the plant and that he did not become so engaged until the following day. There is a
conflict in that evidence, as shown by Garner's testimony, and the jury should have had a
opportunity to pass on the question.
5

We have reiterated the rule in Barger v. State, 81 Nev. 548, 550, 551, 552, 407 P.2d 584,
585, 586 (1965), that: "Citation of authority is no longer necessary for the proposition that
a defendant in a criminal case is entitled to have the court instruct the jury about his
theory of defense, if there is evidence to support it.
____________________

4
The State in its argument concedes that an entrapment instruction might have been proper if Froggatt had
been charged with possession of the marijuana.

5
Q [by William M. O'Mara, counsel for appellant-defendant Froggatt] Let me ask you this: At the time this
transaction took place and you were in your car, you mentioned that there was a Frank Clay in the car. Was there
any other person in the car?
A [by Deputy Sheriff Garner] There was.
Q What was his name?
A He was a confidential, reliable informant. I don't care to disclose his identity due to the fact that he is still
working at this time.
Q Isn't his nickname the same as C. T.?
A Yes.
Q So that both of these people were in the vehicle at that time, is that correct?
A That's right.
. . . .
Q But at the time that this transaction took place there were two informants, two people that had been
previously working with you in regards to narcotics enforcement or setups or however you wanted to use it, both
of which were in this vehicle at that time?
A Yes, sir.
Mr. Garner, however, in rebuttal testimony stated:
Q [by David L. Mousel, Deputy District Attorney for Washoe County] Do you know a gentleman by the
name of C. T.?
A I do.
Q How long have you known that gentleman?
Citation of authority is no longer necessary for the proposition that a defendant in a
criminal case is entitled to have the court instruct the jury about his theory of defense, if there
is evidence to support it. The state acknowledges the rule, but suggests that Barger's
testimony was a fantasy not worthy of belief and cannot qualify as some'
evidence,'substantial' evidence or, indeed, even as any' evidence; . . . We hold 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 that evidence may appear to be.
People v. Carmen, 228 P.2d 281 (Cal. 1951). The jury by its verdict will decide whether the
truth rests with the state or the defense.
We approve the ruling of the United States District Court of Appeals for the Fifth Circuit
in Hamilton v. United States, 221 F.2d 611, 614, 615 (1955):
The gist of the defense of entrapment is the conception of the crime by the government's
agent for the purpose of prosecuting the defendant, the latter not having any previous
intention to commit it. A money consideration or any other adequate motive incited by the
agent to induce the crime may constitute entrapment, provided the conception of the criminal
design originated with the government's agent, and was planted by him in the mind of the
accused, who otherwise would not have committed the offense; but, when it is suspected that
a crime is being committed, for instance, in the sale of narcotics, and the question is as to who
is the guilty party, traps may be laid by affording the suspect an opportunity to sell the same
in order to catch the guilty person. A suspected criminal may be offered an opportunity to
transgress in such manner as is usual therein, but extraordinary temptations or inducements
may not be employed by officers of the government. The charge requested by the appellant
fairly stated the law, and should have been given instead of the oral equivocal instruction that
left the jury without any definite applicable guide in considering the evidence on the subject
of entrapment. Sorrel[l]s v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 [1932];
Butts v. United States, 8 Cir., 273 F. 35, 38, 18 A.L.R. 143 [1921]; United States v. Wray,
D.C. [N.D., Ga.], S F.2d 429 [1925]; Swallum v. United States, S Cir., 39 F.2d 390 [1920];
Morei v. United States, 6 Cir., 127 F.2d S27 [1942]; Demos v. United States, 5 Cir., 205
F.2d 596 [1953]; United States v. Sawyer, 3 Cir.,
____________________
A I've known him for approximately a year.
Q And in what regard did you know of him?
A As a narcotics user.
Q Was he in fact employed by or used by yourself as an undercover agent?
A Not until after the first time he was employednot employed, but was used by myself as an informer for
any information that came on about the 17th of February. (Emphasis added.)
[1921]; United States v. Wray, D.C. [N.D., Ga.], 8 F.2d 429 [1925]; Swallum v. United
States, 8 Cir., 39 F.2d 390 [1920]; Morei v. United States, 6 Cir., 127 F.2d 827 [1942];
Demos v. United States, 5 Cir., 205 F.2d 596 [1953]; United States v. Sawyer, 3 Cir., 210
F.2d 169, 170 [1954].
. . . To decline to reverse the judgment appealed from would be tantamount to denying
the defendant a jury trial upon the issue of entrapment. Therefore, the judgment must be
reversed . . . .
In the case at hand it was possible for the jury to have found that the criminal intent
originated with the State, since some of the evidence, if believed, shows not only that a State
agent purchased the marijuana, but that, in addition, another State agent placed the marijuana
in the defendant's car. This evidence supports the defense of entrapment, and the defendant
was entitled to an instruction upon that defense.
We conclude that the jury should have had an opportunity to consider Froggatt's defense to
the charge, and for that reason we reverse the case and remand it to the district court for a
new trial.
____________
86 Nev. 271, 271 (1970) Gonzales v. Aetna Finance Co.
BILLY GONZALES and MARSHA GONZALES, Appellants, v. AETNA FINANCE CO.,
Respondent.
No. 6011
April 16, 1970 468 P.2d 15
Appeal from judgment declaring debt nondischargeable in bankruptcy. Eighth Judicial
District Court, Clark County; William P. Compton, Judge.
Lending institution brought suit against borrowers. The district court rendered judgment
for lending institution, declaring debt nondischargeable in bankruptcy, and borrowers
appealed. The Supreme Court, Zenoff, J., held that difference in debtors' financial statement
given to creditor and debts listed on subsequent bankruptcy schedule was inconsequential,
and requisite false representations to preclude discharge in bankruptcy were not present where
lender did not run credit check upon delinquent borrower before refinancing obligation and
that where there was no intent to deceive lender and where there was no reliance by lender
on financial statement, elements of fraud did not exist and evidence did not support
exception from discharge in bankruptcy.
reliance by lender on financial statement, elements of fraud did not exist and evidence did not
support exception from discharge in bankruptcy.
Reversed.
Roy A. Woofter, of Las Vegas, for Appellants.
Stanley W. Pierce, of Las Vegas, for Respondent.
1. Bankruptcy.
A creditor does not have to object to discharge in bankruptcy in order to safeguard his rights against
discharge of bankrupt, if creditor subsequently claims that debt was nondischargeable.
2. Bankruptcy.
If debt owed to finance company by makers who have obtained renewal and increase in amount of loan
covered by note is nondischargeable, whole amount is due where renewal and increase was obtained as
result of false financial statement, not just increase owed upon renewal.
3. Bankruptcy.
Once a person has a valid discharge in bankruptcy he has a prima facie defense against all debts and
burden of proof is then on creditor to show that debt is nondischargeable.
4. Bankruptcy.
Creditor has burden of proving by preponderance of evidence the elements of fraud necessary for debt to
come within statute exempting from discharge in bankruptcy liability for obtaining of money or property on
credit upon materially false statement reflecting financial condition made by debtor with intent to deceive.
Bankr.Act, 17, sub. a(2), 11 U.S.C.A. 35(a)(2).
5. Bankruptcy.
Elements of fraud required to be proven by creditor, under statute exempting from discharge in
bankruptcy liability for obtaining of money or property on credit in reliance upon false statement respecting
financial condition made by debtor with intent to deceive, are that there were materially false
representations in financial statement, that borrower made them with intent of deceiving lender and that
lender relied upon and was misled by false representations in granting credit to borrower. Bankr.Act, 17,
sub. a(2), 11 U.S.C.A. 35(a)(2).
6. Bankruptcy.
Difference of $100 to $300 in debtors' financial statement given to creditor and debts listed on
subsequent bankruptcy schedule was inconsequential, and requisite false representations to preclude
discharge of the debt in bankruptcy were not present where lender did not run credit check upon delinquent
borrower before refinancing obligation. Bankr.Act, 17, sub. a(2), 11 U.S.C.A. 35(a)(2).
7. Bankruptcy.
One of requirements for debt to be nondischargeable under exception for money or property obtained on
credit in reliance upon materially false statement respecting financial condition given by debtor with
intent to deceive is that there be an affirmative fraud, not one implied in law.
by debtor with intent to deceive is that there be an affirmative fraud, not one implied in law. Bankr.Act,
17, sub. a(2), 11 U.S.C.A. 35(a)(2).
8. Bankruptcy.
Evidence did not support findings that borrowers who did not state that they had failed to disclose all
their debts in financial statement given at time borrowers obtained renewal of loan and who did not know
what they were to do when they were told to come into office intended to deceive lender when they filled
out an incomplete financial statement. Bankr.Act, 17, sub. a(2), 11 U.S.C.A. 35(a)(2).
9. Bankruptcy.
Lender which received incomplete financial statement of delinquent borrowers at time of renewal of loan
but which did not make credit check did not rely upon financial statement as required for exception from
discharge of a debt. Bankr.Act, 17, sub. a(2), 11 U.S.C.A. 35(a)(2).
OPINION
Billy and Marsha Gonzales, husband and wife, were borrowers of Aetna Finance Co., a
lending institution. Their existing debt was seriously delinquent for the Gonzaleses were
summoned into the company's office to bring the account current or the matter would be
turned over to an attorney for legal action. They went to the Aetna office on October 4, 1967
and in the space of a few hours and in response to the lender's requests listed their debts on a
short-form financial statement provided by Aetna and signed a promissory note for the
$624.00 still due.
Both Mr. and Mrs. Gonzales testified that they filled out the financial information
concerning their debts to the best of their knowledge and so stated on the financial form. For
instance, the amount owed on their automobile they left with a question mark, but the total
amount they listed as owing was $2,419.18, plus the automobile. By executing the promissory
note their account was refinanced, which means that on the company books it merely
showed as being current, a loan, although they received no additional monies. Thereafter they
did pay $85.00 on account, but on February 15, 1968 they filed bankruptcy listing Aetna as
one of the unsecured creditors. On the bankruptcy schedules their debts totaled $3,993, a
substantial difference from the $2,419.18 they had given to Aetna a few months before. Aetna
did not object to the bankruptcy discharge but after it was granted Aetna sued the Gonzaleses
for their debt claiming that the extension of credit was made upon the false
representations contained in the financial statement upon which Aetna had relied and
that the Gonzaleses intended to defraud Aetna and that therefore the debt was not
discharged.
the Gonzaleses for their debt claiming that the extension of credit was made upon the false
representations contained in the financial statement upon which Aetna had relied and that the
Gonzaleses intended to defraud Aetna and that therefore the debt was not discharged. At the
time, Aetna's representative testified that he would not have given the new loan had he known
of all of the debts.
The trial court rendered judgment in favor of Aetna for $538.36 plus cost of suit and
attorney's fees for $250. On appeal the borrowers claim that the debt was discharged since
there was no intent on their part to defraud nor was there any reliance by the lender on the
financial statement.
[Headnotes 1, 2]
1. A creditor does not have to object to the discharge in bankruptcy if he subsequently
claims that the debt was nondischargeable. Household Finance Corp. v. Hamer, 238 A.2d 112
(Md.App. 1968); M. A. C. Loan Plan, Inc. v. Crane, 225 A.2d 33 (Conn.Cir. 1966); Time
Finance Co. v. Nelson, 227 S.W.2d 189 (Ky.App. 1950). If the debt was nondischargeable the
whole amount is due, not just the increase owed upon renewal. Federal Finance Co. v.
Merkel, 397 P.2d 436 (Wash. 1964); Seaboard Finance Co. v. Barnes, 148 N.W.2d 756
(Mich. 1967).
One of the purposes of the Bankruptcy Act is to relieve an honest debtor from the weight
of oppressive indebtedness, and to permit him to start afresh, free from the obligations and
responsibilities consequent upon business misfortunes, and to give him a clear field from
future effort, unhampered by the pressures and discouragement of pre-existing debt. Tower
Finance Corp. v. Winemiller, 192 N.E.2d 411 (Ill.App. 1963). Any exceptions under
17(a)(2) of the Bankruptcy Act, 11 U.S.C.A. 35(a)(2), are to be strictly construed. Gleason
v. Thaw, 236 U.S. 558 (1915); Swanson Petroleum Corp. v. Cumberland, 167 N.W.2d 391
(Neb. 1969); United States v. Syros, 254 F.Supp. 195 (E.D.Mo. 1966).
17(a)(2), 11 U.S.C.A. 35(a)(2), as amended in 1960 provides that:
(a) A discharge in bankruptcy shall release a bankrupt from all of his provable debts,
whether allowable in full or in part, except such as
. . . .
(2) are liabilities for obtaining money or property by false pretenses or false
representations, OR FOR OBTAINING MONEY OR PROPERTY ON CREDIT OR
OBTAINING AN EXTENSION OR RENEWAL OF CREDIT IN RELIANCE UPON A
MATERIALLY FALSE STATEMENT IN WRITING RESPECTING HIS FINANCIAL CONDITION
MADE OR PUBLISHED OR CAUSED TO BE MADE OR PUBLISHED IN ANY MANNER
WHATSOEVER WITH INTENT TO DECEIVE, . . ."
AN EXTENSION OR RENEWAL OF CREDIT IN RELIANCE UPON A MATERIALLY
FALSE STATEMENT IN WRITING RESPECTING HIS FINANCIAL CONDITION
MADE OR PUBLISHED OR CAUSED TO BE MADE OR PUBLISHED IN ANY
MANNER WHATSOEVER WITH INTENT TO DECEIVE, . . .
[Headnotes 3-5]
2. Once a person has a valid discharge in bankruptcy he has a prima facie defense against
all debts and the burden of proof is then on the creditor to show that the debt is
nondischargeable. Sweet v. Ritter Finance Co., 263 F.Supp. 540 (W.D.Va. 1967); United
States v. Syros, supra. Plaintiff has the burden of proving by a preponderance of evidence the
elements of fraud necessary to come within the exception of 17(a)(2), 11 U.S.C.A.
35(a)(2). Atlas Credit Corp. v. Miller, 216 So.2d 100 (La.App. 1968); Household Finance
Corp. v. Altenberg, 214 N.E.2d 667 (Ohio 1966); Sweet v. Ritter Finance Co., supra. The
elements required under 17(a)(2), 11 U.S.C.A. 35(a)(2), are: that there were materially
false representations in the financial statement, that the borrower made them with the intent
of deceiving the lender, and that the lender relied upon and was misled by the false
representation in granting credit to the borrower. 1 Collier on Bankruptcy 17.16(3); United
States v. Syros, supra; Sweet v. Ritter Finance Co., supra; Consolidated Plan of Conn., Inc. v.
Cross, 239 A.2d 51 (Conn. Cir. 1967); Atlas Credit Corp. v. Miller, supra.
A. FALSE REPRESENTATIONS.
A discrepancy does exist in the Gonzales' financial statement given to Aetna and the debts
listed on their bankruptcy schedule, but there is no evidence to show that Aetna ever checked
out what was owed for the automobile or made any other inquiry regarding the Gonzaleses.
Further, on the schedule they listed $750 for legal services which in fact was not owed,
Aetna's balance was listed, and there were one or two more disputable items which would
bring the bankruptcy total down to within $100 to $300 more than was recorded on the
[Headnote 6]
Under the pressurized circumstances, the differences become inconsequential. It appears
more that the refinancing by Aetna was a ruse to get a signed statement from the customer in
order to protect themselves against being listed in a possible future bankruptcy.
future bankruptcy. At least that is a well-known trick of the trade. See Sweet v. Ritter Finance
Co., supra, at 542, and Excel Finance Treme, Inc. v. Noel, 138 So.2d 654 (La.App. 1962). It
does not seem too great a burden to place upon the lender to require a credit check on a
borrower. It is hard to believe that they did not know the realities of their customer's status
when he was already delinquent. Cash Finance Service Inc. v. Haisch, 173 So.2d 851, 854
(La.App. 1965).
B. INTENT TO DECEIVE.
[Headnotes 7, 8]
One of the requirements is that there be an affirmative fraud, not one implied in law. 1
Collier on Bankruptcy, 17.16(3); Swanson Petroleum Corp. v. Cumberland, supra;
Beneficial Finance Co. v. Smith, 240 N.E.2d 106 (Ohio App. 1968); Sweet v. Ritter Finance
Co., supra. The borrowers in this case at no time stated that they had failed to disclose all
their debts. There is a dispute in the evidence as to whether or not Aetna's representative told
them to list only their contractual debts but he does not deny that the borrowers did not know
what they were to do when they were told to come to the office. Considering that the creditor
must show affirmative fraud we find no evidence to uphold the trial court's findings that Mr.
and Mrs. Gonzales intended to deceive the lender when they filled out an incomplete
C. RELIANCE BY THE LENDER ON THE FINANCIAL STATEMENT.
[Headnote 9]
The lender made no credit check of the financial statement. The prior loan history of these
people with Aetna, the refinance and financial statement, both completed in a short time,
discount Aetna's contention that it relied upon the financial statement. Cash Finance Service
Inc. v. Haisch, supra; Beneficial Finance Co. v. Crane, 239 A.2d 48 (Conn.Cir. 1967); Sweet
v. Ritter Finance Co., supra; Public Finance Corp. v. Xarhakos, 202 A.2d 255 (Conn.Cir.
1964); Consolidated Credit Corp. v. Matherne, 217 So.2d 426 (La.App. 1969); Rouge
Employees Credit Union v. Wilson, 151 N.W.2d 214 (Mich. App. 1967); Swanson Petroleum
Corp. v. Cumberland, supra. Naturally, we do not have the benefit of observing the parties as
they testify. Nor do we have a complete transcription of the testimony. We take this record as
we find it and the reflection is a pattern that is common in the lending business. The innocent
borrower is at a disadvantage. The loan company knows the significance of a complete
financial statement, but usually the borrower does not.
usually the borrower does not. While we do not condone escape from honest debt, we do
know that a wage earner's financial life does not always go smoothly and that many times the
unexpected upsets the expected and he finds himself hopelessly in debt. The purpose of the
Bankruptcy Act is to relieve such people.
The elements of fraud do not exist in this case. There is no evidence that takes Mr. and
Mrs. Gonzales out of the protection of their bankruptcy.
Counsel for appellants was unavoidably absent from the scheduled oral hearing. Counsel
for respondent appeared without knowing that the attorney for appellants would not appear.
This appeal was therefore submitted on briefs. He is entitled to reimbursement for his
round-trip air fare and auto rental to be paid by appellants' counsel. IT IS SO ORDERED.
Reversed. Judgment shall enter for appellants with costs subject to the foregoing travel
reimbursement already ordered.
____________
86 Nev. 277, 277 (1970) Sernaker v. Ehrlich
HOWARD RONALD SERNAKER, Appellant, v. SHIRLEY BESSES EHRLICH,
Respondent.
No. 6019
April 16, 1970 468 P.2d 5
Appeal from termination of father's parental rights. Second Judicial District Court,
Washoe County; Grant L. Bowen, Judge.
The district court granted relief, and father appealed. The Supreme Court, Zenoff, J., held
that evidence supported finding that father had abandoned child for period of six months.
Affirmed.
Wiener, Goldwater & Galatz, and Herbert L. Waldman, of Las Vegas, for Appellant.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, and Roger W. Jeppson, of Reno, for
Respondent.
1. Infants.
Primary consideration and dominant purpose determining whether to terminate parental rights is whether
termination is in best interest of child.
2. Infants.
Court will uphold termination of parental rights if there is substantial evidence in record to support
abandonment. NRS 128.010, subd. 2.
3. Infants.
Typical kinds of conduct which constitute abandonment are withholding of parental presence, love, care,
filial affection, and support and maintenance.
4. Infants.
To constitute abandonment of child, conduct must be intentional and must show settled purpose to
relinquish all parental rights in child.
5. Infants.
Nonsupport is not synonymous with abandonment of child but is factor in determining whether there has
been abandonment; lack of support plus other conduct such as failure to communicate by letter or
telephone, or absence of sending gifts, is sufficient to uphold conclusion that child has been abandoned.
NRS 128.010, subd. 2, 128.090.
6. Infants.
Where there is evidence to support findings of trial court, reviewing court will not substitute its judgment
on question whether there has been abandonment by parent.
7. Infants.
Finding that for six months preceding hearing divorced father had not, either by communication or
support, shown interest in child created presumption that father's settled intention was to abandon child.
NRS 128.010, subd. 2.
8. Infants.
Evidence in proceeding to terminate divorced father's parental rights supported finding that father had
abandoned child for period of six months. NRS 128.010, subd. 2.
OPINION
The question for decision in this case is whether a nonconsenting father to a termination of
parental rights proceeding abandoned his child for a period of six months within the meaning
of NRS 128.010(2).
1

Howard and Shirley were divorced in Pennsylvania in 1962. Shirley was granted custody
of their three-year-old son, Jeffrey, and Howard agreed in writing to pay the sum of $175 per
week for the support of his wife and child.
____________________

1
NRS 128.010(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.
for the support of his wife and child. Under the terms of the agreement the father had
visitation rights each weekend which he observed. Howard failed in business and by pleading
changed circumstances caused his support payments to be reduced to $100 a week in June of
1965 and to $75 per week in December 1965. In no event, however, did he totally keep up his
support payments.
Late in 1965 or sometime in 1966 (the record is not clear), Shirley and Howard each
remarried. In September of 1966 Shirley and her new husband moved to Reno with Jeffrey.
Howard visited his son once in February 1967, stayed for one day, and then returned to
Philadelphia. On this occasion he promised Jeffrey $3.00 a week allowance, a bicycle, a
guitar and music lessons. He did not keep any of the promises nor did he send any support
money except $25.00, which he paid in to the Pennsylvania court. Once he sent a watch to
Jeffrey, but it was Jeffrey's own watch that had been left behind almost two years before. He
telephoned Jeffrey on one occasion but so upset the boy by his line of conversation that the
boy refused to talk to him on another occasion when the father attempted to call. Howard sent
his son presents for the Christmas of 1966 but none otherwise.
Essentially it appears that at the time of the hearing Howard was delinquent to the extent
of about $11,000 and he justified his failure of support upon the excuses that he was trying to
settle the arrearages for the payment of one lump sum. In the meantime, he was living in an
apartment with his new wife and their three-year-old child, owned an automobile and was
earning approximately $800 per month.
The trial court ruled that the facts as recited, and more, sufficiently established Howard's
settled purpose to abandon Jeffrey as that term is understood in this type of proceeding and
terminated Howard's parental rights to Jeffrey.
[Headnotes 1, 2]
1. The primary consideration and dominant purpose is whether or not the termination of
parental rights is in the best interest of the child. Casper v. Huber, 85 Nev. 474, 456 P.2d 436
(1969); Carson v. Lowe, 76 Nev. 446, 357 P.2d 591 (1960); NRS 128.090.
2
The court will
uphold the termination of parental rights if there is substantial evidence in the record to
support abandonment under NRS 12S.010{2); Casper v. Huber, supra; Carson v.
____________________

2
NRS 128.090: Hearing; evidence and postponement. At the time stated in the notice, or at the earliest time
thereafter to which the hearing may be postponed, the court shall proceed to hear the petition and shall in all
cases require the petitioner to establish the facts and shall give full and careful consideration of all of the
evidence presented,
to support abandonment under NRS 128.010(2); Casper v. Huber, supra; Carson v. Lowe,
supra.
[Headnotes 3-5]
Abandonment is conduct. The typical kinds of conduct which constitute abandonment are
the withholding of parental presence, love, care, filial affection and support and maintenance.
The conduct must be intentional and must show a settled purpose to relinquish all parental
rights in the child. Nonsupport is not synonymous with abandonment but it is a factor in
determining whether a parent has abandoned his child. In re Adoption of Minor Child, 438
P.2d 398 (Haw. 1968). Lack of support plus other conduct such as a failure to communicate
by letter or telephone, or absence of sending of gifts is sufficient to uphold the trial court's
conclusion that the child had been abandoned. In re Adoption of Layton, 196 So.2d 784 (Fla.
App. 1967); Wilson v. Barnet, 144 N.W.2d 700 (Minn. 1966); Clark v. Jelinek, 414 P.2d 892
(Idaho 1966); In re Adoption of Jacono, 231 A.2d 295 (Pa. 1967); In re Wilcox' Adoption,
349 P.2d 862 (Ore. 1960); In re Adoption of Resnick, 127 N.Y.S.2d 918 (Misc. 1953); In re
Adoption of Neal, 71 Cal.Rptr. 300 (1968).
[Headnote 6]
Whether there has been an abandonment by a parent is determined by the facts in each
case. Beltran v. Heim, 236 A.2d 723 (Md.App. 1968); In re Adoption of Neal, supra. Where
there is evidence to support the findings of the trial court this court will not substitute its
judgment for that of the trial court which had all parents before it, observed their demeanor
and weighed their credibility. Carson v. Lowe, supra.
[Headnote 7]
When the trial court in this case found that for the six months preceding the hearing
Howard had not, either by communication or support, showed an interest in Jeffrey a
presumption was created that his settled purpose was to abandon the child. NRS 128.010(2).
The presumption is harsh but one which is the fault of the party against whom it applies. He
had the opportunity to overcome the presumption, but all that he could offer was the excuse
that he was trying to settle the support arrearages and that Shirley wouldn't let him
contact his son.
____________________
with due regard to the rights and claims of the parent or parents of such person and to any and all ties of blood or
affection, but with a dominant purpose of serving the best interests of such minor person. In the event of
postponement, all persons served, who are not present or represented in court at the time of such postponement,
shall be notified thereof by the clerk by registered mail.
support arrearages and that Shirley wouldn't let him contact his son.
Her expressed disgust at his unreliability and seeming unconcern to support her and the
child appears well-founded. The interim between phone calls was extraordinary for a father
who claims devotion for his child. The absence of any other filial attention glares from the
record for only at one Christmas, that in 1966, did he send gifts.
3
Otherwise, without
explanation he broke the promise to buy the child a bicycle, a guitar and music lessons. He
made remarks to the boy on the occasion of the one phone call that so bothered the boy that
he refused to talk to his father months later when he called again.
He complained that Shirley withheld visitation from him and threatened to do so in the
future, but never did he initiate any legal proceedings to impose his rights of visitation and
nowhere do we find any attempt to send the child or his mother money with any regularity.
The true love of a parent knows no depths to which the parent will go for the welfare and best
interests of his child and anything less than that can be justified only upon serious illness or
unusual circumstances and Howard has showed neither.
[Headnote 8]
Jeffrey now lives within the security of the affection and environment of a good home.
Time has passed and his real father is a dim memory. Keeping in mind that within parental
rights there are parental duties, few of which Howard performed, the interests of the child
are better served in his present surroundings. The findings of the trial court will not be
disturbed.
Affirmed.
____________________

3
The mother returned an uncashed $12.00 check which she received long after the promise to send $3.00 per
week had been broken.
____________
86 Nev. 282, 282 (1970) Great Western Land & Cattle v. District Court
GREAT WESTERN LAND & CATTLE CORPORATION, a Nevada Corporation,
Petitioner, v. SIXTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and
for the County of Pershing, Respondent.
No. 6029
April 16, 1970 467 P.2d 1019
Proceeding on petition for writ of prohibition prohibiting the Sixth Judicial District Court
from proceeding with trial of complaint and counterclaim pending in that court and to vacate
or modify order and judgment allowing costs and attorney fees against petitioner. The
Supreme Court, Collins, C. J., held that rule providing for dismissal of actions not brought to
trial within five years is mandatory and applies to counterclaims, whether compulsory or
permissive.
Application granted, permanent writ shall issue.
Robert R. Herz, of Reno, for Petitioner.
Stewart & Horton and Willard Van Hazel, Jr., of Reno, for Respondent.
1. Dismissal and Nonsuit.
Rule providing for dismissal of actions not brought to trial within five years is mandatory and applies to
counterclaims, whether compulsory or permissive. NRCP 41 (c, e).
2. Evidence.
Counterclaimant has burden equal to that of original plaintiff.
3. Set-off and Counterclaim.
Purpose of compulsory counterclaim rule is to make an actor of the defendant so that circuity of action
is discouraged and the speedy settlement of all controversies between the parties can be accomplished in
one action. NRCP 13(a).
Fact that plaintiff was responsible for most of the five-year delay in bringing action to trial, and that
defendant counterclaimant made the only serious effort to get case set down for trial and was frustrated by
actions of plaintiff, would not preclude dismissal of counterclaim for failure to bring it to trial within five
years. NRCP 41(c, e).
When case is not brought to trial within five years, the only exception to mandatory dismissal is a written
stipulation, and words and conduct, short of written stipulation, cannot constitute an
estoppel.
words and conduct, short of written stipulation, cannot constitute an estoppel. NRCP 41 (c, e).
OPINION
Petitioner seeks a Writ of Prohibition prohibiting respondent court from proceeding with
trial of its complaint and the counterclaim of Noel McElhaney in Civil Action No. 3189
pending in that court, for want of prosecution under NRCP 41(c) and (e), and to vacate or
modify its order and judgment allowing defendant McElhaney costs and attorney fees against
petitioner. We conclude the writ should issue.
Petitioner, as plaintiff, sued McElhaney on a civil cause of action in respondent court in
April, 1964. McElhaney answered and counterclaimed in May, 1964, but for one reason or
another the cause was not set down finally for trial until August 21, 1969.
1
On that date,
petitioner, as plaintiff, moved to mandatorily dismiss its own complaint
2
as well as
defendant's counterclaim for want of prosecution for over five years.
Respondent court denied the motion, granted a further continuance of the trial until this
writ could be sought and entered an order, now a judgment, granting defendant McElhaney
certain costs and an attorney's fee because of the continuance.
____________________

1
The chronology of the pertinent dates, material to this discussion, are as follows:
April 14, 1964Filing of plaintiffs complaint.
May 15, 1964Filing of defendant's answer and counterclaim.
May 27, 1965Defendant's application for trial setting.
July 11, 1967Filing of plaintiffs answer to defendant's counterclaim.
December 2, 1968Pre-trial conference.
December 9, 1968Trial setting, vacated because of plaintiff's illness.
March 17, 1969Trial setting, vacated because defendant was unable to be ready for trial on that date.
April 14, 1969Expiration of 5-year period for plaintiff.
May 15, 1969Expiration of 5-year period for defendant.
July 7, 1969Trial setting, vacated because plaintiff had no counsel, who withdrew June 30, 1969. Reset
for trial August 21, 1969.

2
There is no issue before us concerning the propriety of petitioner seeking to dismiss its own complaint
pursuant to NRCP 41, and we express no opinion on that matter.
[Headnote 1]
There is no evidence of nor issue concerning a stipulation in writing between the parties
extending the time of trial of defendant's counterclaim beyond 5 years. The principle issue for
our consideration is whether the provisions of NRCP 41(c) and (e) require the mandatory
dismissal of a counterclaim, whether compulsory or permissive, if not brought to trial within
5 years. We hold that they do and prohibit respondent court from proceeding with trial of
McElhaney's counterclaim. Petitioner's motion for dismissal of the counterclaim should have
been granted and the trial not continued. Thus, the court's award of costs and attorney's fee
was improper, and that judgment is likewise vacated.
1. NRCP 41(c) reads in pertinent part: The provisions of this rule apply to the dismissal
of any counterclaim, crossclaim, or third-party claim. Rule 41(e) makes no specific mention
of a counterclaim, nor of a plaintiff's right to move for dismissal of a counterclaim. It refers
only to what a defendant may do with regard to a plaintiff's complaint. Respondent argues as
a matter of statutory construction that Rule 41(c) does not apply to subdivision (e), but only to
subdivisions (a) and (b) of that rule. We disagree, and hold that subdivision (c), which has no
limiting language and we will presume none, applies to Rule 41 in its entirety.
[Headnote 2]
2. In City of Reno v. District Court, 84 Nev. 322, 440 P.2d 395 (1968), we held that a
compulsory counterclaim can remain for independent adjudication even though the original
claim was abandoned or dismissed. See also Harris v. Harris, 65 Nev. 342, 196 P.2d 402
(1948). A counterclaim is, in reality, an entirely separate and distinct cause of action, and a
counterclaimant has a burden equal to that of the original plaintiff. Tinnerman Prods., Inc. v.
George K. Garrett Co., 22 F.R.D. 56 (E.D. Pa. 1958). [T]he issues raised upon the
cross-complaint and answer are completely severable from the issues upon the original
complaint and answer. . . . Pacific Fin. Corp. v. Superior Court, 25 P.2d 983, 984 (Cal.
1933).
[Headnote 3]
3. In holding that Rule 41 applies to counterclaims, we see no valid reason for making a
distinction between compulsory or permissive counterclaims, Respondent urges that we do so
because as a compulsory counterclaimant he is forced to plead his claim or lose it.
we do so because as a compulsory counterclaimant he is forced to plead his claim or lose it.
We decline to give Rule 41 that construction. The purpose of NRCP 13(a) is to make an
actor of the defendant so that circuity of action is discouraged and the speedy settlement of
all controversies between the parties can be accomplished in one action. See 1A Barron &
Holtzoff, Federal Practice and Procedure 391 (Wright ed. 1960). We see no reason why an
original defendant can secure dismissal of plaintiff's complaint if not brought to trial within 5
years, and thereafter have an indefinite time beyond 5 years to bring his own compulsory
counterclaim on for trial. We would tend to encourage delay of litigation by such a
construction of Rule 41.
[Headnotes 4, 5]
4. Finally, respondent argues that because petitioner was responsible for most of the 5-year
delay and defendant McElhaney, who made the only serious effort to get the case set down
for trial, was frustrated by actions of petitioner and the respondent court, dismissal of his
counterclaim should be denied on equitable considerations. However, we have held in a long
line of cases that dismissal of a action is mandatory if 5 years have elapsed since it was filed.
See Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851 (1969); Faye v. Hotel Riviera, Inc., 81
Nev. 350, 403 P.2d 201 (1965); Smith v. Garside, 81 Nev. 312, 402 P.2d 246 (1965); Thran
v. District Court, 79 Nev. 176, 380 P.2d 297 (1963); Astorga v. Ishimatsu, 77 Nev. 30, 359
P.2d 83 (1961); Harris v. Harris, 65 Nev. 342, 196 P.2d 402 (1948). When a case is not
brought to trial within 5 years, the only exception to mandatory dismissal is a written
stipulation: Words and conduct, short of a written stipulation, cannot in cases involving this
statute constitute an estoppel. Thran v. District Court, supra, 79 Nev. at 181. Rule 41, as
written and construed, does not contemplate an examination of the equities. Any other
construction would destroy the mandatory 5-year dismissal rule and make the determination a
matter of trial court discretion.
The lower court should grant petitioner's motion and dismiss its complaint.
The writ should issue, permanently prohibiting respondent court from proceeding to trial
on defendant McElhaney's counterclaim.
counterclaim. The judgment against petitioner for costs and attorney's fees is vacated.
____________
86 Nev. 286, 286 (1970) Lamb v. Loveless
RALPH LAMB, Sheriff of Clark County, Nevada, Appellant, v. GAROLD DAVE
LOVELESS, Respondent.
No. 6014
April 17, 1970 468 P.2d 24
Appeal from order granting writ of habeas corpus entered by Eighth Judicial District
Court, Clark County; Clarence Sundean, Judge.
Appeal from an order of the district court granting petition for habeas corpus on ground
that insufficient evidence was adduced at the preliminary hearing to require petitioner to
answer in district court an embezzlement charge arising out of a consignment to sell a motor
vehicle. The Supreme Court, Mowbray, J., agreed that insufficient evidence was adduced at
the preliminary hearing to require petitioner to answer the charge. The Court further held that
evidence deficiencies in the preliminary hearing may not later be cured at a habeas hearing by
offering new evidence.
Affirmed.
Harvey Dickerson, Attorney General; George E. Franklin, Jr., District Attorney, and
Addeliar D. Guy, Deputy District Attorney, Clark County, for Appellant.
Foley, Garner & Shoemaker, of Las Vegas, for Respondent.
1. Criminal Law.
In embezzlement prosecution, arising out of a consignment to sell a motor vehicle, record supported
district judge's determination that insufficient evidence was adduced at the preliminary hearing to require
petitioner to answer the charge in district court. NRS 205.300.
2. Habeas Corpus.
Evidence deficiencies in the preliminary hearing may not later be cured at a habeas hearing by
offering new evidence.
be cured at a habeas hearing by offering new evidence. NRS 34.470, subd. 3, 34.520.
3. Criminal Law.
Probable cause that a crime has been committed and that the defendant committed it must be established
at the preliminary hearing, since the very reason for the preliminary hearing is to weed out groundless or
unsupported charges, so that the accused may be relieved of the degradation of a criminal trial and the
deprivation of his liberty.
OPINION
[Headnote 1]
This is an appeal from an order of the district judge granting the respondent-defendant's
petition for habeas on the ground that insufficient evidence was adduced at the preliminary
hearing to require him to answer the charge of embezzlement in the district court. We agree
with the district judge, and we affirm his order discharging the defendant.
1. The Facts.
Garold Dave Loveless was charged by criminal complaint with embezzlement. NRS
205.300.
1
The complaint arose out of a consignment to sell a vehicle. According to the
transcript of the preliminary hearing, Loveless was manager of Fortune Traders Inc., a
Nevada corporation that operated a sales agency in Las Vegas known as the Auto Center. The
Center received and sold, for a commission, cars of individuals on a consignment basis. This
is one of those cases. The owner of the car was Thomas J. Schultz, who testified at the
hearing that he did not know Loveless.2 Mr. Shultz on June 6, 196S, delivered his 1963
half-ton Chevrolet truck to Marion Russell Galpin, Jr., who was employed at the Center.
____________________

1
NRS 205.300 reads, in relevant part:
1. Any bailee of any money, goods or property, who shall convert the same to his own use, with the intent to
steal the same or to defraud the owner or owners thereof and any agent, manager or clerk of any person,
corporation, association or partnership; or any person with whom any money, property or effects shall have been
deposited or entrusted, who shall use or appropriate such money, property or effects or any part thereof in any
manner or for any other purpose than that for which the same was deposited or entrusted, shall be guilty of
embezzlement, and shall be punished in the manner prescribed by law for the stealing or larceny of property of
the kind and name of the money, goods, property or effects so taken, converted, stolen, used or appropriated.
he did not know Loveless.
2
Mr. Shultz on June 6, 1968, delivered his 1963 half-ton
Chevrolet truck to Marion Russell Galpin, Jr., who was employed at the Center. At the time
of delivery a consignment agreement was signed by Mr. Schultz and his wife, authorizing
Auto Center to sell their truck for them.
3

The truck was sold on June 18, 1968, to Ronald Bloxham for a total purchase price of
$875. The Schultzes never received one cent of the money due them. Evidently the Center ran
into financial difficulties and was closed down by two constables. Loveless testified at the
hearing that he was manager of Fortune Traders Inc. and knew of the Schultz transaction but
never received one red penny from the sale of the vehicle. His contention was that the
money was taken by two constables and a bondsman, Robert M. Bohen.
4

2. The Habeas Hearing.
The district judge during the habeas hearing requested the State to show him in the record
of the preliminary hearing any evidence that would establish that Loveless received and
converted the proceeds from the sale of the Schultzes' car to his own use:
Court: We're going to judge this thing on the record as it was made at the preliminary
hearing, and that is the basis of the writ.
____________________

2
Q. [by Addeliar D. Guy, Deputy District Attorney, Clark County] Sir, what is your name?
A. Thomas J. Schultz.
. . . .
Q. Do you know the defendant, Garold D. Loveless?
A. I didn't.
Q. Do you know the defendant, Garold D. Loveless?
A. I know who he is, yes.
. . . .
The Court: Do you know the defendant in this action, Garold D. Loveless?
The Witness: I have seen his pictures. That is the man over there (indicating).

3
The agreement was received in evidence at the preliminary hearing and apparently received by the district
judge. It was not made part of the record on this appeal. (It was attached to respondent's reply brief.)

4
The Court: When you sold the truck to Mr. Bloxham, why was not the sum of $800 turned over to Mr.
Schultz at that time prior to turning the money into the company?
The Witness [Loveless]: Gee, I don't know why it wasn't unless they picked up the money and everything. I
don't know what happened.
The Court: Who picked the money up?
The Witness: The two constables and Mr. Bohen.
The Court: What time did they come down and padlock the business?
The Witness: I don't know because I was not there.
it was made at the preliminary hearing, and that is the basis of the writ. I would like to have
you examine the transcript of the testimony taken at the preliminary hearing and point out to
me where the defendant, other than accepting the money from the purchaser, got any other
benefits from that money, or used it for his own benefit.
Mr. Guy: Your Honor, I don't think that the State can prove one hundred percent that the
defendant got the use of the money for his own benefit. We can prove that he got the money.
The State was unable to show to the district judge that the crime of embezzlement had
been committed, and the writ was granted.
3. New Evidence.
[Headnotes 2, 3]
The State on this appeal urges that the district judge erred in not permitting the State to
introduce new evidence at the habeas hearing to prove that a crime had been committed. The
district judge correctly denied the State's attempt to do so. In support of this rather novel
suggestion, the State relies on NRS 34.470(3)
5
and NRS 34.520.
6
These statutes are not
applicable at all. Probable cause that a crime has been committed and that the defendant
committed it must be established at the preliminary hearing, since the very reason for the
preliminary hearing is to weed out groundless or unsupported charges, so that the accused
may be relieved of the degradation of a criminal trial and the deprivation of his liberty. To
suggest, as the State does, that evidence deficiencies in the preliminary hearing may later be
cured at a habeas hearing by offering new evidence would not only emasculate the purpose
of the preliminary hearing but also the effectiveness of the ancient writ of habeas
corpus.7
____________________

5
NRS 34.470(3):
The judge shall have full power and authority to require and compel the attendance of witnesses by process
of subpena and attachment and to do and perform all other acts and things necessary to a full and fair hearing
and determination of the case.

6
NRS 34.520:
If it shall appear to the judge, by affidavit, or upon hearing of the matter, or otherwise, or upon the
inspection of the process or warrant of commitment, and such other papers in the proceedings as may be shown
to the judge, that the party is guilty of a criminal offense, or ought not to be discharged, the judge, although the
charge is defectively or unsubstantially set forth in such process or warrant of commitment, shall cause the
complainant, or other necessary witnesses, to be subpenaed to attend at such time as ordered, to testify before the
judge; and upon the examination, he shall discharge such prisoner, let him to bail, if the offense be bailable, or
recommit him to custody, as may be just and legal.
evidence would not only emasculate the purpose of the preliminary hearing but also the
effectiveness of the ancient writ of habeas corpus.
7

Affirmed.
____________________

7
There was no prohibition against the State's refiling the complaint and presenting, if available, adequate and
sufficient evidence to establish probable cause at a new preliminary hearing, which procedure would appear far
more expedient than prosecuting this appeal.
____________
86 Nev. 290, 290 (1970) Graham v. State
FRANCIS KENNETH GRAHAM, Appellant, v. THE
No. 6110
April 17, 1970 467 P.2d 1016
Appeal from order denying a new trial and from judgment of the First Judicial District
Court, Carson City; Richard L. Waters, Jr., Judge.
Defendant was convicted before the district court of violating statute proscribing use or
possession of slot machine cheating device, and he appealed. The Supreme Court, Mowbray,
J., held that even if information charging that defendant used or had on his person cheating or
thieving device to facilitate removing all or part of contents of slot machine in language of
statute charged two public offenses, it was not prejudicial to defendant, where he was found
guilty and sentenced for single offense and penalty for either use or having cheating device
while playing slot machine was the same.
Affirmed.
Springer & Newton, of Reno, for Appellant.
Harvey Dickerson, Attorney General; Robert F. List, District Attorney, and Michael E.
Fondi, Deputy District Attorney, of Carson City, for Respondent.
Elements of offense charged must be set forth in information with particularity, and each offense must be
alleged in separate counts.
2. Criminal Law.
Even if information charging that defendant used or had on his person cheating or thieving device to
facilitate removing all or part of contents of slot machine in language of statute charged two public
offenses, it was not prejudicial to defendant, where he was found guilty and sentenced for single offense
and penalty for either use or having cheating device while playing slot machine was the same. NRS
465.080.
3. Fraud.
Evidence, including testimony of owner of gambling casino who followed defendant and observed him
throw object away which was later determined to be device for cheating slot machines and customer of
casino, both of whom testified as to defendant's working machine, was sufficient to sustain conviction
under statute proscribing use or possession of device for cheating slot machine. NRS 465.080.
OPINION
This is a cheating case involving a 25-cent slot machine. NRS 465.080.
1

1. The Facts.
The crime took place on November 21, 1968, in the Carson City Nugget. The
appellant-defendant, Francis Kenneth Graham, was spending the afternoon of that day
gaming in the Nugget's casino. One of the lady patrons of the establishment, who was playing
the slot machine right next to Graham, became intrigued by his consistent luck. As she
testified, . . . [H]e was right next to me, and then all of a sudden the quarters kept rolling out,
and I didn't know why, but every time he went like this the money rolled out (indicating). I
was fascinated and stood there and watched him. . . . The lady witness observed the
operation for about 15 minutes. We do not know from the record just what occurred when he
[Graham] went like this," other than the witness's answer to counsel's question:
____________________

1
NRS 465.080 provides in relevant part:
2. It shall be unlawful for any person, in playing or using any slot machine, lawful vending machine, coin
box, telephone or other receptacle designed to receive or be operated by lawful coin of the United States of
America in furtherance of or in connection with the sale, use or enjoyment of property or service:
. . . .
(b) To use or have on his person any cheating or thieving device to facilitate removing from any slot
machine, lawful vending machine, coin box, telephone or other receptacle any part of the contents thereof.
3. Any violation of the provisions of this section shall be a gross misdemeanor. (Emphasis added.)
[Graham] went like this, other than the witness's answer to counsel's question:
Q Well, could you be a little more descriptive of what he was doing, other than just this
gesture that you made with your hands, this jabbing motion.
A Well, I don't know. His back was to me. But every time his shoulder and his arm would
go up the quarters would come out. . . .
The lady reported Graham's activities to Mr. L. A. Steffans, a part-owner of the Nugget.
He observed Graham working on the machine, as he put it, and he then advised his son to
telephone the police. Steffans testified that, while awaiting the arrival of the police, I walked
down towards Mr. Graham, and As I got even with Mr. Graham on that row of slot
machines, I could see that he had some tool and was working on the machine. At that point
Mr. Graham saw me, and then he put the tool up under his coat. Graham started immediately
to leave the Nugget. Steffans followed him to the door and asked him to remain, as Steffans
wanted the police to check him out. Graham's response was loud and definitely in the
negative.
After Graham had departed, Steffans followed him down the sidewalk. The following
seesaw pursuit took place: As Steffans would approach, Graham would stop and run toward
Steffans, who would promptly retreat. Graham would then stop and turn around, and Steffans
would resume the chase until he neared Graham; then the procedure would be repeated.
Steffans was hopeful that the police would arrive momentarily, and he did not want to lose
sight of Graham. As this Keystone-cop pursuit continued down one of the city's alleys,
Steffans saw Graham remove, and throw under the staircase in back of the Old Globe Saloon,
an object that later was found to be a thickness gauge or spoon.
2

Finally Graham reached his parked car. As Graham entered his vehicle, Steffans ran up,
took out a pencil and pad, and endeavored to write down the license number of the car. This
annoyed Graham, who leaped from the car and took after Steffans. Once again Steffans
retreated successfully. Graham returned to the car, and as he was starting it, Steffans came up
and jotted down the license number. Again Graham jumped from the car and went for
Steffans, who was already running down the street. But this time Graham overtook him,
knocked him down, broke his nose, and injured his vertebrae. At this juncture, the Carson
City police arrived on the scene, pursued the fleeing Graham, and arrested him.
____________________

2
The device was recovered and received in evidence during the trial.
the fleeing Graham, and arrested him. He was charged with and found guilty by a jury of
violating NRS 465.080, supra, a gross misdemeanor. The district judge sentenced Graham to
serve 1 year in the county jail and pay a $1,000 fine.
2. The Motion to Dismiss.
Graham filed a motion to dismiss the information on the ground that it fails to state a
public offense, on the ground that two offenses are charged and on the ground that the
information is not phrased in language which would reasonably apprise the defendant of the
nature of the accusation against him . . . . The district judge denied the motion to dismiss. We
agree with that ruling.
During oral argument, counsel was asked:
Q Is it your position that it [the information] didn't state a public offense or that it stated
two?
A Both.
[Headnote 1]
We find this position quite untenable. The essence of Graham's duplicity argument is that
he is charged in one information with two crimes, the use and the possession of a cheating
device. Certainly the elements of a offense charged must be set forth in the information with
particularity, and each offense must be alleged in separate counts. NRS 465.080(2), supra,
provides in part that: It shall be unlawful for any person, in playing or using any slot
machine, . . . [t]o use or have on his person any cheating or thieving device . . . . (Emphasis
added.) Graham was charged in the wording of the statute:
[S]aid defendant did wilfully and unlawfully, while playing or using a quarter slot
machine . . . , use or have on his person a cheating or thieving device to facilitate removing
from said slot machine all or part of the contents thereof, all of which occurred at the Carson
City Nugget located at 507 North Carson Street, Carson City, Nevada.
The recent opinion of this court in Laney v. State, 86 Nev. 173, 466 P.2d 666 (1970), is
controlling in this case:
. . . Even though the legislature repealed NRS 173.320 as of January 1, 1968, we do not
propose to abandon the common sense principal that a judgment will not be set aside or a new
trial granted, in a criminal case, unless the accused is able to affirmatively demonstrate that
the information is so insufficient that it results in a miscarriage of justice or actually
prejudices him in respect to a substantial right. Langley v. State, 84 Nev. 295, 439 P.2d 986
(1968); Gallegos v. State, 84 Nev. 608, 446 P.2d 656 (1968).
[Headnote 2]
We fail to find any prejudice to the defendant in the instant case. Assuming, arguendo,
that two public offenses are charged in the information, nevertheless Graham was tried, found
guilty, and sentenced for a single offense. Since the penalty for use of or having on one's
person a cheating device while playing a slot machine is the same, we find no prejudice to the
defendant under the facts presented.
3. The Evidence.
[Headnote 3]
Graham complains there is a lack of evidence to support the verdict. We need not restate
it, as we have summarized it, supra. We conclude that there is substantial evidence in the
record; therefore the verdict will not be set aside. [W]here there is competent evidence to
support a verdict of the jury, the weight of the evidence and the credibility of the witnesses
are within the exclusive province of the jury.' Cross v. State, 85 Nev. 580, 582, 460 P.2d
151, 152 (1969), quoting Duran v. People, 427 P.2d 318, 321 (Colo. 1967).
Our standard on review has been announced in Crowe v. State, 84 Nev. 358, 366, 441 P.2d
90, 95 (1968):
The test then for sufficiency upon appellate review is not whether this court is convinced
of the guilt of the defendant beyond a reasonable doubt, but whether this court can conclude
the trier of facts could, acting reasonably, be convinced to the degree of certitude by the
evidence which it had a right to believe and accept as true.
The record supports the verdict. Affirmed.
____________
86 Nev. 294, 294 (1970) Wyatt v. State
THOMAS D. WYATT, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 5765
April 20, 1970 468 P.2d 338
Appeal from a judgment of conviction finding the appellant guilty on six (6) counts of
being an ex-felon in possession of firearms capable of being concealed upon the person,
and from an order denying a motion for a new trial.
86 Nev. 294, 295 (1970) Wyatt v. State
firearms capable of being concealed upon the person, and from an order denying a motion for
a new trial. First Judicial District Court, Ormsby County; Richard L. Waters, Jr., Judge.
The Supreme Court, Batjer, J., held that affidavit which clearly described place to be
searched and items to be seized, named informants, detailed information furnished by them,
and explained reasons why officer relied on them established a probability of criminal activity
and was adequate to support search warrant, and firearms not described in affidavit which
were found while searching for items described in affidavit were not illegally seized and were
admissible.
Affirmed.
Richard C. Minor, of Reno, for Appellant.
Harvey Dickerson, Attorney General, Robert F. List, District Attorney, of Carson City, for
Respondent.
Where, at time defendant was bound over to district court, his attorney and prosecutor entered into a
stipulation agreeing that information would not be immediately filed in order to allow defendant time to
conclude personal matters, fact that information had been filed more than 15 days after defendant was held
to answer for charged offense did not invalidate the information. NRS 178.490; Stats. 1967, ch. 523,
466, subd. 2(b).
2. Criminal Law.
A judgment or order which reaches a correct result will be affirmed even if based upon an incorrect
ground.
Affidavit which clearly described place to be searched and items to be seized, named informants, detailed
information furnished by them, and explained reasons why officers relied on them established probability
of criminal activity and was adequate to support search warrant.
4. Criminal Law.
When an appellant fails to specifically object to testimony elicited during trial, but complains about it, in
retrospect, upon appeal, Supreme Court will not consider his contention to be a valid assignment of error.
5. Criminal Law.
Where search was properly conducted under authority of search warrant, seized hand guns which were
not named in search warrant were admissible in prosecution for being an ex-felon in possession of firearms
capable of being concealed upon the person. NRS 202.360, subd. 2.
86 Nev. 294, 296 (1970) Wyatt v. State
When, during the course of a bona fide search, objects indicative of commission of crimes other than
those named in search warrant are found, they may be seized.
OPINION
The appellant was found guilty on six (6) counts of violating NRS 202.360(2),
1
which
prohibits an ex-felon from possessing a firearm capable of being concealed upon the person.
From the judgment of conviction and the order denying his motion for a new trial, this appeal
is taken.
The appellant contends that the trial court erred when it admitted certain evidence which
was seized during a search which he claims was illegal and when it allowed the state to
introduce certain testimony as rebuttal evidence. He further contends that the provisions of
NRS 178.556
2
were violated and as a result he was denied his constitutional right to a
speedy trial, and that his constitutional rights protected by Miranda v. Arizona, 384 U.S. 436
(Ariz. 1966), were also violated.
It appears from the record, upon an affidavit executed on information and belief by Harold
V. Dunn, Jr., a police officer employed by Carson City, Nevada, that a search warrant was
issued by the justice of the peace of Ormsby County (now Carson City), commanding any
peace officer of that county to search, at any time, the premises used and occupied by the
appellant, as well as a pick-up truck and camper body located on those premises, and to
seize medical instruments and other medical supplies and equipment alleged to have been
used by the appellant in the performance of an abortion.
On June 2, 1967, at approximately 11:15 p.m., armed with the search warrant, as well as
a warrant of arrest, charging the appellant with the crime of abortion {State v. Wyatt, S4
Nev. 731
____________________

1
NRS 202.360(2): After July 1, 1925, no unnaturalized foreign-born person, and no person who has been
convicted of a felony in the State of Nevada, or in any one of the states of the United States of America, or in
any political subdivision thereof, or of a felony in violation of the laws of the United States of America, shall
own or have in his possession or under his custody or control any pistol, revolver or other firearm capable of
being concealed upon the person.

2
NRS 178.556: If no indictment is found or information filed against a person within 15 days after he has
been held to answer for a public offense, or if a defendant whose trial has not been postponed upon his
application is not brought to trial within 60 days after the finding of the indictment or filing of the information,
the court may dismiss the indictment, information or complaint.
86 Nev. 294, 297 (1970) Wyatt v. State
the search warrant, as well as a warrant of arrest, charging the appellant with the crime of
abortion (State v. Wyatt, 84 Nev. 731, 448 P.2d 827 (1968)), the sheriff of Ormsby County
accompanied by other peace officers, went to the premises described in the search warrant.
They were met at the door by the appellant who was immediately arrested and warned of his
constitutional rights as required by Miranda v. Arizona, supra. Immediately thereafter, the
appellant was served with the search warrant and the search of the premises began. The
pick-up truck and camper body were locked and the appellant produced keys so they could be
opened and searched.
Medical instruments and equipment were discovered and seized, and while searching the
camper one hand gun was discovered and taken as evidence. (The officers were all aware
that the appellant was an ex-felon.)
There also was located within the premises a camp trailer which was locked. The appellant
produced a key and the trailer was opened and searched. There, five more hand guns were
discovered and seized by the officers.
On June 5, 1967, a complaint was filed with the justice of the peace, charging the
appellant with the crime of being an ex-felon in possession of a firearm capable of being
concealed on the person, and in particular the Smith and Wesson Cal. 38 special found in the
camper on the pick-up truck. The appellant was arrested and arraigned on that complaint on
June 7, 1967. On December 8, 1967, he was charged and arrested for the possession of the
five (5) other firearms seized on June 2, 1967. Upon the stipulation of counsel, the
preliminary examinations, available to the appellant on each of the separate complaints, were
combined and held on January 4, 1968, at which time the appellant was bound over to district
court for trial.
At that time the appellant requested a delay in the filing of the information so he could
take care of certain personal business; therefore, the information was not filed until February
26, 1968. On March 1, 1968, the appellant moved to dismiss the information upon a Motion
to Quash Information (NRS 174.075), upon the grounds of duplicity. That motion was
denied on April 3, 1968, and on April 24, 1968, the appellant entered his plea of not guilty to
all counts in the information.
Immediately after his entry of a plea, the appellant, through counsel, waived the rule that
requires a trial to be commenced within 60 days from the filing of the information (formerly
NRS 178.495, cf. NRS 178.556) and the trial was set for July 8, 1968.
86 Nev. 294, 298 (1970) Wyatt v. State
On June 27, 1968, the appellant, through substituted counsel, filed a petition for a writ of
habeas corpus claiming (1) that the delay in holding the preliminary examination until
January 4, 1968, on the complaint filed in justice's court on June 5, 1967, was unnecessary
and unreasonable; (2) that the state had violated the provisions of NRS 178.556 which
requires the filing of the information within 15 days after he was held to answer. On July 1,
1968, the district court entered its order denying the petition, and on that same day the
appellant filed his notice of appeal. On July 8, 1968, by order, this court affirmed the order of
the district court on the grounds that the petition for habeas relief was not timely filed. (Wyatt
v. State, File No. 5653.)
At the commencement of the trial on July 8, 1968, the appellant again moved to dismiss
the information because it had been filed more than 15 days after the appellant was held to
answer for the offense charged. The district court denied this motion on the grounds that it
had not been made before the appellant's plea was entered and it was therefore untimely.
[Headnotes 1, 2]
The appellant was apparently laboring under the mistaken belief that NRS 178.556 was
controlling, and the trial court mistakenly believed that NRS 174. 115
3
was controlling.
Because the complaints, in this case, were filed before January 1, 1968, neither NRS 178.556
nor NRS 174.115 was in effect, and the former section NRS 178.490 should have been relied
upon. (See 1967 Statutes of Nevada, Chapter 523, section 466(2)(b).) At the time the
appellant was bound over to district court, his attorney and the prosecutor entered into a
stipulation agreeing that the information would not be immediately filed in order to allow the
appellant time to conclude some personal matters. The trial court was unaware of that
stipulation, although the prosecutor made an attempt to apprise the judge of that fact.
Nevertheless, the trial judge reached the proper result, if for the wrong reason, when he
denied the appellant's motion to dismiss the information just before the commencement of the
trial. If a judgment or order of a trial court reaches the right result, although it is based on an
incorrect ground, the judgment or order will be affirmed on appeal. Conley v. Chedic, 6 Nev.
222 (1870); Jumbo Mining Co. v. District Court, 28 Nev. 253, 81 P. 153 (1905); Edmonds v.
Perry, 62 Nev. 41, 140 P.2d 566 {1943); Ormachea v. Ormachea, 67 Nev. 273
____________________

3
NRS 174 115. The motion shall be made before the plea is entered, but the court may permit it to be made
within a reasonable time thereafter.
86 Nev. 294, 299 (1970) Wyatt v. State
Edmonds v. Perry, 62 Nev. 41, 140 P.2d 566 (1943); Ormachea v. Ormachea, 67 Nev. 273,
217 P.2d 355 (1950).
[Headnote 3]
We now turn to the appellant's contention that the procedure followed by the police which
led to the discovery of the hand guns was improper. As we said in Stamps v. State, 83 Nev.
232, 428 P.2d 188 (1967), We deem it to be exemplary and commendable. Dunn's affidavit
was given in considerable detail. The place to be searched and the items to be seized were
clearly described. He named his informants, detailed the information furnished by them, and
explained the reasons why he relied on them. He also alleged in detail why the search warrant
which he sought should be served during the nighttime.
In addition to the contraband designated in Dunn's affidavit, the search produced the hand
guns which the appellant contends were illegally seized and erroneously admitted into
evidence. The appellant's contention is without merit.
NRS 179.030 (which was the statute in effect at the time of the search in this case)
provided: No search warrant shall be issued but upon probable cause, supported by affidavit
naming or describing the person, and particularly describing the property and place to be
searched.
In Gordon v. State, 83 Nev. 177, 426 P.2d 424 (1967), this court, in discussing probable
cause in connection with the warrantless arrest said: Probable cause exists if the facts and
circumstances known to the officer at the moment of the arrest would warrant a prudent man
in believing a felony had been committed by the person arrested.
Here we have facts somewhat similar to those in Stamps v. State, supra, where this court
said: Justification of a search warrant, not an arrest, is involved here, but the element of
probable cause is the same.
In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1958), a case
dealing with probable cause in a warrantless arrest and search, a federal narcotics agent was
told by an informer, whom he knew to be reliable, that Draper was selling narcotics and
would arrive by train from Chicago with a supply. The informer described Draper and told the
agent, within a space of two days, when he would arrive. When Draper did arrive, he was
recognized, arrested, and the narcotics were seized. The United States Supreme Court held
the arrest to be lawful and said that even hearsay information was entitled to be considered by
the arresting officer.
In Spinelli v. United States, 393 U.S. 410 (1969), while holding that the affidavit in that
case fell short of the standards set forth in Aguilar v. United States, 37S U.S. 10S, S4 S.Ct.
1509, 12 L.Ed.2d 723 {1963), Draper v. United States, supra, and our other decisions that
give content to the notion of probable cause, the High Court said: "The detail provided by
the informant in Draper v.
86 Nev. 294, 300 (1970) Wyatt v. State
holding that the affidavit in that case fell short of the standards set forth in Aguilar v. United
States, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1963), Draper v. United States, supra,
and our other decisions that give content to the notion of probable cause, the High Court said:
The detail provided by the informant in Draper v. United States, [supra] provides a suitable
benchmark. And then went on to say: In holding as we have done, we do not retreat from
the established propositions that only the probability, and not a prima facie showing, of
criminal activity is the standard of probable cause, . . . . Here the search warrant was
supported by Dunn's recitation in his affidavit of the details surrounding the abortion and
furthermore a detailed description was given of the medical instruments alleged to have been
used in that abortion, as well as a detailed description of the premises to be searched.
We find the affidavit supporting the search warrant established the probability of criminal
activity and was entirely adequate. The search conducted pursuant to the warrant was in all
respects legal.
Shortly after his arrest, the appellant advised the officers that he wished to call his
attorney, which he was allowed to do. His attorney did not come to the premises while the
search was being conducted and it appears from the record that during the search there was
conversation between the appellant and some of the officers. During the trial, without any
objection being made by the appellant, the prosecutor asked Sheriff Humphrey about his
conversation with the appellant, and the sheriff stated that the appellant admitted the seized
weapons belonged to him.
4

[Headnote 4]
When an appellant fails to specifically object to testimony elicited during trial, but
complains about it, in retrospect, upon appeal, we do not consider his contention to be a valid
assignment of error. Cross v. State, 85 Nev. 580, 460 P.2d 151 (1969); Cranford v. State, 76
Nev. 113, 349 P.2d 1051 (1960); State v. Ceja, 53 Nev. 272, 298 P. 658 (1931).
____________________

4
Mr. List (District Attorney): Q. Did you have any further conversation with the defendant on that evening
concerning these weapons?
(Sheriff Humphrey): A. Yes. After they were all assembled up in the office section of the building, Doctor
Wyatt had indicated to me that he had some concern about the care and custody of these weapons. And he asked
me if they were going to be properly cared for. And I told him, Yes, they would be, they would be held in our
vault at the station.' And I asked him for positiveness of the weapons if they all belonged to him and he said,
Yes, they do.'
86 Nev. 294, 301 (1970) Wyatt v. State
[Headnotes 5, 6]
The seized hand guns were properly admitted into evidence. When, during the course of a
bona fide search, objects indicative of the commission of other crimes are found, they may be
seized. In United States v. Charles, 8 F.2d 302 (N.D. Cal. 1925), it was said: Wherever,
during the progress of a bona fide search for other commodities illegally possessed,
intoxicating liquor is found, whether a search warrant has issued or not, it would seem that its
seizure not only is legal but mandatory. In Stamps v. State, supra, this court said: The
officers were lawfully where they were, trying to locate the item they had seen appellant hide.
They were not required to shut their eyes to contraband when they happened upon it. In
People v. Daily, 321 P.2d 469 (Cal. 1958), that court held: Moreover, when conducting such
a search officers need not blind themselves to other things they see, such as objects used or
usable in performing an abortion or objects indicative of the commission of other crimes.
We have considered the appellant's other assignments of error, which we find to also be
without merit.
The judgment of the trial court and its order denying the appellant's motion for a new trial
are both affirmed.
____________
86 Nev. 301, 301 (1970) Kelly v. Kelly
DOROTHY BAKEWELL KELLY, Appellant, v.
WILLIAM CODY KELLY, Respondent.
No. 5900
April 21, 1970 468 P.2d 359
Appeal from the First Judicial District Court, Douglas County; Richard L. Waters, Jr.,
Judge.
Divorce action in which wife appealed from a decision of the district court which held that
there was no community property of the parties to be divided. The Supreme Court, Collins, C.
J., held, inter alia, that finding that husband rendered no services of value to his separate
property was supported by substantial evidence so that, since the community made no
measurable contribution to enhancement of husband's separate property it would not be
entitled to an apportionment of any increase in the separate property and would not be
entitled to reimbursement for his valueless services.
86 Nev. 301, 302 (1970) Kelly v. Kelly
of any increase in the separate property and would not be entitled to reimbursement for his
valueless services.
Affirmed.
Hibbs & Bullis, of Reno, for Appellant.
Laxalt, Berry, Allison & LeBaron, of Carson City, for Respondent.
If there is substantial evidence to support lower court's findings in cases adjudicating marital rights
reviewing court will not reverse that determination upon appeal.
Finding that husband rendered no services of value to his separate property was supported by substantial
evidence so that, since the community made no measurable contribution to enhancement of husband's
separate property it would not be entitled to an apportionment of any increase in the separate property and
would not be entitled to reimbursement for his valueless services.
While all property acquired after marriage is presumed to be community property, such presumption may
be rebutted by clear and convincing evidence.
Title to community property may be vested in either spouse without losing its character as community
property, so that one must look to source of funds with which it was acquired; if acquired by community
funds or credit it would be community property, while if acquired by separate funds or credit it would be
separate property.
Where husband's only income was from separate property, to the production of which he contributed
inconsequential or no effort at all, funds used during marriage to acquire nontrust assets could only have
come from husband's separate property, so that wife failed to prove by clear and satisfactory proof that
such assets were purchased with community funds or credit acquired by husband's community toil or talent.
OPINION
This is an appeal in a divorce action between Dorothy Bakewell Kelly (plaintiff below)
and William Cody Kelly (defendant below). The single issue requiring our review is the
lower court's determination there was no community property of the parties to be divided. We
affirm that judgment.
86 Nev. 301, 303 (1970) Kelly v. Kelly
Dorothy and William, each of whom was married before, were wed in Sewickley, Pa.,
January 25, 1964. Dorothy had no children of her first marriage; William had four. The
parties resided in Cincinnati, Ohio, from then until April, 1965, when they moved to
Washington, D.C. In April, 1966, they moved to Glenbrook, Nevada. On June 2, 1967,
Dorothy commenced this divorce action. Because there were complex issues to be resolved,
the parties stipulated, and the court ordered reference of the cause to a Master, Gordon W.
Rice, Esq., to try all issues and recommend findings of fact, conclusions of law and judgment
of the court. On February 12, 1969, the Master filed a Memorandum Decision on the merits
of the cause and recommended findings and conclusions to the court, in which Dorothy was
to be granted the divorce as the party least at fault. She was to be conditionally awarded
alimony of $1,500 per month for a period of two years, and she was awarded a statue valued
at approximately $12,000, found by the Master to have been a gift to her by William. The
Master found there were no children born of the marriage and that the parties owned no
community property.
Those findings and conclusions were adopted in toto by the lower court, which entered
final judgment in accordance therewith. It is from the finding that the parties owned no
community property that Dorothy takes this appeal.
In 1962, William, a wealthy man and a lawyer, placed the bulk of his assets in a revocable
inter vivos Ohio trust, naming himself as the lifetime income beneficiary, his children as
ultimate beneficiaries, and himself and his law associate, Kyle Brooks, as trustees. At the
time of his marriage to Dorothy, the assets of the trust were valued at $6,222,000, and he had
other assets, outside the trust, valued at approximately $867,000, most of which he later
conveyed to the trust. At the time of the trial in December, 1968, the trust property was
valued at approximately $8,000,000 and William owned the following assets in addition to
those belonging to the trust:
1. Ten percent interest in Fincastle Land Co. valued at $11,300 and acquired in September,
1967.
2. Twenty-five percent interest in Green Spring, Inc., valued at $25,000 and acquired in
March, 1967.
3. Six acres of Florida real estate valued at $12,000, acquired in 1966 as take-down
acreage from a purchase made in 1960 which had been foreclosed upon.
4. A $300 investment in Carson-Tahoe Travel, Inc., acquired in February, 1967, and
August, 1968.
5. A 15 percent interest in Carson Broadcasting Corp., whose value had not been
ascertained but which would probably be at least $22,500, acquired in July, 196S.
86 Nev. 301, 304 (1970) Kelly v. Kelly
whose value had not been ascertained but which would probably be at least $22,500, acquired
in July, 1968. It appears as though none of this had been paid pending the determination of
how much 15 percent of the corporation was worth.
6. A $5,000 note dated August, 1956.
7. A boat acquired in May, 1967, and a car acquired in July, 1968, valued at $14,000 total.
8. Furniture, furnishings, and works of art valued at $25,000, acquired between 1940 and
1968.
9. A $3,000 interest in a Caribbean dry-cleaning company, acquired in the summer of 1964
by signing as surety for a loan obtained by the company.
The residence of the parties at Glenbrook was purchased by the trust in September, 1966,
the sale being confirmed by a court order out of the First Judicial District. It was never owned
by the parties jointly or by William as an individual.
Dorothy contends the finding of the Master, as approved by the court, that there was no
community property was in error, and urges this court to reverse the judgment and remand the
cause to the lower court to:
1. Determine the reasonable value of the services rendered by the husband to his various
separate properties during the period the parties resided as husband and wife in the State of
Nevada and reimburse the community for these services.
2. Determine the following property interests, which were acquired while the parties
resided in Nevada, to be community property:
A) The 10% interest in the outstanding stock in the Fincastle Land Company.
B) The 25% interest in the outstanding stock in Green Spring, Inc.
C) The interest in Carson-Tahoe Travel, Inc.
D) The 15% interest in Carson Broadcasting, Inc.
E) The boat purchased in 1967.
F) The residence at Glenbrook, Nevada.
G) The furniture and furnishings at the Glenbrook residence.
3. Determine the amount of enhancement to the husband's separate property that resulted
from his skill and efforts during the period of marriage in the State of Nevada and apportion
to the community the value of the enhancement resulting from the husband's skill and effort.
The Master, in rendering his Memorandum of Decision on the issue of the accumulation of
community property by the parties during the marriage, said, "THOUGH there has been an
accretion of two to three million dollars in MR.
86 Nev. 301, 305 (1970) Kelly v. Kelly
parties during the marriage, said, THOUGH there has been an accretion of two to three
million dollars in MR. KELLY'S separate fortuneWhile MRS. KELLY'S wealth has not
fluctuated from about a quarter million dollarssince the marriage, the parties have
accumulated no community property. The record shows that evidence taken by the Master
on the accumulation of community property question is in substantial conflict.
Evidence adduced by appellant on that question shows: That during the marriage William's
primary occupation or profession was that of manager and investor of his personal assets and
those of his blood relatives and rendering services as a financial consultant, advisor and
negotiator to those real estate development companies and other businesses in which he had
an interest; that William and Dorothy filed joint tax returns in 1965, 1966 and 1967 showing
adjusted income for the respective years of $82,000, $117,000 and $78,000, but that William
additionally received tax-free income from government securities worth approximately
$2,000,000; that William maintained during the marriage various individual bank accounts in
Cincinnati identified as investment, personal and income; that William and Dorothy
maintained a joint account in Nevada to which deposits were made as needed and used solely
to pay household and personal expenses of the parties; that neither William nor the
community received any compensation for services rendered by him to the trust, the various
trusts of his blood relatives, his law practice, nor business outside the trust in which he was
engaged; that William spent a considerable amount of time reviewing the conditions in the
stock market and the particular investments which comprised the principal assets of the trust;
that when William and Dorothy were at his properties in Barbuda, British West Indies, he
would spend most of his time in the office going over things, doing work, observing
construction work, bookkeeping, introducing his management team to the operation; that
William scrutinized the trust records thoroughly and even found bank errors; that as a director
of Green Spring, Inc., he attended directors' meetings; that William purchased the Glenbrook,
Lake Tahoe, property for subdivision purposes or sale in toto at a profit; that William
maintained an office in Carson City; that William investigated and invested in 1967 in a
partnership in Carson City known as Carson Travel Center, later incorporated as
Carson-Tahoe Travel, Inc.; that in July, 1968, William acquired a 15 percent interest in
Carson Broadcasting Corp., for which he made no investment; that prior to December,
1967, Mr.
86 Nev. 301, 306 (1970) Kelly v. Kelly
Corp., for which he made no investment; that prior to December, 1967, Mr. Gwynn, an
investment counselor, did not consummate stock transactions on his own without the advice
of one of the trustees nor through 1967 buy or sell any stock for William in the trust without
having a discussion with William first. Dorothy also adduced considerable evidence and
testimony relating to her allegation of cruelty as a ground of divorce; that after their arrival in
Nevada William engaged in excessive drinking, was drunk virtually every day from morning
to night.
Evidence adduced by respondent on that question shows: That the property owned by
William and Dorothy prior to their marriage was separate property, both having been
domiciliaries of a common-law, as distinguished from community property, jurisdiction; that
the trust created by William in 1962 was composed of his separate property and credit; that
Dorothy did not contribute to those assets; that prior to their residence in Nevada, both
William as to his nontrust assets and Dorothy as to her separate property, insisted by word
and deed their properties be maintained as separate property of each; that after arrival in
Nevada there was no change in their property acquisitions; that all additions to the trust after
arrival in Nevada came from William's funds; that except for the one joint bank account in
Nevada for family and personal expenses, each party maintained separate bank accounts; that
each party had separate stock and bond portfolios and separate investment advisers; that no
evidence was presented by either party showing that any piece of separate property was
agreed to be converted to community property or that there was a commingling of the
separate properties; that William expended considerable money on behalf of Dorothy for
marital support, clothes, travel, jewelry and expenses; that after arrival in Nevada each party
continued to possess and manage their separate funds and properties in a fashion identical to
that followed in Ohio and Washington, D.C.; that since March, 1965, the accretion in value of
the Kelly trust was due either to natural enhancement or outside investment counsel advice by
Mr. Phillip Gwynn, Executive Vice President of an investment counselling firm, and Mr. J.
Austin White, municipal bond counsel, who had been personally and totally responsible for
all activities of the common stock and governmental bond portfolios; that William had
nothing more than a good layman's knowledge of the stock market; that the accretion in the
value of the Kelly trust from March, 1965, through the time of the divorce would have
occurred whether the portfolio was owned by William or a person in a mental institution;
that William acknowledged his incessant and excessive drinking.
86 Nev. 301, 307 (1970) Kelly v. Kelly
was owned by William or a person in a mental institution; that William acknowledged his
incessant and excessive drinking.
In resolving that conflicting testimony and evidence, the Master in his Memorandum of
Decision noted: MR. KELLY'S separate property has not been augmented in any appreciable
amount by the endeavors of the parties to this action, or, by the endeavors of either of them.
MR. KELLY'S admitted excessive drinking has precluded any worthwhile effort in this
respect by him. His drinking diminished only during the time he was completely engrossed in
affairs of the Republican National Committee early in the marriage. An expert has ever since
controlled and directed MR. KELLY'S business.
[Headnote 1]
1. We have previously held in cases adjudicating marital rights that if there is substantial
evidence to support the lower court's findings, we will not reverse that determination upon
appeal. Shane v. Shane, 84 Nev. 20, 435 P.2d 753 (1968); Zahringer v. Zahringer, 76 Nev.
21, 348 P.2d 161 (1960); Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355 (1950). There is
substantial, albeit conflicting, evidence in the record before us to support the determination of
the Master and the lower court that there were no community property rights owned by the
parties at the time of the divorce, unless, as appellant asserts, the Master applied an
inappropriate legal principle.
2. Appellant objects to the long-standing rule of Lake v. Bender, 18 Nev. 361, 4 P. 711
(1884), in which it is stated: [I]f profits come mainly from the property, rather than the joint
efforts of the husband and wife, or either of them, they belong to the owner of the property,
although the labor and skill of one or both may have been given to the business. On the
contrary, if profits come mainly from the efforts or skill of one or both, they belong to the
community. 18 Nev. at 392. She contends that this all-or-nothing rule is inequitable and
should no longer be followed because it often fails to give the community credit for the
application of a spouse's skill and effort to his or her separate property during marriage.
Lake v. Bender is but one approach to resolving a most difficult problem resulting from a
conflict between the fundamental community property principle that the labor and skills of a
spouse belong to the community, Laughlin v. Laughlin, 155 P.2d 1010 (N.M. 1944); 1 W. de
Funiak, Principles of Community Property 71 (1943), and the statutory concept grafted on
to the community property law that the rents, issues, and profits of separate property
remain separate property, NRS 123.130.1 See King, The Challenge of Apportionment, 37
Wash.L.Rev. 4S3 {1962).
Under Spanish community property law as it existed in California at the time of its cession
from Mexico, which Nevada adopted {Nixon v. Brown, 46 Nev. 439
86 Nev. 301, 308 (1970) Kelly v. Kelly
grafted on to the community property law that the rents, issues, and profits of separate
property remain separate property, NRS 123.130.
1
See King, The Challenge of
Apportionment, 37 Wash.L.Rev. 483 (1962).
Under Spanish community property law as it existed in California at the time of its cession
from Mexico, which Nevada adopted (Nixon v. Brown, 46 Nev. 439, 214 P. 524 (1923)),
fruits and profits of the spouses' separate property was deemed community property.
California, however, modified that classical rule of community property in George v.
Ransom, 15 Cal. 322, 76 Am.Dec. 490 (1860), and held that recognition of separate property
by the California constitution meant that fruits and profits of separate property remained
separate and did not enter the community. Nevada reached that same result in Lake v. Bender,
supra, at 382-84, and the principle was given legislative approval in ch. 119, 1, [1873]
Stats. of Nev. 193, which provided that the rents, issues and profits of separate property
remained separate. That provision has continued unchanged to the present and is now found
in NRS 123.130.
In urging this court to depart from the all-or-nothing approach of Lake v. Bender and
apportion the increase in separate property between the community and the separate property,
appellant refers us to Ormachea v. Ormachea, 67 Nev. 273, 297, 217 P.2d 355 (1950), where
this court said: For many years it has been recognized that the earnings of either a husband
or a wife are community property; it is also accepted that if the skills and efforts of either
party, or both, are essential to the profits gained from the operation or management of
separate property, then in at least a part the profits are community property. (Emphasis
added.)
That quotation from Ormachea was obiter dictum, because the facts showed there was an
inseparable commingling of separate and community property, making all the profits property
of the community.
____________________

1
NRS 123.130 reads: 1. All property of the wife owned by her before marriage, and that acquired by her
afterwards by gift, bequest, devise or descent, with the rents, issues and profits thereof, is her separate property.
2. All property of the husband owned by him before marriage, and that acquired by him afterwards by gift,
bequest, devise or descent, with the rents, issues and profits thereof, is his separate property. NRS 123.220
reads: All property, other than that stated in NRS 123.130, acquired after marriage by either husband or wife, or
both, except as provided in NRS 123.180 and 123.190, is community property. NRS 123.180 and 123.190 are
not applicable to this case.
86 Nev. 301, 309 (1970) Kelly v. Kelly
[Headnote 2]
We believe appellant is attempting to urge for our consideration a question that is not
before us. The Master found, and the lower court approved the finding, that William rendered
no services of value to his separate property. There is substantial, if conflicting, evidence to
support this finding. If the community made no measurable contribution to the enhancement
of William's separate property, it would not, under any of the alternatives to Lake v. Bender,
be entitled to an apportionment of any increase in the separate property, and, of course, would
not be entitled to reimbursement for his valueless services. See In re Barnes Estate, 17 P.2d
1046 (Cal.Dist.Ct.App. 1932). There is, therefore, no need at this time to re-examine Lake v.
Bender. Had there been a finding of services rendered to his separate estate, then we believe
that this issue would have been squarely before this court on appeal.
3. Appellant's final contention is that the Master and lower court erred in finding none of
the 9 assets and the home at Glenbrook described above was community property.
[Headnote 3]
While it is true that all property acquired after marriage is presumed to be community
property, the presumption may be rebutted by clear and convincing evidence. Zahringer v.
Zahringer, 76 Nev. 21, 348 P.2d 161 (1960); Carlson v. McCall, 70 Nev. 437, 271 P.2d 1002
(1954); In re Fuller, 63 Nev. 26, 159 P.2d 579 (1945); In re Wilson's Estate, 56 Nev. 353, 53
P.2d 339 (1936); Jones v. Edwards, 49 Nev. 299, 245 P. 292 (1926); Barrett v. Franke, 46
Nev. 170, 208 P. 435 (1922); Lake v. Bender, 18 Nev. 361, 4 P. 711 (1884).
[Headnote 4]
Title to community property may be vested in either spouse without losing its character as
community property, so that one must look to the source of the funds with which it was
acquired. If acquired by community funds or credit, it would be community property; if by
separate funds or credit, it would be separate property. In re Wilson's Estate, 56 Nev. 353, 53
P.2d 339 (1936).
[Headnote 5]
According to the findings of the Master and the lower court, William's only income was
from his separate property, to the production of which he contributed an inconsequential or
no effort. Thus, the funds used during the marriage to acquire these nontrust assets could
only have come from William,s separate property.
86 Nev. 301, 310 (1970) Kelly v. Kelly
these nontrust assets could only have come from William,s separate property. Appellant has
therefore not proven by clear and satisfactory proof these assets were purchased with
community funds or credit or acquired by William's community toil or talent. Barrett v.
Franke, supra; Frederickson & Watson Constr. Co. v. Boyd, 60 Nev. 117, 121, 102 P.2d 627
(1940).
4. We would be remiss if we did not note that during the marriage William did contribute
from his separate funds some 40 to 50 thousand dollars per year to the support of the
family, which for the purpose of this appeal included only Dorothy and himself.
Judgment affirmed.
____________
86 Nev. 310, 310 (1970) Building Authority v. Hancock
STATE ex rel. NEVADA BUILDING AUTHORITY, Relator, v. WILLIAM E. HANCOCK,
Secretary of the Nevada Building Authority, Respondent.
No. 6157
April 21, 1970 468 P.2d 333
Original petition for a writ of mandamus.
State Building Authority petitioned for writ of mandamus to compel Authority's secretary
to publish resolution declaring the Authority's intention to issue securities. The Supreme
Court, Thompson, J., held that statutory financing scheme whereby it was contemplated
legislative appropriations would be used to pay rent on buildings constructed by the Authority
and the Authority would then use that rent to pay off bonds sold to finance construction of
buildings was unconstitutional under constitutional provision limiting amount of state debts
to one percent of assessed valuation of state.
Writ denied and proceedings dismissed.
Russell W. McDonald and Frank W. Daykin, of Carson City, for Relator.
Harvey Dickerson, Attorney General, and Robert A. Groves, Deputy Attorney General, for
Respondent.
1. States.
Building Authority created by state to construct public buildings is a part of the state government since it
is managed by public officials and its income depends upon governmental appropriations
for rent.
public officials and its income depends upon governmental appropriations for rent.
2. States.
Statutory financing scheme whereby it was contemplated legislative appropriations would be used to pay
rent on public buildings constructed by State Building Authority and Authority would then use rent to pay
off bonds sold to finance construction of the buildings was unconstitutional under provision limiting state
debt to one percent of assessed valuation of state. Stats. 1969, ch. 448; Const. art. 9, 3.
3. States.
To the extent that revenues used to service bonds are derived from a nongovernmental source, or from
rentals paid by a state agency which in turn deprives rent paying income from user fees, bonds do not
create a state public debt within constitutional provision limiting state debt to one percent of assessed
valuation of state. Stats. 1969, ch. 448; Const. art. 9, 3.
4. States.
Special fund exception removing bonds from limitation of constitutional article limiting state public
debt to one percent of assessed valuation of state is not available if government obligates itself to
contribute to fund used to pay off bonds. Const. art 9, 3.
5. States.
If legislature should pledge itself to make future appropriations for rent in order to service bonds sold by
public authority to finance construction of public buildings, such pledge would create an immediate
indebtedness for the aggregate amount required by the period of the pledge within constitutional article
limiting amount of state debt to one percent of state's assessed valuation. Const. art. 9, 3.
6. States.
Successive biennial appropriations for rent on public buildings constructed by state authority which
would use rents to pay off bonds issued by authority to finance construction were a legislative pledge to
make future appropriations and such appropriations did not fall within current revenue exception to
constitutional provision limiting state public debt to one percent of state's assessed valuation. Stats. 1969,
ch. 448; Const. art. 9, 3.
7. States.
Financing provisions of act creating a public building authority to construct public buildings and finance
same with bonds were inextricably intertwined and, when taken as a whole, all were unconstitutional under
article limiting amount of state debt to one percent of state's assessed valuation. Stats. 1969, ch. 448;
Const. art. 9, 3.
OPINION
This proceeding in mandamus tests the constitutionality of ch. 448 [1969] Stats. of Nev.
778 in the light of Nev. Const.
art. 9, 3 limiting the public debts of Nevada to one percent of the assessed valuation of the
State.
The relator, Nevada Building Authority, was created by the mentioned statute. It is
designated therein as a body corporate and politic. Its members consist ex officio of the
members of the State Planning Board, and the manager of the latter Board is the secretary of
the Authority and the respondent to this proceeding.
The legislature through ch. 448 directed the Nevada Building Authority to build and
provide facilities for use by the State and its agencies and empowered it to acquire real
property and issue securities for this purpose. Accordingly, the Authority adopted a resolution
declaring its intention to issue securities in the amount of $5,600,000 to construct an athletic
field and an education building on the campus of the University of Nevada at Las Vegas, and
a chemistry building and an education building on the University of Nevada campus at Reno.
The securities were to be issued in any convenient denomination or denominations and
were to mature at any convenient time or times not later than 50 years from their respective
dates of issuance. The resolution further specified that [t]he bonds will not constitute an
obligation of the State of Nevada or of the University of Nevada System or any other using
agency, and are payable solely from the income of the Authority. That income would be
derived from charges, fees or rentals for the use of the buildings or facilities and would be
sufficient to service the securities issued. The resolution thus passed was authorized by
several of the provisions of ch. 448.
The respondent, as secretary of the Authority, was directed to cause to be published the
declaration and other matters relating thereto. He refused to do so, and this proceeding to
compel action was commenced.
The assessed valuation of the State of Nevada for fiscal year 1969-70 was $1,708,027,706,
one percent of which is $17,080,277. The State debts subject to the one percent constitutional
limitation amounted to $15,711,000 as of January 1, 1970, leaving an unused limitation as of
that date in the amount of $1,369,277. The respondent declined to comply with the directive
of the Building Authority since the bonds proposed for the University building program when
added to the bonds outstanding and authorized constitute debts in excess of the constitutional
limit. It is conceded that the proposed bonds do not fall within either of the specific
exemptions provided by the constitution which relate respectively to the public defense and to
the State's property and natural resources.
resources. Nev. Const. art. 9, 3; State ex rel. State Gen. Oblig. Bond Comm'n v. Koontz, 84
Nev. 130, 437 P.2d 72 (1968); Marlette Lake Co. v. Sawyer, 79 Nev. 334, 383 P.2d 369
(1963). Moreover, it is agreed that the remedy of mandamus is appropriate. State ex rel. State
Gen. Oblig. Bond Comm'n v. Koontz, supra; Marlette Lake Co. v. Sawyer, supra.
1. The state may contract public debts; but such debts shall never, in the aggregate,
exclusive of interest, exceed the sum of one percent of the assessed valuation of the state. . .
. So reads the relevant part of Nev. Const. art. 9, 3. In an effort to avoid the debt limit thus
imposed and to provide essential public facilities, the legislature enacted ch. 448.
1
The
relator contends that the statutory scheme for the construction of public facilities is
constitutionally permissible since public debts within the meaning of the constitutional
proscription are not created. This contention requires our dissection of the statute and its
implications.
[Headnote 1]
a. Initially, we must consider the nature of the Authority created. Meaningful differences
exist between a public operating authority on the one hand, and a public building authority on
the other. An operating authority normally retires its debt with revenue received from
nongovernmental commercial users of the facility in question. This is not the case with a
building authority since it normally finances the construction project by borrowing funds,
renting its completed project to a state agency or unit of government, and repaying its debt
out of the rent received. It is apparent that a building authority is truly a part of the
government since it is managed by public officials and its income depends upon
governmental appropriations for rent.
The Authority created by ch. 448 is a building authority. It is designated as such, and the
significant provisions with regard to financing proposed public construction are in line with
the usual building authority schemes. For example, Sec. 12 requires each bond issued by the
Authority to state upon its face that it is payable solely from revenues derived from the
operations of buildings or facilities . . . or from the income to be derived from rental leases . .
. or both . . . [and] that it does not constitute an obligation of the State of Nevada, or of any
department, board, commission or agency thereof. . . ."
____________________

1
In 1968 the voters of this State defeated a proposed constitutional amendment to increase the debt limit
from one percent to three percent. The measure failed by 10,679 votes, 67,071 to 56,392.
thereof. . . . Thus, the bonds contemplated are not general obligation bonds of the State to
which is pledged the full taxing power. Instead, the debts to be incurred are for
self-liquidating projects to be serviced as to principal and interest entirely from revenues
generated by the project itself.
Sec. 8 provides, however, that rentals payable from a state agency may be derived from
legislative appropriations made in each biennium, or the legislature may pledge itself to make
future appropriations for rent, either in full or to the extent not defrayed by revenues. These
provisions are the essence of the financing scheme. The permissive word may, used with
regard to legislative appropriations for rent, cannot serve to disguise the basic character of the
scheme. Without question the legislature will appropriate the needed funds. If it did not do so,
the contemplated public construction for state agency use could not proceed.
[Headnote 2]
Accordingly, we are compelled to conclude that the Building Authority created by ch. 448
is truly a state agency governed ex officio by members of the State Planning Board, serving
neither private customers nor commercial income, formed to construct public buildings for
use by state agencies and deriving its income from governmental rents. It is a creature of the
legislature and can be dissolved by the legislature whenever it so desires, causing all of its
assets to revert to the State. Government funds are thus channeled for payment of the bonds
issued by the Authority. See State v. Volusia County School Bldg. Authority, 60 So.2d 761
(Fla. 1952); Hively v. School City of Nappanee, 169 N.E. 51 (Ind. 1929); State ex rel. Public
Institutional Bldg. Authority v. Griffith, 22 N.E. 2d 200 (Ohio 1939); Reynolds v. City of
Waterville, 42 A. 553 (Me. 1898). The creation of a separate body corporate does not alter the
essence of the scheme. Ayer v. Commissioner of Admin., 165 N.E.2d 885 (Mass. 1960);
State v. Yelle, 289 P.2d 355 (Wash. 1955); State Office Bldg. Comm'n v. Trujillo, 120 P.2d
434, 440 (N.M. 1941). We therefore reject as unrealistic the relator's contention that the
Nevada Building Authority is somehow to be considered an entity entirely separate and apart
from the State.
Subordinately, the relator contends that the financing proposal embodied in ch. 448 is
nonetheless constitutionally sound. The proposal does not create state debts, according to the
relator, since it falls within recognized exceptions to the constitutional proscription. We do
not agree, and turn briefly to discuss these exceptions and our reasons for finding them
inapposite to the issue before us.
to discuss these exceptions and our reasons for finding them inapposite to the issue before us.
[Headnote 3]
b. The special fund exception. As already stated, Sec. 12 contemplates that the bonds
shall be serviced from revenues generated by the project itself. To the extent that such
revenues are derived from a nongovernmental source, or from rentals paid by a state agency
which in turn derives rent paying income from user fees, a State public debt within the
meaning of the constitution is not created. The nongovernmental user supplies the special
fund from which the bondholders receive their pay, and the Authority merely acts as an agent
to collect the revenues. See Quill v. City of Indianapolis, 23 N.E. 788, 790 (Ind. 1890);
Attorney Gen. ex rel. Eaves v. State Bridge Comm'n, 269 N.W. 388 (Mich. 1936), where the
bonds were serviced by revenues supplied by the users of a toll bridge; McClain v. Regents of
the University, 265 P. 412 (Ore. 1928), where the bonds for the construction of a university
dormitory were to be paid from rentals charged student users; State v. New Mexico State
Authority, 411 P.2d 984 (N.M. 1966), where the bonds for the construction of a state park
were to be paid from user fees. In such a case the nongovernmental user is the debtor rather
than the State.
[Headnote 4]
This exception simply is not available if the government obligates itself to contribute to
the fundto supplement it with tax receipts since, in such case, the government has exceeded
its role as a mere collection agent and has undertaken partial, or perhaps full payment of the
debt. See State Office Bldg. Comm'n v. Trujillo, supra, at 444, 445 (N.M. 1941); State v.
Yelle, supra. As heretofore stated, the financing proposal of ch. 448 contemplates, indeed
requires, legislative appropriations if public construction is to go forward. The special fund
exception is, therefore, inapplicable.
[Headnote 5]
c. The earned installment doctrine, or the executory contract exception. The relator
argues that should the legislature pledge itself to make future appropriations for rent in order
to service the bonds issued by the Authority, such a pledge would fall within the executory
contract exception and thereby avoid the constitutional debt limit. The essence of this
doctrine is that a debt is not created until the consideration has been furnished. Accordingly,
so the relator's argument goes, were the legislature to pledge itself to make future
appropriations for rent as authorized by Sec.
appropriations for rent as authorized by Sec. 8, a debt within art. 9, 3 is not created since the
rentals to be paid by the state agency leasing the facility out of such appropriated funds do not
become debts until and as the building is used. In short, a debt is not created at the time the
legislative pledge is made.
Such a legislative pledge presents this question. Is the pledge to be deemed one for the
aggregate amount over the period of the duration of the long term lease to the state agency, or
merely a pledge for the amount due on the biennium's allocable portion of the aggregate? In
our view, realism demands that the indebtedness is immediately created for the aggregate
amount required by the period of the pledge. Were the State to pledge its taxing power as
security for the bonds payable in the future, such a pledge would fall squarely within art. 9,
3. Surely a pledge to make future appropriations for rent out of tax revenues must be similarly
treated. A present debt is created by such a legislative pledge. To view the matter otherwise
would exalt form over substance and impair the integrity of our constitutional government.
2

[Headnote 6]
d. The current revenue doctrine. The legislative appropriations for rent may, under Sec.
8, be for a single biennium as contrasted with a legislative pledge to appropriate funds for
rent during the full term of the lease and of the bonds issued by the Authority. Normally,
there is no constitutional concern with expenses payable out of current revenue. Such
expenses are not debts within art. 9, 3. State ex rel. Ash v. Parkinson, 5 Nev. 15 (1869). The
constitutional concern is to limit commitment of future revenues. Therefore, argues the
relator, successive biennial appropriations for rent are to be equated with expenses of
government payable out of current revenue, and for that reason, are not countable against the
State debt limit. The argument carries some persuasive force. Within the context of the public
building program involved, however, it is our view that successive biennial appropriations for
rent until the bonds issued by the Authority are fully retired must be considered in the same
light as a legislative pledge to make future appropriations for the same purpose. It is
inconceivable that the legislature would default in either instance since the good faith of
Nevada would not allow it.
____________________

2
The case of Walla Walla v. Walla Walla Water Co., 172 U.S. 1 (1898), the leading decision on the
executory contract exception upon which the relator relies, has application only where there is no express
agreement to appropriate money in the future.
instance since the good faith of Nevada would not allow it. See also State Office Bldg.
Comm'n v. Trujillo, supra, at 448.
[Headnote 7]
2. Ch. 448 is an amendment to Title 27 of NRS and is subject to the rule of severability.
See Vol. 1 NRS, p. XXIII, 6. We are unable to separate the financing provisions of the Act.
They are inextricably intertwined. We hold that the financing proposal of ch. 448, when
considered as a whole, falls within the proscription of Nev. Const. art. 9, 3, and is
unconstitutional. The petition for mandamus is denied, and this proceeding is dismissed.
____________
86 Nev. 317, 317 (1970) Maes v. Sheriff
LOUIS MAES, OSCAR MARTINEZ, and CIPRIANO PAYAN, Appellants, v. SHERIFF,
No. 6109
April 22, 1970 468 P.2d 332
Appeal from order of the Eighth Judicial District Court, Clark County, denying habeas
relief; Clarence Sundean, Judge.
The Supreme Court, Thompson, J., held that where prior complaint charging rape was
dismissed by magistrate for failure of state to show good cause for continuance of preliminary
examination after being given opportunity to do so, state could not file second complaint
charging same offense.
Reversed, petition for habeas corpus granted and defendants are discharged from
restraint.
Criminal Law.
Where prior complaint charging rape was dismissed by magistrate for failure of state to show good cause
for continuance of preliminary examination after being given opportunity to do so, state
could not file second complaint charging same offense.
of preliminary examination after being given opportunity to do so, state could not file second complaint
charging same offense. NRS 171.196, subd. 2, 173.035, subd. 2, 178.562, subd. 2.
OPINION
The issue presented to us is whether the State may file a second criminal complaint against
the defendants charging them with the identical offense charged in a prior complaint which
was dismissed by the magistrate for failure of the State to show good cause for continuance of
a preliminary examination after being given an opportunity to do so. The district court
resolved that issue against the defendants-appellants, denied their request for habeas relief,
and this appeal followed. For reasons hereafter stated we reverse the district court, grant the
petition for habeas and discharge the defendants from restraint.
The defendants were charged with the crime of rape. Following their arrest and upon their
appearance in court, the magistrate scheduled a preliminary hearing to commence at 9 a.m. on
August 21, 1969. When that time arrived, the prosecutor advised the magistrate that a
subpoena had been issued for service upon the prosecutrix, but that she had not been found.
He then requested an opportunity to present a motion for continuance with supporting
affidavit as required by Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918 (1969).
1
The magistrate
accommodated the prosecutor and postponed the proceeding until 2 p.m. When the case was
called at 2 p.m., the State was not prepared to proceed. Neither did it move for a continuance
nor submit the promised supporting affidavit. The defendants moved to dismiss the
complaint, and their motion was granted.
Six days later the defendants were again charged with the identical offense by a second
complaint.
____________________

1
In Hill, supra, we wrote: The statute [NRS 171.196(2)] demands that good cause' be shown. The reasons
underlying D.C.R. 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.
identical offense by a second complaint. They immediately petitioned the district court for
release via habeas corpus. Their petition was premised on the ground that they had not
received a preliminary examination within 15 days from the time they originally appeared
before the magistrate on the first complaint [NRS 171.196(2)] and that the State had not
shown good cause for its failure to proceed with such preliminary examination.
2
They also
called to the attention of the district court our decision in Oberle v. Fogliani, 82 Nev. 428,
420 P.2d 251 (1966), in which there appears strong dictum that a dismissal may not be used
as a device to secure the delay of a hearing. It is true, of course, that in Oberle, supra, the
State dismissed and refiled. Here, the dismissal was upon defendants' motion. In each case,
however, the State could have protected itself against dismissal and willfully failed to do so.
We must first consider the implications of NRS 178.562(2) which provides that the
discharge of a person accused upon preliminary examination shall be a bar to another
complaint against him for the same offense, but shall not bar the finding of an indictment or
the filing of an information.
This statute contemplates a dismissal following a preliminary examination where evidence
is received and the magistrate has concluded that such evidence is insufficient to hold the
accused for trial. In such instance, the statute allows the matter to be presented to a grand jury
in an attempt to secure an indictment, or the district attorney to prepare the affidavit
mentioned in NRS 173.035(2) and, with leave of court, file an information. The statute thus
provides a safety valve against an arbitrary or mistaken decision of the magistrate.
Since a preliminary hearing did not occur in the case at hand, it is contended that the
statute does not preclude the filing of a second criminal complaint for the same offense.
Although NRS 178.562(2) may not have been intended to bar a second criminal complaint in
the circumstances before us, basic fairness does bar such a procedure. A new proceeding for
the same offense (whether by complaint, indictment or information) is not allowable when the
original proceeding has been dismissed due to the willful failure of the prosecutor to comply
with important procedural rules.
Here, the prosecutor requested an opportunity to present a motion for continuance with
supporting affidavit as required by our decision in Hill v. Sheriff, supra.
____________________

2

NRS 171.196(2) 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. Unless the defendant waives
counsel, reasonable time shall be allowed for counsel to appear.
our decision in Hill v. Sheriff, supra. He was given that opportunity and willfully failed to
utilize it. We cannot condone such conduct. Were we to do so, the directives of Hill v.
Sheriff, supra, and Oberle v. Fogliani, supra, would be meaningless.
Reversed.
____________
86 Nev. 320, 320 (1970) Wilson v. State
STANLEY WILSON, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 5959
April 23, 1970 468 P.2d 346
Appeal from a conviction of murder in the first degree. Eighth Judicial District Court,
Clark County; John F. Mendoza, Judge.
The Supreme Court, Batjer, J., held that dying declaration of shooting victim was
admissible without prosecution proving, beyond reasonable doubt, that declarant believed in
an Almighty Being and a life hereafter, even though testimony tended to prove that the victim
was a pimp.
Affirmed.
Franklin Rittenhouse and Foley, Garner & Shoemaker, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, George
H. Spizzirri, and Larry C. Johns, Deputy District Attorneys, Clark County, for Respondent.
1. Homicide.
Once trial judge reasonably finds from the evidence in criminal case that there is sufficient foundation to
admit dying declaration, then statement is presented to jury to be considered and weighed along with
credibility of the declarant.
2. Homicide.
Generally, accused during presentation of his defense is free to introduce whatever relevant evidence may
be available to establish that declarant was person of dissolute and immoral character and in that manner
discredit dying declaration.
3. Homicide.
Dying declarations are competent evidence for or against accused, upon preliminary proof of certain
existing conditions.
Under constitutional provision concerning free exercise and enjoyment of religious profession and
worship, courts are precluded from adopting any rule that would impinge upon liberty of conscience and
that applies equally to the dead as well as to the living. Const. art. 1, 4.
5. Homicide.
Once prosecution has clearly established that declarant is in extremis and he is aware of that status, his
statement is admissible, as exception to hearsay rule, to be considered by jury.
6. Homicide.
After dying declaration has been presented to jury, accused then has wide latitude in impeaching
declarant and discrediting his dying statement, but the ultimate fact and the weight, credence and
significance to be given his statement are for the jury.
7. Homicide.
Dying declaration of shooting victim was admissible without prosecution proving, beyond reasonable
doubt, that declarant believed in an Almighty Being and a life hereafter, even though testimony tended to
prove that victim was a pimp.
8. Criminal Law.
Prosecutor's asking one of defendant's witnesses if he had ever been convicted of a felony, to which
witness replied in the negative, and cross-examination of defendant inferring that defendant was pimp were
not so inherently unfair or damaging as to require trial court to sua sponte preclude them and, in absence of
defendant either objecting to questions or moving to strike them from the record, objection to them on
appeal was not a proper assignment of error.
9. Criminal Law.
When criminal defendant fails to specifically object to questions asked or to testimony elicited during
trial, but complains about them in retrospect upon appeal, Supreme Court does not consider his contention
as a proper assignment of error.
OPINION
At approximately 3:15 a.m., on December 8, 1967, Henry Feltus was struck with a blast
from a shotgun. He died at approximately 4:30 a.m., that same morning. The appellant was
accused of killing Feltus; tried before a jury; convicted of order in the first degree; and
sentenced to life imprisonment without the possibility of parole. This appeal is taken from
that conviction.
During the early morning of December 8, 1967, Feltus was at Ruben's Supper Club in Las
Vegas, Nevada. The appellant entered the establishment, approached Feltus and indicated he
wanted to converse with him outside the premises.
At the trial, witnesses testified that they had observed the appellant and Feltus leave by the
back door of Ruben's, and that within a matter of seconds they heard what was thought to be a
gunshot. Cleveland Ramsey stated that shortly after he heard the gunshot he observed Feltus
come back into the club through the back door. At that time Feltus was holding his side with
his hand, blood was gushing out between his fingers, and his clothes were covered with blood
from his chest to his feet. As Feltus made his way to the bar, Dorothy Mae Willings rushed to
help him, and he said to her, Oh, Baby, I've been shot, and fell to the floor near the bar.
Ramsey testified that Feltus had a large hole in his right chest area. Vera Maxine Bullock, the
wife of one of the co-owners of the club asked Feltus who had shot him. After he was given a
drink of brandy Feltus answered that Stan had shot him. At approximately 3:30 a.m., Merlin
John Dingle, an officer of the Las Vegas Police Department, arrived at the scene. The officer
observed that Feltus, who was covered with blood from the top of his chest to his shoes, was
moaning, gasping and thrashing around on the floor; that there were large quantities of blood
pouring from a wound in his chest; and that it took three men to hold him down. Officer
Dingle knelt down and stated, Henry, this is Dingle. Who shot you? Feltus responded,
Stan. This response was given two or three times. Officer Dingle then asked, Do you mean
Stanley Wilson? The declarant nodded his head yes, and went Um, hum.
Further attempts at conversation failed to evoke intelligible responses. Feltus died at 4:30
a.m., at the Southern Nevada Memorial Hospital. Dr. John C. Bovill testified that Feltus
[H]ad an obvious open massive wound of the right chest and you could see into the right
chest, which is a little unusual. The doctor further testified that Feltus was conscious after he
had arrived at the hospital and concluded that Feltus had the type of wound that frequently
would cause death.
The trial court conducted a hearing, outside the presence of the jury, where the state's
witnesses testified to facts surrounding the dying declaration of Feltus. After that hearing the
trial court concluded that the declaration was made when Feltus was in extremis; that he was
conscious of that condition, and that the state had laid a sufficient foundation for the
presentation of the dying declarant's testimony. Ex parte Wheeler, 81 Nev. 495, 406 P.2d 713
(1965); State v. Teeter, 65 Nev. 584, 200 P.2d 657 (1948); State v. Scott, 37 Nev. 412, 142 P.
1053 (1914). Over the appellant's objection the state's witnesses were then allowed to
repeat the testimony before the jury.
state's witnesses were then allowed to repeat the testimony before the jury.
The appellant contends that the trial court erred when it admitted such declarations into
evidence. He further contends that the prosecutor committed reversible error when he asked
one of the appellant's witnesses whether or not he had been convicted of a felony without
having acceptable proof of that fact, and that an additional error was committed when the
prosecutor, upon cross-examination of the appellant, asked a question which indicated that
the appellant was a pimp.
The appellant conceded that the declarant was in extremis and realized that he was dying
when he stated that the appellant had shot him. He further concedes that the trial court
properly followed and applied the law of this state when it allowed testimony of the dying
declaration before the jury, but he contends that the trial court erred when it did not require
the prosecution to affirmatively prove, beyond a reasonable doubt, that the declarant believed
in an Almighty Being and a life hereafter. The appellant insists that this requirement be added
in this case because testimony was presented which tended to prove that the victim was a
pimp.
[Headnote 1]
The appellant is asking this court to establish an additional rule which would require the
state to prove, through the introduction of affirmative evidence, that the presumption of
truthfulness raised by the declarant's awareness of impending death is believable beyond a
reasonable doubt. This we refuse to do. He misconceives the function of the court and jury.
Once the trial judge reasonably finds, from the evidence, that there is a sufficient foundation
to admit the dying declaration, then the statement is presented to the jury to be considered and
weighed along with the credibility of the declarant.
[Headnote 2]
As a general rule an accused, during the presentation of his defense is free to introduce
whatever relevant evidence may be available to establish that the declarant was a person of
dissolute and immoral character and in that manner discredit the dying declaration. Here the
appellant did introduce testimony discrediting the victim, but because it was apparently
discounted or disregarded by the jury, he asks us to impose upon the prosecution a burden of
proof unheard of in the common law and unsupported by any authority, although he purports
to rely on Barber v. Page, 390 U.S. 719 (1968).
[Headnote 3]
It has long been the established law in this state that dying declarations are competent
evidence for or against the accused, upon preliminary proof of certain existing conditions. In
State v. Scott, 37 Nev. 412, at 429, 142 P. 1053, at 1059 (1914), this court said: The
question whether the alleged dying declarations were made under such circumstances as to
render them admissible in evidence was in the first instance to be determined by the court
upon the preliminary proof or predicate for their admission. All that was required to let the
statements go to the jury was the making of a prima facie case that the utterances were made
by the declarant when he was in extremis, and when he was fully conscious of that condition.
However this may be, the ultimate facts and the weight, credence, and significance to be
given to the statement when admitted is for the jury, and it is error to remove this question
from their consideration. People v. Thomson, 145 Cal. 717, 79 P. 435; State v. Hendricks,
172 Mo. 654, 73 S.W. 194; 21 Cyc. 987.
In State v. Teeter, supra, a case where the facts were very similar to the case at hand,
although the declarant lived for several days after he received the fatal wound, this court said:
The authorities, very generally, hold that for a court properly to conclude that the declarant
making the statement believed death was impending, it is not necessary for the declarant to
state to anyone, expressly, that he knows or believes he is going to die, or that death is certain
or near, or to indulge in any like expression; . . . . It is sufficient if the wounds are of such a
nature that the usual or probable effect upon the average person so injured would be mortal;
and that such probable mortal effect is not hidden, but, from experience in like cases, it may
be reasonably concluded that such probable effect has revealed itself upon the human
consciousness of the wounded person, so that he knows, or strongly believes, that death
impends. Wharton's Criminal Evidence, eleventh edition, sec. 530, pp. 852-854, and the many
cases cited.
[Headnote 4]
Fundamentally we are precluded by the Nevada Constitution, Art. 1, Sec. 4,
1
from
adopting any rule that would impinge upon the liberty of conscience and this applies
equally to the dead as well as to the living.
____________________

1
Nevada Constitution, Art. 1, Sec. 4: The free exercise and enjoyment of religious profession and worship
without discrimination or preference shall forever be allowed in this State, and no person shall be rendered
incompetent to be a witness on account of his opinions on matters of his religious belief, but the liberty of
consciene [conscience] hereby secured, shall not be so construed, as to excuse acts of licentiousness or justify
practices inconsistent with the peace, or safety of this State.
impinge upon the liberty of conscience and this applies equally to the dead as well as to the
living.
In Barber v. Page, supra, cited by the appellant, the United States Supreme Court quotes
with approval from Mattox v. United States, 156 U.S. 237, 242-243.
We quote with approval from a different part of that same case (Mattox v. United States,
supra, 243-244): The law in its wisdom declares that the rights of the public shall not be
wholly sacrificed in order that an incidental benefit may be preserved to the accused.
We are bound to interpret the Constitution in the light of the law as it existed at the time
it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as
securing to every individual such as he already possessed as a British subjectsuch as his
ancestors had inherited and defended since the days of Magna Charta. Many of its provisions
in the nature of a Bill of Rights are subject to exceptions, recognized long before the adoption
of the Constitution, and not interfering at all with its spirit. Such exceptions were obviously
intended to be respected. A technical adherence to the letter of a constitutional provision may
occasionally be carried farther than is necessary to the just protection of the accused, and
farther than the safety of the public will warrant. For instance, there could be nothing more
directly contrary to the letter of the provision in question than the admission of dying
declarations. They are rarely made in the presence of the accused; they are made without any
opportunity for examination or cross-examination; nor is the witness brought face to face
with the jury; yet from time immemorial they have been treated as competent testimony, and
no one would have the hardihood at this day to question their admissibility. They are admitted
not in conformity with any general rule regarding the admission of testimony, but as an
exception to such rules, simply from the necessities of the case, and to prevent a manifest
failure of justice. As was said by the Chief Justice when this case was here upon the first writ
of error, (146 U.S. 140, 152,) the sense of impending death is presumed to remove all
temptation to falsehood, and to enforce as strict an adherence to the truth as would the
obligation of an oath.
[Headnotes 5-7]
The High Court has clearly indicated that once the prosecution has clearly established that
the declarant is in extremis and he is aware of that status, his statement is admissible, as in
exception to the hearsay rule, to be considered by the jury. After the dying declaration has
been presented to the jury, the accused then has wide latitude in impeaching the declarant
and discrediting his dying statement, but the ultimate fact and the weight, credence and
significance to be given to the statement is for the jury.
accused then has wide latitude in impeaching the declarant and discrediting his dying
statement, but the ultimate fact and the weight, credence and significance to be given to the
statement is for the jury.
[Headnote 8]
We now turn to the appellant's contention that the prosecutor committed reversible error,
first when he asked one of the appellant's witnesses if he had ever been convicted of a felony,
to which the witness replied in the negative; secondly, when upon cross-examination one of
his questions posed to the appellant inferred that the appellant was a pimp. When those
questions were asked, during the trial, the appellant neither objected to them, nor moved to
strike them from the record. The trial court was given no opportunity to rule on their propriety
or admissibility. Neither question was so inherently unfair or damaging as to require the trial
court to sua sponte preclude them.
[Headnote 9]
When an appellant fails to specifically object to questions asked or testimony elicited
during trial, but complains about them, in retrospect upon appeal, we do not consider his
contention as a proper assignment of error. Wyatt v. State, 86 Nev. 294, 468 P.2d 338 (1970);
Cross v. State, 85 Nev. 580, 460 P.2d 151 (1969); Cranford v. State, 76 Nev. 113, 349 P.2d
1051 (1960); State v. Ceja, 53 Nev.272, 298 P. 658 (1931).
Appellant's counsel were appointed to prosecute this appeal. We direct the trial court to
give each of them the certificate specified in NRS 7.260(3), to enable them to receive
compensation for their services rendered on appeal.
____________
86 Nev. 326, 326 (1970) Hesse v. Ashurst
HENRY HESSE and THELMA HESSE, Appellants, v.
MARVIN KENT ASHURST, Respondent.
No. 6006
April 23, 1970 468 P.2d 343
Appeal from order granting writ of habeas corpus; First Judicial District Court, Ormsby
County; Richard L. Waters, Jr., Judge.
Child custody proceeding. The district court entered order granting father's habeas petition
and ordering that custody of children be placed with father, and maternal grandparents
appealed. The Supreme Court, Mowbray, J., held that best interests of two children would be
best served by placing care and custody of children with maternal grandparents, who were in
their late forties, and who were well qualified to provide for care of two children, rather than
with father, who left invalid wife prior to her death, who did not advise anyone he had left,
who ceased visiting sons prior to wife's death, who did not visit sons at Christmas time nor
when one son was hospitalized for eye operation, who never requested custody of children
prior to filing habeas petition, who would pay only $50 for support of sons, who had gone out
with other women, infected wife with gonorrhea, and cashed bad checks and who, in wife's
will, was specifically excluded as guardian.
[Rehearing denied May 28, 1970]
Laxalt, Bell, Berry, Allison & LeBaron, of Carson City, for Appellants.
Diehl, Recanzone & Evans, of Fallon, for Respondent.
Parent and Child.
Evidence established that best interests of two children would be served by placing care and custody of
children with maternal grandparents, who were in their late forties and who were well qualified to provide
for care of children, rather than with father, who left invalid wife prior to her death, who did not advise
anyone he had left, who ceased visiting sons prior to wife's death, who did not visit sons at Christmas time
nor when one son was hospitalized for eye operation, who never requested custody of children prior to
filing habeas petition, who would pay only $50 for support of sons, who had gone out with other women,
infected wife with gonorrhea, and cashed bad checks and who, in wife's will, was specifically excluded as
guardian.
OPINION
Henry Hesse and his wife, Thelma Hesse, have appealed to this court from an order of the
district court granting respondent Marvin Kent Ashurst's habeas petition, in which he sought
and was awarded the custody of his two minor sons, Michael Kent, aged 5, and Neal Scott,
aged 4.
Kent, aged 5, and Neal Scott, aged 4. The children and their mother, Judy, who had been
severely injured in an auto accident, had been living for many months with the Hesses, Judy's
parents. Judy became a paraplegic, and she died on March 31, 1969. On April 2, 1969, the
First Judicial District Court issued temporary letters of guardianship to the Hesses, and the
court awarded them the care, custody, and control of the minor children.
1
Thereafter, their
natural father, Marvin Kent Ashurst, filed this habeas proceeding in district court, and the
district judge ordered that the custody of the children be removed from the Hesses and placed
with Ashurst. Hence, this appeal. We reverse, and we order that the custody of the children be
returned to the Hesses pursuant to their letters of guardianship.
1. Factual Background.
Marvin Kent Ashurst and Judy Hesse were married on February 1, 1963. They had two
sons, Michael and Neal. They had several residences in and about Carson City. In February
1967 they moved into a two-story home at 412 Thompson Street. Their marriage was not a
happy one, and there were periods of separation. In May 1967 Judy met with a tragic accident
and became a paraplegic. During Judy's initial hospitalization, lasting until August 1967, the
Hesses cared for the children in their home in Carson City, with no financial support from
respondent Ashurst. In August the family returned to their home at 412 Thompson Street and
lived together until October, when Ashurst abandoned the home. Because of her condition,
Judy was unable to care for the children in the two-story house; so she and the boys moved in
October into the Hesses' home. They were together until December 1968, when Judy returned
to the hospital, where she remained until her death. The children have lived with the Hesses
until this present habeas writ was issued. Although Ashurst visited the boys on occasion after
he left Judy in October 1967, his visits became less frequent and had finally ceased some
time prior to Judy's death.
____________________

1
In her will, Judy had nominated the Hesses as guardians of her sons. The will provided in part:
I hereby nominate as the guardians of the person and estate of my sons during their minority, my father and
mother, Mr. and Mrs. Henry Hesse, Carson City, Nevada, or the survivor of them, to serve without bond.
I specifically request that my former husband, Marvin Kent Ashurst not be appointed guardian of my
children, or either of them, and that he not be granted custody of said children or either of them, it being my
knowledge and firm belief that he is an unfit person to be the guardian of said children under any
circumstances. (Emphasis in original.)
less frequent and had finally ceased some time prior to Judy's death. The Hesses provided for
the children and cared for them as their own.
2
Ashurst did not visit the children at Christmas
time nor when Michael had an eye operation and was hospitalized.
3
Nor did Ashurst ever
request custody of the children until he filed his habeas petition.
4
In July 1968, after repeated
demands by Ashurst, Judy consented to a divorce. Ashurst remarried 7 days later. In the
divorce proceedings Judy received custody of the children, and Ashurst agreed to pay her $50
a month for the support of each child, and no more.
5
2.

____________________

2
Q [by Peter D. Laxalt, attorney for appellants] During that period of time, that is from October of 1967 up
to and including the present date, who has been responsible for the support, care and clothing of those children?
A [by appellant Thelma Hesse] Hank [her husband, appellant Henry Hesse] and I.
Q How many times did Kent [respondent Ashurst] come to visit the children once he took the job there in
Hawthorne [Hawthorne, Nevada, 127 miles from Carson City]?
A When he first went over there he came about every week. And then his visits got to be about every two
weeks. And then they got so that once a month we were lucky to see him. And after March he didn't come at all.
Q After March of 1969?
A 1968.

3
Q [by Mr. Laxalt] During the period of time that Judy was still alive did Michael have an eye problem?
A [by Mrs. Hesse] Yes, he was born with ptosis of the eye lid.
Q Did that require surgical procedure?
A Yes, it did.
Q Do you know when that was performed?
A Yes, I do, it was December 13, 1968.
Q Was that performed in a hospital?
A Yes, in Washoe Medical [Reno].
. . . .
Q What period of recuperation did he have?
A Well, he had to wear a patch over his eye for about two weeks.
Q During that entire period of time, that is, from the moment he entered the hospital through the
recuperation period, did Kent Ashurst come to see him?
A Not to my knowledge, no.

4
Q [by Mr. Laxalt] During the entire period of time from May of 1967, the date of Judy's accident, up until
he filed this petition in this matter, did he ever demand that you release the children to his care and custody?
A [by Mrs. Hesse] Never did.

5
Q [by Mr. Laxalt] He stated to you [Robert Gaynor Berry of the Laxalt law firm] that if the child support
level were over $50 a month he would disappear?
A Yes.
2. Parental Preference.
We laid down the guide line in McGlone v. McGlone, 86 Nev. 14, 464 P.2d 27 (1970),
that a fit parent is to be preferred over nonparents in child custody cases and that custody may
not be given to a nonparent unless the parent is found to be unfit. We have concluded, based
on the record that was received in the habeas hearing and is now before us, that the
presumption of parental preference as a matter of law has been overcome in this case. Ashurst
abandoned Judy and his two sons when he left her alone to care for them, which she was
physically unable to do, in their two-story residence. And he did not even advise anyone that
he had left her.
6
Ashurst's attitude and conduct toward his children thereafter was one of
callous indifference and abandonment. Until after Judy's death, he was perfectly content that
his sons' care and custody remain with the Hesses. He excuses his indifference on the ground
that he did not feel welcome in the presence of the Hesses. Yet the record fails to support his
explanation.
7
Rather, the record indicates that Ashurst was content to go it alone, as far as
his family was concerned. He went out with other women.
8
He infected Judy with
gonorrhea.9 He cashed bad checks.10 Placed alongside these qualifications of parental
fitness, we have the candid statement of counsel for respondent that the Hesses are well
able to care for the two young boys:
____________________

6
Q Who did you telephonewhen you left her in that house a paraplegic in a wheelchair with the children,
who did you telephone to say that you were leaving?
A I don't remember.
Q You didn't telephone a soul, did you?
A I don't remember whether I did or not.

7
Q [by Mr. Laxalt] Did Mr. Hesse ever even raise his voice to you?
A [by respondent] No, he did not.
Q Did Mrs. Hesse?
A No, she did not.
Q What did they ever do to you to indicate that you weren't welcome in that house to see Judy and those
children?
A Do they have to do anything, can't you just take a feeling?
Q What did they do?
A Nothing specifically, I just got a general feeling.

8
Q [by Mr. Laxalt] How many women did you go with between the time of the accident and the time of the
divorce, Kent?
A [by respondent] What do you mean go with'?
Q How many women were you going out with during the time that you were married, one, two, three, four,
five?
A Nobody steadily. Occasionally I had female companionship, yes.
Q But without the knowledge of your wife?
A That is true.
infected Judy with gonorrhea.
9
He cashed bad checks.
10
Placed alongside these
qualifications of parental fitness, we have the candid statement of counsel for respondent that
the Hesses are well able to care for the two young boys:
Mr. Diehl: We would suggest to the court at this time that at no time during the course of
these proceedings did we question the fitness of the maternal grandparents as far as caring for
these children. I think they proved themselves to be devoted as far as parents to their own
children were concerned and of course indeed devoted as far as their grandchildren are
concerned.
The record supports counsel's forthright admission regarding the fitness qualifications of
the Hesses. They are comparatively young grandparents, in their late 40's, and they are well
qualified to provide for the care and custody of the two children.
We conclude that the presumption of parental preference in this case has been overcome.
The record presents conclusive evidence of respondent's unfitness.
____________________

9
Q [by Mr. Laxalt] How many times have you had a venereal disease, Kent?
A [by respondent] Once.
Q Gonorrhea?
A Yes.
Q When was it?
A It was in '67, early part of '67.
Q You infected your wife with it, didn't you?
A Well, I don't know whether I did or not.
Q Well, you know as a matter of fact that she went to Reno to be treated by Dr. Wolf, don't you?
A Yes, I do.
Q Then you know she was infected, don't you?
A I will state yes, that she was infected.
Q Where did you pick up this disease, if you know?
A I don't know.
Q You told her you picked it up from a toilet seat?
A Yes.
Q In January or February of 1968 did you have yourself sterilized?
A Yes, I did.

10
Q [by Mr. Laxalt] As a matter of fact, you have cashed bad checks at casinos throughout western Nevada
for gambling, haven't you?
A [by respondent] Yes, I have.
Q On at least five occasions?
A I don't roughly know the count but that could be close.
Q It got to the point where your wife took you off the bank account, is that correct?
A I think in that case I asked myself to have her take me off the bank account, in fact I volunteered.
evidence of respondent's unfitness. In the final consideration, the best interests of the children
remain paramount. NRS 125.140; Cooley v. Cooley, 86 Nev. 220, 467 P.2d 103 (1970);
Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969); Timney v. Timney, 76 Nev. 230, 351
P.2d 611 (1960). We believe that those interests will best be served in this case by placing the
care and custody of the two children with the Hesses. We therefore reverse the order of the
district court granting habeas, and we remand the case to the district court with instructions to
enter an appropriate order directing the respondent to deliver the children to the appellants,
pursuant to their letters of guardianship.
____________
86 Nev. 332, 332 (1970) Choat v. McDorman
ROY F. CHOAT, Sr., Appellant, v. JOHN E. MCDORMAN, DOROTHY MCDORMAN,
LEONARD J. SCHWEITZER and JOYCE N. SCHWEITZER, Respondents.
No. 5869
April 24, 1970 468 P.2d 354
Appeal from (1) judgment entered upon a jury verdict, (2) an order denying appellant's
motion for a new trial, and (3) an order denying a motion for leave to renew the motion for a
new trial. First Judicial District Court, Lyon County; Frank B. Gregory, Judge.
Motorist who struck automobile stopped in traveled lane of highway brought action
against driver of the stopped automobile and his wife and also against driver of another
automobile which had been stopped on opposite shoulder of road with its headlights burning
and against that driver's wife. From the judgment of the district court the motorist appealed.
The Supreme Court, Batjer, J., held that highway patrolman's estimate of motorist's speed
prior to impact based solely on his observation of the resultant damage to automobiles
involved in the collision was inadmissible.
Reversed.
Diehl, Recanzone and Evans, of Fallon, for Appellant.
Goldwater, Taber, Hill and Mortimer, of Reno, for Respondents McDormans.
Guild, Guild and Cunningham, of Reno, for Respondents Schweitzers.
1. Evidence.
An expert witness may not testify as to the speed of a vehicle prior to impact based solely on the resulting
damage to the vehicles involved in the collision.
2. Evidence.
Fact that a witness may be qualified as an expert does not automatically qualify him to give an opinion
necessarily based on facts beyond his knowledge even though the opinion may be within the range of his
expertise.
3. Evidence.
Former highway patrolman's estimate of speed of automobile prior to impact was inadmissible where
testimony was based solely on patrolman's observation of the resultant damage to the vehicles involved in
the collision.
Highway patrolman's inadmissible testimony as to speed of automobile prior to collision was not of such
cumulative nature as to constitute harmless error. NRCP 61.
OPINION
All of the parties to this action celebrated New Year's Eve, December 31, 1964, at the
Mason Hotel in Mason, Nevada. The McDormans left the hotel early in the morning of
January 1, 1965, followed by the Schweitzers and the Choats. The couples proceeded, in their
respective cars, in a northerly direction on the Nordyke Road between Mason and Yerington,
Nevada. In each instance the husbands were driving. The accident out of which this case
arose occurred approximately one mile north of Mason.
The motor of the McDorman vehicle stopped, resulting in a malfunction of the power
steering, and it coasted to a stop in the right-hand lane on the main traveled portion of the
highway. The taillights of the McDorman car were on and functioning. Leonard J. Schweitzer
then came upon the stalled car, observed the taillights and swerved to avoid a collision. He
momentarily lost control of his car and it skidded into a side road. Schweitzer then drove
back along the opposite shoulder of the road to the area where the McDorman vehicle was
parked and stopped. He left his headlights on, alighted from his car and went to confront
McDorman. While Schweitzer and McDorman were engaged in a heated discussion they
heard the Choat car approaching and immediately scrambled for the borrow pit.
McDorman were engaged in a heated discussion they heard the Choat car approaching and
immediately scrambled for the borrow pit.
The Choat car struck the rear of the McDorman vehicle and drove it a distance of 85 or 90
feet. Both vehicles were severely damaged. Appellant, his wife, and Dorothy McDorman
(Dorothy Imus at the time of the trial) were injured. Mrs. Choat died a few days later as a
result of injuries which she received in the accident.
On September 16, 1966, the appellant filed a complaint against the respondents for
damages sustained by him as a result of the accident. The matter was set for trial and on
August 19, 1968, the jury returned a verdict in favor of the respondents.
The appellant filed a motion for a new trial and stay of execution of judgment pending
disposition thereof upon the same grounds that are before this court on assignments of error.
That motion was denied. On December 2, 1968, the appellant filed a motion for leave to
renew the motion for a new trial under District Court Rule 20(4).
1
This motion was also
denied by the district court.
The appellant contends that the respondents failed to produce sufficient evidence to prove
him guilty of contributory negligence; that the trial court erred when it permitted an officer,
who had investigated the accident, to testify relative to the speed of the appellant's vehicle at
the time of impact; that the jury manifestly disregarded the instructions of the trial court; and,
that the trial judge committed prejudicial error by discussing aspects of the case with the
foreman of the jury in the absence of counsel.
William Stromer, a former highway patrolman, was called as a witness by the appellant
and he testified that he arrived at the scene of the accident approximately ten (10) minutes
after the collision between the Choat and McDorman vehicles; that he investigated the
accident; determined the point of impact and assisted a local police officer with some
measurements. He further testified that he had been a patrolman with the Nevada State
Highway Patrol for seven years; that he had been enrolled in a ten day advanced accident
investigation course in November, 1961, at the California Highway Patrol Academy and had
"done quite a bit of reading on my own;" that he had received some on-the-job training
and had been to several F.B.I. schools where they touched upon the subject of accident
investigation and that he had investigated in excess of six hundred accidents.
____________________

1
District Court Rule 20(4): No motion once heard and disposed of shall be renewed in the same cause, nor
shall the same matters therein embraced be reheard, unless by leave of the court granted upon motion therefor,
after notice of such motion to the adverse parties.
done quite a bit of reading on my own; that he had received some on-the-job training and
had been to several F.B.I. schools where they touched upon the subject of accident
investigation and that he had investigated in excess of six hundred accidents. However, after
he was called as a witness by the respondents, and upon voir dire examination, he admitted
that he had made no measurement of the skid marks made by the Choat vehicle; that he made
no measurement of the road grade; nor any particular computations; and that he did not know
if the brakes were set on the McDorman car or if it was in gear when it was struck. He further
testified that he did not know or determine the weight of the vehicles involved, but believed
that their weight would have some bearing on the resulting damage, and that his estimate of
speed would be based on the resulting damages to the vehicles weighed in light of his
experience as a highway patrolman. He also stated that he had never before been called upon
to estimate the speed of a vehicle based only on a view of the resulting damage, and admitted
that he did not feel qualified to testify as to the speed of the Choat vehicle before impact.
The trial court found that Stromer was qualified to estimate the speed of the Choat vehicle,
and by permitting him to testify, in effect ruled, as a matter of law, that a qualified witness
may testify as to the speed of a vehicle before impact based solely on the resulting damage.
[Headnote 1]
We do not decide whether the trial court abused its discretion when it found Stromer to be
qualified to testify as to the speed of the Choat vehicle before impact, because we find that an
expert witness may not testify as to the speed of a vehicle prior to impact based solely on the
resulting damage to the vehicles involved. Montgomery v. Hyatt, 282 P.2d 277 (Wash. 1955);
Flores v. Barlow, 354 S.W.2d 173 (Tex. 1962); Bailey v. Rhodes, 276 P.2d 713 (Ore. 1954).
[Headnote 2]
Just because a witness may be qualified as an expert does not automatically qualify him to
give an opinion necessarily based on facts beyond his knowledge even though the opinion
may be within the range of his expertise. In Levine v. Remolif, 80 Nev. 168, 390 P.2d 718
(1964), this court held that the testimony of an expert who had never examined the wrecked
vehicles, as to their speed at the time of the accident, was properly stricken when based
entirely on photographs of vehicles and certain diagrams made after the accident because
the photographs could not disclose damage to the frames of the cars.
vehicles and certain diagrams made after the accident because the photographs could not
disclose damage to the frames of the cars.
There is a split of authority on the question of admissibility or inadmissibility of opinion
evidence as to speed based on the condition of the motor vehicle after an accident. In a
majority of the cases the testimony has been held inadmissible on the ground that the jury
could draw a conclusion from the facts as well as the witness, particularly when the opinion
of the expert was nothing more than a guess. The cases deciding the question have been
collected in 93 A.L.R.2d 187.
[Headnote 3]
Even cases where expert testimony on speed prior to impact has been admitted, factors
such as skid marks, the relative positions of the vehicles after the accident, and their
respective weights, in addition to the resulting damage, were taken into consideration.
Johnson v. Huskey, 350 P.2d 14 (Kan. 1960); Continental Oil Company v. Elias, 307 P.2d
849 (Okla. 1956). Here the witness specifically testified that he was relying solely on his
observation of the resultant damage to the vehicles involved.
In Stephanofsky v. Hill, 71 A.2d 560 (Conn. 1950), that court said: Our conclusion that
the evidence was not admissible is in accord with the very substantial weight of authority
which holds that opinion evidence as to the speed of a car at the time an accident occurred,
based on the appearance or condition of the car and the locus after the accident, is
inadmissible, upon the ground that the conclusion if given would amount to a mere guess.
Stromer's testimony and that of the appellant were the only specific estimates before the
jury, on the speed of the Choat automobile. None of the other witnesses made a specific
estimate of the speed of that vehicle although some of them did testify about its speed in
general. Although there was no speed limit on that particular section of the highway where
this accident occurred, the question of the speed of the Choat vehicle was a dominant factor
in this case. The respondents contend that the defense of contributory negligence made on
their behalf was not based on speed alone, but also on the fact that Choat failed to keep a
proper lookout; that he failed to apply his brakes; that he failed to keep proper control of his
vehicle; that he was driving at a rate of speed which prevented him from controlling and
stopping the car within the beam of his headlights. We are not persuaded by this argument.
[Headnote 4]
The trial court in two separate instructions to the jury, advised them that an operator of a
vehicle was to drive at such a rate of speed and to keep the vehicle under such control . . . to
avoid a collision. Stromer's testimony as to speed was not of such cumulative nature as to be
harmless under NRCP 61.
2

The testimony of a former highway patrolman, testifying as an expert witness, was
undoubtedly accorded considerable weight by the jury and, inasmuch as it tended to establish
the contributory negligence of the appellant it was unduly prejudicial to his case, and it was
therefore reversible error to admit it. O'Brien v. Great Northern Railway Company, 400 P.2d
634 (Mont. 1965); Montgomery v. Hyatt, supra; Flores v. Barlow, supra; Bailey v. Rhodes,
supra.
We do not reach the appellant's remaining assignments of error. The judgment is reversed
and this case is remanded for a new trial.
Collins, C. J., Zenoff and Mowbray, JJ., and Compton, D. J., concur.
____________________

2
NRCP 61: No error in either the admission or the exclusion of evidence and no error or defect in any ruling
or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or
for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal
to take such action appears to the court inconsistent with substantial justice. The court at every stage of the
proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of
the parties.
____________
86 Nev. 337, 337 (1970) Transwestern Life v. Nevada Underwriters
TRANSWESTERN LIFE INSURANCE COMPANY, a Corporation, Appellant, v.
NEVADA UNDERWRITERS, INC., Respondent.
No. 5843
April 30, 1970 468 P.2d 983
Appeal from judgment of First Judicial District Court, Ormsby County; Roscoe H. Wilkes,
Judge.
Appeal from judgment of the district court awarding damages to option holder resulting
from failure of corporation to timely issue 75,000 shares of corporation's stock that option
holder had right to purchase under stock option agreement between option holder and
predecessor corporation. The Supreme Court, Mowbray, J., held that where corporation's
duty to register and qualify with Securities and Exchange Commission came into
existence on date when option holder exercised his option to purchase 75,000 shares of
corporation's stock and not prior to such time, and corporation did with reasonable
dispatch qualify stock with commission so that it was unrestricted and fully transferable
as demanded by option holder, corporation was not liable to option holder for damages
claimed because price of stock dropped between time option was exercised and effective
date of registration with commission.
between option holder and predecessor corporation. The Supreme Court, Mowbray, J., held
that where corporation's duty to register and qualify with Securities and Exchange
Commission came into existence on date when option holder exercised his option to purchase
75,000 shares of corporation's stock and not prior to such time, and corporation did with
reasonable dispatch qualify stock with commission so that it was unrestricted and fully
transferable as demanded by option holder, corporation was not liable to option holder for
damages claimed because price of stock dropped between time option was exercised and
effective date of registration with commission.
Reversed, with instructions to enter judgment for appellant.
Young, D. J., dissented.
Ross & Crow, of Carson City; and Lewis, Roca, Beauchamp & Linton, and John P. Frank,
of Phoenix, Arizona, for Appellant.
V. Gray Gubler, of Las Vegas, for Respondent.
Licenses.
Corporation's duty to register and qualify with Securities and Exchange Commission came into existence
on date when option holder exercised his option to purchase 75,000 shares of corporation's capital stock
and not prior to such time, so that corporation which with reasonable dispatch did qualify stock with
commission so that it was unrestricted and fully transferable as demanded by option holder was not liable
to option holder for damages claimed because price of stock dropped between time option was exercised
and effective date of registration with commission.
OPINION
This appeal is from a judgment of the district court awarding $65,625 damages to
respondent, Nevada Underwriters, Inc., resulting from the failure of appellant, Transwestern
Life Insurance Company, a Montana corporation, to timely issue 75,000 shares of appellant's
stock that respondent had the right to purchase under a stock option agreement between
respondent and a predecessor Nevada corporation that later merged into the appellant
Montana corporation. The stock was issued, but only after registration with the Securities and
Exchange Commission. The registration and qualification with the SEC required several
months.
the SEC required several months. Between the time the option was exercised and the
effective date of the registration with the SEC, the price of the stock went down, which is the
predicate for the award of damages.
Numerous assignments of error and issues of law have been cited for our consideration.
We believe that all relevant questions presented may be summarized in one issue, namely:
When did the duty to register the stock with the SEC, under the factual posture of the case,
come into existence?
It is respondent's position that the duty to register the stock came into existence
immediately after the merger of the predecessor Nevada corporation with appellant, so that if,
as, and when respondent elected to exercise its option rights under the agreement, appellant
would at all times during the remaining period of the option be poised to deliver the stock.
Appellant urges that the duty to register with the SEC came into existence on July 31, 1964,
the date respondent exercised its option to purchase the 75,000 shares. We agree, and we
reverse the decision of the district judge, with instructions to enter judgment in favor of
appellant.
1. Factual Background
In 1958, Joseph Y. Larsen, Jr., and Lincoln Hanks participated in the formation of a
Nevada corporation named Transwestern Life Insurance Company, which we shall refer to in
this opinion as NEVADA. On January 11, 1963, NEVADA was merged into a Montana
corporation known as New American Life Insurance Company. The Montana corporation
(MONTANA) adopted the name of the Nevada corporation, Transwestern Life Insurance
Company, and is the appellant in this case.
Prior to the merger in January 1963, the following events occurred in Nevada. At the time
NEVADA was organized, in 1958, Larsen and Hanks set up another Nevada corporation,
known as Underwriters Incorporated of Nevada, regarding which Larsen testified:
Q [by Mr. V. Gray Gubler, attorney for Nevada Underwriters, Inc.] And did you have a
connection with Transwestern Life Insurance Company in its organizational period?
A [by Larsen] Yes, I did. I was one of the two organizers [Larsen and Hanks] at that
particular time, when the company was organized, and we organized a company called
Underwriters Incorporated of Nevada, which handled the original issues for the company in
capitalizing that particular insurance company.
Larsen testified that it took 40 working days to sell the original 20,000 shares of stock of
NEVADA.
original 20,000 shares of stock of NEVADA. These were sold only to Nevada residents,
under section 3(A)(11) (an intrastate exemption from registration) of the Securities Act of
1933.
At the first meeting of the newly formed NEVADA, on August 25, 1958, the board of
directors granted to Underwriters Incorporated the right to purchase 9,000 shares of the stock
of NEVADA. The option provided, in part:
TRANSWESTERN LIFE INSURANCE COMPANY, a Nevada corporation, . . . hereby
grants and extends to UNDERWRITERS INCORPORATED OF NEVADA, a Nevada
corporation, . . . an option to acquire 9,000 shares of the $10 par value nonassessable capital
stock of the Corporation at $50 per share . . . .
Larsen assisted in the drafting of the option agreement, and he testified during the trial that
NEVADA, which he helped form in 1958, could not sell unregistered shares of stock unless
the sale was restricted to Nevada residents. As he stated:
The shares of the original underwriting, as well as the second underwriting and the option
shares, were issued in reliance on the 3-A-11 exemption . . . and the shares would be sold to
bona fide residents of the State of Nevada, complying with this 3-A-11 exemption.
(Emphasis added.)
Larsen and Hanks dissolved their association after the underwriting of NEVADA was
completed. On February 16, 1959, they signed an agreement dividing the assets of
Underwriters Incorporated. Larsen formed and designated another and new Nevada
corporation, Nevada Underwriters, Inc., to receive his share of the option rights under the
option agreement held with NEVADA. The Hanks-Larsen agreement limited the transfer of
the option rights to any Nevada resident or Nevada corporation designated by Larsen. The
agreement was litigated in 1961 in Nevada's Eighth Judicial District Court, where it was
determined that Larsen's corporation, Nevada Underwriters, was entitled to one-half of the
option rights not yet exercised; the remaining rights were awarded to Hanks's Underwriters
Incorporated. (Of the 9,000 shares, 4,000 had been issued under the option agreement; so the
remaining 5,000 shares were divided between the two corporations.) Thereafter, NEVADA
had a 10-1 stock split, increasing respondent Nevada Underwriter's option to 25,000 shares of
NEVADA, which rights were further multiplied at the time of the Nevada and Montana
corporations' merger in January 1963, when NEVADA stockholders were given stock in
MONTANA on the basis of 3 shares of MONTANA for 1 share of NEVADA.
stock in MONTANA on the basis of 3 shares of MONTANA for 1 share of NEVADA.
At the time of the Nevada and Montana corporations' merger, it was agreed by
MONTANA, in Section 6.(e) of the Agreement of Merger, that:
Stock options heretofore granted by any of the constituent corporations shall, to the extent
not exercised prior to the merger, continue in effect in accordance with their terms, except
that a person exercising such options shall receive, in respect of each share of common stock
of the constituent corporation for which any such option is exercised, and on payment in
accordance with said terms, the equivalent number of shares of common stock of the
Combined Corporation as determined in accordance with the applicable conversion ratio
hereinbefore fixed. (Emphasis added.)
2. Exercise of the Option
Larsen made no attempt, nor did he give any indication to MONTANA that he intended, to
exercise his option rights until May 26, 1964. The merger was effective on January 11, 1963,
and the option expired on August 1, 1964.
On May 26, 1964, Larsen journeyed to Montana and conferred with Albert A. Schlaht,
President of MONTANA, and with MONTANA's counsel, Norman Hanson. Larsen did not,
however, exercise any of his option rights during the May meeting. Hanson testified
regarding the conference as follows:
Q [by Mr. Blackstone, attorney for plaintiff-appellant during trial] Now at this point, Mr.
Hanson, Mr. Schlaht testified as to conversations concerning what Mr. Larsen was expecting
the company to do and the extent to which he expected to have the company honor the
options. Do you recall a conversation along those lines?
A [by Mr. Hanson] Mr. Larsen said he wanted to get his 20,000 shares of stock under his
option. Wanted the company to issue it to him. We were talking only about the 20,000 shares,
because I asked Mr. Larsen at the time what he planned to do about the remaining 55,000
shares of the option. And whether he was definitely going to exercise the balance at the end
of the option period, July 31, [1964]. He said he would not make a commitment what he was
going to exercise at that time, that he probably would, but he was not saying definitely that he
would, at this time.
Larsen returned to Billings, Montana, on July 31, 1964, on the eve of the expiration of the
option, and he did exercise in writing his full option rights to purchase 75,000 shares of
MONTANA stock for the total price of $106,250 by hand-delivering to Mr.
MONTANA stock for the total price of $106,250 by hand-delivering to Mr. Schlaht a letter of
credit for that sum drawn on the United California Bank of Los Angeles and directed to the
Security Trust & Savings Bank of Billings, extending Larsen credit for the $106,250 in
exchange for unrestricted, freely transferable certificates of your capital stock.
1
(Emphasis
added.)
Larsen at the trial explained the unrestricted, freely transferable condition as follows:
Q [by Mr. Blackstone] You said that you met with Mr. Schlaht on July 31. What did
youdid you tender him anything, yourself?
A Yes, I tendered him a bank draft of a hundred six thousand two hundred fifty dollars
and received a receipt.
Q Referring then to Plaintiff's Exhibit I is a bank draft or customer's draft for a hundred
six thousand two hundred fifty dollars. It's on Security Trust & Savings Bank, it says payable
on demand'pardon me, it says [O]n demand, when accompanied by 75,000 unrestricted
shares of Transwestern capital stock, pay to the order of Transwestern Life Insurance
Company 106,250 and no one hundredths dollars.' This is the customer's draft you delivered
to Mr. Schlaht?
A Right.
Q Mr. Schlaht made a photocopy of that, did he not, and returned the customer's draft to
you?
A Right.
____________________

1
SECURITY TRUST & SAVINGS BANK
Billings, Montana
Established P.O. Box Telephone
1916 2513 Area Code 406 245-3011
Ray G. Spanier July 31, 1964
Assistant Vice President
Transwestern Life Insurance Company
Billings, Montana
Gentlemen:
We have received an authenticated wire from the United California Bank, Los Angeles, California, that
they have opened an irrevocable sight letter of credit in your favor against the account of Joseph Y.
Larsen in the amount of $106,250.00, when the draft is accompanied by unrestricted, freely transferable
certificates of your capital stock totaling 75,000 shares. This refers to the option of the Nevada
Underwriters, Inc. This letter expires August 7, 1964.
Very truly yours,
R G Spanier
R. G. Spanier
RGS-ls Assistant Vice President
Q Well, the expression in the letter offrom the Security Trust & Savings Bank, Exhibit
H, stating that the payment will be made when accompanied by unrestricted, freely
transferrable [sic] certificates of your capital stock, totalling 75,000 shares, those were the
instructions you had given to the bank, is that correct?
A These were the requirementsin other words, I told them to draft this in accordance
with the agreement. In other words, to request unrestricted stock as set forth in the agreement.
And the reason I requested the unrestricted part was because of their attempt to class this as
investment stock. There had been some discussion with Mr. Schlaht as to stamping these
certificates as investment stock. So there was no call for this under the option and I asked for
unrestricted stock.
Q Mr. Larsen, may I have the stock option itself? I think weyou established earlier, did
you not, yesterday, that there was no language in the stock option itself that says shares that
must be delivered must be unrestricted, freely transferrable [sic]. Do you recall that?
A It doesn't state that and it doesn't say it will be restricted either.
Q That's right. Now, when you called for freely transferrable [sic], unrestricted stock,
were you askingwas it your intention that the shares be fully registered with the S.E.C.
under a Registration Statement?
A At that particular time all I wanted was shares of stock issued that were unrestricted
and not stamped restricted.
Q And you wanted them so you would be free to resell them at any time, that is correct,
is it not?
A I wanted them so they could be resold, right.
Q You know, under the circumstances, you could not get such shares unless they were
registered with the S.E.C.?
A Not at that time, since the 3A-11 exemption has been destroyed they had to be
reregistered for them to be issued to me.
Q So that your letter was, in effect, was asking them to deliver to you shares that were
fully registered with the S.E.C.?
A In essence I knew they had to be registered shares, right.
Q And I believe you testified earlier that there is nothing in the stock option itself which
required shares to be registered with the S.E.C.? You can refresh your recollection if you
wish to look at the stock option.
A There is nothing in the stock option that requires it to be issued or registered, right.
MONTANA moved immediately to secure registration of the stock with the SEC, so that it
would be unrestricted and freely transferable. This registration and qualification required
time and expense ($31,860) to MONTANA, which is to be expected in such cases.
Larsen did not complain. He inquired by letter to Hanson as to the progress of the
registration on October 22.
2
Hanson replied by letter dated October 30, 1964.
3
Other
correspondence was exchanged between MONTANA and Larsen, and it would
____________________

2
October 22, 1964
Mr. Norman Hanson
Attorney at Law
P.O. Box 2529
500 Electric Bldg.
Billings, Montana
Dear Norm:
I suppose the plans of registration are going forward as planned. Would you kindly drop me a line and let me
know the present status of the registration with S.E.C.
Cordially yours,
Joe
Joseph Y. Larsen, Jr.
JL:jo

3
October 30, 1964
AIRMAIL
Mr. Joseph Y. Larsen, Jr.
Attorney at Law
15 East Fourth South
Salt Lake City 11, Utah
Dear Joe: Re: SEC registration
Transwestern Life
Insurance
Company
Answering your letter of October 22, Transwestern's Registration Statement was duly filed with the Securities
and Exchange Commission, Washington, D.C. on September 25, 1964, where it is pending under file #2-22805.
I received your letter on October 26, and at that time we had heard nothing from the SEC. Hard on the heels of
your letter however has come a lengthy deficiency letter from SEC, together with a statement that there will be a
supplemental letter also forthcoming. I anticipate that it will be at least ten days or two weeks before we will
know what amendments will be necessary, and at that time you will hear from me (because substantial portions
of the SEC letter deal with the sales commissions, sale of stock by those exercising the options, etc.).
Yours truly,
NORMAN
HANSON
NH:bb
cc: A. A. Schlaht serve no purpose to restate it in this opinion, other than to observe in
passing that it clearly shows MONTANA moved forward with all dispatch to qualify the
stock with the SEC; that Larsen was fully advised of developments as they occurred; and
that even a Supplement to the Prospectus, which had become effective on February 1,
1965, was later added, effective March 17, 1965.4 This in effect cleared the way for
Larsen to sell the stock as "unrestricted and freely transferable," which in fact he did in
California shortly thereafter.
serve no purpose to restate it in this opinion, other than to observe in passing that it clearly
shows MONTANA moved forward with all dispatch to qualify the stock with the SEC; that
Larsen was fully advised of developments as they occurred; and that even a Supplement to
the Prospectus, which had become effective on February 1, 1965, was later added, effective
March 17, 1965.
4
This in effect cleared the way for Larsen to sell the stock as unrestricted
and freely transferable, which in fact he did in California shortly thereafter. The transaction
for all ostensible purposes appeared to be concluded. Larsen accepted and sold the stock for a
gain of over $33,000. The only item remaining was the question which gave rise to this
action, namely: Which corporation, Larsen's or Hanks's, was entitled to the $9,375
commission resulting from the sale of the 75,000 shares to Nevada Underwriters?
5

The first written demand for damages by Larsen for the failure of MONTANA to promptly
deliver the stock came in the form of the counterclaim which is the basis of this appeal.
6

Justice Holmes, writing as a Justice of the Supreme Judicial Court of Massachusetts, said
in Parkinson v. West End St. Ry. Co., 53 N.E. 891, 892 (Mass. 1899), a case involving an
action for damages for refusal of a successor corporation to deliver preferred stock to bond
holders under a previous, approved plan to exchange the bonds for stock:
____________________

4
Supplement to Prospectus dated February 1, 1965
Of the 205,851 shares of common stock offered to certain option-holders, 198,851 were subscribed for. The
total proceeds of said 198,851 shares was $331,419; commissions thereon amounted to $49,713; so that, the
proceeds to the Company were $281,706 (before deduction of expenses of $31,860 payable by the Company).
The selling security holders shown at page 25 herein are offering their 75,382 shares of such common stock
to the public, at the market price or at whatever negotiated price they can obtain. With reference to the status of
the selling security holders see Note C on the cover page of the Prospectus.
During the period January 1, 1965, through March 10, 1965, the high and low bid prices of the Company's
common stock in the over-the-counter market were $2 and $1-5/8 respectively. On March 11, 1965, the highest
bid and lowest asked prices of the stock were $1-5/8 and $2 respectively. These prices are as reported by
National Quotation Bureau, Inc.
The date of this Supplement is March 17, 1965.

5
MONTANA commenced this case by filing in Nevada's First Judicial District Court an interpleader
complaint asking the court to determine whether Underwriters Incorporated or Nevada Underwriters was entitled
to the $9,375 commission. The court awarded the commission to Nevada Underwriters, and no appeal was taken
from that judgment.

6
Larsen indicated that he orally informed Schlaht and Hanson on May 26 and July 31, 1964, that he was
holding MONTANA liable for damages. Hanson and Schlaht flatly deny Larsen's assertion, and his and
MONTANA's later conduct belies the probability of any such statement.
deliver preferred stock to bond holders under a previous, approved plan to exchange the
bonds for stock:
When an option is given to take stock . . . [e]ven when embodied in the contract it
imposes no restriction upon the obligor in regard to the issue of new stock, although the issue
may be upon such terms as to diminish the value of the right. It leaves the management of the
company in accordance with its other interests unhampered. It is simply an option to take
stock as it may turn out to be when the time for choice arrives. . . . So, if the corporation . . .
finds it for its interest to go out of existence at or before the maturity of the obligation, the
option given . . . will not stand in the way. The option gives him merely a spes, . . . .
. . . [T]he contract does not prevent the corporation from consolidating with another in
such a way as to make performance impossible, any more than it prevents the issue of new
stock in such a way as to make performance valueless. . . . [T]he decision really turns upon
the particular facts. (Emphasis added.)
Under the facts presented, we hold that MONTANA's duty to register and qualify with the
SEC came into existence on July 31, 1964, when Larsen exercised on behalf of the
respondent corporation the 1958 option to purchase 75,000 shares of MONTANA capital
stock, and not prior to that date; that MONTANA did with reasonable dispatch qualify the
stock with the SEC, so that it was unrestricted and freely transferable, as Larsen demanded.
There being no failure of duty by MONTANA, the judgment cannot stand. It is, therefore,
reversed, with instructions to enter judgment for appellant.
Collins, C. J., Zenoff and Thompson, JJ., concur.
Young, D. J., dissenting:
I do not concur with the majority.
The only duty of Montana as a result of the merger was to deliver unrestricted and freely
transferable shares of stock to Nevada whenever Larsen exercised his option. Montana could
take whatever steps it desired to secure unrestricted and freely transferable stock, including
issuing of new stock or purchasing previously issued stock on the open market. Failure on the
part of Montana to fulfill its obligation to deliver unrestricted and freely transferable stock
makes Montana liable to Nevada for any damage it suffered by Montana's failure to deliver
the unrestricted and freely transferable shares of stock at the time Larsen or Nevada
exercised its option.
The measure of damages is the value of the stock at the time of the exercise of the option
less the value of the stock at the time of delivery. In the instant case, Montana did not deliver
unrestricted and freely transferable shares of stock until April, 1965, although the option
was exercised on July 31, 1964. The loss incurred by Montana's failure to deliver the required
stock is the difference between the market value of the stock on July 31, 1964, which was
$2.50 per share, and the price Nevada was able to sell its stock in April of 1965 which was
$2.00 per share, or 50 cents per share. Nevada, therefore, suffered a loss of 75,000 times 50
cents per share, or $37,500.00. Judgment should be entered for respondent in this amount.
____________
86 Nev. 347, 347 (1970) Whittlesea v. Farmer
VICTOR F. WHITTLESEA, dba WHITTLESEA CHECKER TAXI, and ORVILLE RAY
FRY, Appellants, v. WALTER CLAUDE FARMER, Respondent.
No. 5997
May 8, 1970 469 P.2d 57
Appeal from judgment of the Second Judicial District Court, Washoe County; Thomas 0.
Craven, Judge.
Action for personal injuries sustained in automobile collision. The district court entered
judgment and defendants appealed. The Supreme Court, Thompson, J., held that covenant not
to execute on judgment is not within provision of Uniform Joint Obligations Act;
accordingly, injured taxicab passenger's failure to expressly reserve rights to proceed against
cab company and its driver upon entering into agreement with second driver and his employer
not to execute on any judgment obtained in pending action against latter did not automatically
release former from liability.
Affirmed.
Alex. A. Garroway, of Reno, for Appellants.
Springer & Newton, of Reno, for Respondent.
1. Execution; Release.
Covenant not to execute on judgment is not within provision of Uniform Joint Obligations Act;
accordingly, injured taxicab passenger's failure to expressly reserve rights to proceed against cab company
and its driver upon entering into agreement with second driver and his employer not to execute
on any judgment obtained in pending action against latter did not automatically
release former from liability.
second driver and his employer not to execute on any judgment obtained in pending action against latter
did not automatically release former from liability. NRS 101.020.
2. Release.
Uniform Joint Obligations Act includes tort actions wherein it is claimed that defendants are jointly and
severally liable to plaintiff. NRS 101.020, 101.050.
3. Release.
Under Uniform Joint Obligations Act, release or discharge of one of jointly and severally liable
tortfeasors without express reservation of rights against others discharges others to extent provided in
statute, but release or discharge may expressly reserve rights of claimants against others claimed to be
jointly and severally liable. NRS 101.060.
4. Release.
Apparent purpose of Uniform Joint Obligations Act is to modify common-law doctrine that release of one
joint tortfeasor releases all.
5. Execution.
Covenant not to execute upon judgment is not same as release; legal effect of covenant not to execute is
similar to covenant not to sue, essential distinction between them being that former is entered into after suit
is commenced and before judgment whereas latter is made before suit is commenced.
Neither covenant not to execute upon a judgment nor covenant not to sue extinguishes plaintiffs cause of
action, in contrast to effect of release.
Neither covenant not to execute upon a judgment nor covenant not to sue releases joint tortfeasors, even
in absence of any reservation of rights against them.
8. Contracts.
In event of breach of covenant, remedy is in contract for breach.
9. Release.
Plaintiff may have but one satisfaction for his injuries from joint tortfeasors; accordingly, amount paid for
covenant by one of them reduces liability of others by that amount.
OPINION
[Headnote 1]
The central issue presented by this appeal is whether a covenant not to execute falls within
the provisions of the Uniform Obligations Act. We hold that it does not.
Farmer commenced an action against Whittlesea, his employee Fry, the Nevada Bank of
Commerce and its employee Lamb to recover damages for personal injuries incurred while
riding as a passenger in a Whittlesea taxi driven by Fry which collided with a car driven by
Lamb.
Lamb to recover damages for personal injuries incurred while riding as a passenger in a
Whittlesea taxi driven by Fry which collided with a car driven by Lamb. Fry and Lamb were
charged jointly and severally as tortfeasors. The liability of their respective employers was
premised on the doctrine of respondeat superior. Before trial, the defendant Lamb and the
Bank paid Farmer $10,000 in consideration for his agreement not to execute upon any
judgment obtained in the pending action against them. The covenant not to execute did not
contain an express reservation of rights to proceed against Fry and Whittlesea. The jury
returned its verdict for $13,000 against all defendants and credited against that award the
$10,000 paid by Lamb and the Bank, leaving a balance of $3,000 to be paid. Judgment was
entered accordingly. Since Farmer cannot, by reason of his covenant with Lamb and the
Bank, recover the unpaid balance from them, he has looked to the codefendants Fry and
Whittlesea for payment thereof. The latter have appealed to this court contending that the
Uniform Joint Obligations Act embraces a covenant not to execute and that the failure of
Farmer to expressly reserve his rights to proceed against them automatically released them
from liability. The contention is unsound.
[Headnotes 2, 3]
1. The Uniform Joint Obligations Act includes tort actions (NRS 101.010) wherein it is
claimed that the defendants are jointly and severally liable (NRS 101.050) to the plaintiff.
1
A
release or discharge of one of the defendants without an express reservation of rights against
the others discharges the others to the extent provided in NRS 101.060. Of course, such a
release or discharge may expressly reserve the rights of the claimants against the others
claimed to be jointly and severally liable to him.
[Headnote 4]
The apparent purpose of the act is to modify the common law doctrine that a release of one
joint tortfeasor releases allthis, because but one cause of action existed against them which
was surrendered when the release was executed.
[Headnotes 5-9]
The Act would apply to the case at hand if a covenant not to execute upon a judgment is
the same as a release. However, it is not the same as a release.
____________________

1
In Hansen v. Collett, 79 Nev. 159, 380 P.2d 301 (1963), a tort case, the Uniform Joint Obligations Act did
not apply because the case concerned separate acts of successive tortfeasors rather than the concurrent acts of
joint tortfeasors.
it is not the same as a release. The legal effect of a covenant not to execute is similar to a
covenant not to sue; the essential distinction between them being that the former is entered
into after suit is commenced and before judgment, whereas the latter is made before suit is
commenced. Land v. United States, 231 F.Supp. 883 (D.C. Okla. 1964). Neither covenant
extinguishes the plaintiff's cause of action, as does a release. The covenants are agreements
not to enforce an existing cause of action (covenant not to sue) or to execute upon a judgment
(covenant not to execute). Pellett v. Sonotone Corporation, 160 P.2d 783 (Cal. 1945). Such a
covenant does not release joint tortfeasors even in the absence of any reservation of rights
against them. Prosser on Torts, 3d ed, p. 271. In the event of a breach of covenant the remedy
is in contract for that breach. Pellett v. Sonotone Corporation, supra. The Uniform Joint
Obligations Act contemplates a document which extinguishes the plaintiff's claim and does
not embrace a covenant not to sue or not to execute, and we so rule. Since the plaintiff may
have but one satisfaction for his injuries from joint tortfeasors, the amount paid for a
covenant by one of them reduces by that amount the liability of the others. Pacific States
Lumber Co. v. Bargar, 10 F.2d 335 (9 Cir. 1926). Accordingly, the defendants-appellants
Whittlesea and Fry are liable to the plaintiff-respondent Farmer for the $3,000 remaining
unpaid upon the judgment.
2. In some cases covenants are construed to be releases because the words used suggest
that result. This case does not present that problem. The covenant is clearly one not to execute
upon a judgment. Words of release are not used.
Affirmed.
Collins, C. J., Batjer and Mowbray, JJ., concur.
Zenoff, J., concurring:
I concur in the result but I prefer that the subject of releases and partial releases be
approached in a manner that appears to me to be more realistic than that applied by the
majority. Concededly, distinctions have been applied that still represent the law, but current
discussions on the subject leave the impression, with me at least, that the Joint Obligations
Act will be applied instead of distinguished. I would write the opinion as follows:
Walter Farmer was injured while riding as a passenger in a Whittlesea taxi driven by
Orville Fry. The cab collided with an automobile operated by Floyd Lamb. Lamb was
employed by the Nevada Bank of Commerce who leased the automobile from the Pyramid
Lease Corporation.
from the Pyramid Lease Corporation. The accident occurred October 29, 1965. Before trial
the lease corporation and the bank were dismissed from the case as parties. The action
remained against Lamb, Victor Whittlesea, doing business as Whittlesea Taxi Company, and
Fry, the driver of the cab.
In a settlement before trial Farmer executed a document entitled, COVENANT NOT TO
EXECUTE, with Lamb and the bank. For $10,000 Farmer agreed that he would not seek to
enforce any judgment that he might obtain from the trial against Lamb or the Nevada Bank of
Commerce. A jury awarded a verdict of $13,000 but credited the $10,000 already paid by
Lamb and the bank against the judgment, leaving $3,000. Whittlesea and Fry appeal, claiming
principally that under NRS 101.010 through 101.060 the covenant constituted a general
release and that he and Fry are no longer liable.
1
He also on appeal raises the objection that it
was error to allow Lamb to participate in the trial when Lamb had already been released
under the covenant.
____________________

1
101.010 Short title. This chapter may be cited as the Uniform Joint Obligations Act.
101.020 Terms defined. In this chapter, unless otherwise expressly stated:
1. Obligation includes a liability in tort.
2. Obligee includes a person having a right based on a tort.
3. Obligor includes a person liable for a tort.
101.030 Discharge of coobligor by judgment. A judgment against one or more of several obligors, or against
one or more of joint, or of joint and several obligors, shall not discharge a coobligor who was not a party to the
proceedings wherein the judgment was rendered.
101.040 Payments credited to coobligors. The amount or value of any consideration received by the obligee
from one or more of several obligors, or from one or more of joint, or of joint and several obligors, in whole or
in partial satisfaction of their obligations, shall be credited to the extent of the amount received on the
obligations of all coobligors to whom the obligor or obligors giving the consideration did not stand in the
relation of a surety.
101.050 Release with reservation of rights. Subject to the provisions of NRS 101.040, the obligee's release or
discharge of one or more of several obligors, or of one or more of joint, or of joint and several obligors, shall not
discharge coobligors, against whom the obligee in writing and as part of the same transaction as the release or
discharge expressly reserves his rights; and in the absence of such a reservation of rights shall discharge
coobligors only to the extent provided in NRS 101.060.
101.060 Release without reservation of rights.
1. If an obligee releasing or discharging an obligor without express reservation of rights against a coobligor,
then knows or has reason to know that the obligor released or discharged did not pay so much of the claim as he
was bound by his contract or relation with that coobligor to pay, the obligee's claim against that coobligor shall
be satisfied to the amount which the obligee knew or had reason to know
1. What is the purpose of the Joint Obligations Act but to retain liability against one while
releasing another in order to escape the harsh common-law rule that allows unfair escape in
many situations? Drawing fine distinctions between various covenants or agreements is a
toe-dance around the rule and is wasted effort when the import of the statute can be given
effect simply by stating that the documents are within the statute but that the intention of the
parties shall prevail.
Otherwise, as the majority does in this case, stress is placed upon the importance of labels.
Words of release are not used, states the majority in distinguishing the covenant not to
execute, yet even Land v. United States, 231 F.Supp. 883 (N.D. Okla. 1964), cited by the
majority, relates that the end result of the document is to release. Thus, I draw my conclusion
it is the purpose that counts, not the name tag. See also So. Pac. Co. v. Raish, 205 F.2d 389,
393-94 (9th Cir. 1953); Stephenson v. Duriron Co., 292 F.Supp. 66, 86-87 (S.C. Ohio 1968).
We are in disagreement only on the path we take to reach the same result. Release-type
instruments should be declared as within the Joint Obligations statute, and that the legal
effect of those instruments which are executed in connection with an incident or transaction
should be construed so as to carry out the intention of the parties. This intention is to be
sought in the language of the instrument when read in the light of the circumstances
surrounding the transaction. McCullough v. Orcutt, 145 N.E.2d 109, 116 (Ill.App. 1957);
Pellett v. Sonotone Corp., 160 P.2d 783, 787 (Cal. 1945). The only relevant inquiry equally
applicable to all cases in which there has been a discharge in any form is whether there has in
fact been full satisfaction. Young v. State, 455 P.2d 889 (Alaska 1969); Prosser, Torts 46,
pp. 270-273 (3rd Ed. 1964); 63 Col.L. Rev. 1142, 1148 (1963). The express reservation in
this case should be determined in accordance with those guidelines.
2. Appellant labels the COVENANT NOT TO EXECUTE a complete release of all
parties because it contained no reservation of rights to proceed against appellants, although its
effect was to release Lamb and his employer, the bank. This, they contend, is a carry over of
the original common-law principle that release of one joint tort-feasor was a release of all
and that Nevada's Uniform Joint Obligations Act, NRS 101.020, et seq., disqualifies
Farmer's claim because there was no express reservation of rights in the covenant as
required by NRS 101.050 and 101.060.
____________________
that the released or discharged obligor was bound to such coobligor to pay.
2. If an obligee so releasing or discharging an obligor has not then such knowledge or reason to know, the
obligee's claim against the coobligor shall be satisfied to the extent of the lesser of two amounts, namely, (1) the
amount of the fractional share of the obligor released or discharged, or (2) the amount that such obligor was
bound by his contract or relation with the coobligor to pay.
bank. This, they contend, is a carry over of the original common-law principle that release of
one joint tort-feasor was a release of all and that Nevada's Uniform Joint Obligations Act,
NRS 101.020, et seq., disqualifies Farmer's claim because there was no express reservation of
rights in the covenant as required by NRS 101.050 and 101.060.
The express reservation is ascertained from the intention of the parties. Hicklin v.
Anders, 253 P.2d 897 (Ore. 1953); Black v. Martin, 292 P. 577, 580-82 (Mont. 1930). The
courts today reject the common-law rule and refuse to allow tort-feasors to escape liability
even though another joint tortfeasor has settled with the injured unless the injured's intention
to release all parties or persons is manifest. Were it otherwise, wrongdoers who do not make
or share in making reparation are discharged while one willing to right the wrong and no
more guilty bears the whole loss. McKenna v. Austin, 134 F.2d 659 (D.C. Cir. 1943), cited in
Hansen v. Collett, 79 Nev. 159, 380 P.2d 301 (1963).
When a release or covenant contains express language reserving rights against a specific
person any discussion is obviated as to whether or not the plaintiff intended to release all
tort-feasors not parties to it. However, when this is not present the very fact that the plaintiff
brought suit is evidence that he did not intend the settlement to be full satisfaction for the
injury. McKenna v. Austin, supra, at 663.
In the present case it would appear from the language of the COVENANT NOT TO
EXECUTE that the plaintiff never intended to release all parties since he agreed only not to
execute any judgment he might obtain against Lamb or Nevada Bank of Commerce.
2
He
intended to get a judgment and he intended to execute the judgment. He merely covenanted
not to execute it against Lamb or Nevada Bank of Commerce.
The purpose of the statute is best served by relying upon the statute, not in avoiding it.
Such a statute is enacted to prevent the harshness of the common-law rule, not to defeat the
intentions of the parties and work as a trap for the unwary. Model Joint Obligations Act, 9B
U.L.A., at 353 (1966). When a person is liable for an injury, he should not escape his
responsibility on the tenuous ground of lack of proper language in the reservation of one's
rights.
____________________

2
During the pretrial proceedings the bank and Pyramid Lease Corporation were dismissed as parties from the
lawsuit, and the trial court's judgment corrects the jury verdict in that respect. The effect remains, however, that
neither Lamb or the bank need pay anything more, but Whittlesea and Fry bear the $3,000 of the $13,000
verdict.
language in the reservation of one's rights. No magic language should be necessary to
expressly reserve the right to sue other tort-feasors. Farmer, Lamb and the bank released only
the latter two and none other. The agreement does not acknowledge full compensation, only
not to seek further satisfaction from Lamb and his employer. In addition, Farmer would hold
them harmless against . . . any and all contribution by reason of such judgment. . . .
The words contribution and judgment connote further action after the settlement. By
the release of Lamb and the bank the action remaining could only be against Whittlesea and
the cab driver. Contribution contemplates reservation of action against somebody. It seems
clear that Farmer intended to proceed against the remaining parties to the lawsuit. Whittlesea,
a tort-feasor, cannot complain for he gets the benefit of the settlement because he is liable
only for the balance of the award after the $10,000 is credited.
3

3. Although released from any further liability, Lamb's counsel appeared and participated
in the trial. The appellant's objection does not state how or in what manner Lamb's
participation prejudiced Whittlesea to such extent as to constitute reversible error. So long as
Lamb continued as a party in the lawsuit, and it must be remembered that the covenant did
not dismiss him as a party, he had a right to appear to protect whatever interests he thought
might remain. In the absence of a showing of prejudice the objection is without merit.
Affirmed.
____________________

3
For a fuller discussion of the problem see Prosser, Torts 46 (3rd Ed. 1964); Restatement of Torts 885
(1939).
____________
86 Nev. 354, 354 (1970) Tucker v. State
RICKY LEE TUCKER, Appellant, v. THE
No. 5598
May 11, 1970 469 P.2d 62
Appeal from robbery conviction. Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
The Supreme Court, Zenoff, J., held that seizure of defendant's jacket was not improper
where defendant's companion had consented to reclaiming of her coat which was on same
hanger as defendant's and where seizure was incidental to defendant's arrest.
hanger as defendant's and where seizure was incidental to defendant's arrest.
Affirmed.
1. Criminal Law.
A separate hearing is preferable on question of whether a defendant waived his right to be represented by
counsel at lineup.
2. Criminal Law.
Clear identification of defendant by victim of robbery who allegedly on several occasions had visited
with defendant in store a few days before holdup constituted sufficient basis for identification of defendant
independent of any influence of allegedly improper lineup.
3. Arrest; Searches and Seizures.
Seizure of defendant's jacket was not improper where defendant's companion had consented to reclaiming
of her coat which was on same hanger as defendant's and where seizure was incidental to defendant's arrest.
4. Criminal Law.
In light of statements by four witnesses that jacket looked like one defendant was seen wearing, question
as to truth of defendant's denial that it was his jacket was for jury.
5. Criminal Law.
Where trial judge granted defense counsel's request that jury be admonished to ignore prosecutor's
comment in closing argument in referring to defense counsel's allegation that victim was lying that state
would not be able to prosecute fully a person who was in and identified as positively as that, remark, if it
was error, was harmless.
6. Criminal Law.
Where there was no objection at time prosecutor made remarks and Supreme Court's review of record did
not show that any substantial rights of defendant were affected thereby, defendant was not entitled to relief
from conviction on claim that comments were improper.
OPINION
Ricky Lee Tucker appeals from a conviction for robbery. He was one of the persons
identified by Mrs. Violet Odom as robbing her at the Santa Claus Market, in Reno, on
December 17, 1967.
robbing her at the Santa Claus Market, in Reno, on December 17, 1967. Mrs. Odom, a clerk
in the store, described Tucker to the police as a young man who on several occasions visited
with her in the store a few days before the holdup. He was somewhat distinctive looking, was
unmasked, and during the holdup she joshed with him: You can't be serious, you wouldn't do
this to me, while he held a knife on her.
Tucker was arrested in a Reno casino based upon Mrs. Odom's description and after he
was observed in suspicious behavior with a girl named Sandra who, in turn, was arrested for
being a disorderly person. When the police retrieved her coat from the checkstand in the
casino they found a man's jacket on the same hanger with her coat. The jacket answered the
description given them as being similar to the one worn by Tucker during the commission of
the crime.
In this appeal, Tucker contends that he was not represented by counsel at a lineup from
which Mrs. Odom pointed him out, that the jacket was improperly admitted into evidence and
that certain remarks to the jury by the prosecutor in his closing argument were prejudicial.
Other assignments of error are without merit.
1. The state claims Tucker knowingly and intelligently waived presence of counsel at the
lineup. A separate hearing on the question of waiver was not conducted by the trial court, but
the policeman who took Tucker to the lineup testified that all of Tucker's rights were
explained to him and that he told the police to go ahead with the lineup. The policeman
further explained that Tucker appeared to know and realize what he was doing and that he
signed an acknowledgment card, although it was not presented for evidence. The court was
apparently satisfied that Tucker validly waived his right to be represented by counsel at the
lineup.
[Headnotes 1, 2]
While a separate hearing on the question is preferable the state of the record is such that
under Jones v. State, 85 Nev. 53, 450 P.2d 139 (1969), the lineup evidence will not be
disturbed. The clear identification by Mrs. Odom whose observations of Tucker were
extensive constituted recognition of Tucker independent of any lineup influence.
[Headnotes 3, 4]
2. The seizure of the jacket broke no rules. Either by Sandra's consent to the reclaiming of
her coat or without Tucker's consent, the seizure being incidental to the arrest, there is no
cause for objection. Tucker claimed also that the jacket should not have been admitted
because it was not sufficiently established as being his, but four witnesses said it looked
like the one Tucker was seen wearing, and whether his denial was true or untrue was a
jury question.
jacket should not have been admitted because it was not sufficiently established as being his,
but four witnesses said it looked like the one Tucker was seen wearing, and whether his
denial was true or untrue was a jury question. Carter v. State, 84 Nev. 592, 446 P.2d 165
(1968); Eisentrager v. State, 79 Nev. 38, 45, 378 P.2d 526 (1963); State v. Dearman, 453
P.2d 7, 10 (Kan. 1969). See also Dean v. Hocker, 84 Nev. 74, 436 P.2d 427 (1968).
[Headnote 5]
3. The prosecutor in his closing argument referring to defense counsel's allegation that
Mrs. Odom was lying said: Now, this is what will happen. The state will not be able to
prosecute fully a person who is in and identified as positively as this. Defense counsel
objected to the remark and asked that the jury be admonished to ignore it. The judge granted
his request. The court's admonition is enough to result in the remark being harmless error, if it
was error at all. Serrano v. State, 84 Nev. 676, 447 P.2d 497 (1968); Dotson v. State, 80 Nev.
42, 389 P.2d 77 (1964); Pacheco v. State, 82 Nev. 172, 414 P.2d 100 (1966); State v. Teeter,
65 Nev. 584, 642-647, 200 P.2d 657 (1948).
[Headnote 6]
Other comments by the prosecutor were raised as being improper and prejudicial but there
being no objection at the time they were made and upon our review of the record we find that
no substantial rights of the accused were affected. Kuk v. State, 80 Nev. 291, 392 P.2d 630
(1964); Mears v. State, 83 Nev. 3, 422 P.2d 230 (1967).
Appellant argues further that certain testimony and evidence consisted extensively of
irrelevancies and inconsistencies; however, the function of the jury to resolve these disputes
was performed and we uphold the verdict on the ground that there is substantial evidence in
the record to support it. State v. Fitch, 65 Nev. 668, 200 P.2d 991 (1948).
Affirmed.
____________
86 Nev. 358, 358 (1970) Adams v. State
WILLIAM L. ADAMS, Appellant, v. THE
No. 5947
May 11, 1970 469 P.2d 65
Appeal from an order denying a petition for a writ of habeas corpus. First Judicial District
Court, Ormsby County; Frank B. Gregory, Judge.
Habeas corpus proceeding. The district court denied petition and petitioner appealed. The
Supreme Court, Batjer, J., held that question of competency of complaining witness in
scheduled second trial following dismissal of jury for inability to agree was not reviewable in
pretrial habeas corpus proceeding but could be considered on appeal from conviction.
Affirmed.
Martillaro and Bucchianeri, of Carson City, for Appellant.
Harvey Dickerson, Attorney General, Robert F. List, District Attorney, and Michael E.
Fondi, Deputy District Attorney, of Carson City, for Respondent.
1. Criminal Law.
Failure of trial jury to agree upon verdict following trial is same as though there had been no trial.
2. Habeas Corpus.
Dismissal of jury in criminal case for inability to reach verdict is not reviewable directly or collaterally by
habeas corpus.
3. Habeas Corpus.
Question of competency of complaining witness in scheduled second trial following dismissal of jury for
inability to agree was not reviewable in pretrial habeas corpus proceeding but could be considered on
appeal from conviction.
OPINION
Adams was tried for the crime of lewdness with a child under fourteen years of age. The
jury was unable to reach a verdict and was dismissed. Adams then commenced a habeas
corpus proceeding in the district court to preclude a retrial of the charge against him. The
basis of his petition is that the victim child was incompetent to testify against him.
At the time of the offense the victim was nine years of age. At the time of the preliminary
examination she had reached her tenth birthday.
86 Nev. 358, 359 (1970) Adams v. State
her tenth birthday. A voir dire examination was conducted at the preliminary examination to
determine the child's understanding of the oath and her realization that she was required to
tell the truth. The magistrate concluded that the child was a competent witness and she was
permitted, without objection, to testify to the facts of the offense. The child also testified at
the jury trial which followed in due course. The thrust of the argument presented in this court
is that material discrepancies between the child's testimony given at the preliminary
examination and at the trial demonstrate her incompetency as a witness.
[Headnotes 1-3]
1. The failure of the trial jury to agree upon a verdict following the trial is the same, in
legal effect, as though there had been no trial. People v. Crooms, 152 P.2d 533 (Cal.App.
1944); People v. Messerly, 116 P.2d 781 (Cal.App. 1941); State v. Blockyou, 407 P.2d 519,
521 (Kan. 1965); State v. Hutter, 18 N.W.2d 203 (Neb. 1945). The proceeding is not subject
to review directly or collaterally by habeas corpus. The issue of the child's competency to
testify will undoubtedly be presented to the trial court upon retrial. If the witness is permitted
to testify and if Adams is convicted, we may then review the issue upon direct appeal.
The order of the district court denying the appellant's petition for a writ of habeas corpus is
affirmed.
____________
86 Nev. 359, 359 (1970) Rogers v. Warden
WALTER L. ROGERS, Appellant, v. WARDEN,
No. 6024
May 11, 1970 468 P.2d 993
Appeal from order dismissing petition for post-conviction relief; Second Judicial District
Court, Washoe County; John E. Gabrielli, Judge.
The Supreme Court, Mowbray, J., held that where accused's prior application for
post-conviction relief was dismissed and accused failed to offer in present application
explanation for his failure to move prior to trial to suppress objectionable evidence, object to
its admission during trial or assert such grounds for relief in his first post-conviction
application, accused was barred from doing so in a second post-conviction application.
grounds for relief in his first post-conviction application, accused was barred from doing so in
a second post-conviction application.
Affirmed.
G. W. Belcher, of Reno, for Appellant.
Harvey Dickerson, Attorney General, Carson City; William J. Raggio, District Attorney,
and Kathleen M. Wall, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Successive post-conviction applications are prohibited only where petitioner knowingly and
understandingly waived ground for which he was seeking relief or had no reasonable cause for omitting
ground in his original, supplemental, or amended petition. NRS 177.375.
2. Criminal Law.
Absent a subsequent court decision of constitutional dimension that bears on an accused's right to fair
trial, court need not entertain successive applications for post-conviction relief unless the accused's failure
to assert grounds for relief in his original application may be excused. NRS 177.375.
3. Criminal Law.
Even though an accused may file successive applications for post-conviction relief, court is not required
to entertain such petitions unless accused satisfactorily explains in his later application for relief why he
failed to assert grounds that he had available to him in his original, supplemental, amended petition.
4. Criminal Law.
Where accused's prior application for post-conviction relief was dismissed and accused failed to offer in
present application explanation for his failure to move prior to trial to suppress objectionable evidence,
object to its admission during trial or assert such grounds for relief in his first post-conviction application,
accused was barred from doing so in a second post-conviction application.
OPINION
In this appeal we are asked to rule on the effective application of NRS 177.375 of our
Post-Conviction Procedure Act to repetitive petitions filed thereunder. NRS 177.375
provides:
All grounds for relief available to a petitioner under NRS 177.315 to 177.385, inclusive,
must be raised in his original, supplemental or amended petition. Any ground not so raised or
finally adjudicated or knowingly and understandably waived in the proceedings resulting in
the conviction or sentence or in any other proceeding that the petitioner has taken to
secure relief from his conviction or sentence may not be the basis for a subsequent
petition, unless the court finds a ground for relief asserted which for reasonable cause
was omitted or inadequately raised in the original, supplemental, or amended petition."
any other proceeding that the petitioner has taken to secure relief from his conviction or
sentence may not be the basis for a subsequent petition, unless the court finds a ground for
relief asserted which for reasonable cause was omitted or inadequately raised in the original,
supplemental, or amended petition. (Emphasis added.)
1. Direct Appeal.
Appellant Walter L. Rogers was charged with murder. He was tried to a jury, convicted,
and sentenced to life imprisonment without possibility of parole. We sustained his conviction
on a direct appeal, in Rogers v. State, 83 Nev. 376, 432 P.2d 331 (1967).
2. First Post-Conviction Application.
In 1968 Rogers filed his first post-conviction application under our Post-Conviction
Procedure Act (NRS 177.315-177.385). In that application Rogers claimed that his conviction
was void because the jury that tried him had not been selected in accord with the mandates
prescribed in Witherspoon v. Illinois, 391 U.S. 510 (1968). The State answered that the ruling
in Witherspoon was applicable only in those cases where the jury had returned the death
penalty. The district judge agreed, and the application was dismissed. Rogers filed a notice of
appeal from the court's order of dismissal, but he never perfected the appeal.
3. Second Post-Conviction Application.
In 1969 Rogers filed his second post-conviction application, asserting this time that his
conviction was void on the ground that the physical evidence offered by the State and
received during his trial was illegally obtained.
1
The district judge denied Rogers's second
post-conviction application on the ground that he had failed to raise the issue in his first
post-conviction application and, under the provisions of NRS 177.375, supra, was barred
from doing so in successive petitions. We agree, and we affirm the order of the district court
dismissing the second post-conviction application.
[Headnote 1]
4. Successive Post-Conviction Applications.
It is clear from the language of NRS 177.375, supra, that successive post-conviction
applications are not prohibited in every case, but only in those cases where the petitioner
knowingly and understandingly waived the ground for which he now seeks relief, or had no
reasonable cause for omitting the ground in his "original, supplemental, or amended
petition."
____________________

1
Rogers's then counsel of record failed to move to suppress the evidence prior to trial and indeed did not
object when it was offered during the trial.
ground in his original, supplemental, or amended petition. NRS 177.375 was drawn from
the Uniform Post-Conviction Procedure Act's Waiver of Claims section. 8, 9B, U.L.A.
(1966). The Note, thereunder, of the Conference of Commissioners on Uniform State Laws
explains with clarity the reason for the rule:
Many petitions for habeas corpus or other post-conviction relief are repetitious; others
often are specious. This places an unnecessary burden upon the courts. It is highly desirable
that a petitioner be required to assert all of his claims in one petition. His failure to assert
them constitutes a waiver. The way is left open, however, for a subsequent petition if the
court finds grounds for relief that could not reasonably have been raised in the original
petition.
[Headnotes 2, 3]
Criminal appeals must be given finality. In the absence of a subsequent court decision of
constitutional dimension that bears on a defendant's right to a fair trial, the court need not
entertain petitioner's successive applications for relief unless petitioner's failure to assert the
grounds for relief in his original application may be excused under the provisions of NRS
177.375. The question is not how many writs the applicant may file, but whether or not he
can compel the court to entertain them. We hold that, even though a petitioner may file
successive writ applications under the Act, the court is not required to entertain such petitions
unless the petitioner satisfactorily explains in his later application for relief why he failed to
assert the grounds that he had available to him in his original, supplemental or amended
petition. Other jurisdictions have so held.
In Tiller v. Warden, 229 A.2d 600, 603, 604 (Md.App. 1967), it was held that a petitioner
was barred from filing successive post-conviction applications unless he showed special
circumstances for his omission on prior applications. Relying upon a provision substantially
similar to our own NRS 177.375, the court held:
. . . [A]pplicant asserts no facts other than the mere conclusory statement that he was not
present at all stages of his trial. Not having alleged any special circumstances' in his second
petition to excuse his failure to have raised the issue either on direct appeal or in his first
petition under the Act he will not be afforded an opportunity to do so for the first time at a
hearing on his second petition.
In People v. Burks, 227 N.E.2d 84 (Ill.App. 1967), the Illinois appellate court summarily
affirmed the dismissal of a second post-conviction petition.
Illinois appellate court summarily affirmed the dismissal of a second post-conviction petition.
The court held that the dismissal of a first post-conviction petition from which an appeal was
taken was res judicata under their statute and that the petitioner had waived any claim of
substantial denial of constitutional rights which he had not raised in the original or amended
petition.
The same result was reached by the Supreme Court of Pennsylvania in Commonwealth v.
Black, 249 A.2d 561 (Pa. 1969), in relying upon a similar post-conviction procedural
provision. In that case it was held that the lower court properly denied a hearing on a second
post-conviction application. As the court observed at 562:
. . . Since appellant does not produce any evidence of extraordinary circumstances which
would justify this failure, we must assume that his failure to raise was knowing and
understanding.
In Church v. Gladden, 417 P.2d 993 (Ore. 1966), the court, relying upon the Uniform
Post-Conviction Procedure Act (adopted by Oregon in 1959), held that petitioner's allegation
in his second petition that he wanted to raise the issues in his first petition, but was prevented
by his attorney, was specious. The court stated at 995:
If petitioner has stated grounds for post-conviction relief which fall without the res
judicata provision of ORS 138.550(3), it is absolutely impossible that there be any finality to
this type of litigation.
See also Harris v. State, 229 A.2d 604 (Md.App. 1967); Curnyn v. Warden, Maryland
House of Correction, 230 A.2d 685 (Md.App. 1967); Bagley v. Warden, Maryland
Penitentiary, 228 A.2d 491 (Md.App. 1967); Commonwealth v. Adams, 239 A.2d 851
(Pa.App. 1968).
[Headnote 4]
Rogers, having failed to offer in this present application for post-conviction relief any
explanation for his failure to (1) move prior to trial to suppress the objectionable evidence,
(2) object to its admission during trial, or (3) assert the grounds for relief in his first
post-conviction application, is barred from doing so in his second post-conviction
application. Therefore, the order of the district judge denying the petition is affirmed.
____________
86 Nev. 364, 364 (1970) Zuni Construction Co. v. Great American Insurance Co.
ZUNI CONSTRUCTION CO., INC., a Nevada Corporation, Appellant, v. GREAT
AMERICAN INSURANCE COMPANY, an Insurance Corporation, Respondent.
No. 6028
May 11, 1970 468 P.2d 980
Appeal from order granting summary judgment. Eighth Judicial District Court, Clark
Action by contractor against surety on subcontractor's performance bond. The district court
granted surety's motion for summary judgment and appeal was taken. The Supreme Court,
Zenoff, J., held that where general contractor and subcontractor renegotiated contract to
increase its price approximately 32 percent, surety on subcontractor's performance bond was
not liable for subcontractor's failure to perform additional work but was liable for failure to
perform original contract and that evidence raised issues of fact as to whether assignment of
subcontract constituted novation and as to whether surety was prejudiced by assignment.
Reversed and remanded.
Singleton, Beckley, DeLanoy, Jemison & Reid, of Las Vegas, for Appellant.
Albright, George, Johnson, Steffen & Simmons, of Las Vegas, for Respondent.
All evidence favorable to party against whom summary judgment was rendered will be accepted as true.
All favorable inferences will be drawn in favor of party who lost on summary judgment.
3. Judgment.
Trial court is to consider all affidavits, depositions, pleadings and answers to interrogatories on file in
disposing of motion for summary judgment.
4. Judgment.
Summary judgment should be granted only where no genuine issue of fact remains for trial.
5. Judgment.
Litigant is entitled to trial on merits where there is slightest doubt as to facts.
6. Principal and Surety.
Strict construction in favor of compensated surety is not the policy of the law in Nevada.
Compensated surety cannot be discharged from its obligation when there is alteration or modification in
contract unless surety shows it was prejudiced or injured by variance.
Where general contractor and subcontractor renegotiated contract to increase its price approximately 32
percent, surety on subcontractor's performance bond was not liable for subcontractor's failure to perform
additional work but was liable for failure to perform original contract.
When contract change results in easily measured damage to compensated surety so that penalty of total
discharge of surety would be disproportionate to blame attaching to creditor for modification, surety is
discharged only to extent of its loss.
If subcontractor was discharged by novation, surety on subcontractor's performance bond was discharged.
11. Novation.
Intent of parties to cause novation must be clear.
12. Novation.
Consent to assignment of contract is not enough to constitute novation.
13. Judgment.
Under evidence that general contractor consented to subcontractor's assignment of contract to new
corporation, it could not be concluded on summary judgment that general contractor's consent was
accompanied by intent to release subcontractor.
14. Judgment.
Evidence that general contractor consented to assignment of subcontract created issues of fact as to
whether general contractor intended to release subcontractor and thereby release surety on subcontractor's
performance bond and precluded grant of summary judgment.
For subcontractor's surety to be released because of assignment of contract, there must be some showing
of injury to surety from assignment.
16. Judgment.
Evidence on motion for summary judgment in contractor's action against surety on subcontractor's
performance bond created issues of fact as to whether assignment of subcontract prejudiced surety.
OPINION
Zuni Construction Co. entered into two separate subcontract agreements with White
Concrete Co. as follows:
1. That White could perform the concrete work on the Rancho-Sahara Medical Center
project for $95,034, and 2.
2. That White would perform the concrete work to be done on the University of Nevada at
Las Vegas Library for $86,753.
The first contract was executed February 14, 1966 and the second on May 20, 1966. The
respondent surety company wrote the performance bonds for both jobs. After the first contract
was signed Zuni and White agreed that White would supply the concrete which White had
not originally agreed to do and added $29,954 to the contract so that the total price became
$124,988. They did not notify the bonding company of the change. Instead, when White
applied for a bond on the second project their financial statement showed the Rancho-Sahara
obligation to be $125,034 which by that time reflected the new total figure.
Still later, White formed a corporation called White, Inc., composed of three stockholders,
White 50 percent, Scott 25 percent and Miller 25 percent. Miller and Scott were officers of
Zuni and each invested $10,000 in the White corporation.
White Concrete Co. assigned the library contract to the corporation. Zuni consented to the
assignment but the assignment contained no specific reference as to whether or not Zuni
released White from individual liability or responsibility under the contract.
In October 1966 White left both jobs and Zuni was forced to relet the contracts so that the
projects could be completed. Zuni sued the surety for $17,764 on the Rancho job and $33,778
on the library job. The surety denied liability on both, as to the Rancho job because of the
alteration in the contract wherein White was to supply the concrete and as to the University
job on the grounds that the assignment to White, Inc., from White Concrete Co. constituted a
novation, thereby releasing the surety.
The trial court granted the surety's motions for summary judgment on both claims and
Zuni appeals.
[Headnotes 1-5]
1. By granting summary judgment the lower court construed the contracts strictly in favor
of the surety. Summary judgment is a drastic remedy, therefore, all evidence favorable to the
party against whom such summary judgment was rendered will be accepted as true. Pine v.
Leavitt, 84 Nev. 507, 445 P.2d 942 (1968). All favorable inferences will be drawn in favor of
the party who lost on the summary judgment. Kaminski v. Woodbury, 85 Nev. 667, 462 P.2d
45 {1969).
(1969). The trial court is to consider all affidavits, depositions, pleadings and answers to
interrogatories on file. Adamson v. Bowker, 85 Nev. 115, 450 P.2d 796 (1969). The trial
court should only grant a summary judgment where no genuine issue of fact remains for trial.
Pine v. Leavitt, supra; Whiston v. McDonald, 85 Nev. 508, 458 P.2d 107 (1969); Bair v.
Berry, 86 Nev. 26, 464 P.2d 469 (1970). A litigant is entitled to a trial on the merits where
there is the slightest doubt as to the facts. Short v. Riviera Hotel, Inc., 79 Nev. 94, 378 P.2d
979 (1963).
[Headnote 6]
2. Strict construction in favor of a compensated surety is no longer the policy of the law in
this state. Our court departed from the tight application of Truckee Lodge v. Wood, 14 Nev.
293 (1879), and in Acoustics, Inc. v. American Surety Co., 74 Nev. 6, 320 P.2d 626 (1958),
stated the current authority to be that the contract of a compensated surety is to be interpreted
liberally in the interests of the promisee and the beneficiaries rather than strictly in favor of
the surety. By our emphasis on compensated surety we mean to distinguish the application
of the rule from that of the voluntary or accommodating guarantor as in Adelson v. Wilson &
Co., 81 Nev. 15, 398 P.2d 106 (1965); Nevada Bank of Commerce v. Esquire Real Estate,
Inc., 86 Nev. 238, 468 P.2d 22 (1970); Chapman v. Hoage, 296 U.S. 526 (1936); Honolulu
Roofing Co. v. Felix, 426 P.2d 298 (Haw. 1967); E. E. Rabalais & Son, Inc. v. United
Bonding Ins. Co., 226 So.2d 528 (La.App. 1969); Ore-Ida Potato Products, Inc. v. United
Pacific Ins. Co., 392 P.2d 191 (Idaho 1964); Atterbury v. Carpenter, 321 F.2d 921 (9th Cir.
1963); Restatement, Security 82(i) (1941); 3 Corbin, Contracts 559, at 266 (1960).
[Headnote 7]
Where there is a compensated surety, the surety cannot be discharged from its obligation
when there is an alteration or modification in the contract unless it shows it was prejudiced or
injured by the variance. Ardsley, Inc. v. United Pac. Ins. Co., 74 Nev. 377, 332 P.2d 1000
(1958); Illinois Surety Co. v. John Davis Co., 244 U.S. 376 (1917); National Union Fire Ins.
Co. v. Denver Brick and Pipe Co., 427 P.2d 861 (Colo. 1967).
3. Rancho-Sahara Subcontract:
[Headnotes 8, 9]
As already indicated, Zuni sued the surety for $17,764.00 claimed to be due on this
project.
claimed to be due on this project. Of that amount $12,681.85 is admittedly for the default of
White, the principal on the bond, in not paying for the cement he had purchased. The change
in the subcontract between White and Zuni Construction which required White to buy the
cement and pay for it was a material change which increased the contract price approximately
32 percent and accordingly increased the risk of the compensated surety to his prejudice in
the sum of $12,681.85. To this extent the lower court ruled correctly that the surety was
discharged. The court erred, however, in discharging the surety for the full amount of Zuni's
claim and trial should occur as to the balance of its claim in the amount of $5,083. We apply
the principal enunciated by Restatement of Security 128(b) that when the contract change
results in an easily measured damage to the compensated surety so that the penalty of a total
discharge of the surety would be disproportionate to the blame attaching to the creditor for the
modification, the surety is discharged only to the extent of its loss. See also Reliance Ins. Co.
v. Colbert, 365 F.2d 530, 535 (D.C.Cir. 1966).
4. Nevada Library Subcontract:
[Headnotes 10-14]
In Williams v. Crusader Disc. Corp., 75 Nev. 67, 334 P.2d 843 (1959), this court ruled that
the substitution of a new obligation for an existing one is a novation because the first debt is
extinguished and all parties are discharged on the first contract. If White is discharged by the
novation, then the surety is discharged also. Consequently, it must be determined whether or
not all of the parties agreed at the time the contract was assigned by White to the corporation
that the consent to the assignment constituted a discharge of White as the original debtor and
the corporation substituted in his place. Nevada Bank of Commerce v. Esquire Real Estate,
Inc., supra. The assignment did not so state. The intent of the parties to cause a novation must
be clear. Consent to an assignment is not enough. All inferences must be drawn in Zuni's
favor, therefore, it cannot be concluded on summary judgment that Zuni's consent was
accompanied by an intent to release White. The case must go to trial to ascertain the intent
when the assignment was made. Holland v. Crummer Corp., 78 Nev. 1, 368 P.2d 63 (1962);
Reilly v. Cook, McKay & Co., 381 P.2d 261 (Colo. 1963); W. Crawford Smith, Inc. v.
Watkins, 425 S.W.2d 276 (Mo.App. 1968); Mace v. Conde Nast Publications, Inc., 237 A.2d
360 (Conn. 1967).
The contract and performance bond both bound the parties, their heirs, executors,
successors, administrators, and assigns. Similar language in Illinois Surety Co. v. John Davis
Co., supra, was not enough to allow the discharge of the surety.
[Headnotes 15, 16]
Again, in this instance, the surety is required to show some injury from the assignment.
Respondent argues that the two stockholders, Scott and Miller, might have been in a position
to detrimentally and adversely affect the operation of White, Inc., and by reason of their
participation in the corporation a factor was created by the assignment that the surety
company had not bargained for. It can be argued conversely that their contributions of capital
gave the surety a stronger company upon which it could rely. Such contentions must be fully
explored, but not upon affidavits. James Miles & Son Co. v. Aetna Casualty & Surety Co., 1
F.Supp. 925 (D. Mass. 1932); Corvallis & A. R. R. Co. v. Portland E. & E. Ry. Co., 163 P.
1173 (Ore. 1917); Glens Falls Insurance Co. v. Wright Contracting Co., 276 F.Supp. 122 (D.
Md. 1965); Bianco v. Firemen's Fund Indemnity, 232 P.2d 386 (Ariz. 1951).
Only a full-scale trial can develop the merits of the problems presented. Reversed and
remanded for trial in accordance with this opinion.
____________
86 Nev. 369, 369 (1970) Hollander v. Warden
HERMAN HOLLANDER, Appellant, v. WARDEN,
No. 6049
May 11, 1970 468 P.2d 990
Appeal from denial of habeas corpus seeking post-conviction relief from alleged improper
application of prior felony convictions. Second Judicial District Court, Washoe County;
Grant L. Bowen, Judge.
The Supreme Court, Zenoff, J., held that where defendant was not being punished for prior
California conviction for issuing check without sufficient funds but for primary offense of
carrying concealed weapon and California conviction was used with others to show that
defendant was a recidivist, conversion of status in Nevada of offense of issuing check
without sufficient funds from misdemeanor to felony after defendant's prior conviction
did not constitute an ex post facto law when offense was listed as one of his prior felony
convictions to enhance his punishment for primary offense.
used with others to show that defendant was a recidivist, conversion of status in Nevada of
offense of issuing check without sufficient funds from misdemeanor to felony after
defendant's prior conviction did not constitute an ex post facto law when offense was listed as
one of his prior felony convictions to enhance his punishment for primary offense.
Affirmed.
H. Dale Murphy, Public Defender, and Jerome M. Polaha, Deputy Public Defender,
Washoe County, for Appellant.
1. Weapons.
Any of defendant's former felonies together with act of possessing a firearm constituted separate crime of
being ex-felon in possession of a firearm and such crime was distinct from any of the others.
Accused's prior robbery conviction used in order to establish charge of his being ex-felon in possession
of firearm was ingredient of that crime and its inclusion in information was proper. NRS 207.010, subds.
2, 5.
Any law which is passed after commission of offense for which party is being tried is an ex post facto law
when it inflicts a greater punishment than law annexed to crime at time it was committed.
4. Criminal Law.
Habitual criminal proceeding is not a separate offense but is solely to determine facts that if true will
increase punishment and proceeding does not increase punishment for crime for which defendant has been
on trial but merely allows increased punishment for his status as a repeat offender.
5. Criminal Law.
Under habitual criminal proceeding penalty is harsher one for latest crimes because it is considered that
offender has aggravated his status because he is a repeater.
Enactment of a statute or its amendment which imposes a harsher penalty after prior convictions is not an
ex post facto law.
Where defendant was not being punished for prior California conviction for issuing check without
sufficient funds but for primary offense of carrying concealed weapon and California conviction was used
with others to show that defendant was a recidivist, conversion of status in Nevada of offense of issuing
check without sufficient funds from misdemeanor to felony after defendant's prior conviction did not
constitute an ex post facto law when offense was listed as one of his prior felony
convictions to enhance his punishment for primary offense.
law when offense was listed as one of his prior felony convictions to enhance his punishment for primary
offense. NRS 207.010, subds. 2, 5.
8. Criminal Law.
Habitual criminal status is not an offense but an averment of fact to show that accused is a recidivist and
discretion vested in district attorney under Habitual Criminal Act is not unconstitutional. NRS 207.010,
subd. 4.
Discretion of district attorney under Habitual Criminal Act does not violate either due process clause or
equal protection clause so long as selection of whether to charge a defendant as habitual criminal is not
based on an unjustifiable standard such as race, religion and/or other arbitrary classification. NRS
207.010, subd. 4.
OPINION
Herman Hollander is an habitual criminal serving a sentence of life imprisonment. In
November of 1965 Hollander was convicted of being an ex-felon in possession of a firearm.
After his conviction the district attorney filed an amended information in which he listed five
prior felonies to support the allegation that Hollander should be sentenced as an habitual
criminal under NRS 207.010(2). He was determined to be an habitual criminal and his appeal
to this court was affirmed except as to a correction in the sentencing procedure. Hollander v.
State, 82 Nev. 345, 418 P.2d 802 (1966). This present appeal comes to us from the denial of
his post-conviction petition for release in the trial court.
Specifically, Hollander appeals from the denial of the post-conviction writ upon the
following: (1) That a 1954 conviction for robbery was used as proof that he was an ex-felon
on the primary charge of the possession of a firearm. Relying upon the Kansas case of State v.
Ware, 442 P.2d 9 (Kan. 1968), he contends that the robbery conviction should not therefore
have been used to also show that he is an habitual criminal. (2) One of the prior felony
convictions was that of issuing a check without sufficient funds in California. Although it
was a felony at the time in California it was not a felony in Nevada, but in 1963 by statutory
amendment the offense was made a felony. He claims now that the conversion of it from a
misdemeanor into a felony constituted an ex post facto law when it was listed as one of his
prior felony convictions. (3) That under the Habitual Criminal Act the legislative power and
discretion vested in the district attorney was unconstitutional.
and discretion vested in the district attorney was unconstitutional.
[Headnote 1]
1. Hollander's status as a recidivist criminal is not founded upon the last felony for which
he was convicted. His prior felonies were exclusive of the crime charged, to wit, ex-felon in
possession of a firearm. Being an ex-felon is his status because of earlier convictions. Any
one of the former felonies together with the act of possessing a firearm constitutes a separate
crime distinct from any of the others. In order to establish the violation of this charge the
prosecutor selected a 1954 robbery conviction to prove him a felon.
[Headnote 2]
In Kansas the primary charge can be used to double the penalty of a criminal twice
convicted (State v. Ware, supra), but that is not the case in Nevada. The robbery conviction
was an ingredient of the present crime charged. Its inclusion in the information does not run
afoul of NRS 207.010(5) which prohibits reference to past crimes to the jury or at the trial of
the primary offense. Nester v. State, 75 Nev. 41, 47, 334 P.2d 524 (1959). The allusion to a
past crime in this case is allowable because it is an element of the present crime with which
he is charged.
2. Hollander contends that a prior conviction, not a felony in Nevada at the time it was
committed, was used to enhance his punishment because it was later declared a felony by
statutory amendment and that ex post facto applies.
In 1958 he was convicted of issuing a check without sufficient funds which was then a
felony in California but only a misdemeanor in Nevada. Later, in 1963, the crime was
changed into a felony by amendment. Hollander was convicted of carrying a concealed
weapon in 1965. Therefore, his insufficient check crime, a felony in California, was in 1965
also a felony in Nevada at the time he came under the habitual criminal statute.
1
He claims
the amendment is an ex post facto law and therefore cannot be applied to him.
[Headnotes 3-5]
Any law which was passed after the commission of the offense for which the party is being
tried is an ex post facto law when it inflicts a greater punishment than the law annexed to the
crime at the time it was committed.
____________________

1
Furthermore, the Habitual Criminal Act was amended in March of 1965, so even if the crime was not a
felony in Nevada it could be included if it was a felony at the situs of the crime.
to the crime at the time it was committed. In re Medley, 134 U.S. 160, 171 (1890). We
emphasize the admonition of Medley, supra, as it applies to an offense for which the party is
being tried. The habitual criminal proceeding is not a separate offense, but is solely to
determine facts that if true will increase the punishment. The proceeding does not increase the
punishment for that crime for which he has been on trial but merely allows increased
punishment for his status as a repeat offender. White v. State, 83 Nev. 292, 429 P.2d 55
(1967); Atteberry v. State, 84 Nev. 213, 438 P.2d 789 (1968); Howard v. State, 83 Nev. 53,
422 P.2d 548 (1967). The penalty is a harsher one for the latest crimes because it is
considered that the offender has aggravated his status because he is a repeater. Gryger v.
Burke, 334 U.S. 728 (1948).
[Headnote 6]
The enactment of a statute or its amendment which imposes a harsher penalty after prior
convictions is not an ex post facto law. Alaway v. United States, 280 F.Supp. 326 (C.D. Cal.
1968); State v. Bomar, 376 S.W.2d 446 (Tenn. 1964); Wey Him Fong v. United States, 287
F.2d 525 (9th Cir. 1961); State v. Steemer, 121 N.W.2d 813 (Neb. 1963); People v. Miller, 98
N.W.2d 524 (Mich. 1959).
[Headnote 7]
Hollander is not being punished for the California conviction but for the primary offense
of carrying a concealed weapon. The California conviction was used with others to show that
he was a recidivist which thereby caused an enhancement of punishment for the primary
offense of an ex-felon carrying a weapon. Ex parte McVickers, 176 P.2d 40 (Cal. 1946).
[Headnotes 8, 9]
3. Hollander also claims that the Habitual Criminal Act unconstitutionally vested
legislative power and discretion in the district attorney. He seeks to rely on Lapinski v. State,
84 Nev. 611, 446 P.2d 645 (1968). That case, however, does not apply to his circumstances.
There, we held that the district attorney could not define the degree of an offense after the
offense itself had been charged. The habitual criminal status is not an offense. It is an
averment of fact to show that petitioner is a recidivist. NRS 207.010(4) gives the district
attorney discretion and Oyler v. Boles, 368 U.S. 448 (1962), upholds that discretion as a mere
legislative delegation of administrative duties and no violation of either the due process
clause or the equal protection clause so long as the selection of whether to charge a
defendant as an habitual criminal by the district attorney is not based upon an
unjustifiable standard such as race, religion andJor other arbitrary classification.
clause or the equal protection clause so long as the selection of whether to charge a defendant
as an habitual criminal by the district attorney is not based upon an unjustifiable standard
such as race, religion and/or other arbitrary classification. See also Wilwording v. State, 438
S.W.2d 447 (Mo. 1969); Scoggins v. State, 454 P.2d 550 (Kan. 1969); State v. Bomar, supra;
People v. Birmingham, 164 N.W.2d 561 (Mich.App. 1968).
Affirmed.
____________
86 Nev. 374, 374 (1970) George v. Nevada Gaming Commission
JOHN G. GEORGE, Appellant, v. NEVADA GAMING COMMISSION, Consisting of
JOHN W. DIEHL, Chairman, HENRY W. BERRUM, NORMAN D. BROWN, DR.
SAMUEL W. DAVIS, and GEORGE W. VON TOBEL, Members, Respondent.
No. 6057
May 11, 1970 468 P.2d 995
Appeal from order denying petition for mandamus; Eighth Judicial District Court, Clark
The Supreme Court, Mowbray, J., held that district court was without jurisdiction to
entertain gaming license applicant's petition for mandamus seeking, preparatory to hearing
before gaming commission, subpoenas, subpoena duces tecum, and appropriate standard of
suitability to qualify for gaming license.
Affirmed.
Ross & Crow, of Carson City; Peter L. Flangas, of Las Vegas; McAtee, Marchiando &
Michael, of Albuquerque, New Mexico; and Standley, Witt & Quinn, of Santa Fe, New
Mexico, for Appellant.
Harvey Dickerson, Attorney General, of Carson City, and John G. Spann, Deputy Attorney
General, of Las Vegas, for Respondent.
Mandamus.
District court was without jurisdiction to entertain gaming license applicant's petition for mandamus
seeking, preparatory to hearing before gaming commission, subpoenas, subpoena duces tecum, and
appropriate standard of suitability to qualify for gaming license. NRS 463.315, subd. 13.
OPINION
John G. George has appealed from an order of the district court denying his petition for
mandamus, wherein he asked the district court to order the respondent, Nevada Gaming
Commission, to issue in George's behalf, preparatory to a hearing before the Commission: (1)
subpoenas,
1
(2) a subpoena duces tecum,
2
and (3) an appropriate standard of suitability to
qualify for a gaming license. The district judge denied the petition, and correctly so, on the
ground that the district court was without jurisdiction to entertain the writ application.
1. The Facts.
George applied to the State Gaming Control Board for a gaming license.
3
He desired to
acquire a 25 percent interest in an already existing gaming license that had been previously
issued to the Valley Inn at Mesquite, Nevada. The Board, after investigating and considering
George's application, recommended to the Commission that his application be denied. A
hearing on the Board's recommendation of denial was scheduled before the Commission.
Prior to the hearing, however, George filed in the district court his petition for mandamus,
which is the subject of this appeal.
2. The State Gaming Control Board.
The State Gaming Control Board is a three-member board charged with the duty of
investigating the qualifications of applicants seeking gaming licenses and with the duty of
continued surveillance over the conduct of those applicants who receive licenses.
____________________

1
George named in his request for subpoenas all the members of the State Gaming Control Board and the
Board's Las Vegas investigators.

2
George had requested the Commission to direct the Board to make available for inspection, examination,
review and copying by the petitioner's representative, all correspondence, memoranda, reports, documents,
summaries, photographs, photoprints, police data, physical evidence, and everything of whatsoever form or
nature, legally obtained, in the possession, custody or control of the State Gaming Control Board, which pertain
in any way to the petitioner's background, character, reputation, ability, associates, arrests, [or] employment . . .
.

3
George had not been previously issued a license.
applicants seeking gaming licenses and with the duty of continued surveillance over the
conduct of those applicants who receive licenses. NRS 463.210.
4

3. The Nevada Gaming Commission.
The Nevada Gaming Commission is a five-member administrative body constituted under
the authority of chapter 463 of NRS, the Nevada Gaming Control Act. The Commission is
charged with administering the Gaming Control Act and has full and absolute power and
authority to deny any application for a license for any cause deemed reasonable by such
commission. NRS 463.220(5).
5

4. Court Intervention.
The district court was without jurisdiction to entertain George's petition for mandamus.
State Gaming Control Board v. Eighth Judicial District Court, 82 Nev. 38, 40, 409 P.2d 974,
975 (1966), is dispositive of the issue presented in this appeal. There, this court, in a case
involving a disciplinary proceeding before the Gaming Control Board, announced with
clarity:
. . . The State Constitution, art. 6, 6, does not authorize court intrusion into the
administration, licensing, control, supervision and discipline of gaming, and the Gaming
Control Act expressly forbids court intervention by writ or other equitable proceedings.'
NRS 463.315(13) . . . . Any effort to obstruct the orderly administrative process provided
by the Gaming Control Act casts serious doubt upon the ability of Nevada to control the
privileged enterprise of gaming. . . .
____________________

4
NRS 463.210:
1. Within a reasonable time after filing of an application and such supplemental information as the board
may require, the board shall commence its investigation of the applicant and shall conduct such proceedings in
accordance with applicable regulations as it may deem necessary.
2. The board shall make its order, either recommending approval or denial of an application, not longer than
90 days after the application and supporting data are completed and filed with the board. In the event denial of
an application is recommended, the board shall prepare and file with the commission its written reasons upon
which the order is based.
3. The board shall have full and absolute power and authority to recommend denial of any application for a
license for any cause deemed reasonable by the board.
4. A recommendation of denial of an application shall be without prejudice to a new and different
application if made in conformity to regulations applicable to such situations.

5
NRS 463.220(5):
The commission shall have full and absolute power and authority to deny any application for a license for
any cause deemed reasonable by such commission. In the event an application is denied, the commission shall
prepare and file its written decision upon which its order denying such application is based.
obstruct the orderly administrative process provided by the Gaming Control Act casts serious
doubt upon the ability of Nevada to control the privileged enterprise of gaming. . . . Courts
owe fidelity to the legislative purpose and must not block the Gaming Control Board in its
effort to discharge assigned duties.
6
(Emphasis added; footnote omitted.)
The instant case is a clear example of the reason for the rule. The Commission has not had
an opportunity to consider and pass on George's application. The Board alone has considered
it, and the Board has recommended denial. The final disposition of George's application rests
with the Commission, as prescribed in NRS 463.220(3).
7

The order of the district judge denying the appellant's petition for mandamus is affirmed.
____________________

6
NRS 463.315(13), referred to in the foregoing quotation, reads as follows:
The judicial review by the district and supreme courts afforded in this chapter shall be the exclusive method of
review of commission actions, decisions and orders, and shall preclude the use of any of the extraordinary
common law writs or other equitable proceedings.

7
NRS 463.220(3):
After final order of the state gaming control board recommending denial of an application, the commission,
after considering the recommendation of the board, may:
(a) Deny the application;
(b) Remand the matter to the board for such further investigation and reconsideration as the commission may
order; or
(c) By unanimous vote of the members present, grant the application for a license.
____________
86 Nev. 377, 377 (1970) Peccole v. Fresno Air Service, Inc.
ROBERT PECCOLE and BARNEY PERLMAN, Appellants, v. FRESNO AIR SERVICE,
INC., Respondent.
No. 5975
May 18, 1970 469 P.2d 397
Appeal from judgment of the Second Judicial District Court, Washoe County; Emile J.
Gezelin, Judge.
Action by foreign corporation to recover on contract to transport passengers on portion of
journey to resort area.
The district court rendered judgment from which appeal was taken. The Supreme Court,
Thompson J., held that solicitation by foreign corporation within state of agreement to
transport passengers within another state in promotion of corporation's interstate business did
not constitute doing business in state within contemplation of statute that foreign corporation
may not maintain action unless and until it files certified copy of its charter and obtains
authorizing certificate; thus, corporation, which was not certified to do business in state, was
entitled to maintain action in state courts on agreement.
Affirmed.
Robert N. Peccole, of Las Vegas, for Appellants.
McCune & Williams, of Reno, for Respondent.
1. Corporations.
It is constitutionally permissible to impose penalties on a foreign corporation doing business in the state
without complying with qualification statutes. NRS 80.010 et seq., 80.120, 80.210.
2. Commerce.
A state may not require qualification of a foreign corporation to do business within the state if its business
is interstate rather than intrastate in nature; such a corporation is free to send a representative into the state
to promote interstate trade without interference from regulations imposed by the state. NRS 80.010 et
seq., 80.120, 80.210.
3. Corporations.
Solicitation by foreign corporation within state of agreement to transport passengers within another state
in promotion of corporation's interstate business did not constitute doing business in state within
contemplation of statute that foreign corporation may not maintain action unless and until it files certified
copy of its charter and obtains authorizing certificate; thus, corporation, which was not certified to do
business in state, was entitled to maintain action in state courts on agreement. NRS 80.010 et seq.,
80.120, 80.210.
4. Corporations.
Process may be effectively served on a foreign corporation if it has certain minimum contacts within the
state such that maintenance of a suit against it does not offend traditional notions of fair play and
substantial justice. NRS 80.010 et seq., 80.120, 80.210.
5. Principal and Agent.
Where identity of principal was unknown until after suit was commenced against agents and plaintiff
thereafter amended complaint to name principal as party defendant, election to proceed against agents after
defendants moved to compel plaintiff to elect which of defendants it sought to hold liable on contract did
not destroy right of recovery.
An agent is not absolved from liability on a contract which he has made for partially disclosed principal.
OPINION
A provision of ch. 80 NRS denies a foreign corporation transacting business in Nevada the
right to bring an action in this state unless and until it files with the Secretary of State a
certified copy of its charter and obtains from him a certificate authorizing it to do business in
the state.
1
Fresno Air Service is a foreign corporation. It entered into an oral agreement in
Nevada with Peccole and Perlman pursuant to which Fresno Air was to fly passengers from
Fresno, California, to Truckee, California, where they were then to be transported by
Cal-Neva Lodge to Crystal Bay, Lake Tahoe, Nevada. Fresno Air was to be paid $21 per
passenger plus advertising expense. This arrangement proved unprofitable for Peccole and
Perlman and they directed Fresno Air to discontinue the service. At that time they owed
Fresno Air $2,975.60. In payment, they offered $2,300 in cash plus $600 in bad checks.
The bad checks were those of one of the passengers and cashed at Cal-Neva Lodge. This
tender of payment was refused, and suit to recover the amount due was instituted. The district
court returned judgment for Fresno Air. We are asked to set aside that judgment on the
ground that Fresno Air did not qualify to do business in Nevada as a foreign corporation and
may not, therefore, enjoy access to our courts.
[Headnotes 1-4]
1. It is constitutionally permissible for Nevada to impose penalties upon a foreign
corporation doing business in this state without complying with our qualification statutes. Eli
Lilly & Co. v. Sav-on-Drugs, 366 U.S. 276 (1961); State v. Koontz, 69 Nev. 25, 33, 240 P.2d
525 (1952). It is equally well established that Nevada may not require qualification of a
foreign
____________________

1
NRS 80.210 reads: Every corporation which fails or neglects to comply with the provisions of NRS 80.010
to 80.040, inclusive, shall be subject to a fine of not less than $500, to be recovered in a court of corporation
if its business is interstate competent jurisdiction, and shall not be allowed to commence, maintain, or
defend any action or proceeding in any court of this state until it shall have fully complied with the provisions of
NRS 80.010 to 80.040, inclusive. See also NRS 80.120.
corporation if its business is interstate rather than intrastate in nature. Robbins v. Shelby
County Taxing District, 120 U.S. 489 (1887). Such a corporation is free to send a
representative into Nevada to promote interstate trade without interference from regulations
imposed by this state. Robbins v. Shelby County, supra. This is precisely what happened in
the case at hand. A representative of Fresno Air came to Nevada, contacted Peccole and
Perlman, and solicited the agreement which resulted. The air flights were intrastate in
California, Fresno to Truckee, and promoted Fresno Air's interstate business. The solicitation
of the agreement in Nevada is not doing business in this state within the contemplation of
NRS 80.010. The facts of this case are to be set apart from those involved in Eli Lilly & Co.
v. Sav-on-Drugs, supra, where 18 representatives of the foreign corporation were engaged in
the systematic solicitation of orders in the forum state and induced local merchants to buy
goods from other local merchantsa domestic business activity. Accordingly, we hold that
NRS 80.210 does not deny Fresno Air access to Nevada courts.
2

[Headnotes 5, 6]
2. Peccole and Perlman also seek to avoid payment of their debt on the ground that they
were acting merely as agents for a disclosed principal Pec-Man, Inc. The record amply
supports the finding of the district court that the identity of Pec-Man, Inc., was unknown to
Fresno Air until after this suit was commenced. When Fresno Air learned of the identity of
Pec-Man, Inc., it amended the complaint to name Pec-Man a party defendant, whereupon all
defendants (Peccole and Perlman, agents and Pec-Man, Inc., principal) moved to compel
Fresno Air to elect which of the defendants, agents or principal, it sought to hold liable.
Nesbitt v. Cherry Creek Irrigation Co., 38 Nev. 150, 145 P. 929 (1914). Fresno Air elected to
proceed against Peccole and Perlman. This election did not destroy the right to recover since
an agent is not absolved from liability on a contract which he has made for a partially
disclosed
____________________

2
It is worthwhile to note that for service of process jurisdiction the intrastate-interstate distinction is
immaterial. Process may be effectively served on a foreign corporation if it has certain minimum contracts
within the state such that the maintenance of a suit against it does not offend traditional notions of fair play and
substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Metal-Matic, Inc. v.
District Court, 82 Nev. 263, 415 P.2d 617 (1966); Jeppeson & Co. v. District Court, 83 Nev. 329, 431 P.2d 260
(1967).
principal. Dodge v. Blood, 300 N.W. 121 (Mich. 1941); Annes v. Carolan, 168 N.E. 637 (Ill.
1929).
Affirmed.
Collins, C.J., Zenoff, Batjer, and Mowbray, JJ., concur.
____________
86 Nev. 381, 381 (1970) Loma Linda Univ. v. Eckenweiler
LOMA LINDA UNIVERSITY a California Corporation, aka LOMA LINDA UNIVERSITY
dba PARADISE SPA, Appellant v. RICHARD E. ECKENWEILER, DAVE
ROBINSON, J. T. ASHER, and ANTHONY N. CUILLA, Respondents.
No. 6025
May 18, 1970 469 P.2d 54
O'Donnell, Judge.
Employees brought suit to recover six months' severance pay allegedly due under oral
contract of employment. The district court entered judgment for plaintiffs, and defendant
employer appealed. The Supreme Court, Thompson, J., held that where at time of
negotiations there was no employment contract in effect and proposed written agreement was
never consummated since one plaintiff desired changes in it and certain important terms were
not agreed upon and parties contemplated consummation by written agreement, there was no
employment contract and plaintiff employees were not entitled to recover six months'
severance pay under provision of proposed employment agreement.
Reversed, and the district court is directed to enter judgment in favor of the
University.
Jack J. Pursel, of Las Vegas, and Bruce E. Clark and Richard D. Dear, of Los Angeles,
California, for Appellant.
Michael J. Wendell, of Las Vegas, for Respondents.
1. Contracts.
Where one party makes complete offer which second party declines to accept and certain important terms
are not agreed upon and further negotiation is contemplated, there is no contract until agreement is reached
on all terms under negotiation.
2. Master and Servant.
Where at time of negotiations there was no employment contract in effect and proposed written
agreement was never consummated since one plaintiff desired changes in it and certain important terms
were not agreed upon and parties contemplated consummation by written agreement, there was no
employment contract and plaintiff employees were not entitled to recover six months' severance pay under
provision of proposed employment agreement.
OPINION
This is a suit to recover six months severance pay claimed by the plaintiffs, Eckenweiler,
Robinson, Asher and Cuilla, to be due under an oral contract of employment with the
defendant Loma Linda University. The district court entered judgment for the plaintiffs in the
amounts of $15,000, $8,400, $5,400 and $4,800 respectively, with interest and costs. The
University appeals contending that a contract for severance pay was never consummated.
With this contention we agree. Accordingly, the determination below is reversed with
direction to enter judgment for the defendant.
1. In 1966 and prior thereto, the University had loaned money to the developers of
Paradise Spa in Clark County for the purpose of completing the development of that project
which consisted of condominium units plus recreational and commercial facilities. Because
of financial difficulties experienced by the developers, the University, in August 1966,
assumed responsibility for operating and managing the Spa, and hired Eckenweiler as
manager of the project at a monthly salary of $2,500 plus expenses for a term of four months.
Eckenweiler, in turn, employed his own management team of Robinson, Asher and Cuilla.
Robinson was to be paid $1,400 a month for his services, Asher $900 a month, and Cuilla
$800 a month. Robinson was employed in September 1966 for a term of four months. Cuilla
started work in December 1966 and Asher in February 1967. Neither Cuilla nor Asher were
employed for a definite term. The employment of the four men was terminated on April 25,
1967.
When Eckenweiler was employed in August 1966, the subject of severance pay was not
mentioned. Nor was that subject discussed between representatives of the University and the
other members of the management team before they commenced work. Sometime during the
latter part of October or the first part of November 1966, Eckenweiler initiated discussions
with representatives of the University about severance pay for himself and the others and
other matters of concern to him.
for himself and the others and other matters of concern to him. These discussions apparently
were prompted by the possibility that the Spa might be sold and his team replaced by
personnel selected by the purchaser. Negotiations on that subject and others continued until
March 1967 at which time a formal, written employment agreement was prepared by counsel
for the University and submitted to Eckenweiler. Paragraphs 6 and 7 of that proposed
agreement provided:
6. In the event this employment Agreement is terminated and the services of Manager
dispensed with, other than for cause, prior to 18 months from the date hereof,
University will pay as Severance Compensation' to Manager, the sum of $2,500.00 per
month for each full month remaining under this Agreement up to a maximum of
$15,000.00.
7. University has employed the following named individuals to work exclusively on a
full time basis on the Paradise Spa project, namely, Dave Robinson, Cranston Brown,
Tony Cuilla and Joe Asher. University agrees, in the event any of these employees is
discharged by the University, other than for cause, prior to the expiration of 18 months
from the date hereof and in the interim has not been discharged by Manager or
transferred to another job, each qualifying employee shall receive a month's wages
based upon his wages without overtime during the month of February, 1967, for each
full month less than 18 months remaining under this Agreement up to a maximum of
six months.
Other important terms regarding the duties of Eckenweiler, additional compensation for him
in the event the Spa or parts of it were sold, and other matters, were included in the proposed
employment agreement. The proposed agreement was not signed by either party. Eckenweiler
rejected it and suggested certain changes. Within several weeks thereafter the employment of
Eckenweiler and his team was terminated.
The plaintiffs persuaded the district court that although the proposed employment
agreement was not acceptable as a whole, there had been a meeting of the minds on the
severance pay aspect and that portion of the proposed agreement should be enforced.
For the purposes of this opinion we shall assume first, that the evidence supports the trial
court's view that there was, indeed, a meeting of the minds about severance pay, and second,
that the plaintiffs' employment was terminated by the University without cause. In spite of
these assumptions we are compelled to hold that the plaintiffs cannot prevail as a matter of
law.
compelled to hold that the plaintiffs cannot prevail as a matter of law.
[Headnote 1]
2. When the proposed employment agreement was prepared by counsel for the University
and submitted to Eckenweiler in March 1967, there was no employment contract in effect,
oral or otherwise. The term of Eckenweiler's original employment, four months, had run its
course. So had Robinson's, and Asher and Cuilla were hired by Eckenweiler without any
understanding as to the duration of their employment. The proposed written agreement
resulted from negotiations between Eckenweiler and the University, but was never
consummated since Eckenweiler desired changes in it. This is simply a case where the
University made a complete offer which Eckenweiler declined to accept. Even though certain
terms of the offer were agreed upon, other important terms were not. Further negotiation as to
such other terms was contemplated. In such circumstances there is no contract until
agreement is reached on all terms under negotiation. 1 Corbin on Contracts 29, p. 83. As the
court observed in Upsal Stout Realty Co. v. Rubin, 192 A. 481 (Pa. 1937), It is not unusual
for persons to agree to negotiate with a view of entering into contractual relations and to
reach an accord at once as to certain major items of the proposed contract and then later find
that on other details they cannot agree. In such case no contract results. This is precisely
what happened in the case at hand. Cf. Micheletti v. Fugitt, 61 Nev. 478, 134 P.2d 99 (1943),
where a complete contract was made orally and enforced even though the parties
contemplated signing a written memorial thereof later. See also Dolge v. Masek, 70 Nev. 314,
268 P.2d 919 (1954), where, although the unsigned writing did reflect the oral understanding
of the parties, the agreement was not enforceable since the parties clearly contemplated
consummation of a written agreement since real property interests could not be released
otherwise.
[Headnote 2]
Here, a complete oral contract was not made. Moreover, the parties contemplated
consummation by written agreement. That agreement was prepared, submitted to
Eckenweiler, but rejected by him. Accordingly, we reverse the judgment below and direct that
judgment be entered in favor of the University.
____________
86 Nev. 385, 385 (1970) State v. Viers
STATE OF NEVADA, Appellant, v. DON WAYNE
VIERS, Respondent.
No. 6055
May 18, 1970 469 P.2d 53
O'Donnell, Judge.
The defendant was charged with a criminal offense and was tried before jury and
acquitted. The district court entered a judgment of not guilty and the state appealed and the
defendant moved to dismiss the appeal. The Supreme Court, Batjer, J., held that the attempt
by legislature to have court decide moot questions of law on appeal by state after an acquittal
was constitutionally impermissible.
Appeal dismissed.
Addeliar D. Guy, Deputy District Attorney, Clark County, for Appellant.
Morris, Walker and Pilkington, of Las Vegas, for Respondent.
1. Criminal Law.
To extent statute allowing state to appeal questions of law in criminal cases attempts to authorize an
appeal to obtain views of Supreme Court upon moot questions of law, statute is unconstitutional. NRS
177.015.
2. Criminal Law.
Appellate jurisdiction of Supreme Court in criminal cases does not embrace the resolution of mere moot
questions.
3. Criminal Law.
After defendant had been accused, tried and acquitted, questions of law had become moot and attempt by
legislature to allow Supreme Court to decide questions of law on appeal by state was constitutionally
impermissible. NRS 177.015, 177.065.
OPINION
The respondent, Don Wayne Viers, was charged with assault with a deadly weapon with
intent to do bodily harm. He was tried before a jury and acquitted. This appeal by the state
results from that acquittal. The respondent has moved for a dismissal of the appeal and
contends that NRS 177.015 is unconstitutional, to the extent that it purports to allow the
state to appeal questions of law in criminal cases, after those questions have become
moot, by virtue of the acquittal of the defendant.
86 Nev. 385, 386 (1970) State v. Viers
unconstitutional, to the extent that it purports to allow the state to appeal questions of law in
criminal cases, after those questions have become moot, by virtue of the acquittal of the
defendant.
In support of his contention the respondent relies on State v. Warmington, 81 Nev. 369,
403 P.2d 849 (1965). Although that case concerned itself with the constitutionality of NRS
177.065 (repeal effective January 1, 1968), nevertheless we find that the legal principles laid
down there are applicable here. In that case this court said: Nev. Const. Art. 6, 4, invests
this court with appellate jurisdiction on questions of law alone in all criminal cases in which
the offense charged is within the original jurisdiction of the district courts.' For the purposes
of this appeal, the important words of the quoted constitutional provision are in all criminal
cases.' A case' within the intendment of that provision no longer exists once an accused has
been charged with the commission of a public offense, tried, and acquitted. State v. Kelsey,
(N.D.), 190 N.W. 817; State v. Gates, (Ohio), 25 N.E.2d 471. No actual controversy
concerning the subject matter or the defendant remains. The legislature has declared that an
appeal taken by the state shall not stay or affect the operation of a judgment in favor of the
defendant. NRS 177.130 [now NRS 177.085]. Constitutional provisions forbidding double
jeopardy (Nev. Const. Art. 1, 8; U.S. Const. Amend. V) make it certain that a criminal case
is ended when an accused has been acquitted following trial. Kepner v. United States, 195
U.S. 100.
In the case of Nystedt, 79 Nev. 24, 377 P.2d 929 (1965), this court entertained an appeal,
pursuant to NRS 177.065 (repeal effective January 1, 1968), by the state, and decided the
moot questions that were presented. In that case the constitutionality of NRS 177.065 was not
raised. Here the constitutionality of NRS 177.015 has been placed directly in issue.
[Headnotes 1, 2]
To the extent that NRS 177.015 attempts to authorize an appeal to obtain the views of this
court upon moot questions of law, we find that statute to be unconstitutional. Our appellate
jurisdiction in criminal cases does not embrace the resolution of mere moot questions. State
v. Warmington, supra. The Supreme Court of the United States in the case of Mills v. Green,
159 U.S. 651 (1895), said: The duty of this court, as of every other judicial tribunal, is to
decide actual controversies by a judgment which can be carried into effect, and not to give
opinions upon moot questions or abstract propositions, or to declare principles or rules of law
which cannot affect the matter in issue in the case before it.
86 Nev. 385, 387 (1970) State v. Viers
in issue in the case before it. It necessarily follows that when, pending an appeal from the
judgment of a lower court, and without any fault of the defendant, an event occurs which
renders it impossible for this court, if it should decide the case in favor of the plaintiff, to
grant him any effectual relief whatever, the court will not proceed to a formal judgment, but
will dismiss the appeal.
[Headnote 3]
Although it might be desirable, from the viewpoint of the prosecution, to have appellate
determination of procedural problems which may arise in cases that end in acquittal, it would
be patently unfair to an innocent person to have his acquittal later beclouded, by an adverse
appellate opinion, at a time when he would be helpless to clear the record.
The attempt by the legislature to have this court decide moot questions of law, in criminal
cases, following acquittal, is constitutionally impermissible as an enlargement of appellate
jurisdiction beyond the constitutional grant of power.
Appeal dismissed.
____________
86 Nev. 387, 387 (1970) Jernigan v. Sheriff
JAMES D. JERNIGAN, Appellant, v. SHERIFF, CLARK
No. 6106
May 18, 1970 469 P.2d 64
Appeal from an order denying habeas corpus. Eighth Judicial District Court, Clark County;
Clarence Sundean, Judge.
Habeas corpus proceeding challenging validity of Governor's executive warrant. The
district court denied the petition for habeas corpus and the petitioner appealed. The Supreme
Court held that where Governor's executive warrant was valid on its face and habeas corpus
petitioner did not overcome prima facie existence of the facts which Governor was obliged to
determine before issuing executive warrant, appeal from denial of habeas corpus would be
dismissed.
Appeal dismissed.
1. Habeas Corpus.
On appeal from denial of writ of habeas corpus, Supreme Court is not entitled to consider facts outside
the record.
2. Extradition.
In absence of anything in record to indicate that Governor's extradition warrant was improperly issued,
the warrant is presumed to be valid and properly issued pursuant to law. NRS 179.197.
3. Habeas Corpus.
Petitioner who challenged Governor's extradition warrant had burden in habeas corpus proceeding to
overcome prima facie existence of every fact which the Governor was obliged to determine before issuing
executive warrant. NRS 179.197.
4. Habeas Corpus.
Where Governor's executive warrant was valid on its face and habeas corpus petitioner did not overcome
prima facie existence of the facts which Governor was obliged to determine before issuing executive
warrant, appeal from denial of habeas corpus would be dismissed. NRS 179.197.
5. Habeas Corpus.
Fact that district court ordered certified copy of its minute order denying habeas corpus as supplement to
record on appeal was not sufficient to cure lack of sufficient documentation record to support petitioner's
assignments of error on appeal from denial of habeas corpus.
OPINION
Per Curiam:
On August 12, 1969, the Governor of the State of Nevada, issued an executive warrant
authorizing and commanding any peace officer of this state to arrest the appellant and to
detain him so he could be delivered to agents from the State of Texas for his return to that
state.
The executive warrant recited that the appellant had been charged, with the crime of felony
theft, by a grand jury of Galveston County, Texas.
The appellant was arrested on the executive warrant and pursuant to NRS 179.197, was
brought before the district court to be informed of the crime charged and his right to demand
and procure counsel. On October 16, 1969, the appellant, through counsel, petitioned the
district court for a writ of habeas corpus. That petition was denied on November 14, 1969,
and this appeal followed.
The record on appeal, in this case, is extremely meager.
The minute order of the district court denying habeas is not helpful. The only document of
substance in the entire record is the executive warrant. It is valid on its face.
The appellant in his attacks on the executive warrant refers to the Texas grand jury
indictments and three other documents, as well as an alias capias. They are nowhere to be
found in the record, although the appellant attaches copies of these instruments to his opening
brief.
[Headnote 1]
We cannot consider facts outside the record. In Lindauer v. Allen, 85 Nev. 430, 451 P.2d
851 (1969), we said: . . . [F]acts in the briefs of counsel will not supply a deficiency in the
record. Mitchell v. Bromberger, 2 Nev. 345 (1866); Wilson v. Wilson, 55 Nev. 57, 24 P.2d
317 (1933); A Minor v. State, 85 Nev. 323, 454 P.2d 895 (1969); Lee v. Sheriff of Clark
County, 85 Nev. 379, 455 P.2d 623 (1969).
[Headnotes 2-4]
In the absence of anything in the record to indicate that the Governor's extradition warrant
was improperly issued, the warrant is presumed to be valid and properly issued pursuant to
law. The burden was upon the appellant to overcome the prima facie existence of every fact
which the Governor was obliged to determine before issuing the executive warrant. McTigue
v. Rhyne, 298 P.2d 288 (Kan. 1956); Ex parte Cassell, 184 P.2d 467 (Okla. 1947); Ex parte
Fant, 400 S.W.2d 332 (Tex. 1966). In no way has this appellant met that burden.
[Headnote 5]
The fact that the district court ordered a certified copy of its minute order, denying habeas
corpus, as a supplement to the record before us, did not cure the lack of sufficient
documentation to support the appellant's assignments of error. For the reasons stated herein
this appeal is dismissed.
If the order entered by this court on April 3, 1970, denying the respondent's motion to
dismiss this appeal is in any way inconsistent with this opinion, that order is to the extent of
such inconsistency rescinded.
____________
86 Nev. 390, 390 (1970) Prell Hotel Corp. v. Antonacci
PRELL HOTEL CORP., a Corporation, Appellant, v.
ANTHONY ANTONACCI, Respondent.
No. 6036
May 21, 1970 469 P.2d 399
Appeal from judgment of the Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
Gambling casino patron brought action against owner of casino for injuries sustained when
casino employee struck him. From the judgment of the district court for the patron, the casino
owner appealed. The Supreme Court, Thompson, J., held that where casino employee struck
patron while employee was dealing cards, employee's willful tort occurred within the scope of
the very task assigned to him and casino owner was liable to patron even though employee
had been provoked by patron's calling him an opprobrious name.
Affirmed.
Singleton, Beckley, DeLanoy, Jemison & Reid, of Las Vegas, for Appellant.
Gregory & Gregory, of Las Vegas, for Respondent.
If an employee's tort is truly an independent venture of his own and not committed in the course of the
very task assigned to him, employer is not liable for the tort.
Where willful tort is committed in the course of the very task assigned to an employee, liability may be
extended to employer, particularly where employer, by contract, has entered into some relation requiring
him to be responsible for the protection of plaintiff.
Where gambling casino employee struck patron while employee was dealing cards, employee's willful
tort occurred within scope of the very task assigned to him and casino owner was liable to patron even
though employee had been provoked by patron's calling him an approbrious name.
4. Torts.
Consent of injured party negates existence of tort and, therefore, denies liability.
5. Assault and Battery.
Oral abuse or provocation, independent of any overt hostile act, however opprobrious or insulting, does
not justify an assault and battery.
Oral abuse may amount to a challenge to fight and constitute consent to an assault and battery when
accompanied by an overt hostile act.
In action by casino patron against casino owner for damages sustained when casino employee struck him,
in absence of an overt hostile act by patron, owner was not entitled to instruction that consent is a defense
to a civil action to recover damages for assault and battery even though employee had been provoked by
patron's calling him an opprobrious name.
Fact and statute makes it a misdemeanor for one by word, sign or gesture to willfully provoke an assault
did not prevent casino patron who had provoked casino employee by calling him an opprobrious name
from recovering from casino owner for injuries sustained when he was struck by employee. NRS
200.480, 200.490.
OPINION
An invited guest was playing 21 at the Aladdin Hotel casino owned by Prell Hotel Corp.
He was served several free drinks while so engaged. He lost his money, became angered and
called the dealer a hateful, degrading name. The dealer reacted by punching the guest in the
eye rendering him unconscious. Subsequently, the guest sued the hotel for damages, and a
jury favored him with its verdict. Following entry of judgment the hotel appealed. The main
issue is whether the assault and battery by the employee may be deemed to have occurred
within the course and scope of employment so as to subject his employer to liability.
[Headnotes 1, 2]
1. Early doctrine would not admit that a willful tort could be within the scope of
employment. Laski, Basis of Vicarious Liability, 26 Yale L.J. 105, 118 (1916). This
inflexible, arbitrary view has gradually been eroded, and the concept of scope of employment
enlarged. Of course, if the employee's tort is truly an independent venture of his own and not
committed in the course of the very task assigned to him, the employer is not liable. Chapman
v. City of Reno, 85 Nev. 365, 455 P.2d 618 (1969); J. C. Penney Co. v. Gravelle, 62 Nev.
434, 155 P.2d 477 (1945). Where, however, the willful tort is committed in the course of the
very task assigned to the employee, liability may be extended to the employer. This is
particularly true in those cases where the employer, by contract, has entered into some
relation requiring him to be responsible for the protection of the plaintiff. Forrester v.
Southern Pacific Co., 36 Nev. 247, 134 P. 753 {1913); Quigley v. Central Pac. Ry. Co., 11
Nev. 350
(1913); Quigley v. Central Pac. Ry. Co., 11 Nev. 350 (1876).
[Headnote 3]
In the instant matter, the plaintiff was an invited guest of the hotel to whom the hotel
served several free drinks, apparently to encourage his continued presence and participation
in gaming. When the guest lost his money, became angered and called the dealer an
opprobrious name, the dealer dealt one card to each player all the way round, and then just
like this he hit him, very spontaneously, no warning of any kind. He just hit him. The dealer
did not leave his position behind the 21 table to accomplish the assault and battery. His
willful tort occurred within the scope of the very task assigned to him, that of dealing 21. In
these circumstances the employer is responsible.
The jury was properly instructed upon this subject.
l
Assuming without deciding, that
certain instructions offered by the hotel and refused by the court on this same subject also
were proper, it was not error to refuse them since they were merely embellishments. Duran v.
Mueller, 79 Nev. 453, 386 P.2d 733 (1963).
[Headnote 4]
2. The trial court declined to instruct the jury that consent is a defense to a civil action to
recover damages for assault and battery. When consent is present such an instruction is
appropriate. Wright v. Starr, 42 Nev. 441, 179 P. 877 (1919); cf. Steen v. Gass, 85 Nev. 249,
454 P.2d 94 (1969). Consent negates the existence of the tort and, therefore, denies liability.
The hotel contends that the guest must be deemed to have consented to the assault upon him
since the words he used to provoke the dealer were so personally offensive as to be an
invitation to battle.
____________________

1
The instruction: An employer is liable for an assault and battery committed by an employee when the
employee is acting in the course and scope of his employment.
When an employee is acting within the course and scope of his employment, that is, while engaged in the
service and work of his employer, and he does an act personal to himself that is so inextricably intertwined with
his service to his employer, his doing so does not break the employment relationship so as to release the
employer from responsibility for the employee's conduct.
On the other hand, when an employee departs from the business or service of his employer, and pursues
some activity or object not for his employer and not reasonably embraced within his employment, the employer
is not responsible for anything done or not done in such activity.
[Headnotes 5-7]
Oral abuse or provocation, independent of any overt hostile act, however opprobrious or
insulting, does not justify an assault and battery. Haman v. Omaha Horse Ry. Co., 52 N.W.
830 (Neb. 1892). Conversely, when accompanied by an overt hostile act, such oral abuse may
amount to a challenge to fight and constitute consent. Rest. Torts 2d ed 69. The record
before us reflects nothing more than oral abuse or provocation. Thus, the trial court properly
declined to instruct on consent.
[Headnote 8]
3. We are requested to set aside the judgment for reasons of policy. It is a misdemeanor for
one by word, sign or gesture to willfully provoke an assault. NRS 200.490. Therefore, the
hotel urges that we should not allow one guilty of a criminal offense to profit from his own
wrong. The purpose of that statute is to protect the public from a breach of the peace, rather
than to provide a defense in a civil action between the participants. Cf. Schmidt v. Schmidt,
321 P.2d 895, 897 (Wash. 1958). An assault and battery also is a misdemeanor. NRS
200.480. Thus, we have a case in which both participants, the guest and the employee, each
committed a criminal offense for which either could have been prosecuted. This circumstance
alone does not foreclose civil relief to the person damaged. Name calling does not produce
physical damage and the attendant expense. A battery may result in such damage and
expense. The more significant policy is to prevent physical damage resulting in monetary
loss. Hurt feelings caused by language must be of lesser significance in the affairs of life and
our desire for an orderly society. The trial court correctly refused the hotel's proffered
instruction based upon NRS 200.490.
Affirmed.
____________
86 Nev. 393, 393 (1970) Bonnenfant v. State
JOHN BONNENFANT, Appellant, v. STATE OF
NEVADA, Respondent.
No. 6039
May 21, 1970 469 P.2d 401
Appeal from judgment of the Second Judicial District Court, Washoe County; Emile J.
Gezelin, Judge.
Defendant was convicted in the district court of supplying a narcotic drug, and he
appealed. The Supreme Court, Thompson, J., held that where defendant did not question legal
sufficiency of evidence to support second indictment, resubmission of matter to same grand
jury whose prior indictment had been dismissed for lack of transcript was not error, and that
suggestion by prosecutor during closing summation to jury that standards of community
would be set by verdicts rendered in narcotics cases was proper.
Affirmed.
[Rehearing denied June 12, 1970]
Seymour H. Patt, of Reno, for Appellant.
Harvey Dickerson, Attorney General, of Carson City, William J. Raggio, District Attorney,
Where defendant, in prosecution for narcotic drug violations, did not question legal sufficiency of
evidence to support second indictment, resubmission of matter to same grand jury whose prior indictment
had been dismissed for lack of transcript was not error. NRS 172.225, 453.030.
The court need not be concerned whether indictment was returned by a prejudiced grand jury, since
evidence taken by grand jury may be reviewed to determine legal sufficiency. NRS 172.225.
3. Criminal Law.
Allegedly erroneous remarks of prosecutor, made during his closing summation to jury, which were not
considered serious enough to provoke objection by defense counsel at time they were made would not be
considered on review.
4. Criminal Law.
Allegedly erroneous remarks of prosecutor, made during closing summation to jury, which did not carry
inherent prejudice and to which objection was made, sustained and jury admonished to disregard, would
not be considered on appeal.
5. Criminal Law.
Suggestion by prosecutor in his closing summation to jury in prosecution for narcotics violations that
standards of community would be set by verdicts rendered in narcotics cases was proper. NRS 453.030.
OPINION
The Washoe County Grand Jury indicted Bonnenfant in two counts, possessing a narcotic
drug and supplying a narcotic drug, both violations of NRS 453.030.
drug, both violations of NRS 453.030. A prior indictment by the same grand jury had been
dismissed by the court due to the lack of a transcript. The trial jury convicted Bonnenfant of
supplying a narcotic drug. This direct appeal challenges the propriety of the district court
order resubmitting the matter to the same grand jury whose prior indictment had been
dismissed for the reason mentioned. This challenge rests upon the case of State v. Towers, 37
Nev. 94, 139 P. 776 (1914). Subordinately, Bonnenfant urges that prosecutor misconduct
denied him a fair trial. The sufficiency of the evidence to support the conviction is not
questioned.
[Headnote 1]
1. NRS 172.225 directs the transcription of testimony received by the grand jury and the
delivery of a copy thereof to the accused. This statute was enacted in 1967 in the wake of
Shelby v. District Court, 82 Nev. 204, 414 P.2d 942 (1966), and Ivey v. State, 82 Nev. 448,
420 P.2d 853 (1966). The primary purpose of the court decisions and the statute which
followed is to enable an accused to test probable cause to hold him for trial. Before Shelby,
supra, it was not practical to do so since it was necessary to compel the witness who had
given evidence before the grand jury to testify in support of the challengea rare
circumstance, as our case history discloses. Ex parte Colton, 72 Nev. 83, 295 P.2d 383
(1956); Ex parte Stearns, 68 Nev. 155, 227 P.2d 971 (1951); Eureka Bank Cases, 35 Nev. 80,
126 P. 655 (1912). Shelby, Ivey, and the statute which followed benefited the accused and
accorded him new protection against the possibility of a false or ill-founded charge.
Bonnenfant availed himself of that protection. He moved to dismiss the first grand jury
indictment because of the absence of a transcript. The court granted his motion and ordered
resubmission of the matter to the same grand jury to allow preparation of a transcript for his
use. The record does not carry any other meaning.
Notwithstanding the district court accommodation, Bonnenfant argues that his rights were
irreparably prejudiced when the court directed resubmission to the same grand jury rather
than to a different body since its members had already determined that he should stand trial.
The predicate for this argument is the old Nevada case of State v. Towers, 37 Nev. 94, 139 P.
776 (1914). There, the court decreed that resubmission to the same grand jury which had
refused to indict was improper, since the order of resubmission could serve no other purpose
than to indicate to that jury that the court demanded an indictment. Id. at 102, 103.
Moreover, the court suggested that resubmission would be in order to correct merely
formal defects, but improper when the grand jurors were to reconsider evidence about
which they had already formed an opinion. Id. at 101.
court suggested that resubmission would be in order to correct merely formal defects, but
improper when the grand jurors were to reconsider evidence about which they had already
formed an opinion. Id. at 101.
[Headnote 2]
The doctrine of the Towers case was sound law when announced. However, the recent
Shelby and Ivey decisions, supra, and NRS 172.225 deprive Towers of the force it once
possessed. Probable cause to hold an accused for trial is now readily tested since the evidence
received by the grand jury is preserved for inspection and evaluation. A court need no longer
be concerned whether the indictment was returned by a prejudiced grand jury since the
evidence may be reviewed to determine legal sufficiency. In the case before us Bonnenfant
never questioned the legal sufficiency of the evidence to support the second indictment. His
first claim of error is without merit.
[Headnotes 3, 4]
2. The charge of misconduct is directed to several remarks of the prosecutor made during
his closing summation to the jury. Those which were not considered serious enough to
provoke objection by defense counsel at the time will not now be considered. Mears v. State,
83 Nev. 3, 422 P.2d 230 (1967); Kuk v. State, 80 Nev. 291, 392 P.2d 630 (1964). Nor shall
we deal with the remarks to which objection was made, sustained, and the jury admonished to
disregard, since none carried inherent prejudice. Dotson v. State, 80 Nev. 42, 389 P.2d 77
(1964).
[Headnote 5]
The closing words of the prosecutor suggested that the standards of the community will be
set by verdicts rendered in narcotics cases. The court previously had ruled that such a
suggestion was proper. We do not fault that view. Indeed, the suggestion seems to be
included in most closing arguments by the state's representative and simply reminds the jury
of the seriousness of the responsibility it has assumed. The prosecutor's very last words were
and that's because its people like you in this community who apply your common sense and
reject the Bull. Samuel Bull, Esq., was counsel for Bonnenfant. The remark was impolite.
Throughout, trial counsel for each party had been acerbic, sarcastic, and personal in the use of
words. Such conduct has no place in the courtroom. It is not helpful to the ascertainment of
truth, nor in keeping with professional standards.
not helpful to the ascertainment of truth, nor in keeping with professional standards.
Affirmed.
____________
86 Nev. 397, 397 (1970) Fenkell v. Fenkell
JACK FENKELL, Appellant, v. HELEN C. FENKELL,
Respondent.
No. 6052
May 21, 1970 469 P.2d 701
Appeal from a judgment of the Second Judicial District Court, Washoe County; Emile J.
Gezelin, Judge.
Action by husband against wife for divorce, wherein wife counterclaimed for custody of
minor child, child support and monthly alimony. The district court awarded wife $125 per
month for child support, tuition expenses incurred in lip reading school to overcome hearing
defect, tuition to beauty college, and attorney fees, and husband appealed. The Supreme
Court, Batjer, J., held that award of child support of $125 per month which was within
amount requested in counterclaim and which was obviously for present comfort and future
well-being of child was reasonable even though wife did not minutely detail her present and
prospective need for such child support, but that trial court erred in awarding attorney fees to
wife where wife did not request or apply for attorney fees in pleadings and there was no
evidence, in record, to which pleadings could have been conformed to support such award.
Affirmed in part, reversed in part.
Alex. A. Garroway, of Reno, for Appellant.
David G. Parraguirre, of Reno, for Respondent.
1. Appeal And Error.
Where respondent, in answering brief, recited certain alleged facts which did not appear in either
appellant's statement of evidence or trial court's finding of fact, such facts were outside record and
reviewing court could not consider them on review.
Judgment of trial court will not be disturbed as being unsupported by evidence when statement of
evidence fails to affirmatively show that it contains all material evidence.
3. Divorce.
Exercise of discretion by trial court in awarding support for minor child in divorce action will not be
disturbed unless there is clear case of abuse.
4. Infants.
Paramount guiding principle in exercise of judicial discretion in cases affecting rights of children is best
interest and welfare of each child whose rights are involved.
5. Divorce.
In action by husband against wife for divorce in which wife counterclaimed for child support, award of
child support of $125 per month which was within amount requested in counterclaim and which was
obviously for present comfort and future well-being of child was reasonable even though wife did not
minutely detail her present and prospective need for such child support. NRS 125.140.
6. Divorce.
Trial judge's determination of child support in divorce action based on his knowledge of costs of
maintaining his own children was not error. NRS 125.140, subd. 2.
7. Divorce.
Awards to wife in divorce action, as part of her alimony, of allowance to enable her to improve her
hearing ability and to enable her to take refresher course at beauty college were not error or abuse of trial
court's discretion.
If record is devoid of evidence or evidence is abbreviated, it is necessary for reviewing court to be guided
by findings of fact of trial court.
Findings of trial court will not be set aside on appeal unless they are clearly or manifestly against weight
of evidence or without reasonable support therein.
Where findings of fact of trial court are within issues raised by pleadings, and there is no record of
testimony which can be considered, appellate court must presume that evidence was sufficient to justify
trial court's findings.
11. Divorce.
Trial court erred in awarding attorney fees to wife in divorce action where wife did not request or apply
for attorney fees in pleadings and there was no evidence, in record, to which pleadings could have been
conformed to support such award. NRCP 15(b); NRS 125.140, 125.150, subd. 2.
12. Divorce.
Party to divorce action seeking attorney fees must first either make application therefor or allege need
therefor in pleadings, and must show necessitous circumstances before trial court is
authorized to award attorney fees.
and must show necessitous circumstances before trial court is authorized to award attorney fees. NRS
125.140, 125.150, subd. 2.
OPINION
This is an action for divorce, tried before the district court on the complaint of the
appellant, the answer and counterclaim of the respondent, and the appellant's reply.
In her counterclaim the respondent asked for custody of the minor child of the parties, and
the sum of $150 per month for the child's support until she reaches the age of 13, with an
increase at that time to the sum of $250 per month, to continue during the child's minority or
until she is emancipated. Respondent also requested the sum of $700 per month alimony for
two years, and thereafter, the sum of $500 per month until such time as she might remarry.
[Headnote 1]
The trial transcript is not a part of the record. Pursuant to NRCP 75(c)(e)(n)
1
the appellant
has filed an abbreviated statement of the evidence.
____________________

1
NRCP 75 (c)(e)(n): (c). Testimony of witnesses designated for inclusion need not be in narrative form, but
may be in question and answer form. A party may prepare and file with his designation a condensed statement in
narrative form of all or part of the testimony, and any other party to the appeal, if dissatisfied with the narrative
statement, may require testimony in question and answer form to be substituted for all or part thereof.
(e). All matter not essential to the decision of the questions presented by the appeal shall be omitted. Formal
parts of all exhibits and more than one copy of any documents shall be excluded. Documents shall be abridged
by omitting all irrelevant and formal portions thereof. For any infraction of this rule or for the unnecessary
substitution by one party of evidence in question and answer form for a fair narrative statement proposed by
another, the appellate court may withhold or impose costs as the circumstances of the case and discouragement
of like conduct in the future may require; and costs may be imposed upon offending attorneys or parties.
(n). In the event no stenographic report of the evidence or proceedings at a hearing or trial was made, the
appellant may prepare a statement of the evidence or proceedings from the best available means, including his
recollection, for use instead of a stenographic transcript. This statement shall be served on the respondent who
may serve objections or propose amendments thereto within 10 days after service upon him. Thereupon the
statement, with the objections or proposed amendments, shall be submitted to the district court for settlement
and approval and as settled and approved shall be included by the clerk of the court in the record on appeal.
statement of the evidence. The respondent did not take advantage of NRCP 75(n), and except
for the trial court's findings of fact the appellant's statement is the only recitation of facts to
which we can turn. In her answering brief, the respondent has recited certain alleged facts
which do not appear in either the appellant's statement of the evidence or the trial court's
finding of fact. Because they are outside the record, we cannot consider them. In Lindauer v.
Allen, 85 Nev. 430, 456 P.2d 851 (1969), we said: . . . [F]acts in the briefs of counsel will
not supply a deficiency in the record. Mitchell v. Bromberger, 2 Nev. 513 (1866); Wilson v.
Wilson, 55 Nev. 57, 24 P.2d 317 (1933); A Minor v. State, 85 Nev. 323, 454 P.2d 895
(1969); Lee v. Sheriff, 85 Nev. 379, 455 P.2d 623 (1969).
[Headnote 2]
We do not question the accuracy or truth of the appellant's statement as to evidence, (see
Middleton v. Hartford Accident & Indemnity Co., 119 F.2d 721 (C.C.A. 5th 1941)).
However, the statement does not affirmatively allege, nor purport to contain, all the evidence
adduced at the trial. Therefore, we choose to follow the long established rule that a judgment
of the district court will not be disturbed as being unsupported by the evidence when the
statement fails to affirmatively show that it contains all the material evidence. Sherwood v.
Sissa, 5 Nev. 288 (1870); White Pine Co. v. Herrick, 19 Nev. 311, 10 P. 215 (1886); Olson v.
Oregon Short Line R. Co., 68 P. 148 (Utah 1902); Stoddard v. Fox, 99 P. 122 (Idaho 1909);
Voorheis-Trindle Co. v. Boyd, 84 Nev. 654, 447 P.2d 36 (1968).
The appellant does not attack the entire judgment, but contends that the trial court erred
when it made the following financial awards to the respondent: (a) $125 per month for the
maintenance, support and education of the minor child of the parties; (b) tuition expenses
incurred by respondent, not to exceed $50 per week, for a term not to exceed two years if
respondent is enrolled and attending lipreading school to overcome her hearing defect; (c)
tuition expenses, not to exceed $700 to allow her to attend a beauty college; and (d) a fee in
the sum of $400 for respondent's counsel.
[Headnotes 3, 4]
The exercise of discretion, by the trial court, in awarding support for a minor child, will
not be disturbed unless there is a clear case of abuse. Cosner v. Cosner, 78 Nev. 242, 371
P.2d 278 (1962); Timney v. Timney, 76 Nev. 230, 351 P.2d 611 {1960).
611 (1960). (See also Goodman v. Goodman, 68 Nev. 484, 236 P.2d 305 (1951), for an
excellent discussion of judicial discretion.) However, the paramount guiding principle in the
exercise of judicial discretion, in these cases affecting the rights of children, is the best
interest and the welfare of each child whose rights are involved.
In Atkins v. Atkins, 50 Nev. 333, 259 P. 288 (1927), the trial court awarded to the wife the
sum of $100 per month for the support of the parties' infant child, although the husband and
wife had agreed that there should be no provision made for the support of the child, and the
wife testified that she wished none, nor did the complaint ask for any such relief. The
defendant husband appealed, insisting that the trial court was without jurisdiction or authority
to make such an order. This court held that the question of child support was within the sound
discretion of the trial court; that the basis of the power conferred on the trial court, by statute,
to exercise a broad discretion as to custody and support, lies in the reason that it is not the
rights of the parties which are to be determined, but the best interest of the child. In that case
this court went on to hold that the trial court had the right to make the award for the support
of the minor child, regardless of any agreement or wishes of the parties; and that the statute
impose upon a court having jurisdiction of a divorce case, the duty to provide for the welfare
of the child as a necessary incident to such jurisdiction.
[Headnote 5]
In Atkins v. Atkins, supra, the court said: There is an answer in this case, and
consequently, under the express terms of said section [Revised Laws, 5840] the court could
grant any relief consistent with the case made by the complaint and embraced within the
issue. Here we not only have an answer but a reply to a counterclaim. The respondent asked
for child support in the amount of $150 per month, to commence immediately, and $250 per
month after the child had reached the age of 13. Under the express terms of NRS 125.140, the
trial court was authorized to grant any relief consistent with the case established by the
counterclaim so long as it embraced the paramount objective of the present comfort and
future well-being of the child. The award of child support in the amount of $125 was within
the amount requested in the counterclaim and it is obvious that it was for the present comfort
and future well-being of the child. If a trial court in this state has been permitted to make an
award of child support when it was not requested in the pleadings and when it was rejected in
open court by the plaintiff wife {Atkins v. Atkins, supra) a fortiori the trial court, in this
case, shall not be precluded from making a reasonable award just because the respondent
did not minutely detail her present and prospective need for such child support.
court by the plaintiff wife (Atkins v. Atkins, supra) a fortiori the trial court, in this case, shall
not be precluded from making a reasonable award just because the respondent did not
minutely detail her present and prospective need for such child support.
[Headnote 6]
Additionally, the appellant contends that the trial judge committed prejudicial error when
he stated that he had children and based his determination of child support on his knowledge
of the cost of maintaining his children. Although we find the trial judge's avowed measure for
determining child support unusual, it does not amount to error. NRS 125.140(2) authorizes
the trial court to make such order for the custody, care, education, maintenance and support of
minor children as may seem necessary or proper. In order to determine what may seem
necessary or proper, the trial judge must call on his entire knowledge, training and
experience to reach that decision.
The appellant objects because the district court made lump sum alimony awards
contingent upon the respondent seeking training to improve her hearing ability and to
improve her earning capacity as a beauty operator. In other jurisdictions lump sum alimony
payments, which have been approved, range from $100,000 in Bruner v. Bruner, 135 N.E.
578 (Ind. 1922), to $2,500 in Reeves v. Reeves, 399 S.W.2d 641 (Mo.App. 1966).
[Headnote 7]
The contingency required by the trial court in this case does not detract from the award.
We find no error or abuse of discretion by the district court in awarding to the respondent, as
part of her alimony, an allowance to enable her to improve her hearing ability and to enable
her to take a refresher course at a beauty college.
In Shane v. Shane, 84 Nev. 20, 435 P.2d 753 (1968), we approved the trial judge's award
of $16,500 to the wife in lieu of all her community property rights, and as and for alimony,
and held: Before the appellate court will interfere with the trial judge's disposition of the
community property of the parties or an alimony award, it must appear on the entire record in
the case that the discretion of the trial judge has been abused.
[Headnote 8]
If the record is devoid of evidence or if the evidence is abbreviated, as in this case, it is
necessary for this court to be guided by the findings of fact of the trial court.
guided by the findings of fact of the trial court. Waite v. Burgess, 69 Nev. 312, 250 P.2d 919
(1952).
[Headnote 9]
We find nothing in the appellant's statement as to evidence which would compel or
persuade us to set aside any part of the trial court's findings relating to alimony or child
support. Findings will not be set aside unless they are clearly or manifestly against the weight
of the evidence or without reasonable support therein. Garaventa v. Gardella, 63 Nev. 304,
169 P.2d 540 (1946).
[Headnote 10]
It has long been the law in this state that where findings of fact are within issues raised by
pleadings, and there is no record of testimony which can be considered, the appellate court
must presume that the evidence was sufficient to justify the findings. Lamance v. Byrnes, 17
Nev. 197, 30 P. 700 (1882). In Quinn v. Quinn, 27 Nev. 156, 74 P. 5 (1903), this court said:
Any fact necessary to support the order is presumed to have been proven in the absence of
an affirmative showing to the contrary.
[Headnote 11]
We next turn to the question of attorney fees. We find that the district court committed
error when it awarded attorney fees to the respondent. Nowhere in her pleadings does the
respondent request or apply for attorney fees. Furthermore there is no evidence, in the record,
to which the pleadings could have been conformed to support such an award, nor does the
respondent so contend. NRCP 15(b).
NRS 125.150(2) authorizes the award of a reasonable attorney fee at the conclusion of the
trial, in a divorce case, even though no application was made under NRS 125.140, but only if
attorney fees are in issue under the pleadings.
[Headnote 12]
The respondent contends that a party need only show necessitous circumstances to support
a trial court's award of attorney fees. We do not agree. The party seeking attorney fees must
first, either make an application under NRS 125.140, or allege a need in the pleadings
pursuant to NRS 125.150(2), and then that party must show necessitous circumstances, before
a trial court is authorized to award attorney fees.
The respondent has moved this court for an order directing the appellant to pay to her
attorney the sum of $1,500 to enable her to respond to this appeal. The motion was resisted
by the appellant.
by the appellant. On January 16, 1970, we denied that motion, but granted the respondent
leave to support her position, in her brief, and in oral argument. We find nothing in
respondent's brief concerning her request for attorney fees to enable her to respond to this
appeal, and the parties stipulated to waive oral argument and to submit the appeal on briefs,
therefore, the question is completely disposed of by our order of January 16, 1970.
The judgment of the district court is affirmed except for the award of attorney fees to the
respondent, and in that regard this matter is reversed and remanded to the district court with
instructions to amend the judgment to conform to this opinion.
____________
86 Nev. 404, 404 (1970) Bissell v. College Development Co.
MELVILLE R. BISSELL, Jr., aka MELVILLE BISSELL; MELVILLE R. BISSELL;
HARVEY S. BISSELL; SABRA McCAY CLARK; DOROTHY McCAY SCULLY; JOHN
D. BISSELL; CLARA O. BISSELL; MELVILLE BISSELL, III; WADSWORTH BISSELL;
CHARLES BISSELL; and CARL L. REED, Special Administrator of the Estate of MARY
CATHERINE HARVEY, aka MAY C. HARVEY, Appellants, v. COLLEGE
DEVELOPMENT CO., a Nevada Corporation, and ROBERT J. LEWIS, Trustee, a Joint
Venture; SUNRISE MOUNTAIN DEVELOPMENT COMPANY, a Nevada Corporation,
and ROBERT J. LEWIS, Trustee, a Joint Venture, Respondents.
No. 5892
May 26, 1970 469 P.2d 705
Appeal from summary judgment of the Eighth Judicial District Court, Clark County;
William P. Compton, Judge.
Action by persons in possession of realty to quiet title. They were granted a summary
judgment by the district court and the heirs of a former owner appealed. The Supreme Court,
Mowbray, J., held that on failure of the former owner to redeem land from a tax sale within
the statutory two-year period or to compel reconveyance from the county within the statutory
three-year period, any possessory or seisin rights of the former owner were terminated, and
the heirs were barred by the five-year statute of limitations from asserting any claim, by
counterclaim in the quiet title action 17 years after the death of such owner, though the
heirs did not know of the property until the quiet title action was filed.
by the five-year statute of limitations from asserting any claim, by counterclaim in the quiet
title action 17 years after the death of such owner, though the heirs did not know of the
property until the quiet title action was filed.
Affirmed.
Foley Brothers, of Las Vegas, for Appellants.
W. Bruce Beckley, of Las Vegas, for Respondents.
Taxation.
On failure of landowner to redeem land from tax sale within statutory two-year period or to compel
reconveyance from county within statutory three-year period, any possessory or seisin rights of landowner
were terminated, and heirs of landowner were barred by five-year statute of limitations from asserting any
claim by counterclaim in quiet title action 17 years after death of such owner, though heirs did not know of
the property until quiet title action was filed. NRS 11.070, 361.570, 361.585, 361.600.
OPINION
This is an appeal from an order of the district court granting summary judgment in favor of
the respondents and against the appellants, who had answered respondents' complaint to quiet
title to the Northwest Quarter (NW 1/4) of Section 23, Township 20 South, Range 62 East,
M.D.B. & M., in Clark County, by counterclaiming that they were the rightful owners of the
property.
1. The Facts.
A. The appellants' chain of title.
In 1922, Walter J. Harvey acquired the 160-acre parcel that is the subject of this suit. In
1936, he conveyed the property by deed to his wife, Mary Catherine Harvey. Mary Catherine
Harvey did not pay the real estate taxes on the property for the year 1938; nor did she or her
devisees, who are the appellants, ever pay any taxes on the property after that date. In 1939,
the Clark County Tax Receiver published a notice of sale for delinquent taxes, pursuant to
NCL 6447 (cf. NRS 361.570). In 1941, after the expiration of the 2-year redemption period,
the Tax Receiver executed a tax deed conveying the property to the County Treasurer, W. B.
Mundy, pursuant to NCL 6449, 8042 (cf. NRS 361.585). Mary Catherine Harvey died on
June 9, 1950, in Santa Monica, California. She had willed her estate to the appellants, who
never probated the will because there were no known assets of the decedent.
her estate to the appellants, who never probated the will because there were no known assets
of the decedent. Appellants first knew of the property when respondents filed this quiet-title
action in 1967. Appellants now claim ownership as the heirs of Mary Catherine Harvey and
have offered to reimburse respondents, who have been in possession of the property since
1961, for the taxes the respondents have paid the County since that time.
B. The respondents' chain of title.
On July 12, 1960, a quitclaim deed dated November 26, 1938, 22 years earlier, bearing the
acknowledgment of Mary Catherine Harvey and quitclaiming her interest in the property to
John L. Bissell,
1
was recorded. The acknowledgment of the deed was taken by Wilbert
Weatherwax.
2
On August 5 1960, the Treasurer of Clark County, for the sum of $151.05, the
amount of the delinquent taxes, reconveyed the property to John L. Bissell. The deed of
reconveyance was mailed to the law firm of Hawkins, Cannon & Kelly in Las Vegas. Several
days earlier, on July 22, John E. Kelly, then a member of that firm, forged and notarized a
deed of the property, conveying it from Bissell to a Michael M. Cermak. The
Bissell-to-Cermak deed was also recorded on August 5, 19607 minutes after recordation of
the County's deed of reconveyance to Bissell. Cermak deeded the property on August 8, 1960,
to Norveg Development Company, a Nevada corporation.
3
On March 14, 1961, Norveg
conveyed the west half of the property to respondent Robert J. Lewis for the sum of $27,850,
and on May 11, 1961, Norveg conveyed the east half to Lewis for the sum of $29,500. Kansas
City Title Insurance Company of Las Vegas insured titles in Lewis for the amount of the
purchase price received. Lewis and respondent College Development Company hold title to
the east half of the property; Lewis and respondent Sunrise Development Company hold title
to the west half of the property. Lewis and the two corporations commenced, in the district
court on January 23, 1967, this action to quiet title. The appellants answered the complaint on
April 14, 1967, and counterclaimed, seeking title to the property on the ground that they are
the heirs under the will of Mary Catherine Harvey.
____________________

1
John L. Bissell, although bearing the family name of the appellants, was a fictitious person.

2
At the time of his death in April 1959, Mr. Weatherwax was a suspended member of the state bar of
California.

3
The stock was wholly owned by Kelly and Cermak.
2. The Statute of Limitations.
No cause of action or defense to an action, founded upon the title to real property, or to
rents or to services out of the same, shall be effectual, unless it appear that the person
prosecuting the action or making the defense, or under whose title the action is prosecuted or
the defense is made, or the ancestor, predecessor, or grantor of such person, was seized or
possessed of the premises in question within 5 years before the committing of the act in
respect to which said action is prosecuted or defense made.
It is respondents' position that appellants are barred from asserting a claim to the property
by the 5-year statute. We agree. In respondents' brief and in oral argument, counsel has taken
the position that the territorial Legislature, when initially enacting the original predecessor of
NRS 11.070, in 1861, adopted the wording commencement of the action, rather than
committing the act. At the time of oral argument, counsel for respondents offered without
objection a transparency of the first enrolled bill. In that copy the words commencement of
the action are used. Counsel failed to add, however, that in 1867 the Legislature expressly
amended the act to read in its present form. But in the instant case, it is immaterial whether
the 5 years ran before the committing of the act
4
or the commencement of the action, for
the reason that any remaining possessory or seisin rights Mary Catherine Harvey had in the
property terminated September 11, 19443 years from the date the property was conveyed to
the County for delinquent taxes.
In the case of Pender v. Clark County, 71 Nev. 47, 279 P.2d 659 (1955), this court held
that the failure of an owner to exercise his right to redeem within the 2-year redemption
period under NRS 361.570 precluded his attack on the title of the County. We there stated
that the equitable right that the owner had during the redemption period vanished by
operation of law and that likewise by operation of law legal title vested immediately in the
County. See also DeBaca v. Perea, 200 P.2d 715 (N.M. 1948); Margaritell v. Caldwell
Township, 156 A.2d 46 (N.J.App. 1959); Ritzinger v. Commissioners of Delaware County,
195 A.2d 154 (Pa.App. 1963); Resweber v. Jacob, 125 So.2d 241 {La.App.
____________________

4
Counsel have not argued the point; however, it would appear that the act in this case that, according to
respondents' theory, interrupted their chain of title from Harvey was the recordation in 1960 of the admittedly
forged Harvey-Bissell deed.
Jacob, 125 So.2d 241 (La.App. 1960); Jonke v. Rubin, 162 N.E.2d 116 (Ohio 1959).
In County of Clark v. Roosevelt Title Ins. Co., 80 Nev. 530, 396 P.2d 844 (1964), we ruled
that any interest that a property owner has upon the issuance of a tax deed to the County is
absolutely terminated upon the expiration of the 3-year limitation period provided in NRS
361.600.
5

Since Mary Catherine Harvey failed to exercise both (a) her right of redemption during the
2-year redemption period and (b) any right to compel reconveyance during the subsequent
3-year period provided in NRS 361.600, any interest she had in the property absolutely
terminated before her death. Therefore, appellants are now precluded from asserting any right
in the property.
We wish not to be understood as condoning in any manner the chicanery of Mr. Kelly,
who perpetrated the fraud in the instant case. It is conceded that, when Lewis took title to the
property he had no knowledge of the fraud and that he was a bona fide purchaser for value of
the property.
We affirm the order of the district court granting summary judgment.
____________________

5
NRS 361.600:
No action or counterclaim for the recovery of lands sold for taxes shall lie unless the same be brought or
interposed within 3 years after the execution and delivery of the deed therefor by the county treasurer, any law to
the contrary notwithstanding.
It is true that in 1957 the Legislature added subsection 3 to NRS 361.585, thereby extending the right to
compel reconveyance at any time prior to public sale. In Roosevelt, it was held that the new subsection may not
be applied retroactively.
____________
86 Nev. 408, 408 (1970) Ginnis v. Mapes Hotel Corp.
GEORGIA C. GINNIS, Appellant, v. MAPES HOTEL CORPORATION and
DOR-O-MATIC, a Division of Republic Industries, Inc., Respondents.
No. 5958
June 4, 1970 470 P.2d 135
Appeal from the Second Judicial District Court, Washoe County; John F. Sexton, Judge.
Action against hotel operator and manufacturer of automatic door by business invitee for
injuries sustained when invitee was caught in automatic door while leaving hotel.
invitee was caught in automatic door while leaving hotel. The district court rendered
judgment for defendants and plaintiff appealed. The Supreme Court, Collins, C. J., held that
where action was brought under theory of strict liability in tort, evidence of subsequent,
similar actions involving same door and prior and subsequent repair orders were relevant to
causation and defective and dangerous condition.
Affirmed as to Respondent Mapes Hotel Corporation.
Reversed and remanded for new trial as to Respondent Dor-o-Matic.
Howard F. McKissick, Jr., of Reno, for Appellant.
Vargas, Bartlett & Dixon, and John C. Renshaw, of Reno, for Respondent Mapes Hotel
Corporation.
Richard P. Wait, of Reno, for Respondent Dor-O-Matic.
Contention that trial court erred in failing to give res ipsa loquitur instruction against both hotel and
manufacturer of automatic door, sued for injuries business invitee sustained when she was caught in door
while leaving hotel, would not be considered on appeal where invitee's counsel withdrew instruction
against manufacturer. NRCP 51.
2. Torts.
Doctrine of strict liability in tort extends to design and manufacture of all types of products.
3. Torts.
In proving a case under doctrine of strict tort liability, adequate and proper standards must be established
determining who is liable, the type of harm for which liability exists, and the duration of time over which
that liability extends.
4. Torts.
To hold manufacturer liable under strict liability in tort for injury sustained as result of defective product
the defect must have been present when the product left manufacturer's control.
5. Torts.
Time for which a manufacturer, distributor or other person may be held strictly liable in tort for injuries
due to defective product is properly supplied by a jury.
6. Negligence.
Refusal of trial court to state in positive rather than negative terms duty of hotel operator to business
invitee, injured when automatic door closed on her, was not error, notwithstanding that only that portion of
requested charge stating duty in negative terms was given and portion stating duty in positive terms
omitted.
7. Trial.
Report prepared by hotel security guard following accident in which business invitee was caught in
automatic door was not improperly received in action against hotel operator and
manufacturer of door on ground that it was hearsay where only objection on tender
was that it was cumulative.
improperly received in action against hotel operator and manufacturer of door on ground that it was
hearsay where only objection on tender was that it was cumulative.
8. Trial.
Hearsay is admissible unless objected to on that ground.
9. Torts.
Where action against hotel owner and manufacturer of automatic door for injuries business invitee
sustained when door closed on her was brought under theory of strict liability in tort, evidence of
subsequent, similar actions involving same door and prior and subsequent repair orders were relevant to
causation and defective and dangerous condition.
10. Appeal and Error; Trial.
Trial judge's repeated remarks and conduct consisting of comment on credibility of expert witnesses,
expressions of impatience, volunteered remarks having nothing to do with rulings, rebuffs to counsel for
trial tactics and other conduct indicating judge's prejudice against plaintiff was disapproved but prejudicial
effect would be considered on appeal where no specific objection was made at trial. SCR 220.
OPINION
This is an appeal in a personal injury action from a jury verdict in favor of respondents
(defendants below). We conclude prejudicial error was committed, reverse that judgment and
remand the action for a new trial as to respondent Dor-O-Matic. We affirm the judgment as to
respondent Mapes Hotel Corporation.
Appellant, Georgia C. Ginnis (plaintiff below), a business invitee in the Mapes Hotel in
Reno, Nevada, was caught in an automatic door which closed upon her while she was leaving
the hotel, injuring her. The door was designed and manufactured by Dor-O-Matic.
Georgia, her husband and a friend, Mrs. Atkinson, were customers in the casino area of the
Mapes when they decided to leave. Georgia's husband left first, followed by Mrs. Atkinson.
Both negotiated the first of two sets of automatic doors successfully, and Mr. Ginnis had
passed through both sets of doors. As Georgia, who followed Mrs. Atkinson by a few feet,
stepped across the threshold of the inner door, it closed on her, knocking her over the rail
alongside the door and pinning her to it. Georgia's husband tried to extricate her from the
predicament alone, but when he could not force open the door sought help from a hotel
cashier, Fred Brocklehurst. Georgia's husband said it took them both to force the door
open.
husband said it took them both to force the door open. Brocklehurst, a 240-pound man, said
he opened the door alone with one hand.
What happened immediately following that event is in dispute. Georgia and her husband
both testified a maintenance man carrying a tool box removed the threshold plate and worked
on the door's mechanism. The maintenance man denied he had a tool box, removed the plate,
or worked on the mechanism, but, with a hotel security officer, simply walked through the
door several times, and it functioned properly. The security officer filed an accident report
which was later admitted in evidence over Georgia's objection.
Appellant sued respondents upon four theories; negligence, implied warranty, res ipsa
loquitur, and strict tort liability. She alleged in her complaint, among other things, that the
door supplied by Dor-O-Matic was created, designed, manufactured, operated, repaired,
inspected, delivered and supplied . . . in a dangerous and defective condition and manner.
During the trial, Georgia called William W. Baker, chairman of the engineering design
department of the University of Nevada School of Engineering, as an expert witness. He
testified that from his investigation of the door and its schematic drawings, the cause of the
door closing as it did on Georgia was a malfunction of the safety relay in the door mechanism
and that it was a condition dangerous to human safety. He was of the opinion that the design
of the automatic door had the inherent capability to do just what it did to Georgia. He
described two safety features which could have prevented closing as it did; he said the door
could have been equipped with a duplicate control network or redundant system, or a trip or
pressure switch such as is commonly found on elevator doors to prevent them from closing
on passengers.
Dor-O-Matic called its engineering vice president, Paul W. Martin, designer of the door in
question, as its expert witness. He testified Dor-O-Matic designed, manufactured and sold the
door but did not install it or replace any parts in the door after its installation in 1964. He
stated his company had received no complaints concerning the operation of this or other
doors and that only their competitors insinuated the door was defective. He agreed with
Professor Baker that the safety relay must have been responsible for the door's malfunction
when Georgia was caught in it.
During the trial, Georgia sought to call two other persons to testify who had been caught in
the same door subsequent to her experience.
her experience. The court refused the request. Similarly, Georgia offered in evidence 19
repair orders on automatic doors at the Mapes. The court allowed in evidence only three
relating to the same door in which she was caught, and refused the others.
In settling instructions, the lower court gave Georgia a res ipsa loquitur instruction against
the Mapes Hotel only, refused any instruction on strict tort liability, and refused certain of her
instructions on the duty of an invitor to an invitee. Appellant also contends the trial judge was
guilty of judicial misconduct and indulged in prejudicial interference by his conduct of the
trial.
The issues presented for our review upon this appeal are these:
I. Whether an instruction should have been given applying res ipsa loquitur to both
defendants and not just against the Mapes Hotel?
II. Whether an instruction on strict liability should have been given?
III. Whether the instructions on the duty of an invitor to an invitee were adequate under the
circumstances?
IV. Whether the lower court erred in admitting the accident report made by the Mapes
Hotel security guard because it contained hearsay?
V. Whether the lower court erred in refusing to allow appellant to have at least two other
witnesses testify that they were similarly caught in the same door around the time appellant
was injured?
VI. Whether the lower court erred in refusing to allow appellant to introduce evidence of
repairs on the same and similar doors prior to and subsequent to appellant's accident?
VII. Whether the trial judge was guilty of judicial misconduct and interference?
[Headnote 1]
1. Whatever might be said about the merits of Georgia's first claim of error that the trial
court failed to give a res ipsa loquitur instruction against both Mapes and Dor-O-Matic, it is
not preserved for our consideration. A careful review of the record conclusively establishes
that Georgia's counsel withdrew the res ipsa loquitur instruction against Dor-O-Matic. We
will not consider on appeal an instruction not offered to the trial court. NRCP 51; e.g.,
Otterbeck v. Lamb, 85 Nev. 456, 456 P.2d 855 (1969).
2. Georgia offered, and the trial court refused, three instructions which would have
permitted the jury to consider the doctrine of strict tort liability against Dor-O-Matic.
the doctrine of strict tort liability against Dor-O-Matic. We think that was error requiring
reversal and a new trial.
[Headnote 2]
In Shoshone Coca-Cola Bottling Co. v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966), we
judicially adopted the doctrine of strict tort liability for Nevada in the field of foodstuffs and
bottled beverages. We now extend that doctrine to the design and manufacture of all types of
products. Suvada v. White Motor Co., 210 N.E.2d 182 (Ill. 1965). In doing so, a plaintiff, in
relying upon the doctrine, must still prove his case. As we said in Shoshone, He must still
establish that his injury was caused by a defect in the product, and that such defect existed
when the product left the hands of the defendant. The concept of strict liability does not prove
causation, nor does it trace the cause to the defendant. Id. at 443.
[Headnote 3]
In proving a case under that doctrine, adequate and proper standards must be established
determining who is liable, the type of harm for which liability exists, and the duration of time
over which that liability extends.
In Shoshone we said that a manufacturer and distributor of a bottled beverage is liable for
injuries caused by defects that existed when the product left its hands.
After examining a multitude of cases and legal writers, we think the most accurate test for
a defect within strict tort liability is set forth in Dunham v. Vaughn & Bushnell Mfg. Co.,
247 N.E.2d 401, 403 (Ill. 1969), where it was held: Although the definitions of the term
defect' in the context of products liability law use varying language, all of them rest upon the
common premise that those products are defective which are dangerous because they fail to
perform in the manner reasonably to be expected in light of their nature and intended
function.
As shown by the evidence admitted at trial through Professor Baker, and under the
authority of Shoshone and Dunham, appellant adduced sufficient proof to be entitled to
instruction of the jury on the doctrine of strict tort liability for defect in design of the door by
Dor-O-Matic, because it failed to perform in the manner reasonably to be expected in light of
its nature and intended function and was more dangerous than would be contemplated by the
ordinary user having the ordinary knowledge available in the community. See also Greeno v.
Clark Equip. Co., 237 F.Supp. 427, 429 (N.D. Ind. 1965).
[Headnote 4]
On the other hand, there was no evidence tending to show the defective relay was the same
one installed by Dor-O-Matic before the door left the manufacturer; in which event, if there
was a substitution of the part through remodeling or repair of the door, someone else, but not
Dor-O-Matic, would be liable to appellant if the design were found not to be defective. The
defect must have been present when the product left the manufacturer or he cannot be held
liable. Shoshone Coca-Cola Bottling Co. v. Dolinski, supra; Suvada v. White Motor Co.,
supra; Restatement (Second) of Torts 402A(1)(b).
[Headnote 5]
As to the time for which a manufacturer, distributor or other person may be held liable for
his product, we believe the correct ruling was announced in Dunham v. Vaughn & Bushnell
Mfg. Co., supra, which involved a hammer used for 11 months when a chip flew off the head
and struck the plaintiff in the eye as he was striking a metal pin. Justice Walter Schaefer,
writing for the unanimous Illinois Supreme Court, said the answer is properly supplied by a
jury. 247 N.E.2d at 403. That decision held: The jury could properly have concluded that,
considering the length and type of its use, the hammer failed to perform in the manner that
would reasonably have been expected, and that this failure caused the plaintiff's injury. Id.
See also Ulmer v. Ford Motor Co., 452 P.2d 729 (Wash. 1969).
3. Respondent Mapes Hotel offered instruction No. 22
1
taken from California Jury
Instructions Civil (BAJI) 213(i) (4th ed.) on the duty of an invitor to an invitee, but omitted
therefrom the following wording: However, it is the duty of an invitor to know of any
defective or dangerous condition that would be revealed to him by the exercise of ordinary
care, and he is conclusively presumed to know of any dangerous condition that was
negligently created by himself or by an employee acting within the scope of his
employment."
____________________

1
The owner or occupant of premises, whom I shall call an invitor, may not be held liable for an injury
suffered by an invitee, which resulted from a defective or dangerous condition not caused by a negligent act of
the invitor, himself, and of which the invitor had no knowledge, unless that condition existed for such a length of
time that if the invitor had exercised ordinary care, he would have discovered it and could and would have
remedied it before the time of the injury.
Nor may the invitor be held liable if, having exercised ordinary care, he discovered such a condition before
the time of the injury, but not long enough before to provide him the time reasonably necessary to remedy the
condition or to give reasonable warning or to provide reasonable protection.
condition that was negligently created by himself or by an employee acting within the scope
of his employment.
[Headnote 6]
Appellant complains the given portion is couched in negative terms, while the omitted
portion imports the positive duty. While we would have been inclined to state the invitor's
duty in positive rather than negative terms, the trial court did not commit error in refusing to
do so. State v. Jones, 7 Nev. 408 (1872); State v. Martel, 32 Nev. 395 (1910); Southern
Pacific Co. v. Watkins, 83 Nev. 471, 493, 435 P.2d 498 (1967).
[Headnotes 7, 8]
4. Appellant contends the lower court erred in admitting the accident report of the Mapes
Hotel security guard because it contained hearsay. The record conclusively shows the only
objection made by appellant's counsel when the report was offered in evidence was that it was
cumulative. There was no error; hearsay is admissible unless objected to on that ground.
Barra v. Dumais, 76 Nev. 409, 414, 356 P.2d 124 (1960).
[Headnote 9]
5. Since we hold the lower court should have instructed upon the strict tort liability
doctrine in this case, we also say evidence of subsequent, similar accidents involving the
same door are relevant to causation and a defective and dangerous condition under that
theory.
In 1 Frumer & Friedman, Products Liability 12.01(4), the authors say: [E]vidence of
subsequent accidents is not ordinarily pertinent to the issue of notice or knowledge. But such
evidence may be considered pertinent in determining whether or not the product was
hazardous.
Likewise, B. Witkin, California Evidence 353 (2d ed. 1966), states: The relevancy of
other accidents, whether prior or subsequent, depends on the purpose for which the evidence
is offered. A subsequent accident would not be relevant on the issue of knowledge or notice
of a possibly dangerous condition at the time of the injury giving rise to the action. But a
subsequent accident at the same or a similar place, under the same or similar conditions, is
just as relevant as a prior accident to show that the condition was in fact dangerous or
defective, or that the injury was caused by the condition. (Emphasis in the original.)
We do not think the rule in Southern Pacific v. Watkins, supra, at 486, dealing with
evidence of prior accidents relating to notice is any authority upon this point, as that
opinion expressly left open the question here decided.
to notice is any authority upon this point, as that opinion expressly left open the question here
decided.
6. The trial court allowed in evidence three prior repair orders on the door causing the
accident under Georgia's negligence theory. It excluded 16 other repair orders for other doors
or for repairs subsequent to the accident. We see no error in those rulings.
However, when the case is retried on the strict tort liability doctrine, a different issue is
presented. Should the repair orders, prior or subsequent, tend to prove the faulty design or
manufacture or any other necessary element of that cause of action, they would be admissible.
7. Appellant's counsel points out to us in the record of the trial repetitive instances of the
trial judge's remarks and conduct which he contends show comment on the credibility of
expert witnesses and on testimony, expressions of impatience, volunteered remarks having
nothing to do with rulings, rebuffs to counsel for his trial tacts, and other comments and
conduct amounting to judicial misconduct. Counsel also offers the affidavit of a juror
testifying to a comment made by the trial judge to some of the trial jurors in an elevator the
first day of the trial; Isn't this the most boring case you have ever heard? The juror's
affidavit also went on to say that the only time the Judge appeared alert was when he prodded
counsel to hurry things along, and this tended to disrupt counsel for both sides. The juror also
said she believed it was obvious that the Judge was prejudiced against the plaintiff-appellant.
Counsel argues that in accumulation, the judge's comments and conduct amounted to
prejudicial error even though he made no specific objection at trial.
A former Chief Justice of this Court, Patrick A. McCarran, said in Peterson v. Pittsburgh
Silver Peak Gold Mining Co., 37 Nev. 117, 140 P. 519 (1914): While it is true that not every
remark of the trial court will constitute reversible error, where it is made with reference to the
admissibility of evidence, yet there is nothing of which a nisi prius judge should be more
careful than in his remarks or assertions made with reference to admitted or rejected
testimony during the course of a trial. The average juror is a layman; the average layman
looks with most profound respect to the presiding judge; and the jury is, as a rule, alert to any
remark that will indicate favor or disfavor on the part of the trial judge. Human opinion is
ofttimes formed upon circumstances meager and insignificant in their outward appearance;
and the words and utterances of a trial judge, sitting with a jury in attendance, are liable,
however unintentional, to mold the opinion of the members of the jury to the extent that
one or the other side of the controversy may be prejudiced or injured thereby.
however unintentional, to mold the opinion of the members of the jury to the extent that one
or the other side of the controversy may be prejudiced or injured thereby.
. . .
If remarks made by the judge in the progress of a trial are calculated to mislead the jury or
prejudice either party, it would be grounds for reversal. . . .
While it may be reasonable to assume that remarks of the trial judge, such as those
complained of in this case, may have an influence prejudicial to one or the other side of the
case, yet, in view of the rule that the party who alleges error must establish the same clearly,
we would not disturb the judgment in this case by reason of the errors assigned with reference
to the remarks of the trial court. 37 Nev. at 121-22.
Canon 15 of the Canons of Judicial Ethics of the American Bar Association, adopted by
this Court as Supreme Court Rule 220, reads:
1. A judge may properly intervene in a trial of a case to promote expedition, and prevent
unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his
undue interference, impatience or participation in the examination of witnesses, or a severe
attitude on his part toward witnesses, especially those who are excited or terrified by the
unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or
the ascertainment of the truth in respect thereto.
2. Conversation between the judge and counsel in court is often necessary, but the judge
should be studious to avoid controversies which are apt to obscure the merits of the dispute
between litigants and lead to its unjust disposition. In addressing counsel, litigants or
witnesses, he should avoid a controversial manner or tone.
3. He should avoid interruptions of counsel in their arguments except to clarify his mind
as to their positions, and he should not be tempted to the unnecessary display of learning or a
premature judgment.
[Headnote 10]
We disapprove of the type of judicial conduct disclosed by the record. We are not
compelled in this case to rule upon its prejudicial effect, however, because the error was not
preserved for our consideration. Miller v. Western Pacific R. R. Co., 24 Cal.Rptr. 785
(Cal.Dist.Ct.App. 1962); c.f. Nevada State Bank v. Snowden, 85 Nev. 19, 449 P.2d 254
(1969); Gaudette v. Travis, 11 Nev. 149 (1876).
The judgment is affirmed as to Respondent Mapes Hotel Corporation and reversed and
remanded for a new trial as to Respondent Dor-O-Matic.
Corporation and reversed and remanded for a new trial as to Respondent Dor-O-Matic.
Novack v. Hoppin, 77 Nev. 30, 359 P.2d 83 (1961).
____________
86 Nev. 418, 418 (1970) Nevada State Welfare Board v. Mofford
NEVADA STATE WELFARE BOARD, Appellant, v.
CLARENCE A. MOFFORD, Respondent.
No. 6075
June 4, 1970 470 P.2d 129
Appeal from decision of the Eighth Judicial District Court, Clark County; William P.
Compton, Judge.
Appeal by State Welfare Board from a decision of the district court setting aside Board's
determination that blind man was not eligible for aid on ground that he allegedly failed to
disclose resources possessed by him and available for his support. The Supreme Court,
Thompson, J., held that where there was no issue regarding degree of blindness or residence
of blind applicant for welfare aid, and his application prima facie established poverty, action
of State Welfare Board in not granting applicant immediate relief pending further
investigation as to whether he in fact failed to disclose resources possessed by him and
available for his support was arbitrary and not in conformity with law.
Affirmed.
Harvey Dickerson, Attorney General, and Norman H. Samuelson, Deputy Attorney
General, of Carson City, for Appellant.
B. Mahlon Brown, III, Clark County Legal Aid Society, for Respondent.
Initial denial of aid to blind person is not authorized when prima facie eligibility is shown as to matters
other than degree of blindness and residence. NRS 426.010, 426.020, 426.210, 426.380, subd. 2.
State Welfare Board has power to investigate, to cause special inquiry to be made and to suspend
payments pending inquiry, if it has reason to believe that aid was obtained improperly, to prosecute
fraudulent applicant for perjury, and to bring civil suit against fraudulent applicant for restitution, and
Board must utilize such remedies rather than withhold immediate relief from applicant for
aid.
remedies rather than withhold immediate relief from applicant for aid. NRS 426.070, 426.330, subd. 1,
426.380, subd. 4.
Where there was no issue regarding degree of blindness or residence of blind applicant for welfare aid,
and his application prima facie established poverty, action of State Welfare Board in not granting applicant
immediate relief pending further investigation as to whether he in fact failed to disclose resources
possessed by him and available for his support was arbitrary and not in conformity with law. NRS
426.010, 426.020, 426.210, 426.380, subd. 2.
OPINION
This appeal by Welfare tests the propriety of a district court decision setting aside
Welfare's determination that Mofford, a blind man, is not eligible for aid. The denial of aid by
Welfare was based upon Mofford's alleged failure to disclose resources possessed by him and
available for his support. The district court did not err, and we affirm its ruling.
Mofford filed an application for aid in September 1967. He was then 65 years old, and has
been a resident of Nevada since 1939, and of Clark County since 1946. He has been sightless
since 1952 and was placed on blind status during that year by Federal Social Security. For the
past 16 or 17 years he has been a member of Southern Nevada Sightless and the Nevada
Foundation of the Blind.
His application for assistance disclosed that his only income was a social security payment
of $115.60 per month. He noted several sales of real property, but stated that the proceeds had
been dissipated for living expenses.
The caseworker for Welfare prepared a budget listing the monthly social security payment
as Mofford's only income and determined his actual need to be an additional one dollar.
Consequently, Welfare offered that amount. Mofford declined the offer. Thereafter, on
November 28, 1967, Welfare rejected Mofford's application noting that he had not provided
information which would enable Welfare to establish that he did not have resources in excess
of $1,500.
1
Mofford then demanded a fair hearing.
____________________

1
NRS 426.210 reads: 1. Aid shall not be denied to, or on behalf of, any blind individual by reason of his
ownership of real property occupied by such person as a home.
2. Any other real or personal property owned by a blind individual and not occupied by him as a home, the
aggregate value of which exceeds $1500, less all encumbrances thereon, shall be utilized to meet current needs.
a fair hearing. NRS 426.450. The hearing was not useful. Mofford did not testify, and his
representative or agent, another blind person, advised Welfare that it had no business delving
into Mofford's several property transactions and frustrated any effort to do so. Welfare found
that the caseworker had correctly carried out the provisions of the manual and denied
Mofford's appeal. Mofford then petitioned for judicial review. The district court found that
Welfare's action was arbitrary and remanded the matter with direction to ascertain the
applicant's actual needs and to pay the same retroactively to the date of application.
1. Blind persons are to be relieved from the distress of poverty (NRS 426.010), and the act
is to be liberally construed (NRS 426.020) to accomplish that end. It is for this reason that the
legislature directed that the applicant's statements in his application shall constitute prima
facie evidence of the facts stated, except with respect to degree of blindness and residence.
NRS 426.380(2). The legislature also decreed that applications shall be acted upon promptly.
NRS 426.390 (1). Mofford is a blind resident. His application disclosed that his only income
was his social security check and that moneys received from property transactions had been
spent. At that instant his eligibility for aid was prima facie established, and it was the
caseworker's task to determine actual need (Villa v. Arrizabalaga, 86 Nev. 137, 466 P.2d
663 (1970)) and advise accordingly. The caseworker apparently possessed doubt with respect
to Mofford's financial status and so advised the department.
[Headnote 1]
The caseworker and the department were suspicious. However, it was not permissible for
either to act upon such suspicion and deny assistance out-of-hand. The applicant's statements
as to financial need must be accorded prima facie verity. The statute so directs. A resident
blind person, who prima facie is burdened with the added distress of poverty, need not await
the cumbersome process of review before receiving aid. His application must promptly be
granted. An initial denial of aid is not authorized when prima facie eligibility is shown as to
matters other than the degree of blindness and residence.
[Headnote 2]
Welfare is protected. It enjoys the power to investigate. NRS 426.380(4). If it has reason to
believe that aid was obtained improperly it shall cause special inquiry to be made and may
suspend payments pending that inquiry.
suspend payments pending that inquiry. NRS 426.330(1).
2
A fraudulent applicant may be
prosecuted for perjury and is liable civilly to an action for restitution. NRS 426.070. These
are the remedies to be utilized rather than the withholding of immediate relief.
[Headnote 3]
2. Almost three years have passed since Mofford applied for aid. There is no issue
regarding his degree of blindness or residence. His application prima facie established
poverty. He was entitled to immediate relief and did not receive it. The consequences of
Welfare's actions are not known to us. Conjecture, however, leads to unpleasant thoughts. In
any event, this case points to the wisdom of the statutory scheme. Welfare's handling of the
matter was arbitrary and not in conformity with law.
Affirmed.
____________________

2
The United States Supreme Court decision of Goldberg v. Kelly, decided March 23, 1970, casts doubt upon
the constitutionality of that part of NRS 426.330(1) which allows suspension of payments prior to a hearing on
the special inquiry.
____________
86 Nev. 421, 421 (1970) McGee v. Sheriff
WILLIE EARL McGEE, Appellant, v. SHERIFF,
No. 6154
June 4, 1970 470 P.2d 132
Appeal from order of Eighth Judicial District Court, Clark County, denying habeas corpus;
Thomas J. O'Donnell, Judge.
Defendant appealed from denial by the district court of his petition for habeas corpus
following state's refiling of charges on same offense concerning which defendant had
previously obtained grant of writ of habeas corpus for state's failure to prosecute case with
reasonable speed. The Supreme Court, Thompson, J., held that fact that state failed to appeal
from grant of defendant's petition for writ of habeas corpus did not preclude state's timely
refiling of charges against defendant for same offense.
Affirmed.
Wiener, Goldwater & Galatz, and Herbert L. Waldman, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, of Carson City, George E. Franklin, Jr., District
Attorney, and Larry C. Johns, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Sixth Amendment right to a speedy trial extends to state criminal cases. U.S.C.A.Const. Amend. 6.
2. Criminal Law.
Constitutional right to speedy trial must be asserted before trial or it is waived. U.S.C.A.Const. Amend. 6.
3. Arrest.
Previous illegal detention does not preclude later valid detention, preliminary examination and
commitment, although subsequent prosecution must be commenced within period of limitation and may be
forbidden if original proceeding was dismissed due to willful failure of prosecutor to comply with
important procedural rules. NRS 34.590, 171.080-171.100.
4. Criminal Law.
Defendant who was granted writ of habeas corpus on ground that state failed to prosecute case with
reasonable speed following defendant's arrest for robbery and who was thereafter charged with same
offense within period of limitations and whose proceeding on second complaint had progressed without
unreasonable delay was not denied his Sixth Amendment right to speedy trial. U.S.C.A. Const. Amend. 6;
NRS 34.590, 171.080-171.100.
5. Habeas Corpus.
Writ of habeas corpus may be issued by either Supreme Court justice or district judge although if issued
by Supreme Court justice, there can be no review. NRS 34.380, 34.380, subd. 4; Const. art. 6, 4,
6.
6. Habeas Corpus.
Writ of habeas corpus is not confined in its use to criminal matters and may be utilized in child custody
cases and in other areas.
7. Habeas Corpus.
Fact that state failed to appeal from grant of defendant's petition for writ of habeas corpus for failure to
prosecute with reasonable speed did not preclude state's timely refiling of charges against defendant for
same offense. NRS 34.380, subd. 4, 34.590.
OPINION
On May 19, 1967, McGee was charged by criminal complaint with having committed the
crime of robbery, and was arrested forthwith.
arrested forthwith. A preliminary examination was never held on that charge, nor was such
examination waived. In September 1967, the district court granted the defendant's petition for
a writ of habeas corpus, and he was discharged from custody. The order granting the writ was
premised upon the state's failure to prosecute the case with reasonable speed. The state did
not appeal from that adverse ruling. Instead, the prosecutor filed another criminal complaint
on December 13, 1967 charging McGee with the same offense. He was eventually arrested in
another state and returned to Nevada. A timely preliminary hearing was held on the second
criminal complaint in December 1968, and the magistrate ordered that McGee stand trial in
the district court. He then commenced this habeas proceeding contending that his right to a
speedy trial was violated. The district court denied relief, and this appeal followed.
Two contentions are pressed: first, that his constitutional right to a speedy trial forbids
prosecution of the second complaint, just as it required his discharge on the first one; second,
that by failing to appeal from the September 1967 order releasing him from custody, the state
is barred from commencing a new proceeding against him for the same offense. We turn to
consider these contentions.
[Headnotes 1-3]
1. The Sixth Amendment right to a speedy trial extends to state criminal cases. Klopfer v.
North Carolina, 386 U.S. 213 (1967). Our statutory time directives governing the progress of
a criminal case serve as a guide in deciding a speedy trial issue. Stabile v. Justice's Court, 83
Nev. 393, 432 P.2d 670 (1967). This constitutional right recognizes that the pendency of a
criminal charge may subject an accused to public scorn, deprive him of employment and
curtail his speech and associations. It affords protection against these consequences as well as
against unreasonable detention before trial. Klopfer v. North Carolina, supra. It is intended to
spare an accused those penalties and disabilitiesincompatible with the presumption of
innocencethat may spring from delay in the criminal process. Dickey v. Florida, 398 U.S.
30 (1970). A violation of this fundamental right entitles an accused to discharge from custody
or restraint. However, the violation is not necessarily to be given the effect of an acquittal. It
is for this reason that the right must be asserted before trial, or it is waived. Oberle v.
Fogliani, 82 Nev. 428, 420 P.2d 251 (1966). An attempt to invoke it following trial and
conviction will not be honored.
will not be honored. In short, this constitutional right possesses little, if any, relevance to the
issue of guilt. Rather, it is designed to afford protection against the mentioned consequences
which inevitably flow from the failure to prosecute with reasonable speed. Our legislature
has, therefore, directed that one who has been discharged upon habeas corpus may afterwards
be committed for the same offense by legal order or process.
1
A previous illegal detention
does not preclude a later valid detention, preliminary examination and commitment. Victoria
v. Young, 80 Nev. 279, 392 P.2d 509 (1964). Of course, the subsequent prosecution must be
commenced within the period of limitations, NRS 171.080-171.100. The subsequent
prosecution may also be forbidden if the original proceeding was dismissed due to the willful
failure of the prosecutor to comply with important procedural rulesa rare circumstance, but
one that can occur. Maes v. Sheriff, 86 Nev. 317, 468 P.2d 332 (1970). Neither of these
exceptions apply to the case at hand.
[Headnote 4]
The interests of all are thus accommodated. An accused is protected against unreasonable
delay in bringing him to trial and may secure his release via habeas. On the other hand,
society is protected against the release of one who may be proven guilty, by permitting a
refiling of the charge within the period of limitations. This is precisely what happened here.
We hold that the appellant has not been denied his Sixth Amendment right to a speedy trial.
That right was honored when the district court ordered his release upon the first complaint,
and the proceeding on the second complaint has progressed without unreasonable delay.
[Headnotes 5-7]
2. The right to appeal an order of the district court granting a petition for habeas corpus
was expressly granted in 1953, almost one hundred years after adoption of the statute
permitting the refiling of a charge following release on habeas.2 The appellant contends
that appeal is the sole remedy available to the state and displaced refiling of the charge.
____________________

1
NRS 34.590 reads: 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.
almost one hundred years after adoption of the statute permitting the refiling of a charge
following release on habeas.
2
The appellant contends that appeal is the sole remedy available
to the state and displaced refiling of the charge. The 1953 statute does not repeal the earlier
one, either expressly or by implication. The dual remedies may coexist and are not basically
inconsistent. There is no valid objection to the existence of two courses of action for the state,
refiling or appeal.
Refiling normally will be utilized when the order granting habeas relief rests upon a
technical deficiency in the process, warrant or commitment, or perhaps, when the state,
having ample evidence to hold the accused for trial, neglected to offer enough to satisfy the
court. Refiling in such circumstances will move the case along without the delay attending
appealan important consideration in criminal matters. On the other hand, the prosecutor
may select appellate review to establish a point of law for future guidance and to correct what
he considers to be a significant or recurring district court error. If successful, the district court
order would be voided, and the cause would proceed on its course to trial. If unsuccessful, the
order of the lower court would stand without prejudice to the right of the state to refile.
Moreover, either a supreme court justice or a district judge may issue a writ of habeas
corpus. Nev. Const. art. 6, 4 and 6; NRS 34.380. If issued by a supreme court justice, there
can be no review. Yet, the state's right to proceed should not be barred by a correctible
mistake. The right to refile is essential in this circumstance.
Finally, we note that the writ of habeas corpus is not confined in its use to criminal
matters. For example, it is utilized in child custody cases (McGlone v. McGlone, 86 Nev. 14,
464 P.2d 27 (1970)) and in other areas. The right to appellate review is insured by NRS
34.380(4). Refiling in these instances is not an available procedure.
It is apparent that each statute, NRS 34.590 and NRS 34.380{4), enjoys a significant role
in our procedural machinery, depending upon the circumstances, sometimes providing the
sole remedy and sometimes a choice of remedies.
____________________

2
NRS 34.380(4) reads: The State of Nevada is an interested party in habeas corpus proceedings, and, in the
event the district judge or district court to whom or to which an application for a writ of habeas corpus has been
made shall grant such writ, then the district attorney of the county in which the application for the writ was
made, or the attorney general in behalf of the state, may appeal to the supreme court from the order of the district
judge granting the writ and discharging the applicant; but such appeal shall be taken within 20 days from the day
of entry of the order.
34.380(4), enjoys a significant role in our procedural machinery, depending upon the
circumstances, sometimes providing the sole remedy and sometimes a choice of remedies. In
the present context, the availability of appellate review did not preclude refiling.
Affirmed.
____________
86 Nev. 426, 426 (1970) Stassi v. Sheriff
NICK STASSI and ROBERT E. TIBBY, Appellants, v.
SHERIFF, WASHOE COUNTY, NEVADA, Respondent.
No. 6210
June 4, 1970 470 P.2d 131
Appeal from order denying pre-trial application for a writ of habeas corpus; Second
Judicial District Court, Washoe County; Thomas O. Craven, Judge.
Habeas corpus proceeding by petitioners indicted by grand jury for pandering and living
off earnings of a prostitute. The district court denied relief, and petitioners appealed. The
Supreme Court held that evidence was sufficient to support grand jury indictment.
Affirmed.
Samuel B. Francovich, of Reno, for Appellants.
Harvey Dickerson, Attorney General, Carson City; William J. Raggio, District Attorney,
Evidence was sufficient to support grand jury indictment for pandering and living off earnings of a
prostitute. NRS 201.300, 201.320.
Evidence need not be sufficient to justify conviction in order that indictment be returned.
3. Habeas Corpus.
If evidence meets test of sufficiency to establish reasonable inference that accused committed the crimes
charged, habeas corpus relief, on ground that evidence presented to grand jury was
insufficient to warrant indictment, is properly denied.
86 Nev. 426, 427 (1970) Stassi v. Sheriff
corpus relief, on ground that evidence presented to grand jury was insufficient to warrant indictment, is
properly denied.
OPINION
Per Curiam:
The appellants were indicted by the Washoe County Grand Jury for pandering and living
off the earnings of a prostitute, in violation of NRS 201.300 and NRS 201.320, respectively.
This is an appeal from an order denying habeas corpus.
The appellants contend that the district court erred in denying their application for habeas
because (1) the evidence presented to the Grand Jury was insufficient to indict them, and (2)
the prosecutor interfered with an attempt by a member of the Grand Jury to question one of
the witnesses thereby preventing a full and complete investigation of the matter by the Grand
Jury.
[Headnotes 1-3]
We have thoroughly reviewed the testimony of the seven witnesses upon which the Grand
Jury returned its indictment, and we deem it unnecessary to recite the same here. There was
ample evidence to establish a reasonable inference that these appellants committed the crimes
charged, sufficient to support the Grand Jury indictment. The evidence need not be sufficient
to justify a conviction in order that an indictment be returned; if it meets the test of
sufficiency to establish a reasonable inference that the defendants committed the crimes
charged, then habeas is properly denied. Beasley v. Lamb, 79 Nev. 78, 378 P.2d 524 (1963).
Maskaly v. State, 85 Nev. 111, 450 P.2d 791 (1969). Such was the case here.
On the issue of interference by the prosecutor with the efforts of the Grand Jury to
interrogate a witness, our examination of the transcript of the Grand Jury proceedings does
not bear out the contention of the appellants. At the conclusion of the testimony of each of the
witnesses the foreman of the Grand Jury specifically inquired of the other members of the
Jury if there were any other questions to be directed to the witnesses; and, there being none,
each of the witnesses was thereupon excused. There was ample opportunity to elicit further
information if any was sought.
Accordingly, the appellants having failed to make evident any error in the proceedings
below, the order of the district court denying habeas is affirmed.
____________
86 Nev. 428, 428 (1970) Nolan v. State Department 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
June 5, 1970 470 P.2d 124
Appeal from the Eighth Judicial District Court, Clark County; Alvin N. Wartman, Judge.
Original opinion, at 85 Nev. 611, 460 P.2d 153 (1969), stricken as decisive of an incorrect
issue.
Proceeding to review decision suspending broker's license. The district court affirmed, and
broker appealed. The Supreme Court affirmed but, on rehearing, the same court, Collins, C.
J., held that record in disciplinary proceedings against broker who had induced owners to
disregard agreement with second broker and accept first broker's offer was insufficient to
sustain disciplinary action for lack of clear determination whether first broker's offer
complied with listing agreement.
Reversed and remanded to Real Estate Division, State Department of Commerce.
Joseph C. Crawford, of Las Vegas, for Respondent.
1. Brokers.
Broker who, after owner has accepted offer through second broker, induces owner to disregard second
broker's offer and accept his own offer would not be subject to discipline if his own offer complied with
soliciting agreement. NRS 645.630, subd. 11.
2. Brokers.
Record in disciplinary proceedings against broker who had induced owners to disregard agreement with
second broker and accept first broker's offer was insufficient to sustain disciplinary action for lack of clear
determination whether first broker's offer complied with listing agreement.
OPINION ON REHEARING
On February 3, 1970, we granted rehearing of our opinion in this case filed November 4,
1969.
Rehearing was granted because counsel for appellant and counsel for amicus curiae, The
Las Vegas Board of Realtors, contended the opinion rendered overruled a long-standing
Nevada case, Engel v. Wilcox, 75 Nev. 323
Nevada case, Engel v. Wilcox, 75 Nev. 323, 340 P.2d 93 (1959). We did not intend to
overrule that opinion, either directly or by implication.
Engel, quoting Cochran v. Ellsworth, 272 P.2d 904, 909 (Cal.Dist.Ct.App. 1954), holds:
Generally speaking, a real estate broker has earned his commission when he has brought to
the vendor a purchaser who is ready, willing and able to buy the property upon the terms on
which the agent is authorized to sell, or when a written contract upon any terms acceptable to
the seller has been entered into with a purchaser originally brought to the vendor by the agent.
It is not necessary for the sale to be completed, under the foregoing rule, for the broker to be
entitled to his commission.' 75 Nev. at 326. (citations omitted)
[Headnote 1]
In our opinion of November 4, 1969, we proceeded upon the premise that on January 12,
1966, Nolan had not presented an offer to the Wests by a buyer who was ready, willing and
able to buy their property in accordance with the terms of the listing because the offer
contained an additional condition not a provision of the listing agreement, namely, that the
purchasers were to apply and qualify for an FHA loan. The opinion then discussed the
meaning of the word able under that premise. We apparently proceeded upon an incorrect
premise because the real issue in controversy is whether or not the offer was in accord with
the listing agreement. If the January 12 offer by Nolan on behalf of the Farwells to the Wests
complied with the terms of the listing agreement given Nolan by the Wests, then under the
rule of Engle v. Wilcox, supra, Nolan would have been entitled to his commission on that
date and he could not have been motivated by personal gain on January 15 when he induced
Wests to disregard the Stevens' offer and accept his. He would not therefore have been
subject to discipline by the Real Estate Division for violation of NRS 645.630(11).
1
On the
other hand, if the January 12 Nolan offer on behalf of the Farwells to the Wests did not
comply with the listing agreement, then the breach induced by Nolan of the intervening
contract signed on January 13 and 14 by the Wests with Patricia Stevens' client, the
Elders, was motivated by his personal gain, because he had not yet earned his
commission.

____________________

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 a different principal, where such substitution is motivated by
the personal gain of the licensee.
On the other hand, if the January 12 Nolan offer on behalf of the Farwells to the Wests did
not comply with the listing agreement, then the breach induced by Nolan of the intervening
contract signed on January 13 and 14 by the Wests with Patricia Stevens' client, the Elders,
was motivated by his personal gain, because he had not yet earned his commission.
[Headnote 2]
While the Real Estate Division appears to have predicated its disciplinary ruling against
Nolan upon such a finding, the record is not clear in that regard.
2
Since the entire result of
this case rests upon that single point, we feel there should be a clear determination of it.
Accordingly, we reverse the ruling of the lower court and the Real Estate Division and
remand the case to that board for a specific finding whether the Nolan offer on behalf of the
Farwells on January 12, 1966, to the Wests for the sale of their property was in accordance
with the terms of the listing agreement given Nolan by the Wests for that property.
We reaffirm our prior holding in Engel v. Wilcox, supra, and order the balance of our
November 4, 1969, opinion in this case stricken as decisive of an incorrect issue.
____________________

2
The record contains a copy of the listing agreement between Nolan and the Wests, but it contains the
notation CTNL, the exact meaning or effect of which is not known to us, nor was it discussed by the Real
Estate Division in its findings and conclusions. The record also indicates that both the Wests had some
knowledge of the Nolan offer on behalf of the Farwells, because the findings imply they discussed both it and
the Stevens offer.
____________
86 Nev. 430, 430 (1970) Maatallah v. Warden
KHALIL BEN MAATALLAH, Appellant, v. WARDEN,
No. 6138
June 5, 1970 470 P.2d 122
Appeal from order of the Eighth Judicial District Court, Clark County, dismissing a writ of
habeas corpus; William P. Compton, Judge.
The district court refused to hold evidentiary hearing and denied petition, and petitioner
appealed. The Supreme Court, Thompson, J., held that merit of allegation of petitioner,
who had been found insane and unable to stand trial on murder charge, who had been
committed to state hospital for treatment, and who had been subsequently transferred to
state prison, of imprisonment without treatment in violation of statute and in derogation
of fundamental and constitutional rights could not be assessed without evidentiary
hearing.
denied petition, and petitioner appealed. The Supreme Court, Thompson, J., held that merit of
allegation of petitioner, who had been found insane and unable to stand trial on murder
charge, who had been committed to state hospital for treatment, and who had been
subsequently transferred to state prison, of imprisonment without treatment in violation of
statute and in derogation of fundamental and constitutional rights could not be assessed
without evidentiary hearing.
Reversed with direction that an appropriate evidentiary hearing take place.
Harvey Dickerson, Attorney General, and Michael L. Melner, Deputy Attorney General, of
Carson City, for Respondent.
1. Mental Health.
Confinement of one who is mentally ill is primarily for purpose of treatment and secondarily for safety of
that person and others with whom he may come in contact.
2. Mental Health.
Place of detention of person who has been found insane and unable to stand trial may be either hospital or
prison, but in either instance, treatment must accompany detention. NRS 178.425.
3. Habeas Corpus.
Merit of allegation of habeas corpus petitioner, who had been found insane and unable to stand trial on
murder charge, who had been committed to state hospital for treatment, and who had been subsequently
transferred to state prison, of imprisonment without treatment in violation of statute and in derogation of
fundamental and constitutional rights could not be assessed without evidentiary hearing. NRS 178.425;
U.S.C.A.Const. Amend. 8; Const. art. 1, 6.
Due process may forbid confinement of mentally ill person, not found guilty of crime, without affording
reasonable treatment.
5. Criminal Law.
Person who has been found guilty of crime may not be punished while he is insane. NRS 178.400.
6. Criminal Law.
Imprisonment for mental illness may be cruel and inhuman punishment. U.S.C.A.Const. Amend. 8;
Const. art. 1, 6.
If treatment is not made available on reasonable non-discriminatory basis during confinement of person,
who has been found to be insane, and who has not been convicted of crime, requirements of equal
protection may be involved.
8. Mental Health.
Treatment during confinement of person, who has been found to be insane and unable to stand trial, is not
matter of discretion and may be forced by appropriate order. NRS 178.425.
OPINION
In 1965 the appellant was charged with murder, and by separate proceeding was found
insane and unable to stand trial. Accordingly, he was committed to the Nevada state hospital
for treatment. Two years later a district court directed his transfer to the Nevada state prison
to be there confined until further order. His transfer was authorized by NRS 178.425
1
and
was prompted by the fact that the hospital did not have adequate facilities to confine him
since he was considered dangerous. This proceeding for habeas relief rests on the proposition
that he is not receiving treatment at the prison and is there confined as a criminal without
having been convicted of a crime. The district court denied his petition out-of-hand. The
court refused to receive evidence to determine whether the treatment contemplated by the
statute was being furnished him. This appeal followed. We reverse the district court and
direct that an appropriate evidentiary hearing take place.
[Headnotes 1-3]
1. The confinement of one who is mentally ill is primarily for the purpose of treatment,
and secondarily for the safety of that person and others with whom he may come into contact.
The statutory mandate is detention and psychiatric treatment. Custody is vested in the
superintendent of the hospital. The place of detention may be either the hospital or the
prisonthis because of a legislative judgment that hospital security facilities may prove to be
inadequate in some cases. In either instance, however, treatment must accompany detention.
Mentally ill patients are not to receive only custodial care. Here, the charge is that of
imprisonment without treatment in violation of the statute and in derogation of fundamental
constitutional rights. The merit of the charge cannot be assessed without an evidentiary
hearing.
____________________

1
In relevant part the statute reads: If the court finds the defendant insane, the judge shall order the sheriff to
convey him forthwith . . . into the custody of the superintendent of the Nevada state hospital for detention and
psychiatric treatment at the Nevada state prison or at the hospital until returned for trial. . . .
without an evidentiary hearing. Rouse v. Cameron, 373 F.2d 451 (U.S.Ct.App. D.C. 1966).
[Headnotes 4-7]
2. Basic rights may be involved should the district court find that the petitioner is detained
without treatment. Due process may forbid the confinement of a mentally ill person, not
found guilty of a crime, without affording reasonable treatment. Indeed, such a person who
has been found guilty may not be punished while he is insane. Krause v. Fogliani, 82 Nev.
459, 462, 421 P.2d 949 (1966); NRS 178.400. Mental illness is not a crime. Imprisonment for
mental illness may be cruel and inhuman punishment banned by the Eighth Amendment and
by art. 1, 6 of the Nevada Constitution as well. Cf. Robinson v. California, 370 U.S. 660
(1962). If treatment is not made available on a reasonable, nondiscriminatory basis, the
requirements of equal protection may be involved. Nason v. Superintendent of Bridgewater
State Hosp., 233 N.E.2d 908 (Mass. 1968); Baxstrom v. Herold, 383 U.S. 107, 110-115
(1966). We here resolve none of these questions, but merely note their possible existence and
the need for an evidentiary hearing on the charge asserted to disclose whether they are before
the court. Rouse v. Cameron, supra; United States v. Jackson, 306 F.Supp. 4 (D. Ct. N.D.
Cal. 1969).
[Headnote 8]
3. The district court was concerned with its ability to enter an effective order if the
petitioner proved his claim. That concern was premature. The truth of the petitioner's claim
must first be ascertained. We note, however, that the statute utilized to effectuate the
petitioner's transfer from the state hospital to the state prison requires that psychiatric
treatment accompany detention. Treatment is not a matter of discretion and apparently may be
forced by appropriate order.
Reversed with direction to hold a hearing on the petition for relief.
____________
86 Nev. 434, 434 (1970) Lazovich and Lazovich, Inc. v. Harding
LAZOVICH AND LAZOVICH, INC., a Nevada Corporation, Appellant, v. GEORGE W.
HARDING and JANEECE HARDING, His Wife, Respondents.
NEVADA NOVELTY, INC., a Nevada Corporation, Appellant, v. LAZOVICH AND
LAZOVICH, INC., a Nevada Corporation, GEORGE W. HARDING and JANEECE
HARDING, His Wife, Respondents.
No. 5925
June 8, 1970 470 P.2d 125
Appeal from judgment of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Action by seller against buyers for breach of agreement to buy business and against
defendant who had entered agreement termed a guarantee. The district court rendered
judgment for seller against defendant, but in favor of buyers, and seller and defendant
appealed. The Supreme Court, Batjer, J., held that agreement between seller and defendant,
contingent upon buyers' default, to effect that third person would guarantee some payments
on sale contract in return for lien and that if defendant were required to perform it would have
right to operate business and could share in proceeds of sale, was a novation, discharging
buyers, although termed a guarantee.
Barry & Hall, of Reno, for Lazovich and Lazovich, Inc.
Echeverria & Osborne, and E. A. Hollingsworth, for George W. Harding, et ux., and Leo
P. Bergin, for Nevada Novelty.
1. Novation.
Agreement between seller and third party, contingent upon buyers' default, to effect that third party would
guarantee some payments on sale contract in return for lien and that if third party were required to perform
it would have right to operate business and could share in proceeds of sale, was a novation, discharging
buyers, although termed a guarantee.
2. Novation.
All novations are substituted contracts and all substituted contracts are novations.
3. Novation.
Existing claim can be instantly discharged by substitution of new executory agreement in its
place whether prior claim is mature or a claim to reparation for some prior breach of
duty.
new executory agreement in its place whether prior claim is mature or a claim to reparation for some prior
breach of duty.
OPINION
Lazovich and Lazovich, Inc., hereinafter referred to as Lazovich, was the owner of a
liquor dispensing business known as the Red Fox Inn, located at 2155 Kietzke Lane, Reno,
Nevada, on real property which they leased from Virgil H. Wedge, as trustee of the estate of
William Hill.
On December 3, 1963, Lazovich and George W. Harding, his wife, Janeece Harding, and
his brother, Ralph Harding, hereinafter referred to as Harding, entered into a contract of
sale whereby Lazovich sold to Harding all of its right, title and interest in and to the Red Fox
Inn, together with all the stock, goods, wares, merchandise, equipment, present trade name
and good will of said business for the total price of $40,000, to be paid at the rate of $300 per
month, including interest at 6 percent per annum, after an initial down payment of $11,400.
The first monthly payment was to be made on January 10, 1964. On December 20, 1963,
Lazovich and the Nevada Novelty, Inc., hereinafter referred to as Novelty, entered into an
agreement in which Novelty guaranteed to Lazovich, in the event of default by Harding, the
punctual payment, at the rate of $300 per month, of a sum not to exceed $15,000. This
agreement between Lazovich and Novelty further provided that if Novelty was compelled to
perform the guaranty, Novelty would then be granted a lien against the stock, goods, wares,
merchandise and equipment granted to Lazovich by Harding, pursuant to the terms of the
contract of sale dated December 3, 1963. The agreement between Lazovich and Novelty
further provided that in the event Novelty was required to perform pursuant to their guaranty,
Novelty would then have the right to continue the operation of the Red Fox Inn at its own risk
or loss or gain without making any further payments to Lazovich, other than the monthly
payments of $300, up to a total of $15,000. That agreement further provided that in the event
Novelty was compelled to perform under the guaranty and eventually sold the Red Fox Inn,
that Lazovich and Novelty would share equally in the net proceeds of sale after deducting
from the gross sale price all expenses paid by Novelty, including all cost required to be paid
by it in assuming the operation of the business or lease as well as any moneys paid to
Lazovich or required by the guaranty agreement.
by it in assuming the operation of the business or lease as well as any moneys paid to
Lazovich or required by the guaranty agreement.
On December 3, 1963, George W. Harding and Ralph Harding leased the Red Fox Inn
premises from Virgil Wedge, Trustee of the Estate of William Hill, for a period of seven
years commencing on the 15th day of December 1963. This lease contained an agreement
between the lessor and Novelty that in the event of a default of payment by the Hardings, the
lease would by the terms of the latter agreement, be assigned to Novelty. An assignment of
the lease from the Hardings to Novelty, together with the consent to assignment by the lessor
and an assumption of lease by Novelty were also executed on December 3, 1963, and made
part of the lease agreement. Except to the extent that this lease is mentioned in the guaranty
agreement between Lazovich and Novelty, it is not involved in this lawsuit.
Harding made payments pursuant to the contract of sale up until July 1965, at which time
they stopped making the payments, turned the keys over to Novelty and vacated the premises.
On September 1, 1967, Lazovich brought suit against Harding for breach of the December
3, 1963 agreement, and against Novelty for breach of the December 20, 1963 agreement. In
their answer Harding alleged the affirmative defenses of laches, consent and ratification,
waiver, and failure of consideration, and also filed a cross-claim alleging that the December
3, 1963 agreement had been superseded by the agreement between Lazovich and Novelty
dated December 20, 1963. Harding specifically alleged that on or about December 20, 1963,
they executed an assignment of their contract of sale dated December 3, 1963 to Novelty, and
in its answer to the cross-claim Novelty admitted being the assignee.
At the bench trial it was revealed that Novelty executed the guaranty agreement with
Lazovich on December 20, 1963, with the understanding that it would be able to keep some
slot machines and other coin operated machines on the premises during Harding's occupancy,
and that thereafter while the Hardings were in occupancy Novelty did keep slot machines and
other coin operated machines on the premises. It was further revealed that after July 1965,
Novelty procured other operators for the premises and that at least $2,700 was paid by those
operators to Lazovich. At trial Novelty disavowed credit for these payments and insisted that
they were made for the benefit of Harding.
At the conclusion of the trial the presiding judge found that the guaranty agreement
between Lazovich and Novelty superseded the original contract of sale between Lazovich and
Harding, and awarded Lazovich a judgment in the amount of $15,254.25, together with
interest thereon at the rate of seven (7%) percent per annum from the 15th of April, 1969,
until paid, plus costs in the amount of $152.25, and rejected Lazovich's claim against
Harding; Novelty's claim against Harding, and Harding's cross-claim against Novelty. This
appeal is taken from that judgment.
[Headnote 1]
We find the guaranty agreement between Lazovich and Novelty to be a true novation and
that it did supersede the original contract of sale between Lazovich and Harding, and that
Harding was thereby completely discharged from any liability under the contract of sale, and
also absolved of any liability to Novelty.
Although Harding did not specifically plead novation as an affirmative defense, they did
plead a cross-claim, and we shall treat the pleading as if it had been a proper designation.
NRCP 8(c).
[Headnotes 2, 3]
All novations are substituted contracts, and the converse is also true that all substituted
contracts are novations. An existing claim can be instantly discharged by the substitution of a
new executory agreement in its place. This is true whether the prior claim is not yet matured
at the time of the substitution, or is a claim to reparation for some prior breach of duty. 6
Corbin on Contracts, 147 (1951). In Williams v. Crusader Disc. Corp., 75 Nev. 67, 334
P.2d 843 (1959), this court held that: This substitution of a new obligation for an existing
one effects a novation, which thereby discharges the parties from all of their obligations under
the former agreement inasmuch as such obligations are extinguished by the novation.
Nevada Bank of Commerce v. Esquire Real Estate, Inc., 86 Nev. 238, 468 P.2d 22 (1970).
Although they speak in terms of a guarantee, the agreement between Lazovich and Novelty
is simply a substituted agreement whose effective date was contingent only upon Harding's
default. When the guarantee and guarantor agree to split the net proceeds from a subsequent
sale of the business, as in this case, to the complete exclusion of the original purchaser, that
substitute agreement is indeed a novation.
In Mayfair Farms Hold. Corp. v. Kruvant Enterprises Co., 166 A.2d 585 (N.J. Super.
1960), that court held: An intention to discharge the former debtor in the course of the
novation need not be shown by express words to that effect but may be implied from the facts
and circumstances.
Both reason and sound authority support the concept that assent by the original debtor to
his discharge is not a requisite of novation. A debtor can be discharged without his
knowledge or consent. In a novation where the creditor discharges the original debtor, the
latter is the donee beneficiary of the transaction.
Although Novelty disavowed the benefit of payments in the total amount of $2,700, made
to Lazovich after July 1965, we find, as a matter of law, that Novelty's liability under the
December 20, 1963 agreement must be credited with those payments.
In the opening brief, Novelty contends that at the time of trial only $8,400 was due and
owing to Lazovich, and that was the greatest amount that could have been awarded against
Novelty. We do not disagree with this contention, but on the basis of the record Novelty's
figures are wrong. When judgment was entered on April 16, 1969, it was impossible for
Novelty to owe Lazovich $15,254.25. According to the terms of the Lazovich-Novelty
agreement, Novelty's liability did not commence until the Harding default. Harding made
their last payment on July 22, 1965. The next payment was not due until August 10, 1965. It
appears to us that from and including August 10, 1965, to and including December 31, 1968
(the date on which the trial was concluded) there was owing from Novelty to Lazovich
$12,210 less the $2,700 credit resulting in a balance due of $9,510, instead of $15,254.25.
Accordingly we affirm the judgment of the district court in all respects, save the granting
of $15,254.25 to Lazovich; this award must be reduced to $9,510.
The evidence adduced at trial taken together with the clear meaning of the contract of sale
between Lazovich and Novelty is more than sufficient to support the findings of fact and
conclusions of law of the trial court, and we sustain them on this appeal. Briggs v. Zamalloa,
83 Nev. 400, 432 P.2d 672 (1967); Harvey v. Streeter, 81 Nev. 177, 400 P.2d 761 (1965);
Close v. Redelius, 67 Nev. 158, 215 P.2d 659 (1950); Friendly v. Larsen, 62 Nev. 135, 144
P.2d 747 (1944).
Nothing in this opinion is to be construed as precluding Lazovich from recovering the
balance of Novelty's guaranty, to the limit of $15,000, under the December 20, 1963
agreement, if and when it becomes due.
to the limit of $15,000, under the December 20, 1963 agreement, if and when it becomes due.
____________
86 Nev. 439, 439 (1970) Mathis v. Warden
ORVILLE EDMOND MATHIS, Appellant, v. WARDEN,
NEVADA STATE PENITENTIARY, Respondent.
No. 5907
June 10, 1970 471 P.2d 233
Appeal from order denying petition for writ of habeas corpus, Sixth Judicial District
Court, Humboldt County; Llewellyn A. Young, Judge.
The Supreme Court, Batjer, J., held that where defendant voluntarily, and with advice of
counsel, entered his plea of guilty to charge of robbery and, since there was no allegation of
coercion and counsel was admitted to be competent and well respected, it could be assumed
that defendant was fully advised of consequences of his plea, later refusal to allow defendant
to withdraw his plea was not error and conviction was not open to collateral attack on ground
that his plea was involuntarily made because he misunderstood trial court concerning right to
probation or parole was not error.
Affirmed.
Samuel W. Belford, II, of Reno, for Appellant.
Harvey Dickerson, Attorney General, William Macdonald, District Attorney, Humboldt
County, for Respondent.
1. Criminal Law.
Where defendant voluntarily, and with advice of counsel, entered his plea of guilty to charge of robbery
and, since there was no allegation of coercion and counsel was admitted to be competent and well
respected, it could be assumed that defendant was fully advised of consequences of his plea, later refusal to
allow defendant to withdraw his plea was not error and conviction was not open to collateral attack on
ground that his plea was involuntarily made because he misunderstood trial court concerning right to
probation or parole.
Parole is not constitutional right, but is matter of grace bestowed by legislature acting within its
constitutional powers. Const. art. 4, 1.
3. Criminal Law.
1968 statute admonishing court not to accept plea of guilty or plea of nolo contendere without
first addressing defendant personally in determining that plea is made voluntarily
with understanding of nature of charge and consequences of plea, could not be relied
on by defendant who entered guilty plea on May 5, 1967.
plea of nolo contendere without first addressing defendant personally in determining that plea is made
voluntarily with understanding of nature of charge and consequences of plea, could not be relied on by
defendant who entered guilty plea on May 5, 1967. NRS 174.035, subd. 1.
4. Criminal Law.
Defendant's belief that probation or parole would be granted, apparently a mere hope, since there was
nothing in record to support defendant's position that district court judge had assured him that he would be
immediately eligible for parole, and, at hearing on his petition for writ of habeas corpus, he had opportunity
to present evidence in support of his position but offered none, was insufficient to compel withdrawal of
guilty plea.
OPINION
Appellant was charged with having committed the crime of robbery at Valmy, Humboldt
County, Nevada, on April 27, 1967. After waiving the appointment of counsel and a
preliminary hearing in the justice's court, he was bound over to the district court where he
requested the assistance of counsel. On May 1, 1967, counsel was appointed and the
arraignment was continued. On May 5, 1967, with his appointed counsel present, the
appellant was arraigned, plead guilty and was sentenced to not less than 5 nor more than 10
years at the Nevada State Prison.
On November 8, 1968, the appellant, in proper person, filed, with the district court, a
petition for a writ of habeas corpus. New counsel was appointed to represent the appellant, on
that petition, and a hearing was held on May 9, 1969 with the appellant personally present.
The appellant did not testify nor did he offer evidence at that hearing. An order was entered
denying habeas corpus, and this appeal follows.
The appellant contends that his plea of guilty was involuntarily given because he
misunderstood the trial court concerning his right to probation or parole, and that the trial
court failed to explain to him the limitations of probation and parole and erred when it later
refused to allow him to withdraw his plea. He further contends that the lower court erred
when it found that the judge who received his plea and sentenced him was excused from
following the mandates of Garnick v. Miller, 81 Nev. 372, 403 P.2d 850 (1965) and Bundrant
v. Fogliani, 82 Nev. 388, 419 P.2d 293 (1966).
The cases of Garnick v. Miller, supra, and Bundrant v. Fogliani, supra, announced
procedural requirements to be followed by the trial court at the time of an entry of a plea of
guilty by a defendant who was not represented by counsel and they are therefore
inapposite here.
a defendant who was not represented by counsel and they are therefore inapposite here.
[Headnote 1]
In this case the appellant voluntarily, with the advice of counsel, entered his plea of guilty
to the charge of robbery. The issue of guilt was thereby removed from the case.
At the time of his arraignment on May 5, 1967, it was the law of this state that when a
guilty plea is not coerced, and the defendant was represented by competent 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);
Powell v. Sheriff, 85 Nev. 684, 462 P.2d 756 (1969). In accord: United States ex rel. Glenn v.
McMann, 349 F.2d 1018 (C.A.2d C 1965).
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 the 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.
Here there is no allegation of coercion and counsel is admitted to be competent and well
respected. It can be assumed that the appellant was fully advised of the consequences of his
plea. State v. Cummings, 328 P.2d 160 (Wash. 1958).
After the appellant began to serve his sentence he was informed through an opinion of the
attorney general (No. 489, February 8, 1968) construing NRS 213.110,
1
that he was
ineligible for parole.
____________________

1
NRS 213.110: 1. Subject to the provisions of NRS 213.120, the board [state board of parole
commissioners] 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.
The appellant now contends that the district court judge who accepted his plea had a duty
to advise him of his possible ineligibility for parole within the interpretation of NRS 213.110.
He relies on the case of Munich v. United States, 337 F.2d 356 (9th Cir. 1964) and NRS
174.035(1).
2

In Anuschevitz v. Warden, 86 Nev. 191, 467 P.2d 115 (1970), we declined to follow
Munich. The contention in this case is similar to Anuschevitz, and we again decline to follow
Munich.
In Jenkins v. United States, 289 F.Supp. 415 (N.D. Okla. 1968), that court in commenting
on Munich v. United States, supra, said: . . . Other circuits do not go this far. See Trujillo v.
United States (Fifth Cir. 1967), 377 F.2d 266, . . . and Smith v. United States (1963), 116
U.S.App.D.C. 404, 324 F.2d 436. . . . It is felt that the better rule and the one that the Tenth
Circuit would adopt is that a failure to advise that probation cannot be granted in a narcotics
conviction does not constitute a failure to adequately advise the accused of the consequences'
of a plea of guilty.
[Headnote 2]
Parole is not a constitutional right, but it is a matter of grace bestowed by the legislature
acting within its constitutional powers. Art. 4, Sec. 1, Nevada Constitution; Pinana v. State,
76 Nev. 274, 352 P.2d 824 (1960); Eisentrager v. State Board of Parole Commissioners, 85
Nev. 672, 462 P.2d 40 (1969).
In Smith v. United States, 324 F.2d 436 (U.S.App.D.C., 1963) (quoted with approval in
Anuschevitz v. Warden, supra) that court said: [E]ligibility for parole is not a consequence'
of a plea of guilty, but a matter of legislative grace. It is equally true that noneligibility for
parole is not a consequence' of a plea of guilty . . . rather, it is a consequence of the
withholding of legislative grace.
[Headnote 3]
NRS 174.035(1) did not become effective until January 1, 1968 (1967 Statutes of Nevada,
Chapter 523, section 466 (2)(b)). Inasmuch as the appellant's plea was entered on May 5,
1967, he is precluded from relying on NRS 174.035{1).
____________________

2
NRS 174.035(1): A defendant may plead not guilty, guilty or, with the consent of the court, nolo
contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo
contendere without first addressing the defendant personally and determining that the plea is made voluntarily
with understanding of the nature of the charge and consequences of the plea.
May 5, 1967, he is precluded from relying on NRS 174.035(1).
[Headnote 4]
Except for the appellant's self-serving affidavit there is nothing in the record to support his
position that the district court judge had assured him that he would be immediately eligible
for parole. At the hearing on his petition for a writ of habeas corpus he had an opportunity to
present evidence in support of these contentions, yet none was offered. A belief or hope alone
that probation or parole would be granted is insufficient to compel the withdrawal of a guilty
plea. Bates v. State, 84 Nev. 43, 436 P.2d 27 (1968); State v. Burnett, 365 P.2d 1060 (Ore.
1961); People v. Kelly, 7 Cal.Rptr. 600, (Cal.App. 1960); State v. Harris, 357 P.2d 719
(Wash. 1960).
In three recently decided cases, where the defendants were represented by counsel, the
United States Supreme Court has refused to allow guilty pleas to be withdrawn. Brady v.
United States, 397 U.S. 742 (1970); Parker v. North Carolina, 397 U.S. 790 (1970); McMann
v. Richardson, 397 U.S. 759 (1970).
In Brady v. United States, supra, the High Court said: The rule that a plea must be
intelligently made to be valid does not require that a plea be vulnerable to later attack if the
defendant did not correctly assess every relevant factor entering into his decision. A
defendant is not entitled to withdraw his plea merely because he discovers long after the plea
has been accepted that his calculus misapprehended the quality of the State's case or the likely
penalties attached to alternative courses of action. More particularly, absent misrepresentation
or other impermissible conduct by state agents, cf. Von Moltke v. Gillies, 332 U.S. 708
(1948), a voluntary plea of guilty intelligently made in the light of the then applicable law
does not become vulnerable because later judicial decisions indicate that the plea rested on a
faulty premise. A plea of guilty triggered by the expectations of a competently counseled
defendant that the State will have a strong case against him is not subject to later attack
because the defendant's lawyer correctly advised him with respect to the then existing law as
to possible penalties but later pronouncements of the courts, as in this case, hold that the
maximum penalty for the crime in question was less than was reasonably assumed at the time
the plea was entered. In McMann v. Richardson, supra, the High Court said: "It is no
denigration of the right to trial to hold that when the defendant waives his state court
remedies and admits his guilt, he does so under the law then existing; further, he
assumes the risk of ordinary error in either his or his attorney's assessment of the law
and facts.
said: It is no denigration of the right to trial to hold that when the defendant waives his state
court remedies and admits his guilt, he does so under the law then existing; further, he
assumes the risk of ordinary error in either his or his attorney's assessment of the law and
facts. Although he might have pleaded differently had later decided cases then been the law,
he is bound by his plea and his conviction unless he can allege and prove serious derelictions
on the part of counsel sufficient to show that his plea was not, after all, a knowing and
intelligent act.
Additionally, the appellant relies on Boykin v. Alabama, 395 U.S. 238, decided June 2,
1969. In that case the accused was asked no questions by the trial court, nor did he address
the court. In holding that the record did not disclose that Boykin had voluntarily and
understandingly entered his plea of guilty, the United States Supreme Court said: Several
federal constitutional rights are involved in a waiver that takes place when a plea of guilty is
entered in a state criminal trial. First, is the privilege against compulsory self-incrimination
guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth.
Malloy v. Hogan, 378 U.S. 1. Second, is the right to trial by jury. Duncan v. Louisiana, 391
U.S. 145. Third, is the right to confront one's accusers. Pointer v. Texas, 380 U.S. 400.
The High Court has not announced whether Boykin v. Alabama, supra, shall be given
retroactive application, Brady v. U.S., supra, n. 4. We refuse to apply Boykin retroactively.
In the case of Halliday v. United States, 394 U.S. 831, 23 L.Ed.2d 16 (1969), it was held
that the case of McCarthy v. United States, 394 U.S. 459, 22 L.Ed.2d 418 (1969), decided
April 2, 1969, was not to be retroactively applied. The McCarthy case has applied the same
rule (Rule 11 of the Federal Rules of Criminal Procedure) to the federal courts as Boykin v.
Alabama, supra, has applied to the state courts. Several state courts have considered the
question of the retroactive application of Boykin and have found that it shall be only
prospectively applied. See Ernst v. State, 170 N.W.2d 713 (Wis. 1969); Commonwealth v.
Godfrey, 254 A.2d 923 (Pa. 1969); Child v. State, 253 A.2d 691 (Me. 1969); Montanye v.
State, 256 A.2d 706 (Md. 1969); State v. Griswold, 457 P.2d 331 (Ariz. 1969); Endsley v.
Cupp, 459 P.2d 448 (Ore. 1969); In re Tahl, 460 P.2d 449 (Cal. 1969). See also State v.
Vantrump, 170 N.W.2d 435 (Iowa 1969).
It would be impossible for a trial court to foresee and explain to each accused who pleads
guilty the full extent of all the collateral consequences of his plea, therefore we find that
the appellant's plea of guilty was voluntarily and understandingly given, while his counsel
was present, and that the trial court did not err in denying his petition for a writ of habeas
corpus.
to each accused who pleads guilty the full extent of all the collateral consequences of his plea,
therefore we find that the appellant's plea of guilty was voluntarily and understandingly given,
while his counsel was present, and that the trial court did not err in denying his petition for a
writ of habeas corpus.
Affirmed.
____________
86 Nev. 445, 445 (1970) Kellar v. District Court
CHARLES L. KELLAR, Appellant, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, Respondent.
No. 5916
June 10, 1970 470 P.2d 434
Appeal from a judgment finding the appellant guilty of contempt of court. Eighth Judicial
District Court, Clark County; John F. Mendoza, Judge.
Appeal from judgment of the district court finding attorney guilty of contempt of court for
failure to appear at arraignments for his client. The Supreme Court held that absence or
tardiness of an attorney from courtroom or other place where he has duty to appear, before
judge or other officer of court at designated time, to participate in hearing, trial or other
proceeding in which he is counsel for a party may constitute contempt unless failure to appear
is due to attorney's inability or incapacity without fault to be present or punctual.
Affirmed.
Raymond E. Sutton, of Las Vegas, for Appellant.
George E. Franklin, Jr., District Attorney, George E. Holt, Deputy District Attorney,
Clark County, for Respondent.
1. Time.
Notwithstanding presumption that letter duly directed and mailed was received in regular course of mail,
addressee was entitled to benefit of rule regarding computation of time, in determining whether timely
notice had been given. NRCP 6(a, e); NRS 52.070, subd. 18.
2. Contempt.
Citation of contempt for failure to appear at arraignments for client is quasi-criminal in nature and
requires citing court to prove contempt beyond reasonable doubt. NRS 199.340, subd. 4.
3. Contempt.
Absence or tardiness of an attorney from courtroom or other place where he has duty to appear, before
judge or other officer of court at designated time, to participate in hearing, trial or other proceeding in
which he is counsel for a party may constitute contempt unless failure to appear is due to attorney's
inability or incapacity without fault to be present or punctual.
4. Contempt.
Evidence supported finding that timely notice of order setting arraignments of client had been given.
5. Contempt.
Fact that attorney was in justice's court at time set for district court arraignments of client was not
sufficient excuse for failure to appear for arraignments.
Where there is substantial evidence in record to support trial court's decision, it will not be reversed on
appeal.
7. Contempt.
Failure to appear at scheduled arraignments of client of which timely notice had been given justified
contempt judgment. NRS 22.010, subd. 3, 22.090, 22.100.
OPINION
Per Curiam:
On February 4, 1969, the appellant, Charles L. Kellar, a duly licensed attorney authorized
to practice law in all courts in the State of Nevada, was cited for contempt
1
by the Honorable
Thomas J. O'Donnell, District Judge, for his failure to appear, as the attorney of record, at
arraignments for his client scheduled on the previous day.
The appellant objected to Judge O'Donnell presiding at the contempt hearing, so the matter
was heard
2
by the Honorable John F. Mendoza, District Judge. The appellant was found
guilty of contempt and a fine of $150 was levied
3
against him. This appeal is taken from that
judgment.
____________________

1
NRS 22.010(3): Disobedience or resistance to any lawful writ, order, rule or process issued by the court or
judge at chambers.

2
NRS 22.090: When the person arrested has been brought up or appeared, the court or judge shall proceed
to investigate the charge, and shall hear any answer which the person arrested shall make to the same, and may
examine witnesses for or against him, for which an adjournment may be had from time to time if necessary.

3
NRS 22.100: Upon the answer and evidence taken, the court or judge or jury, as the case may be, shall
determine whether the person proceeded against is guilty of the contempt charged; and if it be found that he is
guilty of the contempt, a fine may be imposed on him not exceeding $500, or he may be imprisoned not
exceeding 25 days, or both, but no imprisonment shall exceed 25 days except as provided in NRS 22.110.
On January 27, 1969, the appellant was in court with his client who was charged with
three separate criminal offenses. At that time a continuance of the arraignments was
requested. Honoring the request, Judge O'Donnell continued the arraignments until February
3, 1969 at 9:15 a.m. Immediately thereafter the judge changed the setting to February 3, 1969
at 1:45 p.m. Because the appellant had already left the courtroom the judge specifically
instructed Irene Lucas, the deputy Clerk present, to contact the appellant and advise him of
the change in the time for the arraignments of his client. Irene Lucas did not personally call
the appellant, but Lynn Gudeman, in her presence did call his office. The woman who
answered the phone put the appellant on the line. Lynn Gudeman testified that she talked to
the appellant; that she recognized his voice and that she told him of the change in the
arraignment schedule. The appellant testified that he did not recall the conversation and did
not believe he was in his office when the call was claimed to have been made.
Margaret Cotton, a secretary in the office of the district attorney for Clark County, testified
that she spoke to the appellant on the phone, on either January 27, 1969 or January 28, 1969,
and reminded him of the new time for the arraignments of his client. The appellant again did
not recall this conversation and doubted that he was at his office when Margaret Cotton
claimed she made the call.
Early on the morning of February 3, 1969, the calendar for Judge O'Donnell's department
was posted outside that courtroom door. On the second page of the calendar was listed, at the
hour of 1:45 p.m., the arraignments of the appellant's client, together with the appellant's
name as counsel. The appellant testified that he saw the calendar, but because his name was
not listed at 9: 15 a.m., he did not examine it further.
On January 31, 1969, a written notice from Judge O'Donnell was mailed to all members of
the Clark County Bar, advising them that, beginning February 3, 1969, all criminal matters,
except jury trial settings would be heard at 1:45 p.m. Both the appellant and his wife,
Cornelia Kellar, who is also his secretary and office manager, testified that they had not
received the written notice. Cornelia Kellar stated: I didn't pay any attention to it anyway.
The appellant stated, I never look at this stuff. This is the office's job.
The appellant testified that he was in the justice's court in the Clark County Courthouse on
another matter at 2:00 p.m., on February 3, 1969, and it would have been impossible for him
to be in Judge O'Donnell's department at 1:45 p.m., on that same day.
him to be in Judge O'Donnell's department at 1:45 p.m., on that same day.
The appellant contends that the trial court erred in finding and concluding that his conduct
was contemptuous because he wilfully disobeyed a court order. Therefore we must ascertain
whether there was sufficient evidence before the trial court to sustain its order and judgment.
[Headnote 1]
We find that the written order mailed on January 31, 1969, was ineffective against this
appellant in this particular matter. Although there is the presumption that a letter duly
directed and mailed was received in the regular course of the mail, NRS 52.070(18),
nevertheless, the appellant was entitled to the benefit of NRCP Rule 6(a)(e)
4
which
superseded Rule XXIV of the District Court Rules of 1887.
[Headnote 2]
In this case the appellant was given every consideration. Rather than proceeding
summarily (Lyons v. Superior Court, 278 P.2d 681 (Cal. 1955); In re Clawans, 174 A.2d 367
(N.J. Super. 1961); Chula v. Superior Court, 368 P.2d 107 (Cal. 1962)). Judge O'Donnell
issued an order to show cause and the appellant was given an opportunity to appear and offer
testimony to purge himself of the contempt charged. When the appellant challenged Judge
O'Donnell, and requested his disqualification, the judge complied and assigned the matter to
Judge Mendoza, who determined that the matter was quasi-criminal in nature
5
and required
the respondent to prove the contempt beyond a reasonable doubt. Powers v. Taylor, 378 P.2d
519 (Utah 1963); Hotaling v. Superior Court, 217 P. 73 (Cal. 1923).
____________________

4
NRCP Rule 6(a)(e): (a) 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, unless it is a Saturday, a Sunday, or a non-judicial day, in which event the period
runs until the end of the next day which is not a Saturday, a Sunday, or a non-judicial day. When the period of
time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and non-judicial days shall be
excluded in the computation.
(e) Whenever a party has the right or is required to do some act or take some proceedings within a
prescribed period after the service of a notice or other paper, other than process, upon him and the notice or
paper is served upon him by mail, 3 days shall be added to the prescribed period.

5
NRS 199 340(4): 4. Willful disobedience to the lawful process or mandate of a court; or. . . .
[Headnote 3]
The absence or tardiness of an attorney from a courtroom or other place where he has a
duty to appear before a judge or other officer of the court at a designated time, to participate
in a hearing, trial or other proceeding in which he is counsel, for a party, may constitute
contempt, unless the failure to appear is due to the attorney's inability or incapacity without
fault to be present or punctual. Chula v. Superior Court, supra; Lyons v. Superior Court,
supra; Arthur v. Superior Court of Los Angeles County, 398 P.2d 777 (Cal. 1965); People v.
McDonnell, 37 N.E.2d 159 (Ill. 1941); cases collected in 97 A.L.R.2d 431.
If the appellant had not known of the order changing the time for his client's arraignments,
or if he had been unable to appear through no fault of his own, his actions could not have
been considered willful.
[Headnote 4]
The trial court correctly found that the appellant had timely notice of the order setting the
arraignments of his client for February 3, 1969 at 1:45 p.m. Cf. Belden v. Stott, 83 N.E.2d 58
(Ohio 1948); Crucia v. Behrman, 84 So. 525, 527 (La. 1920); Arthur v. Superior Court of Los
Angeles County, supra.
Two witnesses testified positively that six or seven days before the scheduled arraignments
they personally conversed with the appellant, by phone, and advised him of the order
changing the time of the arraignments. The appellant did not categorically deny receiving
these phone calls but contended that he had no independent recollection of them.
In McClellan v. David, 84 Nev. 283, 439 P.2d 673 (1968), we said: Testimony of a
witness that he does not remember whether a certain event took place does not contradict
positive testimony that such event or conversation took place. In that case we went on to
hold there was no credible evidence before the lower court to show that the neglect of the
respondent was excusable under the circumstances.
Furthermore, the calendar posted outside Judge O'Donnell's courtroom contained notice of
the time for the arraignments of the appellant's client. Although the appellant admitted
examining the calendar, he did not feel compelled to look beyond the first page.
[Headnote 5]
In support of his contention that he was unable to appear through no fault of his own, the
appellant testified that he was in Justice's Court at 2:00 p.m. on February 3, 1969.
in Justice's Court at 2:00 p.m. on February 3, 1969. The trial court correctly found that excuse
to be insufficient. The appellant had ample time after notice of the order setting the new time
for the arraignments to contact Judge O'Donnell or the justice of the peace, or both of them,
to resolve the possible conflict.
Ex parte Butler, 372 S.W.2d 686 (Tex.Cr.App. 1963), relied upon by the appellant,
suggests that there can be no contempt when an attorney has two matters pending in different
courts. However, in that case the facts do not indicate how long Butler had known of the
conflict. Here the appellant had notice, for nearly a week in advance, that he was to appear in
Judge O'Donnell's department at 1:45 p.m. on February 3, 1969.
In re Shorter, 236 A.2d 318 (D.C.App. 1967), that court said: The predicament in which
appellant now finds himself might well have been averted. Had he informed the trial judge or
the other judges of the conflicts in his court appointments, he might have been able to
rearrange or postpone his various scheduled appearances. Cf. Lee v. Bauer, 72 So.2d 792
(Fla. 1954); Taylor v. District Court for Fourth Jud. Dist., 434 P.2d 679 (Alas. 1967); Arthur
v. Superior Court of Los Angeles County, supra.
[Headnotes 6, 7]
Here the appellant's explanations were not accepted by the trial court as being believable,
and this court must accept that factual determination. The law on this point is well settled.
Where there is substantial evidence in the record to support the trial court's decision, it will
not be reversed on appeal. State v. Varga, 66 Nev. 102, 205 P.2d 803 (1949); Criswell v.
State, 84 Nev. 459, 443 P.2d 552 (1968); Utley v. Airoso, 86 Nev. 116, 464 P.2d 778 (1970);
Havas v. Alger, 85 Nev. 627, 461 P.2d 857 (1969); Coleman v. Benson, 85 Nev. 594, 460
P.2d 158 (1969); Richfield Oil Corp. v. Harbor Insurance Co., 85 Nev. 185, 452 P.2d 462
(1969).
The record shows that Judge O'Donnell's order setting the arraignments at 1:45 p.m. on
February 3, 1969, was communicated to the appellant in a timely manner and that he had the
ability to appear at the ordered time and place, but nevertheless, without sufficient reason or
excuse failed to appear. The appellant was apprised of the charge against him and he was
given a full opportunity to present evidence in support of his claim that his conduct was
excusable. The record clearly shows that the trial court was justified in holding him guilty of
contempt on the basis of his failure to punctually appear.
guilty of contempt on the basis of his failure to punctually appear.
Judgment affirmed.
____________
86 Nev. 451, 451 (1970) Larsen v. State
JAMES LLOYD LARSEN, Appellant, v. THE
No. 5940
June 10, 1970 470 P.2d 417
Defendant was convicted in the district court of attempted burglary, and he appealed. The
Supreme Court, Collins, C. J., held that jury could have inferred that masked man at door of
motel, later identified as defendant, intended to enter unlawfully and that simulation of a gun,
coupled with words that he would shoot if door was not opened, strongly inferred an intent to
commit larceny had he gained the entrance he sought.
Affirmed.
George W. Abbott, of Minden, for Appellant.
1. Criminal Law.
Intent to commit a crime need not be proved by positive or direct evidence but may be inferred from
conduct of parties and other facts and circumstances disclosed by evidence.
2. Criminal Law.
Elements of an attempt to commit a crime consist of an intent to commit a crime, performance of some
overt act towards its commission, and failure to consummate its commission.
3. Burglary.
In prosecution for attempted burglary, State had burden of proving that defendant intended to unlawfully
enter motel with intent to commit a felony, that some overt act towards consummation of that intent was
done, and that attempt failed. NRS 205.060, subd. 1, 205.065.
4. Burglary.
Jury, in prosecution for attempted burglary of motel, could have inferred that masked man at door of
motel, later identified as defendant, intended to enter unlawfully and that simulation of a gun, coupled
with words that he would shoot if door was not opened, strongly inferred an intent to
commit larceny had he gained the entrance he sought.
a gun, coupled with words that he would shoot if door was not opened, strongly inferred an intent to
commit larceny had he gained the entrance he sought. NRS 205.060, subd. 1, 205.065.
5. Criminal Law.
Whenever design of a person to commit a crime is clearly shown, slight acts done in furtherance thereof
will constitute an attempt.
6. Criminal Law.
Notwithstanding contention that trial court erred, in prosecution for attempted burglary, by giving an
instruction on elements of burglary without giving an explanation of instruction, instructions, when
considered as a whole, could have left no doubt in jurors' minds that defendant was charged only with
attempted burglary. NRS 205.060, subd. 1, 205.065.
7. Burglary.
Indictment charging that defendant did willfully, unlawfully and feloniously attempt to enter a certain
building . . . with the intent to commit larceny or any felony was not fatally defective for failure to allege
manner in which such attempt was made. NRS 173.075, 205.060, subd. 1, 205.065.
Where objection to indictment or information is not raised until after conviction or on appeal, a reduced
standard will be applied in testing sufficiency of indictment or information. NRS 174.015.
OPINION
This is an appeal from a jury finding of appellant's guilt of the crime of attempted burglary.
We affirm the conviction.
On March 5, 1969, at the B-Gay Motor Lodge in Reno, Nevada, Norman E. Taber, owner
and operator, was awakened by a buzzer at about 1:40 a.m. Taber turned the office lights on
and observed a man standing with his back turned to the front door of the motel. Taber
unlocked the door and opened it slightly, keeping his hand on the doorknob. The man, with
his face masked, turned around, and simulating a gun in his pocket demanded that the door be
opened or he would shoot. Taber told the masked gunman to go ahead and shoot. They
engaged in a momentary tug-of-war over the door, but Taber managed to relock it, turned off
the light, and the assailant fled. Appellant, meeting the described appearance and dress of the
assailant, was arrested 15 minutes later in a nearby bar. Although he denied his involvement
in the matter, appellant was arrested and charged with wilfully, unlawfully, and feloniously
attempting to enter the B-Gay Motel with intent to commit larceny or any felony. From a
conviction on that charge he appeals.
In appellant's reply brief upon appeal, he raised for the first time the sufficiency of the
information to lawfully charge the crime of attempted burglary. We ordered supplemental
briefs to be filed upon the timeliness of the raising of such issue.
Accordingly, the issues presented for our determination are these:
I. Whether the acts alleged legally constitute the crime of attempted burglary?
II. Whether the court erred in giving the jury an instruction defining burglary without an
explanation of the purpose of that instruction?
III. Whether the information filed against appellant was insufficient in that it contained no
averment of any overt act toward the commission of the offense charged?
IV. Whether appellant may raise the issue of the sufficiency of the information for the first
time on appeal from a conviction after trial?
1. NRS 205.060(1), the burglary statute, reads: 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.
Upon the question of intent, NRS 205.065 provides: Anyone who shall unlawfully break
and enter or unlawfully enter any of the premises described above is deemed to have done so
with intent to commit grand or petit larceny or a felony therein, unless the defendant can
convince the jury that it was done without criminal intent. See also Boyle v. State, 86 Nev.
30, 464 P.2d 493 (1970).
[Headnote 1]
In Mathis v. State, 82 Nev. 402, 406, 419 P.2d 775 (1966), quoting from State v.
Thompson, 31 Nev. 209, 216, 101 P. 557 (1909), this court said: As in any other case where
the intent is material, the intent need not be proved by positive or direct evidence, but may be
inferred from the conduct of the parties and the other facts and circumstances disclosed by the
evidence.'
[Headnote 2]
The elements of attempt to commit a crime have previously been set forth by this court.
They are: (1) an intent to commit a crime, (2) performance of some overt act towards its
commission, and (3) failure to consummate its commission. Mathis v. State, supra; State v.
Dawson, 45 Nev. 255, 201 P. 549 (1921); State v. Thompson, supra.
[Headnotes 3, 4]
The state then had the burden of proving that appellant intended to unlawfully enter the
B-Gay Motel with intent to commit a felony, that some overt act towards consummation of
that intent was done, and that the attempt failed. From the facts recited in the record, the jury
could certainly infer that the man at the door of the motel intended to enter unlawfully and
that the simulation of a gun, coupled with the words he would shoot if the door was not
opened, strongly inferred an attempt to commit larceny had he gained the entrance he sought.
[Headnote 5]
While it is true the overt act ought to be a direct, unequivocal act done toward the
commission of the offense (see People v. Buffum, 256 P.2d 317 (Cal. 1953)), still, as was
recognized in People v. Downer, 372 P.2d 107, 110-11 (Cal. 1962), Whenever the design of
a person to commit a crime is clearly shown, slight acts done in furtherance thereof will
constitute an attempt. Accord, State v. Mandel, 278 P.2d 413 (Ariz. 1954).
[Headnote 6]
2. Appellant contends the court erred in the giving of a instruction on the elements of
burglary without giving an explanation of the instruction. He relies upon Stiff v. Holmes, 85
Nev. 73, 450 P.2d 153 (1969). The contention is specious; there was no error.
The trial court gave the following instructions, which, when considered as a whole, could
have left no doubt in the jurors' minds that appellant was charged only with attempted
burglary. The instructions are: Instruction No. 8 states the crime with which appellant was
charged and quotes the information. Instruction No. 9 states the elements of an attempt to
commit a crime. Instruction No. 10 emphasizes the important elements of the crime of
attempt to commit a crime. Instruction No. 11 quotes part of the statute on burglary, NRS
205.060, insofar as applicable to this case. Instruction No. 12 states the rule that there must
be a unity of act and intent with the burden being on the prosecution to prove both beyond a
reasonable doubt. Instruction No. 13 explains what is needed to prove intent. Instruction No.
14 explains that once a person has committed acts sufficient to constitute an attempt to
commit a crime, he cannot avoid responsibility by not proceeding further.
[Headnote 7]
3. NRS 173.075 reads in pertinent part: 1. The indictment or the information shall be a
plain, concise and definite written statement of the essential facts constituting the offense
charged. (Emphasis added.)
Appellant relies upon three early Nevada decisions which hold that failure to aver an overt
act in an indictment or information charging an attempt makes the indictment or information
defective. They are: State v. Brannan, 3 Nev. 238 (1867), which alleged only an attempt to
commit the crime of grand larceny; State v. Lung, 21 Nev. 209, 28 P. 235 (1891), which
alleged only an attempt to commit rape; and State v. Dawson, 45 Nev. 255, 201 P. 549
(1921), which alleged only an attempt to have carnal knowledge of a female child.
It is true this court has previously recognized that an indictment or information may charge
the offense in the language of the statute except where, as in case of attempt, the statute
defining the offense does not state the essential elements. State v. Raymond, 34 Nev. 198,
117 P. 17 (1911); State v. Mills, 52 Nev. 10, 279 P. 759 (1929).
However, for the cases cited by appellant to be controlling, the information in the instant
case would have to allege only the crime of attempted burglary. But the information under
consideration alleges additional facts
1
and is more analogous to State v. Raymond, 34 Nev.
198, 117 P. 17 (1911), where the indictment charged the defendant with an attempt to pass
a fictitious check. The indictment was held to be good, despite the fact it did not allege the
mode or manner in which such attempt was made. Id. at 201. Additionally, in that case, this
court said, The indictment in this case is in the language of the statute, which provides
directly for attempts to pass checks, and we think it good, especially so when no objection
was made thereto until after verdict. Id. (Emphasis added.)
Other Nevada cases have held, as Raymond did, that when an indictment or information is
first challenged after trial, the court will make every attempt to construe the pleading in favor
of the state, absent a showing of prejudice to the defendant. See Garnick v. District Court, 81
Nev. 531, 407 P.2d 163 (1965); State v. Hurley, 66 Nev. 350, 210 P.2d 922 (1949); State v.
Hughes, 31 Nev. 270
____________________

1
The exact wording of the information is: That the said defendant on or about the 5th day of March, 1969 at
Reno Township, in the County of Washoe, State of Nevada, did wilfully, unlawfully and feloniously attempt to
enter a certain building, the B-Gay Motel, situated at 525 West Second Street, Reno, Washoe County, Nevada,
with the intent to commit larceny or any felony.
State v. Hughes, 31 Nev. 270, 102 P. 562 (1908); State v. Lovelace, 29 Nev. 43, 83 P. 330
(1906). This rule was again reiterated and approved in a very recent opinion of this court,
Laney v. State, 86 Nev. 173, 466 P.2d 666 (1970).
[Headnote 8]
4. There is no doubt the issue of the sufficiency of the indictment may be raised for the
first time on appeal. State v. Dawson, supra. See also NRS 174.015. However, we think the
challenge is one which should be raised more properly before or during trial when, with far
less difficulty, it can be readily corrected if found substantial. When not raised until after
conviction or upon appeal, a reduced standard will be applied in testing the sufficiency of the
indictment or information. See 1 C. Wright, Federal Practice and Procedure 123, at 225-26
(1969), where he says: If the sufficiency of an indictment or information is not questioned at
the trial, the pleading must be held sufficient unless it is so defective that it does not, by any
reasonable construction, charge an offense for which the defendant is convicted. . . .
Affirmed.
____________
86 Nev. 456, 456 (1970) Hall v. Sheriff
DENNIS EDWARD HALL, Appellant, v. SHERIFF,
No. 5967
KENNETH DENNIS MARTIN, Appellant, v. SHERIFF,
No. 5987
June 10, 1970 470 P.2d 422
Appeals from the Second Judicial District Court, Washoe County; John W. Barrett, Judge.
Pretrial habeas corpus petitions by accuseds who had been indicted for possession of
narcotic drug. The district court denied relief, and petitioners appealed. The Supreme Court,
Collins, C. J., held that grand jury had jurisdiction to return indictment even though criminal
complaint had been filed previously. The court further held that grand jury had probable
cause to indict for possession of narcotic drug.
Affirmed.
Streeter, Sala & McAuliffe, of Reno, for Appellant Dennis Edward Hall.
Vargas, Bartlett & Dixon, of Reno, for Appellant Kenneth Dennis Martin.
Harvey Dickerson, Attorney General, and William J. Raggio, District Attorney, and
Kathleen M. Wall, Deputy District Attorney, Washoe County, for Respondent.
1. Courts.
The Nevada Supreme Court decision that habeas corpus is not available remedy to test admissibility of
evidence on constitutional grounds applies retroactively.
Grand jury could return indictment even though criminal complaint had been filed previously.
3. Courts.
Nevada Supreme Court decision that indictment can be returned even though criminal complaint has been
filed previously was applicable in appeals docketed after decision.
4. Courts.
Grand jury had probable cause to indict for possession of narcotic drug where accuseds resided in house
and some of marijuana was found in upstairs bedrooms in furniture. NRS 453.030.
In proceedings before grand jury, there need only be evidence adduced which establishes probable cause;
it need not be sufficient to support conviction; and quantity of evidence may differ, depending on type of
evidence and offense charged.
OPINION
These appeals have been consolidated for disposition because they arise out of the same
facts and circumstances. Both appellants contend that their pre-trial petitions for habeas
corpus were erroneously denied by the same district judge in the proceedings below. We
disagree, and affirm the orders denying pre-trial habeas in each of these cases.
Both appellants resided at the same address in Reno, Nevada, and were suspected of
having possession of narcotic drugs. Their house was searched pursuant to a search warrant.
Upon entry by the police, the odor of marijuana smoke was present and the premises were in
a state of disarray, with people scattered all over the place. The following items were found
in the house by the police; a marijuana cigarette from the living room coffee table, two lids
of marijuana wrapped in a blanket from one upstairs bedroom, three marijuana roaches
and another lid of marijuana from the nightstand in another bedroom, a small quantity of
hashish from the bathroom floor, and some marijuana seeds, a marijuana cigarette and a
small packet of speed from two of the other persons who were then present on the
premises.
from the living room coffee table, two lids of marijuana wrapped in a blanket from one
upstairs bedroom, three marijuana roaches and another lid of marijuana from the nightstand
in another bedroom, a small quantity of hashish from the bathroom floor, and some marijuana
seeds, a marijuana cigarette and a small packet of speed from two of the other persons who
were then present on the premises. Both appellants were indicted for possession of a narcotic
drug in violation of NRS 453.030.
[Headnotes 1-3]
Only two of the issues raised by counsel for the appellants merit our attention.
1
It is first
contended that the Grand Jury was without jurisdiction to return an indictment because a
criminal complaint had been filed previously, which constituted a conclusive election by the
State of its method of procedure. This issue was decided adversely to the appellants by Tellis
v. Sheriff, 85 Nev. 557, 459 P.2d 364 (1969), in which we found no jurisdictional defect in
such dual proceedings.
2

[Headnote 4]
Finally, it is contended that the evidence presented to the Grand Jury was not sufficient to
constitute probable cause for the indictments, because neither of these appellants was actually
found to be in possession of the narcotics. However, both of these appellants resided in the
house. Some of the marijuana was found in upstairs bedrooms in the furniture. Its presence
there may be satisfactorily explained upon trial to preclude a conviction.
____________________

1
The contention that the evidence presented to the Grand Jury was illegally obtained in violation of the
constitutional rights of the appellants has been decided adversely to them by Cook v. State, 85 Nev. 692, 462
P.2d 526 (1969), in which we held that habeas was not an available remedy to test the admissibility of evidence
on constitutional grounds. That decision was announced subsequent to the habeas proceedings involving these
appellants, but we here give the doctrine retroactive application.
The contention made by one of the appellants, that habeas corpus is a remedy available to a defendant who is
free on bail, was not contested by the state either in the proceedings below or on appeal. We do not consider that
issue to be before us. Consequently, it is not to be inferred that our decision here is dispositive of that issue (Cf.
In Re: Stan Philipie, 82 Nev. 215, 414 P.2d 949 (1966) and dicta in Marshall v. Warden, 83 Nev. 442, 434 P.2d
437 (1967)), except as it is related to these particular cases.

2
While Tellis v. Sheriff, supra, was decided subsequent to the docketing of these appeals, it is applicable and
determinative of the issue here. In any event, the complaint has since been dismissed by the district court,
leaving only the indictment pending.
conviction. But at this preliminary stage, the facts recited above are sufficient to support the
Grand Jury indictments.
In Fairman v. Warden, 83 Nev. 332, 431 P.2d 660 (1967), we held that to hold one for
narcotics possession, it is necessary to show dominion and control over the substance and
knowledge that it is of narcotic character, but that those elements may be shown by
circumstantial evidence and reasonably drawn inferences. In the instant cases, the requisite
elements to show possession of narcotics by these appellants may be inferred from the
circumstances.
[Headnote 5]
It is well established that in proceedings before a Grand Jury, there need only be evidence
adduced which establishes probable cause; it need not be sufficient to support a conviction;
and the quantity of the evidence may differ, depending on the type of evidence and the
offense charged. Maskaly v. State, 85 Nev. 111, 450 P.2d 791 (1969). We deem the evidence
here, and the reasonably drawn inferences, to be sufficient to constitute probable cause to
justify the Grand Jury indictments.
Accordingly, the orders of the district court are affirmed.
____________
86 Nev. 459, 459 (1970) Noble v. Noble
MARGUERITE HELEN NOBLE, Appellant, v.
LEIGHTON J. NOBLE, Respondent.
No. 5972
June 10, 1970 470 P.2d 430
Appeal from an order suspending child support and alimony. First Judicial District Court,
Douglas County; Richard L. Waters, Jr., Judge.
Appeal by divorced wife from an order of the district court suspending child support and
alimony and relieving husband of responsibility of maintaining wife as insured or beneficiary
under health and accident and life policies. The Supreme Court, Batjer, J., held that where
wife failed to comply with divorce decree in that she either prevented husband from visiting
child or frustrated those visits, trial court acted within its inherent power when it suspended
alimony payments and suspended wife as insured or beneficiary under insurance policies
which husband had been ordered to maintain, but that where there were no findings of
fact on question of welfare of minor child, case would be remanded for such findings
before reviewing court could determine whether or not trial court abused its discretion in
suspending child support payments.
86 Nev. 459, 460 (1970) Noble v. Noble
wife as insured or beneficiary under insurance policies which husband had been ordered to
maintain, but that where there were no findings of fact on question of welfare of minor child,
case would be remanded for such findings before reviewing court could determine whether or
not trial court abused its discretion in suspending child support payments.
Affirmed in part and remanded in part, with instructions.
[Rehearing denied July 10, 1970]
Lester H. Berkson, of Zephyr Cove, and Jerry C. Lane, of Carson City, for Appellant.
Manoukian and Manoukian, of Zephyr Cove, for Respondent.
1. Divorce.
Notice of husband's motion to modify divorce decree which advised wife that he was seeking complete
relief, not only from further child support payments and insurance premium payments, but from any other
financial contribution in whatever form, afforded proper notice to wife of scope of hearing on motion.
2. Divorce.
Where wife failed to comply with divorce decree in that she either prevented husband from visiting child
or frustrated those visits, trial court acted within its inherent power when it suspended alimony payments
and suspended wife as insured or beneficiary under insurance policies which husband had been ordered to
maintain.
3. Divorce.
Although trial court may, in exercise of its discretion, modify or vacate order for child support, it must do
so for cause. NRS 125.140, subd. 2.
4. Infants.
A trial judge has wide discretion in all cases involving care, custody, maintenance and control of minor
child, and his exercise of discretion will not be disturbed on appeal unless there is clear case of abuse.
5. Divorce.
Where, in proceeding to modify divorce decree, there were no findings of fact on question of welfare of
minor child, case would be remanded for such findings before reviewing court could determine whether or
not trial court abused its discretion in suspending child support payments.
Findings of trial court may be implied if record is clear and will support order or judgment, but when
record is unclear, or devoid of any evidence on question in point, findings will not be implied.
7. Continuance.
Granting or denial of motion for continuance is within exercise of discretion of trial court.
86 Nev. 459, 461 (1970) Noble v. Noble
8. Divorce.
Where wife had received proper notice of scope of hearing on husband's motion to modify divorce decree
on ground that wife had failed to comply with order granting husband visitation rights to minor child, trial
court did not abuse its discretion in denying wife's motion for continuance.
9. Divorce.
Wife, whose refusal to comply with divorce decree by refusing husband visitation rights in minor child
prompted hearings subsequent to entry of original decree of divorce, was not entitled to attorney fees on
appeal from order granting husband's motion to modify decree.
OPINION
On December 28, 1966, Marguerite Helen Noble, hereinafter referred to as Marguerite,
or the appellant, was granted a divorce from Leighton J. Noble, hereinafter referred to as
Leighton, or the respondent. In the decree of divorce, the property rights of the parties were
settled, and Marguerite was awarded the care, custody and control of Leighton Scott Noble,
hereinafter referred to as Scott, or the minor child of the parties. Leighton was reserved the
right of reasonable visitation, upon his paying to Marguerite the sum of one hundred fifty
($150) dollars per month for the support, maintenance and education of the minor child.
Leighton was further required to pay to Marguerite, alimony in the amount of three
hundred ($300) dollars per month, and to maintain in full force and effect a health and
accident policy with both the minor child and Marguerite named as insured. Leighton was
also required to maintain in full force and effect, a life insurance policy owned by him, with
the minor child, Leighton Scott Noble, named as beneficiary.
The record reveals that although Leighton made timely support and premium payments,
Marguerite either prevented him from visiting with Scott, or frustrated those visits.
On July 26, 1967, Leighton moved for physical custody of Scott, and on August 3, 1967,
Marguerite filed her motion to increase the child support from $150 to $500 per month. Both
motions were heard on February 29, 1968. Marguerite's motion to increase the child support
was denied. Leighton withdrew his motion for physical custody of Scott and the trial court
continued the matter until August 29, 1968, to allow the parties time to work out a
satisfactory visitation arrangement.
86 Nev. 459, 462 (1970) Noble v. Noble
At that time the trial court advised, in open court, that in the event the parties were unable
to work out a satisfactory visitation schedule that it would consider setting specific times and
places for Leighton's visitation and would consider the enforcement of such visitations by
such sanctions as relieving Leighton from support payments.
1
The record shows that both
the parties and their respective counsel were present when the trial court made its
announcement.
The hearing which had been continued until August 29, 1968, was further continued to
September 12, 1968. At that time the trial court set specific times and places for Leighton to
visit Scott and have the child visit with him.
The situation did not improve and on March 7, 1969, Leighton filed another motion to
modify the original decree, asking to be relieved of all child support payments, life insurance
premium payments or any other financial contribution in whatever form. The motion was set
for a hearing on April 9, 1969. On April 3, 1969, Marguerite moved for allowances, attorney
fees and a continuance. The matter was heard on April 9, 1969, and the trial court denied
Marguerite's motions and ordered that child support payments, as well as alimony payments
to her, be suspended forthwith, and that they would not be reimposed until Marguerite came
to the trial court with an acceptable plan for compliance with the court's orders for visitation.
The trial court further ordered that Leighton be relieved of any further responsibility to
maintain Marguerite as either an insured or beneficiary under the insurance policies, until
such time as she submitted her acceptable plan for child visitation.
This appeal is taken from the order suspending the child support and alimony, and
suspending Marguerite as an insured or beneficiary under the insurance policies.
Although Leighton, in his motion to modify, filed March 7, 1969, asked to be relieved of
. . . any other financial contribution, at the hearing on the motion, he moved to amend his
pleadings to pray for a . . . reduction in the amount of alimony payments presently being
made. . . . Marguerite objected, and the trial court ruled that such an amendment would have
to be presented as a separate matter. That ruling inured to the benefit of the appellant and had
no bearing whatsoever on the order to suspend payments.
____________________

1
The written order filed by the trial court on March 22, 1968, contained the words . . . [B]y such sanctions
as relief from child support payments. . . .
86 Nev. 459, 463 (1970) Noble v. Noble
Marguerite claims that the trial court erred when it suspended, as a sanction against her for
denying Leighton visitation rights with Scott, future child support and alimony payments, and
relieved Leighton of any responsibility to maintain her as either an insured or as a beneficiary
under either of the insurance policies referred to in the original divorce decree. Marguerite
also contends that the trial court erred when it denied her motion for a continuance.
Overwhelming evidence indicates that Marguerite, without any apparent justification,
ignored the decree and orders of the trial court, and denied Leighton a right to visit with their
minor child. Without a doubt she was contumacious from the outset and the trial court gave
her every opportunity to purge herself of that contempt. It is ironical that at all times from and
after April 9, 1969, the appellant has had, and now has, within her exclusive power, subject to
the trial court's approval, the opportunity to submit a plan for reasonable child visitation and
summarily conclude this entire matter.
Historically courts have always had the inherent power to maintain and enforce the dignity
and decency in their proceedings. Lamb v. Lamb, 83 Nev. 425, 433 P.2d 265 (1967); In re
Chartz, 29 Nev. 110, 85 P. 352 (1907).
In the case of McCormick v. District Court, 67 Nev. 318, 218 P.2d 939 (1950), this court,
citing the following cases (Pacific Live Stock Co. v. Ellison Ranch Co., 46 Nev. 351, 213 P.
700; Phillips v. Welch, 12 Nev. 158; State ex rel. Malone v. District Court, 52 Nev. 270, 286
P. 418, and In re Debs, 158 U.S. 564), said: We are in full accord with these cases, and with
the many authorities therein cited, all proclaiming in ringing tones the inherent power of the
courts to protect and defend their decrees by contempt proceedings, beyond any power of the
legislature to abridge.
In Levell v. Levell, 190 P.2d 527 (Ore. 1948), that court stated: The power to suspend an
order for the payment of alimony during the time that the mother illegally deprives the father
of the right of visitation has also been recognized. Leighton v. Leighton, 48 R.I. 195, 136 A.
443; Eberhart v. Eberhart, 153 Minn. 66, 189 N.W. 592; Anderson v. Anderson, 207 Minn.
338, 291 N.W. 508.
[Headnote 1]
Marguerite contends that she was not afforded proper notice of the scope of the April 9,
1969 hearing. We do not agree. In his notice of motion Leighton advised her that he was
seeking complete relief, not only from further child support payments and insurance
premium payments, but from any other financial contribution "in whatever form."
86 Nev. 459, 464 (1970) Noble v. Noble
payments and insurance premium payments, but from any other financial contribution in
whatever form. It is hard to envision a more encompassing notice. The order of the trial
court fell far short of the scope of that notice because the payments are merely suspended.
Furthermore, on February 29, 1968, the trial court specifically advised her, in open court, that
unless satisfactory child visitation was accorded to Leighton that it would consider the
enforcement of such visitation by such sanctions as relief from support payments.
[Headnote 2]
The trial court was clearly acting within its inherent power when it suspended the alimony
payments and suspended Marguerite as an insured or beneficiary under the insurance policies.
Furthermore, adequate notice and an opportunity to be heard was afforded to her.
With reference to the suspension of the child support payments, we note a head-on
confrontation between the court's inherent power to enforce its lawful orders, decrees and
judgments (Lamb v. Lamb, supra; In re Chartz, supra) and the basic principle that the best
interest and welfare of a minor child is paramount. Atkins v. Atkins, 50 Nev. 333, 259 P. 288
(1927); Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969). Both of these basic concepts
have been adhered to in this and other jurisdictions for many years.
[Headnote 3]
Although a trial court may, in the exercise of its discretion, modify or vacate an order for
child support, (NRS 125.140 (2)) it must do so for cause. Here there were no findings
whatsoever, by the trial court, concerning the effect that the total suspension of child support
payments would have upon the present comfort and future well-being of the minor child.
[Headnotes 4, 5]
A trial judge has wide discretion in all cases involving the care, custody, maintenance and
control of a minor child, and his exercise of discretion will not be disturbed on appeal unless
there is a clear case of abuse. Fenkell v. Fenkell, 86 Nev. 397, 469 P.2d 701 (1970); Cosner v.
Cosner, 78 Nev. 242, 371 P.2d 278 (1962); Timney v. Timney, 76 Nev. 230, 351 P.2d 611
(1960); Black v. Black, 48 Nev. 220, 228 P. 889 (1924). Here there are no findings on the
question of the welfare of the minor child so we have nothing upon which to determine
whether or not the trial court abused its discretion.
In Cosner v. Cosner, supra, this court said: . . . [T]here is a presumption on appeal in
child custody matters that the trial court has properly exercised its judicial discretion in
determining what is for the best interest of the child."
86 Nev. 459, 465 (1970) Noble v. Noble
court has properly exercised its judicial discretion in determining what is for the best interest
of the child. And in Timney v. Timney, supra, said: It will be assumed that the court
considered the present comfort and future well-being of the children as required by NRS
125.140.
[Headnote 6]
Findings may be implied if the record is clear and will support the order or judgment. State
ex rel. Dept. of Highways v. Olsen, 76 Nev. 176, 351 P.2d 186 (1960); Chisholm v. Redfield,
75 Nev. 502, 347 P.2d 523 (1959).
2

When the record is unclear, or devoid of any evidence on the question in point, as in this
case, findings will not be implied. Richfield Oil Corp. v. Harbor Ins. Co., 85 Nev. 185, 452
P.2d 462 (1969); Lagrange Constr., Inc. v. Del E. Webb Corp., 83 Nev. 524, 435 P.2d 515
(1967); Robison v. Bate, 78 Nev. 501, 376 P.2d 763 (1962); Janzen v. Goos, 302 F.2d 421
(8th Cir. 1962). Therefore, we cannot reach the question to determine whether the inherent
power of the court to sanction for contempt or the concept that the present comfort and future
well-being of the minor child is paramount, should prevail.
[Headnotes 7, 8]
The appellant's contention that the trial court erred when it denied her motion for a
continuance is without merit. The granting or denial of a motion for a continuance is within
the exercise of discretion of the trial court. State ex rel. Hamilton v. Second Judicial District
Court, 80 Nev. 158, 390 P.2d 37 (1964); Sirbeck v. Sunbeam Divide Mining Co., 50 Nev. 46,
249 P. 865 (1926). Here we find no abuse of discretion by the trial court.
The appellant has apparently abandoned her contention that the trial court erred when it
denied her motion for allowances and attorney fees, but has requested reasonable attorney
fees on this appeal. We find that the refusal by the appellant to comply with the lawful orders
of the trial court has prompted all the hearings subsequent to the entry of the original decree
of divorce, as well as this appeal, therefore, we deny her attorney fees. Each party to bear his
own costs.
The order of the lower court is affirmed in all respects except as to the suspension of
child support, and as to that it is remanded to the district court so that adequate findings
of fact may be made by the trial court on the question of what effect the suspension of
child support payments would have on the present comfort and future well-being of the
minor child. Cf. Adams v. Adams, S5 Nev. 50, 464 P.2d 45S {1969); Pease v. Taylor, S6
Nev. 195
____________________

2
The cases of Lamance v. Byrnes, 17 Nev. 197, 30 P. 700 (1882), Quinn v. Quinn, 27 Nev. 156, 74 P. 5
(1903), and Fenkell v. Fenkell, supra, are not controlling, and can be distinguished. In those cases there was no
record of testimony, while here the hearing was fully reported.
86 Nev. 459, 466 (1970) Noble v. Noble
except as to the suspension of child support, and as to that it is remanded to the district court
so that adequate findings of fact may be made by the trial court on the question of what effect
the suspension of child support payments would have on the present comfort and future
well-being of the minor child. Cf. Adams v. Adams, 85 Nev. 50, 464 P.2d 458 (1969); Pease
v. Taylor, 86 Nev. 195, 467 P.2d 109 (1970).
____________
86 Nev. 466, 466 (1970) Mayer v. State
JESS L. MAYER, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 6080
June 10, 1970 470 P.2d 420
Appeal from conviction of sales of narcotics. Second Judicial District Court, Washoe
County; Grant L. Bowen, Judge.
Defendant was convicted in the district court of selling narcotics, and he appealed. The
Supreme Court, Zenoff, J., held that marijuana found in consented-to search of defendant's
apartment after defendant's arrest on the street for selling marijuana to undercover police
agent was admissible to show common scheme or plan for possession of such quantities as
would permit inference of preconceived program of selling that would tend to establish
commission of sale of narcotics as charged.
Affirmed.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and Larry R.
Hicks and Kathleen M. Wall, Deputy District Attorneys, Washoe County, for Respondent.
1. Criminal Law.
Complaint that prosecutor, by cross-examining defendant's character witness, created erroneous
impression before jury that defendant was an associate of two notorious persons in community without
establishing proof that this was so would not be considered as proper assignment of error where no
objection was registered during trial, no motion was made to strike testimony, no request for separate
hearing on issue was made, and trial court was not requested to instruct jury to disregard the innuendos.
86 Nev. 466, 467 (1970) Mayer v. State
2. Criminal Law.
Evidence of other offenses is admissible only when it tends to establish motive, intent, absence of mistake
or accident, common scheme or plan embracing commission of two or more crimes so related to each other
that proof of one tends to establish the other, or identity of the person.
3. Criminal Law.
Crime of selling narcotics requires proof of willfulness, and possession of additional quantities of
marijuana may establish intent and knowledge of its narcotic character so as to show willfulness.
4. Criminal Law.
Prior possession of narcotics is relevant to show intent to sell narcotics.
5. Criminal Law.
Evidence showing possession of such quantities of narcotics as would permit inference of preconceived
program of selling is relevant in proving that accused is seller of narcotics.
6. Criminal Law.
Marijuana found in consented-to search of defendant's apartment after defendant's arrest on the street for
selling marijuana to undercover police agent was admissible to show common scheme or plan for
possession of such quantities as would permit inference of preconceived program of selling that would tend
to establish commission of sale of narcotics as charged.
OPINION
Jess Mayer was convicted of selling narcotics to Sheila Summers, an undercover agent for
the Reno police. At issue on this appeal is the state's utilization of evidence of marijuana that
was not part of the sale but which was seized in Mayer's apartment after his arrest which took
place on the street. When Mayer handed Sheila two lids of the narcotics she told him she was
$5.00 short of the agreed price and he volunteered to wait until she had the full amount. His
arrest was effected by three police officers who were waiting for Sheila's prearranged signal
when the transfer took place.
Mayer consented to the police request to search his apartment. He complains now that the
trial court erred in admitting the marijuana that was found in the apartment from that search
because it constituted evidence of a crime separate and distinct from that for which he was on
trial.
[Headnote 1]
As another ground for appeal he complains that the prosecutor by cross-examining Mayer's
character witness created an erroneous impression before the jury that Mayer was an
associate of two notorious persons in the community without establishing proof that this
was so.
86 Nev. 466, 468 (1970) Mayer v. State
an erroneous impression before the jury that Mayer was an associate of two notorious persons
in the community without establishing proof that this was so.
The question has not been properly preserved for our review. No objection was registered
during the trial, no motion was made to strike the testimony, there was no request for a
separate hearing on the issue nor was the court requested to instruct the jury to disregard the
innuendos. We cannot consider the point as a proper assignment of error. Wilson v. State, 86
Nev. 320, 468 P.2d 346 (1970); Cross v. State, 85 Nev. 580, 460 P.2d 151 (1969).
[Headnotes 2-4]
1. True, the narcotics found in the apartment constitutes the separate offense of possession
but the pattern of the trial removes the objection from the rule that evidence of another
offense is not admissible to the exception which allows such evidence when it tends to
establish (1) motive (2) intent (3) absence of a mistake or accident (4) a common scheme or
plan embracing the commission of two or more crimes so related to each other that proof of
one tends to establish the other; or (5) the identity of the person. Fairman v. State, 83 Nev.
137, 425 P.2d 342 (1967). Since the crime of selling narcotics requires proof of willfulness,
possession of additional quantities of marijuana may establish intent and knowledge of its
narcotic character. People v. Tabb, 289 P.2d 858 (Cal. App. 1955); People v. Sykes, 280 P.2d
769 (Cal. 1955); People v. Tisnado, 458 P.2d 957 (Ariz. 1969). Furthermore, Mayer having
first denied having marijuana in his dwelling claiming instead that Sheila brought the two lids
with her and that the police planted those and the additional marijuana within his apartment,
placed her veracity in question. The discovery of the marijuana in his abode would, of course,
help resolve the weight to be given her testimony. Also, prior possession goes to show intent.
Wallace v. State, 77 Nev. 123, 359 P.2d 749 (1961); State v. Ballesteros, 413 P.2d 739 (Ariz.
1966); Wyatt v. State, 77 Nev. 490, 367 P.2d 104 (1961); Brown v. State, 81 Nev. 397, 404
P.2d 428 (1965).
[Headnotes 5, 6]
The evidence was proper as that of a common scheme or plan for possession of such
quantities as here would infer a preconceived program of selling that would tend to establish
the commission of the crime charged. Overton v. State, 78 Nev. 198, 370 P.2d 677 (1962).
Such evidence is relevant in proving that the accused is a seller of narcotics. People v.
Loeper, 334 P.2d 93 {Cal.App.
86 Nev. 466, 469 (1970) Mayer v. State
Loeper, 334 P.2d 93 (Cal.App. 1959); Nester v. State, 75 Nev. 41, 334 P.2d 524 (1959);
Overton v. State, supra; Wyatt v. State, supra.
Affirmed.
____________
86 Nev. 469, 469 (1970) Fox v. First Western Savings & Loan
GEORGE W. FOX, Appellant, v. FIRST WESTERN SAVINGS AND LOAN
ASSOCIATION, Respondent.
FIRST NATIONAL BANK OF NEVADA, Intervenor-Appellant, v. GEORGE W. FOX and
FIRST WESTERN SAVINGS AND LOAN ASSOCIATION, Respondents.
No. 6093
June 11, 1970 470 P.2d 424
Suit to enforce payment of monies allegedly due from an assignment of funds. Eighth
Judicial District Court, Clark County; Alvin N. Wartman, Judge.
The district court found in favor of lender which had refused to pay from loan proceeds to
contractor, funds allegedly due, and borrower-assignor appealed. The Supreme Court, Zenoff,
J., held that testimony of lender's officer that he never intended nor did he convey impression
to plaintiff or anyone else that assignment would be payable other than when entire tract was
completed, together with physical evidence that all documents involved in transaction
referred to 62 homes and not 31, supported findings of trial court that assignment of loan
funds from plaintiff to intervenor-assignee contemplated filing of notices of completion on
construction of all 62 homes before assignment would be paid.
Affirmed.
Daryl Engebregson, of Las Vegas, for George W. Fox.
Brown & Matteucci, of Las Vegas, for First National Bank of Nevada.
Dickerson, Miles & Gang, Ltd., of Las Vegas, for First Western Savings and Loan
Association.
1. Evidence.
Trial court as trier of fact has right to consider credibility of witnesses and disbelieve testimony even
though it is uncontradicted.
Supreme Court will not substitute an appellant's construction of facts for meaning given them by trial
court, and findings of trial court will only be reversed where there is no substantial evidence to support
them.
3. Contracts.
When contract is in any of its terms or provisions ambiguous or uncertain, it is primarily duty of trial
court to construe it after full opportunity is afforded all parties in case to produce evidence of facts,
circumstances and conditions surrounding its execution and conduct of parties thereto.
4. Contracts.
In its interpretation of a contract, trial court may examine both words and actions of parties.
5. Assignments.
Testimony of lender's officer that he never intended nor did he convey impression to borrower-assignor
or anyone else that assignments would be payable other than when entire 62-home tract was completed,
together with physical evidence that all documents involved in transaction referred to 62 homes and not 31,
supported findings of trial court that assignment of loan funds from assignor who was also contractor to
intervenor-assignee contemplated the filing of notices of completion on construction of all 62 homes before
assignment would be paid.
6. New Trial.
Newly discovered evidence refers to evidence of facts existing at time of trial, not facts occurring
subsequent to trial.
7. Appeal and Error; New Trial.
Facts occurring subsequent to trial cannot be considered with view to granting new trial or reversing
judgment of trial court.
Additional evidence of facts occurring subsequent to trial created problems separate and distinct from
those raised as issues in suit to enforce payment of moneys allegedly due from an assignment of funds and
was not before Supreme Court on appeal from decision in such suit.
OPINION
H & H Investment Corporation through one of its principals, George Fox, borrowed
$1,187,800 from First Western Savings and Loan Association to construct 62 homes on the
Capitol Hills Tract subdivision in Clark County. In order that they be in a priority position
First Western required that two debts be cleared before the loan would be made.
debts be cleared before the loan would be made. To accomplish that Fox arranged that a
$40,000 debt be paid in cash from the loan funds but the other, for $59,700, secured by first
deed of trust to the property, was to be liquidated by an assignment from H & H to the First
National Bank of Nevada from the funds in return for which the bank executed a
reconveyance of the deed of trust. Fox and his associate, Hebard, had also personally
guaranteed the bank obligation.
This dispute arose over the interpretation of that assignment. Fox contends the $59,700
was payable when 31 homes were constructed together with off-site improvements to the
remaining 31 lots, and notices of completion filed, while First Western claims the money was
not due until notices of completion were filed on the construction of all 62 homes.
The trial court found in favor of First Western who had refused to pay the $59,700 when
the 31 homes and all of the off-site improvements were completed.
1. Fox did all of the negotiating for the construction loan with First Western. The bank and
First Western did not discuss with each other the terms of the assignment. Whatever
representations made to the bank concerning the number of homes to be completed were by
Fox.
At the time of the making of the loan H. D. Fletcher, Vice President of First Western, was
in charge of the construction loan transaction with Fox. Later Fletcher became an executive
with the First National Bank, a position he held at the time of trial. Fletcher had executed
with H & H a letter of commitment which in its bare essentials provided that:
1. The loan of $1,187,800 was for the purpose of building 62 residences on Capitol Hills
Tract No. 1.
2. Advances would be permitted for the construction of 31 of the houses but thereafter
further advances for the remainder would be subject to favorable sales factors as determined
by First Western.
3. The loan was repayable in one year.
A basic building loan agreement was signed on the same day by the same parties. It
specified that 62 single family residences would be constructed on the property.
The commitment agreement and the loan agreement were dated October 14, 1963. On
November 1, 1963 Fox delivered to First Western an assignment of $59,700 from the loan
fund to the First National Bank of Nevada wherein was stated, We understand that these
funds will not be available until 35 days after the notice of completion has been recorded on
said tract. . . ."
on said tract. . . . The bank upon notification of the assignment released or reconveyed the
first trust deed on the property which had secured the indebtedness due them from Fox and
Hebard. A further part of the understanding between Fox and the bank was that the bank
would receive $15,000 from the loan funds upon recordation of the assignment with the
$59,700 to be paid upon completion of the tract. The $15,000 payment was made.
Thirty-one houses were completed together with off-site improvements on the remaining
lots whereupon Fox made demand for payment of the assignment, but was refused. He
commenced this action and the bank intervened. Fox's testimony was ruled out because of
various inconsistencies and from our review we discern his apparent attempts at self help at
the expense of the truth. Other witnesses testified to a variety of memoranda and inner office
procedures, but significant oral testimony was provided by Fletcher who testified that he
never intended nor did he convey the impression to Fox or anyone else that the assignment
would be payable other than when the entire tract was completed.
The physical evidence also supports the findings of the trial court that 62 homes were
contemplated before the assignment would be paid. Not only the building loan agreement and
the letter of commitment referred to 62 homes but the escrow statement specifically provided
for 62 notices of completion and all of the internal office controls of First Western related to
62 homes, not 31. The subcontractors' bids to Fox were on the basis of 62 dwellings. Certain
memoranda of one of the bank's employees refer to payment upon the completion of 62
homes. Whatever conflict exists from the evidence was created by Fox whose personal
interest in getting the assignment liquidated was sparked by his personal liability to the bank
that it would be. He intended that the money would be available after the sale of the 62 homes
but the bank's impression was that the money would be received after completion of 31
homes.
[Headnotes 1, 2]
As the trier of fact the trial court had the right to consider the credibility of witnesses and
disbelieve testimony, even though uncontradicted. Douglas Spencer v. Las Vegas Sun, 84
Nev. 279, 439 P.2d 473 (1968). Nor will this court substitute an appellant's construction of
the facts for the meaning given them by the trial judge. Ray Motor Lodge, Inc. v. Shatz, 80
Nev. 114, 390 P.2d 42 (1964). It is not our function to substitute our view for that of the trial
court. Richfield Oil Corp. v. Harbor Ins. Co., S5 Nev. 1S5
Oil Corp. v. Harbor Ins. Co., 85 Nev. 185, 452 P.2d 462 (1969); Lanigir v. Arden, 82 Nev.
28, 409 P.2d 891 (1966). The findings of the trial court will only be reversed where there is
not substantial evidence to support them. LeMon v. Landers, 81 Nev. 329, 402 P.2d 648
(1965); Bird v. Mason, 77 Nev. 460, 366 P.2d 338 (1961).
[Headnotes 3-5]
When a contract is in any of its terms or provisions ambiguous or uncertain it is primarily
the duty of the trial court to construe it after a full opportunity is afforded all the parties in the
case to produce evidence of the facts, circumstances and conditions surrounding its execution
and the conduct of the parties thereto. Beneficial Fire & Cas. Ins. Co. v. Kurt Hitke & Co.,
297 P.2d 428 (Cal. 1956). The exhibits could in some respects be rationalized as to call for
the construction of 31 homes, not 62, but the controlling weight is not necessarily placed
upon those exhibits. The court can use both words and actions to interpret the contract. Reno
Club, Inc. v. Young Investment Co., 64 Nev. 312, 328, 182 P.2d 1011 (1947). The oral
testimony of Fletcher alone is enough to support the findings of the trial court in this case and
the physical evidence lends sufficient weight to justify the construction of the agreement as
resolved by the trial court.
2. After the trial First National Bank and Fox moved for a new trial based upon newly
discovered evidence, the newly discovered evidence consisting of notices of completion filed
by First Western on houses constructed on the Capitol Hill Tract after the trial was concluded.
The motion of First National Bank was denied by the trial court for failure to be filed within
ten days as required by Rule 59(b). Fox's motion was denied on the merits in that nothing
presented would alter the trial court's decision.
After commencement of this appeal Fox then moved this court to supplement the record to
include the additional notices of completion which had been filed by First Western
subsequent to the trial making a total in all of 60 homes completed. Absent opposition from
First Western this court granted the motion. Appellant Fox and the bank insist that First
Western is being unjustly enriched by being allowed to keep the property, not pay off the
assignment to the bank and receive the proceeds of the 60 homes completed, plus the two lots
with offsite improvements.
[Headnotes 6-8]
The evidence cannot be considered newly discovered for that definition refers to
evidence of facts existing at the time of trial, not facts occurring subsequent to trial.
that definition refers to evidence of facts existing at the time of trial, not facts occurring
subsequent to trial. State of Washington v. United States, 214 F.2d 33, 46 (9th Cir. 1954);
Campbell v. American Foreign S. S. Corp., 116 F.2d 926 (2nd Cir. 1941). Nor can we
consider them with the view to granting a new trial or reversing the judgment of the trial
court. The additional evidence creates problems separate and distinct from those raised as
issues in this case. So far this record shows First Western never received the payment on the
note for $1,187,800 and we can only conjecture that steps may have been taken by them to get
return of their money. Whatever may have happened later is not before the court now, and
their final resolution is not necessarily foreclosed by this decision.
Affirmed.
____________
86 Nev. 474, 474 (1970) Vincze v. Sheriff
JOSEPH VINCZE, Appellant, v. SHERIFF, COUNTY OF
CLARK, THE STATE OF NEVADA, Respondent.
No. 5979
June 12, 1970 470 P.2d 427
Appeal from an order denying appellant's petition for a writ of habeas corpus in the Eighth
Judicial District Court, Clark County; William P. Compton, Judge.
The district court denied petition for writ of habeas corpus attacking jurisdiction of
Nevada courts to try and convict petitioner of felony of obtaining money by false pretenses.
The Supreme Court, Collins, C. J., held that where false pretenses took place in Oregon, but
scheme was conceived, oriented and culminated in Nevada, and possession of money was
obtained in Nevada, sufficient elements of offense of obtaining money under false pretenses
occurred in Nevada to vest jurisdiction in Nevada to lawfully prosecute defendant.
Affirmed.
Samuel D. Francovich and Melvin Schaengold, of Reno, for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, and Alan
R. Johns, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Elements of an attempt to commit a crime are: (1) an intent to commit a crime; (2) performance of some
act toward its commission; (3) failure to consummate its commission. NRS 171.020.
2. Criminal Law.
Under a statute authorizing prosecution for crime not committed entirely within the state, acts committed
in one state to be punishable there must be more than merely preparatory to commission of a crime in
another state. NRS 171.020.
3. Criminal Law.
To lawfully try a person for crime of obtaining money by false pretenses partially committed in two
different jurisdictions, at a minimum the money would have to be obtained in one state even though false
pretenses may have been made in another. NRS 171.020.
4. Criminal Law.
When false pretenses took place in Oregon, but scheme was conceived, oriented and culminated in
Nevada, and possession of money was obtained in Nevada, sufficient elements of offense of obtaining
money under false pretenses occurred in Nevada to vest jurisdiction in Nevada to lawfully prosecute
defendant. NRS 171.020
OPINION
This appeal is from a denial by the lower court of habeas corpus attacking the jurisdiction
of Nevada's courts to try and convict appellant of the felony of obtaining money by false
pretenses. We affirm that ruling.
Appellant Joseph Vincze, who engaged in the activities described in this opinion under the
alias of Joe Worsham, lived in the Las Vegas, Nevada, area. He met Leland Mecham, the
complaining witness, who resided in Oregon and there engaged in the small boat business,
while the latter was vacationing in the Lake Mead area in January, 1966.
Vincze, or Worsham as he was known to Mecham, proposed in a conversation at Lake
Mohave, Arizona, that they enter into a business deal which involved taking over a boating
concession at Eldorado Cove, Lake Mead, on the Nevada side, and a boat sales and repair
business on the Boulder Highway in Henderson, Nevada. Vincze told Mecham he did not
own the boat concession but that it could be purchased. They next visited Eldorado Cove and
together examined the concession premises. As Mecham was leaving for Oregon, Vincze
accompanied him to McCarran Airport, Las Vegas, and there was given a $5,000 check dated
January 14, 1966, as a deposit on purchase of bond for Eldorado Boat Concession, drawn
upon the United States National Bank of Oregon, Ladd & Bush-Salem Branch.
the United States National Bank of Oregon, Ladd & Bush-Salem Branch. However, it was
clearly understood Vincze was not to cash the check until given express approval by
Mecham.
On February 7, 1966, Vincze traveled to Salem, Oregon, and there presented to Mecham a
draft of a prepared agreement which recited that Vincze (Worsham) had obtained the boating
business and concession at Eldorado Cove, Nevada. The agreement, which established a
partnership in the concession between the two and their wives, was signed. Thereupon, Mrs.
Mecham gave instructions to their Oregon bank to pay the $5,000 check previously given
Vincze in Nevada.
Vincze returned to Las Vegas, endorsed the check, and deposited the same for collection in
his bank, the First National Bank of Nevada, North Las Vegas Branch. That bank forwarded
the check through banking channels to the United States National Bank of Oregon, Ladd &
Bush-Salem Branch, which honored the check pursuant to the order of Mrs. Mecham. Funds
were telegraphically transferred to the First National Bank of Nevada, North Las Vegas
Branch, and there credited to the account of Joe Worsham.
The agreement was false, because Vincze had not obtained the boating concession. Later,
when this became known to Mecham, he returned to Nevada, could not locate Vincze, and
thereupon filed a criminal charge of obtaining money by false pretenses against him. Vincze
was tried, convicted, and sentenced upon that charge.
Appellant, through his post-conviction proceeding, contends that in applying the
provisions of NRS 171.020 to the facts in the case, Nevada has no jurisdiction to try him at
all. NRS 171.020 reads: Whenever a person, with intent to commit a crime, does any act
within this state in execution or part execution of such intent, which culminates in the
commission of a crime, either within or without this state, such person is punishable for such
crime in this state in the same manner as if the same had been committed entirely within this
state.
The issue for our decision is this: Whether sufficient elements of the offense of obtaining
money under false pretenses occurred in Nevada to give this state jurisdiction?
Generally, a state does not undertake to punish acts done outside its borders. People v.
Buffum, 256 P.2d 317, 320 (Cal. 1953).
[Headnote 1]
The Nevada statute has not heretofore been construed by this court. An identical statute in
California and a similar statute in New York have been comparably construed by their courts
requiring that acts committed within the charging state must constitute at least an
attempt.
courts requiring that acts committed within the charging state must constitute at least an
attempt. People v. Buffum, supra; People v. MacDonald, 76 P.2d 121 (Cal.Dist.Ct.App.
1938); People v. Werblow, 148 N.E. 786 (N.Y. 1925). The elements of an attempt to commit
a crime in this state are: (1) an intent to commit a crime, (2) performance of some act toward
its commission, and (3) failure to consummate its commission. Mathis v. State, 82 Nev. 402,
406, 419 P.2d 775 (1966); State v. Dawson, 45 Nev. 255, 201 P. 549 (1921); State v.
Thompson, 31 Nev. 209, 216, 101 P. 557 (1909).
[Headnote 2]
Under such a statute, acts committed in one state to be punishable there, must be more
than merely preparatory to the commission of a crime in another state. People v. Buffum,
supra.
[Headnote 3]
It would appear, therefore, to satisfy the foregoing rule which we approve, to lawfully try a
person for the crime of obtaining money by false pretenses partially committed in two
different jurisdictions, at a minimum the money would have to be obtained in one state even
though the false pretenses may have been made in another.
[Headnote 4]
Essentially, as the recital of facts from the record shows, Vincze's scheme or plan to
deprive Mecham of his money was conceived, oriented and culminated in Nevada. As the
plot unfolded, however, the false pretenses took place in Oregon when appellant presented to
and secured the signature of Mecham to the document falsely reciting he had obtained the
boating business and concession at Eldorado Cove. Possession of the money, however, as
charged in the Nevada indictment,
1
was obtained in Nevada. Vincze, of course, received the
check from Mecham at McCarran Airport, Las Vegas, Nevada. After traveling to Oregon,
where he conferred with Mecham, whose wife then withdrew the stop-payment order on
the check, Vincze returned to Nevada and deposited the check for collection in a Nevada
bank in Las Vegas, Nevada.
____________________

1
The charging part of the indictment reads as follows: That the defendant did then and there wilfully,
unlawfully, feloniously, knowingly, designedly, and by the use of false pretenses obtain from the person of M.
Leland Mecham, 735 Dian Avenue, S.W., Salem, Oregon, the sum of $5,000 lawful money of the United States,
with the intent to cheat and defraud the said M. Leland Mecham by agreeing to sell to the said M. Leland
Mecham a one half interest in a boating business and concessions located at Eldorado Cove on the Colorado
River in the State of Nevada, for when in truth and in fact, said Defendant had no interest in the said Eldorado
Cove on the Colorado River in the State of Nevada and knew said representation to be false.
whose wife then withdrew the stop-payment order on the check, Vincze returned to Nevada
and deposited the check for collection in a Nevada bank in Las Vegas, Nevada. After a
telegraphic order for payment was received from the Oregon bank, the money was credited to
his account in North Las Vegas, Nevada, where he either drew it out in cash or drew checks
on the credit (the record does not disclose the exact method of expenditure by appellant).
We think sufficient acts took place in Nevada to vest jurisdiction in this state to lawfully
prosecute appellant in accordance with NRS 171.020. People v. Anderson, 361 P.2d 32 (Cal.
1961).
The order of the lower court is affirmed.
Zenoff, Batjer, and Thompson, JJ., and Craven, D. J., concur.
____________
86 Nev. 478, 478 (1970) Minton v. Roliff
HENRY A. MINTON, Appellant, v. CARL E. ROLIFF, CRAIG G. CULVER and RAESCO,
INC., a Nevada Corporation, Respondents.
No. 5996
June 18, 1970 471 P.2d 209
Appeal from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Appeal from order of the district court setting aside default judgment. The Supreme Court,
Collins, C. J., held that where there was credible evidence offered by both parties tending to
show that negotiations were continuing, that defendant's attorney may have been justified in
his expectation that an answer was not expected until his client's books had been examined,
and that failure to file responsive pleading was result of misunderstanding between parties,
setting aside of default judgment was not an abuse of discretion.
Affirmed.
Joseph J. Kay, Jr., of Reno, for Appellant.
Bible, McDonald, Carano & Wilson, of Reno, for Respondents.
Trial court's exercise of discretion in granting or denying motion to set aside default judgment will not be
disturbed on appeal absent an abuse of discretion.
2. Judgment.
Before motion to set aside default judgment will be granted, there must be showing of mistake,
inadvertence, surprise or neglect, and further showing that meritorious defense exists. NRCP 60(b)(1).
3. Judgment.
Where there was credible evidence offered by both parties tending to show that negotiations were
continuing, that defendant's attorney may have been justified in his expectation that an answer was not
expected until his client's books had been examined, and that failure to file responsive pleading was result
of misunderstanding between parties, setting aside of default judgment was not an abuse of discretion.
NRCP 60(b)(1).
OPINION
This appeal is from an order setting aside a default judgment by the lower court. We affirm
that order.
On December 8, 1967, appellant filed a contract action against respondents for
commission claimed due him for sale of advertising and broadcasting time for radio station
KSRN in Reno. He also sought an accounting of the amount allegedly due him from the
records of the station. Respondents retained counsel, but failed to answer, appear or otherwise
respond upon the record, and their default was entered March 7, 1968. Nothing further was
done on the record until October 30, 1968, when appellant mailed respondents' counsel a
document entitled Notice to Have Judgment Entered. This document was filed with the
court on November 6, 1968. On January 22, 1969, a prove-up was made by appellant, and
default judgment for $3,581.61 was entered against respondents. On January 27, 1969,
respondents moved to set aside the default judgment. Appellant responded to that motion on
January 31, 1969. On April 23, 1969, respondents filed a Memorandum in Support of
Motion to Set Aside Default Judgement, and on May 14, 1969, the trial judge entered his
order setting aside the default judgment. It is from that order this appeal is taken.
The evidence before the lower court consisted primarily of affidavits of respondent Carl E.
Roliff, his counsel, counsel for appellant, some letters and notices filed by appellant.
Roliff, in his affidavit, claimed that a meeting took place in January, 1968, between Roliff
and counsel for both sides, at which time it was agreed that appellant's counsel, Kay, would
go over the radio station's books to determine what he believed due appellant for
commissions. McDonald, respondents' counsel, in his affidavit, said only that after the filing
of the complaint a meeting was had and an agreement was reached that Kay would examine
respondents' books. McDonald claimed that he was advised that an answer would not be filed
until the books were examined, and that thereafter, on March 7, 1968 default was entered by
appellant. Kay, in his affidavit, claimed that several attempts were made to set up a
conference with respondent Roliff and his counsel, McDonald. He submitted copies of letters
dated January 29, 1968, in which he asked McDonald for a conference, and February 20,
1968, in which he informed McDonald that unless respondent was willing to consider
negotiation or would file an answer within 15 days, default would be taken. Kay asserted that
the meeting at which he agreed to examine respondents' books occurred after the default was
taken.
The books were never examined, and McDonald claimed that negotiations continued and a
reasonable offer of settlement was refused by appellant's counsel. Kay claimed that a
counteroffer was made by him to McDonald, and he had not received a reply. McDonald
claimed no counteroffer was made by Kay.
McDonald mentioned phone calls between the parties indicating that the matter was still
subject to negotiation and awaiting appellant's examination of respondents' books. Kay
offered a letter from appellant to him dated September 26, 1968, ordering him to obtain a
default judgment because the case had continued for too long, a letter from Kay to McDonald
of October 10, 1968, enclosing the aforementioned letter and referring to a phone call of that
date. Also of record is a notice of intent to have judgment entered filed November 6, 1968, by
Kay, a copy of which was sent to McDonald on October 30, 1968.
In his decision setting aside the default judgment, the trial judge stated: It is an
unfortunate situation that a misunderstanding arose between the attorneys in this case and it is
not the first time this has happened. . . . Since this case involves a matter of accounting, I
really believe that justice would be better served if the Default Judgment is set aside and an
accounting had between the parties hereto.
We shall attempt once again to summarize the law on this vexatious question to aid
lower courts and counsel in reaching correct decisions.
vexatious question to aid lower courts and counsel in reaching correct decisions.
In Cicerchia v. Cicerchia, 77 Nev. 158, 161, 360 P.2d 839 (1961), we said: A motion to
set aside a default and vacate the judgment resulting therefrom is addressed largely to the
sound discretion of the court. . . .
[Headnote 1]
We have repeatedly held that a trial court's exercise of discretion in granting or denying a
motion to set aside a default judgment will not be disturbed on appeal absent an abuse of
discretion. E.g., Lentz v. Boles, 84 Nev. 197, 438 P.2d 254 (1968); Hotel Last Frontier Corp.
v. Frontier Properties, Inc., 79 Nev. 150, 380 P.2d 293 (1963); Blakeney v. Fremont Hotel,
Inc., 77 Nev. 191, 360 P.2d 1039 (1961).
This discretion is a legal discretion, however, and cannot be sustained where there is no
competent evidence to justify the court's action. Haley v. Eureka County Bank, 20 Nev. 410,
22 P.2d [sic] 1098. Lukey v. Thomas, 75 Nev. 20, 22, 333 P.2d 979 (1959). See also
McClellan v. David, 84 Nev. 283, 439 P.2d 673 (1968), where we reversed the setting aside
of a default judgment because there was no credible evidence before the lower court to show
that the neglect was excusable under the circumstances.
[Headnote 2]
In Hotel Last Frontier, a serious effort was made to establish workable guidelines for
resolution of future cases. They may be summarized as follows:
1. There must be a showing of mistake, inadvertence, surprise or neglect as required by
NRCP 60(b)(1). The factors to be considered in that showing are: (a) prompt application to
remove the judgment; (b) absence of an intent to delay proceedings; (c) lack of knowledge of
the party or counsel as to procedural requirements; (d) good faith.
2. There must be a showing that a meritorious defense exists. Procedures that will satisfy
this requirement are: (a) admissible testimony or affidavit which, if true, would tend to
establish a defense to all or part of the claim for relief asserted; (b) the opinion of counsel
based upon facts related to him, without need to set them forth, that a meritorious defense
exists to all or part of the claim asserted; (c) tendering of a responsive pleading in good faith
that, if true, would tend to establish a meritorious defense to all or part of the claim for relief
asserted; (d) any combination of the above.
3. We indicated that the basic policy underlying these decisions favored a decision of each
case upon its merits. In connection therewith, we said: Because of this policy, the general
observation may be made that an appellate court is more likely to affirm a lower court ruling
setting aside a default judgment than it is to affirm a refusal to do so. In the former case, a
trial upon the merits is assured, whereas in the latter it is denied forever. 79 Nev. at 155-56
(emphasis in the original). This principle was recognized by this court as early as Howe v.
Coldren, 4 Nev. 171 (1868), and reaffirmed as recent as Morris v. Morris, 86 Nev. 45, 464
P.2d 471 (1970). For a recent reversal of the refusal of a lower court to set aside a default
judgment, see Adams v. Lawson, 84 Nev. 687, 448 P.2d 695 (1968).
4. In certain instances we have declined to follow that basic policy for specific reasons. In
McClellan v. David, supra, we noted there was no credible evidence to support the trial
court's order setting aside a default judgment and reversed its order. In Kelso v. Kelso, 78
Nev. 99, 369 P.2d 668 (1962), the lower court was reversed because the defaulting party
made no showing of a defense or its nature so the lower court could determine whether it was
meritorious.
In Lukey v. Thomas, 75 Nev. 20, 333 P.2d 979 (1959), the lower court was reversed
because the defaulting party failed to show the nature of any defense he might have. The court
also noted that the motion for relief was filed 131 days after judgment was entered.
In Esden v. May, 36 Nev. 611, 135 P. 1185 (1913), the lower court was also reversed
because the defaulting party failed to show the nature of any defense he might have.
In Haley v. Eureka County Bank, 20 Nev. 410, 22 P. 1098 (1889), the court said that the
defendants could not rely on grounds of surprise independent of verbal stipulations claimed
by them to have been made to the effect that a default would not be taken. The rule then was
as it is now under DCR 24, that stipulations between parties are to be disregarded unless in
writing or in the form of a court order.
[Headnote 3]
5. The single issue presented for our review in this case is whether the lower court abused
its discretion in setting aside the default judgment. It appears credible evidence was offered
by each of the parties. The lower court was then faced with resolving fundamental conflict in
that evidence. Kay's failure to have judgment entered upon the default for ten months is an
indication that negotiations were continuing. So too the letters of September and October
indicate that McDonald may have been justified in his expectation that an answer was not
expected until the books had been examined.
of September and October indicate that McDonald may have been justified in his expectation
that an answer was not expected until the books had been examined. Kay's failure to have
judgment entered for two months after giving notice that he would have judgment entered in
seven days is another factor supporting the lower court's determination that the failure to file
a responsive pleading was the result of a misunderstanding between the parties.
McDonald could be said to have made the mistake of believing that he would not be
required to plead until the books had been reviewed by the appellant. The lower court could
also have found that McDonald was surprised by the entry of judgment when he had been in
contact with Kay following entry of default in March and no judgment had been entered, and
also when it had not been entered seven days after the notice had been given that judgment
would be entered. Both parties have delayed here, and while there is no stipulation that
additional time would be given, there is delay on the part of the appellant, coupled with
evidence of contact between the parties from which the judge below could conclude that a
misunderstanding had developed.
Thus, there is evidence of mistake, inadvertence, surprise or excusable neglect required by
NRCP 60(b)(1) to justify setting aside the default judgment. While initially we may not have
decided the case in the same manner as the trial court, we cannot say that court abused its
discretion.
Affirmed.
____________
86 Nev. 483, 483 (1970) Bailey v. Bailey
ZENNA BAILEY, Appellant, v. BERTHA ALICE BAILEY, as Executrix of the Estate of
JOE LARKIN BAILEY, Deceased, Respondent.
No. 6005
June 18, 1970 471 P.2d 220
Judge.
Action upon decree of divorce brought by former wife against executrix of former
husband's estate to recover amount claimed to be due for support under divorce decree from
date of death until date the minor children reached majority. The district court dismissed the
action and the former wife appealed.
district court dismissed the action and the former wife appealed. The Supreme Court, Collins,
C. J., held that in absence of specific statement in divorce decree that obligation of child
support was to survive the death of the obligor, decree granting child support until further
order of court or during minority did not bind the obligor's estate for child support.
Affirmed.
Gordon L. Hawkins, of Las Vegas, for Appellant.
Rudiak & Publow, of Las Vegas, for Respondent.
1. Divorce.
At common law, there was no final divorce, only a judicially decreed separation, with father retaining
custody of the children and the marriage relationship remaining intact, and upon death of the husband and
father, wife and children were in same position as if there had been no divorce. NRS 125.210.
2. Divorce.
A parent, particularly the father, has a continuing obligation to support his minor children, irrespective of
any decree of divorce to that effect.
At common law, a man's duty to support his children ended with his death.
4. Divorce.
A court granting a divorce, in exercise of its sound discretion, may order that child support payments
bind the father's estate. NRS 125.140.
5. Executors And Administrators.
In absence of specific statement in divorce decree that obligation of child support was to survive the
death of the obligor, decree granting child support until further order of court or during minority did not
bind the obligor's estate for child support. NRS 125.140.
A father can contract to permit support payments to be a charge against his estate. NRS 123.080.
7. Divorce.
A divorce court can require the father to maintain or purchase life insurance upon his life, with the child
as beneficiary, or require that a trust be set up for benefit of the child. NRS 125.140.
OPINION
This is an action upon a decree of divorce brought by appellant (plaintiff below), mother of
two minor children, against respondent {defendant below) as executrix of the father's
estate.
respondent (defendant below) as executrix of the father's estate. The trial court granted a
motion to dismiss for failure to state a claim upon which relief could be granted and without
leave to amend. This appeal is taken from that judgment. We affirm the judgment.
Appellant was divorced from Joe Larkin Bailey June 2, 1954, and was awarded custody of
their two minor children. He was ordered to pay her support of $50 per month for each child
until the further order of the court or until the children reached their majority. He paid that
support through September, 1968, when he died. Respondent, his second wife, was appointed
executrix of his will on October 16, 1968.
On December 6, 1968, appellant filed her claim against the estate for $3,850, the amount
claimed to be due for support under the divorce decree from Joe Bailey's death until the
children reached majority, one on November 16, 1971, and the other on December 31, 1971.
The claim was rejected and suit filed.
The trial court, in its decision dismissing the action, stated: It appears to the Court that
Plaintiff has adequate protection under the probate laws of the State of Nevada under a
request for family allowances on distribution of the estate upon closing of the estate
proceedings.
The single issue before us on this appeal is: Whether an allegation in a complaint that a
decedent was ordered to pay . . . the sum of $50.00 per month for the support and
maintenance of each of [his] minor children until further order of the court, or until they
reached the age of their majority states a cause of action upon which relief can be granted
against his estate for installments accruing after death?
This issue has never been decided in Nevada, although it was alluded to in Heppner v.
McCombs, 82 Nev. 86, 411 P.2d 123 (1966), where this court upheld a California decree
containing a property settlement providing that the child support was enforceable against the
estate of the father. The decision was grounded upon the full faith and credit clause, and this
court expressly declined to decide whether it was enforceable under Nevada law, saying
Nevada has not yet been faced with the problem of the obligation of child support after the
death of the father and we decline to rule on that point until it is squarely presented. 82 Nev.
at 89, n. 2.
[Headnote 1]
1. At common law, there was no final divorce, only a judicially decreed separation, with
the father retaining custody of the children. The marriage relationship remained intact, and
upon the death of the husband and father, the wife and children were in the same
position as if there had been no divorce.
upon the death of the husband and father, the wife and children were in the same position as
if there had been no divorce. Note, Continuance of Alimony and Payments for Support of
Minor Children after a Husband's Death, 35 Va.L.Rev. 482 (1949); see also Newman v.
Burwell, 15 P.2d 511, 512 (Cal. 1932). That type of determination was carried forward into
present law and is found in the separate maintenance provisions of Nevada statutes. See NRS
125.210.
Notwithstanding that present-day divorce severs the marital bond between the husband and
wife, with the wife frequently being granted custody of the children, the family ties between
the father and the children almost always remain unchanged. In re Foster's Estate, 47 Nev.
297, 220 P. 734 (1923).
[Headnote 2]
Thus, a parent, particularly the father, has a continuing obligation of support for his minor
children, irrespective of any decree to that effect. See In re Foster's Estate, supra at 301-02;
Scudder v. Scudder, 348 P.2d 225 (Wash. 1960). In Scudder, the court said a decree ordering
payment of child support was simply a recitation of the husband's common-law duty to
support his children during their minority, and nothing more. Id. at 228.
[Headnote 3]
2. At common law, a man's duty to support his children ended with his death. See
Newman v. Burwell, supra; Note, supra, 35 Va.L.Rev. 482; Annot., 18 A.L.R.2d 1126, 1127.
From this rule, some courts have held that, absent a contractual obligation to do so, there is
no obligation on the part of a parent to provide for the support of his child after death, and
courts are without power to make the support order a charge against the father's estate. See
Streight v. Streight's Estate, 360 P.2d 304 (Ore. 1961); Cooper v. Cooper's Estate, 111 N.E.2d
564 (Ill.Ct.App. 1953); Byrne v. Byrne, 112 N.Y.S.2d 569 (S.Ct.App. Term (1952)); In re
Fessman's Estate, 126 A.2d 676 (Pa. 1956).
Other courts have permitted child support decrees to be enforced against a decedent's
estate without his consent. In Murphy v. Moyle, 53 P. 1010 (Utah 1898), a decision to that
effect was grounded in a divorce statute giving the court power to make such provision for
the children as may be just and equitable. Id. at 1012. The source of the court's power to
charge the father's estate was not discussed in the California case of Newman v. Burwell, 15
P.2d 511 (Cal. 1932). The court held only that such power was available and had been
exercised. In Scudder v. Scudder, 348 P.2d 225 (Wash. 1960), the power of a court to make
a support decree effective against a father's estate was assumed, but was found not to
have been exercised in that case.
the power of a court to make a support decree effective against a father's estate was assumed,
but was found not to have been exercised in that case. See also Miller v. Miller, 64 Me. 484
(1874); Morris v. Henry, 70 S.E.2d 417, 420 (Va. 1952); Note, supra, 35 Va.L.Rev. 482,
492-95; Annot., 18 A.L.R.2d 1126, 1130-31.
[Headnotes 4, 5]
3. We believe that NRS 125.140 permits a court granting a divorce, in the exercise of its
sound discretion, to order that child support payments bind the father's estate.
1
Compare
NRS 125.140 with the statutes applied in Murphy v. Moyle, 53 P. 1010 (Utah 1898), and
Morris v. Henry, 70 S.E.2d 417 (Va. 1952). We decline, however, to follow the lead of
California and Utah and hold that an order granting child support until further order of the
court or during minority is such an exercise of discretion. See Newman v. Burwell, 15 P.2d
511 (Cal. 1932) (until the further order of court); Murphy v. Moyle, supra (during their
minority). Instead, like the Washington court,we are convinced that if a judicial decree is to
be held to impose upon the father a greater duty of child support than that required by the
common law, the decree must specifically state that such obligation is to survive the death of
the obligor. Scudder v. Scudder, 348 P.2d 225, 228 (Wash. 1960).
4. While our statute provides an escape from the harshness of the common-law rule, a host
of unanswered questions spring up when a child support grant is enforced against a decedent's
estate. For example, should not the obligation of the father's estate run equally to all his
children, not just those whom he is under a court order to support, but those who are living in
his household or children by a subsequent marriage? Are the children he is ordered to support
merely general creditors of his estate, or do they enjoy some priority? Since his children are
entitled to family allowance during the course of the administration of his estate (In re
Foster's Estate, 47 Nev. 297, 220 P. 734 (1923)), is the estate entitled to a credit for that
allowance
against the sum ordered paid for support? May the amount owed under a child support
order be modified after the father's death, and if so, does the child, the surviving parent,
or the estate seek the modification?
____________________

1
NRS 125.140. (1) The court, in granting a 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.
(2) In actions for divorce the court may, during the pendency of the action, or at the final hearing or at any
time thereafter during the minority of any of the children of the marriage, make such order for the custody, care,
education, maintenance and support of such minor children as may seem necessary or proper, and may at any
time modify or vacate the same.
amount owed under a child support order be modified after the father's death, and if so, does
the child, the surviving parent, or the estate seek the modification? If modification is
permitted, which court has jurisdiction to entertain the request? Is it the probate court, the
court in which the decree was ordered, or the court in which the suit is brought seeking the
modification? Are provisions for the child made by the father, such as life insurance, trust
benefits, bequests, or intestate succession in addition to or a credit against the support
obligation? Must the administration of the estate be kept open during the minority of the
child, or should the sums found due for support be placed in a trust account or be paid over to
the child's guardian? Are benefits accruing to the child from the father's death, such as social
security payments, veterans benefits, pension plans, employee death benefits, in addition to or
a credit against the support payments?
[Headnotes 6, 7]
5. It appears to us that answers to these questions and others which have not come to our
minds can best be answered, if at all, by a comprehensive statutory enactment. This is the first
case involving this issue to arise in this jurisdiction in over 100 years. According to our past
experience, it would require decades to evolve sound meaningful rules on a case-by-case
basis. Accordingly, we urge caution in making child support awards enforceable against a
father's estate and suggest that other available methods be utilized until such time as the
legislature acts. A father can contract to permit support payments to be a charge against his
estate. NRS 123.080; e.g., Newman v. Burwell, 15 P.2d 511 (1932); Stone v. Bayley, 134 P.
820 (Wash. 1913); In re Fessman's Estate, 126 A.2d 676 (Pa. 1956). A court can require the
father to maintain or purchase life insurance upon his life, with the child as beneficiary, or
require that a trust be set up for the benefit of the child. See NRS 125.140. These or similar
alternatives seem preferable to us to the uncertainties encountered in making a child support
award enforceable against the father's estate.
6. In commending the subject of the obligation of fathers for the support of their children
to the legislature, it may be helpful to set forth the reasoning of the courts in denying or
granting enforcement of child support awards against decedents' estates. Courts refusing to
charge the father's estate cite as their main reasons (1) it would place children given to the
custody of their mother after a divorce in a stronger position than children whose parent never
divorce, children who are given to the father's custody, or children of a subsequent marriage;
{2) it would prevent the father from exercising his right to disinherit those children given
to the custody of their mother, thus limiting the father's testamentary disposition of his
property.
marriage; (2) it would prevent the father from exercising his right to disinherit those children
given to the custody of their mother, thus limiting the father's testamentary disposition of his
property.
Courts charging the father's estate give as their reasons, (1) the child may become a public
charge, and (2) because of hostility toward the mother, or from other causes, there is a danger
the father will disinherit his children and thus leave them to be supported by their mother
without any aid from his estate.
For the reasons assigned, the judgment of the lower court is affirmed.
____________
86 Nev. 489, 489 (1970) Nall v. Warden
LONNIE NALL, Appellant, v. WARDEN, NEVADA
No. 6060
June 18, 1970 471 P.2d 218
Appeal from an order of the Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Appeal from order of the district court denying relief under post-conviction remedy act.
The Supreme Court, Thompson, J., held that where penalty under either of two statutes
applicable to defendant's offense of extortion was not left to discretion of prosecutor but was,
in one statute, fixed by legislative fiat, and, under other statute, selected by the court,
selection by prosecutor of statutory provision under which he wished to prosecute did not
involve unconstitutional delegation of discretion to prosecuting attorney.
Affirmed.
James D. Santini, Public Defender, Jeffrey D. Sobel and Steven Godwin, Deputy Public
Defenders, Clark County, for Appellant.
Attorney, Alan R. Johns and Larry C. Johns, Deputy District Attorneys, Clark County, for
Respondent.
Constitutional Law.
Where penalty under either of two statutes applicable to defendant's offense of extortion was not left to
discretion of prosecutor but was, in one statute, fixed by legislative fiat, and, under
other statute, selected by the court, selection by prosecutor of statutory provision
under which he wished to prosecute did not involve unconstitutional delegation of
discretion to prosecuting attorney.
86 Nev. 489, 490 (1970) Nall v. Warden
prosecutor but was, in one statute, fixed by legislative fiat, and, under other statute, selected by the court,
selection by prosecutor of statutory provision under which he wished to prosecute did not involve
unconstitutional delegation of discretion to prosecuting attorney. NRS 205.272, 205.320.
OPINION
This appeal is from an order of the district court denying relief under the post-conviction
remedy act. Nall was convicted of felony extortion under NRS 205.320 and sentenced to five
years imprisonment. That conviction was affirmed on direct appeal to this court. Nall v. State,
85 Nev. 1, 448 P.2d 826 (1969). His petition for post-conviction relief rests mainly upon our
decision in Lapinski v. State, 84 Nev. 611, 446 P.2d 645 (1968). That case declared void the
penalty provision of NRS 205.272 as amended, 67 Stats. 500, ch. 211, on the premise that the
penalty to be exacted was unconstitutionally delegated to the discretion of the prosecuting
attorney.
According to the appellant, the relevance of Lapinski, supra, is this. At the time of the
appellant's trial there existed two statutes, NRS 205.320 and NRS 205.315, either of which
was applicable to his offense.
1
Violation of the former was a felony or a gross
misdemeanor; violation of the latter, a gross misdemeanor.
____________________

1
In 1967 NRS 205.315 was repealed, and NRS 205.320, amended in part. When this case was commenced
they read as follows:
NRS 205.315. If any person, either verbally or by any written or printed communication, shall maliciously
threaten any injury to any person or property of another, with intent thereby to extort money, or any pecuniary
advantage whatever, or to compel the person so threatened to do any act against his will, he shall be punished,
upon conviction thereof, by imprisonment in the county jail for not less than 6 months nor more than 1 year, and
by a fine of not less than $100 nor more than $500.
NRS 205.320. Every person who, with intent thereby to extort or gain any money or other property or to
compel or induce another to make, subscribe, execute, alter or destroy any valuable security or instrument or
writing affecting or intended to affect any cause of action or defense, or any property, or to influence the action
of any public officer, or to do or abet or procure any illegal or wrongful act, shall threaten directly or indirectly:
1. To accuse any person of a crime; or
2. To do any injury to any person or to any property; or
3. To punish or connive at publishing any libel; or
4. To expose or impute to any person any deformity or disgrace; or
5. To expose any secret,
shall be punished by imprisonment in the state prison for not more than 5 years or by imprisonment in the county
jail for not more than 1 year, or by a fine of not more than $1,000, or by both fine and imprisonment.
86 Nev. 489, 491 (1970) Nall v. Warden
or a gross misdemeanor; violation of the latter, a gross misdemeanor. The district attorney,
therefore, could select under which statutory provision he wished to prosecute and, thereby,
selected the penalty by his choicea discretionary act on his part, banned by the reasoning of
Lapinski.
The contention is not sound. Lapinski involved the discretion of the district attorney under
a single statute defining the elements of a single crime. The discretion involved allowed the
prosecutor to select the penalty. That discretion is not given to the prosecutor under either
NRS 205.320 or 205.315. In the instance of 205.315, the penalty is fixed by legislative fiat. In
the instance of 205.320, the court selects the penalty. Moreover, an offense under NRS
205.320 does not require as one element, malice, whereas the offense described in NRS
205.315 requires malice to be shown.
2
To this extent, the crimes described are different.
These distinctions deny the application of Lapinski to the case at hand.
Affirmed.
Collins, C. J., Batjer and Mowbray, JJ., concur.
Zenoff, J., concurring:
I concur only in the result.
It is my opinion that this appeal should not be entertained at all. On his appeal after the
trial Nall could have raised the issue that he now asserts to the court because Lapinski v.
State, 84 Nev. 611, 446 P.2d 645 (1968), was in existence at the time of appeal. He failed to
request an appropriate instruction. Such failure precludes consideration of the matter on direct
appeal, Mears v. State, 83 Nev. 3, 10, 422 P.2d 230 (1967); Peoples v. State, 83 Nev. 115,
117, 423 P.2d 883 (1967); State v. Carcerano, 390 P.2d 923, 930 (Ore. 1964); Cohen v.
United States, 366 F.2d 363, 368 (9th Cir. 1966), or even in a post-conviction proceeding.
North v. Cupp, 461 P.2d 271 (Ore. 1969).
Recently, in Rogers v. Warden, 86 Nev. 359, 468 P.2d 993 (1970), we refused to consider
a second post-conviction application dealing with issues which should have been raised in the
first application. The court quoted approvingly from Tiller v. Warden, 229 A.2d 600, 603-604
(Md.App. 1967), which reasoned that a court should only consider issues not raised on direct
appeal or in the first post-conviction application upon a showing that special circumstances
accounted for the petitioner's failure to do so.
____________________

2
The incongruityto require malice as an element of the lesser offense and to omit it as an element of the
greateris apparent and perhaps explains the 1967 repeal of 205.315.
the petitioner's failure to do so. Other jurisdictions with similar post-conviction procedure
acts have also adopted the proposition that a court will consider an issue waived if not raised
on direct appeal unless there is a reasonable basis for petitioner's failure to do so. Bias v.
Cupp, 462 P.2d 684 (0re.App. 1969); People v. McCracken, 251 N.E.2d 212 (Ill. 1969).
In this case we should declare the issue waived as not having been properly raised on
appeal and no reasonable explanation offered for petitioner's failure to allege such a claim.
Hadder v. Warden, 256 A.2d 549 (Md.App. 1969); Bias v. Cupp, supra; People v.
McCracken, supra.
We should heed the clamor that something should be done about the crowded court
calendars and cease the practice of allowing repeated appeals over and over again from
confined litigants who have nothing else to do but pester the judicial process for release on
grounds that in most instances are imaginary. Yet, so long as petitions are filed courts must
consider them. Were we to stick to the policy that all legal issues must be raised at one time
or be considered waived, absent special circumstances, the time wasted on those could be
directed to other pending cases.
____________
86 Nev. 492, 492 (1970) Keller v. Martini
BURTON KELLER and VIOLET KELLER, Appellants, v. ARMANDO MARTINI, ELIO
MARTINI and OLIVA MARTINI, Respondents.
No. 5948
June 19, 1970 471 P.2d 207
Appeal from judgment setting width limits of prescriptive easement. Second Judicial
District Court, Washoe County; Grant L. Bowen, Judge.
The Supreme Court, Zenoff, J., held that where testimony concerning width of disputed
easement ranged from 8 feet to at least 30 feet, finding of trial judge who personally viewed
premises that 18 feet was extent of use was reasonable and met requirements of fairness.
Affirmed.
Laub & Puzey, of Reno, for Appellants.
Adams, Reed & Bowen and Charles M. Murphy, of Reno, for Respondents.
1. Easements.
Extent of prescriptive easement is fixed by use which created it.
2. Easements.
Where testimony conflicts, trial court can weigh conflicting testimony and determine an adequate width
and location of disputed easements.
3. Easements.
Where testimony concerning width of disputed easement ranged from 8 feet to at least 30 feet, finding of
trial judge who personally viewed premises that 18 feet was extent of use was reasonable and met
requirement of fairness.
OPINION
Burton and Violet Keller, through family history and a purchase, are owners of a parcel of
realty in Washoe County to which ingress and egress is accomplished by an easement created
from use for many years. The Martinis own the property upon which the easement is located.
The easement has been used by the Kellers for access to their business which originally was
an auto repair shop. As such, the use of the roadway from the main road to their property over
the years became an easement by prescription and although there were periods of interruption
the parties acknowledge that a prescriptive easement does exist across the Martinis' property
for the benefit of the Kellers.
Only one principal question is posed, that is, the width of the easement. The Kellers claim
as much as 30 feet, the Martinis would restrict it to less than ten. The trial court found that the
easement is 18 feet wide and the Kellers appeal from that finding.
[Headnote 1]
1. The extent of a prescriptive easement is fixed by the use which created it. Cox v.
Glenbrook Co., 78 Nev. 254, 262, 371 P.2d 647 (1962) (dictum). This easement was found to
have been used for the operation of an auto repair shop which, since 1964, was enlarged into
an automobile wrecking yard. The expansion brought about problems of deep concern to
public authorities and property owners with which we are not here concerned.
here concerned. Our concern is directed only to reviewing the determination of the trial court
that the easement is 18 feet wide.
[Headnotes 2, 3]
The evidence is in conflict as to the width of the easement. Originally, in many years gone
by, the width of the easement was eight feet but at the inception of this action the Kellers
claim that it had widened to at least 30 feet. Truly, it varied at several points depending upon
the grading, fill and other factors. The trial judge took into account oral testimony of several
witnesses who testified from personal observation, also the installation of a culvert that was
16 feet 9 inches wide and his personal view of the premises. The court then concluded that 18
feet was the extent of the use and his conclusion is reasonable. The finding meets the
requirement of fairness. Where the testimony conflicts the judge can weigh the conflicting
testimony and determine an adequate width and location of the easement. England v. Ally
Ong Hing, 459 P. 2d 498, 506 (Ariz. 1969); Ward v. City of Monrovia, 108 P.2d 425, 429
(Cal. 1940); Swenson v. Strout Realty, Inc., 85 Nev. 236, 452 P.2d 972 (1969); Cox v.
Glenbrook Co., supra, at 264 (easement by grant).
2. Another issue relating to the refusal of the trial court to admit a multitude of cancelled
checks is without merit nor was it properly preserved for appeal.
Affirmed.
____________
86 Nev. 494, 494 (1970) Allison Steel Mfg. Co. v. Bentonite, Inc.
ALLISON STEEL MANUFACTURING CO., WESTERN ROLLING MILLS DIVISION, an
Arizona Corporation, Appellant, v. BENTONITE, INC., a Nevada Corporation,
Respondent.
No. 6018
June 19, 1970 471 P.2d 666
Judge.
Action to determine ownership of land between vendee of purchaser who purchased land
under tax liens from Internal Revenue Service and sheriff's sale purchaser.
Revenue Service and sheriff's sale purchaser. The district court granted the vendee summary
judgment perfecting title in it and the sheriff's sale purchaser appealed. The Supreme Court,
Collins, C. J., held that where, at time that sheriff's sale purchaser's judgment lien attached,
two Internal Revenue Service liens were already of record and the liens were not released at
time of sheriff's sale, purchaser was not a good-faith purchaser and, therefore, was not
entitled to the protection of the recording act even though certificate of sale received from
sheriff was recorded before Internal Revenue Service certificate of sale.
Affirmed.
John Peter Lee, of Las Vegas, for Appellant.
Raymond E. Sutton, of Las Vegas, for Respondent.
1. Execution.
Constructive notice received by sheriff's sale purchaser as to Internal Revenue Service tax liens of record
at time judgment was obtained against landowner imposed duty on sheriff's sale purchaser to inquire
whether prior right under those liens was being foreclosed.
2. Execution.
Where, at time that sheriff's sale purchaser's judgment lien attached, two Internal Revenue Service liens
were already of record and the liens were not released until after the sheriff's sale, purchaser was not a
good-faith purchaser, and, therefore, was not entitled to the protection of the recording act against holder of
certificate of sale from Internal Revenue Service even though certificate of sale received from sheriff had
been recorded before Internal Revenue Service certificate of sale. NRS 111.325.
3. Vendor and Purchaser.
A subsequent purchaser of land with notice, actual or constructive, of an interest in land superior to that
which he is purchasing is not a purchaser in good faith and is not entitled to the protection of the recording
act. NRS 111.325.
4. Internal Revenue.
Where, at time judgment lien attached, Internal Revenue Service liens were already of record, purchaser
from Internal Revenue Service acquired title superior to that acquired by purchaser at sheriff's sale under
the judgment. 26 U.S.C.A. (I.R.C. 1954) 6338.
5. Internal Revenue.
When purchaser purchased land from Internal Revenue Service and received certificate of sale, he
became entitled, without more, to a tax deed from Internal Revenue Service conveying legal title relating
back to time tax liens attached, after period of redemption passed. 26 U.S.C.A. (I.R.C. 1954) 6338.
6. Execution.
Purchaser at sheriff's sale acquired only right of redemption where landowner's interest in land had
previously been sold by Internal Revenue Service whose recorded tax liens had priority over judgment of
purchaser at sheriff's sale even though purchaser from Internal Revenue Service failed to record his
certificate of sale, as sheriff's sale purchaser had constructive notice of the existence of the tax liens. NRS
111.325, 247.120, subd. 1(n).
OPINION
This is an appeal from a summary judgment granted by the lower court in favor of
respondent (plaintiff below). We affirm that judgment.
Henderson Land & Development Co., Inc. owned a parcel of land in Clark County,
Nevada. It was indebted to the federal government for taxes, and liens were recorded. It also
was indebted to appellant Allison Steel Manufacturing Co. The District Director of the
Internal Revenue Service sold the land under the tax liens to R. J. Moore, who in turn
conveyed it to respondent. Appellant sued Henderson for the debt owed it, recovered a
judgment, executed and purchased the same land at a sheriff's sale. With each of the parties to
this appeal claiming title to the same parcel of land, respondent sued appellant in the lower
court to establish its title. Summary judgment was granted in the lower court perfecting title
in respondent, from which judgment appellant appeals.
The chronology of events which is necessary to an understanding and resolution of the
controversy is as follows:
March 16, 1964Tax lien by Internal Revenue Service recorded.
March 24, 1964Additional tax lien by Internal Revenue Service recorded.
May 26, 1964Judgment in favor of appellant against the land owner, Henderson Land
Sale & Development Co., filed. (There is no evidence that the judgment was ever recorded.)
September 15, 1964Internal Revenue Service sale to R.J. Moore. (The certificate of sale
issued at time of sale was recorded at the same time the deed was, March 25, 1966.)
July 6, 1965Sheriff's sale one execution resulting from May 26, 1964 judgment in favor
of appellant.
July 15, 1965Sheriff's certificate of sale under appellant's judgment recorded.
September 15, 1965Tax liens released by Internal Revenue Service.
October 26, 1965Internal Revenue Service Deed issued to R. J. Moore.
The property passed from R. J. Moore to respondent by a deed recorded March 25, 1966.
The only significant issue for our decision is this: Whether appellant was a purchaser for
value without notice at the sheriff's sale, thus rendering the sale by the Internal Revenue
Service void as to it.
1. Appellant contends that because R. J. Moore failed to record the certificate of sale he
received from IRS on September 15, 1964, appellant's certificate of sale received from the
sheriff and later recorded on July 15, 1965, became the priority lien, and when the sheriff
issued his deed to appellant and it was recorded on July 26, 1966, it related back to July 15,
1965, and vested superior title in appellant. This contention is in error, as we shall hereinafter
demonstrate.
2. The two IRS notices of tax liens recorded March 16 and March 24, 1964, were clearly
prior in time to appellant's judgment lien of May 26, 1964. The recording of those liens
imparted constructive notice to appellant of a claim against the Henderson property superior
to its own judgment. NRS 111.320. The Henderson property was sold by the IRS on
September 15, 1964, and a certificate of sale issued to the purchaser, R. J. Moore, which
certificate was not recorded until after the period of redemption had expired and he had
received the IRS deed. He recorded both on March 25, 1966. In the meantime, with
constructive knowledge of the IRS lien, appellant purchased the property at the sheriff's
execution sale on its judgment, received a certificate of sale which was recorded on July 15,
1965, and, after the period of redemption passed, received and recorded a sheriff's deed on
July 26, 1966.
3. At common law, where there were successive conveyances of the same legal interest in
land, the first in time was superior in right. 6 R. Powell, The Law of Real Property 912
(1968). Recording statutes provide constructive notice of the existence of an outstanding
interest in land, thereby putting a prospective purchaser on notice that he may not be getting
all he expected. Constructive notice is that which is imparted to a person upon strictly legal
inference of matters which he necessarily ought to know, or which, by the exercise of
ordinary diligence, he might know. 8 Thompson on Real Property 4293, at 245-46.
[Headnote 1]
Appellant's constructive notice received from the IRS tax liens of record at the time its
judgment was obtained on May 26, 1964, imposed a duty of inquiry whether the prior right
under those liens was being foreclosed. A duty of inquiry is said to arise when the
circumstances are such that a purchaser is in possession of facts which would lead a
reasonable man in his position to make an investigation that would advise him of the
existence of prior unrecorded rights. He is said to have constructive notice of their existence
whether he does or does not make the investigation. The authorities are unanimous in holding
that he has notice of whatever the search would disclose. 4 American Law of Property
17.11, at 565-66 (1952). In 8 Thompson on Real Property 4310, at 347, it is likewise said:
A recital in an instrument of record charges subsequent purchasers with notice of all material
facts which an inquiry suggested by that recital would have disclosed. . . .
. . . When anything appears in these title deeds sufficient to put a prudent man on inquiry
which if prosecuted with ordinary diligence would lead to actual knowledge of some right or
title in conflict with the title he is about to purchase, it is his duty to make inquiry, and if he
does not do so he is chargeable with actual knowledge of what the inquiry would have
disclosed.
Had appellant examined the lien record of which he had constructive notice and was under
a duty of inquiry with respect thereto on July 6, 1965, when the Henderson land was
purchased at the sheriff's sale, or on July 15, when the sheriff's certificate of sale was
recorded, it would have found the IRS liens still in effect. And an inquiry to the IRS would
have revealed the sale to Moore.
[Headnote 2]
4. But appellant argues that because the sheriff's certificate of sale on execution was
recorded before the IRS certificate of sale to Moore was recorded, it is a subsequent
purchaser in good faith for a valuable consideration, and any title derived from Moore's
certificate of sale is void against appellant's. Appellant relies upon the recording act NRS
111.325, which reads: Every conveyance of real property within this state hereafter made,
which shall not be recorded as provided in this chapter, shall be void as against any
subsequent purchaser, in good faith and for a valuable consideration, of the same real
property, or any portion thereof, where his own conveyance shall be first duly recorded.
[Headnote 3]
Under our recording act, it is not enough that a subsequent purchaser record his
conveyance first, he must also be a purchaser in good faith. A subsequent purchaser with
notice, actual or constructive, of an interest in the land superior to that which he is purchasing
is not a purchaser in good faith, and not entitled to the protection of the recording act.
5. We think that appellant's position as a purchaser at a judgment sale is controlled by the
rule announced in 8 Thompson on Real Property 4313, at 371 (1963), which holds: The
leading rule in absence of statute is that the doctrine of caveat emptor applies to a sale under
execution, and a purchaser ordinarily acquires no better title than the debtor could have
conveyed at the time the lien attached. (Emphasis added.)
At the time appellant's judgment lien attached on May 26, 1964, the two IRS liens were
already of record giving it constructive notice.
8 Thompson on Real Property, supra, at 373, says: There is strong authority today holding
that a purchaser at an execution sale without notice, either actual or constructive, of any
interest or equity of a third person, is a purchaser for a valuable consideration, and is entitled
to the protection of the registry acts, though the judgment did not make the judgment creditor
a bona fide purchaser entitled to such protection.
[Headnote 4]
6. We think that when Moore purchased the Henderson land from the IRS and received a
certificate of sale on September 15, 1964, which was exchanged for a tax deed on October 26,
1965, he received a title superior to that acquired through the sheriff's sale by appellant and
evidenced by the sheriff's certificate of sale issued July 6, 1965, and the sheriff's deed
recorded July 26, 1966.
[Headnotes 5, 6]
With the certificate of sale received September 15, 1964, Moore acquired equitable title to
the land in question and received whatever interest Henderson had in the land at the time the
tax liens attached, subject only to being divested by an exercise of Henderson's power of
redemption. See Int. Rev. Code of 1954 6338; cf. Hansen v. G. & G. Trucking Co., 46
Cal.Rptr. 186, 194-95 (Cal.Dist.Ct.App. 1965). When the period of redemption passed,
Moore became entitled, without more, to a tax deed from the IRS which conveyed legal title
relating back to the time the tax liens attached. Appellant, on the other hand, acquired only
the right of redemption at the sheriff's sale in July of 1965 because the remainder of
Henderson's interest in the land had been sold to Moore the previous September by the
IRS whose tax liens had priority over appellant's judgment.
the other hand, acquired only the right of redemption at the sheriff's sale in July of 1965
because the remainder of Henderson's interest in the land had been sold to Moore the
previous September by the IRS whose tax liens had priority over appellant's judgment.
Moore's failure to record his certificate of sale as appellant had wisely done, is of no aid to
appellant as it had constructive notice of the existence of an interest superior to any it might
acquire at the sheriff's sale.
Had appellant purchased the Henderson land at the sheriff's sale after instead of before the
IRS tax liens were released, a different result would prevail. The failure of Moore to have
recorded his certificate of sale from IRS would have left the Henderson land free of any
recorded notice of prior lien. The certificate of sale is a document specifically designated as
one to be recorded by the recorder (NRS 247.120(1)(n)), and absent recording of the IRS
certificate of sale to Moore following release of the IRS tax liens, appellant, as purchaser at
an execution sale, even though he was the judgment creditor who caused the sale, would have
become a subsequent purchaser pursuant to NRS 111.325, supra, and 8 Thompson on Real
Property, supra, at 373.
The summary judgment granted by the court is affirmed.
____________
86 Nev. 500, 500 (1970) Wyand v. State
GREGORY WYAND, Appellant, v. THE
No. 6021
June 19, 1970 471 P.2d 216
Appeal from a judgment of the Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
Defendant was convicted before the district court of attempted robbery and he appealed.
The Supreme Court, Batjer, J., held that where the trial court found that the in-court
identification of defendant was based upon observation of him at scene of crime rather than
upon photographs displayed to witnesses after the attempted robbery, fact that defense
counsel was not present when photographs were displayed to witnesses and the displayed
photographs were not preserved did not deny defendant due process or the right to
cross-examine the State's witness.
86 Nev. 500, 501 (1970) Wyand v. State
preserved did not deny defendant due process or the right to cross-examine the State's
witness.
Affirmed.
James D. Santini, Public Defender, Robert G. Legakes, Deputy Public Defender, Clark
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, Lorin D.
Parraguirre, Deputy District Attorney, Clark County, for Respondent.
Constitutional Law; Criminal Law.
Where trial court found that in-court identification of defendant was based on observations of witnesses
at scene of crime rather than upon photographs displayed to witnesses after attempted robbery, fact that
defense counsel was not present when photographs were displayed to witnesses and the displayed
photographs were not preserved did not deny defendant due process or the right to cross-examine the
State's witnesses. U.S.C.A.Const. Amends. 6, 14.
OPINION
The appellant was convicted by a jury of an attempted robbery at the Atomic Liquor
establishment in Las Vegas, Nevada. This appeal is taken from the judgment of conviction.
During the trial, Clovis George Duclos, the bartender, and George Hakata, a customer,
testified that when the appellant first came into the bar brandishing a rifle and shouting This
is a stick-up, give me your money, that his face was covered with a towel or shawl, however,
when he leaped up on the bar, he removed the face cover and both were able to clearly see his
facial features from a distance of six or seven feet. They testified that the lighting was
sufficient and that they observed him for about one-half a minute.
The bartender further testified that the appellant had been in the bar earlier on the morning
of the attempted robbery, that he remained there for approximately forty-five minutes, that he
had served him several drinks, and that he recognized him as being the same person who had
attempted to rob him.
1
Sharon Bishop, a rebuttal witness, testified that she had first met the
appellant when she was in the sixth grade. She further testified that she had seen him from
time to time since then, and that she had seen him in the Atomic Liquor establishment
earlier on the morning of the attempted robbery, and that they had spoken to each other.
____________________

1
The robbery was unsuccessful because the bartender threw bottles at the would-be robber and caused him
to flee the premises.
86 Nev. 500, 502 (1970) Wyand v. State
testified that she had seen him from time to time since then, and that she had seen him in the
Atomic Liquor establishment earlier on the morning of the attempted robbery, and that they
had spoken to each other.
At the beginning of the trial it was brought to the attention of the trial judge that both the
bartender and his customer had gone to the police station after the attempted robbery, and
sometime after the appellant had been apprehended, and were shown a photographic display
from which the appellant's picture was selected by each of them. At the time of the
photographic display the appellant was without counsel and had not waived his right to
counsel. The state conceded that none of the requirements of Thompson v. State, 85 Nev.
134, 451 P.2d 704 (1969), had been met.
2

The trial judge held an evidentiary hearing where Duclos and Hakata both testified
extensively about their opportunity to observe the appellant at the scene of the crime, as well
as what took place at the police station when they observed the photographic display and
selected the picture. Although the photographs used in the display were not preserved and
were therefore not before the trial court, nor a part of this record, nevertheless, the record
reveals that the photographs were shown to the witness on the first or second day after the
commission of the offense. The record further reveals that ten or twelve pictures were shown,
that they were of the same size and were all of persons of the same race, showing the upper
one-half of the body of each person. The witnesses viewed the photographs at different times
and the police made no suggestion that one of the persons shown in the photographs was the
suspect. Not until each witness had made a selection did the police reveal that they had a
suspect. At the evidentiary hearing both witnesses identified the appellant as the would-be
robber.
The trial judge found that their in-court identification was based on their observations at
the scene of the crime and not upon the photographic display, and allowed them both to
testify, before the jury, about their observations at the scene of the crime and to identify the
appellant as the robber. The trial judge would not allow any testimony about the photographic
display, therefore we have no problem of a constitutional error per se. Gilbert v. California,
388 U.S. 263, 87 S.Ct.
____________________

2
Either (a) the presence of counsel at the photographic display or (b) guidelines for proper photographic
identification procedures and preservation competently, in a legal sense of the photographs that are displayed to
witnesses.
86 Nev. 500, 503 (1970) Wyand v. State
S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Thompson v. State, supra.
The appellant contends that the photographic display was so suggestive that he was denied
due process, and that he was denied his right as guaranteed by the Sixth Amendment of the
United States Constitution, to cross-examine the state's witness because the photographs used
in the photographic line-up were not preserved. He asks us to set aside his conviction because
the trial court refused to suppress the in-court identification of him, by Duclos and Hakata,
because they had made a pretrial identification of him from photographs shown to them by
police officers in the absence of his counsel. This we refuse to do. Cf. Long v. United States,
424 F.2d 799 (CADC 1969); United States v. Sutherland, 428 F.2d 1152 (5 Cir. 1970); Green
v. United States, 426 F.2d 661 (CADC 1970).
The facts, the assignments of error, and the contentions of law found in Carmichel v. State,
86 Nev. 205, 467 P.2d 108 (1970), are strikingly similar to those found here. Upon the
authority of that case we affirm.
____________
86 Nev. 503, 503 (1970) Miller v. State
JAMES STEVEN MILLER, Appellant, v.
No. 5976
June 22, 1970 471 P.2d 213
Appeal from judgment of conviction of the Second Judicial District Court, Washoe
Burglary prosecution. The district court rendered judgment, and defendant appealed. The
Supreme Court, Thompson, J., held that defendant's right to assistance of counsel was not
violated where, when he moved to release retained counsel, court found that his reasons were
without substance and required him to proceed to trial with that counsel or to act as his own
attorney, and defendant selected latter course.
Affirmed.
[Rehearing denied September 23, 1970]
William B. Puzey, of Reno, for Appellant.
Violation of right to assistance of counsel for defense at trial denies due process. U.S.C.A.Const. Amend.
6; Const. art 1, 8.
2. Criminal Law.
Right to counsel may be waived if waiver is knowingly and intelligently made. U.S.C.A.Const. Amend. 6;
Const. art. 1, 8.
3. Criminal Law.
Protection of counsel is not to be forced upon accused who voluntarily elects to represent himself unless
it appears during course of proceedings that counsel should be present either to advise or conduct defense.
U.S.C.A.Const. Amend. 6; Const. art. 1, 8.
4. Criminal Law.
Defendant is not entitled to have his case presented in court both by himself and by counsel acting at
same time or alternatively at defendant's pleasure. U.S.C.A.Const. Amend. 6; Const. art. 1, 8.
5. Criminal Law.
Defendant's right to assistance of counsel was not violated where, when he moved to release retained
counsel, court found that his reasons were without substance and required him to proceed to trial with that
counsel or to act as his own attorney, and defendant selected latter course. U.S.C.A.Const. Amend. 6;
Const. art. 1, 8.
6. Criminal Law.
Defendant's election to represent himself increased court's burden to insure fair trial.
7. Witnesses.
Generally, when informer is material witness on issue of guilt and accused seeks disclosure on
cross-examination, state must disclose his identity or incur dismissal, but whether nondisclosure is error
depends on particular circumstances of each case.
8. Witnesses.
Refusal to permit defendant to ascertain identity of informer was not error in burglary prosecution where
informer had merely told police that burglary was to occur, whereupon police staked out premises and
apprehended defendant, and informer was not material witness since defendant was on trial because of acts
witnessed by police.
9. Witnesses.
Officer's response to question as to whether he had known defendant before, to effect that he had had
several occasions to investigate him, was not error where response was given in context of question
directed to identification and no further elaboration was elicited.
10. Criminal Law.
Prosecutor's rhetorical question in summation in burglary prosecution I am going to ask the defendant . .
. why the tools, why the careful planning?" was not comment upon defendant's failure
to testify.
tools, why the careful planning? was not comment upon defendant's failure to testify.
OPINION
Miller was indicted for burglary and soon thereafter retained counsel to represent him. His
trial was originally scheduled to commence on October 28, 1968. Before trial, he jumped bail,
fled to Texas, and was there apprehended in March 1969 and returned to Nevada. His trial
was reset for Monday, May 19, 1969. On the preceding Thursday, May 15, he moved the
court to release his retained counsel expressing displeasure with counsel's performance and
stating reasons therefor. The court found that his reasons were without substance and required
Miller to proceed to trial with that counsel, or to act as his own attorney. Miller selected the
latter course, and his retained counsel was released.
At one point during trial the court refused to compel a police officer to name the informer
who had alerted the police that a burglary was to occur. At another point during trial the
prosecutor asked a police officer if he had known the defendant, to which the officer
responded, Yes, I had several occasions to investigate him. During summation to the jury
the prosecutor made certain remarks which the defendant believes amounted to an
impermissible reference to his failure to testify. These happenings form the basis of this
appeal. The sufficiency of the evidence to support the conviction is not questioned.
[Headnotes 1-3]
1. The Sixth Amendment grants an accused the assistance of counsel for his defense. A
violation of this right at trial denies due process. Gideon v. Wainwright, 372 U.S. 335 (1963).
Our state constitution also provides that an accused shall be allowed to appear and defend in
person, and with counsel. . . . Nev. Const. art. 1, 8. This protection, twice enshrined in our
basic documents, may be waived if such waiver is knowingly and intelligently made. Cf.
Garnick v. Miller, 81 Nev. 372, 403 P.2d 850 (1965); Bundrant v. Fogliani, 82 Nev. 388, 419
P.2d 293 (1966). The protection of counsel, however, is not to be forced upon an accused
who voluntarily elects to represent himself unless it appears during the course of the
proceedings that counsel should be present either to advise (Hollander v. State, 82 Nev. 345,
418 P.2d 802 {1966); Hatten v. State, S3 Nev. 531
(1966); Hatten v. State, 83 Nev. 531, 435 P.2d 495 (1967); In re Dubois, 84 Nev. 562, 445
P.2d 354 (1968)) or to conduct the defense (Walker v. State, 85 Nev. 337, 455 P.2d 34
(1969)).
[Headnotes 4, 5]
The words of our constitution, to appear and defend in person, and with counsel do not
mean that a defendant is entitled to have his case presented in court both by himself and by
counsel acting at the same time or alternatively at the defendant's pleasure. If the defendant
elects to have counsel, he has no right to represent himself. Conversely, if he has intelligently
declined the aid of counsel, he may not interrupt trial to demand counsel, nor later complain
that he was not represented by counsel. People v. Mattson, 336 P.2d 937 (Cal. 1959). The
record does not intimate that the defendant should not have been allowed to decline counsel
and represent himself. His right to the assistance of counsel was not violated.
[Headnote 6]
His election to represent himself inevitably increased the court's burden to insure a fair
trial. Garner v. State, 78 Nev. 366, 374 P.2d 525 (1962). The court was particularly sensitive
to its obligation. It cautioned the prosecutor not to take advantage and informed the defendant
of his right to question and challenge jurors, to subpoena and examine witnesses, to argue his
case, and other matters. Indeed, it is not contended that the court acted otherwise than with
full appreciation of inherent problems caused by the defendant's choice to represent himself.
2. The police were alerted that a burglary was to occur and were staked out awaiting the
arrival of the burglars. The defendant attempted to ascertain the identity of the informer, and
the court sustained the prosecutor's objection to this effort.
[Headnote 7]
As a general proposition, when the informer is a material witness on the issue of guilt and
the accused seeks disclosure on cross-examination, the state must either disclose his identity
or incur a dismissal. Roviaro v. United States, 353 U.S. 53, 60-61 (1957); People v. Perez,
401 P.2d 934 (Cal. 1965); State v. Cortman, 446 P.2d 681 (Ore. 1968). On balance, the
problem is one of protecting the necessary flow of information against the accused's right to
prepare his defense. Whether nondisclosure is error must depend upon the particular
circumstances of each case. Roviaro v. United States, id. at 62.
[Headnote 8]
The record does not hint that the informer might have been a material witness on the issue
of guilt. He had merely informed the police that a burglary was to occur. Acting upon that
information the police staked out the premises and apprehended the defendant. The defendant
was on trial because of his acts witnessed by the police who were on the scene. He was not on
trial because of prior information received. Adams v. State, 81 Nev. 524, 530, 407 P.2d 169
(1965). The court did not err.
[Headnote 9]
3. A police officer, when asked if he had known the defendant before said, Yes, I had
several occasions to investigate him. The response was given in the context of a question
directed to the issue of identification. No further elaboration was elicited. We have found no
case declaring such a response to be error in this context, nor do we find it to be such.
[Headnote 10]
4. During his closing summation the prosecutor stated, I am going to ask the defendant . .
. why the tools, why the careful planning? This was not a comment upon the defendant's
failure to testify, but rather a rhetorical question really directed to the jury. Cf. Fernandez v.
State, 81 Nev. 276, 402 P.2d 38 (1965). Tools were carried by the defendant, and the fact of
planning was implicit. The prosecutor's rhetorical question bore directly upon a central
issuewhether the defendant entered the premises unlawfully with intent to commit larceny.
Affirmed.
____________
86 Nev. 507, 507 (1970) Dougherty v. State
MICHAEL HUGH DOUGHERTY, Appellant, v.
No. 6077
June 22, 1970 471 P.2d 212
Appeal from judgment of conviction of the Fifth Judicial District Court, Nye County;
Kenneth L. Mann, Judge.
Defendant was convicted in the district court of possession of marijuana, and he appealed.
The Supreme Court, Thompson, J., held that refusal to instruct jury that knowledge of
narcotic character of marijuana was element of charged crime required reversal.
narcotic character of marijuana was element of charged crime required reversal.
Reversed.
David C. Polley, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, of Carson City, and William P. Beko, District
Attorney, Nye County, for Respondent.
1. Poisons.
Knowledge of narcotic character of marijuana is element of crime of possession of marijuana. NRS
453.020, 453.030.
2. Criminal Law.
Accurate instruction upon basic elements of offense charged is essential, and failure to so instruct
constitutes reversible error.
3. Poisons.
State must prove, as element of offense of possession of marijuana, that defendant had knowledge of
narcotic nature of marijuana. NRS 453.020, 453.030.
4. Criminal Law.
In a prosecution for possession of marijuana, requirement that state prove, as element of the offense,
defendant's knowledge of narcotic character of marijuana does not inevitably require proof of other
offenses and, in those cases where such proof is not needed, trial court, in its discretion, should rule out that
evidence since its prejudicial effect would outweigh probative value, but in cases where knowledge is not
otherwise established, evidence should be received and jury given an appropriate limiting instruction as to
its purpose.
5. Criminal Law; Poisons.
Trial court's refusal to instruct jury that knowledge of narcotic character of marijuana was element of
charged crime of possession of marijuana required reversal. NRS 453.020, 453.030.
OPINION
[Headnotes 1, 2]
A jury convicted Dougherty of possession of marijuana. At issue is whether reversible
error occurred when the trial court declined to instruct the jury that knowledge of the narcotic
character of marijuana is an element of the crime charged. Although the statute upon which
the charge was based, NRS 453.030, and the preceding section, NRS 453.020, do not require
such knowledge as an element, controlling case precedent does. Wallace v. State, 77 Nev.
123, 359 P.2d 749 {1961).
(1961). Overton v. State 78 Nev. 198, 370 P.2d 677 (1962); Fairman v. State, 83 Nev. 137
425 P.2d 342 (1967); Fairman v. Warden, 83 Nev. 332, 431 P.2d 660 (1967); Woerner v.
State, 85 Nev. 281, 453 P.2d 1004 (1969); Mayer v. State, 86 Nev. 466, 470 P.2d 420 (1970).
An accurate instruction upon the basic elements of the offense charged is essential, and the
failure to so instruct constitutes reversible error. Harvey v. State, 78 Nev. 417, 375 P.2d 225
(1962).
[Headnotes 3-5]
The respondent acknowledges our case law and asks that we overrule it and follow the
statute. The judicial addition of a new element (knowledge of the narcotic character of
marijuana) apparently was occasioned by the desire to allow the prosecutor to offer evidence
of other narcotic offenses and thereby advance his goal of conviction. The cited cases each
concern the admissibility of such evidence, and approve admissibility to show knowledge of
narcotic character. With commendable candor, the prosecutor in this case suggests that such
proof should not be received because of its prejudicial effect, and insists that it is probative of
nothing since the possession statute does not require knowledge of the narcotic nature as an
element of the offense. His argument is not without substance. However, we are not
persuaded to accept it. In our judgment this problem is best handled at the trial level. We
perceive no harm in the requirement that the state prove, as an element of the offense, the
defendant's knowledge of the narcotic character of marijuana. This does not inevitably require
proof of other offenses. In those cases where such proof is not needed, the trial court, in its
discretion, should rule out that evidence since its prejudicial effect would outweigh probative
value. Tucker v. State, 82 Nev. 127, 130, 412 P.2d 970 (1966). In cases where knowledge is
not otherwise established, the evidence should be received, and the jury given an appropriate
limiting instruction as to its purpose. Cf. Wallace v. State, supra, at 126.
Reversed.
____________
86 Nev. 510, 510 (1970) Bush v. State
MAXIE BERNARD BUSH Jr. aka JAMES WILLIAM PATTERSON, Appellant, v. THE
No. 6099
June 22, 1970 471 P.2d 207
Appeal from robbery conviction, Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Defendant was convicted before the district court of robbery, and he appealed. The
Supreme Court held that United States Supreme Court decision limiting search incident to
arrest to immediate person and area within arrestee's reach applies only to searches conducted
subsequent to date of opinion.
Affirmed.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, and Lorin
P. Parraguirre, Deputy District Attorney, Clark County, for Respondent.
Courts.
United States Supreme Court decision limiting search incident to arrest to immediate person and area
within arrestee's reach applies only to searches conducted subsequent to date of opinion.
OPINION
Per Curiam:
On appeal Maxie Bush alleges that the search of the auto on June 5, 1969 which occurred
immediately after his arrest was improper under Chimel v. California, 395 U.S. 752 (1969).
Just recently this court in Derouen v. Sheriff, 85 Nev. 637, 461 P.2d 865 (1969), held that the
rule in Chimel was to have only prospective application, therefore, any search occurring prior
to the announcement of the Chimel decision on June 23, 1969 is to be governed by the case
law existing at that time. Williams v. United States, 418 F.2d 159, 162 (9th Cir. 1969);
People v. Edwards, 458 P.2d 713, 720 (Cal. 1969). As a result the search in this case was in
all respects proper and the conviction will be affirmed. Johnson v. State, 86 Nev. 52, 464
P.2d 465 {1970); Robertson v. State, S4 Nev. 559, 445 P.2d 352 {196S); People v. Bauer,
461 P.2d 637 {Cal.
86 Nev. 510, 511 (1970) Bush v. State
P.2d 465 (1970); Robertson v. State, 84 Nev. 559, 445 P.2d 352 (1968); People v. Bauer, 461
P.2d 637 (Cal. 1969).
Affirmed.
____________
86 Nev. 511, 511 (1970) Logan v. Warden
VALERIA MARTELL LOGAN, Appellant, v. WARDEN
and STATE OF NEVADA, Respondents.
No. 6034
June 23, 1970 471 P.2d 249
Appeal from the First Judicial District Court, Douglas County; Richard L. Waters, Jr.,
Judge.
Habeas corpus proceeding. The district court denied the application, and petitioner
appealed. The Supreme Court, Collins, C. J., held that considering evidence at preliminary
hearing that defendant struck truck completely off traffic lane and in area marked for parking,
information alleging that defendant while intoxicated and by reason of intoxication drove in
such negligent manner as to cause death of passenger was sufficient against challenge on
habeas corpus.
Affirmed.
Richard C. Minor, of Reno, for Appellant.
Harvey Dickerson, Attorney General; John Chrislaw, District Attorney, and Howard D.
McKibben, Deputy District Attorney, Douglas County, for Respondents.
1. Habeas Corpus.
Reduced standard applies in determining sufficiency of indictment or information in habeas corpus
proceeding. NRS 34.360 et seq., 177.315 et seq., 484.040.
2. Habeas Corpus.
In determining whether indictment or information provides adequate due process notice of crime charged
to enable defendant to plead or defend, Supreme Court in habeas corpus proceeding looks not only to
pleading but also to transcript of preliminary hearing or grand jury session. NRS 171.198, subds. 1, 6,
172.215, 172.225.
3. Habeas Corpus.
Considering evidence at preliminary hearing that defendant failed to keep her vehicle within traffic lane
of roadway and struck truck completely off traffic lane and in area marked for parking, information
alleging that defendant while intoxicated and by reason of intoxication drove in such negligent manner as
to cause death of passenger was sufficient against challenge on habeas corpus.
death of passenger was sufficient against challenge on habeas corpus. NRS 171.198, subds. 1, 6,
172.215, 172.225, 484.040, 484.055, subd. 1(c).
OPINION
This is an appeal from denial of an application for habeas corpus in the lower court. We
affirm that order.
On March 27, 1969, at approximately 4:20 a.m., an automobile driven by appellant, in
which her husband was a passenger, collided with the left rear of a large semi-trailer truck
parked in front of the Sierra Motel, Gardnerville, Nevada. The truck and trailer were legally
parked next to the curb within the lined parking area and out of the traveled portion of the
highway. Her husband was killed. Blood alcohol tests showed a percentage of .255 for
appellant and .357 for her husband.
1

Appellant was arrested and charged with a violation of NRS 484.040.
2
Following a
preliminary hearing, appellant was held to answer in the district court. An information was
filed,
3
she was arraigned thereon, and on the date set for trial, with advice of counsel,
entered a plea of guilty and was sentenced to the penitentiary.
[Headnote 1]
Following the rendition of our opinion in Anderson v. State, 85 Nev. 415, 456 P.2d 445
(1969), appellant for the first time sought to challenge the sufficiency of the information in
charging a crime under NRS 4S4.040 by filing an application for habeas corpus.4
____________________

1
NRS 484.055(1)(c) established a presumption of being under the influence when the blood alcohol
percentage is .15 or more.

2
NRS 484.040 reads: 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 by imprisonment in the state prison for 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.

3
That the said defendant on the 27th day of March, A. D. 1969, or thereabout, and before the filing of this
information, at and within the County of Douglas, State of Nevada, did wilfully, unlawfully and feloniously and
while under the influence of intoxicating liquor or while intoxicated and who by reason of such intoxication or
condition did drive a motor vehicle in such a negligent manner as to cause the death of ROBERT LOGAN, said
operation having occurred in the Town of Gardnerville, East Fork Township, County of Douglas, State of
Nevada.
charging a crime under NRS 484.040 by filing an application for habeas corpus.
4

The single issue for our decision is this: Whether the information filed in this case was
sufficient to charge a crime under NRS 484.040?
1. In several recent opinions we have held that when an information (or indictment) is
challenged for sufficiency for the first time after conviction, a reduced standard will be
applied in making that test. Larsen v. State, 86 Nev. 451, 470 P.2d 417 (1970); Laney v.
State, 86 Nev. 173, 466 P.2d 666 (1970). See also Garnick v. District Court, 81 Nev. 531, 407
P.2d 163 (1965); State v. Hurley, 66 Nev. 350, 210 P.2d 922 (1949); State v. Raymond, 34
Nev. 198, 117 P. 17 (1911); State v. Hughes, 31 Nev. 270, 102 P. 562 (1908); State v.
Lovelace, 29 Nev. 43, 83 P. 330 (1906).
[Headnote 2]
2. In determining whether an information (or indictment) provides adequate due process
notice of the crime charged to enable a defendant to plead or defend, this court will look not
only to the pleading but also to the transcript of the preliminary hearing or the Grand Jury
session. See People v. Anderson, 361 P.2d 32 (Cal. 1961); People v. Roberts, 254 P.2d 501
(Cal. 1953); People v. Johnson, 40 Cal.Rptr. 711 (Dist.Ct. App. 1964).
The basis for the California rule is that each defendant is entitled to a copy of the
preliminary hearing transcript or the Grand Jury proceedings and knows what the State
intends to prove at trial. In Nevada a defendant has access as a matter
____________________

4
Appellant's petition did not purport to be in the nature of a postconviction procedure act application pursuant
to NRS 177.315 et seq. Therefore, since the 1969 legislature removed all reference to habeas corpus in the
post-conviction procedure act (ch. 87, [1969] Stats. of Nev. 106-08), and all reference to the post-conviction
procedure act in the habeas corpus statute (Id. at 106), we will assume the petition was a petition for a writ of
habeas corpus under NRS 34.360 et seq.
Both parties to this appeal have proceeded on the assumption that the issue was appropriate for habeas relief
and was to be decided by the standard used for reviewing the sufficiency of indictments and informations on
direct appeal following conviction. Consequently we have decided this case using that standard, but only
because respondent assumed this to be the appropriate standard and because it does not alter the outcome on
appeal. But, we wish to emphasize that the inquiry into the sufficiency of an indictment or information in a
habeas corpus proceeding remains that established in Ex parte Moriarity, 44 Nev. 164, 191 P. 360 (1920), and
followed in Ex parte Boley, 76 Nev. 138, 350 P.2d 638 (1960).
of right to the same transcripts. See NRS 171.198(1), requiring magistrates to employ a
reporter to take down all testimony and proceedings at a preliminary hearing; NRS
171.198(6), requiring that a copy of that transcript be furnished each defendant without
charge; NRS 172.215, requiring a reporter to be present when a Grand Jury investigates
criminal cases; and NRS 172.225, requiring that a copy of the Grand Jury proceedings be
given to a defendant at least 10 days before arraignment.
It would seem, therefore, that with the combined information provided by the charging
instrument and the transcript, a defendant would be sufficiently apprised of the nature of the
offense to adequately prepare his defense, and if not, he should challenge the sufficiency of
the information or indictment at that time. See Clay v. United States, 326 F.2d 196 (10th Cir.
1963); Laney v. State, supra; People v. Johnson, 40 Cal.Rptr. 711 (Dist.Ct.App. 1964).
[Headnote 3]
There was evidence at the preliminary hearing that appellant failed to keep her vehicle
within the traffic lane of the roadway and struck the truck-trailer rig completely off the traffic
lane and in an area marked for parking. That knowledge of what the State intended to prove,
coupled with the charge in the information that while intoxicated she did drive a motor
vehicle in such a negligent manner as to cause the death of Robert Logan is sufficient, in our
opinion, to deny her challenge.
3. But, appellant argues, Anderson v. State, supra, is direct authority for her challenge. Her
reliance is misplaced. In Anderson, appellant argued and the State conceded there was
nothing in the information, nor in the proof at trial, 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.
In an earlier Nevada case not cited in Anderson, State v. Mills, 52 Nev. 10, 279 P. 759
(1929), a challenge after conviction (similar to the challenge here) that the information failed
to charge a crime under ch. 166, 3, [1925] Stats. of Nev. 255, the predecessor to NRS
484.040, was denied by this court. In Mills, the information, in pertinent part, charged: That
C. E. Mills . . . did, then and there, wilfully, unlawfully and feloniously, while under the
influence of intoxicating liquor, and by reason of being under the influence of said
intoxicating liquor, did drive and operate a motor vehicle, to-wit: an automobile, in, along
and upon a public highway in the City of Las Vegas, County of Clark, State of Nevada, in a
dangerous and reckless manner, and . . . did, then and there, strike and collide with a
certain motor vehicle. . . ."
of Las Vegas, County of Clark, State of Nevada, in a dangerous and reckless manner, and . . .
did, then and there, strike and collide with a certain motor vehicle. . . .
This court held: We think the allegation in the information that the motor vehicle was
operated in a reckless and dangerous manner is a sufficient allegation of one of the essential
elements of this statutory offense. It includes the language of the statute, to wit, in a reckless
manner,' and is a statement of the ultimate fact denounced by the statute. It is a statement of
the general manner of the driving which is prohibited. The particular manner which
constitutes reckless driving, whether on the wrong side of the road or at excessive speed, is
merely evidence of the ultimate fact proscribed, which evidence need not be stated in an
information or indictment. The particular manner in which appellant was driving should have
been peculiarly within his knowledge, and it is therefore difficult to understand how he could
have been misled as to his defense or otherwise prejudiced by the lack of a more specific
statement in the information. 52 Nev. at 16. (Emphasis added.)
The denial of habeas corpus is affirmed.
____________
86 Nev. 515, 515 (1970) North Arlington Med. v. Sanchez Constr.
NORTH ARLINGTON MEDICAL BUILDING INC., JOHN W. ISBELL and NORMA D.
ISBELL, Appellants, v. SANCHEZ CONSTRUCTION COMPANY, Respondent.
No. 5994
June 24, 1970 471 P.2d 240
Appeal from a judgment of the Second Judicial District Court, Washoe County; John F.
Sexton, Judge.
Action on note, in which obligor filed third-party claim against corporation and its officers
and directors, alleging that corporation had assumed the note and was alter ego of the
individual defendants. The district court found officers and directors to be alter ego of
corporation and entered joint and several judgment against them, and also allowed attorney
fees and interest at rate of 8 percent on the judgment, and appeal was taken. The Supreme
Court, Batjer, J., held that wife of president of corporation was not its alter ego, where she
was only nominal officer and director with virtually no influence or control over the
corporation, owned no stock and had no right to share in any of the profits, and received
no remuneration; that president of corporation was not alter ego thereof, though he
influenced and governed it, where, inter alia, corporation was organized as investment for
minor children and was initially owned entirely by them and where there was nothing in
the record that would indicate that adherence to fiction of separate entity would sanction
fraud or promote injustice; that there was no error allowing attorney's fees; but that
interest would be reduced to amount allowed by statute.
only nominal officer and director with virtually no influence or control over the corporation,
owned no stock and had no right to share in any of the profits, and received no remuneration;
that president of corporation was not alter ego thereof, though he influenced and governed it,
where, inter alia, corporation was organized as investment for minor children and was
initially owned entirely by them and where there was nothing in the record that would
indicate that adherence to fiction of separate entity would sanction fraud or promote injustice;
that there was no error allowing attorney's fees; but that interest would be reduced to amount
allowed by statute.
Affirmed in part as modified, reversed in part.
Hawkins, Rhodes & Hawkins, and F. DeArmond Sharp, of Reno, for Appellants.
John Sanchez, of Reno, for Respondent.
Though failure of trial court to specifically find facts as required by rule may constitute reversible error,
where case was decided by trial court on deposition testimony and exhibits, Supreme Court would examine
the evidence to determine whether or not conclusions reached by trial court were clearly wrong. NRCP
52(a).
2. Corporations.
Before alter ego doctrine may be applied, corporation must be influenced and governed by person
asserted to be its alter ego, there must be such unity of interest and ownership that one is inseparable from
the other, and the facts must be such that adherence to the fiction of separate entity would sanction fraud or
promote injusticesatisfaction of each requirement being necessary.
3. Corporations.
Where wife of president of corporation was nominal officer and director, having virtually no influence or
control over it, owned no stock, had no right to share in any of the profits, and was not paid any
remuneration, she was not alter ego of the corporation and thus was not liable for its debts.
4. Corporations.
President of corporation was not its alter ego, and thus was not liable for its debts, though, inter alia, he
influenced and governed the corporation where, inter alia, corporation was organized as investment for his
minor children and was initially owned entirely by them, and where there was nothing in record which
would indicate that adherence to fiction of separate entity of corporation would sanction fraud or promote
injustice.
5. Gifts.
It would be presumed that sums deposited by parents in bank accounts for minor children were gifts that
became children's sole and separate property, and burden was on party contending
otherwise to establish by certain and convincing evidence that the sums remained the
property of parents.
and separate property, and burden was on party contending otherwise to establish by certain and
convincing evidence that the sums remained the property of parents. NRS 167.040.
6. Gifts.
Fact that father of minor children was able to withdraw sums deposited in bank accounts for minor
children and purchase securities therewith in children's names was not sufficient to divest the children of
ownership.
7. Corporations.
Undercapitalization, where it is clearly shown, is an important factor in determining whether doctrine of
alter ego should be applied, but, in absence of fraud or injustice to aggrieved party, it is not absolute
ground for disregarding corporate entity, and it is incumbent upon the one seeking to pierce the corporate
veil to show by preponderance of the evidence that the financial setup of the corporation is only a sham and
caused injustice.
8. Corporations.
In action wherein it was asserted that corporation was alter ego of its officers and directors, so that such
individuals were liable for its debts, it could not be inferred from fact that corporation ultimately defaulted
on its obligations that it was initially inadequately financed.
9. Corporations.
Failure to deliver stock certificates and to hold formal meetings are factors which may be considered in
determining whether alter ego doctrine should be applied, but are not conclusive.
10. Interest.
Allowance of 8 percent interest on judgment in favor of obligor against corporation which had assumed
note was erroneous, and would be reduced to amount allowed by statute.
11. Bills and Notes.
In successful third-party action by obligor against corporation which assumed note, there was no error
allowing obligor attorney's fee.
OPINION
This appeal is from a joint and several judgment entered against two officers and directors
and the corporation, resulting from a conclusion by the trial court that the corporation was
their alter ego.
In the month of September, 1961, Vogue Properties, Inc., purchased a parcel of property
located at 674 North Arlington Street, Reno, Nevada, from Robert and Wallace Byassee. Part
of the purchase price was a note for $12,000 made by Vogue, which was secured by a first
deed of trust on the property. On July 31, 1962, Sanchez Construction Company, hereinafter
referred to as Sanchez, or the respondent, acquired the Arlington property from Vogue and
assumed the Byassee note.
In October of 1962, Sanchez granted to Isbell Industries, Inc., a Nevada corporation, an
option to purchase the Arlington property.
Isbell Industries exercised its option on January 14, 1963. On January 17, 1963, North
Arlington Medical Building, a Nevada corporation, hereinafter referred to as North Arlington,
as the nominee of Isbell Industries, entered into an escrow for the purchase of the Arlington
property. On January 23, 1963, the property was conveyed by Sanchez to North Arlington.
Sanchez received as the net proceeds of the sale the sum of $10,672.62.
North Arlington was officially incorporated on January 23, 1963. The first officers were
John W. Isbell, President; John W. Isbell, Jr., Secretary; Norma D. Isbell, Vice-President and
Treasurer. They were also the only directors.
On January 30, 1963, 71 shares of the capital stock of North Arlington were issued to
Suzanne K. Isbell, and 71 shares to William Christopher Isbell, the minor children of John W.
Isbell and Norma D. Isbell. William and Suzanne Isbell each paid $7,100 to North Arlington
for their stock, but the shares of stock were not physically delivered to them. This money
came from their savings accounts at Nevada Bank of Commerce, which were created by gifts
to them from their parents.
John W. Isbell testified that North Arlington was originally conceived to be used to
acquire the Arlington property for the purpose of the construction of a medical building as an
investment for his minor children. As president he managed North Arlington, however,
Norma D. Isbell never owned stock in North Arlington and did not participate in managing
the corporation.
In order to construct a building on the real property, North Arlington obtained a
construction loan from the Nevada Bank of Commerce in the amount of $102,000. That loan
was secured by a deed of trust on the property to which the deed of trust securing the
obligation owed to Robert and Wallace Byassee was subordinated. In addition, the Nevada
Bank of Commerce required John W. Isbell to personally guarantee the loan.
The contract for the construction of a building on the Arlington property was let to Isbell
Industries. John W. Isbell was the president of Isbell Industries. Glen Williams supervised the
construction of the building on the Arlington property for Isbell Industries. During the course
of construction, progress payments to Isbell Industries were handled by North Arlington
through the Nevada Bank of Commerce.
About the time the building was being completed, and for a period of time thereafter,
Isbell Industries advanced funds to North Arlington which were used to finish the building,
pay taxes, and the interest on the construction loan. These advances created an account
receivable on the books of Isbell Industries from North Arlington. John W. Isbell had
advanced funds to North Arlington which it used to pay its debts. For these funds he received
61 shares of stock in North Arlington. On behalf of North Arlington, he also personally
repaid to Isbell Industries the funds which it had advanced.
Unable to lease or sell the building, North Arlington defaulted on the note to Nevada Bank
of Commerce. A notice of breach and election to sell under the deed of trust was recorded
February 15, 1967. In due course, the foreclosure was completed. In the meantime, the note to
Robert and Wallace Byassee lapsed into default, so they commenced an action against Vogue
and Sanchez for the unpaid balance. Sanchez then filed a third party claim against North
Arlington and John W. Isbell, Norma D. Isbell and John W. Isbell, Jr.,
1
alleging that the
corporation had assumed the Byassee note when it acquired the North Arlington property
from Sanchez Construction Company, and that the corporation was the alter ego of the
individual defendants. Sanchez stipulated with Byassee that judgment could be entered
against it in the amount of $9,611.73.
The third party complaint was tried before the district court, without a jury, upon the
depositions appearing in the record. The trial court found John W. Isbell and Norma D. Isbell
to be the alter ego of North Arlington and entered a joint and several judgment against all of
them, and also allowed attorney fees and interest at the rate of 8 percent per annum on the
judgment.
The appellants contend that the trial court erred in (1) concluding that North Arlington
Medical Building, Inc., is the alter ego of John W. and Norma D. Isbell; (2) in allowing
interest at the rate of 8 percent per annum, and (3) in allowing the respondent an attorney's
fee.
We agree that the trial court erred when it found North Arlington to be the alter ego of
John W. and Norma D. Isbell.
[Headnote 1]
The respondent, Sanchez, argues that the evidence set forth in the deposition testimony
supports the findings of the trial court.
____________________

1
John W. Isbell, Jr., was never served with process, and never appeared in the action.
court. Here the trial court made no findings of fact, but instead only reached the conclusion
that John W. and Norma D. Isbell were the alter ego of North Arlington. The failure to
specifically find facts as required by NRCP 52(a)
2
can constitute reversible error. Lagrange
Construction Inc. v. Del E. Webb Corp., 83 Nev. 524, 435 P.2d 515 (1967). Because this case
was decided by the trial court on deposition testimony and exhibits, we have the same
evidence before us that was reviewed by the trial court. Rather than reverse for failure to
comply with NRCP 52(a), we have examined the evidence to determine whether or not the
conclusions reached by the trial court were clearly wrong. Garaventa v. Gardella, 63 Nev.
304, 169 P.2d 540 (1946); Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98 (1961); Finnell v.
Bromberg, 79 Nev. 211, 381 P.2d 221 (1963); cf. Adams v. Lawson, 84 Nev. 687, 448 P.2d
695 (1968).
[Headnote 2]
In Baer v. Amos J. Walker, Inc., 85 Nev. 219, 452 P.2d 916 (1969), we said: 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. In McCleary Cattle Co. v. Sewell, 73 Nev. 279, 317 P.2d 957
(1957), this court adopted from Minifie v. Rowley, 202 P. 673 (Cal. 1921), the following
requirements for the application of the alter ego doctrine: (1) The corporation must be
influenced and governed by the person asserted to be its alter ego. (2) There must be such
unity of interest and ownership that one is inseparable from the other. (3) The facts must be
such that adherence to the fiction of separate entity would, under the circumstances, sanction
a fraud or promote injustice.
Each of these requirements must be present before the alter ego doctrine can be applied.
____________________

2
NRCP 52(a): In all actions tried upon the facts without a jury or with an advisory jury, the court shall find
the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate
judgment; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of
fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for
purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given
to the opportunity of the trial court to judge of the credibility of the witnesses. The findings of a master, to the
extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum
of decision is filed, it will be sufficient if the findings of fact and conclusions of law specifically appear as such
therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or
any other motion.
ego doctrine can be applied. Hollywood Cleaning & Press. Co. v. Hollywood L. Service, 17
P.2d 709 (Cal. 1932); Continental Securities and Investment Co. v. Rawson, 280 P. 954 (Cal.
1929); Minifie v. Rowley, supra; Erkenbrecher v. Grant, 200 P. 641 (Cal. 1921).
[Headnote 3]
It is admitted that John W. Isbell, as president, completely influenced and managed North
Arlington. On the other hand, Norma D. Isbell, as a nominal officer and director, had virtually
no influence or control over that corporation. In no way did she govern it. She owned no
stock; had no right to share in any of the profits; nor was she paid a salary or any other
remuneration. There was absolutely no unity of interest or ownership between Norma and
North Arlington. She was not the alter ego of the corporation. Riddle v. Leuschner, 335 P.2d
107 (Cal. 1959).
[Headnote 4]
Although John W. Isbell influenced and governed North Arlington, there is no such unity
of interest and ownership between him and the corporation that their identities are
inseparable.
[Headnotes 5, 6]
At the outset, when North Arlington was formed and Sanchez conveyed the real property
to the corporation, all the stock was owned by William Christopher Isbell and Suzanne K.
Isbell. The corporation was organized as an investment for them. The funds used to pay for
the stock were withdrawn from bank accounts previously created by accumulated gifts. It
must be presumed that the sums deposited in the bank accounts for the minor children were
gifts that became their sole and separate property. Cf. NRS 167.040. The burden was on
Sanchez to establish by certain and convincing evidence that the sums were not perfected
gifts, but remained instead the property of John W. Isbell. This Sanchez has failed to do. The
fact that John W. Isbell was able to withdraw these sums and purchase North Arlington stock
is not sufficient to divest the minor children of ownership. Fister v. Fister, 222 P.2d 620
(Colo. 1950); Steiner v. Lawson, 219 N.E.2d 121, (Ill.App. 1966); Kelsey v. Anderson, 421
P.2d 163 (Wyo. 1966).
The respondent contends that a valid reason for envoking the doctrine of alter ego was
because North Arlington was undercapitalized. Rosen v. Losch, Inc., 44 Cal.Rptr. 377
(Cal.App. 1965).
[Headnote 7]
Undercapitalization, where it is clearly shown, is an important factor in determining
whether the doctrine of alter ego should be applied. However, in the absence of fraud or
injustice to the aggrieved party, it is not an absolute ground for disregarding a corporate
entity. In any event it is incumbent upon the one seeking to pierce the corporate veil, to show
by a preponderance of the evidence, that the financial setup of the corporation is only a sham
and caused an injustice. Carlesimo v. Schwebel, 197 P.2d 167 (Cal.App. 1948); Arnold v.
Phillips, 117 F.2d 497 (CA 5 Tex. 1941); Hanson v. Bradley, 10 N.E.2d 259 (Mass. 1937); cf.
Tropic Builders Ltd. v. Naval Ammunition Depot, 402 P.2d 440 (Hawaii 1965).
[Headnote 8]
Here, Sanchez attempts to infer from the ultimate result that North Arlington was
inadequately financed. However, the record is devoid of evidence going to show this to be
true, and more important the respondent failed to show any causal connection between the
financing and the inability to pay the Byassee note, or how it sanctioned a fraud or promoted
an injustice.
[Headnote 9]
The respondent further contends that because stock certificates were written up but not
delivered, and formal meetings were not held, that the trial court properly pierced the
corporate veil.
3
These contentions may be factors to be considered by a trial court,
however, the record here does not reveal in what manner they sanctioned a fraud or
promoted an injustice towards the respondent.
____________________

3
8 ALR3d 1130, footnote 2: In Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal App 2d 825,
26 Cal Rptr 806, the court included a list of factors, with supporting cases, mentioned by the courts in
determining whether or not to disregard the corporate entity. The factors listed were as follows: commingling of
funds and other assets, failure to segregate funds of the separate entities, and the unauthorized diversion of
corporate funds or assets to other than corporate uses; the treatment by an individual of the assets of the
corporation as his own; the failure to obtain authority to issue stock, or to subscribe to or issue stock; the holding
out by an individual that he is personally liable for the debts of the corporation; the failure to maintain minutes
or adequate corporate records, and the confusion of the records of the separate entities; identical equitable
ownership in the two entities; the identification of the equitable owners thereof with the domination and control
of the two entities; identification of the directors and officers of the two entities in the responsible supervision
and management; sole ownership of all of the stock in a corporation by one individual or the members of a
family; the use of the same office or business location; the employment of the same employees and/or attorney;
the failure to capitalize a corporation adequately; the total absence of corporate assets, and undercapitalization;
the use of the corporation as a mere
by a trial court, however, the record here does not reveal in what manner they sanctioned a
fraud or promoted an injustice towards the respondent.
Although, the sale of the real property to North Arlington resulted in a very unprofitable
venture for Sanchez, we find nothing in the record that would indicate that adherence to the
fiction of the separate entity of North Arlington would sanction a fraud or promote injustice.
The requirements of McCleary Cattle Co. v. Sewell, supra, have not been met. The trial court
reached an erroneous conclusion when it found the North Arlington Medical Building, Inc., to
be the alter ego of John W. Isbell and Norma D. Isbell.
[Headnotes 10, 11]
The respondent admits that it was error for the trial court to allow interest in the amount of
8 percent per annum on the judgment and consents that it be reduced to the amount allowed
by statute. We find no merit in the appellants' contention that the trial court erred in allowing
the respondent an attorney's fee.
The judgment is reversed as it pertains to John W. Isbell and Norma D. Isbell. The
judgment against North Arlington Medical Building, Inc., is affirmed, save and except the
award of interest which is reduced from 8 percent to 7 percent per annum.
____________________
shell, instrumentality, or conduit for a single venture or the business of an individual or another corporation; the
concealment and misrepresentation of the identity of the responsible ownership, management, and financial
interest, or concealment of personal business activities; the disregard of legal formalities and the failure to
maintain arm's length relationships among related entities; the use of the corporate entity to procure labor,
services, or merchandise for another person or entity; the diversion of assets from a corporation by or to a
stockholder or other person or entity, to the detriment of creditors, or the manipulation of assets and liabilities in
another; the contracting with another with intent to avoid performance by use of a corporate entity as a shield
against personal liability, or the use of a corporation as a subterfuge in illegal transactions; and the formation and
use of a corporation to transfer to it the existing liability of another person or entity.
____________
86 Nev. 524, 524 (1970) Close v. Isbell Construction Co.
HELEN CLOSE, Appellant, v. ISBELL CONSTRUC-
TION CO., a Nevada Corporation, Respondent.
No. 6013
June 24, 1970 471 P.2d 257
Appeal from the Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Suit to foreclose mechanic's lien for labor and materials furnished in construction of a
trailer park, wherein owner of park counterclaimed for damages from improper performance.
The district court entered judgment on net verdict in favor of lienor and owner appealed. The
Supreme Court, Collins, C. J., held that where lienor based action on quantum meruit and
owner of park alleged existence of contract or agreement and sought damages for breach,
recovery based upon express contract would be sustained and trial court properly awarded
interest to lienor on judgment from date of last billing.
Affirmed.
Peter Echeverria and E. A. Hollingsworth, of Reno, for Appellant.
Bible, McDonald, Carano & Wilson, of Reno, for Respondent.
1. Interest; Mechanics' Liens.
Where mechanic's lienor suing to foreclose lien for labor and materials furnished in construction of a
trailer park based action on quantum meruit and owner of park alleged existence of contract or
agreement and sought damages for breach, recovery based upon express contract would be sustained and
trial court properly awarded interest to lienor on judgment from date of last billing. NRCP 15(b).
2. Interest.
Jury verdict for exact amount of last billing by mechanic's lienor for materials and labor furnished in
construction of trailer park warranted trial court in concluding that money became due at time of last billing
and interest was properly awarded from date of last billing.
3. Mechanics' Liens.
Allowing amendment of judgment, after proof to the court on claim of mechanic's lienor for labor and
materials furnished in construction of trailer park and after proof on claim of owner of park for damages for
improper performance, providing for enforcement of lien was not error on theory that owner of park had
right to jury trial with respect to mechanics' lien foreclosure. NRCP 38(a), 39(c); Const. art. 1, 3.
Statutory provision that lien claim may be amended in case of immaterial variance between lien and proof
is directory only and does not require such amendment.
and does not require such amendment. NRS 108.060, 108.090, 108.100, subd. 1.
No substantial variance existed between proof on which foreclosure of mechanics' lien was granted and
lien claim for labor and materials furnished in construction of trailer park. NRS 108.060, 108.090,
108.100, subd. 1.
Failure properly to plead in the complaint that one has followed statutes strictly must be taken advantage
of by way of motion before issues are joined at trial, or objection is deemed waived. NRS 108.060,
108.090, 108.100, subd. 1.
Mechanic's lienor was prevailing party in lien foreclosure action even though jury reduced from
$131,019.07 to $57,059.04 the amount of the claimed lien, and owner of project against which claim of
lien was made was not the prevailing party and was not entitled to award of attorney fees. NRS 108.170.
OPINION
This is an appeal from a judgment in favor of respondent (plaintiff below) and from an
order denying appellant's motion to alter and amend that judgment. We affirm in all respects.
Appellant, Helen Close, owned a parcel of land in Reno upon which she desired to
construct a trailer park. Respondent, Isbell Construction Co., on April 24, 1965, submitted a
bid form to Close for that work, proposing to furnish labor and materials in accordance with
written specifications, for a lump sum of $96,586.85. Close, in writing, accepted the bid.
Additional or extra work was done by Isbell for Close on her written order. On October 18,
1965, Isbell billed Close for $131,019.07, to which she objected. A conference was held, and
on November 15, 1965, the billing was reduced to $119,750.
Close failed to pay the latter sum, and on January 26, 1966, Isbell filed a mechanics lien in
the recorder's office. Close was served a copy the next day. Isbell filed suit on February 7,
1966. Close counterclaimed, alleging Isbell had failed to perform the terms of their agreement
in a diligent, skillful, and workmanlike manner; that she lost rentals because the trailer spaces
were not ready when agreed; that she suffered further loss because Isbell's lack of diligence
disrupted the work of other contractors on the project. Close sought damages amounting to
$97,573.59.
The Isbell claim and the Close counterclaim were tried before a jury, which, on May 15,
196S, returned verdicts in favor of Isbell for $119,750 {the exact sum of the November 15
billing) and in favor of Close on her counterclaim for $62,690.96, or a net verdict in
Isbell's favor of $57,059.04.
before a jury, which, on May 15, 1968, returned verdicts in favor of Isbell for $119,750 (the
exact sum of the November 15 billing) and in favor of Close on her counterclaim for
$62,690.96, or a net verdict in Isbell's favor of $57,059.04.
On October 16, 1968, after considering briefs on the issue from both parties, the lower
court made an award of interest as of November 15, 1965, on the net judgment.
A motion by Close for award of an attorney's fee against Isbell on the ground she was the
prevailing party in the foreclosure of the mechanics lien issue was denied by the lower court
on October 25, 1968, and judgment was entered on November 20, 1968.
On December 2, 1968, Close filed a motion to alter or amend judgment on the grounds
that the judgment was for money due under a contract while Isbell had based its action on
quantum meruit and had also failed to perfect its mechanics lien. On December 13, 1968, she
moved to discharge the mechanics lien on the ground that the judgment awarded Isbell only a
personal judgment against Close. Isbell countered the foregoing motions March 27, 1969, and
moved to foreclose the mechanics lien. On May 14, 1969, the court below denied Close's
motion to alter and amend the judgment and granted Isbell leave to amend the judgment to
provide for enforcement of it under the mechanics lien provisions, denied Close's motion to
discharge the mechanics lien, and denied Isbell's motion to foreclose the lien for the reason
that it had been within the issues and pleadings and no specific ruling thereon was deemed
necessary.
The issues presented for our decision are these:
I. Whether the trial court properly awarded interest on its judgment from November 15,
1965, the date of the last billing?
II. Whether respondent properly perfected and proved its right to a mechanics' lien?
III. Whether attorney fees should have been awarded to appellant because she was the
prevailing party?
1. Appellant contends the court below erred in allowing interest, for the reasons that the
sum was not liquidated until the jury made its award May 15, 1965, and, because respondent
only alleged an action in quantum meruit and not an action based on a contract, the amount
due was not definitely ascertainable by mere mathematical calculation and could only be
ascertained by proof at trial.
However, the record in this case shows that Close alleged the existence of a contract in her
answer and cross-complaint, and attached a signed copy of the basic contract to those
pleadings.
and attached a signed copy of the basic contract to those pleadings. The contract was admitted
in evidence, as well as an extra work order signed by her.
Counsel for Close, in his opening statement, repeatedly referred to the contract or
agreement, and indicated he would prove a breach when he said: For these and other
matters that will occur during the course of the trial, it is the defendant's position in this case
that the plaintiffs have not performed their contract, and, failing to have performed that
contract, they are not entitled to any remedy or damages or judgment against Miss Close for
the contract, until such time as it is completed.
Close admitted signing the proposal bid from Isbell and an additional work authorization.
She also wrote a letter to Isbell which read: Extra work was authorized to expedite work on
the Posie Post Trailer Inn that was contracted by your firm.
Will you kindly bill in full as of today and continue as per original contract with no
further extras.
. . .
I have no quarrel with the extra billing to date, but will not be responsible for future
extras.
[Headnote 1]
Regardless, therefore, of the allegations in Isbell's complaint, the action was tried upon a
theory of express contract. Unless Close could have demonstrated in what manner she had
been prejudiced by a variance between the pleadings and proof, and she urged none, a
recovery based upon express contract must be sustained. Burgess v. Helm, 24 Nev. 242, 51 P.
1025 (1898); Holtzman v. Bennett, 48 Nev. 274, 229 P. 1095 (1924). In United Tungsten
Corp. v. Corporation Svc., Inc., 76 Nev. 329, 353 P.2d 452 (1960), appellant claimed error in
that the action was brought on quantum meruit but the judgment was based upon an express
contract. We there said: This court has repeatedly given effect to the provisions of NRCP
Rule 15(b)
1
to the effect that when issues not raised by the pleadings are treated [sic] by
express or implied consent of the parties, they shall be treated in all respects as if they had
been raised in the pleadings and that, though the pleadings may be amended to conform to
the evidence, failure to amend does not affect the result of the trial of such issues."
____________________

1
NRCP 15(b), in pertinent part, provides: When issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.
Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise
these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend
does not affect the result of the trial of these issues.
amended to conform to the evidence, failure to amend does not affect the result of the trial of
such issues. 76 Nev. at 331. See also Whiteman v. Brandis, 78 Nev. 320, 372 P.2d 468
(1962) for the reverse of this situation, where a recovery in quantum meruit in an action on
contract was upheld.
2. In Paradise Homes v. Central Surety, 84 Nev. 109, 437 P.2d 78 (1968), we eliminated
liquidated or unliquidated tests for imposing pre-judgment interest. Arley v. Liberty Mut.
Fire Ins. Co., 85 Nev. 541, 458 P.2d 742 (1969).
In Paradise, we said, 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. 84 Nev.
at 116-117.
If the amount of money due Isbell from Close could be determined as of November 15,
1965, rather than awaiting the trial, then the amount of interest from that date was proper.
In Paradise, the court relied upon Restatement of Contracts 337(a). Comment g to that
section states: Even though a contract does not itself specify the value of the performance
that the defendant has failed to render, if that value can be determined by mathematical
calculation from a standard fixed by the contract or from established market prices of the
subject matter of the contract, interest is allowed on the amount so determined. This is true
although the extent of the performance rendered and the existence of the market prices must
be proved by evidence. The defendant had reason to foresee that a breach would deprive the
plaintiff of the value determined by such a calculation. (Emphasis added.)
The original contract set forth the basic price of $96,586.85. A review of the record in this
case shows that the billing of November 15, 1965, was based upon adequate books and
records of Isbell for all sums due for the extra work authorized by Close. Close did not
contest the accuracy or reasonableness of Isbell's billing. Instead, her defense and
counterclaim alleged, and her proof showed, the contract was not fully performed and the
performance rendered was improperly done.
[Headnote 2]
Accordingly, when the jury rendered its verdict for the exact amount of the November 15,
1965, billing, the court could properly conclude that was the time the money became due.
In accordance with Paradise, it reduced that amount by the deduction to which Close was
entitled, $62,690.96, and properly awarded pre-judgment interest on the net amount due
Isbell, $57,059.04, from November 15, 1965, at the legal rate.
[Headnote 3]
3. Close next contends the trial court erred when, following the jury verdict, it allowed
amendment of the judgment, after proof to the court, for enforcement of the lien. She
contends that because NRS 108.200(4), states that the mechanics' lien foreclosure
proceedings shall follow the Nevada Rules of Civil Procedure, NRCP 38(a),
2
guarantees her
the right of trial by jury on any issue under the Constitution of Nevada.
3
In State v. McClear,
11 Nev. 39 (1876), this court held that the constitutional right to a trial by jury has reference
to the right of trial by jury as it existed at the time of the adoption of the Constitution. . . .
The constitutional right to a jury trial was further defined in State v. Ruhe, 24 Nev. 251, 52 P.
274 (1898), where this court said, A jury cannot be claimed as of right in an equity case, or
upon an issue of law, for that is a matter purely for the court. 24 Nev. at 262. See also
Harmon v. Tanner Motor Tours, 79 Nev. 4, 20, 377 P.2d 622 (1963). The foreclosure of liens
is an equity matter, and no right to trial on equity matters existed at common law. There is no
right to a jury trial in California for mechanics' lien foreclosures. M. Marsh, California
Mechanics' Lien Law 6.65 (1965). Nor is there a right to a jury trial in mechanics' lien
foreclosures in New York. E. Marks, Jensen on the Mechanics' Lien Law 424 (4th ed.
1963).
NRCP 39(c) provides that in any action not triable of right by a jury, the court may order
the issue tried by an advisory jury, or, with the consent of all the parties, may order a trial by a
jury having the same effect as if there had been a right to trial by jury. Nothing in the record
indicates any such action by or request to the lower court. It was proper for the trial judge to
pass upon the issue as one in equity and of law.
____________________

2
NRCP 38(a) reads: The right of trial by jury as declared by the Constitution of the State or as given by a
statute of the State shall be preserved to the parties inviolate.

3
Art. 1, 3, Nev. Const. provides: The right of trial by Jury shall be secured to all and remain inviolate
forever. . . .
4. Relying on the authority of Porteous Decorative Co. Inc. v. Fee, 29 Nev. 375, 91 P. 135
(1907), Close makes a multi-pronged attack upon the lien claim, contending it did not comply
with NRS 108.060.
4

[Headnotes 4, 5]
Porteous was impliedly overruled in Milner v. Shuey, 57 Nev. 159, 60 P.2d 604 (1936),
and in Ray Heating Prods. Inc. v. Miller, 74 Nev. 124, 127, 324 P.2d 237 (1958), this court
specifically held that Milner had overruled Porteous. Isbell's lien claim
5
then must be tested
by the rule of Milner v. Shuey, supra, where it is said, [A] lien will not fail for lack of
conformity to requirements made essential by statute, unless the proof shows a substantial
variance. 57 Nev. at 168. See also NRS 108.100(1) which provides: Upon the trial of any
action or suit to foreclose such lien no variance between the lien and the proof shall defeat the
lien or be deemed material unless the same shall result from fraud or be made intentionally,
or shall have misled the adverse party to his prejudice, but in all cases of immaterial variance
the claim of lien may be amended, by amendment duly recorded, to conform to the proof."
____________________

4
NRS 108.060 requires that a lien claim must contain the following information: (a) A statement of his
demand after deducting all just credits and offsets. (b) The name of the owner or reputed owner if known. (c)
The name of the person by whom he was employed or to whom he furnished the material. (d) A statement of the
terms, time given, and conditions of his contract. (e) A description of the property to be charged with the lien
sufficient for identification.

5
Isbell's lien claim contained the following information: (a) The claim of lien, after deducting all just
offsets, is for the sum of $131,- 019.07. (b) The owner, or reputed owner of the property, against which the said
lien is claimed, or those claiming some interest therein is HELEN CLOSE. (c) Claimant was employed by
HELEN CLOSE to furnish labor and material for which said lien is claimed, and said labor was performed and
materials furnished pursuant to an agreement that claimant would furnish labor and materials in the construction
of a trailer park located at 905 Gentry Way, Reno, Washoe County, Nevada, for the total sum of $96,586.85;
that in addition, claimant performed extra work and supplied extra materials not covered by said agreement; that
the reasonable value of said extra work and materials is the sum of $34,432.22; that the entire balance in the sum
of $131,019.07 was payable upon the completion of said work. That requests for payment have been duly made
and the full sum of $131,019.07 is still due, owing and unpaid to claimant, ISBELL CONSTRUCTION
COMPANY, by reason of the performance of said labor and the furnishing of said materials. [Following was a
statement that no notice of completion pursuant to NRS 108.090 had been filed and that 90 days had not elapsed
since completion of the job. Then followed a legal description of the property as well as the street address.
Attached to the back of the Clerk's certificate is an affidavit of service of a copy of the lien claim upon Helen
Close, signed by the deputy sheriff who served her.]
amended, by amendment duly recorded, to conform to the proof. The provision that the
claim may be amended does not require such amendment, for it is directory only. Peccole v.
Luce & Goodfellow, Inc., 66 Nev. 360, 375, 212 P.2d 718 (1949); Milner v. Shuey, supra, at
168. The proof in this case does not show a substantial variance.
[Headnote 6]
Likewise, failure to properly plead in the complaint that one has followed the statutes
strictly must be taken advantage of by way of a motion before the issues are joined at trial, or
the objection is deemed waived. Skyrme v. Occidental Mill and Mining Co., 8 Nev. 219
(1873).
[Headnote 7]
5. Close's final contention that she was the prevailing party in the lien foreclosure issue
and thus entitled to award of an attorney's fee pursuant to NRS 108.170, falls with our
decision that the lower court was correct in permitting Isbell to amend the judgment to
enforce the lien. Despite the reduction from $131,019.07 to $57,059.04 in the amount of the
claimed lien because of the jury verdict, Isbell was the prevailing party. Knier v. Azores
Constr. Co., 78 Nev. 20, 368 P.2d 673 (1962).
The amended judgment of the lower court is affirmed.
____________
86 Nev. 531, 531 (1970) State v. District Court
THE STATE OF NEVADA, Petitioner, v. SECOND JUDICIAL DISTRICT COURT,
STATE OF NEVADA, COUNTY OF WASHOE, Respondent.
No. 6205
July 1, 1970 471 P.2d 224
Original proceeding in certiorari.
State brought certiorari proceeding to review order of district judge granting bail to
defendant who was a fugitive from a sister state. The Supreme Court, Mowbray, J., held that
under statute, defendant, who was charged with a capital offense in a sister state was not
entitled to bail after issuance of governor's warrant authorizing extradition.
The order of the district judge is vacated.
Thompson and Zenoff, JJ., dissented.
[Rehearing denied August 18, 1970]
Harvey Dickerson, Attorney General; Daniel R. Walsh, Chief Deputy Attorney General;
and Michael Melner, Deputy Attorney General, of Carson City, for Petitioner.
Peter Echeverria and Eli Grubic, of Reno, and Harry E. Claiborne and Annette R.
Quintana, of Las Vegas, for Respondent.
Extradition.
Under statute, fugitive charged with an offense in a sister state was not entitled to bail after issuance of
governor's warrant authorizing extradition. NRS 179.197, 179.207, 179.209; Const. art. 1, 7.
OPINION
We have been asked in this certiorari proceeding to review the order of the district judge
granting bail to Jack Van Sickle, who is a fugitive from justice from the State of California,
where he has been charged with conspiracy to murder six persons, a capital offense under
sections 182.1, 187, and 190 of the California Penal Code.
1
He was charged by criminal
complaint on December 2, 1969, in the Municipal Court, Modesto Judicial District, County
of Stanislaus, State of California, and a warrant for his arrest was issued on that date.
____________________

1
West's Ann. Cal. Penal Code 182:
If two or more persons conspire:
1. To commit any crime.
. . . .
They are punishable as follows:
When they conspire to commit any crime against the person of any official specified in subdivision 6, they
are guilty of a felony and are punishable by imprisonment in the state prison for not less than 10 years.
When they conspire to commit any other felony, they shall be punishable in the same manner and to the same
extent as is provided for the punishment of the said felony. . . .
Murder is the unlawful killing of a human being, with malice aforethought.
Every person guilty of murder in the first degree shall suffer death, or confinement in the state prison for life,
at the discretion of the court or jury trying the same, and the matter of punishment shall be determined as
provided in Section 190.1, and every person guilty of murder in the second degree is punishable by
imprisonment in the state prison from five years to life.
Judicial District, County of Stanislaus, State of California, and a warrant for his arrest was
issued on that date.
Van Sickle was apprehended in Nevada as a fugitive and was committed to jail to enable
his arrest under a warrant of the governor on a requisition of the executive authority of the
state having jurisdiction of the offense, as provided in NRS 179.207 of the Uniform
Criminal Extradition Act.
2
Since the crime with which Van Sickle was charged was
punishable by death or life imprisonment under the laws of the demanding state, California,
he was denied bail pending the issuance of the governor's warrant. NRS 179.209.
3
On
February 16, 1970, the Governor of Nevada issued an executive warrant commanding the
Nevada authorities to deliver Van Sickle to a designated California agent, so that he could be
conveyed to California to stand trial in that state.
The Uniform Criminal Extradition Act provides, however, that before such a transfer of
custody may be effected the defendant named in the extradition warrant must be taken before
a judge of a court of record, who shall inform him of his rights and, in particular, advise the
defendant that he may test the legality of his arrest by habeas, and that if he so desires, he
shall be allowed a reasonable time within which to do so before he is delivered to the agent
from the demanding state. NRS 179.197.
4
Van Sickle indicated his desire to file a habeas
petition as so provided, and he did so on March 16, 1970.
____________________

2
NRS 179.207:
If from the examination before the judge or magistrate it appears that the person held is the person charged
with having committed the crime alleged and, except in cases arising under NRS 179.189, that he has fled from
justice, the judge or magistrate must, by a warrant reciting the accusation, commit him to the county jail for such
a time, not exceeding 30 days and specified in the warrant, as will enable the arrest of the accused to be made
under a warrant of the governor on a requisition of the executive authority of the state having jurisdiction of the
offense, unless the accused gives bail as provided in NRS 179.209, or until be is legally discharged.

3
NRS 179.209:
Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life
imprisonment under the laws of the state in which it was committed, a judge or magistrate in this state may admit
the person arrested to bail by bond, with sufficient sureties, and in such sum as he deems proper, conditioned for
his appearance before him at a time specified in such bond, and for his surrender, to be arrested upon the warrant
of the governor of this state.

4
NRS 179.197:
1. No person arrested upon such warrant [governor's warrant of arrest] shall be delivered over to the agent
whom the executive authority demanding him has appointed to receive him unless he is first taken
habeas petition as so provided, and he did so on March 16, 1970. In addition, he filed a
Petition for Admission to Bail on the same day. The district judge granted the latter petition
and fixed bail in the sum of $10,000, from which order the State seeks review, claiming that
the district judge exceeded his jurisdiction in entering the order. We agree.
NRS 179.209 of the Uniform Criminal Extradition Act, supra, provides that a fugitive may
be admitted to bail in all cases, unless the offense charged is punishable by death or life
imprisonment, pending the issuance of the governor's warrant for the fugitive's arrest. The
statute makes no provision for bail after the governor has issued his warrant.
5
Van Sickle
argues, however, that the statutory mandate denying bail in extradition proceedings in capital
cases extends only until the issuance of the governor's warrant; and that therefore, regardless
of the offense charged, a fugitive may be admitted to bail. We do not agree. Although NRS
179.209 of the Uniform Criminal Extradition Act sets forth the conditions when a fugitive
may be admitted to bail during extradition proceedings, it covers only the period from the
fugitive's arrest to the issuance of the governor's warrant, and not the period thereafter. We do
not interpret such silence as an indication by the Legislature that all fugitives may, after the
issuance of the governor's warrant, be admitted to bail. If a fugitive under the Act who has
been charged with a capital crime in the demanding state may not be admitted to bail prior to
the issuance of the governor's warrant, the presumption is much stronger that bail should be
precluded after the issuance of the governor's warrant. Other jurisdictions have so held. In
Allen v. Wild, 86 N.W.2d 839, 841-842 (Iowa 1957), a case where the fugitive was arrested
on an executive warrant and admitted to bail, as in this case, the court said:
____________________
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.
3. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given
to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to
the agent of the demanding state.

5
Indeed, Van Sickle petitioned the district judge for bail after he was apprehended as a fugitive and prior to
the issuance of the governor s warrant. His request for bail was denied. NRS 179.209, supra.
executive warrant and admitted to bail, as in this case, the court said:
The right of interstate extradition is founded in Section 2, Article IV, of the Constitution
of the United States, which provides: A Person charged in any State with * * * Crime, who
shall flee from Justice, and be found in another State, shall on Demand of the executive
Authority of the State from which he fled, be delivered up, to be removed to the State having
Jurisdiction of the Crime.' Pursuant thereto, effectuating federal statutes have been adopted
and what is now Chapter 759, Code of Iowa, 1954, I.C.A. entitled, Uniform Criminal
Extradition Act, has been enacted. [Citations.]
. . . With reference to extradition, section 759.16 provides that the prisoner, unless
charged with an offense punishable by death or life imprisonment under the laws of the
demanding state, may be admitted to bail by bond. However this section is applicable only
while the person is being held to await requisition and before the warrant for his arrest is
issued by the Governor. The chapter contains no similar provision for bail after the arrest
upon such warrant. Hence it may be fairly inferred the omission of such provision was
intentional. (Emphasis added.)
The Arizona Supreme Court in Waller v. Jordan, 118 P.2d 450, 452 (Ariz. 1941), a case
analogous to the instant one, ruled:
It will be noticed that if the county attorney on behalf of the state appeals, the court may
admit the petitioner to bail pending the appeal. If, however, the petitioner appeals from the
order refusing his discharge, the statute is silent as to his right to bail. We think when the
legislature in one instance gives the right to bail pending the appeal but fails to give any right
to bail in the other instance, it is equivalent to denying the right to bail in the latter case. See
also 2 Sutherland, Statutory Construction 4915 (3d ed. 1943).
Again, in State ex rel. Stringer v. Quigg, 107 So. 409, 411 (Fla. 1926), the court held:
Authority for interstate rendition of fugitives by extradition emanates solely from the
power delegated to the federal government by the Constitution of the United States. . . .
Legislation as to interstate rendition of fugitives being within the power of Congress, the
federal law upon that subject is paramount to state Constitution and statutes. [Citation
omitted.] When the executive warrant of rendition has been issued, the fugitive is then held
solely upon that authority. His detention is not for the purpose of trying him in the courts of
this state, for he is charged with no offense against our laws, but he is apprehended and
detained for the sole purpose of rendition to the demanding state."
not for the purpose of trying him in the courts of this state, for he is charged with no offense
against our laws, but he is apprehended and detained for the sole purpose of rendition to the
demanding state.
Van Sickle argues that article 1, section 7, of the Nevada Constitution
6
is controlling in
his case and that therefore he has a constitutional right to bail.
7
This argument has been well
answered in State ex rel. Stringer, supra, 107 So. at 412, where the court ruled:
This provision of the Constitution of Florida [a provision identical to Nevada's but for the
immaterial substitution of the word except for unless], one of the greatest bulwarks of
personal liberty, should not be narrowly or illiberally construed. On the other hand, it should
not be enlarged beyond its plain sphere of operation. The quoted provision of our Declaration
of Rights, except as to those persons expressly excluded by its terms, unquestionably affords
the right to bail to all persons who are charged with or who may be convicted of crime under
the laws of the state of Florida, but in the present state of the law we do not regard its
provisions as applicable to one who is charged with an offense under the laws of another
state, and who is before the courts of this state for the sole purpose of determining the
lawfulness of his detention under an executive warrant of extradition, under which latter
process this state holds him for rendition to the demanding state, and for no other purpose.
Extradition laws are enacted upon the presumption that the demanding state will accord the
fugitive his right to bail, and all other legal rights. When a fugitive is held under executive
warrant of extradition, it is entirely appropriate and just that his right to bail be tested by the
laws of the demanding state, where he is charged with crime, and where his guilt or
innocence must be judicially determined, and not by the laws of the asylum state which holds
him solely for the purpose of rendition.
Likewise, in Waller v. Jordan, supra, the court held, 118 P.2d at 452: "Appellant points to
section 22, Article II of the state Constitution reading: 'All persons charged with crime
shall be bailable by sufficient sureties, except for capital offenses when the proof is
evident or the presumption great.' [Again, a provision identical to Nevada's but for the
immaterial substitution of the word "except" for "unless."] and insists that it gives him
the right to bail pending his appeal. . . .
____________________

6
Nevada Const., art. 1, 7:
All persons shall be bailable by sufficient sureties; unless for Capital Offenses when the proof is evident, or
the presumption great.

7
Even when a defendant is charged with a capital case in Nevada, the usual procedure is not to grant bail
until after the preliminary hearing has been held and the magistrate has had an opportunity to review the
evidence offered by the state to determine whether the proof is evident, or the presumption great. The
impracticability of such a review and determination by a Nevada magistrate when the case originates in and is
prosecuted by a sister state is patently obvious.
Appellant points to section 22, Article II of the state Constitution reading: All persons
charged with crime shall be bailable by sufficient sureties, except for capital offenses when
the proof is evident or the presumption great.' [Again, a provision identical to Nevada's but
for the immaterial substitution of the word except for unless.] and insists that it gives him
the right to bail pending his appeal. . . . It should be remembered that this provision and all
others of our constitution relating to criminal proceedings have application only to those
crimes over which the state authorities have jurisdiction by virtue of their having been
committed in the state. (Emphasis added.)
The reason for the rule has been well expressed in Buchanan v. State ex rel. Weiss, 166
So.2d 596, 597 (Fla.App. 1964):
. . . One of the reasons supporting the rule against granting bail in extradition cases where
the fugitive has been reduced to custody by the execution of a governor's rendition warrant, is
because the offense is not one cognizable in the courts of the asylum state, whereas the
demanding state has all of the facilities to determine the gravity of the offense, the amount of
bail, if any, and the conditions thereof. Here there is no restraint on the respondent's leaving
the jurisdiction. The integrity of the processes of the courts of Florida as well as the solemnity
and dignity that we should accord the request of a demanding sister state, places in jeopardy
the ability of this state to produce the prisoner for delivery to the demanding state when that
time arrives.
See also Ex parte Campbell, 23 N.W.2d 698 (Neb. 1946); Tomarchin v. Kelly, 118 So.2d
788 (Fla.App. 1960); Llerandi v. Blackburn, 97 So.2d 247 (Fla. 1957); Ex parte Massee, 79
S.E. 97 (S.C. 1913); Annot., 56 A.L.R.2d 668 (1957).
We therefore vacate the order of the district judge admitting Van Sickle to bail as having
been entered without jurisdiction.
Collins, C. J., and Batjer, J., concur.
Thompson, J., with whom Zenoff, J., concurs, dissenting:
This original proceeding in certiorari tests the power of the district court to grant bail to a
fugitive from justice charged with having committed a capital offense in a sister state.
By criminal complaint, the State of California has charged Jack Van Sickle with
conspiracy to commit murder, a capital offense. A warrant for his arrest was issued. Van
Sickle was apprehended in Nevada and committed to jail. In due course, the Governor of
Nevada issued an executive warrant directing the Nevada authorities to deliver Van Sickle to
California agents for conveyance to that state to stand trial upon the charge.
charge. In accordance with the command of the Uniform Criminal Extradition Act, Van
Sickle was taken before the court and informed of his rights, especially of his right to
challenge the legality of his arrest by habeas.
1
He did so and, in addition, petitioned for
admission to bail. His petition for bail was granted and bail fixed in the sum of $10,000. Bail
was furnished and Van Sickle released from confinement pending disposition of his challenge
to the validity of his arrest. This certiorari proceeding was then commenced by the State since
the remedy of appeal in these circumstances is not granted. Ex parte Wheeler, 81 Nev. 495,
500, 406 P.2d 713 (1965).
1. The State's challenge to the power of the district court to grant bail rests mainly upon
NRS 179.207 and NRS 179.209
2
of the Uniform Criminal Extradition Act which allows bail
before issuance of the executive warrant (unless the offense is one punishable by death or life
imprisonment in the demanding state), but is silent as to the right to bail
____________________

1
NRS 179.197: 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.
3. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given
to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody and to
the agent of the demanding state.

2
NRS 179.207: If from the examination before the judge or magistrate it appears that the person held is the
person charged with having committed the crime alleged and, except in cases arising under NRS 179.189, that
he has fled from justice, the judge or magistrate must, by a warrant reciting the accusation, after the
governor's warrant has been commit him to the county jail for such a time, not exceeding 30 days and
specified in the warrant, as will enable the arrest of the accused to be made under a warrant of the governor on a
requisition of the executive authority of the state having jurisdiction of the offense, unless the accused gives bail
as provided in NRS 179.209, or until he is legally discharged.
NRS 179.209: Unless the offense with which the prisoner is charged is shown to be an offense punishable
by death or life imprisonment under the laws of the state in which it was committed, a judge or magistrate in this
state may admit the person arrested to bail by bond, with sufficient sureties, and in such sum as he deems proper,
conditioned for his appearance before him at a time specified in such bond, and for his surrender, to be arrested
upon the warrant of the governor of this state.
after the governor's warrant has been issued. This legislative silence is interpreted by the State
to mean that bail is precluded in all extradition matters after issuance of the governor's
warrant. This contention finds support in the case of Allen v. Wild, 86 N.W.2d 839, 841-42
(Iowa 1957), where the court observed that since the act contained no similar provision for
bail after arrest upon the governor's warrant, it may be inferred that the omission of such
provision was intentional. Moreover, the State contends that the mentioned statutes preclude
bail in all cases where the offense charged by the demanding state is punishable by death or
life imprisonment.
2. The underlying fallacy of the State's position is the assumption that a legislative grant of
power is essential before a court in this State may grant bail in an extradition matter. Our
Nev. Const. art. 1, 7, provides that all persons shall be bailable by sufficient sureties;
unless for Capital Offenses when the proof is evident or the presumption great. That
provision does not exclude persons in custody by reason of an extradition proceeding.
Application of Haney, 289 P.2d 945 (Idaho 1955). It is not confined to persons in custody for
crimes committed in Nevada. Neither does it preclude bail to one charged with a capital
offense where the proof is not evident nor the presumption great. Ex parte Wheeler, 81 Nev.
495, 406 P.2d 713 (1965). The court's power to grant bail stems from that constitutional
provision and may not be diminished by legislative action or an interpretation of legislative
silence. There is nothing contained in the U.S. Constitution art. IV, 2, concerning interstate
extradition which touches the problem before us.
3. Several statutes have been enacted to accommodate our constitutional provision for bail.
NRS 34.360 provides that every person restrained of his liberty under any pretense
whatever may petition for habeas. The pretense in this case was the warrant of the
Governor of the State of Nevada. The Uniform Extradition Act itself, NRS 179.197,
contemplates habeas to test the legality of his arrest. NRS 34.530 expressly makes habeas
available for the purpose of giving bail to one in custody on any criminal charge. These
provisions of our statutes accommodate the constitutional command.
Acceptance of the State's position that the court lacks power to grant bail after the
executive warrant has issued would deny meaning to these code provisions. Moreover, such
position places a penalty upon the fugitive's right to challenge the legality of his arrest and
might effectively force a waiver of that right since the price of exercising itjail, until his
challenge is resolved by the courtmay be too great.
4. The offense with which Van Sickle is charged by the State of California is a capital
offense under the law of that state. The California Constitution with respect to bail, art. 1,
6, is identical to our art. 1, 7. In California, as here, an accused in a capital case may not be
admitted to bail when the proof is evident or the presumption great. Conversely, he is entitled
to release on bail where the proof is not evident nor the presumption thereof great. People v.
Tinder, 19 Cal. 539 (1862). To this extent California law is the same as ours. Ex parte
Wheeler, 81 Nev. 495, 406 P.2d 713 (1965). The determination of whether the proof is
evident is discretionary [NRS 178.484(2); Ex parte Wheeler, supra, at 500] and not
reviewable by certiorari [Marshall v. District Court, 79 Nev. 280, 382 P.2d 214 (1963)] since
that writ concern only jurisdiction. I would dismiss this proceeding.
____________
86 Nev. 540, 540 (1970) Ibsen v. Warden
CLYDE G. IBSEN, Appellant, v. WARDEN, NEVADA
No. 5971
July 2, 1970 471 P.2d 229
Appeal from the Sixth Judicial District Court, Humboldt County; Llewellyn A. Young,
Judge.
After being resentenced following reversal of conviction of first-degree murder, and retrial
for second-degree murder, defendant commenced a post-conviction proceeding seeking credit
on his sentence for periods of confinement before his convictions and before first conviction
was set aside. The district court denied credit except for time spent in prison after first
conviction but before it was set aside and defendant appealed. The Supreme Court, Collins,
C. J., held that defendant was not entitled to credit for periods of confinement prior to first
and second convictions.
Affirmed.
Thompson, J., dissented.
R. C. Bennett, of Reno, for Appellant.
Harvey Dickerson, Attorney General, and William Macdonald, District Attorney,
Humboldt County, for Respondent.
Criminal Law.
Defendant who had been convicted and resentenced for second-degree murder following reversal of
first-degree murder conviction was not entitled to credit on his resentence for periods of
confinement in county jail prior to first and second convictions.
conviction was not entitled to credit on his resentence for periods of confinement in county jail prior to first
and second convictions. NRS 171.178, 171.196, subd. 2, 173.035, subd. 3, 176.055, 176.335, subd. 3,
178.556; U.S.C.A.Const. Amends. 6, 14.
OPINION
On December 15, 1965, appellant was convicted of first degree murder in the death of
Delbert Howard and was sentenced to life imprisonment without possibility of parole. In an
appeal from that conviction, this court set it aside and ordered a new trial because the justice
of the peace failed to secure appointment of counsel for him following a timely request. Ibsen
v. State, 83 Nev. 42, 422 P.2d 543 (1967).
Following that reversal, appellant was recharged with the same crime, returned to
Humboldt County where he there pleaded guilty to second degree murder and was
resentenced by the trial judge to an indeterminate sentence of not less than 10 nor more than
20 years. While the possible sentence for second degree murder was 10 years to life, the trial
judge gave no specific reason why the lesser sentence of 10 to 20 years was imposed.
At the time of the commencement of the resentence of 10 to 20 years, appellant had served
the following periods in confinement, commencing with his arrest in Florida and return to
Nevada:
(a) July 20, 1965, until December 15, 1965. This is the period following arrest in Florida,
return to Nevada, preliminary proceedings in the justice of the peace court, and trial in the
district court.
(b) December 23, 1965, until February 28, 1967. This is the period of time spent by
appellant in the Nevada State Penitentiary under the first conviction until it was set aside and
a new trial ordered.
(c) February 28, 1967, until May 3, 1967. This is the period of time appellant spent in the
Humboldt County jail following reversal of his first conviction until he was resentenced and
returned to the state penitentiary under the 10-20 year second degree murder conviction.
In August, 1968, appellant commenced a post-conviction proceeding seeking credit on his
10-20 year resentence for all three periods of time mentioned above. Pursuant to the mandate
of the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711 (1969), and
under the authority of Summers v. Warden, S4 Nev. 326
Summers v. Warden, 84 Nev. 326, 440 P.2d 388 (1968), the trial court granted him credit for
period (b) described above, the time spent in prison under the first sentence, but refused to
grant credit for periods (a) and (c). It is from that refusal this appeal is taken.
1. There is no constitutional mandate from the United States Supreme Court requiring that
we grant such credits. Pearce requires, that punishment already exacted must be fully
credited' in imposing sentence upon a new conviction for the same offense. 395 U.S. at
718-19. That was done here, and our federal constitutional obligation ends.
2. The state, through its appropriate agents, the police and the prosecutor, is entitled to a
reasonable amount of time to accomplish its constitutional processes of bringing to justice
persons who are accused of violating the law. We should not disregard the difficulties
attendant upon detection of crime, investigation of those suspected of complicity, arrest,
arraignment, determination of probable cause, marshaling of admissible testimony and
evidence, trial and sentencing. Those demanding and difficult functions, surrounded as they
now are with multiple constitutional protections, cannot be done in the twinkling of an eye.
Oftentimes, the defendant or his counsel, seeking some benefit or advantage, precipitate and
bring about delay in those procedures. Thus, it does not appear equitable to look at the
situation only through the eyes of a defendant, especially if he is finally determined to be
guilty. The person who really suffers from the type of incarceration described in (a) and (c) is
the one who is ultimately found not guilty. As the High Court said, If, upon a new trial, the
defendant is acquitted, there is no way the years he spent in prison can be returned to him.
North Carolina v. Pearce, supra, at 719.
3. The police and prosecutor are now obligated by law to act, insofar as an accused person
is concerned, within certain specific time limits. For instance, NRS 171.178 provides that a
person when arrested is to be taken before the nearest available magistrate without
unnecessary delay; NRS 171.196(2) requires a preliminary examination to be held within 15
days after the accused has made his first appearance before a magistrate; NRS 173.035(3)
requires an information to be filed within 15 days after the preliminary examination; and NRS
178.556 provides for dismissal if the defendant is not brought to trial within 60 days
following the filing of the indictment or information. See Note, Nevada's 1967 Criminal
Procedure Law from Arrest to Trial: One State's Response to a Widely Recognized Need,
1969 Utah L.Rev. 520, 527-30, 534-35, 541-43. Additionally, both the United States Supreme
Court and this court have given significant meaning to the right of a defendant to a
speedy trial.1
and this court have given significant meaning to the right of a defendant to a speedy trial.
1

4. No courts considering a request for credit of the type described in (a) and (c) above have
found a defendant entitled to credit as a matter of right in the absence of a statute either
permitting or requiring the giving of such credit. In Williams v. State, 234 A.2d 260
(Md.Ct.Spec.App. 1967), denial of credit for pre-conviction confinement was upheld with the
comment that the court knew of no law requiring the giving of such credit. In Holcombe v.
State, 448 S.W.2d 493 (Tex. Crim.App. 1970), the lower court had exercised its statutory
power to grant or deny credit for pre-conviction confinement and denied credit. Its exercise of
discretion was upheld on appeal with the comment that the appellate court had no power to
grant the credit. In State v. Virgil, 172 S.E.2d 28 (N.C. 1970), it was held that a defendant
was not entitled as a matter of right to credit for jail time and the statute allowing credit for
previous sentences only authorized credit for time served.
When the granting of credit has been upheld, or credit has been granted on appeal, it has
been because credit was allowed by statute. People v. Cox, 255 N.E.2d 208 (Ill.App. 1970);
Marsh v. Henderson, 424 S.W.2d 193 (Tenn. 1968); People v. Havey, 160 N.W.2d 629
(Mich. Ct. of App. 1968).
In Gross v. Sarver, 307 F.Supp. 1105 (E.D. Ark. 1970), it was held that credit of this type
was a matter of state law and that no federal question was involved.
In United States v. Whitfield, 411 F.2d 545 (8th Cir. 1969), it was held that the federal law
requiring credit be given for days spent in custody before sentencing was not retroactive and
applied only to those sentenced after the law took effect. Accord Smith v. United States, 413
F.2d 975 (10th Cir. 1969). In Dunn v. United States, 376 F.2d 191 (4th Cir. 1967), and Stapf
v. United States, 367 F.2d 326 (D.C. Cir. 1966), it was held there could be no discrimination
between classes of prisoners in the granting of credit for presentencing custody.
____________________

1
Smith v. Hooey, 393 U.S. 374 (1969) (Right of defendant incarcerated in another jurisdiction to demand a
speedy trial.); Klopfer v. North Carolina, 386 U.S. 213 (1967) (Sixth Amendment right to speedy trial applicable
against the states through the Fourteenth Amendment.); Maes v. Sheriff, 86 Nev. 317, 468 P.2d 332 (1970)
(Defendants cannot be charged in a second complaint where the first complaint is dismissed for failure to hold a
preliminary hearing within the statutory 15-day period following the first appearance before a magistrate.); State
v. Erenyi, 85 Nev. 285, 454 P.2d 101 (1969) (Right of defendant incarcerated in another jurisdiction to demand
a speedy trial.); In re Morris, 78 Nev. 123, 369 P.2d 456 (1962) (Failure to commence trial within statutory
60-day period following arraignment absent a showing of good cause requires dismissal of indictment or
information.).
between classes of prisoners in the granting of credit for presentencing custody. The
implication is that no credit need be given, but if credit is given, it cannot be withheld from
defendants solely on the basis of the class of crime committed.
In U.S. v. Hamilton, 300 F.Supp. 728 (E.D.N.C. 1969), and U.S. v. Thomas, 300 F.Supp.
1201 (S.D.N.Y. 1969), it was held that it would be unconstitutional to deny credit to juveniles
where it was granted to adults under a federal statute.
5. We have no statute in Nevada granting the type of credit sought by appellant and
described in (a) and (c) above. NRS 176.335(3) provides: The term of imprisonment
designated in the judgment shall begin on the date of sentence of the prisoner by the court.
Where imprisonment in the county jail is imposed, the legislature has given courts
discretion to grant credit upon that sentence for the amount of time actually spent by the
defendant in confinement prior to conviction. See NRS 176.055. Perhaps it was an oversight
not to allow a similar discretion to courts where the imprisonment is in the state penitentiary.
The legislature, by having the discrepancy called to their attention may care to remedy it.
The judgment of the lower court is affirmed.
One convicted of a public offense should be granted credit for time served in jail prior to
conviction and for time spent in jail between his release from prison and the imposition of a
new sentence. Fairness points inevitably to this conclusion. An accused is presumed innocent
until proven guilty. When credit is not allowed this presumption is given a diminished
significance. Moreover, he is constitutionally entitled to release on bail except when charged
with a capital offense where the proof is evident or the presumption great. Nev. Const. art. 1,
7; Ex parte Wheeler, 81 Nev. 495, 406 P.2d 713 (1965). A failure to grant credit invidiously
discriminates between those who can furnish bail and those who cannot. Cf. Griffin v.
Illinois, 351 U.S. 12 (1956); Anders v. California, 386 U.S. 738 (1967). Pretrial freedom
accommodates the presumption of innocence and prevents the infliction of punishment before
guilt is established. These fundamental concepts are denied when credit is refused.
Today's opinion suggests that if credit is to be given the legislature must be the donor; that
the court cannot be concerned since neither our state nor the federal constitution bears upon
the problem.
upon the problem. That contention was presented in Summers v. Warden, 84 Nev. 326, 440
P.2d 388 (1968), and rejected by this court. It should be rejected once more in this case. The
issue is one of constitutional dimension. We need not await legislative action.
In Summers, supra, we ruled that the due process and equal protection clauses of the
federal constitution and the due process clause of our state constitution require that a prisoner
serving a valid sentence be given credit for time served under a prior void conviction based
upon the same acts. Although the credit sought in the Summers case has been given this
appellant, the full benefit of the reasoning underlying that decision has been denied him. His
confinement, all of it, has been by reason of the offense for which he is now serving sentence.
Every moment of that confinement is punishment for that offense. Any other view is
unrealistic and denies the truth. This was the essence of Summers, and it applies with equal
force to the present case.
1

____________________

1
A distinguished committee of the American Bar Association on minimal Standards for Criminal Justice
recommends:
(a) Credit against the maximum term and any minimum term should be given to a defendant for all time
spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the
conduct on which such a charge is based. This should specifically include credit for time spent in custody prior
to trial, during trial, pending sentence, pending the resolution of an appeal, and prior to arrival at the institution
to which the defendant has been committed.
(b) Credit against the maximum term and any minimum term should be given to a defendant for all time
spent in custody under a prior sentence if he is later re-prosecuted and re-sentenced for the same offense or for
another offense based on the same conduct. In the case of such a re-prosecution, this should include credit in
accordance with subsection (a) for all time spent in custody as a result of both the original charge and any
subsequent charge for the same offense or for another offense based on the same conduct.
(c)If a defendant is serving multiple sentences, and if one of the sentences is set aside as a result of direct or
collateral attack, credit against the maximum term and any minimum term of the remaining sentences should be
given for all time served since the commission of the offenses on which the sentences were based.
(d) If the defendant is arrested on one charge and later prosecuted on another charge growing out of conduct
which occurred prior to his arrest, credit against the maximum term and any minimum term of any sentence
resulting from such prosecution should be given for all time spent in custody under the former charge which has
not been credited against another sentence. Sec. 3.6, p. 186-187, Tentative Draft-Standards Relating to
Sentencing Alternatives and Procedures (December 1967).
____________
86 Nev. 546, 546 (1970) Vincze v. State
JOE E. VINCZE, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 5724
July 6, 1970 472 P.2d 936
Appeal from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Defendant was convicted in the district court of obtaining money by false pretenses, and he
appealed. The Supreme Court, Collins, C. J., held that defendant was not entitled to reversal
of conviction on ground of insufficiency of indictment, where reference to grand jury
statement revealed facts upon which state intended to base its claim and gave sufficient notice
to defendant to enable him to prepare his defense.
Affirmed.
See also 86 Nev. 474, 470 P.2d 427 (1970).
Samuel B. Francovich and Melvin Schaengold, of Reno, for Appellant.
1. Criminal Law.
Fact that prosecutor, during presentation of evidence to grand jury which returned indictment charging
defendant with obtaining money under false pretenses based on claim that he sold mining equipment that he
did not own, advised grand juror that his question as to what constituted ownership of mining machinery
was immaterial was not ground for reversal of conviction, where defendant failed to make timely objection,
or to demonstrate how he was thereby prejudiced. NRS 174.105, subds. 1, 2, 178.598.
2. Criminal Law.
Defendant charged with obtaining money by false pretenses was not entitled to instruction that if two
conclusions could reasonably be drawn from evidence, one of innocence and one of guilt, jury should adopt
one of innocence, even though some evidence at trial was circumstantial, where jury was given proper
instruction on reasonable doubt.
3. Criminal Law.
Challenge to sufficiency of indictment, where not made until after conviction and without showing of
prejudice, will be tested on review by reduced standard, including reference to grand jury transcript.
4. Criminal Law.
Defendant was not entitled to reversal of conviction for obtaining money under false pretenses on ground
of insufficiency or indictment, where reference to grand jury statement revealed facts
upon which state intended to base its claim and gave sufficient notice to defendant to
enable him to prepare his defense.
or indictment, where reference to grand jury statement revealed facts upon which state intended to base its
claim and gave sufficient notice to defendant to enable him to prepare his defense.
5. False Pretenses.
Evidence that defendant was given money in exchange for bill of sale to mining equipment which he did
not own established proper criminal proceeding for obtaining money by false pretenses.
OPINION
By the Court, Collins, C.J.:
This is an appeal from a jury verdict of conviction and court refusal to grant a new trial in
a prosecution for obtaining money by false pretenses. We affirm the conviction and the order.
Appellant, Joe E. Vincze, was given two checks totaling $1,850 by Roberto E. Novak in
exchange for a bill of sale to some mining equipment located in Battle Mountain, Nevada.
When Novak attempted to take possession of the machinery, he was ordered off the property
where it was located and told it belonged to a Texas company. At the trial, a representative of
Milwhite Mud Sales, Inc. presented testimony and documents establishing that company's
ownership of the machinery. Vincze was arrested, indicted by the Grand Jury for obtaining
money by false pretenses, in violation of NRS 205.380, tried and convicted.
During presentation of evidence to the Grand Jury, one of the jurors asked, What
determines ownership of mining equipment? The deputy district attorney presenting the
evidence responded, That would be immaterial. Any further questions? None were asked
by that juror.
During the trial, appellant offered and the court refused to give his proposed instruction
No. 1.
1

Following conviction appellant challenged, for first time, the sufficiency of the indictment.
He contended it failed to charge a crime.
He also urges there was not sufficient evidence to sustain a criminal charge and urges the
controversy was only a matter for civil litigation.
The issues thus presented for our consideration are these:
I. Whether there was interference by the assistant district attorney with the Grand Jury
indicting appellant which would vitiate the indictment and the conviction had upon it?
____________________

1
If two conclusions can reasonably be drawn from the evidence, one of innocence and one of guilt, the jury
should adopt the one of innocence.
attorney with the Grand Jury indicting appellant which would vitiate the indictment and the
conviction had upon it?
II. Whether the trial court erred in refusing to give an instruction that if two conclusions
can reasonably be drawn from the evidence, one of innocence and one of guilt, the jury
should adopt the one of innocence?
III. Whether the indictment sufficiently charges an offense against the laws of this state?
IV. Whether this was really a civil matter and not a criminal matter?
[Headnote 1]
1. The prosecutor was incorrect in advising the grand juror his question about the
ownership of the mining machinery was immaterial. However, appellant failed to make his
objection timely, NRS 174.105(1) and (2), or to demonstrate how he was thereby prejudiced.
See NRS 178.598.
2

[Headnote 2]
2. Appellant contends that because some of the evidence at the trial was circumstantial, it
was error to refuse his proposed instruction No. 1. This court has never taken a clear-cut stand
on such an instruction. An instruction in which that language was only part of a more general
instruction, but not singled out for specific consideration, has been approved in State v.
Murray, 67 Nev. 131, 150, 215 P.2d 265 (1950), Terrano v. State, 59 Nev. 247, 91 P.2d 67
(1939), and State v. Boyle, 49 Nev. 386, 399-400, 248 P. 48 (1926). Refusal to give such an
instruction was upheld in Scott v. State, 72 Nev. 89, 94-95, 295 P.2d 391 (1956), where it
was stated: We are not concerned with the propriety of such an instruction where the proof is
entirely circumstantial. There was no error in refusing the instruction in view of the direct
evidence in this case. See also People v. Bonds, 1 Nev. 33 (1865).
While there is substantial authority to the contrary, we prefer the rule announced in
Holland v. United States, 348 U.S. 121 (1954), where the U.S. Supreme Court said: [W]here
the jury is properly instructed on the standards for reasonable doubt, such an additional
instruction on circumstantial evidence is confusing and incorrect. . . . Circumstantial evidence
in this respect is intrinsically no different from testimonial evidence. Admittedly,
circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is
equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances
that the evidence correctly points to guilt against the possibility of inaccuracy or
ambiguous inference.
____________________

2
NRS 178.598 provides that Any error, defect, irregularity or variance which does not affect substantial
rights shall be disregarded.
weigh the chances that the evidence correctly points to guilt against the possibility of
inaccuracy or ambiguous inference. In both, the jury must use its experience with people and
events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we
can require no more. Id. at 140. This rule is followed in most of the United States Circuit
Courts of Appeal, including the Ninth Circuit. See Compton v. United States, 305 F.2d 119
(9th Cir. 1962) (appeal from U.S. District Court, Reno, Nevada).
There was a proper instruction on reasonable doubt given to the jury in this case. The
lower court did not err in refusing appellant's proposed instruction No. 1.
[Headnotes 3, 4]
3. The challenge to the sufficiency of the indictment, where not made until after conviction
and without a showing of prejudice, will be tested by a reduced standard, including reference
to the Grand Jury transcript. Logan v. Warden, 86 Nev. 511, 471 P.2d 249 (1970); Larsen v.
State, 86 Nev. 451, 470 P.2d 417 (1970); Laney v. State, 86 Nev. 173, 466 P.2d 666 (1970).
See also Garnick v. District Court, 81 Nev. 531, 407 P.2d 163 (1965); State v. Hurley, 66
Nev. 350, 210 P.2d 922 (1949); State v. Raymond, 34 Nev. 198, 117 P. 17 (1911); State v.
Hughes, 31 Nev. 270, 102 P. 562 (1908); State v. Lovelace, 29 Nev. 43, 83 P. 330 (1906).
Though there was no demonstration of prejudice, reference to the Grand Jury statement
clearly reveals the facts upon which the state intended to base its claim and gave sufficient
notice to appellant to enable him to prepare his defense. There was no error.
[Headnote 5]
4. The facts alleged in the indictment and proof at trial establish this to be a proper
criminal proceeding.
Affirmed.
____________
86 Nev. 550, 550 (1970) Rosenbaum v. Rosenbaum
GEORGIA VIRGINIA ROSENBAUM, Appellant, v.
MANSELL G. ROSENBAUM, Respondent.
No. 6035
July 6, 1970 471 P.2d 254
Appeal from the Eighth Judicial District Court, Clark County; Thomas J. O'Donnell,
Judge.
Action by husband for divorce. The district court granted husband a divorce and awarded
wife alimony and child support and wife appealed. The Supreme Court, Collins, C. J., held
that prior decision denying husband divorce was not res judicata of husband's subsequent
action seeking divorce on ground of extreme mental cruelty and incompatibility where events
relied on in subsequent action occurred after prior decree and it was not established on what
grounds prior action had been tried or decided, and that judgment granting husband divorce
and awarding wife alimony would be reversed and remanded for retrial on limited issue of
amount of alimony and child support where court did not consider wife's evidence that
husband had been earning over $19,000 a year prior to divorce but had resigned and moved to
area where he allegedly could not obtain similar job and obtained position paying only $400 a
month.
Affirmed in part, reversed and remanded in part.
Michael L. Hines and Henry R. Gordon, of Las Vegas, for Appellant.
W. Owen Nitz and John D. Nitz, of Las Vegas, for Respondent.
1. Judgment.
For affirmative defense of res judicata to be sustained, there must be identity of causes of action.
2. Judgment.
True test of identity of causes of action, as that term is used in connection with the plea of former
adjudication, is identity of facts essential to their maintenance.
3. Judgment.
Identity of causes of action, for purpose of res judicata, may appear from evidence in prior and
subsequent cases as well as from the pleadings.
4. Divorce.
Prior decision denying husband divorce was not res judicata of husband's subsequent action seeking
divorce on ground of extreme mental cruelty and incompatibility where events relied on in subsequent
action occurred after prior decree and it was not established on what grounds prior action had
been tried or decided.
not established on what grounds prior action had been tried or decided.
5. Divorce.
Trial judge, in exercise of its discretion, is allowed, but not required, in fixing amount of alimony or child
support to consider what a husband or father could in good faith earn if he so desired. NRS 125.140,
125.150.
6. Divorce.
If a husband or a father intentionally holds a job below his reasonable level of scale or purposefully earns
less than his reasonable capabilities permit, the court should take such factors into consideration in fixing
amount of alimony or child support; however, if the husband or father, due to circumstances beyond his
control, cannot in good faith obtain a job commensurate with his skills or by the exercise of ordinary
industry of a person commanding those skills earn more money, the award should be in keeping with his
ability to pay, having regard for all other factors which bear on the issue. NRS 125.140, 125.150.
7. Divorce.
Judgment granting husband divorce and awarding wife alimony was reversed and remanded for retrial on
limited issue of amount of alimony and child support where court did not consider wife's evidence that
husband had been earning over $19,000 a year prior to divorce but had resigned and moved to area where
he allegedly could not obtain similar job and obtained position paying only $400 a month.
OPINION
This is an appeal by appellant-wife (defendant below) in a divorce action from a judgment
in favor of respondent-husband (plaintiff below).
Georgia and Mansell, husband and wife for 24 years, and parents of three minor children,
maintained their marital domicile in Missouri. Mansell was there employed by the F.A.A. as a
Air Traffic Controller, earning $19,206 per year.
While residing in Missouri, Mansell sued Georgia for divorce, which was denied him by a
court in that state in the latter part of 1968. In January, 1969, Mansell quit his job, moved to
Nevada, established residence in Las Vegas, and filed a new action for divorce against
Georgia in March, alleging grounds of extreme mental cruelty and incompatibility. Georgia
appeared, contested the grounds, and alleged an affirmative defense that the Missouri
decision denying Mansell a divorce was res judicata of the Nevada action.
Both parties appeared and testified at the trial. The judge awarded Mansell a divorce but
gave Georgia the equity of the parties in their Missouri home and furnishings, one-half of a
savings account of approximately $7,000, and a 1960 auto.
parties in their Missouri home and furnishings, one-half of a savings account of
approximately $7,000, and a 1960 auto. Georgia was also given custody of the children, $40
per month child support for each and $10 per month alimony.
The principally contested issues at trial dealt with the res judicata question and the amount
of support awarded to Georgia for support of the children and herself.
Georgia, who failed to offer in evidence a transcript, findings, conclusions or decree from
the Missouri action, contends that facts admitted by Mansell in the present action sustain her
affirmative defense of res judicata. Mansell, on the other hand, maintains that the issues
decided by the Missouri court were prior in time to those considered by the Nevada court and
thus Georgia failed to prove her affirmative defense.
Evidence presented by Mansell in the Nevada action indicated he had earned over $19,000
per year in Missouri as an Air Traffic Controller but that he quit that job when he left
Missouri because of Georgia's misconduct and could not obtain a similar position in the Las
Vegas area. He testified he had obtained employment in a bank which he liked and in which
he hoped to remain, but earned only $400 per month.
Georgia's counsel repeatedly attempted to adduce proof that Mansell previously earned a
much higher income, was capable of far greater earnings, and that his employment in a
position unrelated to his former occupation and experience, with greatly reduced earnings,
was admissible for consideration by the court in exercising its discretion in fixing alimony
and child support which it ordered Mansell to pay. The lower court refused to admit or
consider evidence concerning Mansell's prior income and potential future earnings, or the
availability of jobs paying more, holding such evidence was speculation and not relevant to
the issues.
The issues for our consideration are these:
I. Whether the Missouri divorce trial was res judicata of the Nevada action?
II. Whether the lower court erred in refusing to consider respondent's earning capacity and
the availability of employment in his prior occupation which paid more than his occupation at
the time of the trial?
1. A careful review of the record shows there was no evidence presented by either party in
the Nevada action which could be said to be the same evidence relied upon by the Missouri
court.
[Headnote 1]
For the affirmative defense of res judicata to be sustained, there must be identity of
causes of action. As this court said in Silverman v. Silverman, 52 Nev. 152, 283 P. 593
(1930):
[Headnotes 2, 3]
The true test of the identity of causes of action,' as that term is used in connection with
the plea of former adjudication, is the identity of the facts essential to their maintenance. The
identity of the causes of action may appear from evidence in the two cases as well as from the
pleadings.
[Headnote 4]
The authorities agree that when the same evidence supports both the present and the
former cause of action, the two causes of action are identical. 52 Nev. at 169-70 (emphasis
added). Here, there was no evidence to indicate identity of causes of action. The trial judge
and Mansell's counsel were careful to limit Mansell's testimony to events occurring after
October 11, 1968, date of the Missouri decree. There is nothing in the record to indicate the
grounds upon which the Missouri action was tried or decided. There was no error. Koch v.
Koch, 62 Nev. 399, 152 P.2d 430 (1944); Pease v. Pease, 47 Nev. 124, 217 P.239 (1923).
2. Both the statutory and case law of Nevada give a trial judge discretion in awarding
alimony and child support, and fixing the amount of the award. NRS 125.140 provides:
1. The court, in granting a 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.
2. In actions for divorce the court may, during the pendency of the action, or at the final
hearing or at any time thereafter during the minority of any of the children of the marriage,
make such order for the custody, care, education, maintenance and support of such minor
children as may seem necessary or proper, and may at any time modify or vacate the same.
1. In granting a divorce, the court may award such alimony to the wife and shall make
such disposition of the community property of the parties as shall appear just and equitable,
having regard to the respective merits of the parties and to the condition in which they will be
left by such divorce, and to the party through whom the property was acquired, and to the
burdens, if any, imposed upon it, for the benefit of the children.
to the burdens, if any, imposed upon it, for the benefit of the children.
. . .
3. The court may also set apart such portion of the husband's property for the wife's
support and the support of their children as shall be deemed just and equitable. See Wilson
v. Wilson, 66 Nev. 405, 212 P.2d 1066 (1949); Lewis v. Lewis, 71 Nev. 301, 289 P.2d 414
(1955); Adler v. Adler, 80 Nev. 364, 394 P.2d 350 (1964).
Contrary to the ruling of the trial judge in this case, it also appears he may consider
evidence that the income of a husband and father will increase in the future, based on past
earnings. In Lewis v. Lewis, supra, upholding the exercise of the trial judge's discretion
against a claim he awarded too great an amount for child support, this court said:
At the time of the trial appellant testified to an income of approximately $10,000 a year.
He was new to the community of Las Vegas in which he was then living. It is clear from the
record that in view of the trial judge appellant's earning power as demonstrated prior to his
coming to Las Vegas was such that an increase in income was reasonably to be anticipated.
71 Nev. at 303. (Emphasis added.)
[Headnotes 5, 6]
We think a trial judge, in exercising that discretion, should be allowed, but not required, in
fixing the amount of alimony or child support to consider what a husband or father could in
good faith earn if he so desired. This view is consistent with the law in other jurisdictions.
See Bratnober v. Bratnober, 309 P.2d 441 (Cal. 1957); Mowery v. Mowery, 118 A.2d 49,
54-55 (N.J.Super.Ct.App.Div. 1955); Commonwealth v. Haley, 184 A.2d 155 (Pa.Super.Ct.
1962); Toebe v. Toebe, 30 N.W.2d 585 (Minn. 1948); Annot., 1 A.L.R.3d 156-57, 343-45,
406-10 (1965). The key to this rule is the good faith of the husband or father. If he
intentionally holds a job below his reasonable level of skill or purposefully earns less than his
reasonable capabilities permit, the court should take that into consideration in fixing the
amount of alimony or child support. On the other hand, if a husband or father, through
circumstances beyond his control, cannot in good faith obtain a job commensurate with his
skills or by the exercise of ordinary industry of a person commanding those skills earn more
money, the award should be in keeping with his ability to pay, having regard for all other
factors which bear upon the issue.
[Headnote 7]
The trial court could have considered the evidence offered by Georgia's counsel. We
cannot say that if he considers such evidence it will necessarily cause him to modify the
amount of the awards made in this case. But because of the possibility he may reach a
different conclusion, we reverse the cause and remand for retrial on the limited issue of the
amount of the award of alimony and child support.
____________
86 Nev. 555, 555 (1970) Rose v. State
EDWARD A. ROSE, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 6095
July 6, 1970 471 P.2d 262
Appeal from conviction for embezzlement. Second Judicial District Court, Washoe
County; Llewellyn A. Young, Judge.
Prosecution for embezzlement. Defendant was convicted in the district court and appealed.
The Supreme Court, Zenoff, J., held that under statute declaring guilty of embezzlement any
person with whom any money, property or effects shall have been deposited or entrusted who
shall use or appropriate same in any manner or for any purpose other than that for which same
was deposited or entrusted, intent to steal was not an element of the offense, and an act of
diversion was sufficient to constitute violation.
Affirmed.
Richards & Demetras, of Reno, for Appellant.
1. Embezzlement.
Under statute declaring guilty of embezzlement any person with whom any money, property or effects
shall have been deposited or entrusted who shall use or appropriate same in any manner or for purpose
other than that for which same was deposited or entrusted, intent to steal was not element of offense, and
act of diversion was sufficient to constitute violation. NRS 205.300.
86 Nev. 555, 556 (1970) Rose v. State
2. Embezzlement.
In prosecution for embezzlement, it was immaterial that defendant intended to restore money at later
time, where he appropriated moneys held by him as fiduciary for insurance company. NRS 205.300.
3. Criminal Law.
In prosecution for embezzlement, jury instructions taken as a whole were not misleading. NRS
205.300.
OPINION
Edward Rose was a general agent for Pacific General Life Insurance Company. His
employment was evidenced by a written contract which provided in particular that he was
authorized to collect moneys only for the initial premiums, that all moneys held by him were
as a fiduciary trust, and were not to be used for any personal or other purposes whatsoever.
Rose accepted the total sum of $6,500 from Rose Meredith and her husband so that they
could reinstate their policies which had lapsed. Rose sent the company his personal check for
$6,558 to cover the reinstatement but the check failed to clear. Rose was indicted for
embezzlement. In his defense, he testified that he had always retained 80% of the premiums
as his commissions, that he used the money for personal obligations, and that he intended to
repay the company. He appeals his conviction.
Appellant contends principally that the indictment was fatally defective for failure to
allege that Rose's conduct was accompanied by an intent to defraud. However, he
misconceives the crime of embezzlement as it was charged in this case.
1. It is within the power of the legislature to declare what acts constitute a crime and fix
the punishment for the commission of them. NRS 205.300
1
defining embezzlement is such a
legislative enactment.
____________________

1
NRS 205.300 reads: 1. Any bailee of any money, goods or property, who shall convert the same to his
own use, with the intent to steal the same or to defraud the owner or owners thereof and any agent, manager or
clerk of any person, corporation, association or partnership; or any person with whom any money, property or
effects shall have been deposited or entrusted, who shall use or appropriate such money, property or effects or
any part thereof in any manner or for any other purpose than that for which the same was deposited or entrusted,
shall be guilty of embezzlement, and shall be punished in the manner prescribed by law for the stealing or
larceny of property of the kind and
86 Nev. 555, 557 (1970) Rose v. State
legislative enactment. Long ago, the act of making off with the money or property of his
principal by an agent was declared to be an act of embezzlement. Such protection was
necessary for companies whose nature of business created a fiduciary relationship with its
agents and employees in the handling of company money.
[Headnote 1]
As it is seen in the footnoted statute, either of two parts of the statute state the essentials of
a particular kind of embezzlement. The second part does not require an intent to steal. The act
of diverting carries its built-in intent that speaks for itself, that is, the performance of the act,
such as using money of an employer for a reason other than for which it was designated,
makes the crime. Only the intent to do the act, even though not to steal, is important. Thusly
our early court has spoken, State v. Trolson, 21 Nev. 419, 425, 32 P. 930 (1893), and it is still
good law.
Rose's conduct was prohibited by that second part of the statute which provides . . . or any
person with whom any money, property or effects shall have been deposited or entrusted, who
shall use or appropriate such money, property or effects or any part thereof in any manner or
for any other purpose than that for which the same was deposited or entrusted, shall be guilty
of embezzlement. . . .
[Headnote 2]
Under State v. Trolson, supra, the crime of embezzlement is complete whenever an
appropriation is made (cf. Commissioner v. Wilcox, 327 U.S. 404 (1946)), and it is to no
avail that Rose intended to restore the money at a later time. People v. Talbot, 28 P.2d 1057,
1062 (Cal. 1934). See also Grin v. Shine, 187 U.S. 181, 190 (1902).
____________________
name of the money, goods, property or effects so taken, converted, stolen, used or appropriated.
2. Any use of the money, goods or property by any bailee thereof, other than that for which the same was
borrowed, hired, deposited, carried, received or collected, shall be prima facie evidence of conversion and of
intent to steal the same and defraud the owner or owners thereof.
3. The term bailee,' as used in this section, shall be construed to include and mean all persons with whom
any money, goods or property has been deposited, and all persons to whom any goods or property has been
loaned or hired, and all persons to whom any goods or property shall be delivered, for any purpose whatsoever,
and all persons who shall, either as agent, collector or servant, be empowered, authorized or entrusted to carry,
collect or receive any money, goods or property of another.
86 Nev. 555, 558 (1970) Rose v. State
[Headnote 3]
2. Rose's objections to several instructions fail because they too relate to the subject of
intent. Both counsel argued extensively to the jury which led to his assertion now that the
jury must have gotten confused over what intent was intended. The arguments of counsel
are not to be considered as evidence and the instructions to the jury expressly stated that they
were not to be considered as such. The jury instructions relating to intent must be read
together, not disconnectedly. These guidelines were sufficient in instructing the jury upon the
law as to intent and we assume that the jury understood them. In this light we do not find any
indication that the jury was confused or misinstructed. Furthermore, the evidence supports the
verdict.
Affirmed.
____________
86 Nev. 558, 558 (1970) Kanable v. Birch
JEANNE KANABLE, as Petitioner in the Estate of EDWARD O. BIRCH, aka EDWARD
BIRCH, Deceased, Appellant, v. MARIE C. BIRCH, Respondent.
No. 6183
July 6, 1970 471 P.2d 237
Appeal from order granting summary judgment, Eighth Judicial District Court, Clark
County; Thomas J. O'Donnell, Judge.
Petition for probate of holographic will. The district court granted summary judgment in
favor of contestant, and petitioner appealed. The Supreme Court, Collins, C. J., held that a
bare factual showing that date on a holographic will which is admittedly different from date it
was executed is not sufficient as a matter of law to preclude its probate.
George E. Graziadei, of Las Vegas, for Appellant.
Dorsey & Taylor, of Las Vegas, for Respondent.
1. Wills.
Power to make wills is a power granted solely by statute and is subject to limitations imposed by statute.
2. Wills.
Law prefers a construction of a will favorable to testacy where instrument will admit of such a
construction.
3. Wills.
A bare factual showing that date on a holographic will which is admittedly different from date it was
executed is not sufficient as a matter of law to preclude its probate. NRS 133.090.
OPINION
This is an appeal from an order of the lower court granting summary judgment in favor of
respondent, contestant to the offer in probate of a holographic will. We reverse the order and
judgment and remand the contest for trial.
Edward O. Birch resided in Las Vegas and was married to respondent, Marie C. Birch.
They were the parents of two sons. While they were married, Edward prepared two different
wills, in each of which Marie was named a devisee and legatee. On April 16, 1968, they were
divorced. Thereafter, on June 1, 1968, Edward drafted a holographic will leaving his entire
estate to Marie.
On November 27, 1968, Edward purported to execute a holographic will, in which he
named his mother, two sons, and petitioner, Jeanne Kanable, who claims to be his financee,
devisees and legatees. That document, however, bore the date June 29, 1968. Edward died
January 3, 1969, leaving an estate of approximately $5,000, and on March 5, 1969, Jeanne
petitioned for probate of the document as Edward's holographic will. The petition was
contested by Marie, who claimed the holographic will offered by Jeanne was not dated in
accordance with NRS 133.090.
1
She further alleged that at the time of executing the will
offered by Jeanne, Edward was not of sound mind and was wholly lacking in testamentary
capacity, and Jeanne wrongfully and fraudulently induced him to execute the will,
"preventing him from making provision for the natural objects of his testamentary
disposition."
____________________

1
NRS 133.090 reads:
1. A holographic will is one that is entirely written, dated and signed by the hand of the testator himself. It is
subject to no other form, and may be made in or out of this state and need not be witnessed.
2. Every person of sound mind, over the age of 18 years, including married women, may, by last
holographic will, dispose of all of his or her estate, real or personal, the same being chargeable with the payment
of the testator's debts.
3. Such wills shall be valid and have full effect for the purpose for which they are intended.
will, preventing him from making provision for the natural objects of his testamentary
disposition. Marie offered the three prior wills of Edward for probate.
On July 7, 1969, Marie moved for summary judgment on the ground that the purported
will offered by Jeanne Kanable was so improperly dated on the face thereof that, as a matter
of law, the said document cannot be admitted to probate as a Last Will and Testament.
Jeanne opposed that motion and offered her affidavit to the effect that Edward Birch had
written the will at approximately 4:00 a.m. the morning of November 27, 1968, at her home
in her presence and that of her son. The will, however, was dated June 29, 1968. She said that
she saw Birch place that date on the will and he told her it was because he intended it to take
effect as of that date, though he knew the date at the time was November 27, 1968. On
November 7, 1969, the trial judge granted the motion for summary judgment. This appeal is
taken from that grant of summary judgment.
1. This court has never before had occasion to interpret NRS 133.090. Courts in other
states, which also authorize holographic wills, have interpreted similar statutes. See 2 Page on
the Law of Wills, 20.1 (Bowe-Parker Rev. 1960).
[Headnotes 1, 2]
2. The power to make wills is a power granted solely by statute and is subject to the
limitations imposed by statute. In re Walters' Estate, 60 Nev. 172, 104 P.2d 968 (1940). But
the law prefers a construction of a will favorable to testacy where the instrument will admit of
such a construction. Tsirikos v. Hatton, 61 Nev. 78, 116 P.2d 189 (1941); Soady v. First
National Bank, 82 Nev. 97, 411 P.2d 482 (1966); In re Moody's Estate, 257 P.2d 709
(Cal.Dist.Ct.App. 1953).
3. NRS 133.090 does not specify what date the will must bear, whether the date it was
signed or some other, but simply that it be written, dated and signed by the hand of the
testator himself. That statutory wording is nearly identical to Calif. Probate Code 53, and
both of these statutes are descendants from the Code Napoleon 970, which read: An
holographic testament shall not be valid, unless it be written entirely, dated and signed by the
testator with his own hand: it is subjected to no other form. [2 Page on the Law of Wills,
20.2, at 281, n. 1 (Bowe-Parker Rev. 1960).]
4. As the French interpreted the Code Napoleon, the date must be the exact day, month,
and year in which the will was drawn. 5 Calif.L.Rev. 266, 267 (1917). American courts have
not gone so far.
not gone so far. Montana, which follows a substantial compliance rule, has held that the day
of the month is not necessary to have a validly dated holographic will. In re Irvine's Estate,
139 P.2d 489 (Mont. 1943). California, on the other hand, which requires strict compliance
with the requirement as to handwriting, date and signature, has held that the date must be
complete. In re Vances' Estate, 162 P. 103 (Cal. 1916). Utah is in accord, In re Love's Estate,
285 P. 299 (Utah 1930), as is Louisiana, Succession of Bendily, 132 So.2d 693 (La.Ct. App.
1961).
5. Notwithstanding the strictness with which California interprets its holographic will
statute, its Supreme Court held such a will could be probated even though the year was
obviously erroneous. In In re Fay's Estate, 78 P. 340 (Cal. 1904), it was stated: An
olographic will must be dated for the reason that the Legislature has said so, but we do not
think it would be a sound rule to hold that any mistake or error in the date would invalidate
the will. It will be presumed that the date given is the true date. We apprehend that cases will
rarely occur in which this is not so. If it becomes necessary in any case upon a question as to
the sanity of the testator or probably other questions, the true time at which the will was made
may be inquired into; but we hold that simply showing that an holographic will was made at a
time different from that written therein will not invalidate it. The date is not the material
thing, although made necessary by the statute. It is a means of identification, and aids in
determining the authenticity of the will; but the main and essential thing is that the will be
wholly written and signed by the hand of the testator. 78 P. at 341. Accord, In re Vance's
Estate, 162 P. 103 (Cal. 1916). See particularly In re Clisby's Estate, 78 P. 964 (Cal. 1904), a
case closely in point with the issue here.
[Headnote 3]
6. We hold a bare factual showing that the date on a holograhic will which is admittedly
different from the date it was executed is not sufficient as a matter of law to preclude its
petition for probate. We believe many factual issues remain which must be resolved at a trial.
Under those circumstances summary judgment is not proper. Zuni Constr. Co. v. Great Am.
Ins. Co., 86 Nev. 364, 468 P.2d 980 (1970); Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d
979 (1963).
7. Respondent relies solely upon two cases to support her position. They are: Succession
of Bendily, 132 So.2d 693 (La. Ct.App. 1961), and Succession of Buck, 23 So.2d 215 (La.
1945). Succession of Bendily suggests the date is unimportant so long as some complete date
is given. The date found on the will in that case was so unclear that the court could not be
certain what date was written. In Succession of Buck, the court was again faced with a date
that could not be made out because of the handwriting. Furthermore, the court found that the
testator could not have written the will himself at any time near the date claimed by the
petitioner to be the date the will was written. We do not feel either case controls the limited
issue presented here.
Summary judgment in favor of respondent is reversed and the cause remanded for further
proceedings.
____________
86 Nev. 562, 562 (1970) Rudin v. Nevada R.E. Advisory Comm'n
RON RUDIN and RON RUDIN REALTY AND CONSTRUCTION CO., Appellants, v.
NEVADA REAL ESTATE ADVISORY COMMISSION, Respondent.
No. 6085
July 7, 1970 471 P.2d 658
Appeal from judgment of the Eighth Judicial District Court, Clark County; Alvin N.
Wartman, Judge.
Appeal by licensees from decision of the district court affirming Real Estate Advisory
Commission's decision suspending real estate licenses of licensees for period of six months
for several violations of state real estate code. The Supreme Court, Thompson, J., held that
where licensees were charged with several violations of state real estate code, individual
licensee's assertion of his Fifth Amendment privilege not to answer question concerning one
of several charges upon ground that his answer might tend to incriminate him concerned only
one of several violations alleged, and there was ample evidence to support Real Estate
Advisory Commission's findings in respect to each violation including subject concerning
which individual licensee refused to give testimony, any adverse inference drawn from such
refusal to testify, although impermissible, was harmless with regard to Commission's
suspension of licensees' real estate licenses.
Affirmed.
W. Owen Nitz, of Las Vegas, for Appellants.
W. Bruce Beckley, of Las Vegas, for Respondent.
1. Brokers.
Where record showed that copy of complaint analysis prepared by chief investigator for state Real
Estate Advisory Commission was made available to licensees' counsel during hearing and could have been
used to cross-examine chief investigator had licensees' counsel elected to do so, and licensees' counsel did
not request continuance for purpose of studying report as he could have if time was needed to do so, tardy
delivery of report did not prejudice licensees in their hearing before Commission for alleged violations of
real estate code. NRS 645.001 et seq., 645.310, subds. 3-5.
Generally, combination of investigating, prosecuting and judging functions in one administrative agency
does not constitute denial of due process.
Where investigation of licensees' alleged violation of state real estate code was conducted by
investigators, licensees' prosecution was conducted by counsel for state Real Estate Advisory Commission,
and decision was made by Commission itself after Commission had heard evidence and examined exhibits
and changed proposed decision propounded by prosecutor as to penalty, thus establishing exercise of an
independent judgment by the Commission, preparation of proposed findings and decisions by prosecutor
did not result in denial of due process to licensees. NRS 645.001 et seq., 645.310, subds. 3-5.
4. Brokers.
Where decision of state Real Estate Advisory Commission suspending real estate licenses of licensees for
six months for separate violations of state real estate code was supported by substantial evidence and was
clothed with presumption of validity, and, when hearing on matter occurred, neither real estate code nor
administrative procedure act required submission of proposed findings and decision to the adversary,
failure of counsel for Commission to submit copy of proposed findings and decision to licensees' counsel
was not cause to set aside agency decision. NRS 233B.126, 645.001 et seq., 645.310, subds. 3-5.
5. Constitutional Law; Witnesses.
Self-incrimination clause of Fifth Amendment is applicable to the states and to disciplinary proceedings
for misconduct. U.S.C.A.Const. Amend. 5.
6. Brokers.
Where licensees were charged with several violations of state real estate code, individual licensee's
assertion of his Fifth Amendment privilege not to answer question concerned only one of several violations
alleged, and evidence to support Real Estate Advisory Commission's findings in respect to each violation
including subject concerning which individual licensee refused to give testimony was ample, any adverse
inference drawn from such refusal to testify, although impermissible, was harmless with
regard to Commission's suspension of licensees' real estate licenses. NRS 645.001 et
seq., 645.310, subds.
refusal to testify, although impermissible, was harmless with regard to Commission's suspension of
licensees' real estate licenses. NRS 645.001 et seq., 645.310, subds. 3-5; U.S.C.A.Const. Amend. 5.
OPINION
The district court affirmed a decision of the Nevada Real Estate Advisory Commission
suspending the real estate licenses of the appellants for a period of six months for several
violations of the real estate code, ch. 645 NRS.
1
The appellants contend that the
administrative hearing before the Commission was unfair and denied them due process. The
appellants were properly notified of the charges against them, of the hearing to be held
thereon, and were represented throughout by competent counsel of their choice. Their
contention that the administrative hearing was unfair rests mainly upon three incidents which,
in combined effect, are claimed to have destroyed any possibility of a fair hearing. The
incidents are: first, the appellants were not timely served with a copy of a report relating to
the matter as required by statute; second, counsel for the Commission, who acted in the role
of prosecutor, prepared proposed findings and decision and sent them to the Commission
without notice to the appellants; third, the Commission, in deciding the matter, drew an
impermissible inference from appellant Ron Rudin's refusal to testify with regard to one
aspect of the charges against him.
[Headnote 1]
1. NRS 645.680(4) provides that at least 20 days prior to the hearing the licensee shall
receive copies of any and all communications, reports, affidavits or depositions in
possession of the real estate division touching or relating to the matter in question. The chief
investigator for the Commission had prepared a complaint analysis during the course of his
investigation of Rudin. The licensees, Rudin and Rudin Realty and Construction Co., did not
receive a copy of that document prior to the hearing. The Commission's explanation for
failing to deliver it to the licensees is that it is an internal document and not within the
contemplation of the statute. We do not decide
____________________

1
The most significant violations concerned the handling of money in a manner condemned by NRS
645.310(3)(4)(5). Although the sufficiency of the evidence is questioned, our review of the record shows this
point since the record shows substantial evidence to support the decision. We shall not recite it for to do
so would serve no useful purpose.
this point since the record shows that a copy was made available to counsel for the licensees
during the hearing and could have been used by him to cross-examine the chief investigator
had he elected to do so. Cf. Mears v. State, 83 Nev. 3, 8, 422 P.2d 230 (1967); Walker v.
State, 78 Nev. 463, 468, 376 P.2d 137 (1962); State v. Bachman, 41 Nev. 197, 208, 168 P.
733 (1917). If time was needed to study the report, a continuance for that purpose could have
been requested. Counsel did not so request. In these circumstances the tardy delivery of the
report did not prejudice the licensees. Nevada Tax Commission v. Mackie, 75 Nev. 6, 12, 333
P.2d 985 (1959).
2. After the hearing, counsel for the Commission, who prosecuted the matter, prepared
proposed findings and decision and submitted them to the Commission without notice to the
appellants-licensees. The proposals were adopted verbatim except as to the penalty to be
imposed.
[Headnotes 2, 3]
It is not uncommon in administrative law to find the combination of investigating,
prosecuting and judging functions. As a general proposition, such a combination, standing
alone, does not constitute a denial of due process. 2 Davis, Administrative Law Treatise
13.02. Such combination of functions possesses the potential for unfairness, but unfairness is
not its inevitable consequence. In the matter at hand that combination did not exist. The
investigation was conducted by investigators, the prosecution, by counsel for the
Commission, and the decision was made by the Commission itself. There is nothing to
suggest that the prosecutor decided the case. The Commission heard the evidence and
examined the exhibits. This alone sets this proceeding apart from Morgan v. United States,
304 U.S. 1 (1938), so heavily relied upon by the appellants. The Commission was free to
accept, modify or reject the proposed findings and decision submitted by counsel. Indeed, the
proposed decision was changed as to penalty, thus establishing the exercise of an independent
judgment by the Commission. It is preferable that one trained in law prepare those
documents. In court litigation the findings and judgment routinely are prepared by counsel for
the prevailing party. We see no sound reason for denouncing that practice in administrative
agency matters.
[Headnote 4]
Counsel for the Commission did not submit a copy of the proposed findings and decision
to counsel for the licensees. When this hearing occurred, neither the real estate code nor the
administrative procedure act required such submission to the adversary.
the administrative procedure act required such submission to the adversary. The
administrative procedure act now seems to require it. NRS 233B.126. In any event, it is a
preferred practice. In this instance, however, the failure to do so does not give us cause to set
aside the agency decision since it is supported by substantial evidence and is clothed with the
presumption of validity. Randono v. Nevada Real Estate Commission, 79 Nev. 132, 379 P.2d
537 (1963). We may not assume that the decision would have been different had counsel for
the licensees been afforded an opportunity to object to the proposed findings and decision.
3. In finding against the licensees the Commission noted that Ron Rudin had refused to
answer a question concerning one of the several charges, upon the ground that his answer
might tend to incriminate him. It was his privilege to claim that constitutional protection, and
no effort was made to compel an answer. The licensees contend, however, that it was
impermissible for the Commission to draw an adverse inference from such refusal to answer.
[Headnotes 5, 6]
The self-incrimination clause of the Fifth Amendment is applicable to the states [Malloy v.
Hogan, 378 U.S. 1 (1964)] and to disciplinary proceedings for misconduct. Spevack v. Klein,
385 U.S. 511 (1967). In Spevack, the High Court ruled that a lawyer could not be disbarred
solely because he refused to testify at a disciplinary proceeding on the ground that his
testimony would tend to incriminate him. The dishonor of disbarment and the deprivation of a
livelihood cannot be the price exacted for asserting the privilege. A violation of this Fifth
Amendment privilege may, however, be harmless in the context of a particular case.
Chapman v. California, 386 U.S. 18 (1967). Before such a violation may be deemed
harmless, we must be able to declare our belief that it was harmless beyond a reasonable
doubt. Chapman v. California, supra. We so declare in this instance. The appellants-licensees
were charged with several violations. Rudin's assertion of his Fifth Amendment privilege
concerned only one of those violations. There was ample evidence to support the
Commission's findings in respect to each violation including the subject concerning which
Rudin refused to give testimony. In these circumstances, the inference from such refusal to
testify, though impermissible, was truly harmless with regard to the result reached.
4. Other assertions of error have been examined and are without merit.
without merit. The district court properly sustained the Commission.
Affirmed.
____________
86 Nev. 567, 567 (1970) Basurto v. State
RAPHAEL BASURTO, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 6118
July 7, 1970 472 P.2d 339
Appeal from a conviction of infamous crime against nature. Eighth Judicial District Court
Clark County; Alvin N. Wartman, Judge.
Defendant was convicted in the district court of committing the infamous crime against
nature, and appeal was taken. The Supreme Court, Zenoff, J., held, inter alia, that testimony
elicited from victim who was allegedly forced to engage in acts of sexual perversion
presented evidence sufficient for jury to conclude that he was not an accomplice, so that no
corroborating evidence of such testimony was required, and that charge which stated, inter
alia, that dissenting juror should consider whether doubt in his mind was a reasonable one
when it made no impression on minds of other jurors equally honest and intelligent, who had
heard the same evidence, was not prejudicial where the charge clearly stated that no juror was
to give up any conscientious conviction he might hold.
Affirmed.
1. Infants.
Defendant was properly before the court as a person over 18 and of full age, under statute providing
that every person of full age who commits the infamous crime against nature shall be punished, and
statute applying to capacity to contract in civil cases, under which defendant attempted to classify himself
as being under 21 and therefore ineligible as not being of "full age," was not
applicable.
being under 21 and therefore ineligible as not being of full age, was not applicable. NRS 129.010,
201.190.
2. Criminal Law.
Participant in an act of sexual perversion because of threats and in fear of great bodily harm is not an
accomplice, and such person's testimony need not be corroborated.
3. Criminal Law.
Whether one is an accomplice is normally a question of fact for the jury.
4. Criminal Law.
Testimony elicited from victim who was allegedly forced to engage in acts of sexual perversion presented
evidence sufficient for jury to conclude that he was not an accomplice, so that no corroborating evidence of
such testimony was required.
5. Criminal Law.
Charge which urges minority in jury deliberations to reconsider viewpoint of majority will be approved
so long as it makes clear to jury that each member has a duty to conscientiously adhere to his own honest
opinion and so long as charge avoids creating the impression that there is anything improper, questionable
or contrary to good conscience for a juror to create a mistrial.
6. Criminal Law.
Judge must not coerce jury into making a decision.
7. Criminal Law.
Charge which stated, inter alia, that dissenting juror should consider whether doubt in his mind was a
reasonable one when it made no impression on minds of other jurors equally honest and intelligent, who
had heard the same evidence, was not prejudicial where the charge clearly stated that no juror was to give
up any conscientious conviction he might hold.
OPINION
Eric Robichaud, invited by Raphael Basurto who was a casual acquaintance for about eight
years, attended a party at which he was compelled to commit certain homosexual acts upon
other people at the party. In his testimony, he detailed the coercion exercised upon him and
the beatings that followed the acts which took place at the dwelling and again in the desert
and Basurto's involvement in these activities. In one instance he was threatened with murder.
The trial judge instructed the jury on consent, defined an accomplice and its significance
(that an accomplice's testimony must be corroborated) and also gave the Allen' charge,
which in essence encourages juries to reach a verdict. The jury deliberated approximately
three hours and found Basurto guilty of committing infamous crimes against nature in the
house where the party occurred and in the desert.
Basurto seeks to overturn his conviction on three grounds: (1) that he was 18 years old at
the time and therefore the statute, NRS 201.190, does not apply to him; (2) that Robichaud
was a willing accomplice and his testimony should have been, but was not corroborated; and
(3) that the Allen charge was prejudicial.
[Headnote 1]
1. NRS 201.190 provides that every person of full age who commits the infamous crime
against nature shall be punished: . . . NRS 62.020(1)(a) defines an adult as a person of 18
years of age or older. Basurto was 18 years old at the time of the offense. He attempts to
classify himself as being under 21 in the language of NRS 129.010 and therefore ineligible as
not being of full age.
Chapter 62 of the Nevada Statutes relating to juveniles is more in keeping with
determining who comes within the law relating to the commission of crimes than NRS
129.010 which applies to the capacity to contract in civil cases. Sound reasoning compels us
to reject his contention. He is properly before the court as a person over 18 and of full age.
2. Basurto argues that Eric Robichaud freely and voluntarily participated in the acts now
complained of and therefore was an accomplice. As an accomplice corroborating evidence
would be needed to justify a conviction.
[Headnotes 2-4]
A participant in an act of sexual perversion because of threats and in fear of great bodily
harm is not an accomplice and such person's testimony need not be corroborated. People v.
Bias, 339 P.2d 204 (Cal.App. 1959). Whether one is an accomplice is normally a question of
fact for the jury. State v. Carey, 34 Nev. 309, 122 P. 868 (1912); People v. Bias, supra. The
complaining witness, Robichaud, placed an abundance of evidence before the jury to allow
that body to decide whether or not he was a willing participant in the lewd acts. His
recitations of the beatings and the events surrounding them were sufficient to present the
question before the jury that he did not voluntarily consent and was therefore not an
accomplice. The jury was fully instructed on what an accomplice was and that if found to be
an accomplice, his testimony had to be corroborated. Based upon the testimony elicited from
Robichaud the evidence was sufficient for the jury to conclude that he was not an accomplice.
No corroborating evidence was then required and defendant's objection fails.
3. Passage of time and years of experience are eroding the reasons that justified the
Allen charge when it was first given birth.
birth. (Allen v. United States, 164 U.S. 492 (1896).) Its service was to urge the minority in
jury deliberations to reconsider the viewpoint of the majority. Spurred by judicial command
its function avoided costly hung juries.
[Headnotes 5, 6]
The realization today is that it is just as cogent to require the majority to reconsider the
viewpoint of the minority. Juries on today's trials are sufficiently sophisticated to warrant
abandonment of judicial interference from their deliberations. United States v. Fioravanti,
412 F.2d 407, 417 (3rd Cir. 1969); Posey v. United States, 416 F.2d 545, 552 (5th Cir. 1969).
The charge is approved so long as it makes clear to the jury that each member has a duty to
conscientiously adhere to his own honest opinion and the charge avoids creating the
impression that there is anything improper, questionable or contrary to good conscience for a
juror to create a mistrial. Posey v. United States, supra; United States v. Meyers, 410 F.2d
693 (2nd Cir. 1969). The judge must not coerce a jury into making a decision. United States
v. Brown, 411 F.2d 930, 932 (7th Cir. 1969); People v. Baumgartner, 332 P.2d 366 (Cal.App.
1958); United States v. Fioravanti, supra.
[Headnote 7]
In this case the charge was clear that no juror was to give up any conscientious conviction
he may hold.
1
The coercive language and effect of State v. Hall, 54 Nev. 213, 243-244, 13
P.2d 624 (1932), is absent and this is desirable. While the choice of State v. Hall, supra, as
against this new look is not now squarely presented our preference is expressed in this
opinion. The dynamite charge should be avoided. United States v. Fioravanti, supra, at 419;
Burrup v. United States, 371 F.2d 556 (10th Cir. 1967); People v. Richards, 237 N.E.2d S4S,
S52 {Ill.App.
____________________

1
The jury was instructed as follows: The Court instructs the jury that although the verdict to which each
Juror agrees must, of course, be his own conclusion, and not a mere acquiescence in the conclusion of his
fellows, yet, in order to bring twelve minds to a unanimous result the Jurors should examine with candor the
questions submitted to them, with due regard and deference to the opinions of each other. A dissenting Juror
should consider whether the doubt in his mind is a reasonable one, when it makes no impression on the minds of
so many Jurors equally honest, equally intelligent with him, who have heard the same evidence, with an equal
desire to arrive at the truth, under the sanction of the same oath. You are not to give up a conscientious
conclusion after you have reached such a conclusion finally, but it is your duty to confer with your fellow Jurors
carefully and earnestly, and with a desire to do absolute justice both to the State and to the defendant.
N.E.2d 848, 852 (Ill.App. 1968); Sullivan v. United States, 414 F.2d 714 (9th Cir. 1969);
State v. Thomas, 342 P.2d 197 (Ariz. 1959); State v. Randall, 353 P.2d 1054 (Mont. 1960).
2

Affirmed.
____________________

2
SUGGESTED ABA JURY INSTRUCTIONS STANDARDS
5.4 LENGTH OF DELIBERATIONS; DEADLOCKED JURY.
(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
(i) that in order to return a verdict, each juror must agree thereto;
(ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement,
if it can be done without violence to individual judgment;
(iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence
with his fellow jurors;
(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his
opinion if convinced it is erroneous; and
(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely
because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.
(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue
their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not
require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable
intervals.
____________
86 Nev. 571, 571 (1970) State Bd. Parole Comm'rs v. Turner
STATE BOARD OF PAROLE COMMISSIONERS, Appellant, v. WADE M. TURNER,
Respondent.
No. 6211
July 7, 1970 471 P.2d 252
Appeal from order setting aside determination by appellant that respondent was ineligible
to apply for parole and ordering appellant to allow respondent to apply for parole and to
consider such application. First Judicial District Court, Carson City; Frank B. Gregory, Judge.
State Board of Parole Commissioners determined that prisoner was ineligible to apply for
parole, and prisoner petitioned for writ of certiorari. The district court granted petition and
ordered Board to permit prisoner to apply for parole, and state appealed. The Supreme Court,
Mowbray, J., held that term "previously" in statute authorizing parole for any prisoner who
has not previously been more than three times convicted of a felony referred to felony
convictions prior to present conviction, and in considering number of felonies for parole
eligibility, offense for which prisoner was then serving time could not be considered.
previously in statute authorizing parole for any prisoner who has not previously been more
than three times convicted of a felony referred to felony convictions prior to present
conviction, and in considering number of felonies for parole eligibility, offense for which
prisoner was then serving time could not be considered.
Affirmed.
Harvey Dickerson, Attorney General, and Robert A. Groves, Deputy Attorney General, of
Carson City, for Appellant.
Jack Christensen, of Yerington, for Respondent.
Pardon and Parole.
Previously in statute authorizing parole for any prisoner who has not previously been more than three
times convicted of a felony refers to felony convictions prior to present conviction, and in considering
number of felonies for parole eligibility, offense for which prisoner is then serving time may not be
considered. NRS 213.110, subd. 1.
OPINION
This is an appeal from the order of the District Court granting respondent Wade M.
Turner's petition for a writ of certiorari and ordering appellant State Board of Parole
Commissioners to permit Turner to apply for parole.
Turner is serving time in the Nevada State Prison as a result of a guilty plea to a charge of
attempted larceny, a felony. He has three prior felony convictions: attempted bank robbery
and two counts of armed robbery. He is desirous of applying for parole, and the appellant
Board has refused to entertain his application, on the ground that he is barred from applying
under the mandate of NRS 213.110, subsection 1, which provides in part that . . . any
prisoner who is now . . . imprisoned in the state prison . . . and who has not previously been
more than three times convicted of a felony . . . may be allowed to go upon parole. . . .
(Emphasis added.)
1
It is the Board's position that Turner has been convicted of four
felonies and therefore may not apply for parole.

____________________

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 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.
It is the Board's position that Turner has been convicted of four felonies and therefore may
not apply for parole. Turner maintains that the adverb previously refers to felony
convictions prior to his present conviction. The district judge so held, and so do we.
We need look only to the predecessor of NRS 213.110, which was chapter 125, section 1,
Statutes of Nevada 1929, at page 158, to resolve the question. That statute provided, in
pertinent part: . . . [A]ny prisoner . . . who has not previously been convicted of a felony . . .
may be allowed to go upon parole. . . . Under the Board's interpretation of previously, no
prisoner who was an inmate of the state prison when the 1929 statute was effective would
have been eligible for parole, for they all had been convicted of a felonyotherwise they
would not have been in the penitentiary. NRS 193.130, 193.140. We hold that previously
means prior to the present conviction and that in considering the number of felonies for
parole eligibility, the offense for which the prisoner is then serving time may not be
considered.
The order of the district court is affirmed.
____________
86 Nev. 573, 573 (1970) Criswell v. State
ELMER FINCH CRISWELL, Appellant, v. STATE
No. 5927
July 9, 1970 472 P.2d 342
Appeal from judgment of district court finding that appellant's confession, which had been
presented to the jury, was voluntary and was competently given. Fourth Judicial District
Court, Elko County; John E. Gabrielli, Judge.
Defendant was convicted in the Fourth Judicial District Court for Elko County, George F.
Wright, J., of second-degree murder, and he appealed. The Supreme Court, 84 Nev. 459, 443
P.2d 552 (1968), remanded with directions. The District Court, Elko County, John E.
Gabrielli, J., found that defendant's confession was voluntary and was competently given. On
defendant's appeal, the Supreme Court, Mowbray, J., held that fact that defendant was
suffering from schizophrenic reaction, paranoid type, was factor to be considered by district
court in determining whether defendant's confession was voluntarily given, but did not in
itself necessarily preclude admissibility of defendant's confession so long as he was
mentally capable of understanding meaning and consequences of his statements.
court in determining whether defendant's confession was voluntarily given, but did not in
itself necessarily preclude admissibility of defendant's confession so long as he was mentally
capable of understanding meaning and consequences of his statements.
Affirmed.
Lester H. Berkson, of Stateline, and Jerry C. Lane, of Carson City, for Appellant.
Harvey Dickerson, Attorney General, and Mark C. Scott, Jr., District Attorney, Elko
Criminal Law.
That defendant was suffering from schizophrenic reaction, paranoid type, was factor to be considered by
district court in determining whether defendant's confession was voluntarily given, but did not in itself
necessarily preclude admissibility of defendant's confession so long as he was mentally capable of
understanding meaning and consequences of his statements.
OPINION
A jury found appellant, Elmer Finch Criswell, guilty of second degree murder. He
appealed to this court from his judgment of conviction, asserting numerous assignments of
error. See Criswell v. State, 84 Nev. 459, 443 P.2d 552 (1968).
1
We rejected all the
assignments except that we remanded the case to the district court with instructions that the
district judge conduct an evidentiary hearing to determine whether Criswell's oral confession
of the crime to Assistant Police Chief William Brodhead, which was presented to the jury,
was voluntarily given by Criswell. See Jackson v. Denno, 378 U.S. 368 (1964). In our remand
we instructed the lower court that, if the district judge found that Criswell's confession was
not voluntarily given, then his conviction must be set aside and a new trial granted. If on the
other hand the district judge found that Criswell's confession was voluntarily given and
therefore properly presented to the jury, his conviction must stand. The evidentiary hearing
was conducted before the Honorable John E. Gabrielli.
2
Numerous persons, including lay
witnesses, police officers, attorneys, three psychiatrists, and a clinical psychologist as
well as Criswell, appeared and testified at the hearing.
____________________

1
The facts are recited in that opinion, and we shall not restate them in this one.

2
The Honorable George F. Wright of the Fourth Judicial District presided at Criswell's trial.
witnesses, police officers, attorneys, three psychiatrists, and a clinical psychologist as well as
Criswell, appeared and testified at the hearing. It would serve no useful purpose to summarize
their testimony in this opinion. We have read the transcript of the proceedings, and we are
satisfied that the record supports the finding of the district judge that this Defendant
[Criswell] at all times material hereto was able to and did make cognitive judgments (despite
his emotional mental disturbance) and intelligently and competently waived his constitutional
rights hereinvolved [sic] and that the confession to William Brodhead on July 28, 1966 was
voluntarily given in full appreciation of his situation and possible consequences thereof.
The principal thrust of Criswell's argument on this appeal from the district judge's ruling is
that the testimony of the psychiatrists and the psychologist shows that Criswell is presently
suffering from a schizophrenic reaction, paranoid in type, and that he was probably suffering
from the same mental illness in July 1966, when he made his confession. Criswell's counsel
argues that, because of Criswell's mental condition, any confession made by him may not be
considered voluntary and is therefore inadmissible. We do not agree.
The term schizophrenic, indicating a splitting of the mind, today has largely replaced the
older term, dementia praecox. Catatonic schizophrenics may commit serious criminal acts.
They display a sweeping abandonment of conventional behavior with the breaking through
of deeply repressed crude factors. Coon, Psychiatry for the Lawyer: The Principal
Psychoses, 31 Corn.L.Q. 327, 353 (1946). We may not, however, rule as a matter of law that
one who is a paranoid schizophrenic may not give a perfectly voluntary confession. Indeed,
Dr. Sterling A. MacKinnon, one of the psychiatrists who testified for Criswell, stated at the
hearing:
. . . There are degrees of this illness, of course, and there are lots of people who are
walking the street who have paranoid schizophrenia, I'm sorry to say, or some form of
paranoia. There is a saying in psychiatry that if you study very carefully the lives of some of
our biggest business tycoons you would discover they were very paranoia [sic] and perhaps
that is a good thing because that is how they can cope with their competitors, by being
suspicious of them.
Certainly such a mental condition is a factor that, along with all other relevant factors, may
be considered by a district judge in determining whether a confession was voluntarily given.
But such a mental disturbance itself will not necessarily preclude the admissibility of a
confession by one afflicted, so long as the defendant is mentally capable of understanding
the meaning and consequences of his statements.
long as the defendant is mentally capable of understanding the meaning and consequences of
his statements. People v. Lara, 432 P.2d 202 (Cal. 1967); People v. Tipton, 309 P.2d 813
(Cal. 1957); People v. Hester, 237 N.E.2d 466 (Ill. 1968); State v. Ordog, 212 A.2d 370 (N.J.
1965); State v. Allen, 406 P.2d 950 (Wash. 1965).
____________
86 Nev. 576, 576 (1970) Azevedo v. Minister
J. L. AZEVEDO and UNITED STATES FIDELITY AND GUARANTY COMPANY,
Appellants, v. BOLTON F. MINISTER, Respondent.
No. 6096
July 9, 1970 471 P.2d 661
Appeal from judgment of First Judicial District Court, Carson City; Richard L. Waters, Jr.,
Judge.
Suit concerning enforceability of an oral agreement to purchase 1,500 tons of hay. The
district court upheld validity of agreement, and appeal was taken. The Supreme Court,
Mowbray, J., held that record supported findings that confirming memorandum referring to
bales of hay remaining to be hauled on buyer's purchase and asking when buyer planned to
haul balance of hay and sent on January 21, after oral agreement was made in early
November, was sufficient to come within provision of Uniform Commercial Code
eliminating defense of statute of frauds when there are confirming memoranda.
Affirmed.
Sidney W. Robinson and Frank Cassas, of Reno, for Appellants.
Johnson & Sloan and Virgil D. Dutt, of Reno, for Respondent.
1. Frauds, Statute of.
Uniform Commercial Code seeks to limit defense of statute of frauds to only those cases where there is a
definite possibility of fraud. NRS 104.2201.
2. Sales.
Sale of hay is within definition of sale of goods within meaning of Uniform Commercial Code. NRS
104.2105, subd. 1, 104.2107, subd. 2.
Statute of frauds is no defense to portion of oral contract that has been performed. NRS 104.2201,
subds. 2, 3(c).
Under provision of Uniform Commercial Code eliminating defense of statute of frauds when there are
confirming memoranda, party alleging contract still has burden of proving that oral contract was entered
into before the written confirmation. NRS 104.2201, subd. 2.
Record supported trial judge's finding that memoranda sent by seller of hay referring to bales of hay yet
to be hauled on buyer's purchase and asking when buyer planned to haul balance of hay sufficiently made
reference to oral agreement between parties to come within provision of Uniform Commercial Code
eliminating defense of statute of frauds for oral agreement when there are confirming memoranda. NRS
104.2201, subd. 2.
What is a reasonable time in which confirming memoranda must be sent after oral contract is made so as
to come within provision of Uniform Commercial Code eliminating defense of statute of frauds when there
are confirming memoranda must be decided by trier of facts under all circumstances of case. NRS
104.2201, subd. 2.
Record supported trial judge's finding that confirming memorandum sent January 21 after oral agreement
for purchase of hay was made in early November and buyer deposited $20,000 in escrow account and
began hauling hay was made within reasonable time so as to satisfy provision of Uniform Commercial
Code eliminating defense of statute of frauds when there are confirming memoranda. NRS 104.2201,
subd. 2.
OPINION
This case centers about the enforceability of an oral agreement to purchase 1,500 tons of
hay. The principal issue presented for our determination is whether the periodic accountings
prepared by the seller and sent to the buyer covering the sale of the hay constituted
confirming memoranda within the provisions of NRS 104.2201(2) of the Uniform
Commercial Code and, if so, whether the seller sent them within a reasonable time as
required by that statute so that the oral agreement is not barred by the statute of frauds. The
district judge ruled that the mandates of NRS 104.2201(2) had been satisfied, and he upheld
the validity of the agreement. We agree, and we affirm the judgment of the lower court.
1. The Facts.
Appellant J. L. Azevedo is a rancher who buys and sells hay. He is licensed to do so, and
he is bonded by appellant United States Fidelity and Guaranty Company. Respondent Bolton
F. Minister operates the Minister Ranch near Yerington, Nevada, where he raises and sells
large quantities of hay.
In early November 1967, Azevedo approached Minister for the purpose of buying hay.
Terms were discussed. Several days later an agreement was reached by telephone. Both
parties acknowledge that Azevedo agreed to purchase hay from Minister at a price of $26.50
per ton for the first and second cuttings and $28 per ton for the third cutting and that the
parties opened an escrow account in a Yerington bank in Minister's favor, where Azevedo
agreed to deposit sufficient funds to cover the cost of the hay as he hauled it from the
Minister Ranch.
1
The parties are in dispute as to the total quantity of hay Azevedo agreed to
purchase. Minister claims Azevedo contracted to purchase 1,500 tons. Azevedo maintains
that they never had an agreement as to quantity. Soon after this telephone conversation,
Azevedo deposited $20,000 in the designated escrow account and began hauling hay from the
Minister Ranch. As Azevedo hauled the hay, Minister furnished him with periodic
accountings, commencing December 4, which specified the dates the hay was hauled, names
of the truckers, bale count, and weight. This arrangement was satisfactory to the parties, and it
continued until the latter part of March 1968, when Minister loaded only two of four trucks
sent by Azevedo for hay, because the funds on deposit in the escrow account were insufficient
to cover all four loads. Azevedo then refused to buy any more hay, and Minister commenced
this action in district court.
2. The Statute of Frauds.
The determination of the legal issues presented for our consideration will turn on our
interpretation of NRS 104.2201(2) of the Uniform Commercial Code. Since the enactment of
the Uniform Commercial Code, sweeping changes have been effectuated in the law of
commercial transactions. NRS 104.2201 provides:
1. Except as otherwise provided in this section a contract for the sale of goods for the
price of $500 or more is not enforcible [sic] by way of action or defense unless there is some
writing sufficient to indicate that a contract for sale has been made between the parties and
signed by the party against whom enforcement is sought or by his authorized agent or
broker.
____________________

1
Azevedo deposited a total sum of $23,000 in the account.
been made between the parties and signed by the party against whom enforcement is sought
or by his authorized agent or broker. A writing is not insufficient because it omits or
incorrectly states a term agreed upon but the contract is not enforcible [sic] under this
subsection beyond the quantity of goods shown in such writing.
2. Between merchants if within a reasonable time a writing in confirmation of the
contract and sufficient against the sender is received and the party receiving it has reason to
know its contents, it satisfies the requirements of subsection 1 against such party unless
written notice of objection to its contents is given within 10 days after it is received.
3. A contract which does not satisfy the requirements of subsection 1 but which is valid
in other respects is enforcible [sic]:
(a) If the goods are to be specially manufactured for the buyer and are not suitable for sale
to others in the ordinary course of the seller's business and the seller, before notice of
repudiation is received and under circumstances which reasonably indicate that the goods are
for the buyer, has made either a substantial beginning of their manufacture or commitments
for their procurement; or
(b) If the party against whom enforcement is sought admits in his pleading, testimony or
otherwise in court that a contract for sale was made, but the contract is not enforcible [sic]
under this provision beyond the quantity of goods admitted; or
(c) With respect to goods for which payment has been made and accepted or which have
been received and accepted (NRS 104.2606).
As with all codifications, it was impossible for the Uniform Commercial Code to
encompass every conceivable factual situation. Realizing this limitation, its drafters couched
much of the language of the text and comments in broad generalities, leaving many problems
to be answered by future litigation.
The development of the action of assumpsit in the fourteenth century gave rise to the
enforceability of the oral promise. Although parties to an action could not be witnesses, the
alleged promise could be enforced on the strength of oral testimony of others not concerned
with the litigation. Because of this practice, a party could readily suborn perjured testimony,
resulting in marked injustice to innocent parties who were held legally obligated to promises
they had never made.
2
The statute of frauds was enacted to preclude this practice.3 The
passage of the statute did not eliminate the problem, but rather, has precipitated a
controversy as to the relative merits of the statute.

____________________

2
2 A. Corbin, Contracts 275, at 2 (1950).
The statute of frauds was enacted to preclude this practice.
3
The passage of the statute did
not eliminate the problem, but rather, has precipitated a controversy as to the relative merits
of the statute. Those favoring the statute of frauds insist that it prevents fraud by prohibiting
the introduction of perjured testimony.
4
They also suggest that it deters hasty action, in that
the formality of a writing will prevent a person from obligating himself without a full
appreciation of the nature of his acts.
5
Moreover, it is said, since business customs almost
entirely conform to the mandates of the statute, an abolition of the statute would seriously
disrupt such affairs.
6

On the other hand, in England the statute of frauds has been repealed.
7
The English base
their position upon the reasoning that the assertion of the technical defense of the statute aids
a person in breaking a contract and effects immeasurable harm upon those who have
meritorious claims.
8

It is further maintained by the advocates of the English position that the rationale for the
necessity of the statute has been vitiated, because parties engaged in litigation today may
testify as witnesses and readily defend against perjured testimony.
9

[Headnote 1]
The Uniform Commercial Code, however, has attempted to strike a balance between the
two positions by seeking to limit the defense of the statute to only those cases where there is a
definite possibility of fraud.
It is in the light of this historical background that we turn to consider whether the oral
agreement of the parties in this case is barred by the statute of frauds.
____________________

3
Statute of Frauds, 1677, 29 Car. 2, c. 3 (repealed). The amount of the transaction necessary to bring the sale
within the statute was 10 pounds.

4
2 A. Corbin, Contracts 275, at 3 (1950); 3 S. Williston, Contracts 448, at 346.

5
L. Fuller, Basic Contract Law, The Statute of Frauds 940, 943 (1947).

6
L. Vold, Sales 14, at 89 (2d ed. 1959).

7
Law Reform Act, 1954, 3 Eliz. 2, c. 34.

8
Burdick, A Statute for Promoting Fraud, 16 Colum.L.Rev. 273 (1916); 42 L.Q.Rev. 1 (1927); 2 A. Corbin,
Contracts 275, at 3 (1950); 68 L.Q.Rev. 4 (1952); 70 L.Q.Rev. 441 (1954).

9
L. Vold, Sales 14, at 88 (2d ed. 1959). Advocates of The Sales Act have advanced the argument that the
technical safeguard of a writing is more important in the United States than in England because in this country a
litigant has a basic right to demand trial by jury. In England such a right is within the discretion of the court;
thus, in most instances the court and not the jury will make the ultimate determination as to the existence of the
contract. 68 Harv.L.Rev. 383, 384 (1954).
to consider whether the oral agreement of the parties in this case is barred by the statute of
frauds.
[Headnote 2]
There is no question that the Azevedo-Minister agreement was oral and that its
enforceability is governed by NRS 104.2201(2), supra. The sale of hay is included within the
definition of the sale of goods as defined by NRS 104.2105(1)
10
and NRS 104.2107(2),
11
which when read together provide that the sale of growing crops, when they are to be
severed by the buyer or by the seller, constitutes the sale of goods within the definition of
that expression in the Uniform Commercial Code. The parties agree that they are merchants
within the meaning of that term as defined in the Code.
[Headnote 3]
It is also true that the statute of frauds is no defense to that portion of the contract that has
been performed under the provisions of NRS 104.2201(3)(c), supra, which makes enforceable
an oral contract [w]ith respect to goods . . . which have been received and accepted.
The legal issues are, therefore, (1) whether Minister's accountings constituted confirming
memoranda within the standards of NRS 104.2201(2) and, if so, (2) whether Minister sent
them within a reasonable time as required by the statute.
3. The Confirming Memoranda.
(a) The accounting of January 21, 1968.
In addition to the data set forth in the periodic accountings covering the dates on which
hay was hauled, the names of the truckers, and the bale counts and weights, Minister added
the following statement in his January 21 accounting to Azevedo: "From your original
deposit of $20,000.00 there is now a balance of $1S19.76.
____________________

10
NRS 104.2105(1).
Goods' means all things (including specially manufactured goods) which are movable at the time of
identification to the contract for sale other than the money in which the price is to be paid, investment securities
(article 8) and things in action. Goods' also includes the unborn young of animals and growing crops and other
identified things attached to realty as described in the section on goods to be severed from realty (NRS
104.2107).

11
NRS 104.2107(2):
A contract for the sale apart from the land of growing crops or other things attached to realty and capable of
severance without material harm thereto but not described in subsection 1 is a contract for the sale of goods
within this article whether the subject matter is to be severed by the buyer or by the seller even though it forms
part of the realty at the time of contracting, and the parties can by identification effect a present sale before
severance.
From your original deposit of $20,000.00 there is now a balance of $1819.76. At this time
there remains [sic] approximately 16,600 bales of hay yet to be hauled on your purchase,
about 9200 of which are first crop, 7400 of which are second crop.
We would appreciate hearing when you plan to haul the balance of the hay. Also please
make a deposit to cover the hay, sufficient in amount to pay for the hay you will be currently
hauling. At this time you have only about $2.25 deposit per ton on the remaining balance of
the hay, and we cannot permit a lower deposit per ton and still consider the hay as being
sold. (Emphasis added.)
Azevedo did not challenge or reply to Minister's accountancy of January 21. Rather, he
deposited an additional $3,000 in the escrow account and continued hauling hay.
(b) The accounting of February 22, 1968.
In the regular accounting of February 22, Minister added the following:
Balance of deposit on approximately 14000 bales remaining to be hauled$1635.26.
Azevedo did not challenge or reply to the February 22 accounting.
It is these two accountings that the district judge found constituted confirming memoranda
within the meaning of NRS 104.2201(2). There is little authority articulating the meaning of a
confirming memorandum as used in the Code. The official Comment, Uniform Laws
Annotated, Uniform Commercial Code 2-201 (1968), states at 90, 91:
Only three definite and invariable requirements as to the [confirming] memorandum are
made by this subsection. First, it must evidence a contract for the sale of goods; second, it
must be signed', a word which includes any authentication which identifies the party to be
charged; and third, it must specify a quantity.
The parties concede that the memoranda were signed within the meaning of the statute,
but appellant Azevedo urges that neither memorandum confirms the existence of an oral
contract.
[Headnote 4]
While 2-201(2) of the Code is entirely new in the commercial law field, its only effect is
to eliminate the defense of the statute of frauds. The party alleging the contract still has the
burden of proving that an oral contract was entered into before the written confirmation. The
purpose of the subsection of the Code is to rectify an abuse that had developed in the law of
commerce.
in the law of commerce. The custom arose among business people of confirming oral
contracts by sending a letter of confirmation. This letter was binding as a memorandum on
the sender, but not on the recipient, because he had not signed it.
12
The abuse was that the
recipient, not being bound, could perform or not, according to his whim and the market,
whereas the seller had to perform.
13
Obviously, under these circumstances, sending any
confirming memorandum was a dangerous practice. Subsection (2) of section 2-201 of the
Code cures the abuse by holding a recipient bound unless he communicates his objection
within 10 days.
[Headnote 5]
Appellant urges that the January and February accountings do not meet the standards of
the subsection because neither memorandum makes reference to any oral agreement between
the parties. A fair reading of the memoranda shows otherwise. The January memorandum
states that, At this time there remains [sic] approximately 16,600 bales of hay yet to be
hauled on your purchase, and, further, that, We [Minister] would appreciate hearing when
you plan to haul the balance of the hay. Although neither the January nor the February
memorandum refers to the previous November agreement by telephone, the language clearly
demonstrates that the referred-to agreement between the parties was not an in futuro
arrangement, but a pre-existing agreement between Azevedo and Minister. As the court said
in Harry Rubin & Sons, Inc. v. Consolidated Pipe Co., 153 A.2d 472, 476 (Pa. 1959), in
ruling on a case involving subsection (2) of section 2-201:
Under the statute of frauds as revised in the Code[,] All that is required is that the
writing afford a basis for believing that the offered oral evidence rests on a real transaction.'
(Footnote omitted.)
The district judge found that it did so in the instant case, and the record supports his
finding.
4. The Reasonable Time Factor.
[Headnote 6]
Subsection 2 of NRS 104.2201 provides that the confirming memorandum must be sent
within a reasonable time after the oral contract is made. Appellant argues that the delay of 10
weeks {November 9 to January 21) as a matter of law is an unreasonable time.
____________________

12
As indicated in the instant case, Minister, who signed the memorandum, could be held to deliver to
Azevedo the balance of the hay on the terms indicated.

13
The record reflects the price of hay was lower in March than in the previous November, when the parties
had agreed on a tonnage price.
10 weeks (November 9 to January 21) as a matter of law is an unreasonable time. We do not
agree. What is reasonable must be decided by the trier of the facts under all the circumstances
of the case under consideration. Subsection 2 of NRS 104.1204 provides:
What is a reasonable time for taking any action depends on the nature, purpose and
circumstances of such action.
In this case, the parties commenced performance of their oral agreement almost
immediately after it was made in early November. Azevedo deposited $20,000 in the
designated escrow account and began hauling hay. Minister commenced sending his periodic
accounting reports to Azevedo on December 14.
14
It is true that the accounting containing
the confirming memorandum was not sent until January 21. It was at that time that Azevedo's
deposit of $20,000 was nearing depletion. Minister so advised Azevedo in the January
memorandum. Azevedo responded by making an additional deposit. He did not object to the
memorandum, and he continued to haul the hay until the latter part of March. Under the
nature, purpose and circumstances of the case, we agree with the district judge that the delay
was not unreasonable.
The judgment is affirmed.
____________________

14
Azevedo concedes that he never challenged or replied to any of the accountings.
____________
86 Nev. 584, 584 (1970) Hughes v. State
JAMES L. HUGHES, Appellant, v. THE
No. 6101
July 9, 1970 471 P.2d 245
Appeal from conviction of unlawful possession of cannabis; Fifth Judicial District Court,
Nye County; Kenneth L. Mann, Judge.
Defendant was convicted in the district court of possession of marijuana, and he appealed.
The Supreme Court, Mowbray, J., held that where defendant's automobile was properly
stopped by police officers and bag containing what appeared to experienced officers to be
marijuana was observed on floor of defendant's automobile, seizure of marijuana and its
subsequent admission in evidence at defendant's trial were proper.
of defendant's automobile, seizure of marijuana and its subsequent admission in evidence at
defendant's trial were proper.
Affirmed.
David C. Polley, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, William P. Beko, District Attorney, Nye County, for
Respondent.
1. Arrest.
Officers who received radio call from state highway patrol officer informing them that defendant was
traveling in their direction and in automobile containing marijuana had duty to stop defendant's automobile
on floor of which plastic bag containing what appeared to officers to be marijuana was observed in plain
view.
Physical objects in plain view of an officer who has right to be in position that he is are subject to
immediate seizure.
It is not necessary that positive identification of the contraband be established before what appears to be
contraband is seized.
4. Criminal Law; Searches and Seizures.
Where defendant's automobile was properly stopped by police officers and bag containing what appeared
to experienced officers to be marijuana was observed on floor of defendant's automobile, seizure of
marijuana and its subsequent admission in evidence at defendant's trial for possession of marijuana were
proper. NRS 453.030.
OPINION
James L. Hughes was tried to a jury in district court, and he was convicted of possession of
marijuana, which is a violation of NRS 453.030.
1
The district judge sentenced him to serve 4
years in the State Penitentiary. Hughes has appealed, and he seeks reversal on the grounds
that the contraband introduced during his trial was unlawfully seized in violation of his
constitutional rights. We reject his contention, and we affirm his conviction.
____________________

1
NRS 453.030:
inclusive.
1. The Facts.
On March 30, 1969, at about 1:00 a.m., a police officer stationed in Tonopah, Nevada,
received a radio call from a State Highway Patrol officer in Las Vegas that Hughes was
traveling north on Highway 95 toward Tonopah in an automobile containing marijuana. The
Tonopah police set up a stakeout, and later in the morning, at about 9:00 a.m., two officers
observed Hughes drive into Tonopah. These officers stopped Hughes, and while one of them
was reading the Miranda warnings to him, the other observed in plain view on the floor of
the car a plastic bag containing what appeared to the officers to be marijuana. Hughes was
arrested, charged, tried, and convicted of unlawful possession of narcotics.
2. Admissibility of the Marijuana.
[Headnote 1]
Prior to trial Hughes moved to suppress the introduction of the marijuana, on the grounds
that it was seized during an unlawful search of his vehicle and therefore not admissible in
evidence. The district judge properly denied the motion, and the marijuana was introduced
later, during Hughes's trial. The officers had every right, and in fact a duty, to stop Hughes's
car. As this court said in Robertson v. State, 84 Nev. 559, 562, 445 P.2d 352, 353 (1968):
. . . It is now the settled law of this state that an officer may stop the occupants of an
automobile for legitimate police investigation so long as there is probable cause for that
action. [Citations.] This action is proper even though there is not probable cause for arrest at
the moment. See also Sharkey v. State, 85 Nev. 574, 459 P.2d 769 (1969); Harper v. State,
84 Nev. 233, 440 P.2d 893 (1968).
[Headnote 2]
It is equally well settled that physical objects in the plain view of an officer who has a right
to be in the position that he is, as in this case, are subject to immediate seizure. As this court
said in Woerner v. State, 85 Nev. 281, 284, 453 P.2d 1004, 1005 (1969), citing the High
Court 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).' . . .
The reason for the rule is that what is in plain sight is not the object of search" People v.
Lawson S1 Cal.Rptr.
the object of search People v. Lawson 81 Cal.Rptr. 883, 884 (Cal.App. 1969). See also
United States v. Lee, supra; Oliver v. State, 85 Nev. 10, 449 P.2d 252 (1969); Wallace v.
State, 84 Nev. 532, 445 P.2d 29 (1968).
[Headnotes 3, 4]
In Hughes's case the plastic bag containing the marijuana was subject to immediate
seizure. The officers properly stopped Hughes. The bag was observed on the floor of his car.
Both officers had prior experience in identifying marijuana. It is not necessary that positive
identification of the contraband be established before it is seized. See Robertson v. State,
supra; Sharkey v. State, supra; Rodgers v. United States, 267 F.2d 79 (9th Cir. 1959).
The seizure of the marijuana was proper, and it was admissible in evidence at trial. The
conviction is affirmed.
____________
MANUEL REVUELTA, Appellant, v. THE
No. 6111
July 9, 1970 472 P.2d 343
Appeal from denial of motion for a new trial; Eighth Judicial District Court, Clark County;
Alvin N. Wartman, Judge.
Defendant was convicted in the district court of illegal possession of narcotics, and he
appealed. The Supreme Court, Mowbray, J., held that where State made no further reference
to any other criminal activity by defendant, and defendant's own counsel elicited from him
testimony concerning two other offenses pending at time of defendant's preliminary hearing,
and also evidence of federal charge, testimony of undercover agent for county sheriff's office
that agent asked defendant what the price would be, and he stated that approximately two
weeks prior he had sold a kilogram of cocaine for $6,000, although objectionable, did not
constitute reversible error.
Affirmed.
James D. Santini, Public Defender, and Steven L. Godwin, Deputy Public Defender, Clark
Melvin T. Harmon, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Where State made no further reference to any other criminal activity by defendant, and defendant's own
counsel elicited from him testimony concerning two other offenses pending at time of defendant's
preliminary hearing, and also evidence of federal charge, testimony of undercover agent for county sheriff's
office that agent asked defendant what the price would be, and he stated that approximately two weeks
prior he had sold a kilogram of cocaine for $6,000, although objectionable, did not constitute reversible
error. NRS 453.030.
OPINION
Manuel Revuelta, appellant-defendant, was tried to a jury and found guilty of the illegal
possession of narcotics, which is a violation of NRS 453.030.
1
He has appealed to this court
from his judgment of conviction and the order denying his motion for a new trial, on the
ground that he was denied his right to a fair trial when the State presented to the jury evidence
of other criminal activity on his part that was not related to the charge for which he was tried.
The State's presentation follows:
Q [by George Holt, Deputy District Attorney]: Will you tell us what the conversation
was?
A [by Thomas Sayles, undercover agent for the Clark County Sheriff's office]: I had a
conversation with them [appellant and codefendants], as I stated, to purchase some cocaine. I
askedhe [Revuelta] asked me how much I wanted, and I asked what the price would be,
and he stated that approximately two weeks prior he had sold a kilogram of cocaine for
$6,000.
Mr. Simon [of the Public Defender's office]: Your Honor, I object to that as being
irrelevant and immaterial.
The Court: Objection is sustained. It is ordered stricken and the Jury is instructed to
disregard it.
____________________

1
NRS 453.030:
inclusive.
The State made no further reference to any other criminal activity by Revuelta. On the
contrary, however, Revuelta's own counsel elicited from him testimony concerning two other
offenses pending at the time of Revuelta's preliminary hearing, and also evidence of a federal
charge.
Under the facts presented, we do not believe that the testimony given by Agent Sayles
constituted reversible error. Although every effort must be made by the prosecutor to exclude
evidence of unrelated criminal activity, so that a defendant is given a fair trial on the charges
facing him, we appreciate that there may be occasions when unexpected testimony of other
criminal activity may, without notice to anyone, come before the jury.
2
Indeed, the High
Court in Bruton v. United States, 391 U.S. 123, 135 (1968), has ruled:
. . . Not every admission of inadmissible hearsay or other evidence can be considered to
be reversible error unavoidable through limiting instructions; instances occur in almost every
trial where inadmissible evidence creeps in, usually inadvertently. A defendant is entitled to
a fair trial but not a perfect one.' [Citations.] It is not unreasonable to conclude that in many
such cases the jury can and will follow the trial judge's instructions to disregard such
information.
This court in the recent case of Williams v. State, 85 Nev. 169, 174, 451 P.2d 848, 851
(1969), held:
. . . 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. See also
Hamlet v. State, 84 Nev. 699, 449 P.2d 492 (1968); Overton v. State, 78 Nev. 198, 370 P.2d
677 (1962); State v. Varga, 66 Nev. 102, 205 P.2d 803 (1949).
The order denying the motion for a new trial, and the judgment of conviction, are affirmed.
____________________

2
The likelihood of such occurring should be much less likely in the case of a professional witness, such as an
undercover agent, who has had experience in testifying and knows the dangers and effect of such evidence.
____________
86 Nev. 590, 590 (1970) Singleton v. Sheriff
GEORGE D. SINGLETON, Appellant, v. SHERIFF,
No. 6222
July 10, 1970 471 P.2d 247
Appeal from an order of the Eighth Judicial District Court, Clark County, denying a
petition for a pre-trial writ of habeas corpus; Clarence Sundean, Judge.
The district court denied petition, and petitioner appealed. The Supreme Court, Batjer, J.,
held that where petitioner had been charged with felony murder in count one, open murder in
count two, and robbery in count three and court granted prosecutor's motion to dismiss count
two, charging felony murder, prosecutor's misstatement of number of count was meaningless
mistake analogous to clerical error and did not entitle defendant to habeas corpus on ground
that he was being illegally held on open murder charge which had been dismissed on motion
of prosecutor.
Affirmed.
James D. Santini, Public Defender, Clark County, for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, Raymond
D. Jeffers, Chief Deputy District Attorney, Clark County, for Respondent.
1. Habeas Corpus.
Where defendant was charged with felony murder in count one, open murder in count two, and robbery in
count three and court granted prosecutor's motion to dismiss count two, charging felony murder,
prosecutor's misstatement of number of counts was meaningless mistake analogous to clerical error and did
not entitle defendant to habeas corpus on ground that he was being illegally held on open murder charge
which had been dismissed on motion of prosecutor. NRS 178.562.
2. Criminal Law.
Where defendant stood by and without objection or motion to strike permitted state to present its case on
open murder charge, defendant waived any right he might have had to complain that on prosecutor's motion
such charge had been dismissed. NRS 178.562.
OPINION
A criminal complaint was filed charging the appellant with felony murder in count 1; open
murder in count 2; and robbery in count 3. Prior to the introduction of evidence at the
preliminary examination, the state moved to dismiss two counts of the complaint.
preliminary examination, the state moved to dismiss two counts of the complaint.
The prosecutor stated his motion in the following words: We would, therefore, move at
this time that count 2, charging a felony murder, and count 3, charging robbery, be dismissed.
After the state had concluded its presentation of evidence and the appellant, through his
counsel, indicated that he would not personally testify nor present any evidence, counsel
moved to dismiss the charge against him because the state had failed to prove that the victim
had been killed during the perpetration of a felony.
1

The motion was denied. However, instead of binding the appellant over to district court on
any particular count of the complaint, the justice of the peace bound him over on an open
charge of murder. He objected upon the ground that the open murder charge had, by count
number, been dismissed. That objection was overruled. Thereafter he filed his petition for a
writ of habeas corpus upon that identical ground and contended under the provisions of NRS
178.562
2
that he was being illegally restrained.
At the hearing held on December 19, 1969, the judge of the district court expressed his
concern over the fact that by count number the open murder charge had been dismissed. He
referred to this as an inadvertence; quashed the writ; and remanded the case to justice's
court to correct the inadvertence.
3
The appellant contends that he was being illegally
held on an open murder charge which had been dismissed by the justice of the peace at
the outset of the preliminary hearing, upon the motion of the prosecutor, and that the
trial court erred when it denied his petition for a writ of habeas corpus.

____________________

1
The record indicates that counsel for the appellant was aware from the time the prosecutor made his motion
that he had mistakenly stated count 2 when he should have stated count 1 when referring to the felony murder
charge, however, it appears that neither the prosecutor nor the justice of the peace were aware of the mistake
until the appellant made his motion to dismiss.

2
NRS 178.562: 1. An order for the dismissal of the action, as provided in NRS 178.554 and 178.556, shall
be a bar to another prosecution for the same offense.
2. The discharge of a person accused upon preliminary examination shall be a bar to another complaint
against him for the same offense, but shall not bar the finding of an indictment or filing of an information.

3
In summary, the judge of the district court stated: This relief having been rejected the court quashed the
writ and ordered that we proceed with the initial arraignment. . . . This is continued until December 10th. The
record is completely silent about what occurred on December 10th, however, the notice of appeal reads as
follows: NOTICE IS HEREBY GIVEN that GEORGE D. SINGLETON, petitioner in the above entitled action,
charged with Murder, appeals to the Supreme Court of the State of Nevada from the denial of his application for
a Writ of Habeas Corpus in Department No. 1 of the
The appellant contends that he was being illegally held on an open murder charge which
had been dismissed by the justice of the peace at the outset of the preliminary hearing, upon
the motion of the prosecutor, and that the trial court erred when it denied his petition for a
writ of habeas corpus.
We find that the appellant was not being illegally held and that he was not entitled to
discharge upon habeas corpus.
[Headnote 1]
Here we are not concerned with a case where a district attorney moves to dismiss certain
counts of a complaint by number alone, but instead, with one where the prosecutor
unmistakably stated that he moved only to dismiss the counts charging a felony murder and
robbery. The fact that he misstated the number of the counts is meaningless. Such a mistake is
analogous to a clerical error. To give credence to the appellant's contentions would be to
indeed exalt form over substance.
The appellant cites no case law to support his position and the statutes which he relies
upon are inapposite.
[Headnote 2]
In any event the appellant stood by and without objection or a motion to strike permitted
the state to present its case on the open murder charge. Under those circumstances he waived
any right he might have had to complain. No prejudicial error appears in the record. Cf. State
v. Beyers, 58 Nev. 125, 71 P.2d 1044 (1937).
Having heard the evidence, which had not been controverted, the justice of the peace was
compelled under NRS 171.206
4
to hold the appellant to answer to a charge of murder.
Howard v. Sheriff of Clark County, 83 Nev. 150, 425 P.2d 596 (1967); Miner v. Lamb, 86
Nev. 54, 464 P.2d 451 (1970) In State v. Pansey, 61 Nev. 333
____________________
Eighth Judicial District Court on December 10, 1969. Petitioner contends therein that he was improperly held to
answer for open Murder because that charge had been dismissed by the Justice of the Peace prior to the
commencement of the preliminary hearing in question.

4
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.
In State v. Pansey, 61 Nev. 333, 128 P.2d 464 (1942), this court said: Appellant argues
further that he was entitled to another preliminary hearing because the information on which
he was tried did not follow the complaint of the justice's court. We think it did; but even if it
did not, that alone would not have entitled him to another preliminary examination, because
under the provisions of section 10785 N.C.L., 1929, accused may be held to answer for a
public offense other than that charged in the complaint.
5
See also Marcum v. Sheriff, 85
Nev. 175, 451 P.2d 845 (1969). Cf. Goldsmith v. Sheriff, 85 Nev. 295, 454 P.2d 86 (1969).
The order of the district court denying the appellant's petition for a writ of habeas corpus is
affirmed. However, this opinion is not to be construed as affirming the district court's order
returning the matter to the justice's court.
____________________

5
10785 N.C.L., 1929, and NRS 171.206 are found to be comparable statutes.
____________
86 Nev. 593, 593 (1970) Johnson v. Utile
CLARENCE JOHNSON and GLODEAN JOHNSON, Husband and Wife, Appellants, v.
JOE UTILE and ANN M. UTILE, Husband and Wife, Respondents.
No. 6079
July 13, 1970 472 P.2d 335
Appeal from judgment of First Judicial District Court, Lyon County; Frank B. Gregory,
Judge.
Purchasers sued vendors for breach of agreement with respect to production of water from
wells on land sold. The district court entered judgment for purchasers and vendors appealed.
The Supreme Court, Mowbray, J., held that where executory accord providing that, since well
on tract sold had gone dry, purchasers would accept new well provided it produced stated
gallonage was breached by failure of new well to so produce, purchasers were entitled to
damages for loss of first well, their expenses incurred in attempting to make the new well
operative, cost of drilling a third well, cost of seed lost due to lack of water and their
attorney's fees and costs.
Affirmed.
Gary A. Sheerin, of Carson City, for Appellants.
Diehl, Recanzone & Evans, of Fallon, for Respondents.
1. Compromise and Settlement.
Compromise agreement is contract whereby parties, in effort to resolve their differences over a claim,
agree to amicable settlement based upon mutual concessions.
2. Accord and Satisfaction; Novation.
Two principal categories of compromise agreements are executory accord, providing for acceptance in
future of stated performance in satisfaction of claim, and substituted contract which itself is accepted as
substitution for and extinguishment of existing claim.
Agreement that operates as satisfaction of an antecedent claim only when performed is an executory
accord and agreement that operates as an immediate substitution for and extinguishment of an antecedent
claim is a substituted contract.
4. Accord and Satisfaction.
If an executory accord is breached, nonbreaching party may sue either upon original obligation or upon
compromise agreement.
Determination of whether compromise agreement is an executory accord or substituted contract turns on
intent of parties to it.
Where agreement for sale of realty required seller to drill a second irrigation well and, upon being
informed by sellers that existing well was no longer operative, purchasers' attorney sent vendors letter
stating that purchasers agreed to relinquish their claim to existing well, provided that new well was capable
of producing amount of gallonage set out in prior agreements, such letter and vendors' acceptance by their
subsequent conduct constituted an executory accord, whereby purchasers agreed to relinquish their right in
old well only after new well produced satisfactorily.
Evidence supported finding that vendors of tract breached executory accord by failure of new well drilled
to produce amount of gallonage of water set out in prior agreements, in purchasers' action for breach.
8. Damages.
One who breaches duty to another is liable for all damages naturally flowing from the wrongful breach.
Where executory accord providing that, since well on tract sold had gone dry, purchasers would accept
new well, if it produced stated gallonage, was breached by failure of new well to so produce, purchasers
were entitled to damages for loss of first well, their expenses incurred in attempting to make the new well
operative, cost of drilling a third well, cost of seed lost due to lack of water, and
attorney's fees and costs.
operative, cost of drilling a third well, cost of seed lost due to lack of water, and attorney's fees and costs.
OPINION
This is a contract case arising from the sale of a 160-acre parcel of real property in Lyon
County. The dispute centers about three wells located on the property.
1. The Facts.
In February 1967, Clarence Johnson and his wife, Glodean, who are the appellants, agreed
to sell their property to Joe and Ann M. Utile, who are the respondents. The parties signed a
Deposit Receipt and Agreement of Sale, which provided in pertinent part:
. . . Seller agrees to drill 16 inch well, same area, same depth as existing irrigation well.
Well to be tested, minimum 24 hours, at between 1,000 and 1,200 GPM [gallons per minute].
Seller agrees to drill and test well on or before close of escrow.
In 1 month to the day, on March 3, 1967, the parties signed their escrow instructions,
which provided in pertinent part:
(6) Sellers herein to drill and test a new well prior to close of escrow. Well to be 16
inches and in the same area and at the same depth as the existing well.
Approximately 1 month later, the Johnsons orally informed the Utiles that the existing
well on the property, which had been drilled and used for some time (and which we shall
designate as Well No. 1), was no longer operative and that, therefore, it was not to be
considered included in the sale of the premises. The Utiles then consulted their attorney and
resolved the matter by having him write the Johnsons a letter dated May 12, 1967, which
provided in pertinent part:
. . . [Y]our suggestion to leave your test pump and a gasoline-powered motor on the new
well [Well No. 2] for and in consideration of the Utiles relinquishing any claim on the
existing well [Well No. 1] would be satisfactory, provided that the equipment is in
satisfactory operating condition, and, further, assuming that the new well has been tested and
is capable of producing the amount of gallonage set out in the agreements referred to herein,
and, of course, that the pump and motor are capable of pumping the water in the desired
amounts consistent with the gallonage rating of the well itself. . . ."
are capable of pumping the water in the desired amounts consistent with the gallonage rating
of the well itself. . . . (Emphasis added.)
This arrangement appeared to satisfy the parties, and Mr. Johnson, who is a licensed well
driller, proceeded to drill Well No. 2. He drilled the well to a depth of 105 feet and testified
that it produced, over a 24-hour period, from 1,000 to 1,200 gallons of water per minute. The
Utiles took possession of the property in June. They claim that the well never produced more
than 300 gallons of water per minute and that in September 1967 the well went dry.
Thereafter, the Utiles drilled a third well (Well No. 3), which apparently is operative and
satisfactory for all ostensible purposes.
The Utiles then commenced this action in the district court seeking damages for (1) the
loss of Well No. 1, (2) expenses incurred in attempting to repair Well No. 2 and for drilling
Well No. 3, (3) seed loss due to water shortage, and (4) attorney's fees and costs. The district
judge found in favor of the Utiles and awarded them damages as follows: (1) $3,200 for the
loss of Well No. 1; (2) $419.15 for expenses incurred in attempting to make Well No. 2
operative; (3) $3,060 for the cost of Well No. 3; (4) $636 for seed loss; and (5) $1,500 for
attorney's fees and costs. We affirm the judgment of the lower court and the damages
awarded therein.
2. The Compromise Agreement.
A. Executory accord or substituted contract.
The principal issue in this case will be resolved by our interpretation of counsel's letter to
the Johnsons of May 12, 1967, supra; i.e.: Was the proposed compromise agreement, which
the Johnsons accepted, an executory accord or a substituted contract?
[Headnotes 1-3]
A compromise agreement is a contract whereby the parties, in an effort to resolve their
differences over a claim, agree to an amicable settlement based upon mutual concessions.
Compromise agreements are usually divided into two principal categories: One may be called
an executory accord; the other may be called a substituted contract. If the compromise
provides for the acceptance in the future of a stated performance in satisfaction of the claim,
the contract is an executory accord.
1
If, on the other hand, the compromise agreement
itself is accepted as a substitution for and extinguishment of the existing claim, then the
compromise is a substituted contract.2 Or, to state it another way, an agreement that
operates as a satisfaction of an antecedent claim only when performed is an executory
accord, and an agreement that operates as an immediate substitution for and
extinguishment of an antecedent claim is a substituted contract.
____________________

1
Restatement of Contracts 417 (1932); 6 A. Corbin, Contracts 1269 (1962).
substituted contract.
2
Or, to state it another way, an agreement that operates as a satisfaction
of an antecedent claim only when performed is an executory accord, and an agreement that
operates as an immediate substitution for and extinguishment of an antecedent claim is a
substituted contract.
[Headnote 4]
The distinction becomes vital in relation to the remedies available to the nonbreaching
party if and when the compromise agreement is broken. If an executory accord is breached,
the nonbreaching party may sue either upon the original obligation or upon the compromise
agreement. As stated in Restatement of Contracts 417(c) (1932):
If the debtor breaks such a contract the creditor has alternative rights. He can enforce
either the original duty or the subsequent contract.
This is the prevailing view throughout the American jurisdictions. See Owens v. Hunter,
368 P.2d 753 (Ariz. 1962); Silvers v. Grossman, 192 P. 534 (Cal. 1920); Hinkle v. Basic
Chem. Corp., 431 P.2d 14 (Colo. 1967); Wilson v. Bogert, 347 P.2d 341 (Idaho 1959); Daly
v. Chicago & N.W. Ry. Co., 114 N.W.2d 682 (Minn. 1962); Ladd v. General Ins. Co., 387
P.2d 572 (Ore. 1963); Nash v. Atlantic White Tower System, Inc., 170 A.2d 341 (Pa. 1961);
Stratton v. West States Constr., 440 P.2d 117 (Utah 1968); Annot., 94 A.L.R.2d 504 (1964);
6 A. Corbin, Contracts 1275 (1962)
B. The intent.
[Headnote 5]
The determination of whether the compromise agreement is an executory accord or a
substituted contract turns on the intent of the parties to it. As stated by Corbin, supra, 1293,
at 190:
It is frequently difficult to determine whether a new agreement is a substituted contract
operating as an immediate discharge, or is an accord executory, the performance of which it is
agreed shall operate as a future discharge. It is wholly a question of intention to be
determined by the usual processes of interpretation, implication or contruction. (Footnotes
omitted.)
[Headnote 6]
In the instant case, the record shows that counsel's letter of May 12 and the Johnsons'
acceptance by their subsequent conduct constituted an executory accord.
____________________

2
Restatement of Contracts 418 (1932); 6 A. Corbin, Contracts 1269 (1962).
conduct constituted an executory accord. Admittedly, the language of the Deposit Receipt and
Agreement of Sale and the escrow instructions lacks clarity. Because of the ambiguity in the
written documents, the district judge heard and considered the oral testimony of the parties,
and he concluded as a result thereof that their initial agreement included not only an operating
well (Well No. 1), but also the drilling of Well No. 2. A fair reading of counsel's May 12
letter supports the court's conclusion that the letter referred to an antecedent obligation, where
the proposed compromise stated that the Utiles agreed to relinquish their claim to operating
Well No. 1, provided that the equipment [on Well No. 1] is in satisfactory operating
condition, and, further, assuming that the new well [Well No. 2] has been tested and is
capable of producing the amount of gallonage set out in the agreements. . . . (Emphasis
added.) Such language supports the district judge's decision, in that the Utiles agreed to
relinquish their right to Well No. 1 only after Well No. 2 had been drilled and had produced
and operated satisfactorily.
C. The breach.
[Headnote 7]
The Utiles may recover damages for the loss of Well No. 1 only if the record supports the
district judge's finding that the Johnsons breached the parties' compromise agreement by
failing to produce Well No. 2, in that it was not capable of producing the amount of
gallonage set out in the agreements. . . .
Appellants argue on this point that their only duty with respect to Well No. 2 was to
produce a well on the property that would test between 1,000 and 1,200 gallons of water per
minute. Mr. Johnson testified that he conducted such a test, with satisfactory results. The
Utiles, however, produced evidence that the well production never exceeded 300 gallons per
minute and that in a comparatively short period of time it went dry. While there is a conflict
in the record, there is sufficient evidence to support the district judge's finding that the parties
bargained for something more than a mere test and truly intended that the well to be drilled,
Well No. 2, should be capable of producing the specified gallonage over a reasonable period
of time, if the well were to be of any value to the purchasers. This court may not disturb the
finding of the lower court where there is evidence in the record to support it. See Kellar v.
District Court, 86 Nev. 445, 470 P.2d 434 (1970); Utley v. Airoso, 86 Nev. 116, 464 P.2d 778
(1970); Havas v. Alger, 85 Nev. 627, 461 P.2d 857 (1969); Richfield Oil Corp. v. Harbor Ins.
Co., S5 Nev. 1S5
Oil Corp. v. Harbor Ins. Co., 85 Nev. 185, 452 P.2d 462 (1969).
3. The Damages.
[Headnote 8]
This court has reiterated on several occasions the well recognized rule that one who
breaches a duty to another is liable for all damages naturally flowing from the wrongful
breach. See Fuller v. United Elec. Co., 70 Nev. 448, 273 P.2d 136 (1954); Mackay v. Western
Union Tel. Co., 16 Nev. 222 (1881). See also Unruh v. Smith, 267 P.2d 52 (Cal.App. 1954);
11 S. Williston, Contracts 1344 (3d ed. 1968); 5 A. Corbin, Contracts 997-998 (1964).
[Headnote 9]
Since we have ruled in the instant case that the compromise agreement of the parties was
an executory accord, which was breached by the appellants, it follows that the
plaintiffs-respondents were entitled to damages for the loss of Well No. 1, their expenses
incurred in attempting to make Well No. 2 operative, the drilling of Well No. 3 to replace
Well No. 2, and their seed loss due to lack of water, as well as their attorney's fees and costs.
The record supports the damages awarded by the district judge, and we may not disturb the
award on appeal.
____________
86 Nev. 599, 599 (1970) Longley v. Heers Bros., Inc.
TED CONNER LONGLEY, as Receiver of ROBERT A. PIERCE CO., a Dissolved Nevada
Corporation, Appellant, v. HEERS BROS., INC., a California Corporation; ALLIED
CORPORATION, a Nevada Corporation; UNITED PACIFIC INSURANCE
COMPANY, a Washington Corporation; INLAND EMPIRE BUILDERS, INC., a
California Corporation; RIVERSIDE PLAZA, INC., a California Corporation,
Respondents.
No. 6020
July 15, 1970 472 P.2d 350
Appeal from judgment of Eighth Judicial District Court, Clark County; John F. Mendoza,
Judge.
Action by materialman against contractor and subcontractor for foreclosure of mechanics'
liens. The district court entered judgment in favor of defendants, and plaintiff appealed.
The Supreme Court, Mowbray, J., held that admitting in evidence contractor's president's
testimony that he had received a phone call from a person identifying himself as
associated with the materialman and advising the contractor that joint checks should be
made payable to the materialman and subcontractor since materialman had not been paid
in full for first project and wanted to make sure it received payment for second project
was not improper, as there was sufficient circumstantial evidence showing that the
telephone call did originate with the materialman.
judgment in favor of defendants, and plaintiff appealed. The Supreme Court, Mowbray, J.,
held that admitting in evidence contractor's president's testimony that he had received a phone
call from a person identifying himself as associated with the materialman and advising the
contractor that joint checks should be made payable to the materialman and subcontractor
since materialman had not been paid in full for first project and wanted to make sure it
received payment for second project was not improper, as there was sufficient circumstantial
evidence showing that the telephone call did originate with the materialman.
Affirmed.
Morton Galane, of Las Vegas, for Appellant.
Foley Brothers, of Las Vegas, for Respondents.
1. Evidence.
A telephone conversation is admissible if the identity of the caller is established, and such identification
may be satisfactorily shown by circumstantial evidence.
In action by materialman against general contractor and subcontractor for foreclosure of mechanics' liens,
admitting in evidence contractor's president's testimony that he had received a phone call from a person
identifying himself as associated with the materialman and advising the contractor that joint checks should
be made payable to the materialman and subcontractor since materialman had not been paid in full for first
project and wanted to make sure it received payment for second project was not improper, as there was
sufficient circumstantial evidence showing that the telephone call did originate with the materialman.
3. Judgment.
Fact that defendant failed to file a counterclaim did not bar trial court as matter of law from making an
award in favor of defendant. NRCP 54(c).
OPINION
This appeal arises from two mechanic's lien foreclosure actions that were commenced in
the district court and were consolidated for trial. The district judge denied the
plaintiff-appellant's prayer for foreclosure. Instead, he granted a $7,202.41 judgment in favor
of one of the defendants-respondents, Heers Bros., Inc., who owned the properties that
plaintiff-appellant sought to foreclose, on the ground that Heers, as general contractor of the
building projects for which the materials had been furnished, had overpaid
plaintiff-appellant by that amount.1 We affirm the judgment of the district court.
Heers, as general contractor of the building projects for which the materials had been
furnished, had overpaid plaintiff-appellant by that amount.
1
We affirm the judgment of the
district court.
1. The Facts.
Heers Bros., Inc. is a general building contractor and the owner of the properties the
subject of these foreclosure actions. Heers engaged respondent Allied Corporation as a
subcontractor to plaster and lath several buildings that Heers was constructing in Clark
County. Allied purchased its lathing and plastering materials from Pierce for the two principal
building projects that are involved in this litigation.
A. Project No. 1.
Sometime prior to November 1962, Heers subcontracted with Allied to do the lathing and
plastering work on the following buildings: (1) Heers-Roeder office building; (2) Parkdale, a
multiple-apartment project; and (3) Charles Heers's home.
2
The buildings constituting
Project No. 1 were completed. Heers paid Allied in full for lathing and plastering the
buildings.
B. Project No. 2.
Sometime after November 1962, Heers commenced Project No. 2, known as Fairway
Gardens, a multiple-apartment complex. Again Heers employed Allied as its subcontractor to
do the lathing and plastering, and Allied, as it had done on Project No. 1, purchased the
lathing and plastering materials from Pierce.
In March 1963, during the construction of Fairway Gardens, Jackson Pierce, who was an
officer of the Robert A. Pierce Co., learned that Heers had paid Allied in full for the work
done on Project No. 1. Since Allied had failed to pay Pierce in turn, Pierce then arranged with
Heers for all progress payments on Project No. 2 to be made payable to both Allied and
Pierce. Thereafter, Heers made all project payment checks for Project No. 2 payable to Allied
and Pierce jointly. These checks totaled $56,395.71, which Pierce received in toto.
After the project was completed, but before the lien period had expired on Project No. 2,
Pierce billed Allied for $60,- 502.80. Allied paid only part of that amount; so Pierce liened
Project No. 2, Fairway Gardens, for $43,144.20, which Heers refused to pay.
____________________

1
Robert A. Pierce Co., now a dissolved corporation, was a plaster and lath supplier. Pierce furnished the
materials that constituted the basis for the claims of lien. L. A. Longley was named receiver for Pierce, and he
was substituted as party plaintiff. Upon his demise, Ted Conner Longley was named party plaintiff.

2
Charles Heers is president and a stockholder of Heers Bros., Inc.
refused to pay. Before the trial of the foreclosure actions, Pierce acknowledged that its lien
claim had been overstated by 17.8 percent and reduced its claim to $36,157.46. In arriving at
this figure, Pierce applied all the payments received by joint checks on Project No. 2 on the
debt Allied owed Pierce for Project No. 1. Pierce's principal argument for this application of
the moneys received is that Heers agreed to such a arrangement in exchange for Pierce's
promise not to lien Project No 1. Heers claims that such was never the case, but, rather, that
Heers agreed to Pierce's request for joint checks so that Pierce would be assured payment for
Project No. 2.
2. The Admissibility of the Telephone Conversation.
Charles Heers testified that he received a phone call from a person identifying himself as
Mr. Lloyd Kibby of the Pierce company advising him that the joint checks should be made
payable to Allied and Pierce because Pierce had not been paid in full for Project No. 1 and
Pierce wanted to make sure it received payment for Project No. 2.
3
Appellant urges that it
was reversible error to receive in evidence Heers's testimony regarding the phone call, since
the phone call was not authenticated because Heers could not identify the caller's voice.
Counsel for appellant acknowledged in oral argument, however, that if the telephone call and
the conversation were properly received, such evidence was sufficient to support the trial
court's No. 9 finding
4
that the joint payments were to be applied only on Project No. 2.
5

[Headnote 1]
Appellant urges that an insufficient foundation was laid for the introduction in evidence of
the telephone conversation. It is true that Heers could not represent to the court that he
recognized the caller's voice. This court has ruled that a telephone conversation is admissible
if the identity of the caller is established.
____________________

3
Kibby denied making the call. He did admit that Jackson Pierce had phoned Heers requesting joint checks,
but Kibby said that Jackson did not state the checks were to be applied on Project No. 2.

4
Finding No. 9 provides:
9. Jackson Pierce personally requested the joint checks from Heers and Jackson Pierce knew the source of
all of said funds in the amount of $56,935.71 and he knew that the monies were coming from Heers to Allied
and to Pierce and that all of said monies in the amount of $56, 935.71 should have been allocated to Heers
Fairway Gardens Projects 2, 3 and 4.

5
Question by the court: Would you agree that if the unauthenticated voice and what it said were properly
received in evidence there is support for the court's finding of fact No. 9 and for the result thereby reached?
Answer by Morton Galane, Esq., counsel for appellant: I do, your Honor.
conversation is admissible if the identity of the caller is established. We have also held that
such identification may be satisfactorily shown by circumstantial evidence. King v. State, 80
Nev. 269, 392 P.2d 310 (1964); State v. Billings, 84 Nev. 55, 436 P.2d 212 (1968); 7 J.
Wigmore, Evidence 2155 (3d ed. 1940); Annot., 105 A.L.R. 326 (1936).
[Headnote 2]
In the instant case there is sufficient circumstantial evidence in the record to support the
district judge's finding that the telephone call originated with the Pierce company. The
parties, Heers, Allied, and Pierce, had been working together on building projects in the roles
of general contractor, subcontractor, and materialman, respectively, since 1954; joint checks
to subcontractor Allied and materialman Pierce were never requested or issued prior to
Pierce's request in the instant case; Allied in fact objected to the joint checks when they
received the first joint payment from Heers; all sums from the joint checks were endorsed
over to Pierce; Allied received not one cent. It is true that Jackson Pierce testified that the
checks were in consideration for release of lien rights on Project No. 1, which testimony the
district judge was free to reject.
6
The circumstantial evidence offered to prove the source of
the telephone call was admissible, and the telephone conversation was sufficient to support
the court's ruling that the parties intended that the joint checks were to be applied on Project
No. 2, Fairway Gardens.
3. The Heers Bros., Inc. $7,202.41 Damage Award.
[Headnote 3]
Appellant's principal objection to the award is that, because Heers failed to file a
counterclaim, the court was barred as a matter of law from making the award. We do not
agree. Heers claimed that Pierce had been paid in full. Heers did not counterclaim, but this
does not preclude the court from granting complete relief to the parties.
NRCP 54(c) provides in pertinent part:
. . . Except as to a party against whom a judgment is entered by default, every final
judgment shall grant the relief to which the party in whose favor it is rendered is entitled,
even if the party has not demanded such relief in his pleadings."
____________________

6
It appears from the record that Pierce's lien rights had expired on Project No. 1. Common experience would
dictate that they had, because any experienced contractor, upon learning that his sub was in financial distress and
in fact had not paid his materialman for a previous job, would hardly agree to release joint project payments on a
job then under construction to be applied on an old debt between the sub and the materialman, to which the
contractor was not in privity, because the current job would then be lienable by the materialman for the moneys
due him on the second project.
entered by default, every final judgment shall grant the relief to which the party in whose
favor it is rendered is entitled, even if the party has not demanded such relief in his
pleadings.
During the trial Pierce admitted overpayment on Project No. 2. To predicate error upon the
granting of relief in this case would violate the spirit of NRCP 54(c). The issue was clearly
before the court, and the evidence supports the court's ruling. It may not be disturbed on
appeal.
____________
86 Nev. 604, 604 (1970) Ewing v. Fahey
ROBERT W. EWING, JACK R. EWING, and REX EWING, Jr., dba EWING BROS. AUTO
BODY, EWING BROTHERS AUTO BODY, EWING BROS. AUTO BODY SHOP,
EWING BROTHERS AUTO BODY SHOP, EWING BROS. AUTOMOTIVE REPAIR,
EWING BROS. TOWING SERVICE, and EWING BROTHERS TOWING SERVICE,
Appellants and Cross-Respondents, v. ROBERT FAHEY and PATRICIA FAHEY, Husband
and Wife, and CLARK COUNTY TEACHERS FEDERAL CREDIT UNION, Respondents
and Cross-Appellants.
No. 6051
July 15, 1970 472 P.2d 347
Appeal from the Eighth Judicial District Court, Clark County; Llewellyn A. Young, Judge.
Action by owners of automobile against garage for conversion of automobile. The district
court entered judgment, and cross-appeals were taken. The Supreme Court, Collins, C. J.,
held that garagemen's lien statute does not require but only permits sale of liened vehicle.
Reversed and dismissed.
Foley Brothers and Thomas D. Beatty, of Las Vegas, for Appellants.
David Canter, of Las Vegas, for Respondents.
86 Nev. 604, 605 (1970) Ewing v. Fahey
Automobiles.
Garagemen's lien statute does not require but only permits sale of liened vehicle. NRS
108.270-108.360, 108.280.
OPINION
This is an appeal from a judgment in favor of respondents (plaintiffs below) in which they
brought an action for conversion of their automobile by appellants (defendants below).
Respondents cross-appeal from a judgment denying them attorney fees and costs in the trial
court. We hold error was committed, reverse the judgment and dismiss the action.
On July 24, 1965, respondents, the Faheys, purchased a 1965 Ford Mustang automobile
for $2,626.05 financed by a loan from respondent Clark County Teachers Federal Credit
Union of $2,792.79 which was secured by a chattel mortgage.
On August 9, 1965, the Faheys' auto was damaged in an accident and towed to appellant
Ewing Brothers garage for repair, the cost of which was covered by insurance. While the
accident damage was being repaired, the Faheys contracted with Ewing Brothers to paint the
left side of the auto (not caused by the accident) for the sum of $26.63.
Upon completion of the repairs and left side painting, the auto was voluntarily released to
the Faheys without payment for the painting. The Faheys thereafter refused to pay for painting
the left side because they claimed it was defective and the paint had begun to flake and peel
off.
On March 5, 1966, Ewings, pursuant to NRS 108.270 and 108.280, had the auto towed
back to their garage to hold under their garagemen's lien. The Faheys, after unsuccessfully
demanding return of the auto, brought an action for conversion. The Credit Union intervened
as a lien holder. Ewing Brothers sent Notice of Sale of the auto to the Faheys and the Credit
Union on January 9, 1968. On February 18, 1968, the auto was sold by Ewings for $875 in
satisfaction of their lien.
The matter first came on for trial in April, 1968, before a district judge who could not and
did not complete it. It came on later for trial before another district judge, who ruled that the
holder of a garagemen's lien may not maintain the lien without some action on his part to
satisfy it within a reasonable time. He also ruled two months from time of acquisition of the
lien was a reasonable time within which to proceed with sale of the property in satisfaction
of the lien and that failure to do so terminated the lien's validity.
86 Nev. 604, 606 (1970) Ewing v. Fahey
sale of the property in satisfaction of the lien and that failure to do so terminated the lien's
validity. He adjudged that Ewing Brothers had improperly converted the Faheys' auto and
held that the Faheys and the Credit Union were entitled to recover $2,017, the value of the
Mustang auto as of May 6, 1966, but reduced that sum by $221.63, the cost of the paint job
and enforcement of the garagemen's lien, and awarded respondents a net judgment of
$1,795.37. He denied respondents' request for attorney fees and costs. It is from those
judgments the appeal and cross-appeal were taken.
While several errors were urged on the appeal and crossappeal, our view is that a single
issue is presented for our determination; that issue is:
I. Whether a garagemen's lien under NRS 108.270 to 108.360 must be satisfied by sale
within a reasonable time or be lost, subjecting the lien holder to damages for decrease in
value thereafter?
1. The statute under which Ewings claimed lien rights against the Faheys' auto is NRS
108.270, which provides: [A]ny person or persons, company or corporation engaged in the
business of . . . keeping a garage . . . for the storage, maintenance, keeping or repair of motor
vehicles . . . and who in connection therewith stores, maintains, keeps or repairs any motor
vehicle . . . or furnishes accessories, facilities, services or supplies therefor, at the request or
with the consent of the owner or its or his representatives, has a lien upon such motor vehicle
. . . or any part or parts thereof for the sum due for such storing, maintaining, keeping or
repairing of such motor vehicle . . . or for labor furnished thereon, or for furnishing
accessories, facilities, services or supplies therefor, and for all costs incurred in enforcing
such lien, and may, without process of law, detain such motor vehicle . . . at any time it is
lawfully in his possession until such sum is paid. (Emphasis added.)
Provision is made for recovering a vehicle once possession has been relinquished without
process of law and without losing the lien. NRS 108.280.
The legislative history of that statute is instructive. In 1917, the first garagemen's lien law
was enacted in this state. Contained therein was a proviso that all such liens shall expire by
limitation within 20 days, unless suit is brought by the holder of said liens or liens [sic] to
enforce same. Ch. 213, 5, [1917] Stats. of Nev. 403. That section was amended in 1925 by
extending the time limitation to 45 days. Ch. 174, [1925] Stats. of Nev. 279. In 1943, the
entire 1917 act as amended was repealed and the basic format of the present statute was
enacted. Ch. 95, [1943] Stats. of Nev.
86 Nev. 604, 607 (1970) Ewing v. Fahey
amended was repealed and the basic format of the present statute was enacted. Ch. 95, [1943]
Stats. of Nev. 121.
It therefore appears the legislature intended from the manner in which it changed the
garagemen's lien statute not to require, but only permit, sale by the lien holder of the chattel
held under the lien and that the lien would remain in effect until the indebtedness was paid or
the property sold. Lending support to such interpretation is NRS 108.310, which provides that
the lien created by NRS 108.270 to 108.360, . . . may be satisfied . . . by giving notice
which shall contain, [3.] (d) statement that unless the claim is paid within the time specified
the motor vehicle . . . will be advertised for sale, and sold by auction at a specified time and
place. Again in its draftsmanship and adoption of the garagemen's lien statute, the legislature
used the word may. May is of course generally permissive. See Fourchier v. McNeil
Constr. Co., 68 Nev. 109, 227 P.2d 429 (1951); SCR 2(9); DCR 2(6); 26A Words and
Phrases 404 (MayIn Statutes as Permissive or Mandatory). More fully stated, the rule is
best expressed in this manner: Generally in construing statutes, may' is construed as
permissive and shall' is construed as mandatory unless a different construction is demanded
by the statute in order to carry out the clear intent of the legislature. City of Wauwatosa v.
County of Milwaukee, 125 N.W.2d 386, 389 (Wis. 1963). There is nothing to indicate the
legislature intended mandatory rather than permissive interpretation of its use of the word
may.
Still further support is found for such construction of the garagemen's lien statute. There
existed at the common law a lien for the benefit of artisans and mechanics who furnished
labor and materials upon the personal property of another, and this has been held to apply to
garagemen and mechanics who furnished labor and materials for automobiles. Hughes v.
Aetna Ins. Co., 261 S.W.2d 942 (Mo. 1953); Hiltz v. Gould, 105 A.2d 48 (N.H. 1954); Honey
v. Pacific Auto. Indem. Exch., 212 P. 199 (Cal. 1923); Annot., 62 A.L.R. 1485, 1486 (1929).
The common law lien only gave the right to retain possession of the property until the debt
was paid. Hughes v. Aetna Ins. Co., supra.
In 3 J. Sutherland, Statutes and Statutory Construction 5305 (3d ed. F. Horack 1943), it
is stated: There is a presumption that a statute is consistent with the common law, and so a
statute creating a new remedy or method of enforcing a right which existed before is regarded
as cumulative rather than exclusive of the previous remedies. The legislature here has
codified the common law remedy in NRS 10S.270 {quoted above), and provided an
additional remedy in NRS 10S.310 by permitting the garageman to sell the property if it is
not redeemed by payment of the debt.
86 Nev. 604, 608 (1970) Ewing v. Fahey
legislature here has codified the common law remedy in NRS 108.270 (quoted above), and
provided an additional remedy in NRS 108.310 by permitting the garageman to sell the
property if it is not redeemed by payment of the debt. The language of NRS 108.310 does not
by its terms alter the common law remedy; the use of the permissive word may suggests
that it is an additional remedy.
An examination of NRS ch. 108 covering the whole gamut of statutory liens, fortifies
further our construction of NRS 108.270 as not requiring, but only permitting sale of the
liened vehicle. It appears the legislature has consistently followed the plan of requiring
enforcement of lien rights within a specific or reasonable time only where the property cannot
readily be taken into possession by the lien holder. See NRS 108.233 (mechanics' liens) and
NRS 108.240(2) (foundrymen's liens). In every other statutory lien under that chapter, the lien
may be (not must be) satisfied by sale of the property.
2. This construction of NRS 108.270 does not leave the debtor subject to the caprice and
whim of the lien holder, if he believes the charges are unjust or the lien invalid. NRS 108.350
states that nothing in the lien statutes precludes the owner of property covered by the lien
from contesting the validity of the lien and all of his legal rights and remedies are reserved by
him for that purpose. To cite just one remedy NRS 31.840, the claim and delivery statute,
which is available to one desiring to bring an action to recover personal property. Thus, the
debtor, if he so desires, can recover possession of his property while the parties' respective
rights are awaiting determination.
3. Other errors were urged, both in the appeal and the cross-appeal. However, they do not
require our consideration or ruling, in light of the action taken above.
Judgment for respondents is reversed with instructions to the lower court to dismiss the
action.
____________
86 Nev. 609, 609 (1970) Whittlesea Blue Cab Co. v. McIntosh
WHITTLESEA BLUE CAB COMPANY and RESERVE INSURANCE COMPANY,
Appellants, v. LORENE MCINTOSH, Respondent.
No. 6061
July 15, 1970 472 P.2d 356
Action for damages arising out of automobile collision, in which defendant appealed from
an adverse judgment of the district court. The Supreme Court, Collins, C. J., held that refusal
to admit in evidence pleadings and other preliminary documents from action formerly filed by
plaintiff, which action had been dismissed on motion of plaintiff's own counsel, was
prejudicial error where jury in instant action had been told by plaintiff's counsel about the
former case, and where plaintiff's counsel sought to leave a strong impression with jury that
filing of that case upon totally different factual occurrence of negligence was a lawyer's error
and in no way attributable to or admissible against plaintiff, where such pleadings were
offered by defendant to impeach plaintiff's testimony as to how her injuries occurred.
Reversed and remanded for new trial.
Alex. A. Garroway, of Reno, for Appellants.
Echeverria and Osborne, of Reno, for Respondent.
1. Evidence.
Generally, a pleading containing an admission is admissible against the pleader in a proceeding
subsequent to one in which pleading is filed, even if it is not verified by the client, if he allows it to stand
without amendment.
2. Appeal and Error; Witnesses.
In action arising out of automobile collision, refusal to admit in evidence pleadings and other preliminary
documents from action formerly filed by plaintiff, which action had been dismissed on motion of plaintiff's
own counsel, was prejudicial error where jury in instant action had been told by plaintiff's counsel about
the former case, and where plaintiffs counsel sought to leave a strong impression with jury that filing of
that case upon totally different factual occurrence of negligence was a lawyer's error and in no way
attributable to or admissible against plaintiff, where such pleadings were offered by defendant
to impeach plaintiff's testimony as to how her injuries occurred.
such pleadings were offered by defendant to impeach plaintiff's testimony as to how her injuries occurred.
OPINION
This is an appeal in a personal injury action from a jury verdict and judgment awarding
damages of $35,000 to respondent (plaintiff below). We reverse that judgment and remand
the action for a new trial.
On December 26, 1965, respondent, Lorene McIntosh, was a passenger in a Whittlesea
taxicab proceeding north on South Virginia Street in Reno. The taxi stopped for a traffic light
at the intersection of South Virginia and Center Streets. The traffic light turned green, and as
the taxi proceeded into the intersection it was struck from behind by another automobile. The
taxi driver proceeded through the intersection, pulled over to the curb and stopped. The police
responded but made no investigation, believing no one was injured nor damage done to either
vehicle. The name of the other driver was not obtained by anyone. Nevertheless, Lorene
McIntosh was taken to the hospital by the taxi driver, where she was treated for an injury to
her neck.
On May 20, 1966, respondent, through counsel, commenced an action, Case No. 228925,
against appellants, alleging that her injuries had resulted from the rear-end collision and that
appellant Whittlesea was negligent in not obtaining the name of the other driver who struck
the taxi from behind. When that action came on for trial, it was dismissed on motion of
respondent's own counsel after respondent testified she sustained the injuries to her neck
when, following the accident, the taxi driver swerved over to the curb and stopped abruptly.
The present action, Case No. 241566, was thereafter commenced, in which respondent as
plaintiff below alleged through the same counsel that she was injured as a result of the
negligent operation of the taxi by appellant Whittlesea's employee.
At the commencement of trial in Case No. 241566, counsel for respondent, in his opening
statement to the jury, alluded to the first action, Case No. 228925.
1
Counsel for appellants
responded in his opening statement to the jury and indicated he would prove to them that
Lorene McIntosh commenced the first action on a totally different theory of negligence.
____________________

1
Counsel for respondent (Mr. Coffin), in his opening statement to the jury, said: There is one point of
confusion that we want to clear up, because Mr. Garroway has alluded to it and that will be that there was a
mistake, a lawyer's mistake in the original pleading of this case, and it will not be a part of the evidence that we
produce here. The
responded in his opening statement to the jury and indicated he would prove to them that
Lorene McIntosh commenced the first action on a totally different theory of negligence.
During the trial of Case No. 241566, appellants' counsel sought to introduce in evidence
pleadings and other preliminary documents on file in Case No. 228925, the first action
between the parties which was dismissed, to impeach respondent's testimony as to how her
injuries occurred. Upon objection of respondent, the lower court refused to admit that
documentary evidence. Appellants' counsel made a detailed offer of proof of that evidence,
identifying the documents and where in the record of Case No. 228925 they could be found.
Appellants did not, however, present certified or true copies of the documents to be marked
for identification.
During closing argument to the jury, counsel for respondent again alluded to Case No.
228925 and spoke of the filing of that action as a lawyer's mistake. The jury returned a
verdict in favor of Lorene McIntosh in Case No. 241566 and fixed her damages at $35,000. A
judgment, from which this appeal is taken, was entered in accordance with the verdict.
During pendency of the appeal, appellants moved to supplement the record on appeal by
addition of the pleadings and documents from Case No. 228925 excluded from evidence by
the court during trial of Case No. 241566. Respondent's counsel opposed the motion. We
ordered that motion to be taken under advisement but ordered the record on appeal
supplemented by the excluded documents to aid us in our decision on the motion.
We grant the motion to supplement the record on appeal. Counsel for appellants made an
offer of proof at trial sufficient under the circumstances. We reverse the judgment, and
remand the action (Case No. 241566) for a new trial.
[Headnote 1]
1. The general rule is that a pleading containing an admission is admissible against the
pleader in a proceeding subsequent to the one in which the pleading is filed. Dolinar v.
Pedone, 146 P.2d 237, 241 (Cal.Dist.Ct.App. 1944). This is so even if it is not verified by the
client, if he allows it to stand without amendment. Id. The California court went on to say,
"[I]t is always competent for the party against whom the pleading is offered to show that
the statements were inadvertently made or were not authorized by him or made under a
mistake of fact.
____________________
lawyer was mistaken, as the policemen were mistaken, that the real accident was that little tap. It was not. The
evidence that we will produce will prove to you, I think, that the accident that caused her injuries was that
sudden swerving and jamming on the brakes and I expect that at the conclusion of the case, you people will see
that justice is done and render a verdict that will adequately compensate this lady for her disabilities and her
expenses that she has suffered in the past and will continue to suffer in the future.
it to stand without amendment. Id. The California court went on to say, [I]t is always
competent for the party against whom the pleading is offered to show that the statements were
inadvertently made or were not authorized by him or made under a mistake of fact. Whether
such explanation weakens or destroys the force of the statement contained in the pleading, is
a proper question for the court or jury, but it only affects the weight, not the admissibility of
such pleading in evidence. Id. See also City of Pleasant Hill v. First Baptist Church, 82
Cal.Rptr. 1, 23-25 (Dist.Ct.App. 1969).
The federal rules of civil procedure are in accord. A complaint is admissible in another
case even though the party did not sign the pleading, because under FRCP 11 the signature of
the lawyer is all that is required. Frank R. Jelleff, Inc. v. Braden, 233 F.2d 671 (D.C.Cir.
1956). This case is the subject of an annotation on pleadings as evidence, 63 A.L.R. 2d 400
(1959).
[Headnote 2]
2. Respondent suggests that even if it was error not to admit the documents from Case No.
228925, the error was not prejudicial. We disagree. The jury was told by respondent's
counsel, both in opening statement and closing argument, about Case No. 228925 and sought
to leave the strong impression with them that the filing of Case No. 228925 upon a totally
different factual occurrence of negligence was lawyer's error and in no way attributable to or
admissible against respondent. The pleadings and documents from the first case were clearly
admissible in the second case. Though not binding upon respondent, she could attempt to
explain them and the jury could attach such weight and credibility to them as they saw fit. We
cannot presume to know what the jury may have done had they had this admissible evidence
before them.
Other errors were urged by appellants but do not require our determination in light of our
action above.
____________
86 Nev. 613, 613 (1970) Brandon v. Travitsky
ROBERT J. BRANDON, Individually, ROBERT J. BRANDON, Doing Business as
BRANDON'S LTD. and BRANDON'S, a Corporation, Appellants, v. CHARLES
TRAVITSKY and CHARLES TRAVITSKY Doing Business Under the Firm Name of
AMERICAN DIAMOND MFG. CO., Respondents.
No. 6071
July 15, 1970 472 P.2d 353
Appeal from the Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Action to recover a sum due on sale of jewelry. From a judgment of the district court the
defendants appealed. The Supreme Court, Collins, C. J., held, inter alia, that the trial court
may not speculate as to when interest becomes due nor decide that question upon premise of
what appears to be a fair and equitable time for beginning the running of interest, and hence
award of prejudgment interest as of certain date in absence of evidence was error.
Nelson, Bull & Hickey, of Reno, for Appellants.
Virgil D. Dutt and Larry R. Hicks, of Reno, for Respondents.
The lower court's decision supported in the record by substantial evidence will not be disturbed on
appeal, particularly where the evidence is conflicting and credibility of witnesses and weight to be given
evidence are in issue; the rule applies even if the facts create grave suspicions and doubt.
2. Interest.
Prejudgment interest runs from time the money becomes due, and when the money becomes due is a
matter to be resolved by trial judge upon trial by determining when performance was due. NRS 99.040.
3. Interest.
The trial court may not speculate as to when interest becomes due nor decide that question upon premise
of what appears to be a fair and equitable time for beginning the running of interest, and hence award
of prejudgment interest as of certain date in absence of evidence was error.
hence award of prejudgment interest as of certain date in absence of evidence was error. NRS 99.040.
OPINION
This is an appeal by appellant (defendant below) from a judgment in a trial to the court in
favor of respondent (plaintiff below) in the amount of $7,345 together with prejudgment
interest from October 15, 1963. We affirm the judgment but modify the date of the award of
prejudgment interest.
Charles Travitsky was a jewelry wholesaler. Robert J. Brandon was a jewelry retailer.
From late 1961 until approximately October, 1963, the parties engaged in a series of dealings
whereby Travitsky sold outright or transferred on memorandum quantities of antique
jewelry to Brandon. Transfer on memorandum is a custom of doing business between
dealers in the jewelry business whereby a wholesaler transfers possession of jewelry pieces to
a retailer for final sale but retains title in himself. Brandon would either sell the jewelry, keep
it himself, or return it to Travitsky. Brandon would pay Travitsky by check or by promissory
note. Often Brandon's checks to Travitsky when presented for payment would be dishonored
for lack of funds, whereupon Brandon would either give Travitsky a new check or a
promissory note. The back and forth transactions between the parties in jewelry, checks and
promissory notes were numerous, complex and confusing. Brandon kept few records.
Travitsky testified most of his records were lost in a burglary of his home in 1964. Thus, the
trial court was faced with a formidable task of resolving the controversy of the parties. Most
of the documentary evidence available came from Travitsky. The controversy centered around
Brandon's oral contention he paid Travitsky all sums owed him except for an amount between
$600 and $1,000. Travitsky claims a much larger sum was owed him.
The trial judge rendered a judgment in favor of Travitsky for the sum of $7,345 together
with prejudgment interest at 7 percent per annum from October 15, 1963, with this
explanation:
That since many of the defendant's obligations arising after October 15, 1963, relate back
to obligations arising long before October 15, 1963, and because some of the defendant's
obligations arose in the several months following October 15, 1963, the Court not being able
to determine, and the evidence not showing which was which, the Court finds that the
date of October 15, 1963, is a fair and equitable time for the beginning of the running of
interest on the defendant's indebtedness of SEVEN THOUSAND THREE HUNDRED AND
FORTY FIVE DOLLARS {$7,345.00)."
1963, the Court not being able to determine, and the evidence not showing which was which,
the Court finds that the date of October 15, 1963, is a fair and equitable time for the
beginning of the running of interest on the defendant's indebtedness of SEVEN THOUSAND
THREE HUNDRED AND FORTY FIVE DOLLARS ($7,345.00).
The issues for our determination are these:
I. Whether the evidence below was sufficient to support the judgment?
II. Whether the trial court erred in awarding prejudgment interest?
[Headnote 1]
1. Appellant contends the evidence before the trial court was so favorable to him that the
trial court erred in granting judgment in favor of respondent and that no reasonable minds
could disagree upon the conclusion to be gained from the evidence. We have read the record
of the testimony, and disagree. There was substantial evidence in the record to support the
lower court's decision. It will not be disturbed on appeal. Utley v. Airoso, 86 Nev. 116, 464
P.2d 778 (1970); Havas v. Alger, 85 Nev. 627, 461 P.2d 857 (1969); Price v. Sinnott, 85 Nev.
600, 460 P.2d 837 (1969); Coleman v. Benson, 85 Nev. 594, 460 P.2d 158 (1969); Richfield
Oil Corp. v. Harbor Ins. Co., 85 Nev. 185, 452 P.2d 462 (1969). This rule is particularly
applicable where the evidence is conflicting and the credibility of witnesses and weight to be
given evidence is in issue. Havas v. Alger, supra; Douglas Spencer and Associates v. Las
Vegas Sun, Inc., 84 Nev. 279, 439 P.2d 473 (1968); Briggs v. Zamalloa, 83 Nev. 400, 432
P.2d 672 (1967); LeMon v. Landers, 81 Nev. 329, 402 P.2d 648 (1965); Miller v. Lewis, 80
Nev. 402, 395 P.2d 386 (1964); Quijada v. Southern Pipe & Casing Co., 78 Nev. 271, 371
P.2d 661 (1962); Bird v. Mason, 77 Nev. 460, 366 P.2d 338 (1961); Berto v. Wilson, 74 Nev.
128, 324 P.2d 843 (1958); Carlson v. McCall, 70 Nev. 437, 271 P.2d 1002 (1954); Ormachea
v. Ormachea, 67 Nev. 273, 217 P.2d 355 (1950); Garaventa v. Gardella, 63 Nev. 304, 169
P.2d 540 (1946). The rule applies even if the facts create grave suspicions and doubt, LeMon
v. Landers, supra; Bird v. Mason, supra, and even where the evidence was all in writing, the
trial court's findings will not be set aside unless clearly or manifestly against the weight of the
evidence, or without any reasonable support therein. Garaventa v. Gardella, supra, at 312.
[Headnote 2]
2. Prejudgment interest runs from the time the money becomes due. NRS 99.040. When
the money becomes due is a matter to be resolved by the trial judge upon trial by determining
when performance was due. Paradise Homes v. Central Surety, 84 Nev. 109, 116, 437 P.2d
78 (1968).
[Headnote 3]
The trial court may not speculate as to when the sum becomes due nor decide that question
upon the premise of what appears to be a fair and equitable time for the beginning of the
running of interest. Thus, its award of prejudgment interest as of October 15, 1963, upon the
reason assigned was error.
The trial court should have awarded interest from the dates the various obligations fell due
after October 15, 1963. However, we have examined the record, and it is undisputed by either
party to this action that as of May 15, 1964, all the obligations stemming from the
transactions of the parties had become due. Accordingly, we modify the judgment and direct
that prejudgment interest at the rate of 7 percent per annum run from May 15, 1964, rather
than October 15, 1963, on the amount of $7,345, and conclude as a matter of law that as of
that day the money was due respondent from appellant. Paradise Homes v. Central Surety,
supra, at 117; Close v. Isbell Construction Co., 86 Nev. 524, 471 P.2d 257 (1970).
____________
86 Nev. 616, 616 (1970) County of Clark v. Christensen
COUNTY OF CLARK, Appellant, v. EDGAR
LYLE CHRISTENSEN, Respondent.
No. 6086
July 15, 1970 472 P.2d 365
Appeal from judgment of the Eighth Judicial District Court, Clark County; George F.
Wright, Judge.
Action by airplane owner against county for damages for loss of airplane. The district
court entered a judgment in favor of airplane owner and the county appealed. The Supreme
Court, Thompson, J., held that airplane owner, who piloted plane at request of county sheriff's
office in search for person who was absent without leave and wanted by United States Coast
Guard, was entitled to recover from county for damage to airplane which crashed as a
result of unknown causes and was totally destroyed, in view of statute requiring male
persons over 1S years of age to join a posse comitatus when lawfully requested to do so
or be adjudged guilty of a misdemeanor.
Coast Guard, was entitled to recover from county for damage to airplane which crashed as a
result of unknown causes and was totally destroyed, in view of statute requiring male persons
over 18 years of age to join a posse comitatus when lawfully requested to do so or be
adjudged guilty of a misdemeanor.
Affirmed.
George E. Franklin, Jr., District Attorney, and Raymond B. Little, Deputy District
Attorney, Clark County, for Appellant.
Edwin J. Dotson, of Las Vegas, for Respondent.
Counties.
Airplane owner, who piloted plane at request of county sheriff's office in search for person who was
absent without leave and wanted by United States Coast Guard, was entitled to recover from county for
damage to airplane which crashed as a result of unknown causes and was totally destroyed, in view of
statute requiring male persons over 18 years of age to join a posse comitatus when lawfully requested to do
so or be adjudged guilty of a misdemeanor. NRS 199.420.
OPINION
This appeal is from a judgment against Clark County awarding Christensen damages for
the loss of his airplane. Christensen operated a crop dusting, seeding and spraying business.
At the request of the Clark County Sheriff's Office, he piloted his plane over Pahrump Valley
in search for a person who was absent without leave and wanted by the United States Coast
Guard. The aircraft crashed and was totally destroyed. His complaint for damages was based
upon NRS 199.420 which declares a male person over 18 years of age to be guilty of a
misdemeanor if he refuses to join a posse comitatus when lawfully requested to do so.
1
The
district court found the facts as just related and, in addition, found that the defendant
county was negligent.
____________________

1
NRS 199.420: Every male person, above 18 years of age, who shall neglect or refuse to join the posse
comitatus, or power of the county, by neglecting or refusing to aid and assist in taking or arresting any person or
persons against whom there may be issued any process, or by neglecting to aid and assist in retaking any person
or persons who, after being arrested or confined, may have escaped from such arrest or imprisonment, or by
neglecting or refusing to aid and assist in preventing any breach of the peace, or the commission of any criminal
offense, being thereto lawfully required by any sheriff, deputy sheriff, coroner, constable, judge, or justice of the
peace, or other officer concerned in the administration of justice, shall be guilty of a misdemeanor.
found the facts as just related and, in addition, found that the defendant county was negligent.
This latter finding was clearly erroneous since the record is silent as to the proximate cause of
the crash. Christensen sustained a skull fracture which caused a memory loss for events
leading up to the accident. Consequently, he was unable to explain the occurrence, nor was
the county in a position to do so. Notwithstanding the absence of negligence in the county, we
may sustain the judgment if NRS 199.420 may properly be construed to impose civil liability
upon the county in these limited circumstances. Cf. Spray-Bilt, Inc. v. Ingersoll-Rand World
Trade, Limited, 350 F.2d 99, 103 (C.A. 5, 1965). We so construe the statute, and affirm.
The statute does not expressly give the citizen a cause of action [cf. Riker v. City of New
York, 126 N.Y.S.2d 229 (1953)], nor did such a cause of action exist at common law.
However, public policy would seem to demand relief, and it is sometimes proper for a court
to so declare. Shoshone Coca-Cola v. Dolinski, 82 Nev. 439, 442, 420 P.2d 855 (1966).
Christensen's aircraft was being used in the performance of a public service when destroyed
by a cause unknown. He is presumed to have acted with ordinary care. NRS 52.070(4). Had
he refused assistance, he would have run the risk of criminal sanction. By responding to the
sheriff's cry for help he incurred the risk incident to that undertaking. The alternatives were
not attractive, and the choice between them should not be required without reasonable
protection being offered in return. In a different context, Wisconsin ruled that a private
citizen, whose vehicle was commandeered by a police officer and was directed to park it
across a public highway to form a road block, was not liable to third persons injured thereby.
Kagel v. Brugger, 119 N.W.2d 394 (Wis. 1963). The court clothed the citizen with that
protection for policy reasons. The Wisconsin statute did not immunize the citizen. Those
policy considerations apply with equal force to the circumstances of this case, and we so rule.
Affirmed.
____________
86 Nev. 619, 619 (1970) Norris v. Phillips
WILLIAM E. NORRIS, Appellant, v. CHARLES
F. PHILLIPS, Respondent.
No. 6107
July 15, 1970 472 P.2d 347
Appeal from order of the Second Judicial District Court, Washoe County, refusing to set
aside judgment; John F. Sexton, Judge.
Action on note. The district court entered order refusing to set aside judgment against
makers and they appealed. The Supreme Court held that record supported findings that one of
three defendants sued on note had had full opportunity, before trial, to advise counsel who
represented all three defendants of his personal defense and that counsel had attempted to
notify defendant of trial date.
Affirmed.
Robert A. Groves, of Reno, for Appellant.
Swanson and Swanson and Wayne N. Capurro, of Reno, for Respondent.
Judgment.
Record on appeal from denial of motion to set aside judgment on note against three defendants supported
finding that defendant who was not present at trial had full opportunity, before trial, to advise counsel of
his personal defense and that counsel had attempted to notify defendant of trial date. NRCP 60(b).
OPINION
Per Curiam:
This is an appeal from a district court order refusing to set aside a judgment against the
appellant and two other persons in an action upon a promissory note signed by all of them.
The three defendants were served with process and were represented by the same attorney
who prepared and filed an answer on their behalf. Trial was held and judgment entered for the
plaintiff. This appellant was not present at the trial. He claims that he was not notified by his
counsel of the trial date. Moreover, he asserts that he possessed a complete defense to the
action against him, not enjoyed by his codefendants, which his counsel did not assert.
The district court found that after issue was joined the appellant had several conferences
with his counsel and that he had full opportunity, before trial, to advise counsel of his
personal defense; that counsel had attempted to notify appellant of the trial date.
86 Nev. 619, 620 (1970) Norris v. Phillips
he had full opportunity, before trial, to advise counsel of his personal defense; that counsel
had attempted to notify appellant of the trial date. Consequently, that court ruled that relief
under NRCP 60(b) was not warranted.
Since the record may be read to support the findings of the district court, we affirm.
____________
86 Nev. 620, 620 (1970) Chauncey v. Warden
EDWARD W. CHAUNCEY, Appellant, v. WARDEN,
No. 6133
July 15, 1970 472 P.2d 364
Appeal from an order denying pre-trial habeas corpus; Second Judicial District Court,
Washoe County; Thomas O. Craven, Judge.
The district court denied relief, and petitioner appealed. The Supreme Court held that
defendant who, while sentenced and assigned to work detail at lake partly in Washoe County
and partly in Ormsby County, escaped and was then sentenced to imprisonment in Arizona,
whereupon escape complaint was filed in Washoe County and detainer sent to Arizona, and
defendant demanded speedy trial from Ormsby County officials, was not entitled to habeas
corpus on account of denial of speedy trial where it did not appear whether he should have
known that complaint issued out of Washoe County and no prejudice was shown.
Affirmed.
H. Dale Murphy, Public Defender, and Jerome M. Polaha, Deputy Public Defender,
Washoe County, for Appellant.
1. Habeas Corpus.
Defendant who, while sentenced and assigned to work detail at lake partly in Washoe County and partly
in Ormsby County, escaped and was then sentenced to imprisonment in Arizona whereupon escape
complaint was filed in Washoe County and detainer sent to Arizona and defendant demanded speedy trial
from Ormsby County officials, was not entitled to habeas corpus on account of denial of speedy
trial where it did not appear whether he should have known that complaint issued out
of Washoe County and no prejudice was shown.
account of denial of speedy trial where it did not appear whether he should have known that complaint
issued out of Washoe County and no prejudice was shown.
2. Habeas Corpus.
District court order denying habeas corpus was entitled to presumption of correctness.
OPINION
Per Curiam:
In 1962, the appellant was sentenced to the Nevada State Prison on a burglary conviction.
In 1965 he escaped from custody while assigned to a work detail at Marlette Lake, which is
located partly in Washoe County and partly in what was then Ormsby County (now Carson
City). He was thereafter arrested in Arizona on another burglary charge and sentenced to the
Arizona State Prison. Approximately a month after the appellant's escape in Nevada, a
complaint was filed in Washoe County, charging him with the crime of escape. A warrant for
the appellant's arrest was issued and delivered to the Nevada State Prison. A detainer was sent
to the Arizona State Prison, and the appellant was informed of such detainer on December 1,
1965.
On February 8, 1966, the appellant made a demand upon the District Attorney and the
District Court Clerk in Ormsby County for a speedy trial on the escape charge. He renewed
that demand for a speedy trial in May of 1966 by letter to the First Judicial District Court. On
both of the appellant's demands for a speedy trial there was noted the number of the detainer
warrant which had been lodged against him, but there was no response or acknowledgment
from any of the Ormsby County officials.
In March, 1969, the Washoe County District Attorney's office was informed of the
appellant's whereabouts when another letter written to the Nevada Supreme Court by the
appellant was forwarded to that office in Reno. On May 1, 1969, the appellant's term expired
and he was released from the Arizona State Prison to the Nevada detainer.
He sought habeas below on the grounds that he had been denied a speedy trial after having
made a specific demand therefor. This appeal is from an order denying that pre-trial habeas
application.
[Headnote 1]
It does not appear from the record that any testimony or evidence was presented at the
hearing on the habeas petition, although the appellant was personally present and it was
within his power to subpoena other witnesses.
although the appellant was personally present and it was within his power to subpoena other
witnesses. Thus, the record fails to show certain essential prerequisite factual elements
entitling the appellant to relief. On the present record, it is not possible to determine whether
the appellant knew or should have known by the information that was available to him that
the escape complaint issued out of Washoe County rather than Ormsby County. Neither does
the record show how he was prejudiced by the delay in returning him to Nevada for trial.
1

[Headnote 2]
As a result, the appellant has not met the burden of making error in the proceedings below
apparent,
2
and the order of the district court is entitled to a presumption of correctness. A
Minor v. State, 85 Nev. 323, 454 P.2d 895 (1969).
Consequently, on the record which is before us, we affirm the order denying habeas.
____________________

1
Although counsel for the appellant in his brief contends that a proffer of proof on the issue of prejudice was
made, the record fails to bear out that contention.

2
Cf. Smith v. Hooey, 393 U.S. 374 (1969), where the prejudicial effect of a delay in bringing an accused to
trial was discussed and considered in depth, but where the case was remanded for further judicial effort on the
issue of prejudice under the circumstances of that case.
____________
86 Nev. 622, 622 (1970) Bryant v. Sheriff
BERNELL BRYANT, Appellant, v. SHERIFF, CLARK
No. 6255
July 15, 1970 472 P.2d 345
Appeal from an order denying a pre-trial petition for a writ of habeas corpus; Eighth
Judicial District Court, Clark County; William R. Morse, Judge.
The Supreme Court held that proof adduced at preliminary hearing that defendant charged
with murder shot victim four times, once in the back, and that shots caused victim's death was
sufficient to constitute probable cause to hold defendant for trial.
Affirmed.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney and
Margie A. Richards, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Even on a murder charge the quantum of proof necessary in order to hold accused to answer in the
district court is only that it appear to the magistrate, from substantial and competent evidence, that an
offense has been committed and that defendant committed it.
2. Criminal Law.
When evidence is in conflict at preliminary examination it is the function of the magistrate to determine
weight to be accorded testimony, and so long as inference of criminal agency can be drawn from the
evidence it is proper for the magistrate to draw it, thereby leaving to the jury at the trial the ultimate
determination of which the witnesses are more credible.
3. Criminal Law; Habeas Corpus.
Accused's explanation for homicide, being in the nature of a defense, whether true or false, reasonable or
unreasonable, is for trier of fact to consider at trial, and neither the preliminary examination nor hearing on
the pre-trial petition for writ of habeas corpus is designed as a substitute for that function. NRS 200.010.
4. Criminal Law.
Proof adduced at preliminary hearing that defendant charged with murder shot victim four times, once in
the back, and that shots caused victim's death was sufficient to constitute probable cause to hold defendant
for trial. NRS 200.010.
OPINION
Per Curiam:
The appellant shot and killed one Bryant Cameron in the Brown Derby in Las Vegas on
December 25, 1969. He was charged with murder in violation of NRS 200.010. On December
26, 1969, he surrendered himself to the Las Vegas Police Department voluntarily.
At the preliminary examination the evidence showed that the victim was shot four times,
once in the back according to the state's pathologist, and that those shots caused the victim's
death. It further showed that the shots were fired by the appellant, which fact he admitted
during his testimony in his defense. The testimony was in direct conflict, however, on the
issues of provocation and self-defense, some of the witnesses having seen a knife in the
victim's hand and others neither having seen such a knife nor an argument between the
victim and the appellant.
having seen such a knife nor an argument between the victim and the appellant.
The testimony of the witnesses who could supply no facts concerning provocation or
self-defense was that the appellant and the victim emerged through an entry-way and, without
any conversation or altercation, the appellant commenced shooting which resulted in the
victim's death.
The testimony of the appellant, and his witnesses who saw the knife in the victim's hand,
was that the victim approached the appellant with the knife, whereupon the appellant
disclaimed any desire to fight but was forced to struggle to avoid the knife. During the scuffle
someone handed the appellant the pistol and he shot the victim, repeatedly because the first
shots did not stop him.
On the proof adduced at the preliminary examination the appellant was bound over for
trial on the murder charge, but he was released on bail pending the trial. He then petitioned
for habeas corpus and this appeal is from the order of the district court denying habeas.
The thrust of the appellant's pre-trial habeas petition, and his principal contention on
appeal, is that the evidence was insufficient to constitute probable cause to hold him for trial
on the offense charged.
[Headnotes 1, 2]
However, even on a murder charge the quantum of proof necessary in order to hold an
accused to answer in the district court is only that it appear to the magistrate, from substantial
and competent evidence, that an offense has been committed and that the defendant
committed it. When the evidence is in conflict at the preliminary examination it is the
function of the magistrate to determine the weight to be accorded the testimony of the
witnesses, and so long as an inference of criminal agency can be drawn from the evidence it is
proper for the magistrate to draw it, thereby leaving to the jury at the trial the ultimate
determination of which of the witnesses are more credible. Miner v. Lamb, 86 Nev. 54, 464
P.2d 451 (1970). Hanley v. State, 85 Nev. 154, 451 P.2d 852 (1969).
[Headnote 3]
Upon the trial of this cause the evidence that the appellant presents in his defense may be
sufficiently persuasive to result in a conviction on a lesser charge, or even acquittal. However,
the accused's explanation for the homicide, being in the nature of a defense, whether true or
false, reasonable or unreasonable, is for the trier of fact to consider at the trial, and neither the
preliminary examination nor the hearing on the habeas petition is designed as a
substitute for that function.
preliminary examination nor the hearing on the habeas petition is designed as a substitute for
that function. State v. Fuchs, 78 Nev. 63, 368 P.2d 869 (1962).
[Headnote 4]
On the record of the preliminary examination there is sufficient competent evidence to
make it appear that the crime of murder had been committed and there is probable cause to
believe that the appellant committed it. In re Ervin, 76 Nev. 297, 352 P.2d 718 (1960).
Consequently, the order of the district court denying the appellant's petition for a writ of
habeas corpus is affirmed.
____________
86 Nev. 625, 625 (1970) Ponderosa Timber & Clearing v. Emrich
PONDEROSA TIMBER & CLEARING CO., and CRYSTAL BAY DEVELOPMENT CO.,
Appellants, v. CHARLES M. EMRICH, Respondent.
No. 6070
July 20, 1970 472 P.2d 358
Appeal from judgment and order denying new trial of the Second Judicial District Court,
Personal injury action in which, after verdict against all defendants, certain defendants
moved for new trial on ground of undisclosed pre-trial agreement between plaintiffs and
insurance carrier for the two other defendants. The district court denied the motion, and the
moving defendants appealed. The Supreme Court, Thompson, J., held that agreement,
whereby plaintiffs were guaranteed $20,000 but agreed to look solely to the moving
defendants to the extent of judgment, if any, against them, did not render trial to be so unfair
as to warrant new trial, though agreement possessed potential to encourage the two other
defendants to join forces with plaintiffs to promote verdict of more than $20,000, and though
such two defendants in fact admitted liability and suggested that all defendants should be held
liable, where, inter alia, there was ample evidence to support the verdict, the moving
defendants limited their argument to liability, and the two other defendants did not indicate to
jury that verdict should be in excess of $20,000, or in any other amount.
Affirmed.
Mowbray, J., with Collins, C. J., concurring, dissented.
[Rehearing denied August 27, 1970]
Wait & Shamberger, of Reno, and Carroll, Davis, Burdick & McDonough, of San
Francisco, California, for Appellants.
Echeverria & Osborne, of Reno, for Respondent.
1. Compromise and Settlement.
Agreement between plaintiffs and insurance carrier for two defendants whereby plaintiffs were
guaranteed $20,000 but agreed to look solely to the other defendants to extent of judgment, if any, against
them, did not constitute settlement within inquiry by trial court as to whether plaintiffs and such two
defendants had settled their case.
2. New Trial.
Undisclosed pre-trial agreement between plaintiffs and insurance carrier for two defendants whereby
plaintiffs were guaranteed $20,000 but agreed to look solely to the other defendants to the extent of
judgment against them, if any, did not cause trial to be so unfair that other defendants would be entitled to
new trial, though agreement possessed potential to encourage such two defendants to promote a verdict in
excess of $20,000, where, inter alia, there was ample evidence to support the verdict, the other defendants
limited their argument to liability and such two defendants, though admitting liability, did not indicate that
verdict should be in excess of $20,000, or in any other amount. NRCP 59(a)(1,3).
3. Trial.
There is no impropriety in admitting liability when evidence points to liability, nor in suggesting that
other defendants should share the burden of payment, where the evidence supports that suggestion.
OPINION
In this personal injury action the jury favored the plaintiffs with its verdict in the sum of
$35,000 against all defendants, Ponderosa Timber, Crystal Bay Development, California
Liquid Gas and its employee Atwood. Judgment was duly entered. Two of the defendants,
Ponderosa and Crystal Bay, moved for a new trial contending that an undisclosed pre-trial
agreement between counsel for the plaintiffs on the one hand, and the insurance carrier for the
codefendants Liquid Gas and Atwood on the other, caused the trial to be unfair. That motion
was denied. Ponderosa and Crystal Bay have appealed from the judgment and from the order
denying a new trial.
The mentioned pre-trial agreement guaranteed the plaintiffs $20,000, subject to the
following conditions: (a) if the plaintiffs lose at trial, or obtained judgment only against
Liquid Gas and Atwood, the insurance carrier for Liquid Gas would pay $20,000; (b) if the
plaintiffs secure judgment against all defendants, or any of them, for less than $20,000, the
plaintiffs would look to Ponderosa and Crystal Bay for satisfaction, and the insurance carrier
for Liquid Gas would pay the difference between the judgment and $20,000; (c) if the
plaintiffs obtain judgment against all defendants in excess of $20,000, the plaintiffs would
look solely to Ponderosa and Crystal Bay for satisfaction, and hold Liquid Gas and Atwood
harmless.
Counsel for Ponderosa and Crystal Bay did not become aware of the agreement until after
the trial of the case. Upon learning of it, they moved for a new trial upon the grounds that the
agreement constituted an irregularity in the proceedings preventing a fair trial, and surprise,
which ordinary prudence could not have guarded against. NRCP 59(a)(1)(3). The substance
of their argument upon the motion for new trial, and now to us, is that the agreement impelled
counsel for the codefendants Liquid Gas and Atwood to encourage a plaintiffs' verdict for
more than $20,000, since such a verdict would relieve those defendants of any responsibility
to pay.
[Headnote 1]
The agreement is unusual. It is neither a release, a covenant not to sue, nor a covenant not
to execute. Cf. Whittlesea v. Farmer, 86 Nev. 347, 469 P.2d 57 (1970). It did not settle the
case and discharge the cause of action against Liquid Gas and Atwood. It did guarantee the
plaintiffs $20,000 subject to specified conditions, and possessed the potential to encourage
counsel for Liquid Gas and Atwood to join forces with the plaintiffs to promote a verdict of
more than $20,000.1 This, however, was not its inevitable consequence. The district court
refused to disturb the verdict and grant a new trial. That court apparently believed that the
agreement did not influence the outcome of the case.
____________________

1
The validity of the agreement is not before us. Counsel for plaintiffs and for defendants Liquid Gas and
Atwood were asked before trial whether they had settled their case. Each answered no. The district court
properly found that the answers were technically correct; that the agreement settled nothing. However, that court
believed that the existence of the agreement should have been disclosed, and for that reason, set it aside and
ordered that the contracting parties either file a disclaimer or a satisfaction of judgment to the extent of one half
thereof. That satisfaction was filed and Liquid Gas and Atwood released from further liability. Consequently, the
court order was not challenged and Liquid Gas and Atwood are not parties to this appeal.
court apparently believed that the agreement did not influence the outcome of the case.
[Headnote 2]
It is difficult to perceive how the district court could have ruled otherwise. The jury was
not aware of the agreement. There is ample evidence to support the verdict. Indeed, the
sufficiency of the evidence is not challenged by the appealing defendants. They had full
opportunity to defend in the manner selected by their counsel. The special damages sustained
by the plaintiffs were not controverted. Neither did they question the extent of injury suffered
by the plaintiff Charles Emrich as described by his treating physician. None of the defendants
offered medical evidence in defense. Counsel for the appealing defendants did not discuss the
matter of damages in his jury summation, but limited his argument to liability.
In spite of these exceedingly significant factors the appealing defendants contend that the
trial was unfair. This contention is made because of the jury argument of counsel for the
codefendants in which he abandoned the pleaded defenses of contributory negligence and
assumption of the risk, admitted liability, and suggested that all of the defendants should be
held liable to the plaintiffs. That counsel did not indicate to the jury that the verdict should be
in excess of $20,000, or in any other amount.
[Headnote 3]
We cannot fault that argument. There is no impropriety in admitting liability when the
evidence points to liability, as it did in this case. That is a matter of trial strategy. Neither is it
improper to suggest that the other defendants in the case should share the burden of payment
when the evidence supports that suggestion. It is common for codefendants to assume such a
stance before a jury. In short, there is nothing which counsel for Liquid Gas and Atwood did,
or failed to do, which caused the trial to be unfair. Counsel for the appealing defendants was
free to persist in his effort to escape liability and endeavored, unsuccessfully, to do so.
Affirmed.
Zenoff and Batjer, JJ., concur.
Mowbray, J., with whom Collins, C. J., agrees, dissenting:
Respectfully, we dissent.
We consider that the narrow issue presented for our consideration in this appeal is whether
counsel's failure to disclose to the trial judge the existence of a pretrial settlement
between counsel's clients, California Liquid Gas Corporation and its employee, Charles
Atwood, who were defendants in the trial below, and respondent Charles M.
to the trial judge the existence of a pretrial settlement between counsel's clients, California
Liquid Gas Corporation and its employee, Charles Atwood, who were defendants in the trial
below, and respondent Charles M. Emrich and his minor son, Paul, the plaintiffs, constituted
grounds for granting a motion for a new trial made by appellants Ponderosa Timber &
Clearing Co. and Crystal Bay Development Co., the other named defendants.
After examining the record of the case, which was tried to a jury, we conclude that the
motion should have been granted, and we would reverse the order denying the motion and
remand the case to the district court for a new trial.
1. The Facts.
Respondent-plaintiff Charles M. Emrich and his son Paul were injured while attempting to
couple a butane truck rig at Incline Village, Nevada. Charles and Paul sued for damages. In
their complaint they name as defendants: (1) Charles Atwood, the driver of the rig; (2)
Atwood's employer, California Liquid Gas Corporation; (3) Crystal Bay Development Co.,
owner of the property upon which the accident occurred; and (4) Ponderosa Timber &
Clearing Co., engaged by Crystal Bay Development Co. to maintain its roads.
The trial commenced in district court on June 24, 1968. The settlement agreement that is
the center of this controversy provided in part that Transport Indemnity Company, the insurer
of defendant California Liquid Gas Corporation, would pay the Emrichs $20,000, subject to
certain conditions and stipulations.
1
The condition that is relevant to this appeal is the
last-mentioned stipulation, No.
____________________

1
The agreement, dated June 25, 1968, provided as follows:
This will confirm the agreement between your clients, Charles M. Emrich and Paul Emrich, a minor, by and
through his guardians, Charles M. Emrich and Virginia Emrich, and Transport Indemnity Company, the
insurance carrier for the defendants California Liquid Gas Corporation and Charles Atwood, relative to the
pending civil action now in the course of trial in the Second Judicial District Court of the State of Nevada, in and
for the County of Washoe.
Transport Indemnity Company guarantees that your clients will receive the sum of $20,000 regardless of the
outcome of the pending civil suit.
This guarantee is subject to and dependent on the following conditions:
1. In the event of a judgment against the plaintiffs and in favor of all of the defendants, or in the event the
plaintiffs obtain a judgment solely against California Liquid Gas Corporation and its employee, Charles Atwood,
Transport Indemnity Company will pay the plaintiffs the sum of $20,000 in full satisfaction of said judgment.
2. If the plaintiffs obtain a joint judgment against the defendant California Liquid Gas Corporation, and its
employee, Charles Atwood,
the last-mentioned stipulation, No. 3, which is to the effect that if the Emrichs obtained
judgment in excess of $20,000 against all the named defendants, then defendants California
Liquid Gas Corporation, its employee, Charles Atwood, and their insurance carrier, Transport
Indemnity Company, [would be held] harmless relative to said judgment.
After the settlement agreement had been signed by counsel, they were asked by counsel for
appellants, in the district judge's presence while in his chambers, whether a settlement
agreement had been executed. Counsel flatly denied the existence of an agreement.
2
The
case proceeded to conclusion, and the jury returned a judgment in favor of the plaintiffs and
against all the defendants, assessing damages in the amount of $35,000. Thereafter, on July 8,
counsel for appellants became aware of the June 25 settlement and moved for a new trial. The
district judge denied the motion, but in doing so declared the settlement agreement null and
void, because the attorneys should have, as officers of the Court, made a full disclosure of
all of the settlement negotiations or negotiations of any other type resulting in any sort of an
agreement. . . .
2. The Motion for a New Trial.
Appellants have urged that a new trial be granted under the provisions of NRCP 59(a) on
the grounds numbered (1) and {3) thereunder, in that counsel's failure to disclose the
agreement, when asked in the presence of the district judge whether such an agreement
existed, constituted "{1) [i]rregularity in the proceedings of the . . . adverse party, . . . by
which . . . [appellants were] prevented from having a fair trial; . . . {3) . . . surprise which
ordinary prudence could not have guarded against"both of which materially affected the
substantial rights of the appellants.3
____________________
and Ponderosa Timber & Clearing Company and Crystal Bay Development Co., or any of them, in a sum less
than $20,000, plaintiffs will look solely to the defendants Ponderosa Timber & Clearing Company and Crystal
Bay Development Co., to satisfy said judgment, and Transport Indemnity Company will pay the difference
between said judgment and $20,000.
3. If the plaintiffs obtain a joint judgment against the defendant California Liquid Gas Corporation and its
employee, Charles Atwood, the Ponderosa Timber & Clearing Company and Crystal Bay Development Co., or
any of them, in excess of $20,000 the plaintiffs will look solely to the defendants Ponderosa Timber & Clearing
Company and Crystal Bay Development Co. to satisfy said judgment and will hold California Liquid Gas
Corporation, its employee, Charles Atwood, and their insurance carrier, Transport Indemnity Company,
harmless relative to said judgment.

2
From the deposition of counsel for California Liquid Gas Corporation and Charles Atwood:
Q [by Jack D. Burdick, counsel for defendants Crystal Bay Development Co. and Ponderosa Timber &
Clearing Co.] What was the conversation, then, that took place then in the chambers of the Court about any
agreements that you and Mr. Echeverria might have reached between yourself?
A Mr. Shamberger stated that he wanted to ask Pete [Echeverria] and me a question in the presence of the
Judge, and we said, All right,' and his question was whether we had settled the case.
Mr. Echeverria answered, No,' and I answered, No.'
and (3) thereunder, in that counsel's failure to disclose the agreement, when asked in the
presence of the district judge whether such an agreement existed, constituted (1)
[i]rregularity in the proceedings of the . . . adverse party, . . . by which . . . [appellants were]
prevented from having a fair trial; . . . (3) . . . surprise which ordinary prudence could not
have guarded againstboth of which materially affected the substantial rights of the
appellants.
3

We are not here concerned with a covenant not to sue nor a covenant not to execute. The
very nature of the settlement agreement caused one of the defendants being sued to attempt to
promote the plaintiffs' money recovery. That this effect resulted is borne out by the manner in
which the defense was conducted in this case, and the court should not countenance that
conduct. For example, in his summation, counsel for defendants California Liquid Gas
Corporation and Charles Atwood stated:
Mr. Shamberger [counsel for defendants Ponderosa Timber & Clearing Co. and Crystal
Bay Development Co.] explained that the defendants were relying on two defenses,
contributory negligence and assumption of risk.
4

Counsel continued:
Now I am not going to stand here and make a fool of myself by telling you people that
there is any merit in the defense of contributory negligence. There isn't. Even though that was
asserted in the defenses here, as far as I am concerned, you can forget about that. You heard
no instruction on assumption of risk. So the second side of this case, if there was a second
side, is out of the case, too.
. . .
____________________

3
NRCP 59. NEW TRIALS; AMENDMENT OF JUDGMENTS
(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues for any of
the following causes or grounds materially affecting the substantial rights of an aggrieved party: (1) Irregularity
in the proceedings of the court, jury, master, or adverse party, or any order of the court, or master, or abuse of
discretion by which either party was prevented from having a fair trial; (2) Misconduct of the jury or prevailing
party; (3) Accident or surprise which ordinary prudence could not have guarded against; (4) Newly discovered
evidence material for the party making the motion which he could not, with reasonable diligence, have
discovered and produced at the trial; (5) Manifest disregard by the jury of the instructions of the court; (6)
Excessive damages appearing to have been given under the influence of passion or prejudice; or, (7) Error in law
occurring at the trial and objected to by the party making the motion. . . .

4
In answering the complaint, defendants California Liquid Gas Company and Charles Atwood also asserted
the affirmative defenses of contributory negligence and assumption of risk.
. . . I submit to you ladies and gentlemen there aren't three sides to this case, there aren't
even two sides, there is one side, and that side is that all of these defendants are responsible to
the plaintiff, and I consider it my duty as an officer of this court to suggest to you that in the
interest of justice, if we are to have justice in this case, there must be a plaintiff's verdict
against all of the defendants.
Counsel then conceded special damages and left the award of general damages to the
discretion of the jury.
5

Counsel stated: This is the kind of a case when a lawyer . . . has to remind himself of the
oath that he took when he was admitted to practice . . . to see that justice is done. . . .
. . .
I feel that I have performed my duty to my client, to this Court, by making a full and
frank and candid disclosure of my position in this case, and accordingly I will submit it to
you.
Appellants, as codefendants, had every right to rely upon the position of defendants
California Liquid Gas Corporation and Charles Atwood as expressed in their pleadings,
which asserted the affirmative defense of contributory negligence and assumption of risk.
Indeed, NRCP 11 provides, in part: The signature of an attorney constitutes a certificate by
him that he has read the pleading [and] that to the best of his knowledge, information and
belief there is good ground to support it. . . .
6
Counsel having been informed that no
settlement had been made, the element of surprise became relevant when cocounsel in
effect admitted liability in his final argument and urged the jury to award damages
against all the defendantsknowing at that very time that if the award exceeded $20,000
his clients would be held harmless.

____________________

5
The special damages exceeded $15,000.

6
From the deposition of counsel for California Liquid Gas Corporation and Charles Atwood:
Q [by Jack D. Burdicksee footnote 2, supra] And being an attorney and an officer of the Court I take it you
construe it as your duty not to present or make claim on defenses that are wholly without merit; is that true?
A That's right.
Q And did you on June 21st, which was apparently the Friday before the trial, file an Answer to the Amended
Complaint? Do you want to look in your file there? Let me hand you this document and ask you if that does not
appear to be a true copy of the document that you signed, that you executed and filed on behalf of your client on
June 21st.
A That's right.
Q And does that document set up the defenses of contributory negligence and assumption of risk?
A Yes.
Q And you knew at the time you filed it that they were wholly without merit?
A That's right.
Q Do you make a habit or custom of filing pleadings that set up defenses that you know are wholly without
merit?
A No.
Q Why did you do it in this case?
Counsel having been informed that no settlement had been made, the element of surprise
became relevant when cocounsel in effect admitted liability in his final argument and urged
the jury to award damages against all the defendantsknowing at that very time that if the
award exceeded $20,000 his clients would be held harmless.
We believe that the nature of the settlement agreement in this case violated the traditional
adversary process in the trial below and thereby denied appellants their right to a fair trial.
____________________
A Well, I did it in this case primarily because I had no idea what to do in the defense of the case on that date.
Q In other words, if I understand you correctly that you don't make it
A I didn't know how to defend the case. I was grasping at straws.
Q You don't make a habit of filing unmeritorious defenses except in cases where you have no defense, and
then you will file any defense you can conjure up, is that about it?
A Well, let's talk about this case. In this case I had no conception of what to do in the defense and I just threw
them in.
Q You told Mr. Echeverria that there was no agreement between he and you that you would not contest the
damages in this case, right? Is that what you just told Mr. Echeverria a few minutes ago?
A Yes.
Q Once you executed the agreement of June 25, 1968, you knew as an experienced trial lawyer that you
didn't have to sit down and draw it out in hieroglyphics or carve it in stone, you knew that you were not going to
go in there and contest the damages?
A That's right.
Q And you knew that Mr. Echeverria knew that, right?
A Right.
Q And the same thing with regard to contributory and assumption of risk?
A That's correct.
Q And the reason was you had an agreement that you felt protected your client, right?
A Well, yes, that's right.
Q So you didn't need any agreement with Mr. Echeverria to do those things, you knew what was going to
happen; right?
A No, I didn't knowI didn't know the outcome of the case.
Q You knew what you were going to do?
A I knew what I was going to do.
Q You weren't going to be a damn fool and go in there and start arguing damages and try and get a verdict for
$12,000 so your client would end up paying $8,000; right?
A That's correct.
____________
86 Nev. 634, 634 (1970) Leavitt v. Pine
JACK K. LEAVITT, Appellant, v. EDWARD L. PINE, ERNEST H. CLARY, ROBERT W.
MILLARD, REX R. LLOYD, BYRON S. HARDIE, GEORGE E. SUTTON and REX A.
TYNES, as Members of and Consisting of the STATE BOARD OF REGISTERED
PROFESSIONAL ENGINEERS, and the STATE BOARD OF REGISTERED
PROFESSIONAL ENGINEERS, Respondents.
No. 6023
July 23, 1970 472 P.2d 526
Appeal from a judgment of the Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
Action to have statutes relating to certification of engineers declared invalid and to require
state board of professional engineers to issue to engineering college graduate a registration
card showing him to be entitled to practice professional engineering without limitations as to
any class or branch of profession. The district court granted summary judgment to plaintiff
and defendant appealed. The Supreme Court, 84 Nev. 507, 445 P.2d 942, reversed and
remanded. The district court found for defendants, and plaintiff appealed. The Supreme
Court, Batjer, J., held that where plaintiff had been certified by board of registered
professional engineers as professional engineer with classification of land surveyor, mere fact
that land surveying was subsequently statutorily excluded from practice of engineering did
not entitle board to issue license to plaintiff without certification of professional engineer.
Reversed with instructions.
Boyd, Leavitt and Freeman, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, John G. Spann, Deputy Attorney General, of Las
Vegas, for Respondents.
1. Judgment.
In determining propriety of summary judgment, all evidence favorable to party against whom such
judgment was rendered must be excepted as true and every intendment must be drawn in favor of such
party.
2. Licenses.
Board of registered professional engineers cannot promulgate bylaws inconsistent with laws of state.
3. Licenses.
Where plaintiff had been certified by board of registered professional engineers as professional engineer
with classification of land surveyor, mere fact that land surveying was subsequently
statutorily excluded from practice of engineering did not entitle board to issue license
to plaintiff without certification of "professional engineer."
land surveyor, mere fact that land surveying was subsequently statutorily excluded from practice of
engineering did not entitle board to issue license to plaintiff without certification of professional
engineer. NRS 625.040, subd. 4, 625.050, subd. 2, 625.180-625.210, 625.520.
4. Licenses.
License to practice one's profession is right protected by courts.
OPINION
The appellant, Jack K. Leavitt, graduated from Heald Engineering College in September,
1949. On October 5, 1951, he took and passed the Nevada engineer-in-training test.
1
On July
7, 1953 he took the land surveyor examination but only passed part A. On October 19, 1953,
he took and passed part B. That same day appellant was to have taken a written examination
for the classification of civil engineer, but did not do so. He was then advised that inasmuch
as he was not a graduate of an accredited school and because his work experience was largely
in the field of surveying, additional information was needed to determine if a written
examination for registration as a professional engineer with the classification civil would
be necessary. He submitted additional work data but never took a written test.
2
The appellant
testified that he was shortly thereafter told that he would be registered as a professional
engineer with the classification of land surveyor. Subsequently, he was issued a certificate
and a license card and advised that as a professional engineer he could use a seal approved by
the board. Leavitt's title on his certificate, license card and seal was phrased Professional
Engineer-Land Surveyor.
____________________

1
1943 NCL 1949, Supp. 2871, as amended by Chapter 299, Statutes of Nevada 1951, in effect at that time
read in pertinent part as follows:
The term professional engineer,' as used in this act, shall mean a person who by reason of his professional
education and practical experience is qualified to engage in engineering practice as hereinafter defined.
The term engineer-in-training,' as used in this act, shall mean a candidate for registration as a professional
engineer:
1. Who is a graduate of an approved engineering curriculum of four years or more approved by the board as
of satisfactory standing and who in addition has successfully passed an oral or written examination as shall be
designated by the board; or
2. Who has had four years or more experience in engineering work satisfactory to the board; and who, in
addition has successfully passed part one of the examination as provided in paragraph 3 of section 5 of this act.

2
Leavitt does not claim to be entitled to the classification of civil.
In 1961, the legislature amended the statute defining the practice of professional
engineering to expressly exclude land surveying.
3
This legislation could only have a
prospective effect and could not alter Leavitt's professional status.
The record reveals that the appellant continued to be certified as a Professional
Engineer-Land Surveyor until 1965. In 1966, he was issued a certificate which bore only the
title, Land Surveyor. On April 14, 1967, after requests to the State Board of Registered
Professional Engineers (hereinafter referred to as the board) for return of the designation
Professional Engineer had failed, appellant filed an action against respondents, requesting:
(1) that the board be enjoined from classifying him as anything other than a professional
engineer; (2) that the board be enjoined from publishing a roster of professional engineers
with listings according to the different branches of engineering; (3) that NRS
625.180-625.210 and 625.520 be declared unconstitutional as an unlawful delegation of
legislative power to an administrative agency; and (4) that the board be required to return
him to the status of a professional engineer without limitation as to field of practice. Upon
appellant's motion, the court entered summary judgment granting the relief requested. An
appeal was taken, and this court reversed the trial court in Pine v. Leavitt, 84 Nev. 507, 445
P.2d 942 (1968), holding that the statutes in question were not an unconstitutional delegation
of legislative power and that summary judgment was improvidently granted because there
appeared to be triable issue of fact concerning Leavitt's professional status.
Upon trial, the lower court found that Leavitt had practiced as a licensed land surveyor and
that there was no abuse of discretion by the board in reclassifying him as a land surveyor
since he had acquired no valuable property right to the title of professional engineer.
In this appeal Leavitt contends that he was deprived of a valuable property right without
due process of law when the board refused to continue to license him as a professional
engineer. He further contends that the trial court erred when it found that (1) the board had
the authority, subsequent to his certification in 1953, to determine whether he had met the
statutory requirements to be classified as a professional engineer; and {2) that the board
did not abuse its discretion when it denied him that status.
____________________

3
NRS 625.050(2): The practice of engineering shall not include land surveying or the work ordinarily
performed by persons who operate or maintain machinery or equipment. See also NRS 625.040(4): The
practice of land surveying does not include the design, either in whole or in part of any structure of fixed works
embraced in the practice of professional engineering as defined in NRS 625.050.
statutory requirements to be classified as a professional engineer; and (2) that the board did
not abuse its discretion when it denied him that status.
We agree that the trial court committed reversible error.
[Headnote 1]
Both the respondents and the trial court have misinterpreted the holding of this court in
Pine v. Leavitt, supra, and have apparently concluded that our assertion: The respondent is a
licensed land surveyor and asserting that he is a professional engineer will not change his
status was a finding by this Court. They have overlooked the principle, in determining
whether or not it was proper to grant summary judgment, that every intendment must have
been drawn in favor of the board and against Leavitt.
4

In the 1947 Statutes of Nevada, Chapter 254, the title of the act 1929 NCL, 1941 Supp.
2870-2875.07, inclusive, was specifically amended to read in part as follows: An act to
provide for a state board of registered professional engineers to examine applicants and issue
certificates for land surveying as a distinct branch of professional engineering; . . .
That was the chapter title in effect when Leavitt was originally licensed and given his
certificate and seal. It is hard to imagine a clearer authorization, yet counsel for the
respondents argues that the board was without authority when it licensed and certified the
appellant as a professional engineer-land surveyor.
It is furthermore noted that 1929 NCL, 1941 Supp. 2871, as amended, provided in
pertinent part: The practice of professional engineering within the meaning and intent of this
act includes any professional service such as surveying [etc.] . . . (See NRS 625.050.)
Strong reliance is placed, by the respondents, on the fact that in 1947 the legislature passed
the land surveyor's act (1947 Statutes of Nevada, Chap. 254, sec. 11 1/2 et seq; 1943 NCL,
1949 Supp. 2875.05(a)-2875.06(c)), and asks this court to construe that act as
prohibiting a professional engineer from being classified as a land surveyor.
____________________

4
See Whiston v. McDonald, 85 Nev. 508, 458 P.2d 107 (1969). Chief Justice Collins dissenting:
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). . . .
court to construe that act as prohibiting a professional engineer from being classified as a land
surveyor. However, a careful reading of that act as it was in effect when the appellant was
certified in 1953 not only authorized the board to issue certificates for land surveying as a
distinct branch of professional engineering but required all professional engineers, not
specifically exempt (1943 NCL, 1949 Supp. 1875.05(c) and 1943 NCL, 1949 Supp.
2875.06(c)(5)(a)) to qualify under the act (1943 NCL, 1949 Supp. 2875.05(a)) if they were
to engage in the practice of land surveying. 1943 NCL, 1949 Supp. 1875.05(6) and 1943
NCL, 1949 Supp. 2875.06(c).
Furthermore the prerequisites to becoming only a land surveyor were much relaxed from
those which Leavitt was required to meet as an engineer-in-training and a professional
engineer.
[Headnote 2]
The respondents also contend that the by-laws which were received in evidence prevented
the board from certifying the appellant as a professional engineer-land surveyor. Examination
fails to disclose when those by-laws became effective. In any event, the board could not have
promulgated any by-laws inconsistent with the laws of this State. 1943 NCL, 1949 Supp.
2872(1).
[Headnotes 3, 4]
After the board determined that the appellant could be certified as a professional engineer
with the classification of land surveyor, (1943 NCL, 1949 Supp. 2871; NRS 625.410), the
subsequent modification of the law by the legislature excluding land surveying from the
practice of engineering could not affect his status.
A license to practice one's profession is a right protected by the courts. In Abrams v. Jones,
207 P. 724, 727 (Idaho 1922), it was stated: . . . Where a state confers a license upon an
individual to practice a profession, trade, or occupation, such license becomes a valuable
personal right which cannot be denied or abridged in any manner except after due notice and
a fair and impartial hearing before an unbiased tribunal. See also Smith v. State Board of
Medical Examiners, 117 N.W. 1116 (Iowa 1908); Gilchrist v. Bierring, 14 N.W.2d 724 (Iowa
1944).
In Roberts v. State Board of Embalmers & Funeral Dir., 434 P.2d 61 (N.M. 1967), that
court said: . . . It is a well-established rule that, where a statute authorizes the revocation of a
license for certain named reasons, a license cannot be revoked upon grounds other than
the reasons specified."
of a license for certain named reasons, a license cannot be revoked upon grounds other than
the reasons specified. [Citations omitted.] The record is devoid of any allegations of facts
that would give the board cause to deny the appellant his certification as a professional
engineer and the respondents admit that there are none.
Upon the facts of this case we find that the board was precluded from diminishing the
appellant's professional status in any manner whatsoever, without cause, and its attempt to
issue him a license without the certification of professional engineer was such a
diminution.
We reverse the district court and return this matter with instructions to enter a judgment
directing the State Board of Registered Professional Engineers to issue to the appellant a
license certifying him to be a professional engineer with the classification of land
surveyor.
____________
86 Nev. 639, 639 (1970) Aja v. Appleton
AUGUSTINE A. AJA and JUDITH A. AJA, His Wife, Appellants, v. ALDACE E.
APPLETON and JUANITA M. APPLETON, His Wife, AppellantsRespondents, v. TITLE
INSURANCE AND TRUST COMPANY, Respondent.
No. 6105
July 24, 1970 472 P.2d 524
Appeal from judgment and order granting summary judgment; First Judicial District
Court, Churchill County; Llewellyn A. Young, Judge.
Vendors commenced action against purchasers to reform deed to real property and against
purchasers' title insurer for alleged negligence in preparing deed, and purchasers crossclaimed
against insurer for breach of title policy. The district court rendered summary judgment for
vendors against purchasers and denied claims against insurer, and vendors and purchasers
appealed. The Supreme Court, Mowbray, J., held that where mutual mistake in description of
land conveyed was admitted by vendors and purchasers, there was no negligence on part of
vendors, one of whom was real estate broker, by virtue of vendors' failure to detect error in
deed prior to recordation, and vendors were entitled to reformation of deed so that it
would properly describe property vendors had agreed to sell and purchasers had agreed
to buy, and that title insurer was not liable to purchasers for breach of title policy or to
vendors for alleged negligence in preparing deed.
recordation, and vendors were entitled to reformation of deed so that it would properly
describe property vendors had agreed to sell and purchasers had agreed to buy, and that title
insurer was not liable to purchasers for breach of title policy or to vendors for alleged
negligence in preparing deed.
Affirmed.
Gordon W. Rice, of Reno, for Appellants.
Sanford, Sanford & Fahrenkopf, of Reno, for Appellants-Respondents.
Diehl, Recanzone & Evans, of Fallon, for Respondent.
1. Reformation of Instruments.
Where mutual mistake in description of land conveyed was admitted by vendors and purchasers, there
was no negligence on part of vendors, one of whom was real estate broker, by virtue of vendors' failure to
detect error in deed prior to recordation, and vendors were entitled to reformation of deed so that it would
properly describe property vendors had agreed to sell and purchasers had agreed to buy.
2. Insurance.
Where purchasers conceded that they never intended to purchase parcel of land inadvertently described in
deed and where purchasers suffered no loss because of order decreeing reformation of deed to describe
only parcel intended to be conveyed, compensable damages were nonexistent and purchasers were not
entitled to recover from their title insurer.
3. Insurance.
Where purchasers' wrongful refusal to rectify an admittedly mistaken conveyance was proximate cause of
damage, if any, to vendors who were forced to resort to action to reform deed, purchasers' title insurer was
not liable to vendors for alleged negligence in preparing faulty deed.
Where vendors, who successfully brought action to reform deed to correct mutual error on part of
vendors and purchasers, did not appeal from part of order of district court denying vendors' claim for
damages against purchasers, Supreme Court could not consider the denial.
OPINION
Aldace E. and Juanita M. Appleton commenced this action in the district court to reform a
deed to real property that they had conveyed to Augustine A. and Judith A. Aja, so that the
deed would properly describe the property that the Appletons had agreed to sell and the Ajas
had agreed to buy.
had agreed to sell and the Ajas had agreed to buy. The record is crystal clear, and all parties
concede, that the description of the property in the deed was erroneous in that it included an
additional 1 1/2-acre parcel of noncontiguous real property owned by the Appletons but
which was not included in the Appleton-Aja sale. The Appletons also named the Title
Insurance and Trust Company as a party defendant, seeking damages for Title's alleged
negligence in preparing the deed. The Ajas answered the complaint by asserting various
affirmative defenses and cross-claiming against Title for breach of Title's insurance policy
issued to the Ajas. All parties moved for summary judgment. The district judge ruled in favor
of the Appletons and against the Ajas and ordered the deed reformed to describe the property
that the parties had intended to convey, and the court denied both the Appletons' and the Ajas'
claims against Title. We affirm in toto the order granting summary judgment.
1. The Facts.
The Appletons owned two noncontiguous parcels of real property in Fallon, Nevada.
Parcel A consisted of approximately 2 1/2 acres and Parcel B, 1 1/2 acres. The owners were
desirous of selling both parcels, and they engaged Elmer C. Weishaupt, a Fallon realtor, for
that purpose. Mr. Weishaupt placed for sale signs on each parcel. He was contacted by the
Ajas, who indicated an interest in Parcel A. Mr. Weishaupt drove the Ajas to Parcel A so that
they could inspect the property. They were never on Parcel B, nor was that parcel ever
discussed during the negotiations for and sale of Parcel A. The parties eventually agreed on
terms for the sale of Parcel A. Mr. Weishaupt prepared a sales contract that all parties signed.
In that contract he described the property as, The Mr. and Mrs. Appleton property on Alcorn
Road Containing two and one half (2-1/2) acres more or less. Mr. Weishaupt delivered the
signed sales contract to Title and opened an escrow to consummate the sale.
Title prepared the escrow instructions, and all parties signed. In the escrow instructions a
law firm in Fallon was designated to prepare the deed. The description of the property to be
conveyed was attached on a separate sheet to the escrow instructions, and it is this description
that included both parcels.
1
No onethe attorneys, Title, nor the partiesdiscovered the
mistake until several months after the deed was recorded.
____________________

1
Title had evidently taken the description from a previous title policy issued to the Appletons when they had
purchased both parcels from the previous owner.
recorded. The Ajas were requested to quitclaim Parcel B to the Appletons. Although the Ajas
conceded the description was in error, they refused to quitclaim, and this litigation resulted.
2. The Appleton-Aja Claims.
The Ajas argue that summary judgment in favor of the Appletons and against them was
improper because both Mrs. Appleton (who was a real estate broker) and Mr. Weishaupt, the
Appletons' broker, were negligent in failing to detect the error in the deed prior to
recordation. This position is without merit under the facts presented. While there is authority
that the negligence of a party who seeks reformation may bar him from that remedy, such
cases hold that the negligence must result in detriment to the other party. See Blake v. Black
Bear Coal Co., 141 S.W. 403 (Ky. 1911); Tuloma Pipe & Supply Co. v. Townsend, 77 P.2d
535 (Okla. 1938). Further, it has been repeatedly held that the failure of a party to detect a
faulty description in an instrument is not sufficient negligence to preclude reformation. Good
v. Lindstrom, 181 P.2d 933 (Cal.App. 1947); Mills v. Schulba, 213 P.2d 408 (Cal.App.
1950); Lister v. Sorge, 67 Cal.Rptr. 63 (Cal.App. 1968); Maland v. Houston Fire & Cas. Ins.
Co., 274 F.2d 299 (9th Cir. 1960); Taylor v. Lindenmann, 235 N.W. 310 (Iowa 1931);
Annot., 81 A.L.R.2d 7 (1962); Restatement of Contracts 504, 508 (1932).
Our court has spoken on the issue in Roberts v. Hummel, 69 Nev. 154, 158, 243 P.2d 248,
250 (1952):
It cannot be questioned at this late date that a court with equity powers (the district courts
of this state have such powers) may reform a written instrument where it appears that there
has been fraud, accident or mistake which has brought about a writing not truly representing
the actual agreement of the parties.
Further, in Lattin v. Gray, 75 Nev. 128, 335 P.2d 778 (1959), the plaintiff who sought
reformation had erred in that both the escrow instructions and the deed to the grantee had
misdescribed the property and conveyed more than was intended. Although it was apparent
that the grantor was negligent in failing to detect the misdescription (as is true in all
reformation cases of this type), the court nevertheless held that reformation was proper even
as to two subsequent grantees who took with notice of the mistake.
See also Ray v. Robertson, 55 Nev. 397, 36 P.2d 76 (1934); Wainwright v. Dunseath, 46
Nev. 361, 211 P. 1104 (1923); Wilson v. Wilson, 23 Nev. 267 (1896).
[Headnote 1]
Summary judgment in favor of the Appletons and against the Ajas was proper in the
instant case. Mutual mistake was admitted. Under the weight of authority there was no
negligence on the part of the Appletons as a matter of law, and they were entitled to
reformation of their deed.
3. Title's Liability.
A. The Ajas' Claim.
[Headnote 2]
The Ajas have attempted to hold Title liable in damages on the theory that Title breached
its contract of title insurance that Title had issued to the Ajas. Such a position is wholly
untenable. The Ajas conceded that they never intended to purchase Parcel B. They have
suffered no loss because of the order decreeing reformation. Recovery is impossible, since
compensable damages are nonexistent. See Garrison v. St. Louis & S. F. Ry Co., 271 P.2d
307 (Kan. 1954); Rosendahl v. Lesourd Methodist Church, 412 P.2d 109 (Wash. 1966).
B. The Appletons' Claim.
[Headnotes 3, 4]
The Appletons' claim for damages also is without merit, since the Ajas' wrongful refusal to
rectify an admittedly mistaken conveyance was the proximate cause of damage, if any, to the
Appletons.
2
Summary judgment was proper.
The judgment of the lower court is affirmed.
Zenoff, Batjer, and Thompson, JJ., and Gezelin, D. J., concur.
____________________

2
The Appletons did seek damages from the Ajas in the court below, which the district judge denied in his
order for summary judgment. Since the Appletons did not appeal from that part of the order, we may not
consider it in this appeal.
____________
86 Nev. 644, 644 (1970) Paramount Ins. v. Rayson & Smitley
PARAMOUNT INSURANCE INC., a Nevada Corporation, and FRONTIER FIDELITY
SAVINGS AND LOAN ASSOCIATION, a Nevada Corporation, Appellants, v. RAYSON &
SMITLEY, a Partnership Consisting of WILLIAM G. RAYSON and PAUL V. SMITLEY,
PAUL V. SMITLEY and WILLIAM G. RAYSON, MCMILLAN & WALKER, a
Partnership, JAMES B. MCMILLAN, P. S. WALKER and PIONEER FINANCIAL
CORPORATION, a Nevada Corporation, Respondents.
No. 6124
July 29, 1970 472 P.2d 530
Appeal from an order discharging a writ of attachment, Eighth Judicial District Court,
Clark County; William P. Compton, Judge.
Creditors filed complaint for judicial foreclosure and waste, seeking judicial foreclosure of
deeds of trust securing promissory notes. The district court granted debtor's motion to
discharge creditors' attachment on debtor's property, and creditors appealed. The Supreme
Court, Collins, C. J., held that statutory attachment rights of creditor-plaintiff are effectively
denied in judicial foreclosure proceeding unless, in that one action, attachment might be
resorted to upon a proper showing security has become insufficient in value to secure sum
due plaintiff, and that affidavit by creditors' counsel, upon which attachment was issued, was
conclusory and afforded no basis for conclusion that security had in fact diminished in value
and had become valueless or insufficient in value to secure the sum within statute authorizing
attachment.
Affirmed.
Albright, George, Johnson, Steffen & Simmons, of Las Vegas, for Appellants.
John Peter Lee, Wiener, Goldwater & Galatz, and Dale W. Beasey, of Las Vegas, for
Respondents.
1. Mortgages.
Rule, requiring holder of notes to first exhaust security before action on note and ancillary attachment
will be permitted, applies only to sale of security property under trust deed, and not to judicial foreclosure
proceedings. NRS 31.010, 40.430.
2. Mortgages.
Judicial foreclosure proceeding, in which there is but one judicial action in which sale of security is first
accomplished and the judgment for deficient sum is rendered in same action if any deficiency results,
accomplishes purpose of adoption of one-action rule to change common-law rule which permitted creditor
to pursue remedy of sale of land or suit on note, or both at once. NRS 40.430.
3. Attachment.
Where simultaneous effect is given to statutes giving creditor-plaintiff right to attach defendant's property
as security where security given has become valueless or insufficient in value and statute specifying that
there shall be but one action for recovery of any debt or enforcement of any right secured by mortgage or
lien upon real estate, attachment rights of creditor-plaintiff are effectively denied in judicial foreclosure
proceeding unless in that one action, attachment might be resorted to upon a proper showing security has
become insufficient in value to secure sum due plaintiff. NRS 31.010, 40.430.
4. Attachment.
As statute, providing that plaintiff-creditor may have property of defendant attached as security for
satisfaction of any judgment that may be recovered in an action upon a judgment or upon a contract which
is not secured by mortgage or lien or where security has become valueless or insufficient in value to secure
sum due plaintiff, applies only in an action, it is not available when a power of sale under a trust deed by
trustee is exercised. NRS 31.010.
5. Attachment; Mortgages.
In a judicial foreclosure proceeding under statute, all steps required or permitted must be done under
judicial scrutiny and supervision, and if, in foreclosure proceeding under statute, a plaintiff seeks
attachment where security has become insufficient in value to secure sum due, defendant has opportunity to
seek discharge of attachment by application to court in which foreclosure proceeding is pending. NRS
31.200, 40.430.
6. Attachment.
In judicial foreclosure proceeding, affidavit by counsel for creditor, upon which attachment on debtor's
property was issued and which stated only sum by which affiant believed indebtedness exceeded amount of
security given, was merely conclusory and afforded no basis for conclusion that security had in fact
diminished in value and had become valueless or insufficient in value to secure the sum due creditor within
statute authorizing attachment of debtor's property as security under such circumstances. NRS 31.010.
7. Attachment.
An affidavit seeking issuance of a writ of attachment in a judicial foreclosure proceeding must not be
merely conclusory and must contain an opinion of value by a witness qualified to express such an opinion,
and must show that security has decreased in value from time security interest attached.
decreased in value from time security interest attached. NRS 31.010.
OPINION
This is an appeal from an order of the lower court discharging an attachment the issuance
of which was obtained by appellants and levied upon property of respondent Smitley. We
affirm that order.
Appellants, hereinafter referred to as Paramount, filed a complaint for judicial foreclosure
and waste May 25, 1967. In their complaint they sought judicial foreclosure of 14 deeds of
trust securing 14 promissory notes totaling $490,000, of which there remained unpaid
$475,245 plus moneys paid by Paramount for fire insurance and taxes in the amount of $39,-
464.90, interest, costs, and attorney fees. Damages for waste were left open for later
determination.
January 8, 1968, Paramount petitioned for the appointment of a receiver, alleging that the
respondents had committed permissive waste by allowing the property secured by the trust
deeds to deteriorate. The property was apartments, and some were said to be condemned as
unfit for human occupation.
An order appointing a receiver was entered January 18, 1968, in which a lower court judge
said that it appeared the mortgaged premises were inadequate security for the mortgage debt
and the premises were continuing to deteriorate.
February 28, 1968, the receiver was granted an order permitting him to obtain
appraisement and bids for repair of the property and to employ security personnel. On May
13, 1968, Paramount was authorized by the court to enter a cost-reimbursement contract to
repair the premises.
October 6, 1969, Paramount filed an affidavit of attachment and directed the sheriff to levy
on property of Smitley. October 9, 1969, Smitley moved to discharge the attachment on the
grounds that it was improperly and irregularly issued. The grounds alleged were that
Paramount's claim against Smitley was secured by a mortgage on real property; that the
affidavit was insufficient to establish the security was valueless or of insufficient value; that
the security had to first be exhausted before the value could be determined; and that the stay
by the federal court relating to Rayson, a partner, applied also to actions concerning Smitley.
The trial judge granted Smitley's motion to discharge the attachment November 14, 1969.
The issues thus presented for our determination are these:
I. Whether the attachment provisions of NRS 31.010 apply in an action for judicial
foreclosure of a trust deed on real property?
II. Whether an affidavit of a party's counsel is sufficient to establish that the security has
become of insufficient value?
1. We are faced in this appeal with the problem of reconciling, if we can, and giving effect
to two Nevada statutes, NRS 31.010
1
and NRS 40.430
2
as construed by an earlier decision
of this court in McMillan v. United Mortgage Co., 82 Nev. 117, 412 P.2d 604 (1966).
2. In McMillan, this court held that a trust deed fell within the intendment of the
one-action rule (NRS 40.430); that the attachment statute NRS 31.010, applied only
when the security was "valueless;" that the mode of determining value of the security is
first to exhaust the security by sale pursuant to the trust deed; and, finally, that, "Once
the security has been sold and the debt not satisfied, an action on the note with ancillary
attachment is permissible." Id. at 121 and 122.
____________________

1
NRS 31.010 reads, in pertinent part: The plaintiff at the time of issuing the summons, or at any time
afterwards, may have the property of the defendant attached as security for the satisfaction of any judgment that
may be recovered, unless the defendant gives security to pay such judgment, as hereinafter provided, in the
following cases:
1. In an action upon a judgment or upon a contract, express or implied, for the direct payment of money,
which is not secured by mortgage, lien or pledge upon real or personal property situated or being in this state; or
if originally so secured, when such security has, without any act of the plaintiff or the person to whom the
security was given, become valueless or insufficient in value to secure the sum due the plaintiff, in which case
the attachment shall issue only for the unsecured portion of the amount due the plaintiff, or excess of the amount
due the plaintiff above the value of the security as the same has become so insufficient.(Emphasis added.)

2
NRS 40.430 at the time this action was commenced, read: Except as provided in chapter 104 of NRS,
there shall be but one action for the recovery of any debt, or for the enforcement of any right secured by
mortgage or lien upon real estate, which action shall be in accordance with the provisions of this section, and
NRS 40.440 and 40.450. In such action, the judgment shall be rendered for the amount found due the plaintiff,
and the court shall have power, by its decree or judgment, to direct a sale of the encumbered property, or such
part thereof as shall be necessary, and apply the proceeds of the sale to the payment of the costs and expenses of
the sale, the costs of the suit, and the amount due to the plaintiff. If the land mortgaged consists of a single
parcel, or two or more contiguous parcels, situated in two or more counties, the court may, in its judgment, direct
the whole thereof to be sold in one of such counties by the sheriff, and upon such proceedings, and with like
effect, as if the whole of the property were situated in that county. If it shall appear from the sheriff's return that
there is a deficiency of such proceeds and balance still due to the plaintiff, the judgment shall then be docketed
for such balance against the defendant or defendants personally liable for the debts, and shall, from the time of
such docketing, be a lien upon the real estate of the judgment debtor, and an execution may thereupon be issued
by the clerk of the court, in like manner and form as upon other judgments, to collect such balance or deficiency
from the property of the judgment debtor.
the attachment statute NRS 31.010, applied only when the security was valueless; that the
mode of determining value of the security is first to exhaust the security by sale pursuant to
the trust deed; and, finally, that, Once the security has been sold and the debt not satisfied,
an action on the note with ancillary attachment is permissible. Id. at 121 and 122.
Accordingly, the issuance of a writ of attachment pursuant to NRS 31.010 by the lower court
was reversed on the ground the conclusory affidavit of the creditor was not acceptable to
show the security property had become valueless, but instead sale of the security was first
required.
[Headnote 1]
3. We are now faced with the problem of attempting to reconcile that decision with the
apparently conflicting rights granted by NRS 31.010 and NRS 40.430, where in a judicial
foreclosure proceeding, as distinguished from the sale of security property under a trust deed,
the security property is not valueless, but strong evidence is presented to show it is of
insufficient value to secure the sum due. We conclude that the rule of McMillan v. United
Mortgage Co., supra, should be limited in its application to sale of security property under
trust deed and not to judicial foreclosure proceedings.
4. In deciding McMillan, this court relied heavily upon Barbieri v. Ramelli, 23 P. 1086
(1890), which construed a California statute, C.C.P. 537,
3
from which NRS 31.010 was
taken.
4
The Nevada legislature, however, added a significant factor not found in the
California statute. The California statute refers only to security which has become valueless,
and does not contain the additional words found in the Nevada statute which allows
attachment to issue when the security has become insufficient in value.
[Headnote 2]
5. It is apparent the one-action rule was legislatively adopted to change the common law
rule which permitted a creditor to pursue either the remedy of sale of the land or suit on
the note, or both at once.
____________________

3
Cal. Statute C.C.P. 537 reads in pertinent part: The plaintiff, at the time of issuing the summons, or at
any time afterward, may have the property of the defendant attached . . . in the following cases:
1. Unsecured contract; support actions. In an action upon a contract, express or implied, for the direct
payment of money . . . where the contract . . . is not secured by any mortgage, deed of trust or lien upon real or
personal property, or any pledge of personal property, or, if originally so secured, such security has, without any
act of the plaintiff, or the person to whom the security was given, become valueless.

4
See Rev. Laws of Nev. 1912 5147.
creditor to pursue either the remedy of sale of the land or suit on the note, or both at once. See
McMillan v. United Mortgage Co., supra, at 119, and Bank of Italy v. Bentley, 20 P.2d 940
(Cal. 1933). That purpose is accomplished in a judicial foreclosure proceeding. There is but
one judicial action in which the sale of the security is first accomplished, and if any
deficiency results in satisfying the debt owed, judgment for the deficient sum is rendered in
the same action, which when docketed permits execution to issue.
[Headnote 3]
Unless in that one-action, attachment might be resorted to upon a proper showing the
security has become . . . insufficient in value to secure the sum due plaintiff statutory rights
of creditor-plaintiffs conferred by NRS 31.010 are effectively denied. In that regard, we must
give due consideration to rules of statutory construction previously adopted by this court. In
Torreyson v. Board of Examiners, 7 Nev. 19, 22 (1871), cited with approval in Ex parte
Smith, 33 Nev. 466, 480, 111 P. 930 (1910), this court said: [N]o part of a statute should be
rendered nugatory, nor any language turned to mere surplusage, if such consequences can
properly be avoided. Laws are also to be construed according to their spirit and meaning,
and not merely according to their letter. Lynip v. Buckner, 22 Nev. 426, 439, 41 P. 762
(1895). We see no other way to give simultaneous effect to NRS 31.010 and NRS 40.430.
[Headnote 4]
By so holding, we do not overrule McMillan. Language in McMillan to the effect that NRS
31.010 applies only when the security is valueless was only dictum. That statute applies only
in an action. Thus, by its terms it is not available when a power of sale under a trust deed
by the trustee is exercised. McMillan held that the action brought in that case on the note was
improper because there had been no waiver of the security. We continue to approve that
holding. It was unnecessary to the decision in that case to decide the applicability of NRS
31.010 to actions under the one-action rule. Subsequent to McMillan, this court
recognized the alternative of proceeding by judicial foreclosure or trustee's sale was available
to the beneficiary of a deed of trust. Nevada Land & Mtge. Co. v. Hidden Wells Ranch, Inc.,
83 Nev. 501, 435 P.2d 198 (1967). This decision points out and sharpens the distinctions
between those alternatives.
[Headnote 5]
6. In a foreclosure proceeding under NRS 40.430, all the steps required or permitted must
be done under judicial scrutiny and supervision.
scrutiny and supervision. If, in a foreclosure proceeding under that statute, a plaintiff seeks
attachment where the security has become insufficient in value to secure the sum due,
defendant has opportunity to seek discharge of that attachment by application to the very
court in which the foreclosure proceeding is pending. See NRS 31.200.
5

[Headnotes 6, 7]
7. The affidavit by counsel for Paramount, upon which the attachment was issued, stated
only the sum by which the affiant believed the indebtedness exceeded the value of the
security. It is a conclusory affidavit which affords no basis for a court to conclude that the
security has in fact diminished in value from that it had when accepted by the plaintiff as
security, and, as directed by NRS 31.010, has become valueless or insufficient in value to
secure the sum due the plaintiff. See Barbieri v. Ramelli, 23 P. 1086 (Cal. 1890). We hold
that an affidavit seeking issuance of a writ of attachment in a judicial foreclosure proceeding
must not be merely conclusory and must contain an opinion of value by a witness qualified to
express such an opinion. Furthermore, the affidavit must show that the security has decreased
in value from the time the security interest attached. The affidavit relied upon in this case
does not meet that test. Accordingly, the ruling of the lower court is affirmed.
8. Because of our affirmance of the lower court's ruling on the foregoing basis, it becomes
unnecessary to decide whether the federal court stay relating to Rayson applied also to actions
concerning Smitley.
Ruling affirmed.
Thompson, J., concurring:
The court holds that the affidavit supporting the attachment is insufficient and on this
basis affirms the order below discharging the attachment.
____________________

5
NRS 31.200 reads:
1. The defendant may also, at any time before trial, apply upon motion, upon reasonable notice to the
plaintiff, to the court in which the action is brought or to the judge thereof, for a discharge of the attachment on
the following grounds:
(a) That the writ was improperly issued.
(b) That the property levied upon is exempt from execution.
(c) That the levy is excessive.
2. If the court or the judge thereof on the hearing of such motion shall find that any of the grounds stated in
subsection 1 exist, the attachment and levy thereof shall be discharged. If the motion is based upon paragraph (c)
of subsection 1 only, and the same is found to exist, the discharge of attachment shall be only as to the excess.
is insufficient and on this basis affirms the order below discharging the attachment. To this
extent I agree with the opinion. However, I do not agree that the ancillary remedy of
attachment is available in a judicial foreclosure proceeding. Attachment is ancillary to an
action upon a contract, express or implied, for the direct payment of money. NRS 30.010.
The majority erroneously assume that judicial foreclosure, NRS 40.430, is such an action. I
view judicial foreclosure as a separate statutory proceeding distinct from and not within the
contract actions contemplated by the attachment statute. The very purpose of the one action
rule, 40.430, is to preclude an action upon the secured note with its ancillary aids, unless the
security is waived or has become valueless. McMillan v. United Mortgage, 82 Nev. 117, 412
P.2d 604 (1966). This purpose prevents harrassment and accommodates the implied
understanding between the parties that the land shall constitute the primary fund to secure the
debt. Respectfully, I suggest that the opinion today subverts the underlying purpose of the one
action rule. Although McMillan v. United Mortgage, supra, did not concern judicial
foreclosure, its reasoning applies with even greater force to a judicial foreclosure proceeding.
____________
86 Nev. 651, 651 (1970) Zampanti v. Sheriff
ARNIE ZAMPANTI, Appellant, v. SHERIFF OF
No. 6251
August 10, 1970 473 P.2d 386
Appeal from a order of the Eighth Judicial District Court, Clark County, denying habeas
corpus; William P. Compton, Judge.
Proceeding on pretrial petition for habeas corpus by petitioner who was charged with
selling marijuana. The district court dismissed petition, and petitioner appealed. The Supreme
Court held that use of policeman's opinion testimony that cigarette handed him by defendant
contained marijuana, rather than testimony of qualified chemist, did not violate statute
requiring grand jury to receive none but best evidence in degree.
Affirmed.
George E. Graziadei, of Las Vegas, for Appellant.
Attorney, and Lorin D. Parraguirre, Deputy District Attorney, Clark County, for Respondent.
Use of policeman's opinion testimony that cigarette handed him by defendant contained marijuana, rather
than testimony of qualified chemist, did not violate statute requiring grand jury to receive none but best
evidence in degree. NRS 172.135, subd. 2.
2. Indictment And Information.
Officer's testimony that cigarette handed him by defendant contained marijuana was sufficient to support
indictment for selling marijuana. NRS 453.030, 453.210, subd. 2.
3. Habeas Corpus.
Claim that grand jury's use of certain evidence violated rule that corpus delicti must be established
independently of out-of-court admissions and declarations of accused was not properly before Supreme
Court on appeal from denial of pretrial habeas corpus, where not raised in court below.
OPINION
Per Curiam:
An indictment was returned by the Clark County Grand Jury on February 19, 1970,
charging appellant with selling marijuana in violation of NRS 453.030 and NRS 453.210(2).
This appeal is from an order dismissing appellant's pretrial petition for a writ of habeas
corpus.
The grand jury heard the testimony of only one witness, Russ Angione, an undercover
agent for the Clark County Sheriff's Department. The officer testified that appellant's Chevy
van smelled of smoked marijuana, that appellant rolled what he represented to the officer to
be a marijuana cigarette and started to light it, that when appellant rolled it up it appeared to
be marijuana, and that when appellant lit the cigarette it smelled like marijuana. The officer
also testified that he had been working as an undercover narcotics officer for one year.
[Headnote 1]
Appellant contends that the district court erred when it ruled that there was competent
evidence that the cigarette handed to the undercover agent contained marijuana. Appellant
argues that where a key issue before the grand jury was whether the contents of a cigarette
were narcotic in character, the use of a policeman's opinion testimony rather than that of a
qualified chemist was a direct violation of NRS 172.135{2), which requires the grand jury
to receive none but the best evidence in degree.
chemist was a direct violation of NRS 172.135(2), which requires the grand jury to receive
none but the best evidence in degree.
We reject this argument. As we said in Glosen v. Sheriff, 85 Nev. 145, 451 P.2d 841
(1969):
Of course, proof beyond a reasonable doubt that the substance sold was in fact marijuana
must be offered at trial . . . 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.
[Headnotes 2, 3]
Appellant herein represented to Officer Angione that the cigarette contained marijuana.
Therefore, under the authority of Glosen, supra, there was sufficient competent evidence
introduced to support the indictment. Appellant's contention that the holding in Glosen, supra,
violates the rule that the corpus delicti must be established independently of the out-of-court
admissions and declarations of the accused was not raised in the court below and is therefore
not properly before us. However, even assuming arguendo the validity of appellant's
contention, we hold that the testimony of a qualified police officer satisfies the standard of
probable cause necessary to support the indictment.
Accordingly, the order of the district court denying habeas is affirmed.
____________
86 Nev. 653, 653 (1970) Bangston v. Brown
ERLING F. BANGSTON, Appellant, v. HARRY K. BROWN, Washoe County Clerk, and
LOUIS SPITZ, Respondents.
No. 6375
August 27, 1970 473 P.2d 829
Appeal from an order dismissing a Petition for a Writ of Mandamus, Second Judicial
Mandamus proceeding seeking to have name of candidate for county sheriff stricken from
primary election ballot. The district court dismissed proceeding, and petitioner appealed. The
Supreme Court held that evidence supported finding that candidate was resident of state
and of county involved.
86 Nev. 653, 654 (1970) Bangston v. Brown
Supreme Court held that evidence supported finding that candidate was resident of state and
of county involved.
Affirmed.
Belford & Anglim and William M. O'Mara, of Reno, for Appellant.
William J. Raggio, District Attorney, and Gene Barbagelata, Chief Deputy District
Attorney, Washoe County, and Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of
Reno, for Respondents.
Domicile.
Evidence in mandamus proceeding to have name of candidate for county sheriff in primary election
stricken from ballot, supported finding that candidate was resident of state and of county involved.
OPINION
Per Curiam:
The appellant brought mandamus proceedings seeking to have the name of Louis Spitz
stricken from the primary election ballot as a candidate for Sheriff of Washoe County,
Nevada. The matter was heard by the court, after which the order dismissing the proceedings
was entered.
We have thoroughly examined the record on appeal, and it is apparent that the court below
entered its order of dismissal upon a finding that, from the evidence adduced, Louis Spitz was
a resident of the State of Nevada and of Washoe County. In order to arrive at such a finding,
the court resolved the conflicting evidence and made its determination of the weight to be
accorded to the testimony.
The record contains substantial competent evidence to support the ruling of the district
court. Accordingly, we will not substitute our judgment for that of the trial judge. Richfield
Oil Corp. v. Harbor Insurance Co., 85 Nev. 185, 452 P.2d 462 (1969); Coleman v. Benson,
85 Nev. 594, 460 P.2d 158 (1969); Havas v. Alger, 85 Nev. 627, 461 P.2d 857 (1969); Utley
v. Airoso, 86 Nev. 116, 464 P.2d 778 (1970); Fox v. First Western Savings & Loan
Association, 86 Nev. 469, 470 P.2d 424 (1970).
The order appealed from is affirmed.
____________
86 Nev. 655, 655 (1970) Fritz v. State
JAMES ARTHUR FRITZ, Appellant, v. THE
No. 6125
September 8, 1970 474 P.2d 377
Appeal from a judgment of conviction for burglary. Second Judicial District Court,
Washoe County; John E. Gabrielli, Judge.
Defendant was convicted in the district court of burglary, and he appealed. The Supreme
Court, Batjer, J., held that refusal to allow defense counsel to question accused in order to
elicit from him rehabilitation testimony that purportedly would relate to fact that accused
was risking a possible life term as an habitual criminal because he chose to go to trial when
he had been offered a much lesser sentence in return for a plea of guilty did not constitute
abuse of discretion, where there was nothing before jury to indicate that accused had ever
pled guilty to current charge, and habitual criminal charge of information was not filed until
after he had pled not guilty and had waived preliminary examination.
Affirmed.
[Rehearing denied October 26, 1970]
Harvey Dickerson, Attorney General; William J. Raggio, District Attorney, and Kathleen
1. Burglary.
In burglary prosecution, jury had right to reject accused's explanation that he was inside building looking
for a job, and to conclude that his entry into establishment was with intent to commit a felony. NRS
205.065.
2. Criminal Law.
Statute providing that every person who unlawfully enters any store shall be deemed to have entered the
store with intent to commit a felony therein unless such unlawful entry shall be explained by testimony
satisfactory to jury to have been made without criminal intent was not unconstitutional on theory that it
forced accused to testify in violation of his Fifth Amendment rights. NRS 205.065, 207.010, subd. 4;
U.S.C.A.Const. Amend. 5.
3. Criminal Law.
Refusal to allow defense counsel to question accused in order to elicit from him rehabilitation
testimony that purportedly would relate to fact that accused was risking a possible life term as an habitual
criminal because he chose to go to trial when he had been offered a much lesser sentence in
return for a plea of guilty did not constitute abuse of discretion, where there was
nothing before jury to indicate that accused had ever pled guilty to current charge,
and habitual criminal charge of information was not filed until after he had pled not
guilty and had waived preliminary examination.
86 Nev. 655, 656 (1970) Fritz v. State
been offered a much lesser sentence in return for a plea of guilty did not constitute abuse of discretion,
where there was nothing before jury to indicate that accused had ever pled guilty to current charge, and
habitual criminal charge of information was not filed until after he had pled not guilty and had waived
preliminary examination.
OPINION
A jury found the appellant guilty of burglary and he was sentenced to a term of six years in
prison.
At approximately 5:25 a.m. on the morning of January 16, 1969, a police officer observed
an automobile parked on the east side of the Kentucky Fried Chicken building at 880 West
Fifth Street in Reno, Nevada. The automobile had its motor running. The officer proceeded to
investigate, and saw the appellant inside the building where he appeared to be crawling across
the counter towards the cash register. The officer tried the rear door of the building and found
it locked. When he had previously checked the doors of the building at approximately 1:00
a.m. they were all locked and secure. At the time the appellant was observed within the
building, the night lights were burning and there was no other activity in the area.
Lewis James Brown, manager of the restaurant, testified that he had closed and locked the
building the previous night; that the regular business hours for the restaurant were from 11:00
a.m. to 10:00 p.m.; that the appellant had no right or permission to enter the building after it
was closed; that the sign light on the building had been turned off; that when he was
summoned to the restaurant by the police officers he observed that the lock on the rear door
had fresh scratches on it; that a large spoon was out of place on the desk and that the top
drawer of the desk was open.
At the close of the State's case the appellant took the stand and admitted being inside the
building at the time indicated, but that he was in there looking for employment. He stated that
he was not crawling along the counter but was, after discovering that no one was in the
building, looking around for job applications to fill out and bring back later. It was upon all of
this evidence that the jury found the appellant to be guilty.
The appellant was originally charged by information with burglary, a felony. On January
30, 1969, he waived a preliminary examination and on February 3, 1969, he was brought
before the district court for arraignment where he entered a plea of not guilty.
86 Nev. 655, 657 (1970) Fritz v. State
before the district court for arraignment where he entered a plea of not guilty. On February
14, 1969, the appellant changed his plea to guilty and a pre-sentence investigation was
ordered with sentencing set for March 13, 1969. On March 18, 1969, with permission of the
court, the appellant again changed his plea to not guilty. At that time the prosecutor received
permission to amend the information and to charge the appellant with being an habitual
criminal. Court appointed counsel were allowed to withdraw from the case and the appellant
retained private counsel.
After the jury verdict was received, the appellant's motion for a new trial was denied,
however, at a special hearing the district court judge, pursuant to NRS 207.010(4) dismissed
the habitual criminal charge.
The appellant contends that there is insufficient evidence in the record to support a verdict
of guilty of the crime of burglary; that NRS 205.065
1
is unconstitutional because it forced
him to testify in violation of his Fifth Amendment rights under the United States
Constitution; and that the district court erred in refusing to allow him to offer certain
so-called rehabilitation testimony.
It is the function of the jury and not this court to weigh the evidence. McGuire v. State, 86
Nev. 262, 468 P.2d 12 (1970). Furthermore, in Boyle v. State, 86 Nev. 30, 464 P.2d 493
(1970), we said: . . . [T]he jury is not compelled to accept solely his denial of intent to
commit the larceny but rather can perform its duty to evaluate the facts surrounding the
incident.
[Headnote 1]
Here the jury had the right to reject the appellant's explanation that he was inside the
building looking for a job, and to conclude that his entry into the establishment was with
the intent to commit a felony. We will not disturb this determination by the jury. Crowe v.
State, 84 Nev. 358, 441 P.2d 90 (1968).
____________________

1
NRS 205.065: Every person who shall unlawfully break and enter or unlawfully enter any house, room,
apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle,
vehicle trailer, semitrailer or house trailer, or railroad car shall be deemed to have broken and entered or entered
the same with intent to commit grand or petit larceny or a felony therein, unless such unlawful breaking and
entering or unlawful entry shall be explained by testimony satisfactory to the jury to have been made without
criminal intent.
86 Nev. 655, 658 (1970) Fritz v. State
[Headnote 2]
In McNeeley v. State, 81 Nev. 663, 409 P.2d 135 (1965), this court specifically found
NRS 205.065 to be constitutional. We have approved the holding of that case in several
recent cases. Schnepp v. State, 82 Nev. 257, 415 P.2d 619 (1966); White v. State, 83 Nev.
292, 429 P.2d 55 (1967); Boyle v. State, supra; McGuire v. State, supra. Cf. United States v.
Gainey, 380 U.S. 63 (1965). The language in White v. State, supra, aptly describes this
appellant's position: The issue raised by appellant is nothing more than a plaintive request
that the court reconsider its prior holdings. We find no satisfactory argument to warrant the
same.
After the appellant had taken the witness stand he was asked by his own counsel about
his prior felony convictions. Prior to this questioning defense counsel had requested the court,
out of the presence of the jury, to allow him to question the appellant in order to elicit from
him what defense counsel referred to as rehabilitation testimony that purportedly would
relate to the fact that appellant was risking a possible life term as an habitual criminal
because he chose to go to trial while he had been offered a much lesser sentence in return for
a plea of guilty. There was nothing before the jury to indicate that the appellant had ever
pled guilty to this charge, and the habitual criminal charge of the information was not filed
until after he had pled not guilty and had waived the preliminary examination. The district
court ruled on defense counsel's request as follows: It would seem to me that the prejudicial
effect of going into the matter that you request at this point in the trial before the jury would
greatly outweigh any attempts to rehabilitate the defendant . . . And perhaps . . . these matters
that you are raising now, if they can be substantiated, they can be considered at the hearing on
the habitual criminal charges, for whatever weight or value they might have.
[Headnote 3]
The appellant has cited neither statutory nor case law to support his contention. On the
other hand NRS 207.010(5)
2
precludes any reference to the habitual criminal charge during
the trial of the primary offense. The possible prejudice to the appellant far outweighed the
probative value of the proferred testimony. We will not set aside the judgment of a district
court unless there has been a manifest abuse of discretion.
____________________

2
NRS 207.010(5): In proceedings under this section, each previous conviction shall be alleged in the
accusatory pleading charging the primary offense, but no such conviction may be alluded to on trial of the
primary offense, nor may any allegation of such conviction be read in the presence of a jury trying such offense.
86 Nev. 655, 659 (1970) Fritz v. State
unless there has been a manifest abuse of discretion. Brown v. State, 81 Nev. 397, 404 P.2d
428 (1965). The district court did not abuse its discretion when it precluded the defense
counsel from eliciting the proferred testimony from the appellant.
The assignments of error of the appellant are all without merit. The judgment of the
district court is affirmed.
____________
86 Nev. 659, 659 (1970) Uppinghouse v. Sheriff
CHERRYL L. UPPINGHOUSE, JERRY B. UPPINGHOUSE and PHILLIP C. AYALA,
Appellants, v. SHERIFF, CLARK COUNTY, NEVADA, Respondent.
No. 6233
September 8, 1970 474 P.2d 148
Appeal from a denial of application for a writ of habeas corpus. Eighth Judicial District
Court, Clark County; Clarence Sundean, Judge.
The district court denied petition, and petitioners appealed. The Supreme Court, Batjer, J.,
held that police officer's identification of plastic bags from which he took marijuana samples
as same ones seized by officers was sufficient to establish a proper identification or sufficient
chain of custody to justify introduction of marijuana samples into evidence, considering that
it would have been extremely difficult for anyone to misidentify 14 plastic bags some two
feet in diameter and three feet long stuffed with green leaves and stems when they were the
only ones in the evidence vault.
Affirmed.
James D. Santini, Public Defender, Jeffrey D. Sobel, Deputy Public Defender, Clark
1. Criminal Law.
Destruction of marijuana originally seized and retention of samples for use as evidence at preliminary
examination did not constitute a violation of defendants' rights to confront and crossexamine witnesses,
considering that possession of marijuana was offense charged and that quantity possessed was
immaterial.
offense charged and that quantity possessed was immaterial. NRS 453.330; U.S.C.A.Const. Amend. 6.
2. Criminal Law.
Police officer's identification of plastic bags from which he took marijuana samples as same ones seized
by officers was sufficient to establish a proper identification or sufficient chain of custody to justify
introduction of marijuana samples into evidence, considering that it would have been extremely difficult
for anyone to misidentify 14 plastic bags some two feet in diameter and three feet long stuffed with green
leaves and stems when they were the only ones in the evidence vault.
OPINION
On September 25, 1969, the appellants were arrested for possession of marijuana and a
preliminary examination was held on October 14, 1969. At the preliminary examination
Parker McManus, an officer in the Las Vegas police department testified that at
approximately 10:45 p.m. on September 25, 1969, he and officer Litton pulled along the left
side of a Volkswagen bus in Las Vegas. At that time they detected an odor of marijuana
coming from the bus. The officers kept the vehicle under surveillance and drove along side of
it for approximately five blocks, then required it to stop. McManus approached on the driver's
side and asked the driver to step from the bus. There was a very strong marijuana odor
coming from the vehicle as the driver opened the door. A search of the vehicle was
immediately conducted and a substantial quantity of freshly cut marijuana was discovered in
the back of the bus underneath a blanket. The appellants were then placed under arrest for
possession of narcotics, and several plastic bags containing the freshly cut green marijuana
leaves and stems were impounded. The bags were approximately two feet in diameter and
three feet long, and in the aggregate weighed about 250 pounds.
The identification bureau of the Las Vegas police department was notified and they
photographed the bus and the plastic bags. The bags were then transported to the Las Vegas
police department where they were re-bound in other plastic bags, sealed, initialed and placed
into the evidence vault. The bags and their contents were in substantially the same condition
when they were placed into the evidence vault as they were at the time of their seizure.
On September 28, 1969, Paul Richert, a chemist for the Las Vegas police department,
went to the evidence vault and examined 14 sealed plastic bags. He took samples from each
bag, put them in separate containers and initialed the containers, then he took them to the
identification bureau where he made tests and determined that the substance in each sample
was marijuana. After the testing had been completed Richert placed each specimen in a
separate envelope and placed them in the Las Vegas police department narcotics locker.
By October 12, 1969, the green marijuana in the plastic bags had started to ferment, so
Richert went to the evidence vault, took an additional sample from each bag, then put those
samples in the narcotics locker with the samples previously taken. Upon the orders of the
district attorney's office, the remaining marijuana was taken from the evidence vault and
destroyed. The samples were taken by Richert to the preliminary examination and admitted
into evidence.
At the conclusion of the preliminary examination the appellants were bound over to
district court on the charge of possession of narcotics, a felony. Subsequently they filed a
petition applying for a writ of habeas corpus. After a hearing, that petition was quashed by the
district court.
The appellants claim that their constitutional rights to confront witnesses and
cross-examine them under the Sixth Amendment of the United States Constitution had been
violated when most of the marijuana originally seized was destroyed and only the samples
were introduced into evidence at their preliminary examination. In support of their
contentions the appellants cite Pointer v. Texas, 380 U.S. 400 (1965); Douglas v. Alabama,
380 U.S. 415 (1965); and State v. Boyle, 49 Nev. 386, 248 P. 48 (1926).
[Headnote 1]
We are familiar with the cited cases and they do not even remotely support the appellants'
contention. Possession of the narcotic marijuana is the offense, and the quantity possessed is
immaterial. NRS 453.330. There was no limitation placed on the appellants' right to
cross-examine the state's witnesses. The destruction of the surplus marijuana had absolutely
no adverse effect on the appellants' case. Apparently the appellants would have had the
respondent preserve the entire 250 pounds of fermenting marijuana in order to introduce all of
it, in its odoriferous state, at the preliminary examination. If that procedure was to be required
at the preliminary examination the state would be required to produce a more advanced state
of fermented marijuana at the trial of the case.
fermented marijuana at the trial of the case. We deem further comment inappropriate.
[Headnote 2]
The appellants further contend that the prosecution failed to establish a proper
identification or sufficient chain of custody to justify the introduction of the marijuana
samples into evidence. In particular they question Richert's identification of the plastic bags
from which he took the samples as the same ones seized by the officers. Richert examined a
photograph of the plastic bags taken at the scene of the seizure and identified them as the
same ones from which he took the samples. It would be extremely difficult for anyone to
misidentify 14 plastic bags some two feet in diameter and three feet long stuffed with green
leaves and stems when they were the only ones in the evidence vault.
Within the scope of the holdings of this court, in Carter v. State, 84 Nev. 592, 446 P.2d
165 (1968); Oliver v. State, 85 Nev. 10, 449 P.2d 252 (1969); Eisentrager v. State, 79 Nev.
38, 378 P.2d 526 (1963), and Overton v. State, 78 Nev. 198, 370 P.2d 677 (1962), we find the
chain of evidence in this case to be more than adequate. See also State v. Clarke, 48 Nev.
134, 228 P. 582 (1924), and Tucker v. State, 86 Nev. 354, 469 P.2d 62 (1970). We deem this
appeal to be frivolous and affirm the order of the district court, Sanchez v. State, 85 Nev. 95,
450 P.2d 793 (1969), and Watkins v. State, 85 Nev. 102, 450 P.2d 795 (1969).
____________
86 Nev. 662, 662 (1970) Southwest Gas v. Public Serv. Comm'n
SOUTHWEST GAS CORPORATION, a Corporation, Appellant and Cross-Respondent, v.
THE PUBLIC SERVICE COMMISSION OF NEVADA, Respondent and Cross-Appellant.
No. 6078
September 10, 1970 474 P.2d 379
Appeal and cross-appeal from a judgment. First Judicial District Court, Carson City;
Richard L. Waters, Judge.
Gas company was ordered by Public Service Commission to follow certain billing
procedures, to refund to customers all portions of bills attributable to "long prorations"
used in computing bills and to replace certain meters by specific date.
portions of bills attributable to long prorations used in computing bills and to replace
certain meters by specific date. Upon review, the district court enjoined Commission from
requiring company to replace gas meters within fixed period of time and affirmed rest of
order, and company appealed and Commission cross-appealed from injunction. The Supreme
Court, Batjer, J., held that gas company could not escape responsibility for fake meter
reading, late meter reading, unauthorized estimation of gas usage and failure to uniformly
apply altitude adjustment factor because of an inadequate staff or misconduct of an employee
and any loss occasioned thereby could not be shifted to customers, and in absence of evidence
of any reason beyond control of gas company to justify such conduct which resulted in its use
of long prorations in computing bills, Public Service Commission acted within permissible
limits of discretion in ordering refunds to customers of amounts collected in violation of gas
company's rule relating to billing; but that Commission did not give company adequate notice
that Commission would consider entering order requiring replacement of meters.
Affirmed.
Guild, Guild and Cunningham, of Reno, L. V. Robertson, Jr., and Darrell Lincoln Clark,
of Las Vegas, for Appellant and Cross-Respondent.
Harvey Dickerson, Attorney General, John J. Sheehan, Deputy Attorney General, for
Respondent and Cross-Appellant.
When an order of an administrative board is challenged, function of Supreme Court is identical to that of
the trial court, which must review evidence presented to board or commission and determine whether that
body abused its discretion by acting arbitrarily or capriciously.
2. Gas.
In absence of evidence of any reason beyond control of gas company to justify conduct which resulted in
its use of long prorations in computing bills, Public Service Commission acted within permissible limits
of discretion in ordering refunds to customers of amounts collected in violation of gas company's rule
relating to billing.
3. Gas.
Gas company could not escape responsibility for fake meter reading, late meter reading, unauthorized
estimation of gas usage and failure to uniformly apply altitude adjustment factor because of an inadequate
staff or misconduct of an employee and any loss occasioned thereby could not be shifted to customers.
4. Gas.
Rules and regulations promulgated by gas company may not be ignored but must be observed by it, and
company may not ignore such rules as to some customers and observe them as to others.
5. Corporations.
The duty of public utilities or companies to serve public exists independently of statutes regulating
manner in which public service corporations or companies shall do business, but is imposed because such
companies are organized to do business affected with a public interest and hold themselves out to public as
willing to serve all members thereof.
6. Gas.
Order by Public Service Commission which, in addition to requiring prospective rule amendment
imposed sanctions, including refund requirement, against gas company for unjustified use of long
proration in billing and for failure to adhere to altitude adjustment schedule was within statutory powers
and constitutional limitations of Public Service Commission, and order did not constitute retroactive
rate-making.
7. Public Service Commissions.
Public utility rate is made to operate in the future and cannot be made to apply retroactively.
8. Gas.
Where gas company had not been given adequate notice before commencement of hearings on gas
company's meter reading and billing practices that public Service Commission would consider entering
order requiring replacement of certain gas meters, question of replacement was not properly before
Commission on theory that meter is basic instrument for meter reading.
OPINION
This is an appeal from a review by the district court of an order of the respondent, Public
Service Commission of Nevada, requiring the appellant, Southwest Gas Corporation, to make
refunds to its customers because of its failure to use altitude adjustment factors and because it
employed long proration in its billing practice. The respondent cross-appeals from that part of
the judgment of the district court enjoining it from requiring the appellant to replace certain
gas meters within a fixed period of time.
During the early part of 1968 the respondent received numerous complaints directed at the
appellant concerning its manner and method of billing in northern Nevada. On March 27,
1968, the respondent determined that pursuant to NRS 704.120 and NRS 704.450, a hearing
should be held to inquire into the "practice, services, regulations, meter reading, billing
and accounting of Southwest Gas Corporation with respect to its Northern Nevada
Division, and more particularly, whether Rule No.
into the practice, services, regulations, meter reading, billing and accounting of Southwest
Gas Corporation with respect to its Northern Nevada Division, and more particularly, whether
Rule No. 5 of the filed tariff has been properly adhered to.
On April 16th and 17th, 1968, a hearing was held in Carson City, Nevada. Respondent's
final order, dated December 18, 1968, was issued as a result of that hearing and provided,
inter alia: IT IS ORDERED That Southwest Gas Corporation shall amend its Northern
Nevada Rule No. 5, Section 1, Proration of Bills, to reflect that in the computing of bills,
short prorations (i.e. proration of bills rendered for less than a 27-day period) shall be
allowed, but long prorations (i.e. proration of bills rendered for more than a 33-day period)
shall be prohibited; that as a consequence of certain inequities arising out of the manner in
which bills to various customers were prorated, Southwest shall refund to its Northern
Nevada customers all portions of their bills attributable to long prorations made from
November 1, 1967, to the present time; that all such refunds shall be computed and paid
within sixty (60) days from the date of this Final Order; that the amount of the refund to each
customer shall be equal to the difference between the total amount collected from the
customer on long prorated bills (i.e. all long prorated bills rendered to the customer from
November 1, 1967, to the present time) and the total amount that would have been collected
from such billings if no long prorating had occurred; . . .
. . . [W]ithin thirty (30) days from the date of this Final Order, Southwest shall file an
amended Northern Nevada Rule No. 2A, Description of Service; that said Rule, as modified,
shall require measurements for altitude to be in conformance with the current edition of
California Natural Gas Association Bulletin TS-561 and such amendments or revisions of
said Bulletin as may be incorporated therein from time to time hereafter; that within sixty
(60) days from the date of this Final Order, each present Southwest customer in Northern
Nevada, to whom a bill or bills have been rendered without an altitude adjustment calculated
in conformance with the aforesaid Bulletin, shall receive a refund equal to the total amount by
which said customer's bill or bills would have been adjusted for altitude had Southwest
adhered to the measurements provided for in the aforesaid Bulletin; . . .
. . . [T]hat in the event one of Southwest's Rockwell 150 meters in Northern Nevada
malfunctions hereafter, the company shall retire such meter and replace it with a temperature
compensated measuring device; that by December 31, 1969, Southwest shall have replaced
with temperature compensated measuring devices at least 250 of the company's
Rockwell "150" meters in Northern Nevada; that by December 31, 1970, Southwest shall
have replaced with temperature compensated measuring devices the remainder of the
company's Rockwell "150" meters in Northern Nevada; . . ."
Southwest shall have replaced with temperature compensated measuring devices at least 250
of the company's Rockwell 150 meters in Northern Nevada; that by December 31, 1970,
Southwest shall have replaced with temperature compensated measuring devices the
remainder of the company's Rockwell 150 meters in Northern Nevada; . . .
On January 7, 1968, appellant filed its complaint with the trial court requesting that the
respondent be permanently enjoined and restrained from enforcing that portion of its final
order: (1) requiring that the appellant refund to its Northern Nevada Division customers all
portions of their bills attributable to long prorations made from November 1, 1969 to the
present time; (b) that portion requiring the appellant to refund to customers whose bills have
been rendered without an altitude adjustment calculated in conformance with the California
Natural Gas Association Bulletin TS-561, a sum equal to the total amount by which said
customers' bill or bills would have been adjusted for altitude had appellant adhered to the
measurements in that bulletin; and (c) that portion requiring that appellant, by December 31,
1969, replace with temperature compensated measuring devices at least 250 of the
appellant's Rockwell 150 meters in Northern Nevada; and that by December 31, 1970,
appellant, shall have replaced with temperature compensated measuring devices the
remainder of Rockwell 150 meters in Northern Nevada.
The part of the respondent's order requiring refunds by the appellant rests on evidence, that
during the times in question, in the Carson City area, the appellant employed an inadequate
meter reading force; that at least one of those meter readers made many curb or fake
readings; that bills were estimated without justification and in approximately two-thirds of
the billings about which customers had complained the meters had been read late and long
proration billing had been employed by the appellant. It was conceded that long proration
billing favored the appellant.
The evidence also showed that all customers in the South Lake Tahoe area were billed at
the same rate although there existed an altitude variation of some 1,700 feet between those
customers living at the lake shore and those in the Daggett Pass area. Furthermore, the record
indicated that the appellant had on file with the respondent, the California Natural Gas
Association Bulletin TS-561, and had adhered to those schedules in other parts of its service
area.
[Headnotes 1, 2]
When an order of an administrative board is challenged, the function of this court is
identical to that of the trial court. Urban Renewal Agency v. Iocometti, 79 Nev. 113, 379 P.2d
466 (1963); McKenzie v. Shelly, 77 Nev. 237, 362 P.2d 268 (1961). We must review the
evidence presented to the commission and determine whether that body abused its discretion
by acting arbitrarily or capriciously. Our review reveals that the respondent acted within the
permissible limits of its discretion in ordering the refunds.
The appellant argues that the long prorations were in accordance with the appellant's Rule
No. 5,
1
filed with and approved by the respondent, and supports its argument by relying
upon the testimony of one of the respondent's witnesses to the effect that the actual proration
was in accordance with that rule. The appellant ignores the fact that before it was ever
authorized to prorate pursuant to the terms of Rule No. 5, there must exist reasons beyond its
control to justify reading a customer's meter other than on the scheduled reading date. While
there is evidence of curb or fake meter reading, estimations and meter reading well beyond
the 33-day limit allowed by Rule No. 5, there is no evidence of any reasons beyond the
control of the appellant to justify such conduct which resulted in its use of long prorations.
This conduct has been found to be unreasonable and a violation of Rule No.
____________________

1
RULE No. 5 (in pertinent part):
BILLS FOR SERVICE
A. Rendering of Bills
Bills for service will be rendered each customer not less frequently than once each month and will be based
on meter registration.
1. Bills for gas service will show the reading of the meter at the end of the period for which the bill is
rendered, the date of such reading, the BTU adjustment factor and the number of therms of gas used. The BTU
adjustment factor will vary whenever there is a deviation of 10 BTU's or more in the average monthly heating
value of gas purchased from the company's supplier.
. . . .
3. If, for reasons beyond its control, the Utility is unable to read the customer's meter on the scheduled
reading date, the Utility may bill the customer for estimated consumption during the billing period, subject to
adjustment at the time the meter is next read.
Proration of Bills
1. The charges applicable to opening periods, closing bills and bills rendered for periods of less than 27 days
or more than 33 days will be computed as follows: The amount of the minimum charge and the quantity in each
of the several quantity rate blocks will be prorated on the basis of the ratio which the number of days in the
period bears to the average billing period of 30 days. The measured quantity of usage will be applied to such
prorated amounts and quantities.
unreasonable and a violation of Rule No. 5 by the respondent and affirmed by the district
court.
In support of its position against refunds, the appellant, relying on National Labor
Relations Bd. v. Guy F. Atkinson Co., 195 F.2d 141 (9th Cir. 1952), contends that it was
innocent of any conscious violation of the rules and was unable to know, when it acted, that it
was guilty of any misconduct.
[Headnote 3]
We find this position untenable. The appellant cannot escape the responsibility for fake
meter reading, late meter reading, unauthorized estimation of gas usage and the failure to
uniformly apply the altitude adjustment factor because of an inadequate staff or the
misconduct of an employee. Any loss occasioned thereby cannot be shifted to the customers.
[Headnote 4]
Rules and regulations promulgated by the appellant may not be ignored but must be
observed by it. The appellant may not ignore such rules as to some customers and observe
them as to others. Southwestern Bell Telephone Co. v. Lee, 140 S.W.2d 132 (Ark. 1940).
[Headnote 5 ]
The rule governing the duty of public utilities or companies to serve the public is well
stated in the case of Birmingham Railway, Light & Power Co. v. Littleton, 77 So. 569 (Ala.
1917): This duty to serve the public exists independent of statutes regulating the manner in
which public service corporations or companies shall do business. It is imposed upon the
public service corporation because it is organized to do a business affected with a public
interest, and because the corporation has held itself out to the public as being willing to serve
all members thereof. Messer v. Southern Airways Sales Co., 17 So.2d 679 (Ala. 1944);
Gibbs v. Baltimore Gas Co., 130 U.S. 396, 9 S.Ct. 553, 32 L.Ed. 979 (1888).
[Headnote 6]
The appellant's contention that the respondent, in its final order, indulged in retroactive
rate making is without merit. The order has two distinct parts, both of which are permissible
and within the statutory powers and constitutional limitations of the respondent. The first part
of the order required prospective rule amendments to prevent the appellant from indulging in
any long prorations and requiring the appellant to specifically adhere to the California Natural
Gas Association Bulletin TP-561 altitude chart.
TP-561 altitude chart. In other parts of the order the respondent imposed sanctions against the
company for its unjustified use of long proration billing and for its failure to adhere to an
altitude adjustment schedule which it had on file,
2
with the respondent, and which it applied
to other parts of the service area.
[Headnote 7]
It is a basic legal principle that a rate is made to operate in the future and cannot be made
to apply retroactively, here, however, we find no evidence of an attempt by the respondent to
apply a rate retroactively.
[Headnote 8]
We now turn to the respondent's cross-appeal controverting that part of the judgment of
the district court permanently enjoining it from requiring the appellant to retire and replace all
of its Rockwell 150 meters in its Northern Nevada Division by December 31, 1970.
We agree with the finding of the district court that the respondent did not give the
appellant adequate notice, before the commencement of the hearings on the 16th and 17th of
April, 1968, that it would consider entering an order requiring the replacement of the
Rockwell 150 meters.
3
Furthermore the respondent's chairman made it abundantly clear
during the hearing that rate structure and safety were not involved and that the subject of the
hearing was to be confined to meter reading and billing practices and methods.
It would be beyond the realm of reasonableness to accept the respondent's argument that
because a meter is the basic instrument for meter reading that the question of replacement
was properly before the commission.
We do not reach the respondent's other contentions in its cross-appeal.
Collins, C. J., Mowbray and Thompson, JJ., and Babcock, D. J., concur.
____________________

2
The record also indicates that the appellant had filed a letter with the respondent to the effect that it would
adjust its billing to compensate for altitude changes.

3
The record indicates that the Rockwell 150 measured gas usage favorable to the customer during the cold
weather months.
____________
86 Nev. 670, 670 (1970) Booker v. Koepnick
STANLEY BOOKER and ELKO FLYING SERVICE, INC., Appellants, v. TERRY
TAYLOR KOEPNICK and KENNETH L. TAYLOR, Respondents.
No. 6108
September 17, 1970 474 P.2d 723
Appeal from an order refusing to set aside a judgment. Fourth Judicial District Court,
Elko, Nevada; George F. Wright, Judge.
Action for injuries sustained in crash landing of airplane owned and operated by
defendant. The district court, after default judgment in favor of plaintiffs, refused to set aside
such judgment, and defendants appealed. The Supreme Court held that refusal to set aside
default judgment was not error, where defendants' only excuse for failure to appear was their
reliance on fact that they had made a counter-offer, which was of questionable value and
which had been received in office of personal friend, for communication to plaintiffs, on day
of trial, some three days after friend had left for another state, and which had not been
communicated to plaintiffs.
Affirmed.
Richard C. Minor, of Reno, for Appellants.
Vaughn, Hull, McDaniel & Marfisi, of Elko, for Respondents.
Judgment.
Refusal to set aside default judgment for plaintiffs was not error, where defendants' only excuse for
failure to appear was their reliance on fact that they had made a counter-offer, which was of questionable
value and which had been received in office of personal friend, for communication to plaintiffs, on day of
trial, some three days after friend had left for another state, and which had not been communicated to
plaintiffs. NRCP 60(b).
OPINION
Per Curiam:
On May 3, 1966, the respondents filed their complaint against the appellants alleging that
Terry Taylor Koepnick suffered damages as a result of injuries sustained in the crash landing
of an airplane owned and operated by the appellants.
Counsel for the appellants filed their answer and alleged certain affirmative defenses.
Shortly thereafter counsel was allowed to withdraw and Richard C. Minor, Esq., was
substituted. The matter was set for trial to commence on May 26, 1969. On April 21, 1969,
the appellants discharged Richard C. Minor as their attorney and were without counsel on the
trial date.
Prior to trial the respondents offered to settle the case for $1,000 in cash, the same to be
received before the close of business on May 23, 1969.
On May 22, 1969, appellant Booker attempted to make a counter-offer through Leo J.
Puccinelli, an attorney at law, who was acting as a personal friend and not as his attorney, by
sending a check in the amount of $500, drawn on a bank located in Djakarta, Indonesia,
together with 100 shares of life insurance stock. The life insurance stock was of questionable
value and was not properly endorsed.
This counter-offer was received in Mr. Puccinelli's office on the day of the trial, and some
three days after Puccinelli had left for Hawaii. The respondents were unaware of Booker's
attempt to make a counter-offer until after the trial which was held as scheduled.
The appellants did not appear at the trial, nor were they represented by counsel. Judgment
was entered in favor of the respondents on June 2, 1969, and on June 12, 1969, a notice of
decision and entry of judgment was mailed to them. On September 2, 1969, the appellants
moved to set aside the judgment. After a hearing, the motion was denied. This appeal is taken
from that denial.
The appellants cite Nelson v. Lenmon, 206 P.2d 556 (Mont. 1949), and Lentz v. Boles, 84
Nev. 197, 438 P.2d 254 (1968), in support of their contentions that the trial court erred when
it denied their motion to set aside the judgment. We find no valid support for their
contentions in these cases. They also rely upon the general policy that every case should be
tried on the merits, if at all possible. However, they fail to recognize or acknowledge their
responsibility to have been present or represented in district court when their case was called
for trial. They do not claim that they were not notified, nor that they were unaware of the trial
date, but instead claim good faith reliance on the fact that they had made a counter-offer of
questionable value which was never communicated to the respondents. Upon this basis the
appellants absented themselves from the trial. Now they ask this court to reverse the order of
the trial court denying their motion to set the judgment aside upon the strength of that
reliance. This we refuse to do.
The district court found no valid reason for the appellants' failure to appeal at trial or to
request a continuance, and as a consequence found that relief under NRCP 60(b) was
unwarranted. The record supports the finding of the district court. The order of that court
denying the appellants' motion to set aside the default judgment is affirmed. See Norris v.
Phillips, 86 Nev. 619, 472 P.2d 347 (1970).
____________
86 Nev. 672, 672 (1970) Hittlet v. Police Chief, City of Reno
JERRY J. HITTLET, Appellant, v. POLICE CHIEF, CITY OF RENO, WASHOE COUNTY,
NEVADA, Respondent.
No. 6279
September 18, 1970 474 P.2d 722
Appeal from an order denying a petition for a writ of habeas corpus. Second Judicial
The district court dismissed accused's petition for writ of habeas corpus, and accused
appealed. The Supreme Court held that where arrestee had not exhausted his adequate
remedy, i.e., trial in municipal court, and no extraordinary circumstances appeared, habeas
corpus petition filed in district court was not an appropriate remedy.
Affirmed.
Brown & Meredith, of Reno, for Appellant.
Clinton E. Wooster, City Attorney, Richard J. Legarza, Assistant City Attorney, of Reno,
for Respondent.
1. Habeas Corpus.
Writ of habeas corpus may not be used to interfere with or interrupt orderly administration of criminal
laws by competent court acting within its jurisdiction or as substitute for ordinary proceedings of a trial
court.
2. Habeas Corpus.
Unless extraordinary circumstances exist, writ of habeas corpus will issue only when all other adequate
remedies have been exhausted.
3. Habeas Corpus.
Where arrestee had not exhausted his adequate remedy, i.e., trial in municipal court, and no extraordinary
circumstances appeared, habeas corpus petition filed in district court was not an
appropriate remedy.
appeared, habeas corpus petition filed in district court was not an appropriate remedy. NRS 185.015,
189.010 et seq.
OPINION
Per Curiam:
The appellant was arrested on November 11, 1969, and charged with the violation of
Section 11.12.070(3) of the Reno Municipal Code.
1
He was immediately released on bail.
On March 4, 1970, seeking to have a writ of habeas corpus serve as a substitute for the
ordinary proceedings of the municipal court, he filed his petition for habeas corpus wherein
he contended that he was unlawfully restrained of his liberty because that court was without
jurisdiction to try him, and that his constitutional rights had been violated.
2

At the hearing on the petition no evidence was adduced, but the judge of the district court
dismissed the petition upon the ground that it was not the proper remedy. This appeal follows.
[Headnote 1]
It is a settled principle of law that a writ of habeas corpus may not be used to interfere with
or interrupt the orderly administration of the criminal laws by a competent court acting within
its jurisdiction or as a substitute for the ordinary proceedings of a trial court.
3
Here the
appellant is attempting to nullify that principle of law and to depart from the regular
course of criminal proceedings by securing from the district court, in advance, a decision
on issues of law which the appellant can raise in the municipal court, with the right, if
convicted, of an appeal and trial de novo in district court.

____________________

1
11.12.070 Disorderly person. (a) Every person is a vagrant who:
. . .
(3)Is a pimp, panderer or procurer or lives in or about houses of prostitution;
. . .
(b) every vagrant is guilty of a misdemeanor.

2
In that: (a) That the Municipal Court is without jurisdiction for the reason that at the time of petitioner's
arrest there did not exist any probable cause to believe that any crime or crimes had occurred, nor any probable
cause to believe that the defendant had committed any such crimes as might have occurred.
(b) That the imprisonment of the petitioner is unlawful and without reasonable and probable cause in that all
evidence possessed by the City was seized pursuant to an unconstitutional questioning without having provided
petitioner with any warning such as under the Miranda Rules that he had the right to remain silent and that
anything he said could be used against him, nor of his right to the presence of counsel during questioning.

3
39 Am.Jur.2d, Habeas Corpus, Sec. 20, citing several United States Supreme Court cases, reads: The
writ of habeas corpus is not intended as a substitute for the functions of the trial court. In the absence of
exceptional circumstances, the orderly course of trial should
Here the appellant is attempting to nullify that principle of law and to depart from the
regular course of criminal proceedings by securing from the district court, in advance, a
decision on issues of law which the appellant can raise in the municipal court, with the right,
if convicted, of an appeal and trial de novo in district court. Reno City Charter, Article
XIV(3)(6); NRS 185.015; NRS Chapter 189.
[Headnote 2]
Unless extraordinary circumstances exist, a writ of habeas corpus will issue only when all
other adequate remedies have been exhausted. Cf. Cook v. State, 85 Nev. 692, 462 P.2d 523
(1969), and Prescott v. State, 85 Nev. 448, 456 P.2d 450 (1969).
[Headnote 3]
The appellant has not exhausted his adequate remedy, i.e., a trial in municipal court. Stack
v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951). We find no extraordinary circumstances
to be present and affirm the order of the district court.
____________________
be pursued and the usual remedies exhausted before the writ is invoked. Habeas corpus is not ordinarily
available in advance of trial to test the constitutionality of a statute under which the petitioner was indicted, or
even to determining jurisdictional questions that may arise. Rodman v. Pothier, 264 U.S. 399, 63 L.Ed. 759, 44
S.Ct. 360 (1924); Jones v. Perkins, 245 U.S. 390, 62 L.Ed. 358, 38 S.Ct. 166 (1913); Henry v. Henkel, 235 U.S.
219, 35 S.Ct. 54, 59 L.Ed. 203 (1914); Johnson v. Hoy, 227 U.S. 245, 33 S.Ct. 240, 57 L.Ed. 497 (1913);
Glasgow v. Moyer, 225 U.S. 420, 32 S.Ct. 753, 56 L.Ed. 1147 (1912), and Sunal v. Large, 332 U.S. 174, 67
S.Ct. 1588, 91 L.Ed. 1982 (1947).
____________
86 Nev. 674, 674 (1970) Di Gregorio v. Marcus
LOUIS DI GREGORIO and ELSBETH WILLIS, Appellants, v. LOUIS M. MARCUS and
BERNARD M. SHAPIRO, Respondents.
No. 6131
October 7, 1970 475 P.2d 97
Appeal from a judgment. Eighth Judicial District Court, Clark County; William P.
Compton, Judge.
Suit to recover real estate commissions. The district court entered judgment for
defendants, and plaintiffs appealed. The Supreme Court, Batjer, J., held that under
commission agreement wherein real estate broker agreed to waive any claim against vendors
for unpaid commissions in event of purchaser's default in payment of installments on
purchase price, assignees of broker were entitled to receive their share of payments made
by purchaser, or its successor in interest, but were not entitled to share in payment
received by vendors for their interest in promissory note and deed of trust.
against vendors for unpaid commissions in event of purchaser's default in payment of
installments on purchase price, assignees of broker were entitled to receive their share of
payments made by purchaser, or its successor in interest, but were not entitled to share in
payment received by vendors for their interest in promissory note and deed of trust.
Affirmed.
Deaner, Butler & Adamson, of Las Vegas, for Appellants.
Wiener, Goldwater & Galatz and J. Charles Thompson, of Las Vegas, for Respondents.
1. Brokers.
Under commission agreement wherein real estate broker agreed to waive any claim against vendors for
unpaid commissions in event of purchaser's default in payment of installments on purchase price, assignees
of broker were entitled to receive their share of payments made by purchaser, or its successor in interest,
but were not entitled to share in payment received by vendors for their interest in promissory note and deed
of trust.
2. Brokers.
Right of a real estate broker to collect his fee is to be measured by terms of commission agreement.
3. Brokers.
Real estate broker's commission agreement may validly be predicated on specified conditions precedent.
4. Brokers.
When a commission agreement provides that real estate broker will only receive his fee from purchaser's
payments, receipt of payments is a condition precedent to vendor's obligation to pay commission.
OPINION
Through the services of Atlas Realty Company, licensed real estate brokers, hereinafter
referred to as Atlas, the respondents sold certain real property in Clark County. A down
payment was made and a promissory note for the balance of the purchase price, secured by a
deed of trust, was executed by the purchaser. Through an assignment, which appeared on the
reverse side of the promissory note, the respondents assigned to Atlas the sum of $22,500 to
be paid in installments of $5,625, together with interest. The assignment also contained the
following language: In the event of default by the Trustor in the payment of said
installments, Atlas Realty Company waives any further claim against Bernard Shapiro and
Louis M.
Atlas Realty Company waives any further claim against Bernard Shapiro and Louis M.
Marcus for any unpaid commissions. Similar language was included in the commission
agreement entered into between the respondents and Atlas.
1
The purchaser made one
payment and Atlas received $6,106.15. Thereafter, that company assigned its interest in the
promissory note to the appellants. No further payments were made by the purchaser and a
notice of breach and election to sell under the deed of trust was filed by the respondents.
However, before a sale could be effected it was restrained by United States Referee in
Bankruptcy. That restraining order was in full force and effect when the district court entered
its judgment in this case.
On November 25, 1968, the respondents sold all of their interest in the note and trust deed
to Tracy Investment Company, hereinafter referred to as Tracy, and received $ 129,191.58 as
full payment. That sum was paid to Chicago Title Insurance Company, which in turn paid
respondents $109,933.79, and withheld $393.95 as escrow fees. The title company also
withheld $ 18,863.84 for the account of the appellants as the assignees of Atlas, but refused to
disburse said sum because of the conflicting claims for it.
Appellants filed a suit against respondents claiming $16,875 plus interest due them for
commissions as assignees of Atlas. Respondents filed a suit against Chicago Title Insurance
Company claiming the sums withheld by that title company. Judgment was entered awarding
the $18,863.84 to the respondents.
The appellants contend that the trial court erred in its judgment. Their contention is based
upon the theory that the respondents have received the full price of the original sale from
Tracy and that the appellants are entitled to the balance of the commission earned by Atlas.
We find no fault in the judgment.
The appellants fail to recognize that the promissory note and deed of trust sold by the
respondents to Tracy was an entirely different product from the real property which
produced the commission.
[Headnote 1]
Although the judge of the district court indicated that the default in payment by the
purchaser resulted in a forfeiture of any further claim by the appellants,2 we do not reach
the point where that question need be considered, because all sums paid to the
respondents by Tracy were only in consideration of respondents' interest in the
promissory note and deed of trust.
____________________

1
The escrow instructions also contained a similar provision concerning the brokers commission in the event
of the purchasers default.
any further claim by the appellants,
2
we do not reach the point where that question need be
considered, because all sums paid to the respondents by Tracy were only in consideration of
respondents' interest in the promissory note and deed of trust. The appellants were entitled to
receive their share of the payments made by the purchaser, or its successor in interest, but
were in no way entitled to share in the payment received by the sellers for their interest in the
promissory note and deed of trust.
[Headnotes 2, 3]
The right of a real estate broker to collect his fee is to be measured by the terms of his
commission agreement. Fitch v. LaTourrette, 75 Nev. 484, 346 P.2d 704 (1959), and Craig v.
Margrave, 84 Nev. 638, 446 P.2d 653 (1968). Such a contract may validly be predicated on
specified conditions precedent. Craig v. Margrave, supra, and Bell v. Krupp, 86 Nev. 247,
467 P.2d 1013 (1970).
[Headnote 4]
When a commission agreement provides that the broker will only receive his fee from the
purchaser's payments, the receipt of those payments is a condition precedent to the seller's
obligation to pay the commission. Craig v. Margrave, supra, and Seminole Fruit & Land Co.
v. Rosborough-Weiner, Inc., 43 So.2d 864 (Fla. 1950).
It would be as unjust to require the respondents to pay the appellants the balance of the
real estate commission from the monies received from Tracy as it would to require such
payment from the respondents' other assets. The judgment of the district court is affirmed.
____________________

2
In the minds of the court any rights the broker or its assignees might have had to unpaid commissions were
forfeited when Bonanza No. 2 defaulted on its obligation. Once forfeited the claim could not be resurrected.
____________
86 Nev. 678, 678 (1970) Harrigan v. City of Reno
NELLIE J. HARRIGAN, Appellant, v. CITY
OF RENO, Respondent.
No. 6121
October 8, 1970 475 P.2d 94
Appeal from an order granting summary judgment. Second Judicial District Court,
Washoe County; John W. Barrett, Judge.
Invitee brought action against city for injuries sustained on municipal parking lot. The
district court granted summary judgment in favor of the city, and the invitee appealed. The
Supreme Court, Zenoff, J., held that alleged negligent conduct of city in omitting danger
signs and guardrails from edge of city parking lot next to dropoff was part of operational
phase of parking lot project and was, therefore, actionable, notwithstanding statute exempting
city from liability for discretionary acts.
[Rehearing denied November 9, 1970]
Erickson & Thorpe, of Reno, for Appellant.
Clinton E. Wooster, City Attorney, and Leslie A. Legget, of Reno, for Respondent.
Governmental proprietary test no longer applies in determining whether a city is amenable to a lawsuit.
Statute exempting city from liability for acts of discretion would not exempt city from liability if due care
had not been used in making certain that parking lot met standard of reasonable safety. NRS 41.031,
41.032.
Alleged negligent conduct of city in omitting danger signs and guardrails from edge of city parking lot
next to dropoff was part of operational phase of parking lot project and was actionable notwithstanding
statute exempting city from liability for acts of discretion. NRS 41.031, 41.032.
Question of contributory negligence of invitee who bent over to retrieve parking ticket which had landed
near edge of municipal parking lot close to dropoff and who sustained injuries when gust of wind blew her
over edge was for jury.
City which was in control of municipal parking lot adjacent to hall owed business invitee duty to
use reasonable care to keep premises in a reasonably safe condition for invitee's use.
hall owed business invitee duty to use reasonable care to keep premises in a reasonably safe condition for
invitee's use.
OPINION
By The Court, Zenoff, J.:
Nellie J. Harrigan appeals from an order granting summary judgment which had the effect
of releasing the City of Reno from any responsibility for her injuries which occurred on the
municipal parking lot adjacent to the city hall in Reno.
She purchased a parking ticket but it blew out of her car as she placed it on the dashboard.
It landed near the edge of the lot close to a dropoff of several feet. No guardrail existed to
protect people, nor were there any signs to warn them about the edge, although bumper strips
and a six-inch concrete retaining wall had been placed along the edge of the dropoff. When
Mrs. Harrigan, who was 74 years old at the time, bent over to pick up her ticket near the front
wheel of a car parked by the dropoff a gust of wind blew her over the edge, resulting in
injuries.
The city moved for summary judgment, claiming immunity on the ground that failure to
put up a guardrail or warn of the dropoff was an act of discretion for which the city was
exempted from liability. While NRS 41.031 constitutes waiver of sovereign immunity by the
state, its agencies and political subdivisions, the succeeding section recites an exception if the
act complained of is part of the discretionary functions of government for which the
government does not waive the immunity. NRS 41.032 reads: No action may be brought
under NRS 41.031 or against the employee which is: . . . (2) Based upon the exercise or
performance or the failure to exercise or perform a discretionary function or duty on the part
of the state or any of its agencies or political subdivisions or of any employee of any of these,
whether or not the discretion involved is abused. The issue then is whether the city can be
sued at all.
1. The question concerns the legal significance of the waiver of sovereign immunity as it
applies to a municipality that voluntarily provides a parking lot, although under no obligation
to do so.
[Headnote 1]
We eliminate first the concept that the government is amenable to lawsuits when it is
engaged in a proprietary capacity.
That doctrine was applied in Town of Douglas v. York, 445 P.2d 760 (Wyo. 1968);
Stringfield v. City of Hackensack, 171 A.2d 361 (N.J. Super. 1961); Zaras v. City of Findlay,
176 N.E.2d 451 (Ohio App. 1960); and Rhodes v. City of Palo Alto, 223 P.2d 639 (Cal.App.
1950), but the tort liability act was not a consideration in those cases. The result we reach,
however, is based upon the involvement of tort liability and waiver of immunity by a
sovereign. The governmental-proprietary test no longer applies.
The principle that municipalities are subject to liability is a departure from the historical
doctrine of sovereign immunity. The purpose of the waiver of immunity statute was to
compensate victims of government negligence in circumstances like those in which victims
of private negligence would be compensated. Indian Towing Co., Inc. v. United States, 350
U.S. 61, 65-69 (1955).
[Headnote 2]
In determining whether this is a proper case for departure from governmental immunity we
must first ask what the act of the city was. The answer is, that it built a parking lot. The city
need not have constructed the parking lot because that was an exercise of discretion based
upon policy, that is, whether or not the municipality would provide a public parking facility
adjacent to its city hall for the convenience of the people. Its decision to do so was a policy,
or discretionary, decision. Once having decided to construct a parking lot the city was
obligated to use due care to make certain that the parking lot met the standard of reasonable
safety for those who would use it. Such was the operational stage for which the statute does
not exempt the city from liability if due care has not been used and an injury is caused.
Counsel for respondent refers to Pardini v. City of Reno, 50 Nev. 392, 263 P. 768 (1928),
as authority for his position that the failure to install a guardrail was a planning decision
which was, in turn, a matter of discretion. A part of Chief Justice Sanders' opinion, at page
400, implies this, but the matter is clarified at page 401: [W]here a railing or barrier is
reasonably necessary for the security of travelers on the street, which from its nature would
otherwise be unsafe, and the erection of which would have prevented the injury, it is
actionable negligence not to construct and maintain such railing or barrier. Nor was possible
liability in Pardini v. City of Reno, supra, predicated on the city's failure to construct a
guardrail in accordance with the plan, as was implied, but on its failure to construct one at
all.
in accordance with the plan, as was implied, but on its failure to construct one at all. Like the
decision of the City of Reno in the instant case, the failure of the City of Reno to construct the
guardrail in Pardini v. City of Reno, supra, came at the operational state, after the
discretionary decision to construct the roadway at that location had been made.
Nevada's discretionary exception provision is identical to that of the Federal Tort Claims
Act, 28 U.S.C., Section 2680(a) (1965). Federal courts distinguish the policy stage, where the
discretionary exception applies, from the actual construction and operation of the project. The
latter may subject the sovereign to liability. United States v. Hunsucker, 314 F.2d 98 (9th Cir.
1962); American Exchange Bank v. United States, 257 F.2d 938 (7th Cir. 1958); Swanson v.
United States, 229 F.Supp. 217 (N.D. Cal. 1964); Montellier v. United States, 202 F.Supp.
384 (E.D.N.Y. 1962); Jemison v. The Duplex, 163 F.Supp. 947 (S.D. Ala. 1958); see also
Rogers v. State, 459 P.2d 378 (Haw. 1969).
[Headnote 3]
While whether or not to put in a parking lot is a policy decision, the rules of safety cannot
be ignored by the government once the affirmative act of construction is undertaken. In this
case, because the negligent conduct of omitting danger signs and guardrails was part of the
operational phase, it is actionable.
2. The city also argues that Mrs. Harrigan was contributorily negligent because she could
have and therefore should have seen the danger of the dropoff and avoided it.
The accident occurred at 11:00 a.m. during the daylight hours when visibility was clear
despite hints of impending snow. In Rogers v. Tore, Ltd., 85 Nev. 548, 459 P.2d 214 (1969),
we held that the invitee's knowledge of the danger does not inevitably bar recovery. As in that
case, certain factors appear here that are for the determination of a jury. Had she not retrieved
her ticket she would have been required to pay for another or would have been subject to
penalties. Human nature rebels at both.
[Headnotes 4, 5]
Because the city was in control of the parking lot it owed to the plaintiff, a business
invitee, the duty to use reasonable care to keep the premises in a reasonably safe condition for
the invitee's use. Whether that duty was discharged and whether Mrs.
Mrs. Harrigan's conduct was negligence without which her injuries would not have been
suffered are questions of fact for the jury. Dawson v. Payless for Drugs, 433 P.2d 1019 (Ore.
1967); Leonardo v. Great Atlantic and Pacific Tea Co., 164 N.E.2d 900 (Mass. 1960); Martin
v. Fox West Coast Theaters Corp., 108 P.2d 29 (Cal.App. 1940).
3. Although argued by the respondent, the Reno Municipal Code, Section 11.08.140, and
the Uniform Building Code provisions of Reno do not apply, nor does NRS 41.033.
Reversed and remanded for further proceedings in accordance with this opinion.
____________
86 Nev. 682, 682 (1970) Thompson v. State
ANTHONY THOMPSON, WAYNE TESTOLIN, GEORGE PENOLA and WILLIAM
SCHAEFER, Appellants, v. STATE OF NEVADA, Respondent.
No. 6339
October 8, 1970 475 P.2d 96
Appeal from denial of petition for a writ of habeas corpus. Third Judicial District Court,
Eureka County; John F. Sexton, Judge.
The district court denied the petition and the petitioners appealed. The Supreme Court,
Zenoff, J., held that nine-day delay, beyond statutory time, in filing informations after
preliminary hearing was held did not cause prejudice to petitioners who had been on bail
since date of their arrest, and did not constitute denial of due process.
Affirmed.
Richards & Demetras, of Reno, for Appellants.
Harvey Dickerson, Attorney General, and Charles B. Evans, Jr., District Attorney, Eureka
Constitutional Law; Indictment and Information.
Nine-day delay beyond statutory time, in filing informations after preliminary hearing was held did not
cause prejudice to petitioners who had been on bail since date of their arrest, and did not constitute
denial of due process.
86 Nev. 682, 683 (1970) Thompson v. State
not constitute denial of due process. NRS 173.035, subd. 3, 178.556.
OPINION
Petitioners were arrested and charged with the commission of several felonies in Eureka
Township. After a preliminary hearing on December 16, 1969 informations were filed but not
until January 12, 1970, nine days after the statutory time for filing had expired. On February 5
subpoenas were issued for their attendance at the arraignment scheduled for February 12, but
on February 11 that date was canceled by the district court and reset for sometime in
March. On March 10, 1970 they petitioned for a writ of habeas corpus complaining of the
nine-day delay in filing the informations after a preliminary hearing was held.
NRS 173.035(3) requires that the information be filed within 15 days after the preliminary
hearing is decided. In this appeal from the denial of their petition by the district court the state
seeks to excuse the delay as having been caused by the appellants but do not tell us what
those facts were. On the other hand, petitioners make no showing how or in what manner they
have been prejudiced by the nine-day delay. The record shows that they did not seek the writ
of habeas corpus until two months after the infraction occurred. NRS 178.556 provides for
trial court discretion which was exercised against the petitioners.
Statutes prescribing filing times and trial dates serve as protection against oppression of
people accused of crimes. In this case we note no oppression since the petitioners have been
on bail since the date of their arrest and the record reflects a casualness on their part that
negates probabilities that they are being denied due process.
Affirmed.
____________
86 Nev. 684, 684 (1970) Klosterman v. Cummings
NANCY KLOSTERMAN, Individually and as Guardian Ad Litem for EDWARD RICHARD
KLOSTERMAN, KRISTY KLOSTERMAN and ROBERT LYNN KLOSTERMAN, Minors,
Appellants, v. PHIL CUMMINGS, Special Administrator of the Estate of LESLIE CURTIS
SUMNER, Respondent.
No. 5980
October 8, 1970 476 P.2d 14
Appeal from a judgment of dismissal of the Eighth Judicial District Court, Clark County;
Roscoe H. Wilkes, Judge.
Plaintiff brought wrongful death action against special administrator of estate. The district
court dismissed action, and plaintiff appealed. The Supreme Court, Batjer, J., held that
wrongful death action could not properly be brought against special administrator of estate
even though sole asset of estate was liability insurance policy.
Affirmed.
Echeverria & Osborne, of Reno, for Appellants.
Singleton, Beckley, DeLanoy, Jemison & Reid, of Las Vegas, for Respondent.
1. Death; Executors and Administrators.
Wrongful death action could not properly be brought against special administrator of estate even though
sole asset of estate was liability insurance policy. NRS 140.040, subd. 3.
Supreme Court cannot judicially legislate to alleviate a harsh result occasioned by legislative enactment.
3. Death.
Plaintiff who improperly brought wrongful death action against special administrator of estate would not
be permitted to amend her complaint to substitute general administrator as the party defendant, so as to halt
the running of time. NRS 140.040, subd. 3.
4. Courts.
Where statute declared that in no case shall the special administrator be liable to an action by any
creditor and under another statute holder of claim against an estate was precluded from maintaining an
action unless claim was first filed with clerk of court, plaintiff who filed complaint for wrongful death
against special administrator of estate but did not contend she complied with requirement of filing claim
with clerk of court was not entitled to avoid retroactive application of decision against the right to maintain
such action on claim that she relied upon reasonable interpretation of statutes and upon another decision
that special administrator may maintain wrongful death action.
that special administrator may maintain wrongful death action. NRS 41.110, 140.040, 147.040,
147.100, 147.150.
OPINION
This appeal is from a judgment of dismissal entered by the district court, pursuant to
NRCP 54(b), in a wrongful death action that arose out of a mid-air collision near Las Vegas,
Nevada, between a military aircraft piloted by Edward Klosterman and a small private
airplane piloted by Leslie Curtis Sumner.
The action was commenced by the widow and minor children of the deceased air force
pilot against the special administrator of the estate of the deceased private pilot.
The dismissal rests upon NRS 140.040(3) which precludes liability of a special
administrator to an action by a creditor on a claim against an estate.
1

The appellant contends that the trial court erred in deciding that a special administrator of
an estate cannot be sued where the sole asset is a liability insurance policy.
In Bodine v. Stinson, 85 Nev. 657, 461 P.2d 868 (1969), a case of first impression
construing NRS 140.040(3) and directly in point, we said: 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 a 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 the 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, S0 Nev. 3S0
____________________

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.
be the proper party to defend a wrongful death action. Cf. Weiler v. Ross, 80 Nev. 380 395
P.2d 323 (1964).
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
referrable 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.
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.
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
[NRS] ch. 147.
[Headnote 1]
The appellant asks this court to overrule Bodine, or in the alternative to remit the matter to
the district court to permit her complaint to be amended to substitute a general administrator
when one is appointed. The appellant is really asking us to reverse the trial court through the
process of judicial legislation. If an exception is to be made in the procedure for processing a
claim against an estate where the only asset is a policy of liability insurance, the proper
forum to effect such a change is the legislature.
a policy of liability insurance, the proper forum to effect such a change is the legislature. It is
not for this court to torture the present statutory scheme to reach the position espoused by the
appellant.
[Headnote 2]
The hardship which a dismissal with prejudice may cause is most strongly urged by the
appellant, however, her situation is not unique. Whenever the legislature enacts a statutory
bar to an action someone at some time may suffer. We cannot judicially legislate to alleviate a
harsh result occasioned by a legislative enactment. The appellant's arguments could just as
well be made where an action is barred by the statute of limitation.
[Headnote 3]
We reaffirm Bodine and turn to the appellant's request that she be permitted to amend her
complaint to substitute a general administrator as the party defendant. This we cannot do. The
running of time cannot be halted to allow the appellant to properly perfect her claim.
Nevertheless, we deem the question of prospective application of Bodine to be an issue before
us and we shall proceed to consider it.
The rule regarding retrospective application of decisions of the United States Supreme
Court is set forth in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601. That
case held that the decision rendered in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d
1081, requiring exclusion, in state criminal trials, of evidence seized in violation of the search
and seizure provisions of the Fourth Amendment to the United States Constitution, did not
operate retrospectively upon cases finally decided prior to Mapp. In so concluding, the High
Court reviewed the common law history and theory of the subject of retrospective application
of judicial decisions. The court noted the Blackstonian view to the effect that judicial
opinions do not pronounce a new law but expound the old one. Under that theory
unconstitutional action confers no rights, imposes no duties, furnishes no protection and, is as
authoritative as if it never existed. According to that view, no authority existed for the
proposition that judicial decrees made law only for the future.
The High Court also referred to the Austin concept which holds that judicial decisions
make law. This view expresses the idea that overruling of a prior decision implies admission
that the former case was erroneously decided. However, the former decree is not considered
erased by the latter overruling opinion. Rather, it is deemed an existing juridical fact until
overruled and intermediate cases finally decided under it are not to be disturbed.
overruled and intermediate cases finally decided under it are not to be disturbed. In Linkletter,
the court then considered several specific cases in which the subject matter was discussed,
including Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145,
77 L.Ed. 360, where it was held that in determining constitutionality, the existence of the
prior law is an operative fact which may have consequences which cannot be ignored. The
decision also held that The past cannot always be erased by a new judicial declaration. . . .
[T]he effect of the subsequent ruling as to invalidity may have to be considered in various
aspects.
In Linkletter, the rule was stated as follows: While the cases discussed above deal with
the invalidity of statutes or the effect of a decision overturning long-established common-law
rules, there seems to be no impedimentconstitutional or philosophicalto the use of the
same rule in the constitutional area where the exigencies of the situation require such an
application. It is true that heretofore, without discussion, we have applied new constitutional
rules to cases finalized before the promulgation of the rule. Petitioner contends that our
method of resolving those prior cases demonstrates that an absolute rule of retroaction
prevails in the area of constitutional adjudication. However, we believe that the Constitution
neither prohibits nor requires retrospective effect. As Justice Cardozo said, We think the
federal constitution has no voice upon the subject.' Once the premise is accepted that we are
neither required to apply, nor prohibited from applying, a decision retrospectively, we must
then weigh the merits and demerits in each case by looking to the prior history of the rule in
question, its purpose and effect, and whether retrospective operation will further or retard its
operation. . . .
Furthermore, Linkletter establishes that changes in law, whether substantive or procedural
may be accorded prospective application and it proceeded to establish guidelines by which
the issue of retroactive versus prospective application is to be determined: Under our case it
appears (1) that a change in law will be given effect while a case is on direct review,
Schooner Peggy, supra, [United States v. Schooner Peggy, 5 Cranch 103, 2 L.Ed. 49], and (2)
that the effect of the subsequent ruling of invalidity on prior final judgments when collaterally
attacked is subject to no set principle of absolute retroactive invalidity' but depends upon a
consideration of particular relations . . . and particular conduct . . . of rights claimed to have
become vested, of status, of prior determinations deemed to have finality'; and of public
policy in the light of the nature both of the statute and of its previous application.' Chicot
County Drainage Dist. v. Baxter State Bank, supra, 30S U.S. at 374, 60 S.Ct. at 319, [S4
L.Ed.
in the light of the nature both of the statute and of its previous application.' Chicot County
Drainage Dist. v. Baxter State Bank, supra, 308 U.S. at 374, 60 S.Ct. at 319, [84 L.Ed. at
333].
That no distinction was drawn between civil and criminal litigation is shown by the
language used not only in Schooner Peggy, supra, and Chicot County, supra, but also in such
cases as State v. Jones, 44 N.M. 623, 107 P.2d 324 (1940) and James v. United States, 366
U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961).
In Ashton v. Cameron County Water Improvement District, 298 U.S. 513, 56 S.Ct. 892, 80
L.Ed. 1309, the High Court held unconstitutional the statute on which the Federal District
Court based its reorganization decree. In holding that its subsequent decision did not preserve
plaintiff's rights as a bondholder after one year elapsed from the date of the District Court's
judgment, the Supreme Court stated: It is quite clear, however, that such broad statements as
to the effect of a determination of unconstitutionality must be taken with qualifications. The
actual existence of a statute, prior to such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be erased by a new
judicial declaration. The effect of the subsequent ruling as to invalidity may have to be
considered in various aspects,with respect to particular relations, individual and corporate,
and particular conduct, private and official. Questions of rights claimed to have become
vested, of status, of prior determinations deemed to have finality and acted upon accordingly,
of public policy in the light of the nature of both of the statute and of its previous application,
demand examination. Cf. Molitor v. Kaneland Community Unit District, 163 N.E.2d 89 (Ill.
1959); City of Phoenix, Arizona v. Kolodziejski, 399 U.S. 204 (1970); see also Time and
Change in Judge-Made Law; Prospective Overruling, 51 Va.L.R. 210.
In Stokes v. Aetna Casualty and Surety Company, 232 So.2d 328 (La.App. 1970), that
court said: We conclude, therefore, that the question of retroactive or prospective application
of civil law changes must be determined in the light of (1) extent of reliance on previous
legislation or judicial decisions, (2) the reasonableness of such reliance, (3) the degree of
hardship resulting from a retroactive application of the change, (4) the public interest in the
stability of the social institutions involved, if any, and (5) the purpose and intent of both the
new and old rule.
[Headnote 4]
The appellant contends that she relied upon a reasonable interpretation of NRS 140.040
and NRS 41.110, as well as upon Nevada Paving Inc. v. Callahan, 83 Nev. 208, 427 P.2d 383
(1967), when she filed her complaint against the special administrator. In neither situation do
we deem the reliance reasonable. NRS 140.040(3) clearly and unequivocally declares that in
no case shall the special administrator be liable to an action by any creditor. That prohibition
is not personal but it is directed to a special administrator's acting in his official capacity.
Even if we were persuaded by the appellant's argument that she was misled in her
interpretation of NRS 140.040, we must call to her attention the wording of NRS 147.150,
which precludes a holder of a claim, against an estate, from maintaining an action unless the
claim is first filed with the clerk of the court in compliance with the provisions of NRS
147.040. There is no contention by the appellant of such compliance. Furthermore, a plaintiff
who has a pending action against a deceased, at the time of death, must file his claim with the
clerk and no recovery shall be allowed in the action unless there is proof of the filing. (NRS
147.100.) A fortiori if a plaintiff with an action pending in court must file with the clerk
before recovery can be allowed, most certainly a plaintiff with a new claim cannot ignore the
procedural requirements and expect to recover.
The appellant's reliance on Nevada Paving Inc. v. Callahan, supra, is likewise
unreasonable. Authorization to maintain an action for wrongful death is 180 degrees removed
from authority to defend such an action. In the prosecution of a claim the estate has a chance
of acquiring additional assets. The commencement of such an action would be the collecting
and preserving of claims of the estate. Such conduct by a special administrator would be in
the performance of his duties. (NRS 140.040.) In the defense of an action only obligations
and liabilities can be incurred. It is for that reason that narrow rules must apply to the filing
and prosecution of claims against estates.
The posture of this appeal does not resemble any of the cases considered which support or
require prospective application of a decision construing a legislative enactment. We find no
legal basis for the appellant's contentions and affirm the judgment of the district court.
Collins, C. J., Zenoff and Thompson, JJ., concur.
Craven D. J. concurring:
I concur in the result reached by the majority in the light of Bodine v. Stinson, 85 Nev.
657, 461 P.2d 868 (1969).
However, in determining whether the minority of the children tolls the running of the
statute of limitations in this case involves several legal issues, which eventually would have
to be determined in future litigation.
First, does the right conferred by the wrongful death statutes vest in the minor alone or in
the guardian ad litem? This court held in Barney v. County of Clark, 80 Nev. 104, 389 P.2d
392, 393 (1964), that,
Upon the death of his father an estate resulted to the plaintiff under our wrongful death
statutes in the nature of a cause of action against the wrongdoer.
It may be that the right of action for the wrongful death of the children's father should be
vested in the children, and not the guardian ad litem. However, NRS 12.090 clouds this point
when it states the parties who may bring the action for wrongful death:
The action may be brought by the heirs of the deceased or by his personal representatives
or guardian for the benefit of his heirs.
Even if one was to conclude that the right of action vests in the minors and the guardian ad
litem, the issue arises as to what effect will the commencement and dismissal of the action by
the guardian ad litem have on the children's rights of action after they reach majority.
____________
86 Nev. 691, 691 (1970) A Minor v. State
....................., A Minor Under the Age of 18 Years, Appellant, v.
No. 6130
October 8, 1970 476 P.2d 11
Appeal from an order making the subject minor a ward of the juvenile court. Eighth
Judicial District Court, Clark County; John F. Mendoza, Judge.
Appeal from an order of the district court directing that minor be made a ward of juvenile
court. The Supreme Court, Zenoff, J., held that fact that judge expressed critical views of
juvenile at certification hearing was not so prejudicial to juvenile as to warrant reversal,
where no actual manifestations of bias were seen in conduct of trial, in that juvenile did
not testify and only a very few inconsequential objections were made by accused to
testimony of prosecuting witness, whose testimony was clear and convincing.
of juvenile at certification hearing was not so prejudicial to juvenile as to warrant reversal,
where no actual manifestations of bias were seen in conduct of trial, in that juvenile did not
testify and only a very few inconsequential objections were made by accused to testimony of
prosecuting witness, whose testimony was clear and convincing.
Affirmed.
L. Earl Hawley, of Las Vegas, for Appellant.
Heber P. Hardy, Deputy District Attorney, Clark County, for Respondent.
1. Rape.
Evidence in juvenile proceedings against minor charged with forcible rape was sufficient to establish
guilt beyond a reasonable doubt.
Right of a child to a trial by jury in juvenile proceedings is not part of due process guarantees.
3. Judges.
Matter of bias on part of judge in juvenile proceedings was waived, notwithstanding sudden substitution
of attorneys and relatively short period of time between certification hearing and trial date, where no
written affidavit of prejudice was filed in case nor did attorney request time to prepare one. NRS 1.230,
subd. 5.
4. Infants.
Words after full investigation, in statute authorizing juvenile court, after full investigation, to retain
jurisdiction or certify child for criminal proceedings as an adult, require juvenile court to consider
investigation reports before deciding whether child is to be considered for adult proceedings. NRS
62.080.
5. Infants.
Fact that judge expressed critical views of juvenile at certification hearing was not so prejudicial to
juvenile as to warrant reversal of order making minor a ward of juvenile court, where no actual
manifestations of bias were seen in conduct of trial, in that juvenile did not testify and only a very few
inconsequential objections were made by accused to testimony of prosecuting witness, whose testimony
was clear and convincing.
OPINION
A 17-year-old boy was accused of committing forcible rape upon a 13-year-old girl. The
Clark County District Attorney petitioned to have the minor boy tried as an adult pursuant to
NRS 62.0S0.
NRS 62.080. Under the authority of that statute, after a full investigation the court may in its
discretion retain jurisdiction or certify the child for criminal proceedings as an adult. The
court ordered that the boy's background and environment be investigated. The reports of this
comprehensive investigation were submitted at the time of the certification hearing.
The petition was denied and the matter was set for trial. The day before the trial a private
attorney was substituted for the Public Defender as the boy's attorney. When the trial
commenced the new attorney orally requested that the judge disqualify himself for want of
fairness because of certain remarks made by the court at the certification hearing. His request
was denied.
The 13-year-old complaining witness' testimony to the events of the rape was the only
evidence the state presented. Although two of his friends related that he had been with them
at the time and date he was accused of raping the girl, the accused boy did not testify in his
own defense. He was found guilty, made a ward of the juvenile court and committed to the
Nevada Youth Training Center until he reached the statutory age or until the further order of
the court.
On this appeal the convicted offender alleges: (1) That the evidence was insufficient to
support the finding of guilt; (2) That he had been entitled to a jury trial; (3) That the judge
who acted as the trier of the facts and law was prejudiced and should not have presided over
the trial; and (4) That prejudice had been created in advance of his trial by the court's
consideration of the investigation reports of the boy's background.
[Headnote 1]
1. Having reviewed the transcript of the evidence, this court is satisfied that the juvenile
court properly evaluated the evidence in arriving at the judgment of guilt applying the
standard of proof beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970); State v.
Arenas, 453 P.2d 915 (Ore. 1969); People v. Archie, 245 N.E.2d 59 (Ill. 1969); In re M., 450
P.2d 296 (Cal. 1969). No conflicts developed from the testimony that tend to cast doubt upon
it. The alibi evidence of the defense was capable of being disbelieved as the trial court so
stated.
[Headnote 2]
2. We will not now entertain the constitutional issue of the failure to provide a jury trial.
Although recent U.S. Supreme Court decisions lean toward projecting juvenile matters into
the criminal arena {In re Winship, supra; Kent v. United States, 3S3 U.S. 541 {1966);
Application of Gault, 3S7 U.S. 1 {1967)), our statute provides specifically that juvenile
hearings are to be without a jury.
the criminal arena (In re Winship, supra; Kent v. United States, 383 U.S. 541 (1966);
Application of Gault, 387 U.S. 1 (1967)), our statute provides specifically that juvenile
hearings are to be without a jury. Enough doubt has been cast upon the right to jury trial for
juveniles to warrant our present conclusions that the right to a jury for children is not part of
the due process guarantees. This question is presently before the U.S. Supreme Court in In re
Burrus, cert. granted, 397 U.S. 1036 (No. 128, October 1970 term), so we shall withhold
further discussion of the question pending determination of that case.
[Headnote 3]
3. Since juvenile proceedings are civil proceedings by statute the appropriate steps which
must be taken to disqualify a judge for bias are detailed in NRS 1.230(5). See also State ex
rel. Department of Welfare v. District Court, 85 Nev. 642, 462 P.2d 37 (1969). An affidavit
of bias must be filed ten days before the hearing and must be made in writing. No written
affidavit was filed in this case nor did the attorney request time to prepare one. We realize
that because of the sudden substitution of attorneys and the relatively short period of time
between the certification hearing and the trial date the ten-day requirement could not be met.
Nevertheless, we stated in State ex rel. Department of Welfare v. District Court, supra, that
should it develop at any stage of the litigation that prejudice became manifest, a motion for
actual bias could be filed at any time and a hearing conducted by another judge as provided in
Subsection 4 of NRS 1.230. No such motion was filed nor was there a request for additional
time to do so. The matter of bias was waived.
[Headnote 4]
4. NRS 62.080 specifies no fine distinction as to when and under what conditions advance
reports from the preliminary investigation shall be considered by the judge. Cf. In re F., 75
Cal.Rptr. 887 (Cal.App. 1969); In M.................. v. Superior Court, 75 Cal.Rptr. 881
(Cal.App. 1969); In re Corey, 72 Cal.Rptr. 115 (Cal.App. 1969). The words of our statute,
after full investigation, clearly require the juvenile court to consider the reports before
deciding whether the child is to be considered for adult proceedings. Haziel v. United States,
404 F.2d 1275 (C.A.D.C. 1968).
[Headnote 5]
We are naturally concerned that fundamental fairness be inherent in all legal matters but
we do not note an absence of that quality in this case to warrant a reversal.
that quality in this case to warrant a reversal. Rather, the juvenile court judge was concerned
for the welfare of the boy as we note in his remarks and in the disposition of placing the boy
in the training center instead of prison. While the judge expressed his critical views of the
juvenile at the certification hearing no actual manifestations of bias are seen in the conduct of
the trial. The boy himself did not testify. Only a very few inconsequential objections were
made by the accused to the testimony of the prosecuting witness. Her testimony in fact was
clear and convincing. The testimony of the two alibi witnesses was not. There was nothing
upon which the trial judge could exercise his prejudice if such existed.
We find no error in the proceedings.
Affirmed.
____________
86 Nev. 695, 695 (1970) American Fed. Musicians v. Reno's Riverside
AMERICAN FEDERATION OF MUSICIANS, Appellant and Cross-Respondent, v.
RENO'S RIVERSIDE HOTEL, INC., Respondent and Cross-Appellant.
No. 6087
October 12, 1970 475 P.2d 221
Appeal from an injunction and damages granted by the Second Judicial District Court,
Action by employer to obtain injunction against union's placing employer on national
defaulters list. The district court issued injunction and awarded damages to employer, and
union appealed. The Supreme Court, Thompson, J., held that National Labor Relations Act
did not pre-empt state jurisdiction to enjoin unlawful coercion attempted by union in directing
its local union to notify members that new contracts with entertainers would not be approved
for allegedly defaulting employer-hotel until liability of former owner for personal services of
union members had been paid by new owner.
William L. Hammersmith, of Reno, and Robert R. Rissman, of Los Angeles, California, for
Appellant and Cross-Respondent.
Streeter, Sala & McAuliffe, of Reno, for Respondent and Cross-Appellant.
1. Labor Relations.
When activity is arguably subject to section of National Labor Relations Act granting employees right to
engage in concerted activities for mutual aid or protection, or section of such act providing that the
expressing of any views, argument or opinion, or dissemination thereof shall not constitute an unfair labor
practice, states as well as federal courts must defer to exclusive competence and jurisdiction of the National
Labor Relations Board. National Labor Relations Act, 7, 8, 8(c) as amended 29 U.S.C.A. 157, 158,
158(c).
2. Courts.
Federal law does not pre-empt power of state courts to grant damages in defamation actions tried under
state law if plaintiff can prove injury and malice.
3. Labor Relations.
It is not unlawful or improper for union to list a defaulting employer for nonpayment.
4. Labor Relations.
National Labor Relations Act did not pre-empt state jurisdiction to enjoin unlawful coercion attempted by
union in directing its local union to notify members that new contracts with entertainers would not be
approved for allegedly defaulting employer-hotel until liability of former hotel owner for personal services
of union members had been paid by new owner. National Labor Relations Act, 7, 8; 29 U.S.C.A.
157, 158.
5. Damages.
Consideration of attorney's fees as item of damage is appropriate in certain cases.
6. Costs.
Award of $1,500 counsel fees which was not authorized by statute in effect when suit to enjoin union
from placing employer on national defaulters list was commenced was unauthorized. NRS 18.010(3)(a).
OPINION
The main appellate question is whether the National Labor Relations Act, as amended,
pre-empts state jurisdiction to enjoin the American Federation of Musicians from placing the
Riverside Hotel on the National Defaulters List. That list is circulated among union musicians
and advises them of defaults by employers in the payment of wages owing musicians.
Subordinate questions also are offered to us for decision. The district court accepted
jurisdiction, issued an injunction against the AFM and awarded damages to Reno's Riverside
Hotel, Inc.
A labor dispute has never existed between the parties to this litigation. This controversy
came about as a result of the sale of the Riverside Hotel in December 1964 by Riverside, Inc.,
seller, to Reno's Riverside Hotel, Inc., buyer, the respondent. Before that sale was made the
seller had entered into contracts for the personal services of The Vagabonds and The
Novelites, musical groups whose members belong to the AFM. They were to perform at the
hotel during specified periods in 1965. The contract of sale provided that the buyer could
assume the entertainment contracts, or elect not to do so, in which event the seller would hold
the buyer harmless. The buyer elected not to assume them and so notified the entertainers in
writing.
1
The entertainers never pressed a claim against the seller with whom they had
contracted. Instead, they prevailed upon the AFM to arbitrate their claims against the buyer of
the hotel who had elected not to assume their contracts and had notified them of that election.
The AFM adjudicated a monetary liability against the buyer for breach of contracts in the
total sum of $18,300. When the buyer refused to pay that amount the AFM placed the hotel
on the National Defaulters List and instructed the local union that union musicians were not
to perform at that hotel after a certain date and new contracts would not be approved for
performances there. This suit was immediately commenced and a restraining order was issued
which enabled the hotel to hire musicians and continue its entertainment.
[Headnote 1]
1. Jurisdiction. The record shows that under applicable standards of the National Labor
Relations Board the business operations of the hotel affect commerce within the meaning of
the National Labor Relations Act.
2
And the United States Supreme Court has ruled that
when the activity involved is arguably subject to section 7 or section 8 of the Act, the states
as well as the federal courts must defer to the exclusive competence of the NLRB. San Diego
Building Trades Council v. Garmon, 359 U.S. 236 (1959). Section 7, in relevant part, grants
employees the right to engage in concerted activities for mutual aid or protection.
____________________

1
Whether the contracts were assumed by the buyer was a disputed question of fact which the trial court
resolved in favor of the buyer. Substantial evidence supports that finding.

2
Indeed in another matter, the NLRB asserted jurisdiction over the Riverside Hotel. Reno's Riverside Hotel,
Inc. v. American Federation of Casino Employees, 163 NLRB 230 (1967). Cf. Vegas Franchises v. Culinary
Workers, 83 Nev. 236, 427 P.2d 959 (1967), concerning the residual jurisdiction of state courts under 14(c) of
the Act, 29 U.S.C. 164(c)1.
for mutual aid or protection. 29 U.S.C. 157. Section 8 provides that the expressing of any
views, argument or opinion, or the dissemination thereof shall not constitute an unfair labor
practice under the Act. 29 U.S.C. 158(c).
By reason of Garmon and the mentioned provisions of the Act, the appellant contends that
the conduct of the union in placing the hotel on the defaulters list may be reviewed only by
the NLRB and that a state court is powerless to act.
[Headnote 2]
The sweep of the pre-emption rule declared by Garmon is not precisely defined. Perhaps
the subject matter defies such definition. We know, however, that federal pre-emption is not
total. Garmon itself recognizes a compelling state interest to enjoin violence, imminent
threats to the public order, and intimidation. Id. at 247, 248. Moreover, the High Court since
Garmon, has ruled that federal law does not pre-empt the power of state courts to grant
damages in defamation actions tried under state law if the plaintiff can prove injury and
malice. Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53 (1966).
[Headnote 3]
In the case at hand we would not fault the AFM for its conduct in placing the hotel on the
defaulters list, thereby notifying its membership that the prior owner of the hotel had failed to
honor contractual obligations to musicians. It is not unlawful or improper for the union to list
a defaulting employer for nonpayment. Miami Federation of Musicians v. Wompearce, Inc.,
76 So.2d 298 (Fla. 1954); Mackey v. Moss, 175 So.2d 749 (Ala. 1965).
3
However, the AFM
did more than that. It directed the local union to notify members that new contracts with
entertainers would not be approved for the hotel until the liability of the former owner was
paid by the new owner. This coercive device was utilized notwithstanding the fact that the
new owner had met all of its commitments to musicians and no dispute existed between the
new owner and its employed musicians over wages, hours or conditions of employment. Had
the court not intervened it is fair to assume that the union musicians would have obeyed the
directive of the AFM and the hotel would have been denied entertainment for its guests.
[Headnote 4]
We have denounced coercion of similar character. Building Trades v. Thompson, 6S Nev.
3S4
____________________

3
Neither Moss nor Wompearce, supra, discussed the issue of preemption. Apparently that issue was not
before the court in either case.
Trades v. Thompson, 68 Nev. 384, 234 P.2d 581 (1951). That decision, however, was handed
down several years before the illusory pre-emption rule of Garmon was announced.
Accordingly, the AFM contends that Thompson is no longer viable. We do not agree. In our
opinion there exists a compelling state interest to deal with unlawful coercion which does not
significantly conflict with the purposes of federal law. The operation of the Riverside Hotel
was important not only to its owner, but to the economy of Reno as well, a consideration of
significance to this state. The federal right of employees to engage in concerted action for
mutual aid and protection [Sec. 7] and to disseminate information and views [Sec. 8] is not
subverted by the recognition of state power in the limited circumstances presented here. We
therefore conclude that the National Labor Relations Act, as amended, does not pre-empt
state jurisdiction to enjoin the unlawful coercion attempted in this case.
2. Damages. The hotel's complaint sought compensatory and punitive damages in excess
of $10,000 in addition to injunctive relief. The court awarded $3,000 compensatory and $10
punitive damages. Moreover, the court ordered AFM to pay counsel for the hotel $1,500 as
attorney's fees.
[Headnote 5]
The compensatory damage award was the exact amount of counsel fees incurred and paid
by the hotel to its counsel for services incident to this litigation. The hotel was not otherwise
damaged by the conduct of AFM. This suit apparently prevented further damage. It is
appropriate in some cases to consider attorney's fees as an item of damage. McIntosh v.
Knox, 40 Nev. 403, 165 P. 337 (1917). Since the institution of this litigation by the hotel was
due to the activity of AFM, and the expenditure for representation of counsel was necessary,
the trial court properly treated that expenditure as damage in line with the reasoning of
McIntosh v. Knox, supra.
[Headnote 6]
The award of $1,500 counsel fees was not authorized by the statute in effect when this suit
was commenced in May 1967. At that time the court, in its discretion, could make an
allowance of fees to the plaintiff as the prevailing party when he did not seek a recovery in
excess of $3,000. 57 Stats. Nev. 130.
4
That award must be stricken.
By cross-appeal the hotel asks our determination that the punitive damage award of $10
is too low.
____________________

4
That portion of the statute has since twice been amended. See 67 Stats. Nev. 1254; 69 Stats. Nev. 667 now
NRS 18.010(3)(a).
punitive damage award of $10 is too low. We decline to disturb the court's exercise of
discretion in this instance.
____________
86 Nev. 700, 700 (1970) Brewer v. Annett
LEOLA BREWER, as Guardian ad Litem of BARBARA BREWER, a Minor, Appellant, v.
NORMAN ANNETT and ALPHA ANNETT, Respondents.
No. 6134
October 15, 1970 475 P.2d 607
Appeal from the First Judicial District Court, Lyon County; Frank B. Gregory, Judge.
Action against ranchers for injuries suffered by infant. The district court entered summary
judgment for defendants, and plaintiff appealed. The Supreme Court, Mowbray, J., held that
minor child whose father went on defendants' ranch, which was eight miles from nearest
community, to remove scrap metal given to him and who wandered onto nearby burned-off
sagebrush area was not an invitee, and was at most a licensee and at least a trespasser;
owners of ranch had no duty to warn child's father that live coals from sagebrush fire might
still be burning and were not liable when child was burned about the legs.
Affirmed.
Echeverria and Osborne and John T. Coffin, of Reno, for Appellant.
Laxalt, Bell, Berry, Allison & LeBaron, of Carson City, and Leslie A. Leggett, of Reno, for
Respondents.
1. Judgment.
Summary judgment may not be granted if there exists a material issue of fact that must be determined by
trier of fact.
2. Judgment.
In considering motion for summary judgment, court must view evidence most favorable to party against
whom it is directed, giving it full weight and resolving all reasonable inferences in that party's favor.
3. Negligence.
Minor child whose father went on defendants' ranch, which was eight miles from nearest community, to
remove scrap metal given to him and who wandered onto nearby burned-off sagebrush
area was not an "invitee," and was at most a "licensee" and at least a "trespasser;"
owners of ranch had no duty to warn child's father that live coals from sagebrush fire
might still be burning and were not liable when child was burned about the legs.
given to him and who wandered onto nearby burned-off sagebrush area was not an invitee, and was at
most a licensee and at least a trespasser; owners of ranch had no duty to warn child's father that live
coals from sagebrush fire might still be burning and were not liable when child was burned about the legs.
OPINION
The appellant, Leola Brewer, as guardian ad litem of Barbara Brewer, commenced this
action in district court to recover from respondents Norman and Alpha Annett the sum of
$350,000 in damages for injuries suffered by Barbara, a minor, who accompanied her father,
William Brewer, when he went on respondents' ranch to remove some scrap metal that
Norman Annett had previously agreed to give Brewer. While her father was loading the junk,
the child wandered onto a nearby, burned-off sagebrush area, and she was burned about her
legs. A complaint was filed in district court. After discovery procedures had been completed,
the Annetts moved for summary judgment, which the district judge granted. This appeal
resulted. We affirm the order granting summary judgment in favor of the Annetts.
1. The Facts.
In March 1966 William Brewer asked Norman Annett if he could have some scrap metal
located on the Annett Ranch in Smith Valley. Annett agreed that Brewer could have the scrap
metal for the taking if he would in doing so remove several old car bodies located on the
same junk pile. There was no time agreed upon as to when Brewer would haul away the scrap
metal.
Sometime prior to Brewer's request, a sagebrush-covered area near the scrap metal had
been burned off, and the buried coals from the ashes of the fire were still alive when Brewer
returned about 2 weeks later with his family, including his young daughter, Barbara, and
commenced removal of the debris. While Brewer was loading his truck, Barbara played on
the burned-off area, and her injuries resulted. Both Annett and Brewer were aware of the
previous fire, but Brewer in his deposition testified that he did not know that coals from a
sagebrush fire oftentimes remain alive long after the principal fire has been extinguished.
2. The Summary Judgment.
[Headnotes 1, 2]
We have held many times that a summary judgment may not be granted if there exists a
material issue of fact that must be determined by the trier of the facts.
be granted if there exists a material issue of fact that must be determined by the trier of the
facts. Bair v. Berry, 86 Nev. 26, 464 P.2d 469 (1970); Pine v. Leavitt, 84 Nev. 507, 445 P.2d
942 (1968). Further, in considering a motion for summary judgment the court must view the
evidence most favorable to the party against whom it is directed, giving it full weight and
resolving all reasonable inferences in that party's favor. Kaminski v. Woodbury, 85 Nev. 667,
462 P.2d 45 (1969); Zuni Constr. Co. v. Great Am. Ins. Co., 86 Nev. 364, 468 P.2d 980
(1970).
3. The Annetts' Duty to Brewer.
[Headnote 3]
Counsel for appellant has urged in this appeal that Norman Annett had a duty to warn
Brewer that the live coals from the sagebrush fire might still be burning and therefore
constitute a hazardous condition. We do not agree. The district judge, in ruling on the motion
for summary judgment, said:
I have reached the conclusion, gentlemen, that as to ranch lands, particularly as they exist
in our West, the doctrine that a child is an invitee upon those premises does not apply. The
child at the best or at the most is a mere licensee and at the least a trespasser.
We agree with that observation. As a general proposition, a child accompanying his parent
to a store or other place of public patronage achieves the same status as his invited parent. W.
Prosser, Law of Torts, 61 at 397 (3d ed. 1964); Cleghorn v. Thomas, 432 S.W.2d 507
(Tenn.App. 1968, cert. denied, Tenn. 1968); Hostick v. Hall, 386 P.2d 758 (Okla. 1963);
Murphy v. Kelly, 105 A.2d 841 (N.J. 1954); Flynn v. Cities Serv. Refining Co., 28 N.E.2d
453 (Mass. 1940). The ranch here involved was not a place of public patronage, and there is
nothing in the record to suggest that the rancher had reason to anticipate the child's presence
there at any time or at all. The ranch area was approximately 8 miles from Wellington,
Nevada.
1
In these circumstances, the general rule above mentioned is inapplicable.
____________________

1
From the deposition of Norman Annett, taken June 5, 1969, at Reno, Nevada, by Leslie A. Leggett, Esq.,
attorney for defendants-respondents:
Q Mr. Annett, where is your ranch premises with reference to any community, any city or town or
community?
A It is approximately, call it eight miles north of Wellington.
Q Is your ranch located in a farming area?
A Yes, it is.
Q Are there any businesses in the area?
We conclude that under the posture of this case there is simply no legal theory upon which
the Annetts could be held liable; therefore, the granting of the summary judgment was proper.
Affirmed.
____________________
A There are not.
Q Is it all devoted to farming?
A To the best of my knowledge it is.
Q Prior to Barbara having the accident upon the thirty-eight acres that have been discussed this morning, had
any children played on that thirty-eight acres?
A No, definitely not.
Q Did any children go on the thirty-eight acres?
A Never to my knowledge had any children been on it.
Q How long had you lived on the home ranch that you designated on the exhibit that has been referred to?
A Since 1936.
Q During the period that you have been there, since 1936, up to the present time, have you ever seen
children playing on any of the thirty-eight acres that have been referred to?
A I never have.
Q Now, when you had your conversation with Mr. Brewer, out by the bridge that was being put in
A On the county road.
Q on the county road, was there any mention made by Mr. Brewer as to anyone who might accompany
him?
A No.
Q Did you give him permission to go on the ranch at any time, on the thirty-eight acres at any time he so
desired to get this junk?
A No, I did not.
Q Was there any specific time set that he could come to the thirty-eight acres?
A No, there was not, there was not.
Q As a matter of fact, did you give him explicit permission he could go on the thirty-eight acres?
A No. I did not.
Q Did you have any knowledge that Mr. Brewer was going to go on the thirty-eight acres to obtain the
material?
A I did not.
Q Did you have any knowledge of Mr. Brewer or as to his family before he went on the land to obtain this
material?
A No, I did not.
Mr. Leggett: That is all.
____________
86 Nev. 704, 704 (1970) Sheeketski v. Bortoli
CLAIRE SHEEKETSKI and JOSEPH SHEEKETSKI, Appellants, v. LAURA D. LAACK
BORTOLI and ROBERT S. LAACK, Respondents.
No. 6160
October 22, 1970 475 P.2d 675
Appeal from the First Judicial District Court, Carson City; Richard L. Waters, Jr., Judge.
Action for injuries allegedly sustained when, without warning, a dog being held by person
sitting next to defendant motorist leaped into defendant's lap, and defendant swerved her car
and struck rear of plaintiffs' car traveling in adjoining lane. The district court, after jury
verdict for defendant, denied plaintiffs' motion for judgment notwithstanding verdict and for a
new trial, and plaintiffs appealed. The Supreme Court, Mowbray, J., held that evidence was
for jury on issue of defendant's negligence.
Affirmed.
Sanford, Sanford & Fahrenkopf, of Reno, for Appellants.
Vargas, Bartlett & Dixon and Frederic R. Starich, of Reno, for Respondents.
1. Judgment; Trial.
A directed verdict or judgment notwithstanding verdict is permissible only when all reasonable inferences
from facts presented to jury favor the moving party.
2. Automobiles.
Evidence, in action for injuries allegedly sustained when, without warning, a dog being held by person
sitting next to defendant motorist leaped into defendant's lap, and defendant swerved her car and struck rear
of plaintiffs' car traveling in adjoining lane, was for jury on issue of defendant's negligence.
3. New Trial.
Fact that jurors deliberated only 75 minutes before returning a verdict was not a ground for a new trial.
4. Automobiles.
Evidence, in action for injuries allegedly sustained when, without warning, a dog being held by person
sitting next to defendant motorist leaped into defendant's lap and defendant swerved her car and struck rear
of plaintiffs' car traveling in adjoining lane, warranted mere accident instruction.
5. Negligence.
A res ipsa loquitur instruction is appropriate only when the specific acts that caused the injury are
unknown to the plaintiff.
Appellants, who had offered instruction that should not have been given, could not on appeal complain of
any inconsistency with another instruction, in that appellants had invited the error.
7. Trial.
Granting twelve-day recess of trial after completion of plaintiffs' case in chief did not constitute abuse of
discretion.
OPINION
Claire and Joseph Sheeketski have appealed from a jury's verdict in favor of respondents
and from the district judge's orders denying appellants' motion for judgment notwithstanding
the verdict and their motion for a new trial. Additionally, the appellants claim that the trial
judge improperly charged the jury and that he abused his discretion in granting a 12-day
recess during the jury trial.
We reject all the assignments of error as meritless, and we affirm the rulings of the district
judge and the verdict of the jury.
1. The Facts.
On July 25, 1966, Laura D. Laack Bortoli was driving her car north on South Carson
Street in Carson City. Her sister, Madlyn Laack, was sitting next to Laura, and she was
holding their toy poodle, who often accompanied the sisters on their outings. Without
warning, the poodle leaped from Madlyn's arms into Laura's lap. Laura swerved the car,
striking the rear side of a car preceding her in the adjoining right lane, driven by Claire
Sheeketski. The two vehicles stopped. Laura inquired of Claire's condition and apologized for
the accident. Laura was cited for following the Sheeketski vehicle too closely and paid a $10
fine. The Sheeketskis then filed suit against Laura, seeking $50,000 general damages plus
special damages to be proved at trial for alleged injuries suffered by Claire and $25,000
general damages for Claire's husband, Joseph. The jury trial commenced on July 9, 1969. At
the close of all the evidence, the Sheeketskis moved for a directed verdict on the question of
liability. The court reserved ruling on this motion and recessed the trial for 12 days. The trial
resumed on July 23, 1969. The court denied the motion for a directed verdict, and the jury
returned a defendant's verdict in favor of Laura. Thereafter, the Sheeketskis moved for a
judgment notwithstanding the verdict or alternatively for a new trial, which motions the
district judge denied.
2. The Judgment Notwithstanding the Verdict.
The standards for granting a motion for judgment notwithstanding the verdict are the same
as those for granting a directed verdict. Misty Mgt. Corp. v. First Judicial Dist. Court, 83
Nev. 253, 257, 428 P.2d 196, 198 (1967); 2B Barron & Holtzoff, Federal Practice &
Procedure, 1079 at 412 (1961). This court set the standard in Bliss v. DePrang, 81 Nev.
599, 601, 602, 407 P.2d 726, 727, 728 (1965):
When such a motion [for directed verdict] is presented, the trial court must view the
evidence and all inferences most favorably to the party against whom the motion is made. On
review, this court must apply the same standard. [Citations.]
. . .
. . . If the facts are disputed or if reasonable men could draw different inferences from the
facts, the question is one of fact for the jury and not one of law for the court.
See also Nichter v. Edmiston, 81 Nev. 606, 407 P.2d 721 (1965); Kline v. Robinson, 83
Nev. 244, 428 P.2d 190 (1967).
[Headnote 1]
Thus, a directed verdict or judgment notwithstanding the verdict is permissible only when
all reasonable inferences from the facts presented to the jury favor the moving party.
[Headnote 2]
The question of Laura's negligence was properly presented to the jury. The poodle had
often accompanied the sisters in their vehicle. These trips had been uneventful. The jurors
could draw their own inferences regarding the presence of the poodle and whether such
constituted negligence on Laura's part. The district judge properly denied the motion for
judgment notwithstanding the verdict.
3. The Motion for a New Trial.
[Headnote 3]
Appellants urge that the jurors manifestly disregarded the court's instructions, because they
deliberated only 75 minutes before returning a verdict. Appellants urge that the jurors did not
have sufficient time to consider fully all the instructions and to consult with one another.
Such a claim is wholly meritless and requires no further comment. The district judge properly
denied the motion for a new trial.
4. The Instructions.
[Headnote 4]
A. The district judge gave the mere accident instruction,
1
which was proper, since the
instruction fitted the facts of the case.
[Headnotes 5, 6]
B. The district judge also gave a res ipsa loquitur instruction.
2
This instruction was
offered by the appellants, although it was unnecessary, because the accident was explained by
the evidence. A res ipsa loquitur instruction is appropriate only when the specific acts that
cause the injury are unknown to the plaintiff. See Nekuda v. Allis-Chalmers Mfg. Co., 121
N.W.2d 819 (Neb. 1963); Las Vegas Hospital Ass'n v. Gaffney, 64 Nev. 225, 180 P.2d 594
(1947); W. Prosser, Law of Torts, 39 at 218 (3d ed. 1964). Appellants complain, however,
that, although the giving of the mere accident instruction may not have been improper
standing alone, it became an improper instruction when the judge gave the res ipsa loquitur
instruction, because there is an inconsistency in the two instructions. Since appellants offered
the res ipsa loquitur instruction that should not have been given, appellants may not now
complain of any such inconsistency, because appellants invited the error.
____________________

1
Instruction No. 24:
The mere fact that an accident happened, considered alone, does not support an inference that some party,
or any party, to this action was negligent.

2
Instruction No. 17:
It is a rule of law that negligence may be established without proof of specific acts or omissions. This is
based on a special doctrine of the law which may be applied only under special circumstances, they being as
follows:
First: The fact that some certain instrumentality by which injury to the plaintiff was proximately caused, was
in the possession and under the exclusive control of the defendant at the time the cause of injury was set in
motion; it appearing on the face of the event that the injury was caused by some act or omission incident to
defendant's management.
Second: The fact that the accident was one of such nature as does not happen in the ordinary course of
things, if those who have control of the instrumentality use ordinary care.
Third: The fact that the circumstances surrounding the causing of the accident were such that the plaintiff is
not in a position to know what specific conduct was the cause, whereas the one in charge of the instrumentality
may reasonably be expected to know and be able to explain how the accident was caused, or at least be able to
show that no failure of duty on his part was a cause.
C. Appellants next urge that the district judge erred in refusing to give an efficient
intervening cause instruction, which appellants offered.
3
Frankly, we have a difficult time
with the transition of appellants' argument. Normally, a plaintiff tries to show by the evidence
that it is defendant's negligence that caused the injuries complained of. It is difficult to fathom
how a plaintiff could assign error to a judge's refusal to give an instruction that, if given and
followed by the jury, would preclude plaintiff's recovery and result in a defense verdict.
4

5. The 12-Day Recess.
[Headnote 7]
Appellants contend that they were prejudiced by the 12-day recess of the trial after the
completion of their case in chief. They fail to show any prejudice, and they cite no authority
for their complaint that the district judge abused his discretion by granting the recess. While it
is desirable that trials, once commenced, particularly jury trials, continue without
interruption, which is the general practice, we fail to find any prejudice to either party in the
instant case.
We affirm the rulings of the district judge, and the jury verdict, in favor of the respondents.
Collins, C. J., Zenoff and Thompson, JJ., and Wilkes, D. J., concur.
____________________

3
Appellants' proposed Instruction No. 5:
An efficient intervening cause which would be sufficient to break the chain of natural consequences
producing the injury complained of must occur after the negligent act complained of and before the injury
complained of. That is, in order to have such an intervening cause, the party asserting that cause must show that
the cause supersedes a prior negligent act as the proximate cause of the injury by breaking the sequence between
the prior wrong and the injury.
In addition, the person asserting an intervening cause must show that the intervention of a new and
independent cause was neither anticipated nor reasonably foreseeable by the person.
If the intervening or efficient cause is not a superseding cause, negligence may be established even though
the intervening cause contributes to the injury for the reason that negligence is a concurrent cause of the injury
complained of.

4
If the appellants-plaintiffs tried to prove that the dog was an intervening cause, then the
respondent-defendant would not be liable.
____________
86 Nev. 709, 709 (1970) Lear v. Bishop
WILLIAM LEAR, Appellant, v. C. H. BISHOP and W. O. BRADLEY, dba C-B RANCH
COMPANY, Respondents.
No. 6132
October 28, 1970 476 P.2d 18
Appeal from judgment of the Second Judicial District Court, Washoe County; John F.
Sexton, Judge.
Vendor brought action to compel specific performance of informal contract to purchase
land. The district court decreed performance, and prospective purchaser appealed. The
Supreme Court, Thompson, J., held that where disclosed principal had vast property holdings
and many business enterprises and where dealings of principal's agent were incidental to his
position as general manager of one of the enterprises and were relied upon in good faith by
other parties to proposed land transaction, disclosed principal was liable for acts done by
general agent on principal's account which indicated that principal would participate in
transaction, and that vendor was entitled to specific performance.
Affirmed.
Barry & Hall, of Reno, for Appellant.
Bradley & Drendel, of Reno, for Respondents.
Where disclosed principal had vast property holdings and many business enterprises and where dealings
of principal's agent were incidental to his position as general manager of one of the enterprises and were
relied upon in good faith by other parties to proposed land transaction, disclosed principal was liable for
acts done by general agent on principal's account which indicated that principal would participate in
transaction.
Where informal contract concerning sale of land was memorialized by escrow instructions prepared by
purchaser's attorney at direction of purchaser's general manager, where instructions were signed by vendor
and where all essential terms of transaction were expressed with certainty, vendor's action for specific
performance of contract was not barred by statute of frauds. NRS 111.210.
3. Specific Performance.
Where prospective purchaser's participation in land transaction was contingent upon classification of land
for exchange purposes by State Director of Bureau of Land Management, where Director proposed to
classify land in accordance with purchaser's request but where purchaser refused to submit required formal
application which frustrated classification, agreed exchange could be guaranteed
with substantial certainty to both parties and specific performance was not outlawed
as an appropriate remedy to vendor by fact that proposed purchaser had no control
over classification of land.
86 Nev. 709, 710 (1970) Lear v. Bishop
application which frustrated classification, agreed exchange could be guaranteed with substantial certainty
to both parties and specific performance was not outlawed as an appropriate remedy to vendor by fact that
proposed purchaser had no control over classification of land.
4. Estoppel.
Although doctrine of promissory estoppel is limited to cases in which action in reliance is on part of
promisee, an intended third-party beneficiary should similarly be protected if its reliance was likewise
foreseeable.
5. Specific Performance.
Where prospective purchaser's general manager had orally promised to state agency to participate in
purchase of vendor's land, where promise was made for benefit of state agency and for benefit of
prospective vendor and where terms of prospective purchaser's participation were eventually memorialized
by escrow instructions prepared by purchaser's counsel and accepted by vendor, vendor's reliance upon
promise in changing its position was foreseeable and reasonable and vendor was entitled to specific
performance of the informal contract to purchase land.
OPINION
This is an action by C. H. Bishop and W. O. Bradley, dba C-B Ranch Company, seller, to
compel William Lear, buyer, to specifically perform an informal contract to purchase land.
The district court decreed performance and this appeal followed.
The genesis of this controversy was a friendly deer hunting trip enjoyed by Joseph Frost,
the general manager of Lear's Reno Properties, and Frank Groves, Director of the Nevada
Department of Fish and Game. They discussed generally the possibility of a land exchange.
William Lear, Frost's employer, wished to acquire 360 acres of land owned by the United
States near Stead Air Base, Washoe County. The Department of Fish and Game wanted land
owned by C-B Ranch Company in White Pine County. The general plan was for Lear and
Fish and Game to buy the White Pine land from C-B Ranch after which Lear would exchange
the part he had purchased for the Washoe County land, assuming that the latter property
would, upon proper application, be classified for exchange purposes. It was not then so
classified. Lear's participation in the White Pine purchase was thought to be essential since
Fish and Game did not have sufficient funds of its own, and Frost assured Groves that Lear
would participate. This preliminary conversation sparked the following occurrences.
86 Nev. 709, 711 (1970) Lear v. Bishop
On November 12, 1968, the C-B Ranch offered to sell to Fish and Game about 2,640 acres
of White Pine land for $300,000. The offer was to remain open until December 15, 1968. Of
that amount, $125,000 was to be supplied by Lear and a portion of the land was to be deeded
to him for exchange purposes. That such was Lear's purpose is evidenced by an interoffice
memorandum dated November 13, 1968 from general manager Frost advising that he had
worked out a complicated interchange whereby you would buy C-B Ranch property and
trade it to BLM for 360 acres of land near Stead in Washoe County. Moreover, on
November 22, 1968, Frost, on behalf of Lear, met with the president of the Valley Bank of
Nevada and requested a loan commitment for $125,000 to purchase 360 acres of government
land. His application therefor was accompanied by Lear's personal financial statement, a legal
description of the Washoe County property, and maps. Within a week a firm oral
commitment to loan Lear that sum was made by the bank.
In reliance upon Lear's participation, the Fish and Game accepted the C-B Ranch offer on
December 9, 1968 and Frost, Lear's general manager, was so notified. Eight days later, Frost,
on behalf of Lear, wrote the Bureau of Land Management for the purpose of commencing
proceedings looking towards classification and exchange of certain lands in White Pine
County to be acquired for certain lands in Washoe County, and requested the Bureau to
proceed. By the end of December appraisals of the properties to be exchanged were made and
submitted to the BLM.
In consequence of the foregoing an escrow was opened with C-B Ranch as seller and Fish
and Game as purchaser. Since time was required for BLM to effectuate the exchange
classification which was a condition of Lear's participation, Lear was not made a party to this
escrow. Instead, the purchase price was reduced by $125,000 and less acreage was transferred
reflecting the exclusion of the land Lear was to receive. The C-B Ranch-Fish and Game
escrow was consummated and closed on January 2, 1969.
On the following day two new escrows were opened to conclude the balance of the
transaction. The first, between C-B Ranch and Lear, and the second, between Lear and the
BLM. In the first escrow the C-B Ranch deposited its deed to Lear for the balance of the
White Pine property excluded from the sale to Fish and Game. The instructions for the C-B
Ranch-Lear escrow were prepared by Lear's attorney after conferences with general manager
Frost, submitted to W. O. Bradley of the C-B Ranch and signed by him.
86 Nev. 709, 712 (1970) Lear v. Bishop
of the C-B Ranch and signed by him. Lear thereafter declined to sign.
Subsequently, the state director of the BLM issued his proposed decision to classify the
Washoe County property for exchange purposes, subject to formal application therefor by
Lear. Lear never submitted such application. Hence, this law suit.
The several transactions to which we have referred were undertaken in reliance upon the
representations of Lear's general manager that Lear would participate in acquiring the C-B
Ranch lands. At least the trial court so found, and substantial evidence supports that finding.
All commitments, the Fish and Game to C-B Ranch, C-B Ranch to Fish and Game and to
Lear, the Valley Bank to Lear, and the proposed decision of the Bureau of Land Management
to classify the Washoe County land for exchange purposes, were made at the request of Lear's
general manager and in reliance upon his authority to act for Lear and to bind him. There is
not the slightest suggestion that Lear would not complete the bargain, until the final moment
when his signature was sought and others had already altered their positions upon the
assumption that it would be forthcoming.
Notwithstanding these circumstances, the appellant-Lear contends that neither he, nor
anyone on his behalf contracted with the C-B Ranch, orally or in writing. He points to the
acknowledged fact that his general manager Frost never conversed with either partner of the
C-B Ranch until after the Ranch had sold a portion of its lands to Fish and Game. In short, he
acknowledges his general intention to participate in the transaction but disavows a binding
commitment to do so. He argues that his general manager was without authority to bind him;
that if an oral commitment was made by his manager the statute of frauds precludes relief;
and, in any event, specific performance cannot be decreed within the context of this case. We
turn to resolve these issues.
[Headnote 1]
1. We reject out-of-hand the contention that Lear's general manager was without authority
to bind him. The record shows that Lear has vast property holdings and many business
enterprises. Commercial convenience requires him to act through representatives with
authority to conduct his affairs. The dealings of Frost were incidental to his position as
general manager of Lear's Reno Properties and were relied upon in good faith. In these
circumstances Lear, as a disclosed principal, is liable for acts done by his general agent on his
account. Rest.
86 Nev. 709, 713 (1970) Lear v. Bishop
Agency 2d 161 (1957);
1
Hartley v. United Mine Workers, 113 A.2d 239 (Pa. 1955).
[Headnote 2]
2. Equally without substance is the contention that the statute of frauds bars relief. NRS
111.210 voids every contract for the sale of land unless the contract, or some note or
memorandum thereof, expressing the consideration, be in writing, and be subscribed by the
party . . . by whom the sale is to be made. The informal contract concerning the C-B Ranch
sale of some of the White Pine land to Lear was memorialized by escrow instructions
prepared by Lear's attorney at the direction of Lear's general manager. Indeed, the initial
instructions prepared by the title company were not in acceptable form to Lear. His counsel
revised them per direction and submitted them to the seller who signed without objection. All
essential terms were expressed with certainty. The requirements of the statute of frauds were
met in every respect.
[Headnote 3]
3. Lear urges that specific performance should not have been decreed since his
participation was contingent upon classification of the Washoe County land for exchange
purposes, a contingency over which he had no control. Kowalchuk v. Hall, 80 Nev. 3, 388
P.2d 201 (1964). Had the State Director of the Bureau of Land Management ruled that the
Washoe County land was not suitable for exchange classification, this contention would carry
weight. However, he ruled to the contrary. His proposed decision was to classify the Washoe
County land in accordance with Lear's request. Final processing required Lear to submit a
formal application which he declined to do. The record may be read to show that Lear's
refusal to so apply frustrated classification. Thus, we conclude that the agreed exchange may
be guaranteed with substantial certainty to both parties and specific performance is not
outlawed as an appropriate remedy. Harmon v. Tanner Motor Tours, 79 Nev. 4, 19, 377 P.2d
622 (1963).
[Headnotes 4, 5]
4. The oral promise of Lear's general manager to participate in the purchase of the White
Pine land owned by C-B Ranch was made to Fish and Game for its benefit and for the
benefit of C-B Ranch as well.
____________________

1
Section 161 reads: A general agent for a disclosed or partially disclosed principal subjects his principal to
liability for acts done on his account which usually accompany or are incidental to transactions which the agent
is authorized to conduct if, although they are forbidden by the principal, the other party reasonably believes that
the agent is authorized to do them and has no notice that he is not so authorized.
86 Nev. 709, 714 (1970) Lear v. Bishop
Ranch was made to Fish and Game for its benefit and for the benefit of C-B Ranch as well.
The C-B Ranch was made aware of that promise, relied upon it and changed its position by
severing its ranch property. Reliance by the Ranch was foreseeable and reasonable. Cf.
American Savings & Loan v. Stanton-Cudahy, 85 Nev. 350, 455 P.2d 39 (1969); Rest.
Contracts 90 (1932). Although the doctrine or promissory estoppel expressed in Section 90
and applied in American Savings, supra, is limited to cases in which the action in reliance is
on the part of the promisee (Fish and Game), an intended third party beneficiary (C-B Ranch)
should similarly be protected if its reliance was likewise foreseeable. Vol. 1A, Corbin on
Contracts 200, p. 219; Burgess v. California Mutual Bldg. and Loan Ass'n, 290 P. 1029
(Cal. 1930). Here, the terms of Lear's participation were eventually memorialized by escrow
instructions prepared by Lear's counsel and accepted by the C-B Ranch. An injustice can be
avoided only by forcing Lear to honor the promise of his general manager.
Affirmed.
____________
86 Nev. 714, 714 (1970) Godfrey v. Gilsdorf
MELVIN GODFREY, Appellant, v. GARY L. GILS-
DORF, Respondent.
No. 6148
October 28, 1970 476 P.2d 3
Compton, Judge.
Seller's replevin action against buyer, for possession of automobile. A ruling of the district
court generally placed upon the plaintiff seller the loss from sale made by a dealer. The seller
appealed. The Supreme Court, Thompson, J., held that where the seller placed the automobile
with the corporate dealer for sale, he empowered the dealer to transfer the seller's rights to the
buyer in the ordinary course of business, though the seller removed the license plates and
registration certificate, and where the dealer sold without accounting to the seller and then
quit business, the seller was estopped to assert title as against a buyer in good faith for value
and without notice. The Court also held, however, that the buyer, having been found to
have been the owner of the automobile while he was using it, should not have been
charged with rental value thereof.
Court also held, however, that the buyer, having been found to have been the owner of the
automobile while he was using it, should not have been charged with rental value thereof.
Peter L. Flangas, of Las Vegas, for Appellant.
Parraguirre, Rose, Pico & Norwood and Allan R. Earl, of Las Vegas, for Respondent.
1. Statutes.
Relevant licensing and registration provisions of Vehicle Code and entrustment provisions of Uniform
Commercial Code could exist side by side with meaning given to each and without doing violence to either,
and it was court's duty to so construe them. NRS 104.1201, subd. 9, 104.2103, subd. 1(d), 104.2403,
subds. 2, 3, 104.9307, 482.215, 482.400, 482.426.
2. Estoppel.
Where seller of automobile placed automobile with corporate dealer for sale, he empowered dealer to
transfer his rights to buyer in ordinary course of business within entrustment provisions of Uniform
Commercial Code, though seller removed license plates and registration certificate, and where dealer sold
without accounting to seller and then quit business, seller was estopped to assert title as against buyer in
good faith for value and without notice. NRS 104.1201, subd. 9, 104.2103, subd. 1(d), 104.2403, subds.
2, 3, 104.9307, 482.400, 482.426.
3. Replevin.
In replevin action, judgment must be in alternative, i.e., for return of property or its value in case return
cannot be had, and prevailing party does not have option to take judgment for value of property absolutely.
NRS 17.120.
4. Replevin.
Where defendant in replevin suit for automobile was entitled to judgment on his counterclaim for transfer
of title to him, judgment should have been an alternative one, and not one which sought merely to give him
value of automobile. NRS 17.120.
Where judgment in favor of defendant on his counterclaim in replevin action was erroneous in that it was
not alternative judgment but merely sought to give him value of automobile, but no error as to form of
judgment was asserted, reviewing court would not disturb matter.
6. Replevin.
Where defendant was entitled to judgment on his counterclaim in replevin action, and apparently was
content to recover value instead of automobile itself, judgment should have been entered for him in amount
of stipulated value, and it was error to reduce such sum by rental value of automobile during time while
defendant used it, court having found that defendant owned it.
defendant used it, court having found that defendant owned it. NRS 17.120.
OPINION
This case involves the interplay between our motor vehicle licensing and registration law
and the entrustment provisions of the Uniform Commercial Code. As will be seen, each party,
seller and buyer, acted in good faith. Each is innocent of any wrongdoing. Unfortunately, one
of them must sustain a loss due to an unprincipled used car dealer. The thrust of the ruling
below placed that loss upon the seller, a determination with which we agree. However, other
aspects of the judgment are incorrect and must be adjusted to conform with established law.
This is a replevin action to recover possession of a used automobile. It was commenced by
the seller, Godfrey, against the buyer, Gilsdorf, who had purchased the vehicle from a used
car dealer to whom the seller had entrusted it for sale. The facts are stipulated. Godfrey was
the registered owner of a 1967 Toyota. The legal owner was Commercial Credit Corporation
who held title as security for the balance ($1,187.03) of a debt owing it by Godfrey. Godfrey
removed the license plates and certificate of registration from the car and delivered the
vehicle for sale to a used car dealer, Auto Center. Gilsdorf saw the car at Auto Center and
arranged to buy it. He made a down payment of $300, signed a car purchase order, and
received possession of the Toyota to which was affixed the pink copy of the statutory Dealer's
Report of Sale. He then borrowed $1,600 from Allstate Credit Corporation, gave a chattel
mortgage as security, and inquired of Allstate whether he should get the title certificate.
Allstate advised him not to worry about it since Auto Center would mail the certificate to
Allstate directly. Gilsdorf then delivered Allstate's draft for $1,600 to Auto Center together
with his personal check for $726.50 and received in return the green copy of Dealer's Report
of Sale. He submitted the latter document to the Motor Vehicle Department and was issued
license plates and a registration certificate as allowed by NRS 482.400(2) and 482.215.
Meanwhile, Godfrey noticed that his car was not on the Auto Center lot and made inquiry.
He was told that the car was sold and payment would be forthcoming when the check cleared
the bank. The money was never paid him. Auto Center ceased doing business.
ceased doing business. Several weeks later Godfrey paid his debt to Commercial Credit
($1,187.03) and received the title certificate to the Toyota. The value of the car when
delivered to Auto Center was $2,550 and its reasonable rental value was $150 per month.
When this replevin action was commenced Godfrey obtained possession of the car by
resort to the provisional remedy of claim and delivery. NRS 31.840 et seq. Gilsdorf, the
defendant, had used the car for eight months. The complaint requested alternative relief,
delivery of the car or its value in case delivery could not be had, and damages for its unlawful
detention. NRS 17.120; Ex parte Havas, 78 Nev. 237, 371 P.2d 30 (1962). Gilsdorf, by
counterclaim, sought to compel Godfrey to transfer the title certificate to him.
The seller, Godfrey, plaintiff below and appellant here, insists that title to a motor vehicle
can only be transferred in accordance with the motor vehicle licensing and registration law,
and not otherwise. That law requires the legal owner (in this instance Commercial Credit
Corporation) and the transferee (Allstate Credit Corporation who financed a major portion of
the purchase for Gilsdorf) to write their signatures with pen and ink upon the certificate of
ownership issued for such vehicle, together with the residence address of the transferee in the
appropriate places provided upon the reverse side of the certificate. NRS 482.400.
Thereafter, one of them must deliver the certificate of title to the Department of Motor
Vehicles. NRS 482.426. Since the purpose of the statute is to provide a fast and simple way
to determine ownership and to prevent fraud and theft, strict compliance is essential.
Exceptions should not be allowed, for to do so would frustrate the realization of an important
legislative purpose and policy. This contention carries considerable force and may not lightly
be cast aside.
On the other hand, the buyer Gilsdorf, defendant below and respondent here, urges that the
entrustment provisions of the Uniform Commercial Code, NRS 104.2403(2)(3) create an
estoppel against the seller to assert title to the car. Moreover, he argues that the buyer, in
these circumstances, acquired the automobile free of the security interest of Commercial
Credit Corporation. NRS 104.9307. In persuasive fashion he presses the following. The seller
entrusted his car to a merchant who deals in cars and, in the words of the U.C.C. gave him
the power to transfer all rights of the entrustor to a buyer in the ordinary course of business.
NRS 104.2403(2). Gilsdorf was a buyer in the ordinary course of business. NRS 104.
104. 1201(9). He bought a used car from a person in the business of selling used cars, and
bought it in good faith without knowledge of the ownership rights of a third party,
Commercial Credit Corporation. He arranged immediate financing for the car and paid cash
to the dealer. He inquired as to title and was assured by the dealer and by Allstate who
financed the purchase for him, that title would be taken care of by having the dealer send it to
Allstate. He had the car registered in his name and paid for the license plates. Finally, the
buyer stresses the fact that the seller set in motion the chain of events which led to the sale of
the car and should bear the loss incurred from the misconduct of the dealer whom he selected.
We turn to resolve these opposing views.
[Headnote 1]
1. The licensing and registration provisions of the vehicle code are essentially police
regulations and strict compliance with them appears to be the prevailing view. State v. Glenn,
423 S.W.2d 770 (Mo. 1968). The underlying policy and purpose of that regulatory scheme are
best promoted by such a view. It does not follow, however, that those purposes are subverted
by the application of an estoppel theory to a business transaction falling within the
entrustment provisions of the U.C.C.
1
As we see it, the relevant provisions of the two codes
can exist side by side with meaning given to each and without doing violence to either, and
we should so construe them. Bodine v. Stinson, 85 Nev. 657, 461 P.2d 868 (1969).
[Headnote 2]
When the used car dealer sold the Toyota to Gilsdorf, the Commercial Credit Corporation
enjoyed a perfected security interest in that vehicle, to-wit, legal title. At that point, the
purchaser, under the entrustment provisions of NRS 104.2403(2), acquired only the rights of
the entruster-seller subject to the security interest of Commercial Credit. At least, such
appears to be the case if we look only to 104.2403(2). However, sections of the U.C.C. found
elsewhere, particularly 104.2103(d) defining seller, and 104.9307 of article 9,
____________________

1
Before the adoption of the U.C.C. in Nevada, this court ruled that the delivery of a car to a dealer in used
cars without delivery of the title certificate creates no estoppel. Commercial Credit Corp. v. Smith, 76 Nev. 345,
353 P.2d 905 (1960). Without deciding whether the U.C.C. nullifies the holding of that case may be
construed to mean that upon the facts there present, it is clear that the decision is irrelevant to the case at
hand. There, the purchaser, Commercial Credit, was not a purchaser in the ordinary course of business and could
not qualify as such either under the Uniform Sales Act then operative, or the U.C.C. now in effect.
may be construed to mean that the buyer took the car free of the perfected security interest of
Commercial Credit. We need not resolve this problem in the case at hand since the seller,
Godfrey, paid off his debt to Commercial Credit, and acquired the ownership certificate
before filing suit. Thus, we are concerned only with the propriety of applying an estoppel
against the seller to achieve the purposes of 104.2403(2)(3).
Illinois estopped the seller and protected the buyer in similar circumstances, and placed its
decision mainly upon the entrustment provisions of the U.C.C. Humphrey Cadillac &
Oldsmobile Co. v. Sinard, 229 N.E.2d 365 (Ill.App. 1967). Oklahoma agrees. Medico
Leasing Co. v. Smith, 457 P.2d 548 (1969).
In summary, we find, as did the court below, that Godfrey entrusted his car to a merchant
who deals in cars. The merchant was empowered to transfer Godfrey's rights to a buyer in the
ordinary course of business and did so. We conclude that the principle of estoppel precludes
Godfrey from asserting his later acquired title against Gilsdorf who purchased in good faith,
for value and without notice of the then existing security interest of Commercial Credit
Corporation.
[Headnote 3]
2. In a replevin action the judgment must be in the alternative, that is, for the return of the
property or its value in case a return cannot be had. NRS 17.120; Ex parte Havas, 78 Nev.
237, 371 P.2d 30 (1962). The prevailing party does not have the option to take judgment for
the value of the property absolutely. Lambert v. McFarland, 2 Nev. 58 (1866).
[Headnotes 4, 5]
The judgment entered below for the defendant-buyer upon his counterclaim was not an
alternative judgment, but merely sought to give him the value of the car. This was error.
However, this error was not assigned on the buyer's cross-appeal from the judgment, nor by
the seller in his appeal therefrom. Apparently the seller wishes to retain the car which he
secured by the provisional remedy of claim and delivery, and the buyer is content to recover
the value instead of the car itself. Since error as to the form of the judgment was not asserted
we shall not disturb the matter.
[Headnote 6]
The stipulated value of the car was $2,550, and judgment should have been entered for the
defendant in that amount. However, the court erroneously reduced that sum by the rental
value of the car during the eight months when the defendant used it.
value of the car during the eight months when the defendant used it. Since the court found
that the defendant owned the car there was no basis for charging him with the rental value
thereof. In this regard, the judgment is modified with direction to enter an amended judgment
in accordance herewith.
____________
86 Nev. 720, 720 (1970) Phillips v. State
NEIL PHILLIPS, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 6104
October 29, 1970 475 P.2d 671
Appeal from a jury conviction of first degree murder and sentence of life imprisonment
without possibility of parole. Fourth Judicial District Court, Elko County; George F. Wright,
Judge.
The Supreme Court, Zenoff, J., held that under circumstances giving of erroneous
instruction that killing of deceased named in indictment and information by defendant being
proved, burden of proving circumstances in mitigation, or that justify or excuse the homicide,
will devolve on accused was harmless.
Affirmed.
Paul A. Bible, of Reno, for Appellant.
Harvey Dickerson, Attorney General, and Mark C. Scott, Jr., District Attorney, Elko
1. Criminal Law.
Insanity is an affirmative proposition which defendant must establish by preponderance of proof; sanity is
not element of crime of murder which must be proven by state.
2. Criminal Law.
It is error even to intimate to jury that any burden of persuasion rests upon defendant on trial of general
issue of guilt or innocence in criminal proceeding.
3. Homicide.
Where jury was justified in making finding of first degree rather than second degree murder, giving of
erroneous instruction that killing of deceased named in indictment and information by
defendant being proved, burden of proving circumstances of mitigation, or that
justify or excuse the homicide, will devolve on accused was harmless.
that killing of deceased named in indictment and information by defendant being proved, burden of proving
circumstances of mitigation, or that justify or excuse the homicide, will devolve on accused was harmless.
NRS 200.170.
OPINION
Neil Phillips was convicted by a jury of first degree murder and sentenced to life
imprisonment without possibility of parole.
On December 26, 1968 the body of John Russell Blair was found on the mountainside at
Doby Summit, Elko County, with three bullet wounds behind his ear. That same day, after a
two-day session of drinking, Phillips told his brother that he had shot a man earlier that
morning and dumped his body on Doby Summit. Later, he related the same to his
sister-in-law and his wife, who also resided in the vicinity. His story to his wife, brother and
sister-in-law was essentially the same, that while coming off his drinking bout Phillips was
driving toward Elko when he noticed two men standing beside a parked car. He stopped to
render aid and agreed to take one of the men, Blair, to Elko. Blair began pressing Phillips to
take him to Salt Lake City, which Phillips refused to do. Blair then placed both hands on the
dashboard of the truck near a knife Phillips had sitting there. When he did that Phillips
reached to the floor, picked up a pistol that had once belonged to his father and shot Blair in
the head three times. The bullet wounds were the cause of death but Blair had also been
emasculated. Phillips further told them that he returned to awareness on the drive back to
Elko alone in the car and that he then discovered he was holding fragments of testicles in his
hand which he threw out of the window.
Phillips entered a plea of not guilty by reason of insanity. He did not testify at the trial nor
was any other evidence introduced in his defense except the testimony of Dr. Gutsell, a
psychiatrist. Although the doctor asserted that Phillips was insane, that declaration was
founded only in the doctor's belief that anyone who committed such a crime must be
insane. He did not have an opinion as to whether Phillips knew the difference between right
and wrong at the time of the offense. He did find that Phillips was capable of assisting in his
own defense.
1. Only one issue of the three presented on this appeal merits serious consideration.
merits serious consideration. A clerical omission in one jury instruction does not bear upon
the outcome. The jury could not have been confused by it because of other instructions clearly
describing the burden of proof on the issue of insanity.
[Headnote 1]
2. Whether sanity is an element of the crime of murder which must be proven by the state
is a question that has been well-settled. Insanity is an affirmative proposition which the
defendant must establish by a preponderance of proof. Gallegos v. State, 84 Nev. 608, 446
P.2d 656 (1968). Appellant is in error when he asserts that In re Winship, 397 U.S. 358
(1970), recently decided, changes that concept.
3. The third issue involves the giving of an instruction that was expressly forbidden by this
court in White v. State, 82 Nev. 304, 417 P.2d 592 (1966), and relates to the only ultimate
question presented by the evidence. The offensive instruction recited NRS 200.170 as
follows:
The killing of the deceased named in the indictment or information by the defendant
being proved, the burden of proving circumstances of mitigation, or that justify or excuse the
homicide, will devolve on the accused, unless the proof on the part of the prosecution
sufficiently manifests that the crime committed only amounts to manslaughter, or that the
accused was justified, or excused in committing the homicide
That instruction given in White v. State, supra, was rejected by this court because of the
confusion it inevitably creates in the minds of the jurors. As stated in White v. State, supra, it
is not to be applied to determine the degree of murder, but only to decide whether the
homicide was murder or manslaughter, or was excusable or justifiable. Yet, the phrase,
circumstances in mitigation, might be interpreted to include circumstances that reduce the
homicide from first degree murder to second degree murder. If the jury so interprets them,
this relieves the state from the burden of proving every element of the crime beyond a
reasonable doubt and shifts it to the defendant. This, of course, is impermissible. White v.
State, supra.
[Headnote 2]
It is error even to intimate to the jury that any burden of persuasion rests upon the
defendant on the trial of the general issue (guilt or innocence). People v. Letourneau, 211
P.2d 865 (Cal. 1949). If the jury is instructed in the words of the statute alone, it may be
misled into construing the phrase, burden of proving the circumstances of mitigation, as
imposing upon the defendant the burden of persuasion and into believing that mitigating
circumstances do not exist unless the defendant proves the existence of such
circumstances upon the preponderance of such evidence.
imposing upon the defendant the burden of persuasion and into believing that mitigating
circumstances do not exist unless the defendant proves the existence of such circumstances
upon the preponderance of such evidence. People v. Deloney, 264 P.2d 532, 538 (Cal. 1953).
Because this court in White v. State, supra, emphatically directed that the words of NRS
175.235 (now NRS 200.170) should never be considered as a jury instruction in a murder
trial, the ignoring of that mandate may well result in reversal. Only in rare instances do we
learn that the giving of such an instruction constitutes harmless error, or is cured. People v.
Letourneau, supra.
The facts of People v. Letourneau, supra, together with a extensive explanatory instruction
given by the court saved that case from reversal, but in People v. Deloney, supra, and the
cases cited in White v. State, supra, the error was irretrievable. The reversal in White v. State,
supra, was for constitutional error. The court was not there required to pass upon the
prejudicial effect, if any, of the condemned instruction. We must now rule on that point
within the context of this record.
[Headnote 3]
The trial court elaborated in other instructions on the jury function of considering all of the
misty factors that distinguish first degree murder from second degree murder. We also note
that this is clearly not a manslaughter case and that all of the facts were presented through the
testimony of the brother, wife and sister-in-law, as well as the coroner and the person who
found the body on the summit. From these facts the jury was fully justified in making the
finding of first degree rather than second degree murder. There was no reason for confusion
from this instruction. Within the circumstances of this case the error was harmless.
In future cases if the circumstances are any less clear than those here, we would certainly
feel warranted in remanding for a new trial despite the factors of time, expense and possible
loss of key witnesses.
Affirmed.
____________
86 Nev. 724, 724 (1970) Mills v. Continental Parking Corp.
VIRGINIA MILLS, Individually and as Guardian ad Litem for SHEILA KENDALL MILLS,
Appellants, v. CONTINENTAL PARKING CORPORATION, Respondent.
No. 6149
October 29, 1970 475 P.2d 673
Appeal from judgment of dismissal of the Second Judicial District Court, Washoe County;
Emile J. Gezelin, Judge.
Death action brought by heirs of pedestrian who was killed by an automobile driven by a
drunken driver against operator of parking lot who surrendered the automobile to the driver
with knowledge of his drunken condition. The district court entered judgment of dismissal
and the pedestrian's heirs appealed. The Supreme Court, Thompson, J., held that bailment
ended when automobile owner appeared at parking lot and reclaimed possession of his
automobile and paid for the parking services, and operator lost right to control the
automobile, and heirs of pedestrian who was killed when struck by the owner's automobile
did not have claim for relief for wrongful death against the operator who surrendered the
automobile to the owner, even though operator had knowledge that the owner was inebriated.
Affirmed.
John Sanchez, of Reno, for Appellants.
Goldwater, Taber, Hill and Mortimer, and Julien G. Sourwine, of Reno, for Respondent.
1. Bailment.
Where parking lot attendant collects a fee, has possession of automobile keys, assumes control of the
automobile and issues ticket to identify the automobile for redelivery, relationship of bailor-bailee is
created.
2. Bailment.
Bailee is duty bound to surrender control of automobile to bailor upon demand or suffer possible penalty
for conversion and thus negligent entrustment theory of tort liability does not apply to normal bailor-bailee
relationship at parking lot.
3. Bailment.
If parking lot operator refuses to return automobile at end of the bailment it is presumed that the
automobile was converted by the operator.
4. Automobiles; Bailment.
Bailment ended when automobile owner appeared at parking lot and reclaimed possession of his
automobile and paid for the parking services and parking lot operator lost right to control the
automobile, and heirs of pedestrian who was killed when struck by the owner's
automobile did not have claim for relief for wrongful death against the operator who
surrendered the automobile to the owner, even though operator had knowledge that
the owner was inebriated.
automobile, and heirs of pedestrian who was killed when struck by the owner's automobile did not have
claim for relief for wrongful death against the operator who surrendered the automobile to the owner, even
though operator had knowledge that the owner was inebriated.
5. Automobiles.
Although negligent entrustment theory may apply where one who has right to control automobile permits
another to use it in circumstances where he knows or should know that such use may create an
unreasonable risk of harm to others, it does not apply when the right to control the automobile is absent.
Where record fails to show that leave of court to amend was requested, plaintiffs would not be heard on
appeal to assert that the trial court erred in refusing leave to amend their complaint. NRCP 15(a).
OPINION
This is an appeal from a Rule 12(b)(5) dismissal for failure of the plaintiffs to state a claim
upon which relief can be granted. The legal issue is whether the heirs of a pedestrian who was
killed by a car driven by a drunken driver have a claim for relief for wrongful death against
the operator of a parking lot who surrendered the car to the inebriate with knowledge of his
drunken condition. We agree with the district court that a claim for relief was not stated and
affirm the dismissal.
The complaint alleges that Donald Lewis bailed his automobile to the Continental Parking
Corporation to be parked on its parking lot; that when Lewis appeared to reclaim possession
of the car he was drunk and the agents of Continental Parking knew it; that Continental
Parking was negligent in entrusting the car to one who was incompetent to drive it.
[Headnotes 1-5]
1. In the situation where the parking lot attendant collects a fee, has possession of the keys,
assumes control of the car and issues a ticket to identify the car for redelivery, the legal
relationship of bailor-bailee is created. Taylor v. Philadelphia Parking Authority, 156 A.2d
525 (Pa. 1959).
1
The negligent entrustment theory of tort liability does not apply to the
normal bailor-bailee relationship since the bailee is duty bound to surrender control of the car
to the bailor upon demand or suffer a possible penalty for conversion. Indeed, if the bailee
refuses to return the car at the end of the bailment it is presumed that the car was
converted by him.
____________________

1
Cases collected at 7 A.L.R.3d 927.
refuses to return the car at the end of the bailment it is presumed that the car was converted by
him. Donlan v. Clark, 23 Nev. 203, 45 P. 1 (1896); Manhattan Fire & Marine Ins. Co. v.
Grand Central Garage, 54 Nev. 147, 9 P.2d 682 (1932), quoting the Donlan case with
approval. Here, the bailment ended when Lewis appeared at the parking lot to reclaim
possession of his car and paid for the parking services. At that moment the bailee lost his
right to control the car. Although the negligent entrustment theory may apply where one who
has the right to control the car permits another to use it in circumstances where he knows or
should know that such use may create an unreasonable risk of harm to others, it does not
apply when the right to control is absent.
2

In Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969), we ruled that the
heirs of pedestrians who were killed by a car driven by a drunken driver did not have a claim
for relief against a tavern keeper who unlawfully sold liquor to the offending driver. The
policy considerations underlying that decision apply to the case at hand. The imposition of
civil liability in the circumstances here alleged would lead to unforeseeable consequences
limited only by the scope of one's imagination. We decline to venture into that wonderland.
[Headnote 6]
2. Although plaintiffs-appellants assert that the district court erred in refusing leave to
amend their complaint, the record fails to show that leave of court to amend was requested.
NRCP 15(a). This claim of error must, therefore, fail.
Affirmed.
____________________

2
Cf. Ex parte Liotard, 47 Nev. 169, 217 P. 960 (1923); cases collected at 19 A.L.R.3d 1175; Rest. Torts 2d
308.
____________
86 Nev. 727, 727 (1970) Old West Enterprises v. Reno Escrow Co.
OLD WEST ENTERPRISES, INC., Appellant, v. RENO
ESCROW COMPANY, Respondent.
No. 6181
October 29, 1970 476 P.2d 1
Appeal from summary judgment by Second Judicial District Court, Washoe County; John
F. Sexton, Judge.
Action by attorney's assignee against client to recover on alleged account stated for legal
services rendered. The district court entered summary judgment in favor of the attorney's
assignee and the client appealed. The Supreme Court, Mowbray, J., held that material issue of
fact as to reasonableness of attorney's fees precluded grant of summary judgment.
Reversed and remanded for trial.
Wilbur H. Sprinkel, of Reno, for Appellant.
Richards & Demetras, of Reno, for Respondent.
1. Judgment.
Trial court may grant summary judgment only when the proofs received show that there is no genuine
issue as to any material fact.
2. Judgment.
Court hearing motion for summary judgment should view evidence most favorable to 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.
3. Account Stated.
Account stated is an agreement based upon prior transactions between the parties with respect to items
composing the account and balance due, if any, in favor of one of the parties, and to effect account stated,
outcome of negotiations must be recognition of sum due from one of the parties to the other with promise,
express or implied, to pay that balance.
4. Account Stated.
Amount of balance agreed upon by parties concerning prior transactions between them with respect to
items composing the account and the balance due, if any, in favor of one of the parties constitutes a new
and independent cause of action.
5. Account Stated.
The genesis of an account stated is the agreement of the parties, express or implied.
6. Account Stated.
To give account rendered the force of account stated because of silence on part of one receiving the
account, circumstances must be such as to support inference of agreement as to correctness of the account;
such inference may be rebutted.
7. Judgment.
Where terms of oral contract between bitterly disputing parties are in issue, trial is only remedy.
8. Account Stated.
The sum due for attorney's services may properly be subject to account stated, but the omission to object
to account rendered raises only rebuttable inference that debtor consents to such account, giving rise to
triable issue; and, in such case, value of professional services rendered and amount thereof unpaid are to be
assessed before jury.
9. Judgment.
Material factual issue as to reasonableness of attorney's fees precluded grant of summary judgment in
attorney's assignee's action against client to recover on alleged account stated for legal services.
OPINION
This is an appeal from an order of the district court granting summary judgment to
respondent-plaintiff, Reno Escrow Company, who had commenced an action against
appellant-defendant, Old West Enterprises, Inc., to recover $6,836.89 on an alleged account
stated for legal services received by Old West over a 5-year period.
1

Reno Escrow filed its complaint in district court on November 17, 1969, and its motion for
summary judgment on December 10, 1969, accompanied by the attorney's supporting
affidavit, which set forth in detail the legal services performed, fees charged, and statements
rendered, to which, affiant claimed, Old West did not object.
Old West answered the complaint on December 15, 1969, and on December 22, 1969,
responded to the motion for summary judgment by filing three counteraffidavits that
challenged the propriety of the charges on the grounds that the $6,836.89 figure was
excessive and that, further, the affiants had, during the period of the billings, questioned the
attorney regarding the propriety, justifiability and excessiveness of the legal charges.
On December 30, 1969, the district judge entered an order granting summary judgment in
favor of Reno Escrow. Hence this appeal.
1. The Summary Judgment.
____________________

1
The attorney who had performed the services had assigned his claim to Reno Escrow Company for
collection.
[Headnotes 1, 2]
This court has ruled that the trial court may grant summary judgment only when the proofs
received show that there is no genuine issue as to any material fact. Zuni Constr. Co. v. Great
Am. Ins. Co., 86 Nev. 364, 468 P.2d 980 (1970). Further, as this court said in Kaminski v.
Woodbury, 85 Nev. 667, 671, 462 P.2d 45, 48 (1969):
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. [Citations omitted.]
The reason for these rules is that a litigant has a right to a trial on the merits of his case
unless there is no genuine issue of fact to be determined by the judge or jury. Short v. Hotel
Riviera, Inc., 79 Nev. 94, 378 P.2d 979 (1963).
2. The Account Stated.
[Headnotes 3-5]
An account stated may be broadly defined as an agreement based upon prior transactions
between the parties with respect to the items composing the account and the balance due, if
any, in favor of one of the parties. To effect an account stated, the outcome of the
negotiations must be the recognition of a sum due from one of the parties to the other with a
promise, express or implied, to pay that balance. The amount or balance so agreed upon
constitutes a new and independent cause of action. The genesis of an account stated is the
agreement of the parties, express or implied.
[Headnotes 6-8]
Reno Escrow argues that implication of acceptance of the account rendered in this case
may be drawn from its retention without objection by Old West.
2
To give an account
rendered the force of an account stated because of silence on the part of the one receiving the
account, the circumstances must be such as to support an inference of agreement as to the
correctness of the account. Such an inference may be rebutted. As the court said in Karnofsky
v. 4548 Main St., Inc., 192 N.Y.S.2d 577 (N.Y.App. 1959), at 582:
Where the terms of an oral contract between bitterly disputing parties are in issue, a trial
is the only remedy. . . .
____________________

2
Although the counteraffidavits tendered by Old West assert that the statements were challenged.
. . . Although a sum due for attorney's services may properly be the subject of an account
stated, the omission to object to an account rendered raises only a rebuttable inference that the
debtor consents to such account, giving rise to a triable issue; . . . In such a case, the value of
the professional services rendered and the amount thereof unpaid are to be assessed before a
jury. . . .
The reason back of the rule is well expressed in Cooper v. Conklin, 189 N.Y.S. 552, 553
(N.Y.App. 1921):
The rule is a just one, and imposes no unreasonable burden upon the attorney. The
underlying reason for the rule is that the relations between attorney and client are so
confidential, and the client relies so fully upon his attorney for the protection of his legal
rights, and is by the nature of their relations so subject to the advice of the attorney, that in all
such contracts the attorney cannot rely upon the face of the agreement itself, but is compelled
by the law to show, in addition thereto, that the contract is fair and reasonable, and that the
client was fully informed of all the facts which enabled him to judge its fairness and
reasonableness.
[Headnote 9]
Since the proofs received present a material factual issue that must be resolved by the trier
of the facts, the order granting summary judgment must be reversed. It is so ordered, and the
case is remanded to the district court for a trial on the merits.
____________
86 Nev. 730, 730 (1970) Barnett v. County of Washoe
PHILLIP BARNETT, Appellant, v. COUNTY OF
WASHOE, STATE OF NEVADA, Respondent.
No. 6129
November 2, 1970 476 P.2d 8
Appeal from Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Owner of grantors' interest in real property on which golf course was situated brought
action against grantee seeking a declaratory judgment decreeing that he had a reversionary
right in and to the real property. The district court rejected the owner's claim and he appealed.
The Supreme Court, Mowbray, J., held that habendum clause providing that deed was made
subject to covenant that the premises should be used and operated for golf and golfing
purposes and that, in the event any use was made of the premises for other or contrary
purposes, title to the premises should revert to grantors was not a condition subsequent
but was a covenant which was satisfied by grantee's operation of the golf course for 34
years and owner had no reversionary interest in the property.
subject to covenant that the premises should be used and operated for golf and golfing
purposes and that, in the event any use was made of the premises for other or contrary
purposes, title to the premises should revert to grantors was not a condition subsequent but
was a covenant which was satisfied by grantee's operation of the golf course for 34 years and
owner had no reversionary interest in the property.
Affirmed.
Barry & Hall, of Reno, for Appellant.
William J. Raggio, District Attorney, and Steve Lane, Deputy District Attorney, Washoe
1. Covenants.
A clause in a deed imposing a restrictive use on the grantee will be considered as a covenant rather than
as a condition subsequent when such can reasonably be done.
2. Deeds.
A condition and restriction in a deed must be interpreted in the light of the deed as a whole in order to
ascertain the interest of the parties.
3. Deeds.
If the meaning of a deed is not clear, court may resort to established rules of construction to aid in the
ascertainment of the grantor's intention by extrinsic means where such intention cannot otherwise be
ascertained.
4. Deeds.
A condition in a deed involving a forfeiture shall be strictly interpreted against the party for whose
benefit it was created particularly when the grantee is a governmental agency.
5. Covenants.
Habendum clause providing that deed of real property was made subject to covenant that premises should
be used and operated for golf and golfing purposes and that, in the event any use was made of the premises
for other or contrary purposes, title to the premises should revert to grantors was not a condition
subsequent but was a covenant which was satisfied by grantee-county which operated golf course on the
premises for 34 years and owner of grantors' interest had no reversionary interest in the property.
OPINION
The narrow issue presented for our consideration on this appeal calls for our interpretation
of the habendum clause set forth in the original deed that conveyed the property known as the
Washoe County Golf Course to Washoe County.
1. The Facts.
In 1935, Messrs. Harlan L. Heward and Leo F. Schmitt and Country Club, Inc., owners of
the property in question, deeded it to the County. The deed contained the following provision:
This deed is made subject to the additional covenant, that the premises hereby conveyed
shall be used and operated for golf and golfing purposes, and that in the event any use is made
of said premises for other or contrary purposes, the title to the premises hereby conveyed shall
revert to the Grantors herein, their heirs and successors, as their respective interest shall then
appear. (Emphasis added.)
The County completed the golf course in 1936. It has been in continuous use since that
time.
On March 31, 1936, Harlan L. Heward conveyed to the corporation, Country Club, Inc.,
(1) all his interest in an adjoining parcel of property (designated Parcel A) that was owned by
Messrs. Heward, Schmitt, and the corporation and (2) his interest in the property upon which
the golf course was situated (designated Parcel B).
In 1940, the appellant-plaintiff, Phillip Barnett, as beneficiary of a deed of trust, acquired
Parcel A by foreclosure. The interest in the Golf Course was inadvertently omitted at that
time, but the deed was corrected in 1953 to reflect the transfer to Barnett of whatever interest
remained in Parcel B. Three years later, in 1943, Mr. Barnett sold Parcel A to Edward P.
Waltz. Twenty-nine years later, in February 1969, Mr. Barnett commenced the present action
in district court seeking a declaratory judgment decreeing that the plaintiff [Barnett] have a
reversionary right in and to the real property [Golf Course] . . . The trial judge rejected
Barnett's claim; hence, this appeal. We agree with the ruling of the district judge, and we
affirm the judgment of the lower court.
2. A Covenant vs. A Condition Subsequent.
[Headnotes 1, 2]
A clause in a deed imposing a restrictive use on the grantee will be considered as a
covenant rather than a condition subsequent when that can reasonably be done. A condition
and restriction must be interpreted in the light of the deed as a whole in order to ascertain the
interest of the parties. Tamalpais Land & Water Co. v. Northwestern Pac. R. R. Co., 167 P.2d
825 (Cal.App. 1946); Rosecrans v. Pacific Elec. Ry. Co., 134 P.2d 245 (Cal. 1943).
[Headnote 3]
If the meaning of the deed is not clear, the court may resort to established rules of
construction to aid in the ascertainment of the grantor's intention by extrinsic means, where
such intention cannot otherwise be ascertained. Davis v. Moore, 387 P.2d 483 (Okla. 1963);
Brown v. Huckabaa, 89 So.2d 180 (Ala. 1956); Koff v. Frank, 194 N.Y.S.2d 753 (N.Y.App.
1959). The district judge did so in the instant case by receiving into evidence the written offer
of the donor-grantor offering the land to the County
1
and the acceptance of that offer as
reflected in the minutes of the Washoe County Commissioners' meeting of May 1, 1935.
2
In
his written decision, the district judge, in commenting on the donor-grantor's offer and its
acceptance by the County, stated:

____________________
March 13th, 1935.

1
Golf Committee of the Reno Chamber of Commerce
Reno, Nevada
City Council of the City of Reno,
Reno, Nevada.
Board of County Commissioners of Washoe County, Nevada,
Reno, Nevada.
Gentlemen:
I hereby offer to donate to you, or to such public agency as you may designate, the West 54.75 acres of
what is known as the Reno Golf Course, as said area is described upon that certain plat which is attached
to and made a part of this letter.
The terms of the offer are as follows:
1. That upon said acreage, together with other available or purchasable acreage, there be constructed an
eighteen hole standard municipal or public golf course.
2. That said golf course be constructed prior to August 1st, 1936.
I state to you that the two parties to whom I have outstanding commitments have approved the making of
this offer and have agreed to join in the execution of any and all necessary conveyances.
As soon as you have acquired other necessary acreage and are prepared to commence construction, I will
place in escrow a gift deed conveying clear title to the described and platted acreage, to such public
corporation or agency as you may designate. (Emphasis supplied.)
Sincerely yours,
HLH:M

2
IT IS FURTHER RESOLVED: That Washoe County accept the offer of Harlan L. Heward donating to
said County 54.75 acres of land to be used for the purpose and subject to the conditions stated in such offer,
dated March 13, 1935, a copy of which is attached hereto annexed.
In his written decision, the district judge, in commenting on the donor-grantor's offer and
its acceptance by the County, stated:
It is noted in passing that neither the letter proposal nor the resolution contained any
reference to any reversionary rights. The language of the offer . . . I will place in escrow a
gift deed conveying clear title to the described and platted acreage . . .' [emphasis added] is
clear and convincing evidence of the intention of all parties concerned. There appears no
other evidence herein which would authorize the duly elected Commissioners at that time to
accept the grant on any other basis than as proposed. The additional language, at most,
appears to be an afterthoughtincluded in case the golf course was not constructed in
accordance with the proposal. Emphasis is on the actual prompt construction of the golf
coursewith use of land as such automatically and necessarily following construction and
being so understood.
The County's acceptance of subject deed was not without assumption of affirmative
obligation, as well as consequent direct benefit which enured to the grantors.
In this connection the Court finds that the County of Washoe has faithfully and fully
performed all the terms and conditions of Deed for more than 30 years without interruption,
developing the subject property to the point where today it is an enviable landmark which has
been used and enjoyed by its rightful beneficiaries, the citizens of Washoe County and the
public at large. The County's full performance of the subject covenant to date, coupled with
every apparent indication of continuous use of the property for golf purposes for an indefinite
period of time, plus continuous expenditure of substantial amounts of public funds to
improve and maintain the property has clearly earned the County the right to clear title to this
property as against Plaintiff's assertion of a mere naked' alleged, reversionary interest.
(Emphasis in original.)
We agree with the ruling of the district judge.
[Headnote 4]
A condition involving a forfeiture shall be strictly interpreted against the party for whose
benefit it was created. As the court said in Gramer v. City of Sacramento, 41 P.2d 543, 545
(Cal. 1935):
. . . . . . Such conditions [conditions subsequent] are not favored in law because they tend
to destroy estates, and no provision in a deed relied on to create a condition subsequent will
be so interpreted, if the language of the provision will bear any other reasonable construction.
. . .'. . .
Particularly is this so when the grantee is a governmental agency. As the court declared in
P C K Properties, Inc. v. City of Cuyahoga Falls, 176 N.E.2d 441, 444 (Ohio App. 1960):
A review of the many leading cases in the various states leads to the conclusion that there
is a common judicial aversion toward the termination of estates or their forfeiture upon the
exercise of rights of re-entry, where the grantor [sic] is a public entity such as a state, county
or municipal corporation. There appears to be an expressed reluctance to hold that either a
determinable fee, or an estate upon condition subsequent, has been created.
A parallel case to the instant one is Savanna School Dist. v. McLeod, 290 P.2d 593, 594
(Cal.App. 1955), where land to be used for a public school was deeded to a school district
with the following habendum clause:
Said land is hereby conveyed to said party of the second part for public school purposes
only, and it is expressly understood and agreed that as a consideration for this conveyance
said party of the second part shall build and maintain a public school building on said land,
and that the title and ownership of said land shall revert to said parties of the first part upon a
failure by said party of the second part to erect and maintain a building thereon to be used
exclusively for public school purposes.' See also Hawe v. Hawe, 406 P.2d 106 (Idaho 1965);
Bornholdt v. Southern Pac. Co., 327 F.2d 18 (9th Cir. 1964); and Alamo School Dist. v.
Jones, 6 Cal.Rptr. 272 (Cal.App. 1960).
Although the word covenant was not used in the Savanna habendum clause, and no
extrinsic evidence, such as the original donor-grantor's offer, was received, as it was in this
case, the California court concluded that a covenant only was intended by the parties and that
the use of said [school] building for said school purposes for a period of forty-five years
constituted a full performance by plaintiff [school district] of all the terms and provisions of
said [the questioned] deed; . . .
[Headnote 5]
In the instant case, the County has continuously operated the Golf Course for 34 years. We
hold that the language of the habendum clause in the deed conveying the property to the
County for a golf course may be reasonably interpreted as a covenant to install and operate a
golf course by the County for the use and enjoyment of the general public; that the
covenant has been met and satisfied; and that therefore the appellant, Barnett, has no
reversionary interest in the Washoe County Golf Course.
for the use and enjoyment of the general public; that the covenant has been met and satisfied;
and that therefore the appellant, Barnett, has no reversionary interest in the Washoe County
Golf Course. The judgment of the district court is affirmed.
____________
86 Nev. 736, 736 (1970) Shuff v. State
HENRY EDMOND SHUFF, Appellant, v. THE
No. 6145
November 2, 1970 476 P.2d 22
Appeal from judgment and sentence of the Eighth Judicial District Court, Clark County;
John F. Mendoza, Judge.
Defendant was convicted in the district court of second degree murder, and he appealed.
The Supreme Court, Batjer, J., held that record supported trial court's determination that
seven-year-old eyewitness was capable of receiving just impressions of facts of crime and of
relating them truly so as to permit her to testify.
Affirmed.
James D. Santini, Public Defender, Robert G. Legakes, Deputy Public Defender, Clark
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, Melvyn T.
Harmon and Addelair D. Guy, Deputy District Attorneys, Clark County, for Respondent.
1. Witnesses.
Age of a child is not determinative of his competency as a witness; rather, it is his ability to comprehend
and truthfully relate the events as he observed them, and age of a witness is but one criterion in
determination of competency. NRS 48.030, subd. 2.
2. Witnesses.
When competency of any witness has been questioned, it is within discretion of trial court to consider
factors relative to qualification and to determine if such person is competent to testify; such discretion
extends likewise to qualifications of a youthful witness. NRS 48.030, subd. 2.
86 Nev. 736, 737 (1970) Shuff v. State
3. Witnesses.
In order to determine competency of a child under ten years of age, trial court must examine child before
permitting him to testify. NRS 48.030, subd. 2.
4. Witnesses.
As respects statute requiring that youthful witness receive just impressions of facts and relate them
truly, witness must relate his impressions with knowledge of difference between the truth and a falsehood
and in light of that knowledge. NRS 48.030, subd. 2.
5. Witnesses.
Record supported trial court's determination that seven-year-old eyewitness to homicide was capable of
receiving just impressions of facts of crime and of relating them truly so as to permit her to testify. NRS
48.030, subd. 2.
6. Witnesses.
Any inconsistencies in testimony of seven-year-old eyewitness were for jury to consider and weigh in
light of all other evidence and did not render her an incompetent witness. NRS 48.030, subd. 2.
7. Criminal Law.
Where it was important in second degree murder prosecution that jury be able to see position of knife in
victim's hand, trial court did not err in admitting colored photograph of victim's right arm though
considerable amount of blood was shown in the photograph.
OPINION
The appellant was found guilty of second degree murder and sentenced to imprisonment
for twenty years.
The state's case rests heavily upon the testimony of Laura Holt, age 7 years, who was an
eye witness, although the appellant testified that he had not seen her at the apartment. From
Miss Holt's testimony it appeared that the victim was making a telephone call when the
appellant entered the apartment. He took the phone away from her and started striking her
with his fist and shoving her toward a couch. The victim was struggling to protect herself and
screaming Stop it. When they reached the couch the appellant pulled a knife from his
pocket and thrust it into the victim's throat.
According to the testimony of the appellant, he went to a neighbor's apartment to pick up
some mail. When he walked into the apartment he found his ex-wife talking on the phone, so
he informed her that he wanted to talk to her about their children. He put his hand on her
shoulder and started to lead her in the direction of the couch when she pulled a pocket knife
and cut his arm.
86 Nev. 736, 738 (1970) Shuff v. State
and cut his arm. In the ensuing struggle for the knife, it was thrust into the left side of her
neck. The appellant further testified that the victim dropped the knife and that he picked it up
and placed it in her hand saying, Ruth, if that is what you want to do is hurt me with a knife,
here, I don't care.; and the victim then crumpled to the floor.
The state introduced into evidence several photographs of the victim and of her wound.
One was a colored photograph.
The appellant contends, that over his objection, (1) the trial court erred when it allowed
Laura Holt to testify on behalf of the state, and (2) when it admitted into evidence the colored
photograph of the victim.
NRS 48.030(2) provides: The following persons cannot be witnesses: Children under 10
years of age who appear incapable of receiving just impressions of the facts respecting which
they are examined, or of relating them truly.
At the trial, the court conducted a voir dire examination of Laura Holt outside the presence
of the jury. At that time counsel for the appellant and the state, as well as the trial judge,
extensively examined Miss Holt with particular emphasis upon her ability to distinguish
between the truth and a falsehood, and her ability to tell the truth. After this examination the
trial judge concluded that the witness was rather intelligent for her age and did comprehend
the nature of the proceeding. He further found that she could differentiate between the truth
and a falsehood, and that she possessed the necessary qualifications to testify truthfully and to
relate her impressions of the events as they occurred.
[Headnote 1]
The age of a child is not determinative of his competency as a witness, but rather it is his
ability to comprehend and truthfully relate the events as he observed them. The age of a
witness is but one criteria in the determination of competency. Scott v. State, 72 Nev. 89, 295
P.2d 391 (1956).
[Headnotes 2, 3]
When the competency of any witness has been questioned, it is within the discretion of the
trial court to consider factors relative to qualification and to determine if such person is
competent to testify. This discretion extends likewise to the qualifications of a youthful
witness. Williams v. State, 78 Nev. 346, 372 P.2d 462 (1962); Terrible v. State, 78 Nev. 159,
370 P.2d 51 (1962). In Martin v. State, 80 Nev. 307, 393 P.2d 141 (1964), this court
announced that in order to determine the competency of a child under 10 years of age the trial
court must examine the child before permitting him to testify.
86 Nev. 736, 739 (1970) Shuff v. State
trial court must examine the child before permitting him to testify.
[Headnote 4]
The appellant contends that Laura Holt should not have been allowed to testify because
she was incapable of receiving just impressions and that she could not relate them accurately.
These contentions are without merit. NRS 48.030(2) requires only that the youthful witness
receive just impressions of the facts and relate them truly. This means that he must relate
his impressions with the knowledge of the difference between the truth and a falsehood, and
in the light of that knowledge.
In Terrible v. State, supra, this court said: In determining whether a child sufficiently can
recollect and narrate, the appellate court is not limited by the voir dire examination, but may
examine the subsequently given testimony. Subsequently given testimony, if clear, relevant,
and coherent, may be used to support the ruling on qualifications.
[Headnote 5]
From the record, it appears that the trial court correctly found that Miss Holt's testimony
was clear, relevant and coherent, and that she was capable of receiving just impressions of the
facts of the crime and of relating them truly.
[Headnote 6]
In an attempt to establish the incompetency of Laura Holt, the appellant relies on what he
claims to be inconsistencies between her testimony at the preliminary examination and at
trial, as well as inconsistencies between her testimony and his testimony. Any inconsistencies
in her testimony were for the jury to consider and weigh in the light of all the other evidence.
As a matter of law the alleged inconsistencies did not render her an incompetent witness.
[Headnote 7]
We now consider the appellant's contention that the trial court erred when it admitted into
evidence a colored photograph of the victim's right arm. His primary objection is to the
considerable amount of blood shown in the photograph, which he contends had a tendency to
inflame the jury. He also asserts that the colored photograph was duplicative and that it was
introduced by the state for the sole purpose of inflaming the minds and passions of the jury.
In his testimony the appellant stated that he placed the knife in the victim's hand before she
crumpled to the floor. It therefore became very important that the jury be able to see the
position of the knife in the victim's hand.
86 Nev. 736, 740 (1970) Shuff v. State
position of the knife in the victim's hand. Although, it is true that a black and white
photograph, in evidence, did show the victim's right arm and hand, it did not picture the knife
with the same clarity found in the colored photograph.
This court was faced with a similar contention in Langley v. State, 84 Nev. 295, 439 P.2d
986 (1968), and it held: During trial photographs of the scene of the crime, the weapon, and
the victim were received into evidence over objection that they would inflame and provoke
passion in the minds and hearts of the jurors. The photos apparently were accurate portrayals.
Since the purpose of trial is to ascertain and disclose the truth we should not declare
inadmissible evidence which is relevant to that purpose and the issues simply because it
damages the defense. The photographs were properly admitted.
In Morford v. State, 80 Nev. 438, 395 P.2d 861 (1964), this court said: In State v. Huff,
14 N.J. 240, 102 A.2d 8, it was held that the fact that the photographs of a murder victim
were in color and hence more revolting and gruesome than they would have been otherwise
was not a ground for their exclusion. We approve this holding.
The location and position of the knife in the hand of the victim was of great probative
value. It was a factor to be considered by the jury in determining whether the victim fell to the
floor with the knife in her grasp or whether it was subsequently placed in her hand.
In Walker v. State, 85 Nev. 337, 455 P.2d 34 (1969), this court affirmed the trial court's
ruling that allowed certain photographs to be entered because the probative value outweighed
the prejudicial effect. In this case the trial court concluded that the probative value of the
colored photograph outweighed the prejudicial effect which it might have upon the jury.
____________
86 Nev. 741, 741 (1970) Thedford v. Sheriff
EDNA LOU THEDFORD, Appellant, v. SHERIFF,
No. 6272
November 2, 1970 476 P.2d 25
Appeal from an order denying an application for a writ of habeas corpus. Eighth Judicial
District Court, Clark County; William P. Compton, Judge.
Petition for habeas corpus following preliminary examination which resulted in applicant
being bound over to district court on open charges of murder and charge of abortion. The
district court denied application, and applicant appealed. The Supreme Court, Batjer, J., held
that information, which alleged that by and as result of such felonious abortion or attempted
abortion named defendant did kill and murder and in heading of which appeared words
MurderFelony [statutes omitted], was an open charge of murder and encompassed all
lesser included offenses, including involuntary manslaughter as defined in cited statute, and
constituted adequate notice of charge against defendant.
Affirmed and remanded.
Heaton & Spizzirri and James D. Santini, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, and Lorin
D. Parraguirre, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
A preliminary examination is not a trial; its purpose is not to determine guilt or innocence but to
determine whether there is probable cause to believe that an offense has been committed and that defendant
has committed it. NRS 171.206.
2. Homicide.
Malice, as applied to murder, does not necessarily import ill will toward the victim, but signifies general
malignant recklessness of others' lives and safety or disregard of social duty.
3. Criminal Law; Homicide.
Presence of malice is a question of fact which bears directly on guilt or innocence of defendant in
homicide prosecution and on degree of homicide charge; it is not a degree to be determined by the
magistrate at a preliminary examinationit is a question to be determined by the trier of fact at the trial of
the case; it is also not a question to be determined at a hearing on a petition for writ of habeas corpus, nor
by the reviewing court on appeal therefrom.
4. Homicide; Indictment and Information.
Information, which alleged that by and as result of such felonious abortion or attempted abortion named
defendant did kill and murder and in heading of which appeared words MurderFelony [statutes
omitted], was an open charge of murder and encompassed all lesser included offenses, including
involuntary manslaughter as defined in cited statute, and constituted adequate notice of charge against
defendant. NRS 175.501, 200.070.
OPINION
After a preliminary examination the appellant was bound over to district court on an open
charge of murder and on a charge of abortion. In her petition for a writ of habeas corpus the
appellant contended that no reasonable or probable cause had been presented to support a
belief that the offenses charged had been committed or that the appellant had committed
them. The appellant further contended that the information as filed failed to give her adequate
notice of the exact offense upon which she was being charged.
At the preliminary examination the following pertinent facts were presented: On October
29, 1969, the victim, Patricia Kohlman, was picked up at her home by Patricia Irene Eastley.
They drove to the latter's home and arrived at approximately 5:20 p.m. At approximately 6:00
p.m., Patricia Ann Eastley, sister-in-law of Patricia Irene Eastley, arrived at the home of
Patricia Irene. At some time between 6:30 p.m. and 7:00 p.m. the appellant, Edna Lou
Thedford, arrived at the Eastley residence carrying a paper bag. Immediately thereafter, the
appellant and the victim went into a bedroom of the residence. Neither Patricia Irene nor
Patricia Ann saw the events which occurred in the bedroom. The appellant emerged once
from the bedroom, made a phone call, and requested the use of a flashlight. After acquiring
the flashlight she returned to the bedroom.
The appellant and decedent were alone in the bedroom for approximately ten to fifteen
minutes. At the end of this time they left the bedroom and Patricia Kohlman requested
Patricia Irene to drive the appellant to a location in North Las Vegas. As the appellant left the
Eastley residence, she discarded in a trash container the paper bag she had carried into the
bedroom.
Patricia Irene then drove the victim and the appellant to North Las Vegas, where the latter
was let out and the two remaining occupants traveled toward the home of the victim.
As Patricia Irene and Patricia Kohlman were traveling from North Las Vegas to the
latter's home, Mrs.
from North Las Vegas to the latter's home, Mrs. Kohlman began to vomit and she was in an
unconscious state when they arrived at her home. While Patricia Irene drove the appellant and
victim to their respective homes, Patricia Ann, who had remained at her sister-in-law's home,
examined the paper bag discarded by the appellant. In the bag she found a paper enclosure
with the words knitting needle thereon, and a sales slip for the item.
From Mrs. Kohlman's residence, Patricia Irene called Patricia Ann, who drove
immediately to the Kohlman home. Upon her arrival, Patricia Ann, an x-ray technician,
determined that the victim was unconscious but still alive, and while the police and an
ambulance were being summoned she attempted mouth-to-mouth resuscitation. Patricia Ann
then accompanied the victim to the hospital, and remained at the hospital until the victim died
later that evening.
After the death of Patricia Kohlman, Patricia Ann returned to the home of Patricia Irene. In
the bathroom she discovered a bottle of menthyl salicylate, commonly known as oil of
wintergreen. Patricia Irene testified that she never kept this substance in her home.
At 10:00 a.m. on the following day, Dr. Thorne Jefferson Butler performed an autopsy
upon the decedent, whom he had personally attended immediately prior to and at the time of
her death. The autopsy revealed that the uterus of the victim was approximately 18 weeks
pregnant and contained traces of menthyl salicylate as well as small puncture marks in the
cervix. The doctor testified that menthyl salicylate was a substance foreign to the uterus and
not normally present in it. He further testified that the puncture marks in the cervix were not
normal in the pregnant uterus.
Dr. Butler stated that, in his opinion, the menthyl salicylate had entered the blood stream
of the victim from the uterus causing pulmonary edema and death. (The lungs filled with
blood and the victim literally drowned in her own blood.)
[Headnote 1]
It is well established that a preliminary examination is not a trial. NRS 171.206
1
;
Goldsmith v. Sheriff, 85 Nev. 295, 454 P.2d S6 {1969); State v. Holt, 47 Nev. 233
____________________

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.
454 P.2d 86 (1969); State v. Holt, 47 Nev. 233, 219 P. 557 (1923); Overton v. State 78 Nev.
198, 370 P.2d 677 (1962). Its purpose is not to determine guilt or innocence but to determine
whether or not there is probable cause to believe that an offense has been committed and that
the defendant has committed it. Maskaly v. State, 85 Nev. 111, 450 P.2d 790 (1969), and
cases cited therein. Here there was introduced sufficient evidence of probable cause to justify
the magistrate in binding the appellant over to the district court on an open murder charge and
on a charge of abortion.
The appellant and the victim were alone for a period of time and shortly thereafter the
victim died of a lethal dose of menthyl salicylate. See Miner v. Lamb, 86 Nev. 54, 464 P.2d
451 (1970). It was reasonable for the magistrate to infer from the evidence that the appellant
purposely administered the lethal substance. It was also permissible for him to infer from the
evidence that there was probable cause to believe that the menthyl salicylate was
administered in a manner that would amount to murder.
The appellant claims that because there was no showing, by the state, at the preliminary
examination, of malice expressed or implied, that the writ of habeas corpus should have been
granted.
[Headnote 2]
Malice as applied to murder does not necessarily import ill will toward the victim, but
signifies general malignant recklessness of others' lives and safety or disregard of social duty.
State v. Judge, 38 S.E.2d 715 (S.C. 1946); Chisley v. State, 95 A.2d 577 (Md. 1953).
[Headnote 3]
It cannot be said from the facts adduced at the preliminary examination that malice was
not shown, the presence of malice is a question of fact which bears directly on the guilt or
innocence of a defendant and upon the degree of the crime charged. It is not a question to be
determined by the magistrate at a preliminary examinationit is a question to be determined
by the trier of fact at the trial of the case. State v. Acosta, 49 Nev. 184, 242 P. 316 (1926).
Furthermore, it is not a question to be determined by the trial judge at the hearing upon a
petition for a writ of habeas corpus, nor by this court on appeal. In State v. Fuchs, 78 Nev. 63,
368 P.2d 869 (1962), it was said: Neither a preliminary hearing, nor a hearing upon a
petition for a writ of habeas corpus is designed as a substitute for this function [a trial].
[Headnote 4]
We now consider the appellant's contention that she was not given proper notice of the
crime charged in the information. It alleged that [B]y and as a result of said felonious
abortion or attempted abortion [the appellant] did kill and murder the said Patricia Kohlman,
a human being. Furthermore, appearing in the heading of the information are the words:
MurderFelonyNRS 200.010 and 200.070.
In Howard v. Sheriff, 83 Nev. 150, 425 P.2d 596 (1967), this court said: An information
charging murder without specifying the degree is sufficient to charge murder in the first
degree. Statutes which provide different punishments for first and second degree murder do
not create two separate and distinct crimesmurder in the first degree and murder in the
second degreewhich must be pleaded accordingly. It is permissible to simply charge
murder and leave the degree to be stated by the jury. The words murder in the first degree'
are a legal conclusion. The facts alleged in the indictment and proof of trial determine
degree.
In Miner v. Lamb, supra, we said: An open murder complaint charges murder in the first
degree and all necessarily included offenses. See NRS 175.501. See also Parsons v. State, 74
Nev. 302, 329 P.2d 1070 (1958); State v. Oschoa, 49 Nev. 194, 242 P. 582 (1926).
Inasmuch as the appellant is deemed to have understood that an open charge of murder
encompassed all lesser included offenses, she did in fact have adequate notice of the charge
against her.
In, further support of her claim that she did not have adequate notice of the exact offense
upon which she was being charged, the appellant contends that she may not be held to answer
on the charge of murder under NRS 200.070
2
as it was not alleged in the complaint. This
contention is without merit. In Singleton v. Sheriff, 86 Nev. 590, 471 P.2d 247 (1970), this
court quoted with approval, the following language from State v. Pansey, 61 Nev. 333, 128
P.2d 464 (1942): [U]nder the provisions of section 10785 N.C.L., 1929 [now substantially
NRS 200.260], accused may be held to answer for a public offense other than that charged
in the complaint."

____________________

2
NRS 200.070: Involuntary manslaughter shall consist in the killing of a human being, without any intent
so to do, in the commission of an unlawful act, or a lawful act which probably might produce such a
consequence in an unlawful manner; but where such involuntary killing shall happen in the commission of an
unlawful act, which, in its consequences, naturally tends to destroy the life of a human being, or is committed in
the prosecution of a felonious intent, the offense shall be deemed and adjudged to be murder.
public offense other than that charged in the complaint. See also Marcum v. Sheriff, 85 Nev.
175, 451 P.2d 845 (1969).
The order of the district court is affirmed and the matter is remanded for further
proceedings.
____________
86 Nev. 746, 746 (1970) Bandics v. Sheriff
ERNIE BANDICS, Appellant, v. SHERIFF OF CLARK
No. 6284
November 2, 1970 476 P.2d 7
Appeal from the denial of a pre-trial writ of habeas corpus in the Eighth Judicial District
Court, Clark County; William P. Compton, Judge.
The Supreme Court held that identification of defendant by name alone in testimony
before grand jury afforded probable cause to hold him for trial.
Affirmed.
Harvey Dickerson, Attorney General; George E. Franklin, Jr., District Attorney, Clark
In testing an indictment, only probable cause of identity is required, not proof beyond a reasonable doubt.
NRS 52.070, subd. 19.
2. Criminal Law.
Identification of defendant by name alone in testimony before grand jury was sufficient identification to
afford probable cause to hold defendant for trial. NRS 52.070, subd. 19.
OPINION
Per Curiam:
This is a appeal from denial of a pre-trial writ of habeas corpus. We affirm that order.
Appellant was indicted by the Clark County Grand Jury following the testimony of
Gerald Egelus, Las Vegas Police Department narcotics officer, that he had purchased
narcotics from Mark Aguirre and Ernie Bandics.
86 Nev. 746, 747 (1970) Bandics v. Sheriff
following the testimony of Gerald Egelus, Las Vegas Police Department narcotics officer,
that he had purchased narcotics from Mark Aguirre and Ernie Bandics.
Appellant was identified by the officer by name alone in his testimony before the grand
jury. Appellant, in seeking habeas corpus in the court below, contended that method and
degree of identification did not give probable cause to hold him, a person with that name, for
trial. Appellant cites no authority supporting his contention. We have found none.
[Headnotes 1, 2]
In testing an indictment, only probable cause of identity is required, not proof beyond a
reasonable doubt. Maskaly v. State, 85 Nev. 111, 450 P.2d 790 (1969). NRS 52.070(19)
provides that there is a rebuttable presumption of identity of a person from the identity of the
name. See also Hollander v. State, 82 Nev. 345, 418 P.2d 802 (1966). This coupled with the
testimony of Officer Egelus and the permissible inferences that could be drawn from that
testimony, see Miner v. Lamb, 86 Nev. 54, 464 P.2d 451 (1970), establishes probable cause
to hold for trial an 18-year-old boy named Ernie Bandics. Appellant has not suggested he
does not fit this description.
Affirmed.
____________
86 Nev. 747, 747 (1970) Bank of Nevada v. Friedman
BANK OF NEVADA, as Special Administrator of the Estate of JUAN RODRIGUEZ,
Appellant, v. MAURICE H. FRIEDMAN, Respondent.
No. 6172
November 6, 1970 476 P.2d 172
Appeal from order of dismissal entered by Eighth Judicial District Court, Clark County;
William P. Compton, Judge.
Action on note. After remand, 82 Nev. 417, 420 P.2d 1, the district court entered order
dismissing complaint for failure to bring action to trial within five years after complaint was
filed, and plaintiff appealed. The Supreme Court, Mowbray, J., held that mandatory five-year
period for bringing case to trial was not extended by number of days representing period
between date when plaintiff filed a notice of appeal from order granting summary judgment
in favor of defendant and date when remittitur was filed reversing order granting summary
judgment, so that where five-year period had expired, and there was no attempt to bring case
to trial, dismissal of complaint was required.
attempt to bring case to trial, dismissal of complaint was required.
Affirmed.
Albright, George, Johnson, Steffen & Simmons, of Las Vegas, for Appellant.
Lionel, Sawyer & Wartman and Steve Morris, of Las Vegas, for Respondent.
Mandatory five-year period for bringing case to trial was not extended by number of days representing
period between date when plaintiff filed a notice of appeal from order granting summary judgment in favor
of defendant and date when remittitur was filed reversing order granting summary judgment, so that where
five-year period had expired, and there was no attempt to bring case to trial, dismissal of complaint was
required. NRCP 41(e).
Only exception to a mandatory dismissal for failure to bring an action to trial within five years after
complaint is filed is a written stipulation of parties agreeing to extend five-year period. NRCP 41(e).
OPINION
This is an appeal from an order of the district judge dismissing the complaint of the
appellant-plaintiff, Bank of Nevada as Special Administrator of the Estate of Juan Rodriguez,
against the respondent-defendant, Maurice H. Friedman, for failure to bring the action to trial
within 5 years after the complaint was filed. NRCP 41(e).
1
There is no question that the
5-year period had expired, as the complaint was filed on November 6, 1964, and the 41{e)
order of dismissal was entered on December 30, 1969.

____________________

1
NRCP 41. DISMISSAL OF ACTIONS
. . .
(e) Want of Prosecution. 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
There is no question that the 5-year period had expired, as the complaint was filed on
November 6, 1964, and the 41(e) order of dismissal was entered on December 30, 1969.
Between those dates, there was no attempt to bring the case to trial.
[Headnote 1]
The Bank's main argument on this appeal is that the mandatory 5-year period requiring
dismissal should in this case be extended an additional 293 days. The 293 days represent the
period between February 24, 1966, when the Bank filed a notice of appeal from the order of
the district judge granting summary judgment in favor of Friedman, and December 13, 1966,
when the remittitur was filed with the County of Clark, reversing the order granting summary
judgment. We do not agree, and we affirm the order of the district court dismissing the
complaint.
[Headnote 2]
This court has made its position clear in several cases that the only exception to a
mandatory dismissal for failure to bring an action to trial within 5 years after the complaint is
filed is a written stipulation of the parties agreeing to extend the 5-year period. We announced
in Thran v. District Court, 79 Nev. 176, 181, 380 P.2d 297, 300 (1963):
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. [Citation omitted.] (Emphasis added.)
____________________
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.
Again, as recently as Great W. Land & Cattle Corp. v. District Court, 86 Nev. 282, 285,
467 P.2d 1019, 1021 (1970), we said:
. . . When a case is not brought to trial within 5 years, the only exception to mandatory
dismissal is a written stipulation . . . Rule 41, as written and construed, does not contemplate
an examination of the equities. Any other construction would destroy the mandatory 5-year
dismissal rule and make the determination a matter of trial court discretion. (Emphasis
added.)
See also Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851 (1969); Faye v. Hotel Riviera, Inc.,
81 Nev. 350, 403 P.2d 201 (1965); Smith v. Garside, 81 Nev. 312, 402 P.2d 246 (1965).
The remittitur following the appeal was filed December 13, 1966. Almost 3 years passed
before Friedman filed his 41(e) motion to dismiss, on December 3, 1969. Ample time was
afforded the Bank to bring the case to trial.
It is true that, after the remittitur was filed, Friedman filed an amended answer on January
6, 1967. The case then remained dormant for the next 2 years, until February 17, 1969, when
the Bank filed a demand for admissions, which Friedman did not answer until September 22,
1969. The Bank then, on October 29, 1969, submitted its interrogatories to Friedman, which
he never answered. The Bank argues that Friedman's delay in responding to the request for
admissions and his failure to answer the interrogatories delayed the prosecution of the case.
This contention is meritless, for the record shows that the Bank extended additional time to
Friedman beyond that period provided in the Nevada Rules of Civil Procedure for responding
to the Bank's request for admissions. If Friedman had been dilatory, the Rules provided an
adequate means for the Bank to compel Friedman to answer the interrogatories. See NRCP
37.
2
As this court said in Thran, supra, 79 Nev. at 1S1, 3S0 P.2d at 300, quoting J. C.
Penney Co. v.
____________________

2
NRCP 37. REFUSAL TO MAKE DISCOVERY: CONSEQUENCES:
. . .
(d) Failure of Party to Attend or Serve Answers. If a party or an officer or managing agent of a party
wilfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, or
fails to serve answers to interrogatories submitted under Rule 33, after proper service of such interrogatories, the
court on motion and notice may strike out all or any part of any pleading of that party, or dismiss the action or
proceeding or any part thereof, or enter a judgment by default against that party.
79 Nev. at 181, 380 P.2d at 300, quoting J. C. Penney Co. v. Superior Court, 336 P.2d 545,
547 (Cal.App. 1959):
. . . [I]t is the plaintiff upon whom . . . rests [the duty] to use diligence at every stage of
the proceedings to expedite his case to a final determination.'
Litigation must end sometime. Under 41(e), a party must bring his case to trial within 5
years. If he fails to do so, the Rule provides that his case shall be dismissed, the only
exception thereunder being a written stipulation by the parties agreeing to extend the 5-year
period.
Batjer and Thompson, JJ., and Barrett, D. J., and Morse, D. J., concur.
____________
86 Nev. 751, 751 (1970) Cottonwood Cove Corp. v. Bates
COTTONWOOD COVE CORPORATION, a Nevada Corporation, Appellant, v. W. E.
BATES, Respondent.
No. 6189
November 9, 1970 476 P.2d 171
Appeal from judgment. Eighth Judicial District Court; Howard W. Babcock, Judge.
Suit for breach of employment contract upon ground that plaintiff's employment with
defendant corporation had been wrongfully terminated. After remand, 84 Nev. 388, 441 P.2d
622 (1968), the district court entered judgment for plaintiff and defendant appealed. The
Supreme Court held that where court found that defendant had breached contract employing
plaintiff for life, action of trial court in allowing recovery for only 10 years although court
found that life expectancy of plaintiff was approximately 16 years at time of breach was to
defendant's advantage and it was not an aggrieved party in that regard and could not complain
on appeal, and that where defendant asserted that sole issue in action for breach of
employment contract was whether absence of valid contractor's license by plaintiff was
material breach of the contract of employment and that was the only issue upon which
evidence was presented to trial court, defendant on appeal was not entitled to raise for first
time an entirely different theory of contract law and contend that agreement was merely
contract at will and that it could have been breached at any time by either party without
penalty.
at will and that it could have been breached at any time by either party without penalty.
Morris, Walker & Pilkington, of Las Vegas, for Appellant.
Denton & Monsey, of Las Vegas, for Respondent.
Where defendant had breached contract employing plaintiff for life and plaintiff had life expectancy of 16
years, action of trial court in allowing recovery for only 10 years was to defendant's advantage, defendant
was not an aggrieved party in that regard and could not complain of it on appeal. NRCP 72(a).
Where defendant asserted that sole issue in action for breach of employment contract was whether
absence of valid contractor's license by plaintiff was material breach of the contract of employment and that
was the only issue upon which evidence was presented to trial court, defendant was not entitled to raise for
first time on appeal the contention that agreement was merely contract at will and that it could have been
breached at any time by either party without penalty.
OPINION
Per Curiam:
The respondent sued the appellant alleging the breach of a employment contract upon the
ground that his employment with the appellant corporation had been wrongfully terminated.
The corporation controverted the complaint upon the ground that respondent had
misrepresented his possession of a valid Nevada contractor's license. The appellant now
contends that the judgment is not supported by the evidence and is contra to applicable law.
The trial court found, from the evidence, a valid contract terminable upon the death of the
respondent. It also found that there had been an unwarranted breach by the appellant without
a corresponding breach by the respondent.
There is substantial evidence to support the trial court's determination. We will not
interfere with it nor substitute our judgment for that of the trial court in weighing the
evidence. Richfield Oil Corp. v. Harbor Insurance Co., 85 Nev. 185, 452 P.2d 462 (1969).
[Headnote 1]
The trial court in assessing damages found that the life expectancy of the respondent was
approximately 16 years at the time of the breach, but because of certain testimony given
by him the court allowed recovery for only 10 years.
the time of the breach, but because of certain testimony given by him the court allowed
recovery for only 10 years. The action of the trial court was to the appellant's advantage. In
this regard it is not an aggrieved party and it cannot now complain. NRCP 72(a). We find no
fault with the trial court's procedure in assessing damages, except in its allowance of $500 per
month for the period from June 14, 1964 to September 17, 1964, plus interest, for a total of
$1,406.96. The parties agree that the respondent received compensation for that period.
[Headnote 2]
In his opening statement to the trial court, counsel for the corporation maintained that the
sole issue was whether the absence of a valid Nevada contractor's license was a material
breach of the contract of employment.
1
The record on appeal reflects that this was the only
issue upon which evidence was presented to the trial court. Now, on this appeal, the appellant
presents an entirely different theory of contract law and contends that the agreement was
merely a contract at will and that it could have been breached at any time by either party
without penalty. The appellant cannot raise, for the first time on appeal, this theory of law.
In County of Clark v. State of Nevada, 65 Nev. 490, 199 P.2d 137 (1948), this court stated:
It has long been a rule of this court that a party on appeal cannot assume an attitude or adopt
a theory inconsistent with or different from that taken at the hearing below. Wheeler v.
Hurley, 49 Nev. 70, 236 P. 559; Carroll v. Carroll, 51 Nev. 188, 272 P. 3; Berrum v.
Georgetta, 60 Nev. 1, 93 P.2d 525, 98 P.2d 479; In re Torres Estate, 61 Nev. 156, 120 P.2d
816, 135 A.L.R. 481; Edmonds v. Perry, 62 Nev. 41, 140 P.2d 566; Johnston v. DeLay, 63
Nev. 1, 158 P.2d 547.
____________________

1
. . . [A]s the record will so reflect, the main dispute was the provision that was in the contract that recited
that the plaintiff was a licensed Nevada contractor. The testimony of the witnesses for the defendant will show to
his Honor the reasons why this was an essential element of the contract; why this representation of the plaintiff
was the prime requisite for the entering into such a contract; that the reasons for the plaintiff having a
contractor's license was to obtain contractor's discount on material. The testimony will show that Mr.
Krametbauer was told by the plaintiff that he did have a valid contractor's license and that Mr. Krametbauer
relayed that information to other members of the corporation, and that this factor and this factor alone was the
main inducement for entering into such a contract; that when it was discovered that the defendant did not have a
valid contractor's license, he was terminated for that reason. This is the sole and simple issue that will be before
the Court.
The judgment of the trial court is modified from $44,557.43, together with interest
thereon, at the rate of 7 percent per annum, from November 21, 1969, until paid, to the sum
of $43,150.46, together with interest thereon at the rate of 7 percent per annum, from
November 21, 1969, until paid. In all other respects the judgment of the district court is
affirmed.
____________
86 Nev. 754, 754 (1970) Blackman v. Las Vegas-Tonopah-Reno Stage
A. W. BLACKMAN, as Executor of the Estate of MARY MIKULICH, ANDREW
MIKULICH, WILLIS B. SMITH, AMELIA SMITH and A. W. BLACKMAN, Appellants, v.
LAS VEGAS-TONOPAH-RENO STAGE LINE, INC., Respondent.
No. 5785
November 12, 1970 476 P.2d 964
Compton, Judge.
Action to restrain dissipation of corporate assets and for other relief. The district court
entered judgment for corporation, and defendants appealed. The Supreme Court held that
evidence supported finding that defendant officers and directors of family corporation had
participated in withdrawal of large sums of money from corporate account and were aware of
use of funds for other than corporate purposes, warranting issuance of permanent injunction
forbidding further dissipation of corporate assets and interference with corporation's business
activities by defendants and reconveyance to corporation of real property wrongfully
purchased with corporate funds.
Raymond E. Sutton, of Las Vegas, for Appellants.
Dickerson, Miles & Gang, of Las Vegas, for Respondent.
Corporations.
Evidence supported finding that defendant officers and directors of family corporation had participated in
withdrawal of large sums of money from corporate account and were aware of use of funds for other than
corporate purposes, warranting issuance of permanent injunction forbidding further dissipation of
corporate assets and interference with corporation's business activities by
defendants and reconveyance to corporation of real property wrongfully purchased
with corporate funds.
86 Nev. 754, 755 (1970) Blackman v. Las Vegas-Tonopah-Reno Stage
corporate assets and interference with corporation's business activities by defendants and reconveyance to
corporation of real property wrongfully purchased with corporate funds.
OPINION
Per Curiam:
This appeal is from a judgment of the district court granting Las Vegas-Tonopah-Reno
Stage Line, Inc., a permanent injunction forbidding further dissipation of corporate assets and
interference with LTR's business activities by the named appellants who were defendants
below. The judgment also directed the reconveyance to the corporation of described real
property, title to which was held in the names of Mary Mikulich and A. W. Blackman,
trustee, and which property had wrongfully been purchased with corporate funds.
The record shows that, in varying degrees, the enjoined defendants had participated in the
withdrawal of large sums of money from LTR's corporate account, and were aware of the use
of those funds for other than corporate purposes. The financial position of LTR was seriously
jeopardized thereby. The wrongful conduct was apparently sparked by an intrafamily dispute
which ended up by involving all members of the family corporation.
1

Substantial evidence supports the findings of the district court and no errors of law appear
to have been committed. The parties concede that an error was committed in computing the
credit to which Mary Mikulich is entitled regarding her interest in a parcel of property held in
the name of A. W. Blackman, trustee; that her credit should be reflected as $15,171.40
instead of $24,300.
The judgment below is affirmed as modified.
____________________

1
Sebastian F. Mikulich, president of the corporation, instituted this action against Mary Mikulich (now
deceased), the corporate vice-president and Sebastian's wife, Andrew Mikulich, corporate office managed and
Sebastian's son, Willis B. Smith, Sebastian's son-in-law, Amelia Smith, Sebastian's daughter and a member of the
board of directors, and A. W. Blackman whose relationship to the other defendants is not evident from the
record.
____________
86 Nev. 756, 756 (1970) D'Anna v. Sheriff
JULIUS ANDREW D'ANNA, Sr., and MEL RICHARD D'ANNA, Appellants, v. SHERIFF,
No. 6293
November 12, 1970 476 P.2d 472
Appeal from denial of a pre-trial writ of habeas corpus in the Eighth Judicial District
Court, Clark County; William P. Compton, Judge.
The district court denied application and petitioners appealed. The Supreme Court,
Collins, C. J., held that blackjack player who switches or changes cards dealt in any manner
so as to use and play different cards than those dealt to him, or who offers cards back to
dealer for payoff either as winning hand or because dealer broke, violates statute relating to
winning money by aid of any trick or slight of hand performance, or by any fraud or
fraudulent scheme, cards, dice or device.
Affirmed.
Wiener, Goldwater & Galatz, Ltd., of Las Vegas, for Appellants.
Margie A. Richards, Deputy District Attorney, Clark County, for Respondent.
False Pretenses.
Blackjack player who switches or changes cards dealt in any manner so as to use and play different cards
than those dealt to him, or who offers cards back to dealer for payoff either as winning hand or because
dealer broke, violates statute relating to winning money by aid of any trick or slight of hand
performance, or by any fraud or fraudulent scheme, cards, dice or device. NRS 465.070, subd. 1.
OPINION
This is an appeal from denial of a pre-trial application for habeas corpus. We affirm that
ruling.
On April 3, 1969, appellants were gambling patrons at the Sands Hotel in Las Vegas,
where they engaged in playing a card game known as Blackjack or 21 while sitting next
to each other at the table.
to each other at the table. The manner in which they handled the cards dealt to them caused
them to come under the close scrutiny of Paul S. Romines, a hotel security guard. While
watching their method of play from a one-way mirror observation station in the ceiling of the
casino known in the gambling business as the eye in the sky, he observed them switch cards
between themselves over the course of play of several hands. He also observed they were paid
money on those hands by the dealer. Romines did not watch the dealer's cards, and thus could
not testify whether appellants were paid because they held winning hands or because the
dealer broke; that is, exceeded 21 in the count of the face value of his cards.
Appellants were arrested and charged with fraudulently obtaining money from the Sands
Hotel Casino, a violation of NRS 465.070(1), a felony, which reads:
1. Every person who, by color, or aid of any trick or sleight-of-hand performance, or by
any fraud or fraudulent scheme, cards, dice or device, shall win for himself or for another any
money or property, or representative of either, shall be punished by imprisonment in the state
prison for 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.
They were bound over to the district court for trial by the magistrate on the evidence
recited above. They sought a writ of habeas corpus, contending the state had failed to show
they won money as a result of card switching because they could have won as readily if the
dealer broke. Thus they argue the state failed to prove the corpus delicti of the crime, since
there was no evidence of reliance by the dealer on their fraudulently switched cards in paying
them on the hands they held. We disagree with that contention.
1. NRS 465.070(1) contemplates that a player engaging in a Blackjack or 21 game
will play with the identical cards dealt him by the dealer. The moment he switches or changes
those cards in any manner so as to use in play different cards than those dealt to him or offers
them back to the dealer for a payoff either as a winning hand or because the dealer breaks,
he brings himself within the prohibition of the statute. The dealer's reliance may be found in
the fact that he accepts the cards back as a legitimately played hand and pays out house
money on that premise. It is beyond question that the dealer would have stopped play of the
game completely had he observed switching of cards by appellants.
2. The corpus delicti of the crime was established by the state through the testimony of
Romines. There was also probable cause to believe appellants committed it, Azbill v. State,
S4 Nev. 345
84 Nev. 345, 440 P.2d 1014 (1968). The lower court properly denied their application for
habeas corpus.
____________
86 Nev. 758, 758 (1970) Stocks v. Warden
BYRON T. STOCKS, Appellant, v. WARDEN, NEVADA
No. 6315
November 16, 1970 476 P.2d 469
Appeal from an order of the Second Judicial District Court, Washoe County, denying
post-conviction relief; Thomas O. Craven, Judge.
The district court denied relief and petitioner appealed. The Supreme Court, Thompson, J.,
held that trial court was not required to advise petitioner, prior to accepting guilty plea, that
parole was not available to one charged and sentenced as habitual criminal.
Affirmed.
[Rehearing denied December 10, 1970]
1. Criminal Law.
A waiver of a defendant's privilege against compulsory self-incrimination, right to trial by jury and the
right to confront one's accusers may not be presumed from a silent record. NRS 174.035, subd. 1;
U.S.C.A.Const. Amend. 5.
2. Criminal Law.
A guilty plea is not compelled and, therefore, invalid when motivated by a desire to accept the certainty
or probability of a lesser penalty rather than to face possibility of a higher penalty.
3. Criminal Law.
In absence of evidence to suggest that will of defendant who, while represented by competent counsel,
pleaded guilty to sale of a narcotic drug was overborne, or that he was unable to weigh alternatives,
counsel's advice that he might be charged as an habitual criminal if he did not so plead did not render
defendant's plea involuntary. NRS 174.035, subd. 1, 177.375; U.S.C.A.Const. Amend. 5.
4. Criminal Law.
Prior to acceptance of defendant's guilty plea, trial court was not required to advise defendant that parole
was not available to one charged and sentenced as habitual criminal. NRS 174.035, subd. 1.
5. Criminal Law.
Preferred practice is that full inquiry, including complete explanation of charge, range of sentence, waiver
of constitutional trial rights, possibility of probation, eligibility for parole, and other matters bearing upon
voluntariness, accompany acceptance of a guilty plea in every case. NRS 174.035, subd. 1.
6. Criminal Law.
Statute governing acceptance of guilty pleas requires that accused understand the nature of the charge
against him and the consequences of his plea thereto, but collateral consequences are not required to be
explained. NRS 174.035, subd. 1.
7. Courts.
United States Supreme Court decision requiring that there be an affirmative showing of voluntariness
prior to acceptance of guilty plea is not to receive retroactive application.
8. Criminal Law.
Failure of trial court to advise defendant, prior to acceptance of guilty plea, of the sentence authorized for
crime of selling a narcotic drug with which he was charged was harmless error where defendant did not
complain of that error. NRS 177.255.
9. Constitutional Law; Criminal Law.
Statute providing that, prior to acceptance of guilty plea trial judge must address defendant personally
and determine that plea is made voluntarily and with knowledge of the charge against him and the
consequences of such plea is not unconstitutional on the theory that it is a legislative interference with the
judicial function. NRS 174.035, subd. 1.
OPINION
This is an appeal from an order of the district court denying, for the second time,
post-conviction relief to Stocks who, on February 26, 1969, pleaded guilty to the sale of a
narcotic drug and currently is serving a ten-year sentence at the Nevada State Prison. The
record of the arraignment shows that after the information was read to Stocks, the court
inquired, What is your plea? to which Stocks replied, Guilty, Your Honor. The court
accepted his plea without any further inquiry. Stocks was represented by counsel.
[Headnote 1]
1. His first petition for relief from the conviction and sentence was on the ground that the
record of his arraignment does not show that his plea was voluntarily and understandingly
entered since the court failed to make the kind of inquiry constitutionally required by the
United States Supreme Court decision of Boykin v. Alabama, 395 U.S. 23S {1969).
does not show that his plea was voluntarily and understandingly entered since the court failed
to make the kind of inquiry constitutionally required by the United States Supreme Court
decision of Boykin v. Alabama, 395 U.S. 238 (1969). In Boykin, the court noted that several
constitutional rights are involved in a waiver that takes place when a plea of guilty is entered:
the privilege against compulsory self incrimination, the right to trial by jury, and the right to
confront one's accusers. A waiver of these significant federal rights may not be presumed
from a silent record. In Boykin, as here, the defendant was represented by counsel. There, as
here, the court merely accepted the accused's guilty plea. Boykin's conviction was set aside by
the High Court.
Boykin was decided June 2, 1969. The guilty plea with which we are here concerned was
entered on February 26, 1969. The district court denied Stocks' first petition for relief, and
this court dismissed his appeal therefrom. Although reasons were not given for either
decision, we properly may assume that each rested upon the proposition that the doctrine of
Boykin is not to receive retroactive application. Indeed, in June 1970 we so ruled. Mathis v.
Warden, 86 Nev. 439, 471 P.2d 233 (1970).
2. Following the denial of Stocks' first post-conviction petition and the dismissal of his
appeal, he filed a second petition seeking to void his conviction because of the failure of the
district court to meet statutory requirements in accepting his guilty plea. The relevant part of
NRS 174.035(1) provides that the court shall not accept a guilty plea without first addressing
the defendant personally and determining that the plea is made voluntarily with understanding
of the nature of the charge and the consequences of the plea. This challenge, based upon the
mentioned statute, was not asserted in his first post-conviction petition. In Rogers v. Warden,
86 Nev. 359, 468 P.2d 993 (1970), we ruled that the failure of the petitioner to explain why
he did not assert the grounds of his second petition for relief in his first petition, barred his
second application. That decision rested upon NRS 177.375 and the desire to finalize
litigation. Although the petitioner did not offer such an explanation in his second application
for relief, that explanation may be inferred from the record before us. His first petition was
presented without the assistance of counsel, which might well explain his failure to call
relevant statutory requirements to the attention of the court When counsel was secured and
the second petition submitted, this inadequacy was corrected. We could deny review upon the
rule of Rogers, supra.
the rule of Rogers, supra. In this instance, however, we choose to entertain the matter and
resolve some recurring problems incident to the acceptance of guilty pleas.
The unrebutted affidavit submitted by Stocks in support of his petition for relief suggests
that he was induced to plead guilty by his counsel's advice that he might be charged as an
habitual criminal if he did not so plead. Moreover, he seems to contend that the district court
was required under NRS 174.035(1) to advise him that parole was not available to one
charged and sentenced for habitual criminality. NRS 213.110(1); Eisentrager v. State Board
of Parole, 85 Nev. 672, 462 P.2d 40 (1969). He argues that such advice from the court falls
within the statute as a consequences of the plea of guilty to the charge of sale of a narcotic
drug.
[Headnotes 2, 3]
Each contention is unsound. Advice from his counsel that he might be charged as an
habitual criminal does not, of itself, destroy the voluntary nature of his guilty plea to the
crime with which he was charged. A guilty plea is not compelled and invalid under the Fifth
Amendment when motivated by the defendant's desire to accept certainty or probability of a
lesser penalty rather than to face the possibility of a higher penalty. Brady v. United States,
397 U.S. 742 (1970). The voluntariness of his plea is to be determined by considering all
relevant circumstances surrounding it. There is nothing in the record to suggest that his will
was overborne, or that he was unable to weigh alternatives. He was represented by competent
counsel. The possibility of being charged as an habitual criminal should not weigh heavily if
he were not guilty of the primary offense, since proof of guilt of the primary charge is a
precondition to a subsequent habitual hearing.
[Headnote 4]
The statutory direction that the judge determine the defendant's understanding of the
consequences of his plea does not embrace the possible habitual criminal charge and the
consequences flowing therefrom. Stocks was not charged as an habitual criminal. His guilty
plea was to the sale of a narcotic drug. Parole is now unavailable to him because of prior
convictions and not as a consequence of his guilty plea to the charge made. Anushevitz v.
Warden, 86 Nev. 191, 467 P.2d 115 (1970).
Our statute, NRS 174.035(1), is patterned after Rule 11 of the Federal Rules of Criminal
Procedure. The Federal rule has received the attention of the United States Supreme Court.
Its purpose is to insure that every defendant who pleads guilty receives the procedural
safeguards of the rule which are designed to facilitate the determination of voluntariness, and
to provide a complete record at the time the plea is entered of factors relevant to that
determination. McCarthy v. United States, 394 U.S. 459 (1969); Halliday v. United States,
394 U.S. 831 (1969). When the inquiry contemplated by the Boykin decision, by the Federal
rule and by our statute, is made it forestalls the spin-off of collateral proceedings that seek to
probe murky memories. Boykin v. Alabama, id., at 244.
McCarthy and Halliday do not rest upon constitutional grounds. In each instance, the High
Court especially noted this fact. The concern of the Court was with Federal Rule 11 as
applied to Federal criminal cases. Neither case suggests the application of its doctrine to state
criminal cases. Only the Boykin inquiry regarding the waiver of fundamental trial rightsthe
privilege against compulsory self incrimination, the right to trial by jury, and the right to
confront one's accusersis constitutionally required when a guilty plea is accepted. This
would be so in Federal cases absent a Rule 11, and in state cases absent a statute such as NRS
175.035(1). Thus, we are free to place our own construction upon the meaning to be given
our statute.
[Headnote 5]
Of course it is desirable that full inquiry accompany the acceptance of a guilty plea in
every case. A complete explanation of the charge, the range of sentence therefor, an
explanation of the waiver of the constitutional trial rights noted in Boykin, the possibility of
probation, the eligibility for parole, and other matters bearing upon voluntariness, are
appropriate and desirable subjects for court advice to the accused. When explained at
arraignment and a guilty plea follows, there exists practically no basis for a post-conviction
charge that the plea was involuntarily entered. The record of the arraignment refutes such a
charge. The court, state or federal, to whom such a post-conviction challenge is addressed,
may deny it upon the record alone without an evidentiary hearing. This is the goal we seek to
achieve by the arraignment procedure.
[Headnote 6]
It does not follow, however, that our statute requires all that is desirable. It does not
require that much. It does require that the accused understand the nature of the charge against
him and the consequences of his plea thereto, that is, the sentence authorized for that crime.
authorized for that crime. Collateral consequences do not fall within the sweep of the statute.
Anushevitz v. Warden, 86 Nev. 191, 467 P.2d 115 (1970); Mathis v. Warden, 86 Nev. 439,
471 P.2d 233 (1970). And, from and after June 2, 1969, the constitutional gloss of Boykin v.
Alabama is to be imposed upon the meaning of the phrase consequences of the plea.
[Headnotes 7, 8]
As before noted, the Boykin doctrine does not touch this case since it is not to receive
retroactive application. Thus, it appears that the fault of the court in accepting the guilty plea
of Stocks lies in its failure to advise him of the sentence authorized for the crime of selling a
narcotic drug. Stocks, however, does not complain of this error, presumably because his
counsel advised him on that score. In this context, the error is harmless. NRS 177.255. His
substantial rights were not affected.
[Headnote 9]
3. The court below suggested that NRS 174.035(1), is unconstitutional as a legislative
interference with the judicial function. We reject this suggestion pre-emptorily. Our code is
loaded with legislative direction to the courts concerning criminal procedure. This is
constitutionally permissible. O'Banion v. Simpson, 44 Nev. 188, 191 P. 1083 (1920), as to the
legislative regulation of the method by which the right to trial by jury is to be enforced; and
State v. McClear, 11 Nev. 39 (1876), as to the legislative direction of the mode of impaneling
juries are two examples. Indeed, our State Constitution art. 4, 20, 21, provides for the
legislative enactment of general laws regulating the practice of courts of justice. And, in
Marshall v. Warden, 83 Nev. 442, 434 P.2d 437 (1967), we upheld the constitutionality of our
Post-Conviction Remedy Act (of which 174.035(1) is a part) with a minor exception not here
relevant.
Other contentions offered to us on this appeal have been examined and found to be
without substance.
Affirmed.
____________
86 Nev. 764, 764 (1970) Casino Operations, Inc. v. Graham
CASINO OPERATIONS, INC., dba HACIENDA HOTEL & CASINO, Las Vegas, Nevada,
Appellant, v. CHRIS GRAHAM, Respondent.
No. 6128
November 18, 1970 476 P.2d 953
This is an appeal from an order denying appellant's motion for a new trial, and its motion
to amend findings of fact, conclusions of law and judgment. Eighth Judicial District Court,
Clark County; Thomas J. O'Donnell, Judge.
Action for breach of contract whereby plaintiff allegedly agreed to organize and provide
junkets to defendant's hotel and casino. The district court entered judgment for plaintiff and
denied defendant's motions for new trial and to amend findings of fact, contentions of law
and judgment, and defendant appealed. The Supreme Court, Batjer, J., held that if there was
lack of common understanding by parties about meaning of word junket when they entered
into agreement, such misunderstanding was cured by plaintiff's subsequent organization of
more than 80 junkets to defendant's hotel which were all received and for which defendant
paid contract price.
Affirmed.
Calvin C. Magleby, and Singleton, Beckley, DeLanoy, Jemison & Reid, of Las Vegas, for
Appellant.
Wiener, Goldwater & Galatz, of Las Vegas, for Respondent.
Appeal is not allowed if it is outside the scope of Rules of Civil Procedure. NRCP 72(b).
Order denying motion to amend findings of fact, conclusions of law and judgment is not appealable
order. NRCP 72(b).
Appeal from order denying motion for new trial in breach of contract action would be considered as
appeal from final judgment where entire record was designated on appeal and supersedeas bond was filed
in exact amount of judgment so that reviewing court could conclude that appeal from such order was
appeal from final judgment. NRCP 1, 61, 73.
4. Contracts.
If there was lack of common understanding by parties about meaning of word junket when they entered
into agreement whereby plaintiff allegedly was to organize and provide junkets to defendant's hotel and
casino, such misunderstanding was cured by plaintiff's subsequent organization of more than 80 junkets to
defendant's hotel which were all received and for which defendant paid contract
price.
defendant's hotel which were all received and for which defendant paid contract price.
OPINION
By way of a separate motion the respondent requested an order dismissing the appeal from
the order denying appellant's motion to amend findings of fact, conclusions of law and
judgment. We ordered that motion to be held in abeyance pending oral argument and
submission.
[Headnote 1]
Prior to January 1, 1953, the effective date of the Nevada Rules of Civil Procedure, the
right of appeal was fixed by statute and no appeal was allowed except as therein provided.
Johns-Manville, Inc. v. Lander County, 48 Nev. 244, 229 P. 387 (1924); Quinn v. Quinn, 53
Nev. 67, 292 P. 621 (1930). See also Brunzell Constr. v. Harrah's Club, 81 Nev. 414, 404
P.2d 902 (1965). Since January 1, 1953 (see Rogers v. Thatcher, 70 Nev. 98, 255 P.2d 731
(1953)) the right of appeal has been fixed by NRCP 72(b) and an appeal is not allowed if it is
outside the scope of that rule.
[Headnote 2]
An order denying a motion to amend findings of fact, conclusions of law and a judgment
1
is not an appealable order. NRCP 72(b);
2
Dignan v. Citizen's State Bank of Hamilton, 396
P.2d 102 {Mont.
____________________

1
An order denying a motion to amend findings of fact, conclusions of law and judgment is not a special
order made after final judgment from which an appeal lies. Tardy v. Tarbell, 54 Nev. 342, 16 P.2d 656 (1932);
Wilkinson v. Wilkinson, 73 Nev. 143, 311 P.2d 735 (1957).

2
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.
(3) From an interlocutory judgment, order or decree made or entered in actions to redeem real or personal
property from a mortgage thereof or lien thereon, determining such right to redeem and directing an accounting,
and from an interlocutory judgment in actions for partition which determines the rights and interests of the
respective parties and directs partition, sale or division to be made.
(4) If an order granting or refusing to grant a motion to change
396 P.2d 102 (Mont. 1964); Tompkins v. Sandeen, 67 N.W.2d 405 (Minn. 1954). Cf. Grenz
v. Grenz, 78 Nev. 394, 374 P.2d 891 (1962); Harmon v. Tanner Motor Tours, 79 Nev. 4, 377
P.2d 622 (1963).
This brings us to the next procedural point raised by the respondent. He contends that an
order denying a motion for a new trial cannot be construed as an appeal from a final
judgment.
We recognize that the appellant has not complied with NRCP 73(b).
3
Therefore we must
decide, upon the facts of this case, whether NRCP 1
4
and NRCP 61
5
are broad enough to
allow this court to consider the appeal from an order denying the appellant's motion for a
new trial to be an appeal from the judgment.
____________________
the place of trial of an action or proceeding is not directly appealed from within thirty (30) days, there shall be
no appeal therefrom on appeal from the judgment in the action or proceeding or otherwise, and on demand or
motion of either party to an action or proceeding the court or judge making the order changing or refusing to
change the place of trial of an action or proceeding shall make an order staying the trial of the action or
proceeding until the time to appeal from such order, changing or refusing to change the place of trial, shall have
lapsed; or if an appeal from such order is taken, until such appeal shall, in the appellate court, or in some other
manner, be legally determined.

3
NRCP 73(b): The notice of appeal shall specify the parties taking the appeal; shall designate the judgment
or part thereof appealed from; and shall name the court to which the appeal is taken. Notification of the filing of
the notice of appeal shall be given by the clerk by mailing copies thereof to all the parties to the judgment other
than the party or parties taking the appeal, but his failure so to do does not affect the validity of the appeal. The
notification to the party shall be given by mailing a copy of the notice of appeal to his attorney of record or, if
the party is not represented by an attorney, then to the party at his last known address, and such notification is
sufficient notwithstanding the death of the party or of his attorney prior to the giving of the notification. The
clerk shall note in the register of actions the names of the parties to whom he mails the copies, with date of
mailing.

4
NRCP 1: These rules govern the procedure in the district courts in all suits of a civil nature whether
cognizable as cases at law or in equity, with the exceptions stated in Rule 81. They shall be construed to secure
the just, speedy, and inexpensive determination of every action.

5
NRCP 61: No error in either the admission or the exclusion of evidence and no error or defect in any
ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new
trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless
refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of
the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights
of the parties.
to allow this court to consider the appeal from an order denying the appellant's motion for a
new trial to be an appeal from the judgment.
We have not heretofore decided this question. However, we may look to the federal courts
for guidance to be gleaned from their construction of Federal Rules of Civil Procedure 73,
which is the source of NRCP 73.
In the case of State Farm Mutual Automobile Ins. Company v. Palmer, 225 F.2d 876
(1955), there was no appeal from the judgment, but only an appeal from the denial of a
motion for new trial and a motion to amend the findings of fact and conclusions of law. That
court strictly construed the requirements of F.R.C.P. 73; held that the notice of appeal was
defective and dismissed the appeal. The Supreme Court of the United States summarily
reversed that decision in a per curiam opinion. 350 U.S. 944, 76 S.Ct. 321, 100 L.Ed. 823
(1956). There was no written expression of the High Court's rationale in reversing the circuit
court. Subsequent to that opinion the federal courts have held that an appeal from an order
denying a new trial amounted to an appeal from the judgment if it could be inferred from the
notice of appeal, the designation of record, and the supersedeas bond that it was the intent of
the appellant to appeal from the judgment. Railway Express Agency v. Epperson, 240 F.2d
189 (8th Cir. 1957); Holz v. Smullan, 277 F.2d 58 (7th Cir. 1960).
[Headnote 3]
In this case the entire record was designated, and a supersedeas bond was filed in the exact
amount of the judgment, therefore we conclude that here the appeal from the order denying a
new trial is an appeal from the final judgment.
We now consider the case on its merits. In the latter part of 1966, the respondent and
certain officers of the appellant corporation commenced negotiations for the respondent's
services in providing junkets
6
to the appellant's hotel and casino. On December 10, 1966, by
an exchange of letters, the respondent and the appellant entered into a written agreement
engaging the respondent's services for the commencement of the junkets.
At the time of the initial agreement, the respondent was providing junkets for the
appellant as well as for another hotel in the Las Vegas area.
____________________

6
Within the gaming industry of this state, the word junket is understood to mean a group of individuals
brought together, either outside or within the boundaries of this state for the expressed purpose of transporting
them to either a specific community within this state, or to a specific gaming casino or hotel located within this
state to enable the individuals to participate in gambling games if they so choose.
providing junkets for the appellant as well as for another hotel in the Las Vegas area.
Dissatisfied with this arrangement, the appellant sought the exclusive services of the
respondent. Negotiations resulted in a second written agreement dated February 18, 1967,
which superseded the agreement of December 10, 1966.
The February 18, 1967 agreement, inter alia, provided that the respondent would bring
junkets to the appellant's hotel. Such junkets were to be organized in the state of California,
exclusively for the appellant. The ones from the Los Angeles area were to be provided for a
period of one year from February 18, 1967. The respondent also agreed to organize and
provide junkets from the San Francisco area.
On May 23, 1967, the appellant canceled the San Francisco flights and on June 4, 1967,
refused to accept any more flights whatsoever with the full knowledge that numerous future
junkets had already been arranged.
The appellant claims that the obligations of the respondent contained in the letter
agreement of February 18, 1967, were sufficiently indefinite to render the agreement
unenforceable. Apparently it is claiming that there was no common understanding of the
meaning of the word junket.
[Headnote 4]
We find the appellant's contention to be specious. The parties performed under the terms
of both the December 10, 1966 and the February 18, 1967 agreements. The respondent
organized more than 80 junkets to the appellant's hotel, all were received and the appellant
paid the contract price for each group. It is incongruous for the appellant to now argue that
the terms of the February 18, 1967 agreement were so indefinite as to render it unenforceable.
In Crestview Cemetery Association v. Dieden, 356 P.2d 171 (Cal. 1960), the court stated in
part: When the parties to a contract perform under it and demonstrate by their conduct that
they knew what they were talking about the courts should enforce that intent.
7
In Holland v.
Crummer Corp.,
____________________

7
In Corbin on Contracts 101, page 453, it is stated: Even though the parties have expressed an agreement
in terms so vague and indefinite as to be incapable of interpretation with a reasonable degree of certainty, they
may cure this defect by their subsequent conduct and by their own practical interpretation. If the parties have
used such indefinite language as to leave it uncertain whether or not they intend to close the deal and make a
contract, subsequently proceeding with or accepting performance under it may remove the uncertainty. If the
expression used leave the subject matter, or the price or the time or any other element of the performance
incapable of determination, the rendition of a part or all of the performance may make clear the meaning that
should be given to those expressions.
Holland v. Crummer Corp., 78 Nev. 1, 368 P.2d 63 (1962), this court said: Furthermore the
construction placed upon a contract by the parties thereto is entitled to weight in determining
the proper interpretation of the instrument. Flyge v. Flynn, 63 Nev. 201, 166 P.2d 539. And it
is for the fact-finding tribunal to determine the construction that the parties gave it by their
action. Coleman Bros. Corp. v. Commonwealth, 307 Mass. 205, 29 N.E.2d 832.
Here the district court found that all of the junkets from California to the appellant's hotel,
organized by the respondent prior to the termination of the agreement, were of a quality
similar to those brought to the Aladdin Hotel under a prior agreement and that they were of a
good quality or standard as the term junket is understood in the gaming industry in Clark
County. Furthermore the record reflects that the parties to this action were so thoroughly
associated with the gaming industry that they understood the nature of a junket and that
neither were misled.
If there was a lack of common understanding by the parties about the meaning of the word
junket when they entered into their first agreement on December 10, 1966, that
misunderstanding was completely cured by their subsequent performance.
____________
86 Nev. 769, 769 (1970) State v. von Brincken
THE STATE OF NEVADA, Appellant, v. FRIEDRICH
A. von BRINCKEN, Respondent.
No. 6150
November 18, 1970 476 P.2d 733
Appeal from an order granting a writ of habeas corpus. Second Judicial District Court,
The defendant charged with involuntary manslaughter petitioned for writ of habeas corpus
based on alleged failure of State to establish probable cause. The district court entered an
order granting the writ and the State appealed. The Supreme Court, Zenoff, J., held that
evidence was sufficient to establish probable cause that defendant brought about the death of
his wife since it was reasonably inferable that the wife was struck by defendant's
automobile.
his wife since it was reasonably inferable that the wife was struck by defendant's automobile.
Reversed.
M. Wall, Deputy District Attorney, Washoe County, for Appellant.
Donald W. Gilfillan, of Incline Village, for Respondent.
1. Criminal Law.
At preliminary hearing State did not have burden of negating all inferences as to whether or not defendant
killed victim, but it did have responsibility of establishing facts that would lead to reasonable inference
which must not be so unreasonable or remote as to be unwarranted.
2. Criminal Law.
Probable cause to believe that an offense has been committed and that defendant has committed it
requires that there be more evidence for guilt than against, and probable cause must be supported by
evidence which inclines the mind to believe, though there may be room for doubt; the state of facts must be
such as would lead a man of ordinary caution and prudence to believe and conscientiously entertain a
strong suspicion.
3. Criminal Law.
Evidence presented before grand jury, which returned an indictment charging him with involuntary
manslaughter for the death of his wife, was sufficient to establish probable cause that defendant did bring
about the death of his wife, since it was reasonably inferable that the wife was struck by the defendant's
automobile.
OPINION
By grand jury indictment, Friedrich A. von Brincken was charged with involuntary
manslaughter for the death of his wife, Hope. Von Brincken petitioned for a writ of habeas
corpus on the alleged failure of the state to establish probable cause that he brought about the
death of his wife. The trial court granted the writ and the state appeals.
All of the testimony and evidence presented to the grand jury was consistent. Von
Brincken and his wife dined at the Tahoe Racquet Club restaurant in Incline Village at Lake
Tahoe about 7:00 p.m. on March 20, 1969. The night was snowy, icy and brisk. Following
their customary habits, they drank extensively before, during and after dinner. They left the
restaurant about 10: 15 P.m. and approximately 30 minutes thereafter Hope was found dead
on a street near their home, her body badly crushed.
thereafter Hope was found dead on a street near their home, her body badly crushed. There
were numerous abrasions and lacerations on her body, many ribs on both sides were
fractured, her pelvis was badly broken and her liver and spleen were torn. A doctor testified
that she had met considerable force, that the injuries could not have been caused from a mere
fall and that the injuries came from a crushing-type impact.
Her body was still warm when found. The blood alcohol content was .274 which,
considering that .150 determines intoxication, established that she was extremely intoxicated.
When von Brincken's blood alcohol test was taken at about three o'clock the next morning,
after a lapse of time allowing for dissipation of alcohol in the body, the test showed his
alcohol content to be above the intoxication level.
At no time during their hours in the club were there any indications of discord between the
two. Within a few minutes after leaving the club they were seen in their parked car talking
amiably in front of another restaurant just a short distance away from the club. At the inquest
their three children, ages 16, 18 and 20, testified that their mother and father were very
compatible and that they all enjoyed a happy family relationship. The mother and father
occupied separate bedrooms but only because Mrs. von Brincken had a chronic back ailment
for several years, was a restless sleeper and read books avidly into the long hours of the night.
Von Brincken's statement to the Deputy District Attorney who, in turn, testified before the
grand jury, corroborated that he and his wife were compatible and had no discord.
When they left the second restaurant they traveled down Mays Boulevard, a fairly popular
street considering that Incline Village on a winter night is not heavily traveled. The total
travel time between the tennis club and their home is a relative few moments.
At 10:45 p.m. a woman driving down Mays Boulevard saw a body lying toward the left of
center in the road. She drove to her home and called friends whom she had just left and asked
them to call the police. She then went back to the scene but the police had already arrived
because another witness had evidently spotted the body just after she did and he had called
the police. This was at 10:50 p.m.
A police officer went to the von Brincken home nearby. In the driveway he saw and
examined the Cadillac automobile that the von Brinckens had been driving that evening. The
engine was still warm. The police officer testified that there was a dent in the left headlight
rim, with a fiber adhering to it.
Analysis of the fiber by the police did not connect it with the deceased, however. One of von
Brincken's sons testified that he examined the Cadillac on March 22 at the police substation
where it had been impounded and also saw this dent, as well as another on the other front
fender.
The police officer also noted a mink stole identified as having been worn by Hope that
evening was caught in the door on the passenger side, hanging outside of the car with bits of
gravel along the bottom end of it. On the ground were her checkbook and a sport jacket
belonging to von Brincken. The officer also noted that the von Brincken's Buick automobile
was in the driveway but that it had not been driven.
There was no evidence of a fight in the home. The police officer found von Brincken in his
bedroom about 1:00 a.m. The officer awakened von Brincken, who in the view of the officer
was obviously still drunk.
In his various statements von Brincken related that he did not notice that his wife was not
in the car with him when he was driving home, but that when he got there he remembered
that for some reason his key did not open the back door. He stated that he therefore climbed
through the kitchen window, opened the locked door from the inside and went to bed. At all
times he claimed a complete memory blackout from the time they left the tennis club until he
arrived at the house.
The trial judge ruled that the evidence was sufficient to prove that the death of Mrs. von
Brincken was by the criminal agency of another but that there was not probable cause to hold
Mr. von Brincken for the crime.
The question for our review is simply whether or not it was error for the trial court to hold
that the state had failed to establish probable cause to charge von Brincken with the crime.
1. To repeat what this court has said many times, the sole function of this court is to
determine whether all of the evidence received at the preliminary hearing (and this would
apply to grand jury proceedings as well) establishes probable cause to believe that an offense
has been committed and that defendant committed it. Lamb v. Holsten, 85 Nev. 566, 459
P.2d 771 (1969). The purpose of the preliminary proceedings is to weed out groundless or
unsupported charges of grave offenses and to relieve the accused of the degradation and the
expense of a criminal trial. Many unjustifiable prosecutions are stopped at that point, where
the lack of probable cause is clearly disclosed. People v. Elliot, 354 P.2d 225, 229 (Cal.
1960).
[Headnotes 1, 2]
2. While the state does not have the burden of negating all inferences as to whether or not
Mr. von Brincken killed his wife, it does have the responsibility of establishing facts that will
lead to the reasonable inference that he did. An inference is a deduction which the reason of
the jury (trier of the facts) makes from the facts proved, without an express direction of law to
that effect. While the inference drawn need not be a necessary inference, it still remains that
the inference must be reasonable, not unreasonable or so remote as to be unwarranted.
Probable cause requires that there shall be more evidence for guilt than against. It must be
supported by evidence which inclines the mind to believe, though there may be room for
doubt. The state of facts must be such as would lead a man of ordinary caution and prudence
to believe and conscientiously entertain a strong suspicion. Ex parte Kline, 71 Nev. 124, 282
P.2d 367 (1955).
In past cases certain facts linked the accused with the crime, such as the fingerprints on the
criminal agency in McKenna v. Sheriff, 85 Nev. 524, 458 P.2d 358 (1969); the identification
of the accused as being at the scene of the crime in an argument with the deceased, Howard v.
Sheriff, 83 Nev. 150, 425 P.2d 596 (1967); footsteps leading from the desert to a pickup
truck, evidence of a person lying in wait at the pickup truck, footsteps returning to the desert,
the finding of a shotgun at the original place in the desert and the tracing of the shotgun to the
accused, Hanley v. State, 85 Nev. 154, 451 P.2d 852, 854 (1969); the motivation of jealousy
plus the fact of the accused being alone with the deceased for long hours, together with
bruises on the body indicating death was caused by fierce beating, Miner v. Lamb, 86 Nev.
54, 464 P.2d 451 (1970); but in Lamb v. Holsten, supra, we held that because descriptions of
the accused's clothing and his identity were uncertain the trial court properly granted a writ of
habeas corpus. See also Azbill v. State, 84 Nev. 345, 350, 440 P.2d 1014 (1968).
[Headnote 3]
The facts that we have are clear. Hope von Brincken was in the automobile on the
passenger's side on the front seat with von Brincken. We do not know how she got to the
pavement. She either got out voluntarily, fell out, or was pushed out. Neither the roadway nor
any testimony adds enough to reasonably point to Mr. von Brincken. The mink stole hanging
from the doorway is of no special significance. Though it was Hope's stole and she was
wearing it earlier, this shows no more than that in whatever way she got out of the
automobile the mink stole did not go with her.
was Hope's stole and she was wearing it earlier, this shows no more than that in whatever way
she got out of the automobile the mink stole did not go with her. That she was struck by an
automobile shortly thereafter, is a reasonable probability. Von Brincken's statement to the
Deputy District Attorney and two other statements he gave to the police officers were that he
had no recollection of any of the events, including his wife's absence from the car when he
got home.
Because of the testimony of the police officer and the von Brincken youth before the grand
jury, it is reasonably inferable that Hope von Brincken was struck by Mr. von Brincken's
Cadillac. Without this testimony, the grand jury's conclusion would have been based on mere
speculation, and, of course, the trial court's granting of the writ of habeas corpus would have
been proper. With it, though, the evidence presented satisfies the minimum requirements for
binding a defendant over for trial. From our examination of the record we conclude Mr. von
Brincken may be made to stand trial, though we express no view as to the adequacy of this
evidence to support a conviction. It is meager to say the least.
3. Because this case can be easily disposed of under the foregoing analysis we find the
procedural point raised by respondent in his motion to dismiss the appeal to be of no
consequence.
Reversed.
____________
86 Nev. 774, 774 (1970) Higby v. Sheriff
EVERETT C. HIGBY, Appellant, v. SHERIFF OF
No. 6328
November 20, 1970 476 P.2d 959
Appeal from order of Eighth Judicial District Court, Clark County, denying writ of habeas
corpus; William R. Morse, Judge.
Habeas corpus proceeding. The district court denied relief, and petitioner appealed. The
Supreme Court, Mowbray, J., held that where judge in accepting petitioner's guilty plea to
charge of conspiracy to commit embezzlement failed in canvassing matter with petitioner to
make sure he had a full understanding of what the plea connoted and of its consequence,
petitioner would be permitted to plead anew to the charge.
understanding of what the plea connoted and of its consequence, petitioner would be
permitted to plead anew to the charge.
Alfred Becker, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, Carson City; George E. Franklin, Jr., District
Attorney, and Richard D. Weisbart, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Before guilty plea is accepted, record should affirmatively show that defendant knowingly and
understandingly waived privilege against self-incrimination, right to trial by jury, and right to confront his
accusers, and that plea was voluntary, was not coerced, and was not result of a promise of leniency, that
defendant understands consequences of his plea, and that defendant understands nature of charge itself.
2. Criminal Law.
Where judge, in accepting petitioner's guilty plea to charge of conspiracy to commit embezzlement, failed
in canvassing matter with petitioner to make sure he had a full understanding of what the plea connoted and
of its consequence, petitioner would be permitted to plead anew to the charge.
OPINION
This appeal is centered about our interpretation of the mandatory language set forth in
subsection 1 of NRS 174.035, which was adopted by the Legislature in 1967. The statute
prescribes the procedure that the judges of our State shall follow when accepting a
defendant's guilty plea or a plea of nolo contendere. It provides as follows:
1. A defendant may plead not guilty, guilty or, with the consent of the court, nolo
contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or
a plea of nolo contendere without first addressing the defendant personally and determining
that the plea is made voluntarily with understanding of the nature of the charge and
consequences of the plea. (Emphasis added.)
1. Appellant Everett C. Higby filed a petition for habeas in the district court on April 16,
1970, one month after he had entered a guilty plea (on March 17, 1970) to the charge of
conspiracy to commit embezzlement. The predicate for Higby's habeas application was that
the mandates of subsection 1 of NRS 174.035, supra, were not followed by the judge who
received his guilty plea and that as a result his guilty plea was not "made voluntarily with
understanding of the nature of the charge and consequences of the plea."
Higby's habeas application was that the mandates of subsection 1 of NRS 174.035, supra,
were not followed by the judge who received his guilty plea and that as a result his guilty plea
was not made voluntarily with understanding of the nature of the charge and consequences
of the plea. The colloquy between the judge and Higby that occurred when Higby entered his
plea follows:
Mr. Harrington [Assistant District Attorney, Clark County]: Your Honor, we request
leave at this time to file an amendment to the information.
Court [William P. Compton, District Judge]: Any objection?
Mr. Abbatangelo [Counsel for defendant Higby]: No objection.
Court: It may be filed.
Mr. Abbatangelo: We waive the reading of the amended information, and we are
prepared to enter a plea, Your Honor.
Court: Everett C. Higby, what is your plea to the charge contained in the information as
amended, guilty or not guilty?
A [Defendant Higby] Guilty.
Court: Very well. Mr. Higby, were you made any promises or inducements to condition
you to enter a plea of guilty as to this charge?
A No.
Court: Were you advised as to what the possible penalty is?
A Yes.
Court: What did they tell you?
A Pay back the money.
Court: The penalty I said.
A Oh, one year.
Court: No one threatened you? In other words we can say it was strictly voluntary on your
part?
A Yes, sir.
Court: You knowing what the penalty could be?
A Yes.
Court: Did anyone tell you as to what the judge might do?
A No.
Court: Very well, the plea will be entered.
The judge ordered a presentence investigation report, and after he had received it he
sentenced Higby on April 10, 1970, to 6 months' confinement and a fine of $2,500.1
Thereafter, on April 16 Higby filed this petition for habeas, which was heard before
another judge and denied.
to 6 months' confinement and a fine of $2,500.
1
Thereafter, on April 16 Higby filed this
petition for habeas, which was heard before another judge and denied. Hence, this appeal. We
reverse, and we remand the case to the district court with instructions that Higby be permitted
to plead anew to the charge in the manner prescribed by the statute.
2. Subsection 1 of NRS 174.035, supra, is identical with the first two sentences of Rule 11
of the Federal Rules of Criminal Procedure. 18 U.S.C.A. That Rule provides:
A defendant may plead not guilty, guilty or, with the consent of the court, nolo
contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or
a plea of nolo contendere without first addressing the defendant personally and determining
that the plea is made voluntarily with understanding of the nature of the charge and the
consequences of the plea. . . .
And that Rule has been recently interpreted by the Supreme Court of the United States to
mean that, before a judge may accept a guilty plea, he must canvass with the defendant and
the record must show, and the judge must be satisfied, that (1) the plea is voluntary, i.e., no
coercion or duress; (2) the defendant knows the nature of the charge; and (3) the defendant
knows the consequences of the guilty plea. McCarthy v. United States, 394 U.S. 459 (1969).
In that case, McCarthy had entered a guilty plea to a tax evasion charge. The judge asked him
whether he desired to plead guilty; whether he understood that a guilty plea subjected him to
imprisonment up to 5 years and a maximum fine of $10,000; whether he understood that in
entering a guilty plea he waived his right to a jury trial; and, finally, whether he had been
induced by any threats or promises to enter the guilty plea. The colloquy between the judge
and McCarthy, 394 U.S. at 472, is set forth in the margin.
2

After the judge imposed sentence of 1 year's confinement in jail and a $2,500 fine,
McCarthy's counsel moved to suspend the sentence.
____________________

1
There was no mention of a possible fine when the judge received Higby's plea on March 17.

2
Mr. Sokol [petitioner's counsel]: . . . If the Court please, I have advised Mr. McCarthy of the consequences
of a plea. At this time, in his behalf I would like to withdraw the plea of not guilty heretofore entered to Count 2,
and enter a plea of guilty to Count 2. There are three Counts.
The Court: Is that satisfactory to the government?
Mr. Hughes [Government counsel]: Satisfactory to the government, your Honor. The government will move
to dismiss Counts 1 and 3.
in jail and a $2,500 fine, McCarthy's counsel moved to suspend the sentence. The motion was
denied. McCarthy then appealed to the United States Court of Appeals and argued that his
plea should be set aside because it had been accepted in violation of Rule 11 of the Federal
Rules of Criminal Procedure. Specifically, McCarthy contended (1) that the district court had
accepted his plea without first addressing [him] . . . personally and determining that the
plea [was] . . . made voluntarily with understanding of the nature of the charge . . . ," and
{2) that the court had entered judgment without determining "that there [was] . . . a
factual basis for the plea."
____________________
The Court: There will be a disposition in regard to the other Count?
Mr. Sokol: He has just moved to dismiss Counts 1 and 3.
The Court: Not until the plea is accepted and there is a judgment thereon.
Mr. Hughes: Correct.
The Court: This is tax evasion, five and ten?
Mr. Hughes: Yes, your Honor, a maximum penalty of five years and $10,000.
The Court: Mr. McCarthy, your lawyer tells me that you want to enter a plea of guilty to this second Count of
this indictment; is that true?
Defendant McCarthy: Yes, your Honor.
The Court: You understand on your plea of guilty to the second Count of this indictment, you are waiving
your right to a jury trial?
The Court: You understand on your plea of guilty you may be incarcerated for a term not to exceed five
years?
The Court: You understand you may be fined in an amount not in excess of $10,000?
The Court: Knowing all that, you still persist in your plea of guilty?
The Court: The record will show that this defendant, after being advised of the consequences of his plea to
Count 2 of this indictment, persists in his plea. The plea will be accepted. There will be a finding of guilty in the
manner and form as charged in Count 2 of this indictment, judgment on that finding.
Now, in regard to Counts 1 and 3?
Mr. Hughes: Your Honor, the government will move to dismiss them. I would also request the Court to ask
whether or not any promises or threats have been made.
Mr. Sokol: No, no promises or threats.
The Court: I am going to ask the defendant himself. Have any promises been made to you for entering a plea
of guilty?
Defendant McCarthy: No, your Honor.
The Court: Has anybody threatened you that if you didn't enter a plea of guilty something would happen to
you?
Defendant McCarthy: I beg your pardon?
The Court: Has anybody threatened you to enter a plea of guilty?
Defendant McCarthy: That's right, of my own volition, your Honor.
The Court: All right. . . .
[him] . . . personally and determining that the plea [was] . . . made voluntarily with
understanding of the nature of the charge . . . , and (2) that the court had entered judgment
without determining that there [was] . . . a factual basis for the plea. 394 U.S. at 462. The
Court of Appeals affirmed McCarthy's conviction and held that the district judge had
complied with Rule 11.
The Supreme Court of the United States granted certiorari and reversed McCarthy's
conviction, on the ground that the district judge had not complied with Rule 11. In an opinion
authored by Mr. Chief Justice Warren, in which all members of the Court concurred (Mr.
Justice Black concurring in a separate opinion), the Court had this to say regarding the
application of Rule 11 to guilty pleas (394 U.S. at 464):
Rule 11 expressly directs the district judge to inquire whether a defendant who pleads
guilty understands the nature of the charge against him and whether he is aware of the
consequences of his plea. At oral argument, however, counsel for the Government repeatedly
conceded that the judge did not personally inquire whether petitioner understood the nature of
the charge. At one point, counsel stated quite explicitly: The subject on which he [the
District Judge] did not directly address the defendant, which is raised here, is the question of
the defendant's understanding of the charges.' Nevertheless, the Government argues that since
petitioner stated his desire to plead guilty, and since he was informed of the consequences of
his plea, the District Court could properly assume that petitioner was entering the plea with a
complete understanding of the charge against him.' (Emphasis added.)
We cannot accept this argument, which completely ignores the two purposes of Rule 11
and the reasons for its recent amendment. First, although the procedure embodied in Rule 11
has not been held to be constitutionally mandated, it is designed to assist the district judge in
making the constitutionally required determination that a defendant's guilty plea is truly
voluntary. Second, the Rule is intended to produce a complete record at the time the plea is
entered of the factors relevant to this voluntariness determination. Thus, the more
meticulously the Rule is adhered to, the more it tends to discourage, or at least to enable more
expeditious disposition of, the numerous and often frivolous post-conviction attacks on the
constitutional validity of guilty pleas. (Footnotes omitted.)
The Court concluded (394 U.S. at 472):
. . . Our holding that a defendant whose plea has been accepted in violation of Rule 11
should be afforded the opportunity to plead anew not only will insure that every accused
is afforded those procedural safeguards, but also will help reduce the great waste of
judicial resources required to process the frivolous attacks on guilty plea convictions that
are encouraged, and are more difficult to dispose of, when the original record is
inadequate."
accepted in violation of Rule 11 should be afforded the opportunity to plead anew not only
will insure that every accused is afforded those procedural safeguards, but also will help
reduce the great waste of judicial resources required to process the frivolous attacks on guilty
plea convictions that are encouraged, and are more difficult to dispose of, when the original
record is inadequate.
It is true that the High Court, in McCarthy, declared that its opinion rested solely on the
Court's supervisory power over the lower federal courts and that the Court did not decide the
case on constitutional grounds
3
.
3. However, 2 months later, on June 2, 1969, in Boykin v. Alabama, 395 U.S. 238 (1969),
the High Court did declare that guilty plea taking in state courts involved federal
constitutional rights. The Court said, 395 U.S. at 243:
Several federal constitutional rights are involved in a waiver that takes place when a plea
of guilty is entered in a state criminal trial. First, is the privilege against compulsory
self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason
of the Fourteenth. Malloy v. Hogan, 378 U.S. 1 [1964]. Second, is the right to trial by jury.
Duncan v. Louisiana, 391 U.S. 145 [1968]. Third, is the right to confront one's accusers.
Pointer v. Texas, 380 U.S. 400 [1965]. We cannot presume a waiver of these three important
federal rights from a silent record.
What is at stake for an accused facing death or imprisonment demands the utmost
solicitude of which courts are capable in canvassing the matter with the accused to make sure
he has a full understanding of what the plea connotes and of its consequence. When the judge
discharges that function, he leaves a record adequate for any review that may be later sought
(Garner v. Louisiana, 368 U.S. 157, 173 [1961]; Specht v. Patterson, 386 U.S. 605, 610
[1967]), and forestalls the spin-off of collateral proceedings that seek to probe murky
memories. (Footnotes omitted; emphasis added.)
4
Cf. United States ex rel. Ward v. Deegan,
310 F.Supp. 1076, 107S {S.D.N.Y. 1970), and Brady v. United States, 397 U.S. 742,
747-74S {1970).
____________________

3
In McCarthy, supra, 394 U.S. at 464:
. . . This decision is based solely upon our construction of Rule 11 and is made pursuant to our supervisory
power over the lower federal courts; we do not reach any of the constitutional arguments petitioner urges as
additional grounds for reversal.

4
Mr. Justice Harlan, joined by Mr. Justice Black, wrote in his dissent, 395 U.S. at 245:
. . . The Court thus in effect fastens upon the States, as a matter of federal constitutional law, the rigid
prophylactic requirements of Rule 11 of the Federal Rules of Criminal Procedure.
1078 (S.D.N.Y. 1970), and Brady v. United States, 397 U.S. 742, 747-748 (1970).
[Headnote 1]
Concededly, it is difficult to prescribe a precise procedure or set of questions to be asked at
every guilty plea hearing. It necessarily must vary from case to case. We agree, however, that
certain minimal requirements may be specified. The record should affirmatively show:
1. The defendant knowingly and understandingly waived (a) the privilege against
self-incrimination, (b) the right to trial by jury, and (c) the right to confront his accusers. In
reference to these rights and privileges, it was stated in United States ex rel. Ward v. Deegan,
supra, 310 F.Supp. at 1078: . . . [I]t is clearly the duty of a state court judge taking a guilty
plea to canvass with a defendant at least those consequences of his plea so that the
voluntariness of the plea will be established on the record. (Emphasis added.)
2. The plea was voluntary, was not coerced, and was not the result of a promise of
leniency.
3. The defendant understands the consequences of his plea. The judge should inform the
defendant of the range of punishments that may be imposed and then ask whether it is his
intention to plead guilty.
4. The defendant understands the nature of the charge itself, i.e., the elements of the
crime to which he is pleading guilty.
[Headnote 2]
We conclude that the judge, in accepting Higby's plea to the charge of conspiracy to
commit embezzlement, failed in canvassing the matter with the accused [Higby] to make
sure he ha[d] a full understanding of what the plea connote[d] and of its consequence, as
required by Boykin, supra, 395 U.S. at 244. We therefore reverse the order denying habeas,
and we remand the case to the district court to permit Higby to plead anew to the charge.
Higby's plea was received on March 17, 1970, after Boykin was decided by the Supreme
Court. We have held that Boykin is not to receive retroactive application. See Anushevitz v.
Warden, 86 Nev. 191, 467 P.2d 115 (1970), and Stocks v. Warden, 86 Nev. 758, 476 P.2d
469 (1970). However, we do take this opportunity to direct the attention of the district judges
to the provisions of subsection 1 of NRS 174.035, and we urge that when they receive a guilty
plea the minimal requirements as specified, supra, be followed to reduce, as the Court said in
McCarthy, 394 U.S. at 472, "the great waste of judicial resources required to process the
frivolous attacks on guilty plea convictions that are encouraged, and are more difficult to
dispose of, when the original record is inadequate."
394 U.S. at 472, the great waste of judicial resources required to process the frivolous
attacks on guilty plea convictions that are encouraged, and are more difficult to dispose of,
when the original record is inadequate.
Collins C. J., Zenoff, Batjer, and Thompson, JJ., concur.
____________
86 Nev. 782, 782 (1970) Eggers v. Harrah's Club, Inc.
MARGARET EGGERS and HOWARD L. EGGERS, Appellants, v. HARRAH'S CLUB,
INC., a Nevada Corporation, Respondent.
No. 6027
November 25, 1970 476 P.2d 948
Appeal from a judgment of the Second Judicial District Court, Washoe County, directing a
verdict pursuant to Rule 50(a) of the Nevada Rules of Civil Procedure; John W. Barrett,
Judge.
Personal injury action arising out of fall in defendant's club. The district court granted
defendant's motion for a directed verdict, and plaintiff appealed. The Supreme Court held that
evidence on behalf of invitee who fell in carpeted well-lit area and whose claim that she
tripped over sign was based on statement made by third party who was not presented as
witness or identified failed to establish any negligence on owner's part.
Affirmed.
Gordon C. Shelley, of Reno, for Appellants.
Vargas, Bartlett & Dixon, of Reno, for Respondent.
1. Clubs.
Evidence on behalf of invitee who fell in carpeted well-lit area in defendant's club and whose claim that
she tripped over sign was based on statement made by third party who was not presented as witness or
identified failed to establish any negligence on owner's part.
2. Negligence.
Owner or occupant of property is not insurer of safety of invitee thereon, and mere fact there was
accident or other event and someone was injured is not of itself sufficient to predicate liability.
OPINION
Per Curiam:
On December 15, 1966, appellants, Mr. and Mrs. Eggers, were patrons at Harrah's Club at
South Lake Tahoe. First having breakfast in the coffee shop, they decided to play Keno at the
Orange Keno counter. After they had each played a game or two, Mr. Eggers decided it was
time to leave, and stated to Mrs. Eggers, I am going back. He then left the gaming area.
However, Mrs. Eggers stayed to play another Keno ticket.
Mrs. Eggers was standing in the aisle by the Orange Keno counter, which she had termed
to be quite large, waiting for the winning numbers to be posted. She admitted that the lighting
was very good and further described the number of people in the club, particularly around the
Keno counter, as being very sparse, very few people. Mrs. Eggers also stated that she was
anxious for the Keno game to finish, since she knew her husband was waiting.
After determining that she did not have a winning ticket, she picked up her purse, began
putting on her coat, turned left and started walking in a southerly direction down the aisle.
She had turned sufficiently so that she was looking in the direction in which she was walking,
and later stated that she did not see anything obstructing her view.
Mrs. Eggers took between one (1) to five (5) steps before stumbling, and then traveled
approximately four (4) or five (5) more steps before actually falling. Mrs. Eggers admitted
that of her own personal knowledge she did not know what caused her to fall. The only
reason she thought she fell over a sign, which was positioned in the aisle against the wall, was
because she heard a person state, She caught her foot on the sign over there. However, this
person was not produced at the trial, nor was his identity made known. No testimony was
offered at the trial of anyone who saw Mrs. Eggers fall.
The sign in question was situated against the wall of an aisle twelve (12) feet in width. The
aisle is carpeted, and bordered on the west by the Orange Keno counter and on the east by a
row of slot machines. The sign itself is approximately two and one-half to three feet in
width and stands as high as the average person.
two and one-half to three feet in width and stands as high as the average person. The sign was
being used to promote a particular gaming attraction, The World's Greatest Punchboard.
Mrs. Eggers is a woman forty-seven (47) years old, and admitted she had trouble seeing
close up. She suffered a disc herniation as a result of the fall.
[Headnote 1]
The district court granted respondent's motion for a directed verdict because appellants
were unable to prove, nor could a valid inference be drawn, as to what caused Mrs. Eggers to
fall. We have reviewed the record most favorably to appellants, and are in agreement with the
lower court's determination. There was no evidence presented either directly or inferentially,
tending to show negligence or fault on the respondent's part. The only fact which was proven
was that Mrs. Eggers fell, with no explanation why. Rickard v. City of Reno, 71 Nev. 266,
288 P.2d 209 (1955).
[Headnote 2]
This court has held before that the owner or occupant of property is not an insurer of the
safety of an invitee thereon; that the mere fact there was an accident or other event and
someone was injured is not of itself sufficient to predicate liability. Negligence is never
presumed but must be established by substantial evidence. Gunlock v. New Frontier Hotel, 78
Nev. 182, 370 P.2d 682 (1962).
Affirmed.
____________
86 Nev. 784, 784 (1970) Twardowski v. Westward Ho Motels
ARTHUR B. TWARDOWSKI, Individually, and SUSAN TWARDOWSKI, a Minor, By and
Through Her Guardian Ad Litem, ARTHUR B. TWARDOWSKI, Appellants, v.
WESTWARD HO MOTELS, INC., a Nevada Corp., DEAN PETERSEN, ANDRO
PETERSEN, FAYE PETERSEN, SAM ZONA, LILA ZONA, and Limited Partners of a
Limited Partnership, Known as 2900 HOUSE, Respondents.
No. 6139
November 25, 1970 476 P.2d 946
Appeal from judgment notwithstanding the jury verdict of the Eighth Judicial District
Court, Clark County; Alvin Wartman, Judge.
Action for injuries suffered by paying guests' child on swimming pool slide at defendants'
motel, when handrails broke and she fell to concrete.
she fell to concrete. The district court entered judgment notwithstanding verdict for plaintiffs
and plaintiffs appealed. The Supreme Court, Collins, C.J., held that jury question was
presented as to whether motel owners could have discovered defect in handrails on top of
swimming pool slide by reasonable inspection.
Judgment N.O.V. reversed, jury verdict reinstated.
Harry E. Claiborne and James J. Brown, of Las Vegas, for Appellants.
Singleton, Beckley, DeLanoy, Jemison & Reid, Chartered, of Las Vegas, for Respondents.
1. Innkeepers.
Where swimming pool and slide were inducement to attract travelers to patronize defendants' motel,
defendants owed duty to provide patrons with safe slide, to warn them of any dangers known to them in
using slide and to inspect slide for latent or concealed dangers, and if reasonable inspection would have
revealed such danger, defendants were chargeable with constructive notice of it.
2. Innkeepers.
Jury question was presented as to whether defendant motel owners could have discovered defect in
handrails on top of swimming pool slide by reasonable inspection, in action for injuries suffered by paying
guests' child when, as she reached top of slide's ladder, the handrails broke causing her to fall to concrete
six feet below.
OPINION
This is an appeal from a judgment notwithstanding the jury verdict in the amount of
$9,000 favoring appellant in the court below. We reverse that judgment and reinstate the
jury's verdict in favor of appellant.
Susan Twardowski, a child of 12 years, and her parents, while travelling from Illinois to
California on a vacation trip, stopped in Las Vegas in the afternoon of July 17, 1966, and
registered as paying guests at the Westward Ho Motel. That afternoon the family swam in a
pool provided by the motel. Susan, together with other children present, used a pool-side slide
to enter the water. No injuries resulted to any of them through use of the slide.
At 8 a.m. the following morning, before departing for California, Susan and her brother
again went swimming. They swam for about one-half hour when Susan decided again to use
the slide.
use the slide. She tested the lower handrail before ascending the steps and found them to be
firm. As she reached the top of the slide's ladder, the left handrail broke away and swung
outward. She lost her balance and grabbed for the right handrail, which also broke and swung
inward. She fell to the concrete six feet below and landed on her face. She suffered damage to
her front teeth, one of which was extracted, requiring a temporary bridge and future dental
work.
Following presentation of appellants' case, respondents moved for dismissal pursuant to
NRCP 41(b). That motion was denied. Respondents elected to stand on that motion and
presented no testimony or evidence. The jury returned a verdict in favor of appellants for
$9,000. The lower court thereafter entered judgment in favor of respondents, notwithstanding
that verdict, pursuant to NRCP 50(b), and dismissed the action on the ground that appellants
had failed to sustain their burden of proof and that respondents did not owe appellants an
absolute duty of inspection of the slide. It is from that judgment N.O.V. this appeal is taken.
The outcome of this appeal depends upon two issues:
1. What is the duty of care owed an invitee by a landowner?
2. Whether appellants established a prima facie case.
Appellants contend that Susan, as a business invitee of Westward Ho Motel, was owed a
duty of ordinary care in providing premises reasonably safe for her use, and that if the motel
knew, or in the exercise of reasonable care should have known, by active or constructive
knowledge, of hidden, latent or concealed defects in the slide, it should have warned her. She
contends she was not warned and as a result of the breach of that duty she was injured. She
presented a prima facie case, and in the absence of evidence from respondents, appellants are
entitled to the verdict of the jury in their favor.
Respondents, on the other hand, contend that appellants, by failing to join as defendants
other potentially responsible persons such as the manufacturer and seller of the slide, could
not rely upon the doctrine of res ipsa loquitur, and absent reliance on that doctrine had the
burden of proving negligence against the motel by showing the motel failed to make a
reasonable inspection of the slide and that if such reasonable inspection was made it would
have revealed the latent defect in the handrails. Respondents assert appellants failed in
making even a prima facie case, and persuaded the lower court to adopt its contention and
grant the judgment N.O.V.
1. In reviewing a judgment N.O.V., the standard is the same as when reviewing a motion
for directed verdict.
same as when reviewing a motion for directed verdict. 5 Moore's Fed. Proc. 50.07 [2]; Bliss
v. DePrang, 81 Nev. 599, 407 P.2d 726 (1965). We must view the evidence most favorably to
the party against whom the judgment N.O.V. is granted. See Baker v. Simonds, 79 Nev. 434,
386 P.2d 86 (1963).
2. A landowner or possessor must exercise ordinary care and prudence to render the
premises reasonably safe for the visit of a person invited on his premises for business
purposes. Hotels El Rancho v. Pray, 64 Nev. 591, at 606, 187 P.2d 568 (1947). In Nevada
Transfer and Warehouse Co. v. Peterson, 60 Nev. 87, 89 P.2d 8 (1939), the general rule was
said to be that an owner or occupant of lands or buildings who knows, or in the exercise of
reasonable care should know, of their dangerous and unsafe condition and who invites others
to enter upon the property owes to such invitees a duty to warn them of the danger, where the
peril is hidden, latent, or concealed or the invitees are without knowledge thereof.' In dealing
with a hidden or latent defect as compared to an obvious danger, this court said in Worth v.
Reed, 79 Nev. 351, 384 P.2d 1017 (1963), If a peril is hidden, latent or concealed, ordinary
care requires an owner, with actual or constructive knowledge of the peril, to warn the invited
guest who is without such knowledge. . . . On the other hand, if the danger is obvious,'
ordinary care does not require a warning from the owner because obviousness' serves the
same purpose. 79 Nev. at 354. Where the danger is obvious, a plaintiff is barred from
recovery, Gunlock v. New Frontier Hotel, 78 Nev. 182, 370 P.2d 682 (1962), but an invitee's
knowledge of a dangerous condition may not bar recovery if his mission justifies encounter of
it. Rogers v. Tore, Ltd., 85 Nev. 548, 459 P.2d 214 (1969).
Furthermore, the owner or occupier of land has a duty to an invitee to inspect the premises
to discover dangerous conditions not known to him and to take reasonable precautions to
protect the invitee from dangers which are foreseeable from the arrangement or use. Prosser,
Handbook of The Law of Torts 402 (3d ed. 1964). See also 2 F. Harper & F. James, The Law
of Torts 27.12, at 1487 (1956).
[Headnote 1]
Here, the swimming pool and the slide were an inducement to attract travelers to patronize
the motel. The motel owed a duty to provide their patrons with a safe slide and to warn their
guests of any dangers known to them in using the slide.
Their duty went further, however, and included a duty to inspect the slide for latent or
concealed dangers, and if a reasonable inspection would have revealed such danger they were
chargeable with constructive notice of it. Whether the motel fulfilled these duties were
questions of fact to be submitted to the jury.
[Headnote 2]
3. To prevail below and to establish a prima facie case, respondents urge that appellants'
evidence would have to show (1) That the Defendant failed to make a reasonable inspection
of the premises; and (2) that a reasonable inspection would have revealed the hazard.
However, appellants do not claim the motel had actual notice of the defect but only
constructive notice. It is a jury question whether the defect would have been discovered by
reasonable inspection. Tierstein v. Licht, 345 P.2d 341, 344 (Cal.Dist.Ct.App. 1959);
Stephens v. Akron Palace Theatre Corp., 5 N.E.2d 499 (Ohio Ct. App. 1936). Constructive
knowledge of a latent defect can be established by circumstantial evidence. Frazier v.
Yor-Way Market, 8 Cal.Rptr. 335 (Dist.Ct.App. 1960).
Reviewing the circumstantial evidence and drawing inference in this case in a light most
favorable to appellants, shows that at the time of the accident Susan was 5'2 tall and weighed
but 98 pounds. She tested the lower handrails, but after climbing the ladder she took hold of
first the left and then the right handrail, and both gave way. The break in the handrail
occurred in the place where they were attached to the slide. The slide had been in operation
for a year and a half without any inspection by the motel. From that evidence, the jury could
have inferred that if the motel had made a reasonable inspection of the slide they would have
discovered the latent defect which caused Susan's injuries. That constructive notice of the
hazard is sufficient to establish a prima facie case in favor of appellants.
Judgment N.O.V. set aside and the jury verdict in favor of appellants is reinstated. The
lower court shall also reconsider assessment of trial costs.
____________
86 Nev. 789, 789 (1970) Stojanovich v. Stojanovich
PETOR STOJANOVICH, Appellant, v. BARBARA A.
STOJANOVICH, Respondent.
No. 6141
November 25, 1970 476 P.2d 950
O'Donnell, Judge.
Husband appealed from judgment and decree of divorce rendered by the district court. The
Supreme Court, Collins, C. J., held that award of entire equity in community property home
to divorced wife was abuse of discretion where this did not result in reasonably equal division
of community property.
Reversed in part and remanded for a limited new trial.
Denton & Monsey, of Las Vegas, for Appellant.
Harry E. Claiborne and James J. Brown, of Las Vegas, for Respondent.
1. Divorce.
Award of entire equity in community property home to divorced wife was abuse of discretion where this
did not result in reasonably equal division of community property. NRS 125.150, subd. 1.
2. Divorce.
Where divorce judgment did not state that husband's separate property was set aside to wife for her
support or for support of children and record did not indicate that transfer of ownership was needed for that
purpose, court was without power to divest husband of his separate property. NRS 125.150, subd. 3.
OPINION
This is an appeal from a judgment and decree of divorce by appellant husband (defendant
and counterclaimant below) in favor of respondent wife (plaintiff and counterdefendant
below). The lower court awarded the wife a decree of divorce, custody of two children,
ordered the husband to pay child support (but not alimony) and adjudicated the property
rights and interests of the parties. The only issue before us has to do with the judgment of the
lower court adjudicating those property rights and whether that court abused its discretion.
We feel that it did, and therefore reverse the decision and remand for a limited new trial on
that narrow question.
Petor and Barbara were married in Reno in October, 1960. Prior to their marriage, Petor
lived in Las Vegas where he worked in the gaming industry. Slightly over four years before
the marriage, Petor purchased a home for $15,800 on a long-term contract. The home was
furnished when Petor and Barbara took up residence there, but new and additional items of
furniture were acquired following their marriage. Prior to the marriage, Petor added
improvements to the house valued at approximately $6,500. The home was further improved
after the marriage in the approximate value of $10,000. At the time of the trial, the estimated
market value of the house was $28,000, but there was still outstanding a first deed of trust of
approximately $10,800, leaving an equity of approximately $18,000 to be dealt with. It is that
equity and the lower court's ruling thereon which creates the principal issue on appeal.
Other evidence shows that two children, a boy and a girl, were born of the marriage, whose
ages at the time of the divorce were 6 and 5, respectively. Barbara was given their custody,
with reasonable visitation rights and temporary periods of custody reserved to Petor. Petor
was ordered to pay $150 per month for the support and maintenance of each child except
when in his temporary custody. No issue arises from that part of the decree.
The evidence further shows that Petor is employed as a pit boss at a gambling casino and
was earning at the time of the divorce approximately $21,000 per year. Barbara is employed
as a cocktail waitress at a strip hotel, earning wages of approximately $130 per month but
receiving considerable tokes which make her gross earnings somewhere between $550 per
month, as she contended, or $50 to $75 per day as Petor contended. In any event, the court did
not grant Barbara alimony.
The court found Petor had treated Barbara with extreme cruelty, both mental and physical,
and granted Barbara the divorce and her costs of suit.
The court found the community property of the parties to consist of the following:
(a) Equity in dwelling house located at 1509 East Bonanza, Las Vegas, Nevada.
(b) Furniture, furnishings, appliances, fixtures and household items situated in said
dwelling house, except the furniture in Bedroom No.2.
(c) 1967 Ford automobile.
(d) 1962 Chevrolet Corvair automobile.
(e) 400 shares of the common capital stock of American Silver Company.
(f) 218 shares of Enterprise Fund.
(g) 54 shares of Value Lines.
(h) One declining term policy of life insurance on the life of the Defendant, written with
Founders Insurance Company.
(i) One $10,000.00 accidental death policy on the life of the Defendant, written with
Combine Insurance Company.
(j) One $10,000.00 life insurance policy on the life of Plaintiff, written with Continental
Life Insurance Company.
(k) Joint banking account in the First National Bank of Nevada, Las Vegas, Nevada.
The court also found that stock in the Nancy Lee Mining Co. and the furniture in Bedroom
No. 2 were the separate property of Petor.
In dividing the community property of the parties, the court awarded to Barbara the
following:
(a) Equity in dwelling house located at 1509 East Bonanza, Las Vegas, Nevada.
(b) Furniture, furnishings, appliances, fixtures and household items situated in said
dwelling house, except the furniture in Bedroom No. 2.
(c) 1962 Chevrolet Corvair automobile.
(d) One $10,000.00 life insurance policy on the life of Plaintiff [Barbara], written with
Continental Life Insurance Company.
The court awarded Petor, as his share of the community property, the following:
(a) 1967 Ford automobile.
(b) One declining term policy of life insurance on the life of the Defendant [Petor], written
with Founders Insurance Company.
(c) One $10,000.00 accidental death policy on the life of the Defendant [Petor], written
with Combine Insurance Company.
(d) Joint banking account in the First National Bank of Nevada, Las Vegas, Nevada.
The following items of community property were divided equally between Barbara and
Petor:
(a) 400 shares of the common capital stock of American Silver Company.
(b) 218 shares of Enterprise Fund.
(c) 54 shares of Value Lines.
Appellant contends the lower court abused its discretion in its determination the home was
community property and in awarding it to Respondent. Appellant also urges the court erred in
ruling all the furniture was the community property of the parties and granting it to
Respondent.
Respondent on the other hand, contends that, The trial court is directed under the[se]
provisions of N.R.S. 125.150(1), in a divorce, to make such disposition of the community
property as shall appear just and equitable.' In making such disposition the court is directed to
consider the respective merits of the parties;' the condition in which they will be left by such
divorce;' and through whom the property was acquired;' and the burdens . . . imposed upon
it, for the benefit of the children.'
There was substantial evidence before the court on each of the aforementioned factors,
justifying the court's manner of disposition of the community property.
In its preliminary decision from the bench, the trial judge explained his reasons for
awarding the home to Barbara as community property in the following way:
By Mr. Denton: Did you intend that the house be set aside to the wife without
compensation to the husband?
By The Court: I tried to compensate him as I just stated by giving him the entire bank
account, $800.00, and the stock. I feel in the house, in case you want my record, that she has
lived there the entire length of this marriage and that it would be impossible to split sole and
separate property; that her community funds have gone over there since their marriage and
they have shared in the improvements and there is no way I could possibly try to split it up
this way or that way. I just feel that she has the children and she is the wife and that the home
goes to her, that's the end of that, as her sole and separate property.
The issues before us in this appeal are these:
I. Did the lower court violate its discretion in awarding the entire equity of the parties in
the home to the wife as community property?
II. Did the court erroneously set aside separate property of the husband to the wife?
1. There is no issue before us whether the trial judge correctly determined the home of the
parties to be community rather than separate property. Appellant accepts without objection
the lower court's determination the house was community property, and challenges only the
award of that community asset between the parties.
2. The clear intent of the lower court's order in dividing the community property of the
parties, particularly the home, the stock in the American Silver Company, the shares in the
Enterprise Fund, and the stock in Value Lines, was to make a reasonably equal division.
a reasonably equal division. He attempted to equalize the interest given the wife in the home
by awarding the husband her interest in the community bank account. That being his purpose,
he failed, in our view, accomplishment of it. It is in that determination he overstepped the
bounds of his judicial discretion.
[Headnote 1]
3. The lower court was concerned principally with support and proper maintenance of the
children, not the wife. So far as the home was concerned and the continuing opportunity of
the children to reside in the neighborhood of their birth, among their friends and in familiar
surroundings during their minority, that could just as well have been accomplished by
imposing a burden upon it for the benefit of the children as permitted in NRS 125.150(1),
1
allowing them and the mother to continue to live there during their minority,
2
which does
not require vesting sole ownership of the home in the wife. While the lower court is vested
with broad discretion in dividing community property, Herzog v. Herzog, 69 Nev. 286, 249
P.2d 533 (1952), there must be a clearly expressed reason in what manner, for what purpose,
and for whose benefit that division is made. The general rule announced by this court is,
Equal distribution of the community property appears to be the rule in most cases. Weeks
v. Weeks, 75 Nev. 411, at 415, 345 P.2d 228 (1959). Here, the monetary support of the
children was assured both by the allowance of $150 per month for each child, as well as the
substantial income of the father and the jurisdiction reserved by the trial court to reconsider
that amount as the reasonable future needs of the children might indicate.
____________________

1
NRS 125.150(1) reads: In granting a divorce, the court may award such alimony to the wife and shall
make such disposition of the community property of the parties as shall appear just and equitable, having regard
to the respective merits of the parties and to the condition in which they will be left by such divorce, and to the
party through whom the property was acquired, and to the burdens, if any, imposed upon it, for the benefit of the
children.

2
We think the trial court might well have entered an order vesting the ownership of the house in the parties
jointly, requiring the husband to bear part or even a lion's share of the cost of meeting the monthly mortgage
payments, taxes and insurance, imposing a burden on it that the former wife and children be permitted to live
there during the children's minority and thereafter ordering the equity divided in some reasonable manner
between the parties. There are any number of arrangements which could accomplish that objective.
[Headnote 2]
4. Other items of the husband's separate property were also set aside to the wife.
3
The
judgment does not state that the husband's separate property was set aside to the wife for her
support or for the support of children (NRS 125.150(3)) nor does the record indicate that a
transfer of ownership was needed for that purpose. Accordingly, the court was without power
to divest the husband of his separate property. Zahringer v. Zahringer, 76 Nev. 21, 348 P.2d
161 (1960); Thorne v. Thorne, 74 Nev. 211, 326 P.2d 729 (1958); cf. Jacobs v. Jacobs, 83
Nev. 73, 422 P.2d 1005 (1967). That part of the judgment is void.
Accordingly, we reverse the judgment of the lower court vesting sole ownership of the
home in the wife, and remand that issue to the lower court for reconsideration in light of the
views expressed above.
____________________

3
The separate property is: (1) All the furniture in bedroom No. 2; (2) three piece sectional couch; (3) drapes
in the master bedroom; (4) two dressers; (5) two end tables; (6) dresser in bedroom No. 3; (7) carpets and drapes
in bedroom No. 3; (8) power lawn mower; (9) dishes, silverware, china and crystal; (10) miscellaneous hand and
power tools.
____________
86 Nev. 794, 794 (1970) Lee v. State
JESSE JEREMIAH LEE, Appellant, v. THE
No. 6240
November 25, 1970 477 P.2d 157
Appeal from the judgment of the Eighth Judicial District Court, Clark County; Taylor H.
Wines, Judge.
Defendant was convicted before the district court of possession of dangerous drugs, and he
appealed. The Supreme Court, Collins, C. J., held that where there was no resistance to
officer's request of defendant to remove shoes which were found to contain narcotic drug and
there was no claim or assertion of constitutional objection by defendant, to search and
seizure, defendant had intelligently and intentionally waived his constitutional rights.
86 Nev. 794, 795 (1970) Lee v. State
Thompson, J., dissented.
Robert G. Legakes, Public Defender, and Robert Archie, Deputy Public Defender, Clark
Harvey Dickerson, Attorney General, State of Nevada, and George E. Franklin, Jr.,
District Attorney, Clark County, for Respondent.
Voluntariness of consent to search must be proven by clear and convincing evidence.
Mere fact that consent to search was given while in custody or presence of police officer does not render
consent involuntary.
Where there was no resistance to officer's request of plaintiff to remove shoes which were found to
contain narcotic drug and no claim or assertion of constitutional objection was made by defendant to search
and seizure, he intelligently and intentionally waived his constitutional right. NRS 454.220, 454.395;
U.S.C.A. Const. Amend. 4.
OPINION
This is an appeal from a conviction for possession of dangerous drugs. We affirm the
conviction.
On the night of July 27, 1969, Deputy Sheriff August Knudsen of the Clark County
Sheriff's Office and Patrolman Alvin Anglen of the Nevada Highway Patrol observed an
automobile strike a telephone pole. Both officers went immediately to the assistance of the
two occupants. When Officer Anglen arrived at the wrecked auto, appellant was sitting
behind the steering wheel. The other person, whose mouth was badly injured, was sitting in
the open door on the passenger side of the vehicle. Officer Anglen observed appellant alight
from the driver's seat and approach his injured companion on the opposite side of the car. He
saw the companion take some pills or capsules from his shirt pocket and hand them to
appellant. Appellant Lee then walked to a nearby house and asked the woman owner for a
drink of water. Unknown to Lee he was followed by Officer Anglen, who, while Lee was
inside the house getting a drink of water, observed Lee take off his shoes and place reddish
capsules in each shoe. Lee did not observe the officer in the house watching him until he
turned to depart. The officer testified Lee appeared nervous.
86 Nev. 794, 796 (1970) Lee v. State
When Lee and Officer Anglen returned to the wrecked car, Officer Anglen told Deputy
Sheriff Knudsen what he had observed. At that point, Knudsen approached Lee and asked
him to remove his shoes. Lee complied with the request without verbal or other objection,
and inside the shoes were found the capsules which proved to contain seconal, a narcotic
drug. He was found guilty of possessing dangerous drugs, a violation of NRS 454.220 and
454.395, and appeals this conviction.
Lee contends that the conviction is constitutionally infirm, since it rests upon the reception
of evidence secured in violation of the Fourth Amendment to the United States Constitution
prohibiting unlawful searches and seizures.
Admittedly, Lee was not placed under arrest prior to seizure of the capsules, and if the
seizure and admission into evidence of the contraband is constitutionally permissible it must
be sustained on the basis of Lee's voluntary consent to the search. The lower court so ruled,
and we affirm.
[Headnotes 1, 2]
1. Lee's peaceable submission to the request of the officer to be searched must amount to
the intelligent and intentional waiver of a constitutional right. Thurlow v. State, 81 Nev. 510,
406 P.2d 918 (1965). Proof of voluntariness is a question of fact, State v. Plas, 80 Nev. 251,
391 P.2d 867 (1964), and must be proven by clear and convincing evidence, McIntosh v.
State, 86 Nev. 133, 466 P.2d 656 (1970), and the mere fact it was given while in the custody
of a police officer (or here the presence, because Lee was not yet placed under arrest) does
not render the consent involuntary. State v. Plas, supra; McIntosh v. State, supra.
2. The circumstances preceding and surrounding the search and seizure do not indicate that
force or threat of force, either physical or psychological, was exerted by either officer upon
Lee, State v. King, 209 A.2d 110 (N.J. 1965), nor was there any indication or testimony that
Lee resisted or objected, either verbally or physically, to the request of Officer Knudsen to
remove his shoes. This amounts to affirmative assistance on his part and may be considered
on the question of voluntariness of consent to waiver of a constitutional right. United States
v. Smith, 308 F.2d 657 (2d Cir. 1962).
[Headnote 3]
Silence, where there is a duty to speak or act, can amount to intelligent waiver of a
constitutional right. Here, there is not the slightest evidence of discernible resistance to the
officer's request nor claim or assertion of a constitutional right by Lee objecting to the
search or seizure.
86 Nev. 794, 797 (1970) Lee v. State
request nor claim or assertion of a constitutional right by Lee objecting to the search or
seizure.
The conviction is affirmed.
Today, this court holds that one waives his constitutional right to be protected against an
unreasonable seizure by peacefully and silently submitting to the request of a law
enforcement officer. The peaceful, silent acquiescence is construed to be a consent. This
holding is contrary to Thurlow v. State, 81 Nev. 510, 406 P.2d 918 (1965). We there ruled
that peaceful submission to the request of an officer was not a consent and could not be
considered an intelligent waiver of a constitutional right. Id. at 515. Moreover, today's
decision annihilates established doctrine that the State must prove consent by clear and
persuasive evidence. Consent may be given orally (McIntosh v. State, 86 Nev. 133, 466 P.2d
656 (1970)) or in written form (State v. Plas, 80 Nev. 251, 391 P.2d 867 (1964)), but should
not be found to exist when neither is present. Here, from a silent record, the court finds a
waiver of a constitutional right when we don't know whether Lee was aware that he possessed
that right or whether he simply was afraid to assert it. This is not consonant with basic
constitutional doctrine.
When the officer requested Lee to remove his shoes, that request carried an implied
coercion. Amos v. United States, 255 U.S. 313 (1921). Lee succumbed to authority. Most
people would do the same unless notified of their right to refuse. Lee was not under arrest nor
did the officer have reason to arrest him at that juncture. The officer possessed no warrants
for arrest or search. There is nothing to suggest that the officer was in danger, or thought that
he was. He was present to investigate an accident. The right to privacy does not yield to the
right to seize where there is no warrant, no arrest; only silent submission to authority.
____________
86 Nev. 798, 798 (1970) In re Austin
In The Matter of CURTIS AUSTIN, Petitioner.
No. 6300
November 25, 1970 477 P.2d 873
Original application for bail following conviction and pending appeal.
Proceeding on petition for order admitting petitioner to bail pending appeal from
conviction of illegal possession of heroin. The Supreme Court, Collins, C. J., held that
defendant was not entitled to bail where there was evidence to effect that defendant had been
engaged in handling and sale of heroin and that defendant was armed when arrested and often
carried gun.
Petition denied.
Zenoff and Thompson JJ., concurred in part, dissented in part.
Harry E. Claiborne, of Las Vegas, for Petitioner.
William P. Beko, District Attorney, Nye County, for Respondent.
1. Bail.
Defendant does not have constitutional right to bail following conviction and pending appeal.
2. Bail.
Bail pending appeal from conviction is to be denied only in cases in which, from substantial evidence, it
seems clear that right to bail may be abused or that community may be threatened by applicant's release.
3. Criminal Law.
If there is substantial relevant incompetent evidence in record to sustain factors leading to trial court's
denial of bail pending appeal from conviction, Supreme Court, in proceeding on petition for order
admitting such defendant to bail, should likewise refuse bail. NRS 178.488, subds. 1, 3.
4. Bail.
Defendant who had been convicted of illegal possession of heroin was not entitled to bail pending appeal
where there was evidence to effect that defendant had engaged in handling and sale of heroin and that
defendant was armed when arrested and often carried gun. NRS 177.145, 178.488, subds. 1, 3;
Fed.Rules Crim. Proc. rule 46(a)(2), 18 U.S.C.A.
86 Nev. 798, 799 (1970) In re Austin
5. Bail.
Post-conviction bail applicant need not apply to district court or judge for certificate of probable cause.
NRS 177.145, 178.488, subds. 1, 3; Fed.Rules Crim.Proc. rule 46(a)(2), 18 U.S.C.A.
OPINION
Petitioner Curtis Austin (defendant below) was convicted in the Fifth Judicial District
Court by a jury of illegal possession of heroin, a felony, and sentenced to a term of six years
in the penitentiary.
He immediately filed notice of appeal and made application to the court below for bail
pending appeal. That request was denied by written order which is a part of the record before
us.
Thereafter, petitioner sought an order from this court admitting him to bail pursuant to the
terms of NRS 178.488(1) and (3).
1
Petitioner filed points and authorities with his
application. This court entered an order requiring the District Attorney of Nye County to file
answering points and authorities, petitioner to file responding points and authorities, after
which the matter would be submitted to this court for its decision and opinion.
Statutes governing admission to bail following conviction and pending appeal were
amended in 1967. Prior to the amendment, granting of bail in those circumstances was
discretionary in those cases where punishment other than a fine was imposed. State v. Smith,
33 Nev. 435, 111 P. 929 (1910). Polito v. State, 70 Nev. 525, 275 P.2d 884 (1954). And even
then a convicted defendant could be admitted to bail only if a certificate of probable cause for
the appeal was filed.
In 1967, the legislature revised the statutes relating to bail pending appeal to conform
substantially to Federal Rules of Criminal Procedure 46(a)(2) as amended in 1956. Under the
1967 amendment,
2
(NRS 178.488) bail may be allowed pending appeal unless it appears that
the appeal is frivolous or taken for delay.
____________________

1
NRS 178.488(1) and (3) read as follows:
1. Bail may be allowed pending appeal or certiorari unless it appears that the appeal is frivolous or taken for
delay.
. . .
3. Pending appeal or certiorari to the supreme court, bail may be allowed by the district court or by any
judge thereof or by the supreme court or by a justice thereof.

2
Stats. of Nev. 1967, Ch. 523, p. 1452.
86 Nev. 798, 800 (1970) In re Austin
taken for delay. The 1967 amendment
3
(NRS 177.145) also required: If application is made
to a district court or to a justice of the supreme court for bail pending appeal or for an
extension of time for filing the record on appeal or for any other relief which might have been
granted by the trial court, the application shall be upon notice and shall show that:
1. Application to the court below or a judge thereof is not practicable; or
2. Application has been made and denied, with the reasons given for the denial; or
3. The action on the application did not afford the relief to which the applicant considers
himself to be entitled.
The record shows that Judge Kenneth Mann considered petitioner's application to the
lower court for bail pending appeal with full knowledge of and reliance on the 1967
amendments. In his order denying bail he concluded that petitioner's application was not
frivolous nor taken solely for purposes of delay. He also found petitioner was at all times
amenable to the orders of the trial court and appeared punctually for all preliminary matters,
motions and trial proceedings while admitted to bail pending trial. Though petitioner's
application for bail following conviction and pending appeal was not opposed by the District
Attorney, Judge Mann denied it upon the court's assessment of petitioner's character. Six
points were relied upon by Judge Mann in denying bail. They were (1) evidence at the trial
petitioner had engaged in traffic in heroin between Nevada and Oregon; (2) that petitioner
engaged extensively in handling of heroin in the Henderson area and in traffic in heroin
between Nevada and Arizona; (3) evidence at the preliminary hearing that petitioner had sold
other heroin to one Jesse Martin; (4) that petitioner was armed when arrested and often
carried a gun; (5) that threats where made on the life of a state witness though not directly
connected to petitioner; and (6) that while petitioner was out on bail in the present charge he
was arrested in Arizona on a possession of narcotics charge though not convicted of it. He
also denied petitioner's application for a certificate of probable cause as not being required
under the current statutory directives.
Petitioner argues that we should interpret the 1967 amendment as liberalizing the right to
bail following conviction and pending appeal as was done by the United States Supreme
Court in Ward v. United States, 76 S.Ct. 1063 (1956), and Leigh v. United States, 82 S.Ct.
994 (1962), in interpreting the amendment in 1956 of Fed.Rules Crim.Proc.
____________________

3
Stats. of Nev. 1967, Ch. 523, p. 1445.
86 Nev. 798, 801 (1970) In re Austin
the amendment in 1956 of Fed.Rules Crim.Proc. 46(a)(2). Leigh held that: It is to be denied
only in cases in which, from substantial evidence, it seems clear that the right to bail may be
abused or the community may be threatened by the applicant's release. Id. at 996. He also
contends that his application should not be subjected to appellate review of the lower court's
order but that this court or a justice thereof should make an independent examination of the
case as was done in Leigh and forthwith enter an order granting or denying bail.
Respondent, on the other hand, contends that granting of bail following conviction and
pending appeal is still a discretionary matter and that this court has the obligation and right of
review of the lower court's order to determine if that discretion was abused.
[Headnote 1]
1. There is little question that there is no constitutional right to bail following conviction
and pending appeal, either before or after the 1967 amendment to the Nevada Statutes, Polito
v. State, 70 Nev. 525, 275 P.2d 884 (1954); State v. McFarlin, 41 Nev. 105, 167 P. 1011
(1917); nor under the revision of Fed.Rules Crim.Proc. 46(a)(2) in 1956. Carbo v. United
States, 82 S.Ct. 662 (1962).
2. We are therefore at liberty to follow the construction placed upon Fed.Rules Crim.Proc.
46(a)(2) by the United States Supreme Court in Carbo and Leigh or interpret the 1967
amended statutes in a manner we deem reasonable and in line with earlier Nevada decisions.
[Headnote 2]
3. The criteria to guide the trial judge in passing upon bail following conviction were set
forth in Leigh v. United States, supra, at 996, where it was held: It is to be denied only in
cases in which, from substantial evidence, it seems clear that the right to bail may be abused
or the community may be threatened by the applicant's release. In Weaver v. United States,
405 F.2d 353, at 354 (CADC 1968), it was held: If [the judge] views appellant's release as
posing a risk of danger or flight, he should point to those factors in the record which
foreshadow such a possibility. (Emphasis added.)
[Headnote 3]
4. Judge Mann in stating his reasons for denying bail, assessed the petitioner's character
and concluded that the community would be threatened if he was released. If there is
substantial relevant and competent evidence in the record to sustain the factors leading to
that conclusion, this court should likewise refuse bail.
86 Nev. 798, 802 (1970) In re Austin
sustain the factors leading to that conclusion, this court should likewise refuse bail. In State v.
Teeter 65 Nev. 584 at 609, 200 P. 2d 657 (1948), this court ruled that: This basis of fact
upon which the right, or the absence of the right, to bail depends, should, of course, be
determined, as any other important fact is determined, by sound evidential principles or rules,
which means upon competent evidence complying with such rules of evidence as have
general judicial sanction. In Ex parte Wheeler, 81 Nev. 495, 406 P.2d 713 (1965), this court
described the type of evidence which could be relied upon by a judge in passing upon the bail
question. In Ex parte Wheeler, supra, at 500 it was held, Once that determination is made
[sufficient evidence has been presented to show that a capital offense has been committed by
the defendant], other information unrelated to the guilt of the accused, but relevant to the
main purpose of bailto encourage the accused's presence before the court when needed and
particularly at trialmay be received to aid the court in finally resolving the matter. We say
information,' (not proof, for it is not possible to prove whether the defendant will appear at a
future time), and have in mind such matters as the prior criminal record of the accused, if any,
attempted escapes from confinement, community associations, and employment
opportunities, which may bear upon the probability of his presence before the court when
needed.
[Headnote 4]
5. When presented with an application of this type, neither the court nor any of its justices
should conduct a separate factfinding proceeding. Seldom will the trial transcript or record be
available to the court or its members to aid in passing on such a bail application here.
Accordingly, we must make our independent judgment on a review of the reasons relied upon
by the lower court. Reasons (1), (2), (3), and (4) recited above are apparent in the record and
are adequate to sustain his ruling, so we need not consider the legal correctness of reasons (5)
and (6) recited by him.
[Headnote 5]
6. We agree that no longer need a post-conviction bail applicant apply to the district court
or judge for a certificate of probable cause.
Application denied and the ruling of the lower court affirmed.
Mowbray and Batjer, JJ., concur.
86 Nev. 798, 803 (1970) In re Austin
Zenoff, J., and Thompson, J., concurring in part; dissenting in part:
We concur generally with the majority opinion except as to the evaluation of the reasons
relied upon by the trial judge for denying bail. As to those we dissent and would grant bail
pending appeal.
____________
86 Nev. 803, 803 (1970) Simpson v. Sheriff
ANN SIMPSON, Appellant, v. SHERIFF, CLARK
No. 6394
November 25, 1970 476 P.2d 957
Appeal from order of Eighth Judicial District Court, Clark County, denying writ of habeas
corpus; Howard W. Babcock, Judge.
Habeas corpus proceeding. The district court denied writ, and petitioner appealed. The
Supreme Court held that absence of evidence of any wounds, blows, disease, strangulation, or
suffocation did not require dismissal of indictment charging mother with murder of her
one-year-old daughter, whose decomposed body was found in mother's locked automobile
and who allegedly died from heat prostration and dehydration.
Affirmed.
Robert G. Legakes, Public Defender, and Jeffrey D. Sobel, Deputy Public Defender, Clark
Harvey Dickerson, Attorney General, Carson City, George E. Franklin, Jr., District
Attorney, and Neil J. Beller, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Petitioner could be prosecuted by grand jury indictment for same offense which was dismissed by
justice's court on motion of district attorney.
Absence of evidence of any wounds, blows, disease, strangulation, or suffocation did not require
dismissal of indictment charging mother with murder of her one-year-old daughter, whose decomposed
body was found in mother's locked automobile, and who allegedly died from heat prostration and
dehydration. NRS 200.010.
3. Witnesses.
Testimony of accused's former husband that accused had threatened the life of their daughter was not
excluded, by statute governing examination of one spouse as to communications made by other during
marriage, in that husband testified that threats were made both during marriage and after divorce. NRS
48.040, subd. 5(a).
OPINION
Per Curiam:
On May 27, 1970, an officer of the Las Vegas Police Department was summoned to a
parking lot to investigate the presence of a suspicious automobile. The officer found the
appellant's Oldsmobile parked there with the doors locked and the windows closed. The
vehicle was emitting a strong odor which the officer recognized to be that of a decomposed
human body. Entrance to the car was gained by forcing open a window to unlock a door.
Inside, on the right front floorboard, there was the dead body of the appellant's one-year-old
daughter, under two suitcases.
The parking lot served a apartment house. One of the residents there, who knew the
appellant quite well, remembered that the appellant, on May 22, 1970, had appeared at her
apartment complaining about the brakes on her car, and she offered to let the appellant park
her car in the apartment house parking lot. The appellant left the car there, where it remained
until the following Wednesday morning, May 27, 1970, when the police found the body in it.
On May 29, 1970, the appellant was charged by criminal complaint with the crime of
murder, in violation of NRS 200.010. While that complaint was pending in the Justice's Court
the Clark County Grand Jury returned an indictment against the appellant for the same
criminal offense. On June 8, 1970, the complaint was dismissed on the motion of the district
attorney, leaving the indictment pending.
At the grand jury hearing, in addition to the above facts, the Clark County Medical
Examiner testified that on May 28, 1970, he did a post mortem examination on the child's
body, both internally and externally, and determined that death had occurred at least six days
previously.
While there was no evidence of any wounds, blows or disease, or any remaining evidence
of strangulation or suffocation, the cause of death was said to have been heat prostration and
dehydration, which can cause death in infants and small children within a very short
length of time, as little as a few hours.
dehydration, which can cause death in infants and small children within a very short length of
time, as little as a few hours.
The appellant's former husband testified that she had threatened the life of their daughter
both before their divorce and after it, and that those threats had been made before others, as
well as before himself. Two other witnesses testified that they had heard the appellant make
threats to the child's life, which ranged from starvation to throwing her down a manhole. The
witness who invited the appellant to leave her car parked in the apartment house parking lot,
testified that she asked her about manslaughter and what it was, to which she replied to the
appellant that she would look it up in the dictionary.
The appellant challenged the grand jury indictment by seeking a writ of habeas corpus
from the district court. The writ was denied, and she appeals from that order.
[Headnote 1]
It is first contended that the appellant cannot be prosecuted by grand jury indictment for
the same offense which was dismissed by the Justice's Court on the motion of the district
attorney. That contention is not sound. In Tellis v. Sheriff, 85 Nev. 557, 459 P.2d 364 (1969),
we specifically found no jurisdictional defect in such dual proceedings. Hall v. Sheriff, 86
Nev. 456, 470 P.2d 422 (1970). Thus there is no merit to that assignment of error.
[Headnote 2]
Finally, the appellant contends that there was insufficient legal evidence before the grand
jury to constitute probable cause to believe that a criminal offense had been committed, and
that the appellant committed it. It is argued that the finding of the grand jury that the corpus
delicti had been established was based upon speculation because of the absence of any
evidence that the child's death was caused by other than natural means, particularly in view of
our holding in Hicks v. Sheriff, 86 Nev. 67, 464 P.2d 462 (1970), where we reversed a
finding of probable cause on a total absence of proof that the victim met death by a criminal
agency. Such a contention is not tenable when the victim is a child one year of age, under the
circumstances that existed here.
At such an age a child is almost totally dependant upon the person having its care and
custody, and what might reasonably be found to be a natural cause of death in an adult can
just as reasonably be found to be an unnatural death, or death by a criminal agency, where the
victim is a child so dependent upon others.
others. Such was the case here and Hicks v. Sheriff, supra, is inapposite.
[Headnote 3]
The corpus delicti having thus been established, the other evidence recited above
constitutes probable cause sufficient to hold the accused for trial. The ex-husband's testimony
concerning threats made by the appellant is not excluded by NRS 48.040(5)(a)
1
for the
reason that he stated that the threats were made both during the marriage and after the
divorce. Coupled with the testimony of the other witnesses concerning threats made by the
appellant to the life of the child, and the other circumstances of the child's death, the state met
its burden of establishing facts leading to the reasonable inference that the appellant
committed the crime charged. State v. von Brincken, 86 Nev. 769, 476 P.2d 733 (1970).
CONSEQUENTLY, there was no error in the denial of habeas corpus below, and the order
of the district court is affirmed.
____________________

1
The statute, in pertinent part, reads as follows:
A husband cannot be examined as a witness for or against his wife without her consent, nor a wife for or
against her husband without his consent; nor can either, during the marriage or afterward, be, without the consent
of the other, examined as to any communication made by one to the other during marriage, except in a:
. . . .
5. Criminal proceedings in which one spouse is charged with:
(a) A crime against the person or the property of the other spouse or of a child of either, whether such crime
was committed before or during marriage.
. . . . (Emphasis supplied.)
____________
86 Nev. 806, 806 (1970) Springer v. Mount
CHARLES E. SPRINGER, Appellant, v. KEITH L.
MOUNT and BEVERLY J. HOPPER, Respondents.
No. 6435
November 25, 1970 477 P.2d 159
Appeal from judgment of the First Judicial District Court, Carson City; John E. Gabrielli,
Judge.
Qualified and registered electors of the State of Nevada brought suit challenging the
candidacy certificate of defendant, who sought to run as an independent for the office of
Governor and who purported to qualify for that office by filing the certificate signed by
required number of registered voters.
certificate signed by required number of registered voters. The district court entered judgment
in favor of plaintiffs, and defendant appealed. The Supreme Court, Collins, C. J., held that
where sufficient identifying information was given by signers of the candidacy certificate to
enable their status as registered voters to be checked and verified, the statute requiring them
to state their residences was substantially complied with and they were entitled to be counted
as signers.
Reversed with instructions.
Zenoff, J., dissented.
Charles E. Springer, of Reno, for Appellant.
Harvey Dickerson, Attorney General, State of Nevada, and Thornton, Guinan & Griswold,
of Reno, for Respondents.
Elections.
Where sufficient identifying information was given by signers of candidacy certificate, which was filed
by independent candidate for governor who purported to qualify for that office by filing the certificate
signed by required number of registered voters, to enable their status as registered voters to be checked and
verified, the statute requiring them to state their residences was substantially complied with and they were
entitled to be counted as signers. NRS 293.200, subd. 2.
OPINION
Appellant is an independent candidate for Governor of Nevada who purports to qualify for
that office by filing with the Secretary of State a certificate of candidacy signed by a number
of registered voters equal to at least five percent of the total number of voters who voted for
Representative in Congress in the general election of 1968 in the State of Nevada.
1

Respondents are qualified and registered electors of the State of Nevada who brought an
action in the First Judicial District Court contending, among other things, that the certificate
of candidacy filed by appellant did not contain a sufficient number of valid signers because at
least 97 signers had not fully added their place of residence to their signatures as required by
NRS 293.200{2).2 The trial judge referred the matter to a master to check and review the
several claims, objections and contentions of the parties regarding the validity of the
contested signatures on the certificate of candidacy.
____________________

1
See NRS 293.200.
required by NRS 293.200(2).
2
The trial judge referred the matter to a master to check and
review the several claims, objections and contentions of the parties regarding the validity of
the contested signatures on the certificate of candidacy.
The master submitted various reports to the court in which, among other findings, he
recommended that 97 of the contested signers be counted as valid. The master's report
indicated that of the 97 signers, 66 were from the Reno-Sparks area and gave their
appropriate street address but failed to state that such address was within the cities of Reno or
Sparks. Twenty-four of those 97 signers included their signature and city or town but gave no
street address. The remainder of the 97 signers had similar omissions in the statement of their
residence. The master, however, reported to the court that in each case the 97 signers gave
sufficient information and addresses to enable him to ascertain from voter registration records
that they were registered voters and therefore should be counted as valid signers. The trial
judge refused that recommendation and ruled those 97 signers were not valid because they
had not added their place of residence along with their signature as required by NRS
293.200(2).
While other points were urged for consideration in the appeal, the inclusion or exclusion
of the 97 signatures is crucial. If they are determined to be valid signatures, appellant's
certificate of candidacy contained the required number; if not, the certificate does not meet
the five percent requirement of NRS 293.200(1) and appellant's name should not appear on
the ballot as a candidate for governor at the general election of November 3, 1970.
1. The requirement that signers of a certificate of candidacy on behalf of an independent
candidate for public office shall add to his signature his place of residence is obviously
intended to permit verification of his status as a registered voter by anyone who may have
need or reason to make that inquiry. Verification of a signer's status should be able to be
checked with ease and accuracy because, at least in the experience of the people of this state,
the question always arises shortly before an election when time is critically short.
Nevertheless, the legislature nowhere defines place of residence, which could be construed
to mean anything from a street address, a post office box number, a rural route, a hotel or
apartment house location, or simply the name of a hamlet, town or city.
____________________

2
NRS 293.200(2) reads: Each signer shall add to his signature his place of residence. One of the signers of
each such certificate shall sign an affidavit attesting that the signatures on the certificate are genuine to the best
of his knowledge and belief.
apartment house location, or simply the name of a hamlet, town or city. A more meaningful
statement by the signer identifying him as a registered voter should be required by the
legislature in addition to or in place of his residence, because that is the essential
determination to be made in validating his signature on the certificate of candidacy.
2. While this court has never passed squarely on this question, other courts have. Those
courts hold that if sufficient identifying information is given by the signer to enable his status
as a registered voter to be checked and verified, the statute requiring him to state his
residence has been substantially complied with and he is entitled to be counted as a signer.
State v. Henderson, 211 N.E.2d 854 (Ohio App. 1965); Bowling v. Amis, 151 S.W.2d 760
(Ky.App. 1941); State v. Ice, 191 N.E. 155 (Ind. 1934). Other jurisdictions following a more
strict interpretation have held that anything short of complete compliance with the statutory
requirement of address renders the signature invalid and not entitled to be counted. Huie v.
Jones, 362 S.W.2d 287 (Ky.App. 1962); Lewis v. Murray, 171 N.Y.S.2d 473 (N.Y. 1958);
Harris v. King, 109 N.W. 644 (S.D. 1906). We do not choose to follow those authorities
because we believe the people when engaging in political processes should be allowed
reasonable latitude in complying with uncertain statutory directions as here. It is well within
the ambit of legislative authority, however, to require signers of petitions of this type to state
in detail information by which their status as registered voters could be rapidly and accurately
determined.
By Order previously entered, we reversed the lower court's ruling on the questioned 97
signers and directed that appellant's name be included upon the ballot at the (1970) general
election as a candidate for Governor of Nevada.
Batjer, Mowbray, and Thompson, JJ., concur.
Zenoff, J., dissenting:
I dissent. This court ruled in Lundberg v. Koontz, 82 Nev. 360, 418 P.2d 808 (1966), that
departures from legislative requirements where public petitions are involved should be given
hypertechnical application. In that case which concerned petitions for a certain constitutional
amendment, the majority of this court said, and I dissented, that We must demand strict
adherence to the authentication requirements of the constitution governing an initiative
petition. It was my opinion then that people should have easy avenue to their government.
However, once a rule is established we should not make different rules for similar
situations.
different rules for similar situations. To do so reduces stability in the law. Because the
majority of the court in Lundberg v. Koontz, supra, imposed the requirement of strict
interpretation which in that case had the effect of depriving thousands of signatories from the
right to petition their government, then the same rule of strict applicability should also be
applied in this case. The statute requires that the addresses of the signatories accompany the
signatures. Certainly the addresses should be sufficiently complete so as to make the location
of the signer readily ascertainable.
Reasons for requiring an address alongside the signatories are that the signatures can be
readily verified for authenticity and that possibilities of fraud be reduced as much as possible.
In the pressures of limited time, such as we faced in this case, it is not reasonable to allow
any old address. Instead, the address should be precise and commensurate with the
particular community, all to the end that the person who signs his name be immediately
available for verification in the event of a contest. I would uphold the trial court.
____________
86 Nev. 810, 810 (1970) Vigoren v. Transnational Ins. Co.
ROBERT VIGOREN, Appellant, v. TRANSNATIONAL
INSURANCE COMPANY, Respondent.
No. 6168
December 7, 1970 482 P.2d 96
Appeal from summary judgment of the Eighth Judicial District Court, Clark County; John
F. Mendoza, Judge.
Action by automobile liability insurer for declaratory relief with respect to accident which
occurred while automobile was driven by son of person who, by conditional sale, bought
automobile from insured. The district court rendered summary judgment for plaintiff, and
defendant appealed. The Supreme Court, Thompson, J., held that record presented fact
question as to whether insured, conditional seller, had advised agent of sale at time he
reinstated policy, precluding summary judgment.
Zenoff, J., dissented.
Wiener, Goldwater & Galatz, of Las Vegas, for Appellant.
Austin & Thorndal, of Las Vegas, for Respondent.
1. Insurance.
Liability insurer may not rely upon change of beneficial ownership of automobile, due to insured's
conditional sale, to defeat coverage under omnibus clause if insurer had knowledge of sale, through agent,
when it elected to reinstate policy and receive premium therefor.
2. Judgment.
Record in automobile liability insurer's action for declaratory relief with respect to accident which
occurred while son of conditional buyer of automobile was driving presented fact question as to whether
insured, conditional seller, had advised agent of sale at time he reinstated policy, precluding summary
judgment.
3. Declaratory Judgment.
Victim of accident in automobile should be allowed to amend answer, in insurer's declaratory judgment
action to plead affirmative defense of insurer's waiver of defense that beneficial ownership of automobile
had changed, where disputed circumstances appeared of record and trial had not occurred and victim could
not be presumed to have known of circumstances attending reinstatement of policy.
OPINION
This is an appeal from a summary judgment granted to Transnational Insurance Company
in an action for declaratory relief filed against A. E. Ferrand, Steven Ferrand, William
Ferrand and Robert Vigoren. Only Vigoren appeared to defend.
1
The purpose of the action
was to secure an adjudication that Transnational's automobile insurance policy issued to
Richard Doherty for his Chrysler automobile does not cover accidental injuries sustained by
Robert Vigoren while a passenger in that car. That policy insured Doherty, and any other
person using the automobile with his express or implied permission against loss for liability
imposed by law for damages arising out of the ownership, maintenance or use thereof. It was
Transnational's contention that Doherty was not the owner of the car when he purchased the
insurance policy since he had sold it to A. E. Ferrand upon conditional sale and Ferrand
thereafter enjoyed the exclusive possession and control of the vehicle. Subordinately,
Transnational contended that when the accident occurred the driver of the car, Steven
Ferrand, son of A. E.
____________________

1
Hartford Accident and Indemnity Company was permitted to intervene in the action since it had issued an
automobile policy to the father of Robert Vigoren which policy provided uninsured motorist coverage. The
summary judgment which we here review did not directly concern Hartford.
Ferrand, was not driving with the express or implied permission of Doherty and that
Doherty's policy of insurance therefore was not available to Robert Vigoren, the injured
passenger. The district court agreed with Transnational and entered summary judgment in its
favor. This appeal by Vigoren followed.
All relevant facts, except one, are undisputed. Robert Vigoren, a passenger in the back seat
of the Chrysler automobile, was blinded by the accidental discharge of a shotgun, while he,
Steven and William Ferrand were returning from a hunting trip. At that moment, legal title to
the car was in Richard Doherty, conditional vendor. The right to possession was vested in A.
E. Ferrand, conditional vendee. Ferrand was uninsured. The Motor Vehicle Department was
not notified of the conditional sale by Doherty to Ferrand. The legal registration was not
changed, Doherty retained title and remained personally liable to the bank for mortgage
payments on the car. When the conditional sale was made, Doherty maintained an insurance
policy on the car with Transnational. Thereafter, he allowed the policy to lapse. However,
before the accident happened, Doherty reinstated that policy since he was apprehensive that
Ferrand may not have purchased insurance coverage. These facts are not in dispute. A
material circumstance attending the reinstatement of Transnational's policy, is in dispute,
however. Doherty asserts that he fully advised the Transnational agent of the conditional sale
to Ferrand at the time he reinstated the policy. The agent denies this assertion of fact.
Accordingly, it is the position of the appellant Vigoren that a genuine issue of material fact
exists which must be resolved by trial and precludes summary judgment.
[Headnotes 1, 2]
1. For the purposes of summary judgment we must accept Doherty's statement that
Transnational was aware of the conditional sale to Ferrand when it reinstated the policy. This
is a material fact bearing upon waiver. Transnational may not rely upon the change of
beneficial ownership of the car to defeat coverage if it had knowledge of the conditional sale
when it elected to reinstate the policy and receive a premium therefor. Such knowledge and
reinstatement of the policy in spite of it, is a waiver of the right to rely upon the precise
wording of the omnibus clause of that policy. Cf. Violin v. Fireman's Fund Ins. Co., 81 Nev.
456, 406 P.2d 287 (1965). For this reason alone the summary judgment must be reversed and
this issue of material fact submitted for resolution at trial. If the trier of facts finds that the
Transnational agent did not know of the conditional sale to Ferrand, further legal questions
of coverage will emerge and must then be resolved.
know of the conditional sale to Ferrand, further legal questions of coverage will emerge and
must then be resolved.
[Headnote 3]
2. Waiver is an affirmative defense. NRCP 8(c). Of the named defendants, only Robert
Vigoren appeared and he did not plead that defense. This is understandable since he cannot be
presumed to have known of the disputed circumstances attending the reinstatement of
Doherty's insurance policy. Those disputed circumstances now appear of record and trial has
not occurred. We direct the district court to allow Vigoren to amend his answer accordingly.
Collins C. J., Batjer and Mowbray, JJ., concur.
Zenoff, J., dissenting:
Robert Vigoren was struck in the face and blinded by a shotgun blast on October 16, 1966.
He and two other youths, William Ferrand and Steven Ferrand, were returning from a hunting
expedition in Clark County, Nevada, when the loaded shotgun which had been placed on the
front seat of the car by William Ferrand discharged from the movement of the car.
At the time of the occurrence, legal title to the car was in Richard Doherty, who had
purchased the car in August of 1965. Though Doherty had sold the car to A. E. Ferrand in
June of 1966 under a conditional sales contract, no change of legal registration was made
with the Department of Motor Vehicles, Doherty retained possession of the title, and he
remained personally liable to the Bank of Nevada for the chattel mortgage payments. After
the accident, Ferrand ceased paying for the car, Doherty repossessed it and soon resold it, this
time filing the required change of title.
At the time of the accident, Doherty maintained an insurance policy on the car with
Transnational Insurance Company. The policy was issued to Doherty on May 2, 1966 but was
allowed to lapse from May 19 to June 14, 1966. Doherty explained his reinstating the policy
shortly after the sale of the car because . . . I became apprehensive that he might not carry
insurance on it. The policy included liability comprehensive and collision coverage. Doherty
asserted that he informed the Transnational agent of the conditional sale to Ferrand at the
time he reinstated the policy, though the agent disagreed.
Because Ferrand at no time had insurance coverage on the car, Transnational became
apprehensive that it might have to compensate Vigoren under the omnibus clause of its
policy with Doherty.
compensate Vigoren under the omnibus clause of its policy with Doherty. On February 16,
1968 Transnational filed its complaint for declaratory relief against A. E. Ferrand, William
Ferrand, Steven Ferrand and Robert Vigoren, requesting the district court to declare the
policy issued to Doherty unavailable for the injuries to Robert Vigoren. Transnational further
asked the court to declare that it had no obligation to defend any litigation arising out of the
accident.
Hartford Accident and Indemnity Company's interest arises out of its uninsured motorist
coverage in a policy issued to Robert Vigoren's father. Under this coverage, Hartford might
be obligated to compensate for Robert's injuries should Transnational not be so obligated.
By respective motions for summary judgment Transnational sought a declaration that its
policy did not apply while Robert Vigoren and Hartford sought a declaration that it did.
Transnational's motion for summary judgment was granted and that of Robert Vigoren and
Hartford was denied.
It is from this order, which in effect held the Transnational policy to provide no coverage
whatsoever for this accident, and which removed Transnational from any obligation to defend
any litigation arising from the accident, that Robert Vigoren and Hartford appeal.
1. Chapter 485, Nevada's Motor Vehicle Safety Responsibility Act, provides that a motor
vehicle liability policy refers to an owner's policy of liability insurance and that such owner's
policy shall insure the person named therein and any other person, as insured, using any such
motor vehicle with the express or implied permission of such named insurer, against loss
from the liability imposed by law for damages arising out of the ownership or use of such
motor vehicle. NRS 485.3091, 1 and 2(b). Those provisions are popularly known as the
omnibus clause in liability insurance contracts.
We are not now concerned in this case with the doctrine of insurable interest as it would
apply as a prerequisite to a valid automobile liability insurance policy. No insurable interest
need be shown to support an omnibus clause in an automobile insurance policy. Ohio
Farmers Insurance Co. v. Lantz, 246 F.2d 182 (7th Cir. 1957); Western Casualty and Surety
Co. v. Herman, 209 F.Supp. 94 (E.D.Mo. 1962), aff'd 318 F.2d 50 (8th Cir. 1963); cf. United
Services Automobile Ass'n v. Howe, 208 F.Supp. 683 (D. Minn. 1962); see also Annot.,
Liability Insurance: Insurable Interest, 1 A.L.R.3rd 1193 (1965). The omnibus clause is a
creation resulting from modern desires to protect innocent victims of automobile accidents.
Unlike other forms of insurance, such as life and property insurance, its validity is not based
on a potential risk of loss. That is, there need be no insurable interest in the traditional
sense of that phrase. The only requirement is that the insuring party be the owner of the
vehicle. As has been pointed out, the wagering contract rationale for requiring insurable
interest is inapplicable in this area. United Services Automobile Ass'n v. Howe, supra, at 685.
Moreover, the insurance company is protected against irresponsible acts of the insuring party
by the requirement of ownership, just as it is protected in other areas of insurance by the
requirement of insurable interest. The fact that Doherty had no insurable interest does not
in itself defeat the validity of the policy. The question is solely one of ownership.
Section 485.090 defines owner as meaning a person who holds the legal title of a motor
vehicle, or in the event a motor vehicle is the subject of an agreement for the conditional sale
. . . with an immediate right of possession vested in the conditional vendee . . . then such
conditional vendee shall be deemed the owner for the purposes of this chapter.
Except as to the seller's failure to transfer the title certificate and the fact of his renewal of
a liability policy that he purchased when he still had ownership and possession of the car the
bona fides of the sale are not questioned. Fraud in the transaction might well be a serious
consideration in this problem but it is not presented. The seller thought he was obtaining
more protection by retaining the title and renewing his old insurance but his ignorance does
not alter the fact that so long as the payments under the conditional sales contract were
current he had no incidents of ownership. He did not have the right to take the automobile
from the buyer nor to deprive him of its use. He could not direct the use of the car nor direct
by whom it could be operated. He had no control whatsoever of the automobile other than to
retake its possession and terminate the buyer's rights as an owner if the buyer failed to pay.
2. The real problem for our determination is whether this conditional sale was sufficiently
perfected as to validly transfer ownership of the car from the seller to the buyer. In some
states failure to complete the registration requirements such as we have in NRS 482.400 and
482.426 voids the transaction, thus leaving the ownership in the seller. Nevada's registration
statute does not invalidate the transaction on failure to complete registration requirements.
The infraction is a misdemeanor but the sale is not affected.
Under the statutes of California, Kansas, Missouri and Montana ownership does not transfer
until all registration requirements are met. Somerville v. Providence Washington Indemnity
Co., 32 Cal.Rptr. 378 (Cal.App. 1963); Maryland Cas. Co. v. American Family Ins. Group,
429 P.2d 931 (Kans. 1967); Greer v. Zurich Insurance Company, 441 S.W.2d 15 (Mo. 1969);
Ostermiller v. Parker, 451 P.2d 515 (Mont. 1968) (cert. den. sub nom. Glens Falls Insurance
Co. v. Nationwide Mutual Ins. Co., 394 U.S. 975 (1969)). The cited cases naturally relate to
their statutes, which are clearly different from NRS 482.399: No transfer of the title or any
interest in or to a vehicle registered under this code shall pass [until the certificate of title and
registration card have been properly filed]. (E.g., Cal. Vehicle Code, 5600; the sale of any
vehicle registered under the laws of this state, without the assignment of such certificate of
title, shall be fraudulent and void. Kans. Stats., Annot., 8-135(c)(6). See also Vernon's Mo.
Stats., Annot., 301-210(4) (1963), and Revised Codes of Montana, Annot., 53-109(d)
(1961).)
Under the statutes of Colorado, Indiana and Washington, ownership transfers even though
not all registration requirements are met. United Fire and Casualty Co. v. Perez, 419 P.2d 663
(Colo. 1966); Royal Indemnity Insurance Co. v. Shue, 182 N.E.2d 796 (Ind. 1962); Beatty v.
Western Pacific Insurance Co., 445 P.2d 325 (Wash. 1968). The statutes of these states are
more similar to those of Nevada. They do not specify that a purported sale is void or invalid
for noncompliance with registration requirements. See Colo. Rev. Stats., Annot., 13-6-8,
13-6-9 (1963); Burns Ind. Stats., Annot., 47-2502 (1965); Rev. Code of Wash., Annot.,
46-12.101 (1970). But cf. Code of Va., Annot., 46.1-87, as construed in Nationwide
Insurance Co. v. Storm, 106 S.E.2d 588 (Va. 1959).
But in Nevada the omnibus statute and under NRS 41.460(a), the family purpose law, are
like all others in the respect that a conditional vendee is the owner. In this case, for the
purposes of the omnibus clause the sale of the car by Doherty was completed and his buyer
was the owner in possession.
3. Hartford asserts, without citation of authorities, that if Transnational's agent knew
Doherty was not the owner of the automobile when the insurance was obtained, Transnational
is estopped from denying liability on the ground Doherty was not the owner and thereby did
not have insurable interest.
Disregarding the reference to insurable interest, nevertheless, the arguments of waiver or
estoppel are not appropriate. On estoppel (reliance): Zunino v. Paramore, 83 Nev. 506, 509,
435 P.2d 196 (1967). Ferrand, the buyer, makes no claim that he did not buy the liability
insurance because he relied upon Doherty's policy. If he did, estoppel might be a question.
Instead, the factual dispute of whether the agent knew or did not know of the sale is not one
that Hartford can rely upon. It would only be Doherty's concern if his company tried to avoid
responsibility as to him if he was the owner, but he was not the owner at the time of the
injury.
On the subject of waiver, to charge the insurance agent with the responsibility of being
knowledgeable in the law, that is, with knowing all the legal consequences of each policy he
sells, is unreasonable. The answer here is best provided by the declaration of where the
ownership of the automobile lies.
I dissent.
____________
86 Nev. 817, 817 (1970) State v. Hartford Accident & Indem.
STATE OF NEVADA, Appellant, v. HARTFORD ACCI-
DENT & INDEMNITY COMPANY, Respondent.
No. 6185
December 8, 1970 477 P.2d 592
Appeal from an order granting summary judgment by the Eighth Judicial District Court,
Clark County; Howard W. Babcock, Judge.
Action by State to recover against issuer of bond which was obtained by collection agency.
The district court granted summary judgment to issuer of bond, and State appealed. The
Supreme Court held that fact that issuer entered into out-of-court settlement with corporation,
which had filed complaint before running of two-year statute of limitations, after statute had
run did not constitute waiver of benefit of statute with respect to State which had not brought
action against issuer within required two-year period.
Affirmed.
Harvey Dickerson, Attorney General, John G. Spann, Deputy Attorney General, for
Appellant.
Parraguirre, Rose, Pico & Norwood, and Allan R. Earl, of Las Vegas, for Respondent.
1. Limitation of Actions.
Fact that issuer of bond entered into out-of-court settlement with corporation, which had filed complaint
before running of two-year statute of limitations, after statute had run did not constitute waiver of benefit of
statute with respect to state which had not brought action against issuer within required two-year period.
NRS 649.005 et seq., 649.115.
2. Limitation of Actions.
Fact that notice of cancellation of bond, which had been obtained by collection agency, was not sent to
Secretary of State until two months after license to do business in state as collection agency had expired did
not constitute waiver of statute of limitations with respect to action against issuer. NRS 649.005 et seq.,
649.115.
OPINION
Per Curiam:
This appeal is from an order granting summary judgment to the respondent because the
appellant had failed to file its complaint within the time allowed in NRS 649.080
1
(now
NRS 649.115).
Prior to July 1, 1966, the State of Nevada under the authority of NRS Chapter 649, granted
a license to the Credit Bureau of Las Vegas, Inc., to do business in this state as a collection
agency. As a condition of licensing, the credit bureau obtained a bond from the respondent,
pursuant to the requirements of NRS Chapter 649. There was no application by the credit
bureau for a renewal of its license. The license expired July 1, 1966. On that date the
limitations of actions specified in NRS 649.080 commenced to run. From and after July 1,
1968, the limitations provided in NRS 649.080 barred all further actions. Not until July 22,
1968 did the appellant file its complaint against the respondent.
[Headnote 1]
Initially the appellant contends that the respondent waived the benefit of NRS 649.0S0
because it entered into an out-of-court settlement with Associates Discount Corporation
at a time more than two years after July 1, 1966.
____________________

1
NRS 649.080: 1. The bond shall be in a form approved by the banking division of the department of
commerce and conditioned that the applicant shall conduct his business in accordance with the requirements of
this chapter.
2. The bond shall cover all matters placed with the licensee during the term of the license so applied for, or a
renewal thereof.
3. No action shall be brought upon any bond after the expiration of 2 years from the revocation or expiration
of the license.
4. From and after the expiration of the period of 2 years, all liability of the surety or sureties upon the bond
shall cease, provided no action shall have been commenced upon the bond before the expiration of the period.
the benefit of NRS 649.080 because it entered into an out-of-court settlement with Associates
Discount Corporation at a time more than two years after July 1, 1966. The appellant
overlooks the fact that Associates Discount Corporation's complaint had been filed before the
running of the statute of limitation. NRS 649.080.
The filing of a complaint only tolls the running of the statute of limitations regarding all
matters arising out of the transaction pleaded. Eldridge v. Idaho State Penitentiary, et al., 54
Idaho 213 (1934), 30 P.2d 781.
When Associates Discount Corporation filed their complaint, the statute was suspended as
to them. However, their timely action did not suspend the operation of the statute as to others
who might have legitimate claims. The fact that the trial or settlement of that corporation's
claim occurred at a time beyond the running of the statute of limitations is not controlling
because the statute was suspended only for that action.
[Headnote 2]
Additionally the appellant contended that the notice of cancellation sent on September 1,
1966, by the respondent to the Secretary of State of the State of Nevada, waived the statute of
limitations specified in NRS 649.080. This contention is also without merit. The notice of
cancellation did not toll the operation of NRS 649.080.
____________
86 Nev. 819, 819 (1970) Singleton v. State
GEORGE D. SINGLETON, Appellant, v. THE
No. 6376
December 9, 1970 477 P.2d 591
Appeal from judgment of conviction of the Eighth Judicial District Court, Clark County;
Prosecution for robbery. Defendant was found guilty by jury in the district court and
appealed. The Supreme Court held that evidence sustained the conviction.
Affirmed.
Robert G. Legakes, Public Defender, and Robert Archie, Deputy Public Defender, Clark
86 Nev. 819, 820 (1970) Singleton v. State
Harvey Dickerson, Attorney General of Carson City, George E. Franklin, Jr., District
Attorney, and Melvyn T. Harmon, Deputy District Attorney, Clark County, for Respondent.
Robbery.
Evidence sustained conviction for robbery whereby money belonging to hotel was forcibly taken. NRS
200.380.
OPINION
Per Curiam:
On March 25, 1970, Singleton was found guilty of robbery. NRS 200.380. He was charged
with forcefully taking money belonging to the Mintz Motel which was in the rightful
possession of Harold D. Sheftz. Singleton alleges there was not sufficient evidence to warrant
the finding of guilty by the jury in this case and requests this court reverse that verdict.
This court has reviewed the record and finds substantial evidence to prove all material
elements of the offense charged. It is well established that weighing the evidence is a jury
function, and when it is found that substantial evidence exists to uphold its verdict as there is
here, this court will decline to disturb its judgment. The jury is best suited to hear the
evidence, view the demeanor of the witnesses and decide whether the evidence proves
beyond a reasonable doubt the guilt of the defendant.
Affirmed.
____________
86 Nev. 820, 820 (1970) Fox v. State
ANTHONY FOX, Appellant, v. THE STATE
No. 6401
December 9, 1970 477 P.2d 591
Appeal from judgment of conviction of the Eighth Judicial District Court, Clark County;
Thomas J. O'Donnell Judge.
Defendant was convicted in the district court of offering compensation to induce a witness
to withhold testimony in a criminal case pending against defendant. Defendant appealed. The
Supreme Court held that a showing that the offense occurred and that there was a criminal
action pending against defendant satisfied the elements of the crime, and an information
alleging also to the effect that a preliminary hearing was scheduled in such criminal case for
June S therefore was not fatally defective on the ground that June S was a Sunday and a
preliminary hearing could not have been scheduled for such day.
86 Nev. 820, 821 (1970) Fox v. State
scheduled in such criminal case for June 8 therefore was not fatally defective on the ground
that June 8 was a Sunday and a preliminary hearing could not have been scheduled for such
day.
Affirmed.
Robert G. Legakes, Public Defender, and David M. Schreiber, Deputy Public Defender,
Clark County, for Appellant.
Attorney, and Larry C. Johns, Deputy District Attorney, Clark County, for Respondent.
Obstructing Justice.
Showing that defendant offered compensation to induce witness to withhold testimony in pending
criminal case and that there was a criminal action pending against defendant satisfied elements of the
crime, and information so alleging was sufficient; information also alleging that preliminary hearing was
scheduled in such criminal case for June 8 therefore was not fatally defective on ground that June 8 was
Sunday and preliminary hearing could not have been scheduled for such day. NRS 199.240.
OPINION
Per Curiam:
Fox was convicted of offering compensation to induce a witness to withhold testimony in
a pending criminal case against Fox. NRS 199.240. The contention of error is that the
information upon which he was tried was fatally defective in thisit charged that on April
26, 1969, Fox offered a witness $500 not to testify against him at a preliminary hearing
scheduled for June 8, 1969. It is claimed that the charge was false since June 8 was a Sunday
and the preliminary hearing could not have been scheduled for that day.
Substantial evidence establishes that the offense did occur on April 26, 1969, and that
there was a pending criminal action against Fox. This satisfies the elements of the crime and
those elements were contained in the information filed. The allegation that a preliminary
hearing was scheduled for June 8 was not essential. Moreover, the record may be read to
show that it was Fox himself who supplied that date to the witness when the offer of
compensation was made.
Affirmed.
____________
86 Nev. 822, 822 (1970) Young Elec. Sign Co. Erwin Elec. Co.
YOUNG ELECTRIC SIGN COMPANY, Appellant, v.
ERWIN ELECTRIC COMPANY, Respondent.
No. 5982
December 10, 1970 477 P.2d 864
Appeal from a judgment of the Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
Action to foreclose mechanics' lien lodged against electric sign. The district court granted
foreclosure of the lien and sign owner appealed. The Supreme Court, Batjer, J., held that term
any other structure as used in mechanics' lien statute included leased electrical sign erected
on premises and that such sign was not exempt from a mechanic's lien as a trade fixture.
Affirmed.
Johnson & Sloan, of Reno; Tanner & Gold, of Salt Lake City, Utah, for Appellant.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Respondent.
1. Fixtures.
Contract expressing intention of parties only binds those parties and their privies when determining
whether particular object or chattel becomes fixture to real property, and others, without notice, are entitled
to allow physical appearance of appurtenance to speak for itself. NRS 108.222, subd. 1, 108.234.
Term any other structure as used in mechanics' lien statute included leased electrical sign erected on
premises. NRS 108.222.
3. Statutes.
Where general term in statute follows specific words of like nature, it takes its meaning from those
specific words and is presumed to embrace kind of things designated by specific words.
Trade fixtures are not subject to mechanic's lien. NRS 108.222.
5. Fixtures.
When tenant places fixture on real property of landlord with landlord's consent it takes on nature of trade
fixture.
6. Fixtures.
Doctrine of trade fixtures is limited in its application to situations where landlord and tenant relationship
exists, and is not applicable in case where owner of land attaches fixture to realty.
Where there was no landlord-tenant relationship between owner of premises and owner of electric sign
erected thereon and improved by lien claimant, doctrine of trade fixtures did not apply so as to preclude
subjecting sign to mechanic's lien. NRS 108.222.
One who supplies labor or materials for improvement of structure may lien appurtenance without liening
real property on which appurtenance is located. NRS 108.222.
It is not essential to existence of mechanic's lien on building that person causing its erection should have
owned or had any interest in real property on which it is located.
Fact that there was no binding contract between lien claimant and owner of sign erected on another's
premises did not preclude subjecting sign to mechanic's lien. NRS 108.222, 108.222, subd. 3.
Record established that owner of premises on which leased sign was erected was agent of sign owner and
bound such owner under mechanics' liens statute when he contracted for necessary improvements to sign.
NRS 108.222.
Where sign was erected on real property and became fixture, the sign owner was bound to timely file
notice of nonresponsibility to protect sign from being subject to mechanic's lien. NRS 108.222,
108.2394.
OPINION
During the month of December 1965, North Swanson, d/b/a Reno Turf Club, not a party to
this appeal, contracted to lease a large electrical sign from the appellant to be erected near the
Reno Turf Club in Reno, Nevada. Later Swanson contracted with the respondent to provide
services and materials to improve and make the sign operative. The respondent performed its
contract and billed Swanson for the sum of $5,095.00, which was not paid. The respondent
then filed a notice of claim of lien with the recorder of Washoe County, and thereafter
commenced an action seeking recovery against Swanson for nonpayment, and against the
appellant for foreclosure of the mechanic's lien that had been lodged against the sign.
The case was tried before the district court, without a jury, upon an evidentiary hearing,
and the briefs submitted by the parties. Judgment was entered against Swanson for the sum of
$5,095.00 plus interest, attorney's fees and costs, and the respondent was also granted a lien
upon the electrical sign for those amounts. This appeal is taken from that part of the judgment
which impressed a lien upon the appellant's sign.
It is contended by the appellant that the district court erred when it decided (1) that the
electrical sign was lienable as any other structure" under the provisions of NRS
10S.222{1);1 {2) when it determined that it was unnecessary that there be an
employment contract between the appellant who owned the sign and the respondent who
furnished labor and material before a lien could attach; {3) when it decided that a lien
under NRS 10S.222 could attach to the sign without attaching to an interest in the real
property; {4) when it decided that the appellant was required to file a statutory notice of
nonresponsibility as is required by NRS 10S.234 to preclude a lien on the sign and {5)
when it decided that the respondent was not required to serve a statutory notice on the
appellant as required by NRS 10S.2394, in the event a lien would subsequently attach to
the sign under NRS 10S.222.
other structure under the provisions of NRS 108.222(1);
1
(2) when it determined that it was
unnecessary that there be an employment contract between the appellant who owned the sign
and the respondent who furnished labor and material before a lien could attach; (3) when it
decided that a lien under NRS 108.222 could attach to the sign without attaching to an
interest in the real property; (4) when it decided that the appellant was required to file a
statutory notice of nonresponsibility as is required by NRS 108.234 to preclude a lien on the
sign and (5) when it decided that the respondent was not required to serve a statutory notice
on the appellant as required by NRS 108.2394, in the event a lien would subsequently attach
to the sign under NRS 108.222.
The primary and basic question submitted to the district court was whether the respondent
acquired a valid lien against the sign affixed to the real property of Swanson, the appellant's
lessee.
[Headnote 1]
Here the contract between the appellant and Swanson provided that the sign would remain
the personal property of the appellant and would not become a fixture or appurtenant to such
realty.
2
On the strength of this contractural provision the appellant claims that the sign was
not subject to a mechanic's lien. The appellant misconceives the law. A contract expressing
the intention of the parties only binds those parties and their privies when determining
whether a particular object or chattel becomes a fixture to real property. As to all others,
without notice, they were entitled to allow the physical appearance of the appurtenance to
speak for itself.
It is undisputed that the sign was securely attached to the real property owned or leased by
Swanson. Both parties rely on Barnes v. Montana Lumber & Hardware Co.,
____________________

1
NRS 108.222(1): Every person who performs labor upon or furnishes material of the value of $50 or
more, to be used in the construction, alteration or repair of any building, or other superstructure, railway,
tramway, toll road, canal, water ditch, flume, aqueduct or reservoir, building, bridge, fence or any other structure
has a lien upon such premises and the buildings, structures and improvements thereon for work or labor done or
material furnished or rented, as the case may be, by each respectively, whether done or furnished at the instance
of the owner of the building or other improvement, or at the instance of his agent.

2
(n) The SIGN shall, at all times, be deemed personal property, and shall not by reason of attachment or
connection to any realty become or be deemed a fixture or appurtenant to such realty and shall at all times be
severable therefrom, and shall be and remain at all times the property of Lessor, free of any claim or right of
Lessee, except as set forth herein.
on Barnes v. Montana Lumber & Hardware Co., 67 Mont. 481, 216 P. 335 (1923), for the
definition of structure used in statutes authorizing mechanic liens. There the court said:
We are however, of the opinion that a structure,' to be lienable, must, at the same time the
labor is performed upon it or the materials are used in connection with its creation,
improvement, or repair, be attached to land. In other words, without partaking of that nature
of fixtures which in certain instances makes them nonremovable portions of the real estate,
the structure' must be affixed to the land or be of or appurtenant to it, before a valid lien can
be secured thereon. In Reno Electrical Works v. Ward, 51 Nev. 291, 274 P. 196 (1929), this
court construed the words or other improvements to include fixtures.
[Headnote 2]
Here, however, the appellant contends that the district court compounded its error when it
failed to apply the doctrine of ejusdem generis
3
in interpreting NRS 108.222. We affirm the
findings of the district court that any other structure included the electrical sign. See Orr
Ditch & Water Co. of Reno Tp. v. Justice Court, 64 Nev. 138, 178 P.2d 558 (1947).
[Headnote 3]
If the intention of a statute is clear, courts do not resort to the rule of ejusdem generis
because the statute must control. Courts may not read something into the statute which is not
there. Where a general term in a statute follows specific words of a like nature, it takes its
meaning from those specific words and is presumed to embrace the kind of things designated
by the specific words. The words any building, or other superstructure, railway, tramway,
toll road, canal, water ditch, flume, aqueduct or reservoir, building, bridge and fence listed in
NRS 108.222 are unlike in meaning and specify different subjects. Many of them embrace all
subjects of their class but indicate a different meaning from the preceding specific words.
In Helvering v. Stockholms & c. Bank, 293 U.S. 84, 79 L.Ed. 211, 55 S.Ct. 50 (1934), the
United States Supreme Court said: [W]hile the rule [of ejusdem generis] is a
well-established and useful one, it is, like other canons of statutory construction, only an aid
to the ascertainment of the true meaning of the statute. It is neither final nor exclusive. To
ascertain the meaning of the words of a statute, they may be submitted to the test of all
appropriate canons of statutory construction, of which the rule of ejusdem generis is only
one.
____________________

3
Webster's Third New International Dictionary (1968) defines ejusdem generis: Used in law to limit the
application of a broad term to a specific class of things. See also Orr Ditch Water Co. v. Justice Court, supra.
to the test of all appropriate canons of statutory construction, of which the rule of ejusdem
generis is only one. If, upon a consideration of the context and the objects sought to be
attained and of the act as a whole, it adequately appears that the general words were not used
in the restricted sense suggested by the rule, we must give effect to the conclusion afforded by
the wider view in order that the will of the legislature shall not fail.
The legislature foresaw that there could be constructed in this state, in the future, other
structures as different from a railway as a railway is different from a building or a water
ditch. It enacted a statute not only for the present but one that would be enduring and
effective in the future. The respondent was entitled to view the sign as a fixture and the trial
court was correct when it found the sign to be any other structure within the scope of NRS
108.222, and lienable.
[Headnote 4]
In another tentacle of the appellant's argument it contends that in any event the sign was
not lienable because it was a trade fixture. Trade fixtures are not subject to a mechanic's
lien. Reno Electrical Works, Inc. v. Ward, 51 Nev. 292, 274 P. 196, 62 A.L.R. 247 (1929);
Van Ness v. Pacard, 2 Pet. 137, 7 L.Ed. 374 (1829). The sign is not a trade fixture belonging
to the appellant.
[Headnote 5]
When a tenant places a fixture upon the real property of the landlord with the landlord's
consent it takes on the nature of a trade fixture. In Willcox Boiler Co. v. Messier, 1 N.W.2d
130 (Minn. 1941), that court stated: On the general law of fixtures an exception has been
ingrafted' . . . due to the growing necessities of trade, that certain articles ordinarily fixtures,
attached by a tenant for trade purposes, may be removed during the tenancy. Such articles are
known as trade fixtures.' Northwestern Lbr. & W. Co. v. Parker, 125 Minn. 107, 111, 145
N.W. 964, 965. The reason of this exception goes to the important consideration of intention.
It is based upon the rule that the law implies an agreement that it [the fixture] shall remain
personal property from the fact that the lessor contributes nothing thereto and should not be
enriched at the expense of his tenant when it was placed upon the real estate of the landlord
with his consent.' 22 Am.Jur., Fixtures, 61, quoting from Cameron v. Oakland County G &
O Co., 277 Mich. 442, 452, 269 N.W. 227, 107 A.L.R. 1142. So, where a tenant has placed
trade fixtures on the realty with the right of removal, denial of lien is compelled by the
tenant's right to remove.
lien is compelled by the tenant's right to remove. Because of that right, the thing never
became part of the realty.
4

[Headnote 6]
The doctrine of trade fixtures is limited in its application to situations where the landlord
and tenant relationship exists, and is not applicable in the case where an owner of the land
attaches a fixture to the realty. Cusack v. Prudential Ins. Co., 134 P.2d 984 (Okla. 1943);
Willcox Boiler Co. v. Messier, supra; Frost v. Schinkel, 238 N.W. 659 (Neb. 1931).
[Headnote 7]
Here there was no landlord-tenant relationship between the appellant and Swanson.
Swanson was in the role of the owner of the real property. Only if the appellant had been
Swanson's tenant and had placed the sign upon the real property for the purpose of carrying
on its trade or enhancing its business could it have invoked the trade fixture doctrine.
[Headnote 8]
The appellant's contention that one who supplies labor or materials for an improvement or
structure can not lien the appurtenance without liening the real property upon which it is
located is unsupported in the law. NRS 108.222 specifically authorizes a lien upon the
structure as well as the premises.
[Headnote 9]
And in Western Electric Co. v. Cooley, 251 P. 331 (Cal. App. 1926), that court held that
an electrical power line was a structure within their mechanic's lien statutes, and one who
furnished material to such power line was entitled to a lien against it, although the real
property upon which the line was located was a public highway owned and controlled by the
state. In English v. Olympic Auditorium, 20 P.2d 946, 87 A.L.R. 1281 (Cal. 1933), the
California Supreme Court quoting with approval from Western Electric Co. v. Cooley, supra,
said: Under these statutory provisions, the lien on the building, or other structure, is the
primary thing, and the lien in the land is merely an incident to it. No lien can be acquired on
the land, if none is acquired on the building, but a lien may exist on the building without
attaching to the land. Hence it is not essential to the existence of a mechanic's lien on a
building that the person causing its erection should have owned or had any interest in the real
property on which it is located.
____________________

4
35 Am.Jur.2d Fixtures, Sec. 3.
[Headnote 10]
The appellant's argument that it is improper to assert a lien against the sign because there
is no binding contract between appellant and respondent is equally without merit. NRS
108.222(3) provides in pertinent part: Every . . . person having charge or control . . . of the
construction, alteration or repair, either in whole or in part, of any building or other
improvement, as these terms are used in subsection 1, shall be held to be the agent of the
owner, for the purposes of NRS 108.221 to 108.2394, inclusive.
[Headnote 11]
The record clearly shows that Swanson was the agent of the appellant and bound the
appellant under NRS 108.222, when he contracted with the respondent for necessary
improvements to the sign.
5
Verdi Lumber Co. v. Bartlett, 40 Nev. 317, 161 P. 933 (1916).
[Headnote 12]
Although the respondent concedes that the district court erred when it found that the
appellant had not filed the statutory notice of nonresponsibility required by NRS 108.234,
because that statute applies only to owners of real property, we do not agree. We find the
district court to be without error. When the sign became a fixture on the real property by
reason of its attachment thereto, it took on the nature of real property and its owner was
bound to timely file a notice of nonresponsibility to protect the sign from being subject to a
lien recorded in accordance with the provisions of NRS 108.221 to 108.2394.
Considering the appellant's final contention, the respondent points out that it was not
raised in the district court and cannot be raised here for the first time. The appellant does not
deny the respondent's assertion, but only controverts its authorities. Because the appellant's
contention does not present a jurisdictional question it cannot be raised for the first time on
appeal. Paterson v. Condos, 55 Nev. 260, 30 P.2d 283 (1934); Parks v. Garrison, 57 Nev.
480, 67 P.2d 314 (1937); City of Los Angeles v. Eighth Judicial District Court, 58 Nev. 1, 67
P.2d 1019 (1937). Cf. Cottonwood Cove Corp. v. Bates, 86 Nev. 751, 476 P.2d 171 (1970).
____________________

5
79 ALR 962 and 163 ALR 992.
____________
86 Nev. 829, 829 (1970) Anderson v. State
LEON HARLEY ANDERSON, Appellant, v. THE
No. 6042
December 10, 1970 477 P.2d 595
Appeal from judgment of the Fourth Judicial District Court, Elko County; George F.
Wright, Judge.
The district court entered judgment convicting defendant of first-degree murder, and
defendant appealed. The Supreme Court, Collins, C. J., held, inter alia, that short delay in
bringing defendant to trial, caused as it was by defendant's escape and his appointed counsel's
application for a writ prohibiting his representation of the defendant, without a clear showing
of prejudice to the defendant, did not amount to a federal constitutional violation of
defendant's right to a speedy trial.
Affirmed.
Harry A. Busscher, of Reno, for Appellant.
Harvey Dickerson, Attorney General, State of Nevada; Mark C. Scott, Jr., District
Attorney, and Stewart R. Wilson, Deputy District Attorney, Elko County, for Respondent.
1. Criminal Law.
To constitute a federal constitutional deprivation of rights, failure to accord a speedy trial must be shown
to have resulted in prejudice attributable to the delay. NRS 178.556.
2. Criminal Law.
Short delay in bringing defendant to trial, caused as it was by defendant's escape and his appointed
counsel's application for a writ prohibiting his representation of the defendant, without a clear showing of
prejudice to the defendant, did not amount to a federal constitutional violation of defendant's right to a
speedy trial. NRS 178.556; U.S.C.A.Const. Amends. 6, 14.
3. Criminal Law.
Statutory provision that court may dismiss information or indictment if defendant is not brought to trial
within 60 days is only mandatory if good cause for the delay is not shown; and State has the burden of
showing good cause. NRS 178.556.
4. Criminal Law.
Statutory timetable for conduct of criminal proceedings is a guide to speedy trial issue, but does not
define the constitutional right. NRS 178.556.
5. Criminal Law.
Before error for failure to accord a speedy trial can be raised on appeal, objection to the trial date set
must have been made in trial court. NRS 178.556.
6. Arrest.
By reason of background information, complaint and description police had about defendant, they had
legal cause and reason to stop him, ask his name and if he had a gun; and upon his admission that he did
have a gun, and its production, even though it was later proved to be incapable of firing a loaded shell, and
a subsequent search which produced a knife, police had probable cause to then arrest defendant.
Canvas bag which was tracked down and found by the police at request of defendant was not the product
or result of a search; and when the police opened it at defendant's request to get some cigarettes, they
were entitled to seize any evidentiary items exposed to their view.
8. Criminal Law.
Claim of defendant that his incriminating statements were obtained by the police in violation of Miranda
since he was not advised that the State would pay for appointed counsel if he demanded it before
proceeding with the interrogation was unsupported, where record showed that defendant was advised of his
Miranda rights no less than three times and on each occasion said he clearly understood his rights and knew
them better than the police officers, and where defendant was specifically told that before giving his
statement he had the right to have an attorney appointed by the court if he could not afford one.
9. Jury.
In first-degree murder prosecution, the trial judge properly excused for cause a prospective juror who
said she could not consider imposing capital punishment, though she also said that would not affect her
determination of guilt or innocence.
10. Jury.
In a capital case, a prospective juror may be validly excused for cause if record clearly shows that he
would never vote for imposition of the death penalty in any case, or that his attitude would prevent him
from making an impartial decision as to guilt or innocence; and these are disjunctive or alternative
showings, not conjunctive.
11. Criminal Law.
Instruction that Where an attempt is made to impeach the defendant . . . by showing that on some former
occasion he made a statement . . . contradictory to his testimony here, such evidence may be considered not
only for the purpose of testing his credibility . . . but also along with all other evidence in determining his
guilt or innocence did not constitute a special instruction relating exclusively to defendant's testimony;
rather it served to direct how defendant's testimony might be considered by the jury.
12. Criminal Law.
Purposes for which any witness' testimony may be considered, if believed by the jury, is a question of law
for the court.
13. Criminal Law.
Where there is an adequate instruction on reasonable doubt, it is not necessary to give an additional
instruction on circumstantial evidence.
14. Criminal Law.
Circumstantial evidence instruction which spoke of evidence rather than proof was erroneous as a
matter of law, though such error favored the defendant rather than prejudicing him.
15. Homicide.
Notwithstanding some evidence tending to prove defendant's innocence if that proof were believed, guilty
verdict of jury would not be overturned on appeal from first-degree murder conviction, where there was
very substantial proof of defendant's guilt.
16. Criminal Law.
Failure of accused to take a direct appeal from order denying his motion for a change of venue deprived
Supreme Court of jurisdiction to entertain the issue. NRS 2.110.
OPINION
This is an appeal from a jury conviction of murder in the first degree in which death was
fixed as the penalty, and from an order denying a new trial. We affirm the conviction, the
sentence, and the order.
In late October, 1968, Joan Ingram was traveling U.S. 93 south of Wells, Nevada, when
her car broke down. On October 27, her partially clothed body was found five miles south of
Wells and about 100 feet off that highway with multiple stab wounds in the back and deep
lacerations across her neck. A Japanese bayonet with a 13-inch blade was found near the
body. It was established to be the murder weapon. The Elko County authorities did not know
the killer and were unable to make any immediate arrest.
About January 6, 1969, Sgt. Spencer of the Red Bluff, California, Police Department,
investigated a complaint by a woman named Pat Keyser that a person by the name of Andy
Anderson had threatened her with a gun when she refused to accompany him to a motel. The
police were unable to locate Andy Anderson.
On January 21, 1969, a Mr. Poppelton of Red Bluff went to the police station and told
them that the man who had threatened Pat Keyser was sitting in her car at the hospital. When
the police arrived at her car, no one could be found. As the officers were returning to the
police station to get additional information, they saw appellant by the bus station about one
block from the parking lot. He matched the description of Andy Anderson. He was stopped
by the officers, and when asked his name the suspect answered, Anderson, Andy Anderson.
When asked if he had a gun, Anderson replied that he did but it was not a real gun.
if he had a gun, Anderson replied that he did but it was not a real gun. The gun proved to be a
starter's pistol. It was taken from Anderson's possession. Further search of Anderson
produced a knife with an 8-inch blade; it was also taken from him. He was then arrested for
carrying a concealed weapon.
At the police station, after having been given a Miranda-type warning, during an
interrogation about the concealed weapon offense Anderson volunteered information that he
had recently killed a woman near Elko, Nevada. The officers verified that such a killing had
in fact taken place and proceeded to take a statement from Anderson concerning it.
During this interrogation, Anderson asked the officers to retrieve for him a canvas bag
containing personal possessions which he had left in an open field near Red Bluff. After three
trips and additional instructions from Anderson as to its location, the bag was found and
returned to the police station. Anderson asked the officers to get some cigarettes out of the
bag for him, and in the process the officers discovered a Japanese bayonet which Anderson
told them was identical to the one which he used to kill Joan Ingram.
While still at the Red Bluff jail, Anderson, after further Miranda-type warnings, gave
additional statements to Lt. Moller and later to District Attorney Scott and Sheriff Harris of
Elko County, Nevada, concerning the murder of Joan Ingram.
Anderson was formally charged with the murder of Joan Ingram on January 27, 1969.
Preliminary hearing was held and he was bound over for trial. An Information was filed
March 28, 1969, he was arraigned April 2, and trial was set to commence May 15.
On April 28, 1969, Anderson's court-appointed counsel, Michael Marfisi, sought by
motion to be allowed to withdraw as trial counsel because of enactment by the legislature of
Ch. 251, Stats. of Nevada 1969, prohibiting a deputy city attorney from defending an indigent
person charged with a criminal violation. That motion was denied, but upon application to
this court an alternative writ of prohibition was issued on May 5 and made permanent on July
11, 1969, precluding Marfisi's representation of appellant. See Marfisi v. District Court, 85
Nev. 445, 456 P.2d 443 (1969).
On May 4, 1969, Anderson escaped from the Elko County Jail. He was recaptured and
returned to jail on June 12.
On July 14, 1969, Ross Eardley was appointed counsel for Anderson, and trial was set for
September 8. At the trial setting, Eardley said he would not consent nor stipulate to the new
trial date. He did not, however, object to it.
On August 7, 1969, Anderson's new counsel moved to dismiss the action because it had
not been brought to trial within 60 days after filing of the information pursuant to NRS
178.556. He also contended his constitutional right to a speedy trial had been violated, sought
a change of venue, and moved to suppress certain evidence. These motions were all denied,
and the matter proceeded to trial before a jury.
During the jury selection, the trial judge excused a prospective juror when she said she
could not consider imposing capital punishment but would not let that affect her
determination of appellant's guilt or innocence.
During the trial, the judge gave Instruction No. 29 which appellant contends constitutes a
special instruction relating exclusively to his testimony and is error per se under NRS
175.171 and Graves v. State, 82 Nev. 137, 413 P.2d 503 (1966).
The trial judge also gave Instruction No. 8 which attempted to distinguish between
circumstantial and direct evidence. Appellant contends that because there was evidence
admitted consistent with innocence but inconsistent with guilt, the jury could only have
rendered a verdict of guilt by ignoring the instruction or the evidence or both.
Thus, the issues before us for decision in this appeal are these:
I. Whether appellant was denied a speedy trial.
II. Whether the lower court erred in denying the motion to suppress evidence.
III. Whether the trial judge excused a prospective juror in violation of Witherspoon and
Bean when she said she could not consider imposing capital punishment but would not let
that affect her determination of guilt or innocence.
IV. Whether the lower court erred in giving an instruction that prior inconsistent
statements of the accused could also be used as evidence of guilt.
V. Whether the jury ignored the instructions and the evidence in returning a verdict of
guilty.
1. Appellant contends he was denied a speedy trial in violation of his Sixth and Fourteenth
Amendment rights under the U.S. Constitution as delineated by Klopfer v. North Carolina,
386 U.S. 213 (1967), and NRS 178.556.
[Headnotes 1, 2]
To constitute a federal constitutional deprivation of rights, failure to accord a speedy trial
must be shown to have resulted in prejudice attributable to the delay. Dickey v. Florida, 398
U.S. 30 {1970); Smith v. Hooey, 393 U.S. 374 {1969); United States ex rel. Solomon v.
Mancusi, 412 F.2d SS {2d Cir. 1969), cert. denied, 396 U.S. 936 {1969); Mull v.
U.S. 30 (1970); Smith v. Hooey, 393 U.S. 374 (1969); United States ex rel. Solomon v.
Mancusi, 412 F.2d 88 (2d Cir. 1969), cert. denied, 396 U.S. 936 (1969); Mull v. United
States, 402 F.2d 571 (9th Cir. 1968), cert. denied, 393 U.S. 1107 (1969). The short delay
here, caused as it was by appellant's escape and his counsel's application for a writ of
prohibition to this court, without a clear showing of prejudice (and there was none here), does
not amount to a federal constitutional violation.
[Headnotes 3-5]
NRS 178.556 states that the court may dismiss the information or indictment if the
defendant is not brought to trial within 60 days. This rule is only mandatory
1
if there is not
good cause shown for the delay. Ex parte Hansen, 79 Nev. 492, 387 P.2d 659 (1963); Ex
parte Morris, 78 Nev. 123, 369 P.2d 456 (1962); Oberle v. Fogliani, 82 Nev. 428, 420 P.2d
251 (1966). The State, which had the burden of showing good cause for the delay, Ex parte
Morris, supra, did so in this case. The statutory timetable for conduct of criminal proceedings
is a guide to the speedy trial issue, but does not define the constitutional right. Stabile v.
Justice's Court, 83 Nev. 393, 432 P.2d 670 (1967). Furthermore, before error for failure to
accord a speedy trial can be raised on appeal, objection to the trial date set must have been
made in the trial court. Harris v. State, 86 Nev. 197, 466 P.2d 850 (1970). No such objection
was made here.
2. Appellant complains that his federal constitutional rights were violated by the manner of
his arrest and the search of his person in Red Bluff, California.
[Headnote 6]
By reason of the background information, complaint and description the police had about
Andy Anderson, they had legal cause and reason to stop him, ask his name and if he had a
gun. Terry v. Ohio, 392 U.S. 1 (1968); McGuire v. State, 86 Nev. 262, 468 P.2d 12 (1970);
Barnes v. State, 85 Nev. 69, 450 P.2d 150 (1969); Robertson v. State, 84 Nev. 559, 445 P.2d
352 (1968); Harper v. State, 84 Nev. 233, 440 P.2d 893 (1968). Upon his admission that he
had a gun, and its production, even though it was later proved to be incapable of firing a
loaded shell, and the subsequent search which produced the knife, the police had probable
cause to arrest.
____________________

1
See discussion whether NRS 178.556 is mandatory or permissive in 1969 Utah L.Rev. at 542-43.
[Headnote 7]
3. The canvas bag which was tracked down and found by the officers at the request of
appellant was not the product or result of a search. When the police opened it at his request to
get some cigarettes, they were entitled to seize any evidentiary items exposed to their view.
Warden v. Hayden, 387 U.S. 294 (1967); Harris v. United States, 390 U.S. 234 (1968);
McGuire v. State, supra. The record also shows the police had appellant's consent to look in
the bag. McIntosh v. State, 86 Nev. 133, 466 P.2d 656 (1970). Appellant maintained no
expectation of privacy in the contents of the bag because he left it in an open field, and when
found by the officers he asked them to open it and get some cigarettes for him. Katz v. United
States, 389 U.S. 347 (1967); People v. Edwards, 71 Cal.Rptr. 598 (Dist.Ct.App. 1968); State
v. Purvis, 438 P.2d 1002 (Ore. 1968). See also Frazier v. Cupp, 394 U.S. 731 (1969); Gebert
v. State, 85 Nev. 331, 454 P.2d 897 (1969).
[Headnote 8]
4. Appellant contends incriminating statements were obtained from him in violation of
Miranda v. Arizona, 384 U.S. 436 (1966), because he was not advised the state would pay for
appointed counsel if he demanded it before proceeding with the interrogation. The record
simply does not bear out that contention. Anderson was advised of his Miranda rights no less
than three times and on each occasion he said he clearly understood his rights and knew them
better than the officers. He was specifically told that before giving the statement he had the
right to have an attorney appointed by the court if he could not afford one. We have reviewed
the record in depth on this point and cannot find any, let alone substantial, violation of his
Miranda rights.
[Headnote 9]
5. Mrs. Nola White was summoned as a prospective juror. During her voir dire
examination, she was asked about her attitude toward the death penalty. Following is a
verbatim transcript of her testimony on that question:
By Mr. Wilson [Deputy District Attorney]:
Q. Mrs. White if you thought the facts warranted it and if you were instructed that the law
permitted it, would you have any reservations against imposing the death penalty in a
particular case?
A. Yes I do.
Q. And what particular reservations are those? "A.
A. I don't believe in capital punishment.
Q. Under any circumstances?
A. No.
Q. Would you feel then that the reservations about the death penalty that you do have
would prevent you from making a decision as to the guilt or innocence, an unbiased decision
as to the guilt or innocence of Mr. Anderson.
A. No it wouldn't influence me on his guilt or innocence but I could not bring in a death
penalty.
Q. And then I take it you would refuse to even consider imposing it in any circumstances,
is that right?
A. That is right.
Mr. Wilson: Your Honor I would ask that Mrs. White be excused for cause.
The Court: Yes the objection is sustained. Thank you very much Mrs. White. Draw the
name of another juror please.
[Headnote 10]
Appellant contends Mrs. White was improperly excused for cause as a juror, violating his
constitutional rights decided by the United States Supreme Court in Witherspoon v. Illinois,
391 U.S. 510 (1968), and by this court in Bean v. State, 86 Nev. 80, 465 P.2d 133 (1970). To
validly exclude a prospective juror, it is necessary for the record to clearly show that he
would never vote for imposition of the death penalty in any case, or his attitude would
prevent him from making an impartial decision as to guilt or innocence. These are disjunctive
or alternative showings, not conjunctive. Her answers clearly show she was properly excused
on the first alternative ground.
[Headnote 11]
6. Appellant complains that the giving of Instruction 29
2
constituted a special instruction
relating exclusively to the testimony of the defendant which is error per se under the doctrine
of Graves v. State, 82 Nev. 137, 413 P.2d 503 (1966). While Instruction 29 need not have
been given, it does not violate the rule of Graves and is permitted by NRS 175.171.
3
Graves
held, "Matters of fact, including the credibility of witnesses, are for jury resolution.
____________________

2
Instruction 29 reads: Where an attempt is made to impeach the defendant as a witness by showing that on
some former occasion he made a statement or statements contradictory to his testimony here, such evidence may
be considered not only for the purpose of testing his credibility as a witness, but also along with all other
evidence in determining his guilt or innocence.

3
NRS 175.171, in pertinent part, reads: [T]he credit to be given his [the defendant's] testimony being left
solely to the jury, under instructions of the court. . . .
Matters of fact, including the credibility of witnesses, are for jury resolution. For this reason,
it is permissible to instruct generally that the jury is the sole judge of the credibility of all
witnesses, but impermissible to single out the testimony of one and comment upon its
character and quality. 82 Nev. at 140-41.
[Headnote 12]
Instruction 29 does not violate that mandate, but instead serves only to direct how his
testimony might be considered by the jury. Credibility of a witness's testimony is a question
of fact for the jury. The purposes for which any witness's testimony may be considered, if
believed by the jury, is a question of law for the court. A reading of the objectionable
Instruction No. 6 in Graves, 82 Nev. 137, at 138, demonstrates the vast difference between it
and Instruction 29 in this case.
[Headnotes 13-15]
7. Appellant next complains that because there was evidence admitted consistent with his
innocence and inconsistent with his guilt, error was committed by the jury in ignoring
Instruction No. 8
4
or the evidence tending to prove him innocent. Instruction No. 8 is one
form of instruction on circumstantial evidence, but where there is an adequate instruction on
reasonable doubt, as there was in this case, it is not necessary to give such an additional
instruction on circumstantial evidence. Vincze v. State, 86 Nev. 546, 472 P.2d 936 (1970).
Furthermore, Instruction No. 8 speaks of evidence, where it should have spoken of proof,
and while erroneous as a matter of law in that regard, the error favored appellant rather than
prejudiced him. While the record discloses some evidence tending to prove appellant's
innocence if that proof was believed by the jury (which it obviously was not), there is very
substantial proof of his guilt. Under those circumstances in the record, the verdict of the jury
will not be overturned on appeal. Tellis v. State, 85 Nev. 679, 462 P.2d 526 (1969); Brandon
v. Travitsky, 86 Nev. 613, 472 P.2d 353 (1970). It was for the jury to decide what evidence it
believed and what weight it would give that evidence in deciding whether guilt of appellant
was proven beyond a reasonable doubt.
____________________

4
Instruction No. 8, in pertinent part, reads: [W]here the evidence is all consistent with that of guilt beyond a
reasonable doubt and inconsistent with every other hypothesis, then it is the duty of the Jury, under the law to
render a verdict finding him guilty. But if, on the other hand, any evidence in the case is consistent with the
hypothesis of Defendant's innocence, . . . your duty is just as imperative to acquit him.
[Headnote 16]
8. Appellant also argued in his brief as one of his grounds of error on appeal failure of the
lower court to grant his motion to change the venue of the trial. Respondent answered that
argument on the merits. We do not feel, however, that the point is jurisdictionally before us.
NRS 2.110 provides in part: An order changing or refusing to change the place of trial
shall not be appealed from on an appeal from a judgment, but only on direct appeal from the
order changing or refusing to change the place of trial.
A search of the record fails to establish that any direct appeal was taken from the order of
September 9, 1969, made following voir dire examination by the jury denying his motion to
change the place of trial. A careful review of his notice of appeal shows he is appealing from
the judgment and sentence entered September 19, 1969, the orders of October 2, 1969
denying a new trial and entering a warrant of execution. Pursuant to NRS 2.110, failure of
appellant to take a direct appeal from the order denying change of place of trial deprives this
court of jurisdiction to entertain it. Allgood v. State, 78 Nev. 326, 372 P.2d 466 (1962); State
v. Preston, 30 Nev. 301 (1908).
Accordingly, the judgment of conviction, the sentence, and order denying a new trial are
affirmed.
____________
86 Nev. 838, 838 (1970) Campanelli v. Altamira
JOSEPH CAMPANELLI, dba CAMPANELLI'S SPECIALTY FOODS, Appellant, v.
CONSERVAS ALTAMIRA, S.A., Respondent.
No. 6151
December 10, 1970 477 P.2d 870
Appeal from a summary judgment. Eighth Judicial District Court, Clark County; Taylor H.
Wines, Judge.
Action by New York food wholesaler against Nevada food distributor to enforce two
foreign judgments entered following arbitration of disputed sale. The district court granted
wholesaler's cross motion for summary judgment, and distributor appealed. The Supreme
Court, Batjer, J., held that judgments entered by New York trial court in arbitration matter
concerning controversy arising out of sale by New York wholesaler to Nevada distributor
under statutory arbitration procedures were entitled to full faith and credit in Nevada
courts.
concerning controversy arising out of sale by New York wholesaler to Nevada distributor
under statutory arbitration procedures were entitled to full faith and credit in Nevada courts.
Affirmed.
Edwin J. Dotson, of Las Vegas, for Appellant.
Wiener, Goldwater & Galatz, and J. Charles Thompson, of Las Vegas, for Respondent.
1. Contracts.
Retail and wholesale specialty food distributor who signed sales contract containing arbitration clause
applicable to situations such as distributor's objection to quality of tomatoes shipped to him by wholesaler
and refused to pay agreed price was bound by conditions of arbitration agreement notwithstanding
distributor denied any intent to submit any dispute arising out of contract to arbitration.
2. Contracts; Sales.
Where wholesaler's advice of sale as to 4,000 cases of tomatoes shipped to distributor who thereafter
objected to quality of tomatoes and refused to pay agreed price was sent to distributor who admitted
receiving it without registering an objection, advice of sale became binding contract between parties and
they were bound by arbitration clause which it contained notwithstanding distributor denied any intent to
submit any dispute arising out of transaction to arbitration and did not sign agreement to arbitrate. NRS
38.035, 104.2201; Uniform Commercial Code N.Y. 2-201.
3. Judgment.
Judgments entered by New York trial court in arbitration matter concerning controversy arising out of
sale by New York wholesaler to Nevada distributor under statutory arbitration procedures were entitled to
full faith and credit in Nevada courts. CPLR N.Y. 7501 et seq.
4. Costs.
Award of attorney fees in amount of $1,500 to New York food wholesaler who was required to arbitrate
dispute when Nevada distributor objected to quality of goods shipped and refused to pay agreed price was
reasonable and was not an abuse of discretion.
OPINION
The respondent, the plaintiff below, brought this action to enforce two foreign judgments.
The appellant, the defendant below, moved for summary judgment upon the ground that there
had been no jurisdiction in the foreign state to enter the judgments and for that reason they
were not entitled full faith and credit.1 The respondent, filed a cross-motion for summary
judgment which was granted.
and credit.
1
The respondent, filed a cross-motion for summary judgment which was granted.
From that judgment this appeal is taken.
The original judgments were entered in the Supreme Court of the State of New York and
were based upon two arbitration awards for the breach of a written contract and a written
advice of sale. Pursuant to the terms of the contract, which he signed, the appellant, a retail
and wholesale specialty food distributor in Clark County, Nevada, agreed to purchase 200
cases of pimentos and under the advice of sale the respondent shipped him 4,000 cases of
tomatoes. The respondent's agent for the transaction was Joseph Caragol, Inc., a New York
broker.
The appellant received the pimentos and a portion of the tomatoes. He objected to the
quality of the tomatoes and refused to pay the agreed price. The respondent then sought
arbitration.
Each written document contained an arbitration clause. The sales contract read:
ARBITRATION: Any controversy or claim arising out of or relating to this contract or
breach thereof shall be settled by arbitration in New York by the Association of Food
Distributors, Inc., of New York in accordance with its rules then obtaining and judgment may
be entered upon award. The written Advice of Sale contained a similar clause.
2

Pursuant to the rules of Association of Food Distributors Inc., of New York, the appellant
was mailed a notice of arbitration. He admits receiving the notice, however, he failed to
appear, refused to appoint an arbitrator and defaulted in the arbitration proceedings.
____________________

1
Article IV, Section 1, U.S. Constitution: Full Faith and Credit shall be given in each State to the public
Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe
the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

2
The Advice of Sale states: ARBITRATION: Any controversy, or claim arising out of, or relating to this
contract or breach thereof, shall be settled by arbitration by the Association of Food Distributors, Inc. of New
York, in accordance with its rules then obtaining. Each party to this contract shall be deemed to have consented
that any papers, notices or process necessary or proper for the institution or continuation of an arbitration
proceeding, or for the confirmation of an award and entry of judgment on an award made thereunder, including
appeals in connection therewith, may be served upon such party (a) by mail, addressed to such party's last known
address, or (b) by personal service, within or without the state wherein the arbitration is to be held, or within or
without the limits of the jurisdiction of the Court having jurisdiction in the premises (whether such party be
within or without the United States of America), or (c) by mail personally, as provided in (a) and (b) hereof,
upon his agent or broker through whom this contract is made.
appear, refused to appoint an arbitrator and defaulted in the arbitration proceedings. As a
result of the default the awards prayed for were entered in favor of the respondent who then
petitioned the New York trial court for judgments confirming them. The appellant who was
personally served in Nevada with a copy of the petitions failed to make any appearance and
judgment was entered against him.
The appellant contends that the service of process was void; that he did not live in New
York and had never submitted to its jurisdiction; that he was and is a resident of Nevada, and
that the district court in Clark County erred in entering judgment against him because neither
the arbitrator nor the New York trial court had acquired jurisdiction to make the awards or
confirm them. The appellant further contends that the trial court granted excessive attorney
fees to the respondent.
[Headnote 1]
The appellant denies the existence of any arbitration agreement with the respondent. He
admits signing the sales contract, but denies any intent to submit any dispute arising out of
that contract to arbitration.
In the light of the clear wording of the arbitration clause, the appellant's contention is
untenable. Parties to a written arbitration agreement are bound by its conditions regardless of
their subjective beliefs at the time the agreement was executed. In Level Export Corp. v.
Wolz, Aiken & Co., 111 N.E.2d 218 (N.Y. 1953), that court quoting with approval from
Metzger v. Aetna Ins. Co., 125 N.E. 814 (N.Y. 1920), stated: . . . when a party to a written
contract accepts it is [sic] a contract he is bound by the stipulations and conditions expressed
in it whether he reads them or not. Ignorance through negligence or inexcusable trustfulness
will not relieve a party from his contract obligations. He who signs or accepts a written
contract, in the absence of fraud or other wrongful act on the part of another contracting party,
is conclusively presumed to know its contents and to assent to them, and there can be no
evidence for the jury as to his understanding of its terms.
[Headnote 2]
The advice of sale was signed by Joseph Caragol on behalf of the respondent and sent to
the appellant who admits receiving it without registering an objection. If a buyer-merchant
fails to object to the written confirmation of an agreement from a seller-merchant, within ten
days of its receipt, the writing becomes a binding contract. NRS 104.2201 and New York
Uniform Commercial Code, Sec. 2-201 (McKinney, 1963).
1963). The advice of sale became a binding contract between the parties and they were
bound by the arbitration clause which it contained.
Although an agreement to arbitrate future controversies must be in writing (NRS 38.035;
New York Civil Practice Laws and Rules, Art. 75, Sec. 7501), a signature is not required.
Helen Whiting Inc. v. Trojan Textile Corp., 121 N.E.2d 367 (N.Y. 1954).
[Headnote 3]
The Association of Food Distributors, Inc., of New York derived its jurisdiction to
arbitrate from statutory enactments and was authorized to make the awards. Likewise the
New York trial court derived its jurisdiction to affirm the awards from statutory enactments.
New York C.P.L. and R., Art. 75. The Association and the New York Court gained
jurisdiction over the appellant through his consent embodied in the sales contract and the
advice of sale. The judgments entered by the trial court in New York were entitled to full
faith and credit in the courts of this state.
3

In Samincorp South American Min. & Mer. Corp. v. Lewis, 149 N.E.2d 385 (Mass. 1958),
that court held a second contract containing the arbitration clause needed only to be in writing
and that a signature is not required; that jurisdiction to foreign arbitration may be conferred
by consent; that the courts of the foreign jurisdiction have the power to confirm the award of
the arbitrators and that the courts of Massachusetts must give full faith and credit to that
foreign judgment.
In Tanbro Fabrics Corp. v. Hymen, 341 Ill.App. 396, 94 N.E.2d 93 (1950), the Illinois
Court said: Having entered into a contract which provided for arbitration according to the
rules of the Association, and to be governed by the laws of New York, and having agreed to
the form of notice and substituted service, as provided in the rules of the Association and the
arbitration code of New York, we are bound to hold that the court of New York had
jurisdiction of this defendant to enter the judgment in question. (Citations omitted.) Any other
holding would deny to plaintiff the benefit of the Full Faith and Credit' clause of the United
States Constitution, Art.
____________________

3
In this state there has been statutory authorization of arbitration since territorial days and the Uniform
Arbitration Act (NRS Ch. 38), has been in effect for many years. In re Mollart, 53 Nev. 329, 65 P.2d 676
(1938); United Assn. of Journeymen & App. of Plumbing, etc. v. Stine, 76 Nev. 189, at 212, 351 P.2d 965
(1960). In New York, arbitration received statutory sanction at an early date, New York Civil Practice Laws and
Rules, Article 75; Webster v. Van Allen, 216 N.Y.S. 552 (1926).
4, 1. In accord: Pan American Food Company v. Lester Lawrence & Son, 147 F Supp. 113
(N.D. Ill. 1956); Mulcahy v. Whitehill, 48 F.Supp. 917 (D.C. Mass. 1943); Marvlo Fabrics v.
Jarus, 87 F.Supp. 245 (W.D. Mo. 1949); Ripley Fabrics Corporation v. Hymen, 91 F.Supp.
1007 (N.D. Ill. 1950); Hirsch Fabrics Corp. v. Southern Athletic Co., 98 F.Supp. 436 (E.D.
Tenn. 1951).
[Headnote 4]
The district court's award of attorney fees in the amount of $1,500 was reasonable. We
find no abuse of discretion. In Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 455 P.2d 31
(1969), this court said: 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.
____________
86 Nev. 843, 843 (1970) State v. Titherington
STATE OF NEVADA, Appellant, v. LAWRENCE
CHARLES TITHERINGTON, Respondent.
No. 6162
December 10, 1970 477 P.2d 589
Appeal from an order granting a petition for habeas corpus. Second Judicial District Court,
Washoe County; Emile J. Gezelin, Judge.
The Supreme Court, Batjer, J., held, inter alia, that letter sent by accused from Nevada
State Prison, where he was incarcerated on another charge, requesting county district attorney
to consider dropping charges which had been lodged against him was insufficient to
constitute a demand for trial; accordingly, that letter was no predicate for the claim of
defendant, whose trial took place only after he had been released from prison on the prior
conviction, that he was denied his constitutional right to a speedy trial.
Reversed.
Harvey Dickerson, Attorney General; William J. Raggio, District Attorney, Kathleen M.
Wall, Deputy District Attorney, Washoe County, for Appellant.
H. Dale Murphy, Public Defender, William N. Dunseath, Deputy Public Defender, Washoe
Right of accused to a speedy trial under the United States Constitution is applicable to the several states
by virtue of the Fourteenth Amendment. U.S.C.A.Const. Amends. 6, 14.
2. Criminal Law.
Defendant incarcerated in another jurisdiction has a constitutional right to demand a speedy trial in state
where charges are pending and, when knowledge of his incarceration is made known to that jurisdiction by
virtue of such a demand, state has constitutional duty to bring him to trial within a reasonable time.
U.S.C.A.Const. Amends. 6, 14.
3. Criminal Law.
Letter sent by accused from Nevada State Prison, where he was incarcerated on another charge,
requesting county district attorney to consider dropping charges which had been lodged against him was
insufficient to constitute a demand for trial; accordingly, that letter was no predicate for the claim of
defendant, whose trial took place only after he had been released from prison on the prior conviction, that
he was denied his constitutional right to a speedy trial. U.S.C.A.Const. Amends. 6, 14.
4. Criminal Law.
If an accused, incarcerated in state prison, is charged with the commission of another crime in the state
and wishes to be tried on that charge before his release, he must make a demand for trial upon the proper
authorities.
OPINION
On January 28, 1969, a complaint was filed charging the respondent with the crimes of
grand larceny and receiving stolen goods. Those violations were alleged to have occurred on
January 21, 1969. On the date that the complaint was filed the respondent was incarcerated in
the Nevada State Prison, having been returned there as a parole violator to serve out the
remainder of his previous sentence.
By a letter dated June 24, 1969, addressed to the Washoe County district attorney, the
respondent requested that office to consider dropping the charges lodged against him under
the complaint filed on January 28, 1969. He made no demand to be brought to trial but stated
that he had matured and wished to enter a branch of the armed services at the conclusion of
his imprisonment. The respondent claims that he was not aware of the criminal complaint
until just before June 24, 1969. The charges were not dropped. On October 24, 1969, when
the respondent was released from prison, he was returned to Washoe County to stand
trial for the alleged crimes of grand larceny and receiving stolen goods.
respondent was released from prison, he was returned to Washoe County to stand trial for the
alleged crimes of grand larceny and receiving stolen goods.
On November 19, 1969, the respondent filed his petition for a writ of habeas corpus,
claiming a denial of his right to a speedy trial. The writ was issued on November 20, 1969.
On December 12, 1969, a hearing was held. The writ was made permanent and the
respondent ordered released from custody.
The appellant contends that the trial court erred when it ordered the writ to be made
permanent and the respondent released from custody, because it remained the respondent's
responsibility to demand a trial on the pending charges while he was incarcerated in the
Nevada State Prison, and his failure to do so amounted to a waiver of his constitutional right
to a speedy trial.
[Headnote 1]
The right of an accused to a speedy trial under the United States Constitution is now
applicable to the several states by virtue of the Fourteenth Amendment. Klopfer v. North
Carolina, 386 U.S. 213 (1967).
In Smith v. Hooey, 393 U.S. 374 (1969), the High Court held that an accused while
incarcerated on another charge had a right to a speedy trial, but 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.)
After the High Court entered its opinion in Smith v. Hooey, supra, this court, on several
occasions, has considered the question of a speedy trial for an accused incarcerated on
another charge. In Stone v. State, 85 Nev. 60, 450 P.2d 136 (1969), we said: 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.
[Headnote 2]
In State v. Erenyi, 85 Nev. 285, 454 P.2d 101 (1969), it was stated: 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 bring him to trial within a reasonable time.
[Headnote 3]
In Barr v. Sheriff, 85 Nev. 555, 459 P.2d 218 (1969), there was, as here, a request by the
accused to drop the pending charges. In holding that the request was insufficient to constitute
a demand for trial this court said: 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 trial court specifically found that the respondent was under no duty to make a demand
for a speedy trial. The reason for its conclusion is based on the fact that the appellant knew
that the respondent was in the Nevada State Prison and readily available for trial.
The trial court has misconstrued the clear meaning of State v. Erenyi, supra, and read into
that case the notion that once the prosecuting authority has knowledge of the accused's
whereabouts it has an obligation to bring him to trial. That case does not depart from the
requirement that the accused must make a demand for trial upon the proper authorities, and it
requires the prosecuting authority to bring the accused to trial only after it has knowledge of
his incarceration by virtue of such a demand. Here the knowledge of the accused's
whereabouts was not imparted by a demand for trial but by a letter requesting that all charges
be dropped.
[Headnote 4]
The place of incarceration is immaterial. If an accused, incarcerated in the Nevada State
Prison, is charged with the commission of another crime in this state and wishes to be tried on
that charge, before his release, he must make a demand for trial upon the proper authorities.
Smith v. Hooey, supra; Stone v. State, supra; see Dickey v. Florida, 398 U.S. 30 (1970).
The order of the district court making permanent the writ of habeas corpus and releasing
the respondent from custody is reversed.
____________
86 Nev. 847, 847 (1970) Parks v. Quintana
ANNA PARKS, Appellant, v. ANNETTE R. QUINTANA, Executrix of the Estate of
MACKLEY ODETT, Deceased, Respondent.
No. 6215
December 11, 1970 477 P.2d 869
O'Donnell, Judge.
Action to set aside a deed to real property on ground of fraud. The district court entered
judgment for grantors, and grantee appealed. The Supreme Court, Thompson, J., held that
where action to set aside deed to real property was tried by both sides on issue of fraud, and
where legal sufficiency of description of land conveyed was not an issue raised by pleadings,
and did not become an issue during trial, issue could not be deemed to have been tried by
implied consent of parties and, before deed was set aside on ground of legal insufficiency of
description, parties should have been afforded an opportunity to offer extrinsic evidence on
point.
Tad Porter, of Las Vegas, for Appellant.
Harry E. Claiborne and James J. Brown, of Las Vegas, for Respondent.
1. Quieting Title.
Although procedural requirements of a statutory quiet title action were not met, remedy was cumulative
and did not preclude equitable relief, as between parties who appeared and litigated issues, by setting aside
deed to property on ground of fraud. NRS 40.010 et seq., 40.120.
2. Judgment; Pleading.
Where action to set aside deed to real property was tried by both sides on issue of fraud, and where legal
sufficiency of description of land conveyed was not an issue raised by pleadings, and did not become an
issue during trial, issue could not be deemed to have been tried by implied consent of parties and, before
deed was set aside on ground of legal insufficiency of description, parties should have been afforded an
opportunity to offer extrinsic evidence on point. NRCP 15(b).
3. Evidence.
A deed description may be made certain and sufficient by extrinsic evidence.
OPINION
[Headnote 1]
This is an action to set aside a deed to real property on the ground of fraud.
1
The action
was commenced by Mackley Odett, one of the grantors, against Anna Parks, one of the
grantees. The deed which this action seeks to void was executed and recorded in 1964. The
grantors were Mackley Odett and her husband, Percy Odett, and the grantees were Percy
Odett, Mackley Odett, Owen Parks and Anna Parks as joint tenants. Percy Odett and Owen
Parks died before this suit was started. Mackley Odett died pending this appeal and the
executrix of her estate substituted in her place.
[Headnotes 2, 3]
The district court set aside the deed because the legal description of the land conveyed was
legally insufficient. No finding was made upon the issue of fraud. On this appeal the
grantee-appellant contends that she did not have her day in court since the legal sufficiency of
the description was not an issue raised by the pleadings, nor did it become an issue during
trial and cannot, therefore, be deemed to have been tried with the implied consent of the
parties. NRCP 15(b); Whiteman v. Brandis, 78 Nev. 320, 322, 372 P.2d 468 (1962). This
contention is sound. The case was tried by both sides upon the issue of fraud. After the
evidence was closed the court stated its concern about the adequacy of the description, and
called for briefs.
2
We do not fault the court for its concern. We do, however, believe that the
parties should have been afforded an opportunity to offer extrinsic evidence on the point. A
description may be made certain and sufficient
____________________

1
The complaint also purports to be one to quiet title against all adverse claimants. The procedural
requirements of a statutory quiet title action, NRS ch. 40, were not met. That remedy is cumulative [NRS
40.120] and does not preclude equitable relief as between the parties who appear and litigate the issues. by
such evidence.Low v. Staples, 2 Nev. 209 (1866); MacDonald v. Krause, 77 Nev. 312, 362 P.2d 724 (1961).

2
The description: Part of the Northwest 1/4 of the Southwest 1/4, Section 28, Township 20, Range 61, 1.33
acres. Thus, the inquiry becomeswhich part of the mentioned quarter sections?
by such evidence. Paroni v. Ellison, 14 Nev. 60 (1879). Should it appear that the grantors
owned only 1.33 acres in the quarter sections mentioned in the deed, then, perhaps, a
sufficient description could be determined from other documents in the chain of title. Cf.
Brown v. Warren, 16 Nev. 228 (1881). Of course, the court need not receive evidence on this
point if it finds that the deed must be voided upon the ground of fraud.
Zenoff, Batjer, and Mowbray, JJ., and Young, D. J., concur.
____________
86 Nev. 849, 849 (1970) Patrick v. Sheriff
DORIS MARIE PATRICK, Appellant, v. SHERIFF,
No. 6428
December 11, 1970 477 P.2d 594
Appeal from denial of petition for writ of habeas corpus. Second Judicial District Court,
The defendant filed a pretrial petition for writ of habeas corpus attacking sufficiency of
information. The district court entered a judgment denying the petition and the defendant
appealed. The Supreme Court held that an information which charged defendant with an
attempt to obtain a narcotic drug and used the trade name for drug instead of its
pharmaceutical designation sufficiently discharged State's responsibility to adequately inform
defendant of crime to which he must plead or defend, and information was sufficient.
Affirmed.
Harry A. Busscher, of Reno, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and C.
Frederick Pinkerton, Deputy District Attorney, Washoe County, for Respondent.
Indictment and Information.
Information which charged defendant with an attempt to obtain a narcotic drug and used the trade name
for drug instead of its pharmaceutical designation sufficiently discharged State's responsibility to
adequately inform defendant of crime to which he must plead or defend, and
information was sufficient.
86 Nev. 849, 850 (1970) Patrick v. Sheriff
responsibility to adequately inform defendant of crime to which he must plead or defend, and information
was sufficient. NRS 173.075, subd. 1.
OPINION
Per Curiam:
Doris Marie Patrick appeals from a pretrial denial of her petition for a writ of habeas
corpus. The information charged her with an attempt to obtain a narcotic drug but the
charging portion named the drug by its trade name, Numorphan, instead of by its
pharmaceutical designation. For this, defendant sought first to dismiss the information in the
trial court and when that motion was denied petitioned for a writ of habeas corpus. She
appeals from the denial of that petition.
Use of the trade name, Numorphan, instead of designating the chemical ingredients
sufficiently discharges the State's responsibility to adequately inform the defendant of the
crime to which she must plead or defend. NRS 173.075(1); Gallegos v. State, 84 Nev. 608,
446 P.2d 656 (1968); Logan v. Warden, 86 Nev. 511, 471 P.2d 249 (1970).
Affirmed.
____________
86 Nev. 850, 850 (1970) Peterson v. Freeman
RAY A. PETERSON, Jr., and ROBERT E. PETERSON, Appellants, v. ORRIN D.
FREEMAN and BONNIE FREEMAN, His Wife, Respondents.
No. 6140
December 14, 1970 477 P.2d 876
Appeal from order for summary judgment by Second Judicial District Court, Washoe
County; John F. Sexton, Judge.
Sellers of business brought suit against buyers to recover remainder of purchase price. The
district court rendered summary judgment for plaintiffs and awarded attorneys' fees, and
defendants appealed. The Supreme Court, Mowbray, J., held that where written agreement
contained nothing warranting nonobsolescence of inventory or guaranteeing that all accounts
receivable were collectible, where buyers had approved the inventory and where schedule of
accounts receivable deposited in escrow was subject to inspection by buyers alleged facts that
physical inventory was obsolete and certain accounts receivable were found to be
uncollectible did not release buyers from liability for remaining purchase price, and that
under statute authorizing award of attorneys' fees to prevailing party when principal
amount recovered does not exceed $10,000, plaintiffs who had recovered on two counts,
one for $5,000 and one for $15,000, were not entitled to attorneys' fees.
were found to be uncollectible did not release buyers from liability for remaining purchase
price, and that under statute authorizing award of attorneys' fees to prevailing party when
principal amount recovered does not exceed $10,000, plaintiffs who had recovered on two
counts, one for $5,000 and one for $15,000, were not entitled to attorneys' fees.
A. D. Jensen, of Reno, for Appellants.
Leo P. Bergin, of Reno, for Respondents.
1. Sales.
Where written agreement for purchase of business contained nothing warranting nonobsolescence of
inventory or guaranteeing that all accounts receivable were collectible, where buyers had approved the
inventory, where schedule of accounts receivable was subject to inspection by buyers and where all
conditions in agreement were satisfied before down payment was made, alleged facts that physical
inventory was obsolete and certain accounts receivable were found to be uncollectible did not release
buyers from liability for remaining purchase price.
2. Sales.
Where written agreement for sale of business provided that purchase price would be reduced if, upon
taking of inventory, net worth was less than the stated figure, requirement that adjustment be determined at
time of taking of inventory was not altered by provision that if adjustment were required it would be
deducted from final annual installment and did not permit attempted adjustment by buyers two years after
taking of inventory.
3. Costs.
Under statute authorizing award of attorneys' fees to a prevailing party when principal amount recovered
does not exceed $10,000, the total judgment governs, and $20,000 judgment recovered by plaintiffs on two
accounts, one for $5,000 and one for $15,000, exceeded statutory limit and did not entitle plaintiffs to
attorneys' fees. NRS 18.010.
OPINION
This is an appeal from an order of the district court granting a $20,000 summary judgment
in favor of respondents, the Freemans, and awarding them an additional $1,500 for their
attorney's fees. We approve the $20,000 award, but we reject the $1,500 allowance for
attorney's fees. The judgment as so modified is affirmed.
1. In 1965, the Freemans sold all of the stock in their business, known as Chesnut and
Freeman, Inc., to appellants, the Petersons, and Warren M. Brown. The business was
primarily concerned with the sale and repair of motor trucks. The partners finalized their
negotiations in a written agreement dated June 30, 1965. The agreement provided that the
appellants would pay the Freemans $45,000 for all the common stock of the corporation,
consisting of 24,000 shares, payable by depositing $15,000 in escrow with Leslie M. Fry of
Reno and the remaining balance of $30,000 to be paid in six annual installments of $5,000
each, commencing July 1, 1966. In the agreement of June 30, 1965, the Freemans warranted
that as of March 31, 1965, the net worth of CHESNUT AND FREEMAN, INC. was
$38,230.28. The net worth figure was based principally on the physical inventory of the
company and its accounts receivable. In this connection, the parties agreed that a physical
inventory of the business would be taken within 15 days, priced at the unit cost invoice price
appearing on the last invoice in point of time, and the Freemans agreed, among other things,
to deposit for the appellants' inspection with the escrowee a list of the accounts receivable.
1
The parties further agreed that the escrowee, among other things, should hold the
$15,000 down payment and not release it to the sellers until the completion of the taking
of the inventory, "which shall be approved by SELLERS and BUYERS," and the receipt in
escrow of a list of all accounts receivable plus a balance sheet of Chesnut and Freeman,
Inc. as of June 30, 1965.2

____________________

1
3. SELLERS shall within fifteen (15) days following the execution of this agreement cause or allow the
following to be done:
(a) SELLERS and BUYERS, or their agents or nominees shall forthwith cause a physical inventory to be
taken. The inventory price of each item shall be priced at the unit cost invoice price appearing on the last invoice
in point of time.
(b) Rebuilt machines, motors and other rebuilt items of equipment shall be inventoried at current catalogue
prices, except for one rebuilt Cummins engine which shall be valued not to exceed $4,200.00.
(c) SELLERS shall deposit with a mutually agreeable escrowee a Bulk Sales Affidavit, containing the names,
addresses and amounts of each and every creditor of CHESNUT AND FREEMAN, INC.; BUYERS shall
assume and pay each and every creditor's claim listed thereon. Any creditor's claim not listed or appearing
thereon shall be paid by SELLERS.
(d) BUYERS shall assume possession of the premises on July 1, 1965.
(e) SELLERS shall deposit with the escrowee all leases, together with consent to assignments thereof
executed by the respective Lessors authorizing BUYERS or a corporate entity to be formed by them to obtain
the possession of the leased premises for the balance of the term of said lease.
(f) Deposit with the escrowee a list of all accounts receivable.
(g) Deposit a true and correct balance sheet of CHESNUT AND FREEMAN, INC., as of June 30, 1965.
(h) Deposit with the escrowee all outstanding shares of common stock duly endorsed in blank. SELLERS
represent there is a total of
The parties further agreed that the escrowee, among other things, should hold the $15,000
down payment and not release it to the sellers until the completion of the taking of the
inventory, which shall be approved by SELLERS and BUYERS, and the receipt in escrow
of a list of all accounts receivable plus a balance sheet of Chesnut and Freeman, Inc. as of
June 30, 1965.
2

The physical inventory was taken and approved in writing by the appellants on June 30,
1965. The schedule of the accounts receivable and the balance sheet of June 30 were
deposited with the escrowee, as provided in paragraph 11 of the agreement. Thereafter, the
escrowee released the $15,000 down payment to the Freemans. Appellants took possession of
the business and operated it. They paid the $5,000 annual installment payments due on July 1,
1966, and July 1, 1967. They thereafter sold the business to a third party. They have refused,
however, to pay the annual installment due July 1, 196S.
____________________
TWENTY-FOUR THOUSAND (24,000) shares issued and outstanding. The NINE THOUSAND (9,000) shares
held in escrow by BRYCE RHODES as agent for KEITH CHESNUT as a pledge for the payment of the balance
due KEITH CHESNUT by CHESNUT AND FREEMAN, INC., and which said sum is listed as a liability of
said corporation in arriving at the net worth shall be processed by SELLERS and BUYERS through the escrow
agent hereinafter named and in accordance to the instructions hereinafter provided.

2
11 It is agreed that LESLIE M. FRY, ESQ., 105 North Sierra Street, Reno, Nev. shall be and is hereby
appointed the escrow agent for SELLERS and BUYERS herein and is so instructed as follows:
(1) To hold the $15,000.00 down payment subject to the following conditions:
(a) The taking of the inventory which shall be approved by SELLERS and BUYERS.
(b) The deposit of the Bulk Sales Affidavit into escrow.
(c) The deposit in escrow of the lease together with an assignment thereof with a consent to assignment.
(d) The deposit in escrow of a list of all accounts receivable.
(e) The deposit in escrow of a balance sheet of CHESNUT AND FREEMAN, INC., as of June 30, 1965.
(f) The deposit in escrow of 24,000 shares of stock of CHESNUT AND FREEMAN, INC. endorsed in blank
as a pledge for the payment of the KEITH CHESNUT promissory note and the balance of the purchase price.
(g) The adjustment, if any required, is made in the sale price which shall be done in accordance to the
formula set forth in paragraph 6 of this agreement and shall be deducted from the last annual installment or
installments of the purchase price.
When the above conditions (a) through (g) are met, the $15,000.00 shall be paid to SELLERS.
1968. The Freemans then commenced this action in district court by filing a complaint to
recover the remaining purchase price of $20,000 due under the terms of the agreement. The
appellants-defendants answered by alleging that the net worth of the business did not equal
$38,230.28, as warranted by the Freemans, because (1) the physical inventory was obsolete
and (2) certain accounts receivable were found to be uncollectible. Thereafter, the Freemans
moved for summary judgment in their favor, which the court granted, plus allowing them
$1,500 for their attorney's fees.
[Headnote 1]
2. It is axiomatic that summary judgment may not be granted if there exists a material
issue of fact that must be determined by the trier of the facts. See Brewer v. Annett, 86 Nev.
700, 475 P.2d 607 (1970). We reject appellants' contention that in this case there exists a
material issue of fact to be resolved by the court. The appellants' refusal to pay is based on
two contentions: (1) that the physical inventory was obsolete and (2) that certain accounts
receivable were found to be not collectible. There is nothing in the agreement of the parties
warranting the nonobsolescence of the inventory, or guaranteeing that all of the accounts were
collectible. A physical inventory was taken prior to close of escrow. Appellants had a
representative present when it was taken. They later approved it by letter form dated June 30,
1965, and they deposited the letter with the escrowee as provided in the agreement. The
schedule of accounts receivable was also deposited in escrow and was subject to inspection
by the appellants. Thereafter, the escrowee released the $15,000 down payment to the sellers.
All of the conditions from (a) through (g) of paragraph 11(1) of the agreement were satisfied
before the $15,000.00 . . . [was] paid to SELLERS.
[Headnote 2]
Appellants have argued that, under the provisions of paragraph 11(1)(g) of the agreement,
the adjustment, if any, of the purchase price of $45,000 could have been determined at any
time prior to the payment of the last annual $5,000 installment on July 1, 1971. We do not
agree. Paragraph 11(1)(g) provides in part that when [t]he adjustment, if any required, is
made in the sale price . . . [it] shall be done in accordance to the formula set forth in
paragraph 6, which provides in part: If, upon the taking of the physical inventory and the
preparation of the balance sheet as of June 30, 1965, the net worth is less than the above
stated figure, then the purchase price shall be reduced proportionately.
purchase price shall be reduced proportionately.
3
(Emphasis added.) Paragraph 11(1)(g)
merely adds that if an adjustment in the price is required it shall be deducted from the final
annual installment of the total price paid. After the close of escrow, the appellants took
possession, operated the business, and eventually sold it to a third party. They made the first
two annual installment payments due on the remaining purchase price in July 1966 and July
1967.
Viewing the evidence in the light most favorable to the appellants, we find no material
issue to be resolved by the court and that therefore the respondents-plaintiffs were entitled to
a summary judgment. Kaminski v. Woodbury, 85 Nev. 667, 462 P.2d 45(1969).
[Headnote 3]
3. NRS 18.010 grants to the trial court the power to award attorney's fees to a prevailing
party when the principal amount recovered does not exceed $10,000.
4
Here, the
respondents-plaintiffs recovered a $20,000 judgment, and the judge granted them $1,500
for their attorney's fees.
____________________

3
6. BUYERS AND SELLERS do specifically covenant and agree that the sole and inducing cause of the
purchase of CHESNUT AND FREEMAN, INC., has been the SELLERS' representation that the net worth of
CHESNUT AND FREEMAN, INC., was THIRTY-EIGHT THOUSAND TWO HUNDRED THIRTY and
28/100 ($38,230.28) DOLLARS as of March 31, 1965. If, upon the taking of the physical inventory and the
preparation of the balance sheet as of June 30, 1965, the net worth is less than the above stated figure, then the
purchase price shall be reduced proportionately. The proportion shall be equal and amount to
Thirty-Eight/Forty-Fifths (38/45), that is to say, 38/45 of the lesser net worth figure shall be subtracted from the
purchase price.

4
NRS 18.010:
1. The compensation of an attorney and counselor for his services is governed by agreement, express or
implied, which is not restrained by law. From the commencement of an action, or the service of an answer
containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action or
counterclaim which attaches to a verdict, report, decision or judgment in his client's favor and the proceeds
thereof in whosesoever hands they may come, and cannot be affected by any settlement between the parties
before or after judgment. There shall be allowed to the prevailing party in an action, or special proceeding in the
nature of an action, in the supreme court and district courts, his costs and necessary disbursements in the action
or special proceeding, including:
(a) Clerk's fees.
(b) Costs of depositions obtained by the prevailing party and used by him at the trial.
(c) Jury fees as provided in NRS 6.150.
(d) Witness fees of witnesses as provided in NRS 43.290.
2. The court may allow to the prevailing party the fees of expert witnesses in an amount not to exceed $250.
respondents-plaintiffs recovered a $20,000 judgment, and the judge granted them $1,500 for
their attorney's fees. They argue that such is permissible in this case because they sued in two
countsone for the $5,000 annual installment due July 1, 1968, and the other for $ 15,000,
representing the remaining annual installments due on the total purchase price. Respondents
claim that the $1,500 attorney's fee was awarded on the first count only, where they recovered
only $5,000, and is therefore allowable. We reject this contention, and we hold that it is the
total judgment that governs and that where the amount recovered exceeds the statutory limit
of $10,000 the court may not grant a award of attorney's fees.
Zenoff, Batjer, and Thompson, JJ., and Young, D. J., concur.
____________________
3. The court may make an allowance of attorney's fees to:
(a) The plaintiff as prevailing party when the plaintiff his not recovered more than $10,000; or
(b) The counterclaimant as prevailing party when he has not recovered more than $10,000; or
(c) The defendant as prevailing party when the plaintiff has not sought recovery in excess of $10,000.
____________
86 Nev. 856, 856 (1970) Chiara v. Belaustegui
JOSEPHINE CHIARA and ROBERT E. CHIARA, Appellants, v. LEON BELAUSTEGUI,
VELMA BELAUSTEGUI, SAM BIDA, and NEVA BIDA, Respondents.
No. 6202
December 14, 1970 477 P.2d 857
Appeal from order denying appellants' motion to set aside an order granting judgment by
default. Third Judicial District Court, Lander County; John F. Sexton, Judge.
The district court denied defendants' motion to set aside order granting judgment by
default and order granting motion to strike after defendants failed to respond to plaintiffs'
interrogatories within time limit prescribed by rule and had default judgment entered against
them, and defendants appealed. The Supreme Court, Mowbray, J., held that rule providing
that where issues have been litigated and resolved, motion may be made to alter or amend
judgment may not be utilized to vacate default judgment.
made to alter or amend judgment may not be utilized to vacate default judgment.
Affirmed.
[Rehearing denied January 11, 1971]
Jerry C. Lane, of Carson City, and T. David Horton, of Battle Mountain, for Appellants.
Gray, Horton & Hill, of Reno, for Respondents.
Judgment.
Rule providing that where issues have been litigated and resolved, motion may be made to alter or amend
judgment may not be utilized to vacate default judgment. NRCP 59(e), 60(b).
OPINION
The principal issue presented for our consideration in this appeal is whether a 59(e) motion
to alter or amend a judgment may be utilized to vacate a default judgment.
1
We rule that it
may not be so used.
1. The Facts.
The respondents, who were the plaintiffs below, commenced a quiet-title action in the
district court. The Chiaras, who are the appellants, answered the complaint and filed a
counterclaim. Thereafter, respondents served interrogatories upon the appellants as provided
by Rule 33.
2
The appellants failed to respond to the interrogatories within the time limit
prescribed by the rule, and the court on motion of the respondents ordered the answer
and counterclaim of appellants stricken and entered judgment by default against them.
____________________

1
NRCP 59(e):
Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later
than 10 days after service of written notice of entry of the judgment.

2
NRCP 33. INTERROGATORIES TO PARTIES:
Any party may serve upon any adverse party written interrogatories to be answered by the party served or, if
the party served is a public or private corporation or a partnership or association, by any officer or agent, who
shall furnish such information as is available to the party. Interrogatories may be served after commencement of
the action and without leave of court, except that, if service is made by the plaintiff within 10 days after such
commencement, leave of court granted with or without notice must first be obtained. The interrogatories shall be
answered separately and fully in writing under oath. The answers shall be signed by the person making them; and
the party upon whom the interrogatories have been served shall serve a copy of the answers on the party
submitting the interrogatories within 15 days after the service
respond to the interrogatories within the time limit prescribed by the rule, and the court on
motion of the respondents ordered the answer and counterclaim of appellants stricken and
entered judgment by default against them. NRCP 37(d).
3
Thereafter, appellants, within the
10-day period permitted under 59(e), filed a motion denominated, Motion to Set Aside
Order Granting Judgment by Default and Order Granting Motion to Strike. The court denied
the motion; hence, this appeal.
2. The Vacation of Default Judgments.
Rule 60(b) of the Nevada Rules of Civil Procedure sets forth the manner in which a court
may relieve a party who has been served and has defaulted. It requires such a party, upon
proper motion, to show the reason for the default, i.e., mistake, inadvertence, surprise, or
excusable neglect.
4
Appellants concede that a 60{b) motion was available to them.5

____________________
of the interrogatories, unless the court, on motion and notice and for good cause shown, enlarges or shortens the
time. Within 10 days after service of interrogatories a party may serve written objections thereto together with a
notice of hearing the objections at the earliest practicable time. Answers to interrogatories to which objection is
made shall be deferred until the objections are determined.

3
NRCP 37(d):
(d) Failure of Party to Attend or Serve Answers. If a party or an officer or managing agent of a party
wilfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, or
fails to serve answers to interrogatories submitted under Rule 33, after proper service of such interrogatories, the
court on motion and notice may strike out all or any part of any pleading of that party, or dismiss the action or
proceeding or any part thereof, or enter a judgment by default against that party.

4
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; (3) the judgment is void; or, (4) the judgment has been satisfied, released, or discharged, or a
prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that an
injunction should have prospective application. The motion shall be made within a reasonable time, and for
reasons (1) and (2) not more than six months after the judgment, order, or proceeding was entered or taken. A
motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule
does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order,
or proceeding, or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a
judgment shall be by motion as prescribed in these rules or by an independent action.
Appellants concede that a 60(b) motion was available to them.
5

On the other hand, Rule 59(e) provides an opportunity, within a severely limited time, to
seek correction at the trial court level of an erroneous order or judgment, thereby initially
avoiding the time and expense of appeal. Rule 59(e) provides the remedy that, where the
issues have been litigated and resolved, a motion may be made to alter or amend a judgment.
Such a motion might propose to alter a judgment of dismissal without prejudice to a dismissal
with prejudice and vice versa; to include an award of costs; or to change the time and
conditions of the payment of a master.
As a policy matter, we believe that a defendant against whom a default judgment has been
entered should not be relieved of that default judgment without demonstrating the reason why
it should be set aside. To rule otherwise would emasculate Rule 60(b), for any party who had
been defaulted could, within 10 days after notice of such default, file a 59(e) motion to alter
or amend the judgment without asserting any reason why he should be relieved of the default.
The order of the district court denying appellants' motion to set aside the default judgment
entered against them is affirmed.
Zenoff, Batjer, and Thompson, JJ., and Young, D. J., concur.
____________________

5
During oral argument before this court on November 18, 1970:
Question by the court: would you also agree that a 60(b) motion was available to you upon receipt of the
notice of judgment of July 1, 1969?
Answer by Mr. Jerry Lane, counsel for appellants: Yes.
____________
86 Nev. 859, 859 (1970) Paradise Palms v. Paradise Homes
PARADISE PALMS COMMUNITY ASSOCIATION, Appellant, v. PARADISE HOMES, a
Nevada Corporation, Respondent.
No. 6209
December 15, 1970 477 P.2d 859
Appeal from two orders denying motions to set aside a default judgment and to alter or
amend the order denying motion to set aside the default. Eighth Judicial District Court, Clark
County; Taylor H. Wines, Judge.
Appeal from orders of the district court denying motions to set aside default judgment and
to alter or amend order denying motion to set aside the default.
motion to set aside the default. The Supreme Court held that motion to alter or amend
judgment could not be utilized by defendant to alter or amend order denying defendant's
motion to set aside default entered against it and was not therefore available to toll 30-day
appeal period, which had expired at time defendant filed notice of appeal, from order denying
motion to set aside default.
Affirmed.
R. Paul Sorenson, of Las Vegas, for Appellant.
Lionel, Sawyer & Wartman and Steve Morris, of Las Vegas, for Respondent.
Appeal and Error; Judgment.
Motion to alter or amend judgment could not be utilized by defendant to alter or amend order denying
defendant's motion to set aside default entered against it and was not therefore available to toll 30-day
appeal period, which had expired at time defendant filed notice of appeal, from order denying motion to set
aside default. NRCP 59(e), 60(b), 73(a).
OPINION
Per Curiam:
Paradise Palms Community Association has appealed from two orders of the district court
denying the Association's motions to (1) set aside a default judgment and (2) alter or amend
the order that denied the motion to set aside the default. We affirm the orders of the district
court denying both motions.
The motion to set aside the default was filed approximately 19 months after the default
had been entered. It was predicated on Rule 60(b) of the Nevada Rules of Civil Procedure,
1
and particularly reason {3) cited therein, that the judgment was void because the person
who had accepted service for the Association was not in fact at that time an officer of the
Association.
____________________

1
NRCP 60(b):
(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; (3) the judgment is void; or, (4) the judgment has been satisfied, released, or discharged, or a
prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that an
injunction should have prospective application. The motion shall be made within a reasonable time and for
reasons (1) and (2) not more than six months after the judgment,
particularly reason (3) cited therein, that the judgment was void because the person who had
accepted service for the Association was not in fact at that time an officer of the Association.
After a hearing before the court, the judge found otherwise, and he denied the motion on
November 7, 1969. Notice of entry was served on November 10, 1969.
Rather than appeal at that time from the order of denial, the Association sought to amend
or alter the judgment of denial by filing on November 21, 1969, a 59(e) motion,
2
which the
judge denied on December 11, 1969. The Association filed a notice of appeal from both
orders of denial on January 5, 1970. The 30-day period from notice of entry of judgment
denying the 60(b) motion had expired. NRCP 73(a).
3
The 30-day period is jurisdictional. See
Culinary Workers v. Haugen, 76 Nev. 424, 357 P.2d 113 (1960); Smilanich v. Bonanza Air
Lines, 72 Nev. 10, 291 P.2d 1053 (1956); Rogers v. Thatcher, 70 Nev. 98, 255 P.2d 731
(1953).
Since we have ruled that a 59(e) motion may not be utilized to vacate a default judgment,
it is not available to toll the 30-day appeal period from an order denying a 60(b) motion. See
Chiara v. Belaustegui, 86 Nev. 856, 477 P.2d 857 (1970).
The orders of the district court denying both motions are affirmed.
____________________
order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a
judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent
action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the
court. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or
by an independent action.

2
NRCP 59(e):
(e) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later
than 10 days after service of written notice of entry of the judgment.

3
NRCP 73(a):
(a) When and How [Appeal] Taken. When an appeal is permitted the time within which an appeal may be
taken shall be 30 days from service of written notice of the entry of the judgment appealed from. . . .
____________
86 Nev. 862, 862 (1970) Balaban v. Bank of Nevada
PETER BALABAN and VEGAS-WESTERN CAB, INC., Appellants, v. BANK OF
NEVADA, ANDREW MARIS, PETER NOGIEC and CHARLES ROSENBAUM,
Respondents.
No.5981
December 16, 1970 477 P.2d 860
Appeal from orders of the Eighth Judicial District Court, Clark County; Alvin N. Wartman
and Howard W. Babcock, Judges.
Proceeding for confirmation of sale of interest of deceased partner in partnership business.
The district court confirmed the sale, and surviving partner and unsuccessful bidder appealed.
The Supreme Court, Collins, C. J., held that unsuccessful bidder had no standing to object to
confirmation but that order allowing administrator to sell either entire partnership business,
decedent's interest in it, or specific partnership property was impermissible; only interest
which could be sold was decedent's interest in partnership.
E. M. Gunderson and Larry C. Johns, of Las Vegas, for Appellant Vegas-Western Cab,
Inc.
Harry J. Mangrum, Jr., of Las Vegas, for Appellant Peter Balaban.
Alfred Becker, of Las Vegas, for Respondent Bank of Nevada.
Peter Flangas, of Las Vegas, for Respondents Andrew Maris and Peter Nogiec.
1. Partnership.
On partner's death, surviving partner became vested by operation of law with title to all assets and it was
his duty, as well as that of deceased partner's administrator, to use partnership assets for partnership
purposes until it could be terminated. NRS 87.250, subd. 2(d).
Order allowing deceased partner's administrator to sell either entire partnership business, decedent's
interest in it, or specific partnership property was impermissible; only interest which could be sold was
decedent's interest in partnership. NRS 87.260, 148.210.
3. Partnership.
Upon sale of deceased partner's interest in partnership, surviving partner may be bidder, but is given no
preferential advantage over any other bidder. NRS 143.040, subd. 4, 148.210.
Unsuccessful bidder at administrator's sale did not have standing to object to confirmation. NRS
148.070.
OPINION
This is an appeal by Peter Balaban from an order of the lower court confirming sale of the
interest of the Estate of Bayne C. Simpson, deceased, in the Desert Cab Company to
Respondents Maris, Nogiec and Rosenbaum, and an appeal by Vegas-Western Cab, Inc., an
unsuccessful bidder at that sale, from the same order. Respondent Bank of Nevada is
administrator with will annexed of the estate. We reverse those orders and remand the cause
for further proceedings.
Bayne C. Simpson, the deceased, and Peter Balaban, appellant, entered into a partnership
agreement to operate a taxicab business in the Las Vegas area known as Desert Cab
Company. Simpson died on November 21, 1964, leaving a will which bequeathed his interest
in the cab company to his wife and a former sister-in-law. There was some confusion at first
whether Simpson alone owned the cab company, but it was later conceded the business was
equally owned by Simpson and Balaban as partners, and its value was appraised at $8,000.
We do not know if this figure represents the gross value of the partnership assets, the net
value after deducting partnership creditor obligations, or the partnership surplus.
For a period of two years following Simpson's death, the Bank, with court approval,
operated the cab business on behalf of the estate through one Robert Simpson, who at the end
of that period concluded it could not be operated profitably and gave it up. Balaban
apparently did not object to nor contest that handling of the matter. The Bank, contending
there were not other sufficient assets in Simpson's estate to pay creditors, filed a petition
seeking to sell the Desert Cab Company. Balaban objected to the sale and asserted that as
surviving partner he was entitled to one-half the assets of the company and an accounting.
The Bank then filed a petition for authority to compromise Balaban's objections and to
liquidate the partnership assets. The Bank, acknowledging the cab company was a partnership
with Balaban, tendered to the court an agreement to sell the estate's interest to him. The court
refused the agreement and ordered the estate's interest to be sold at public auction. Balaban
objected to that order.
Confusion enters the proceedings at this point. The court's order directing the
administrator to sell decedent's interest in the cab company states that it was an interest in
the Desert Cab Company but goes on to say that the sale of the cab company is necessary
and in the best interest of the Estate. The Bank's notice of sale offered to receive bids for
All the Estate's right, title, interest of the Desert Cab Company located in Las Vegas,
Nevada. One of the terms in that notice was that said sale will include all physical assets.
At the sale, two bids were received, one from Vegas-Western Cab for $10,505, and one
from Maris, Nogiec and Rosenbaum for $14,005. The Bank accepted the latter bid and sought
confirmation of the sale. Vegas-Western opposed confirmation, contending the bid by Maris,
Nogiec and Rosenbaum did not conform to the notice of sale and that its bid of $10,505 was
the highest and best bid. Balaban also objected to the sale and stated that he was willing to
pay the value of the Estate of Simpson in the cab company at the time of its dissolution. The
court overruled both objections, found that a petition for sale of Desert Cab Company was
filed by the administrator, and confirmed the sale of the estate's interest in the Desert Cab
Company according to its terms and upon approval of the Nevada Public Service
Commission to Maris, Nogiec and Rosenbaum for $14,505. It is from those orders these
appeals are taken.
The issues are these:
I. Whether the lower court erred in ordering a sale of a deceased partner's interest in a
partnership including the physical assets of the partnership.
II. Whether an unsuccessful bidder has standing to object to the confirmation of sale.
1. We must decide in this appeal the interplay between the Uniform Partnership Act (NRS
Ch. 87)
1
and certain provisions in the probate code (NRS Chs. 143 and 148) as they bear on
the facts in this case and to determine if the lower court construed and applied those sections
correctly.
2. Pursuant to the Uniform Partnership Act (NRS 87.240), the property rights of a partner
are (1) his rights in specific partnership property, (2) his interest in the partnership, and (3) his
right to participate in the management.
The first right confers an equal right with his partners to possess specific partnership
property (NRS 87.250(2)(a));
2
the right in specific property is not assignable except where
the rights of all parties in the same property are assigned {NRS S7.250{2){b)); his right in
specific partnership property is not subject to attachment or execution, except on a claim
against the partnership {NRS S7.250{2){c)); on death of a partner his right in specific
partnership property vests in the surviving partner {NRS S7.250{2){d)); and his right in
specific partnership property is not subject to dower, courtesy, or allowance to widows,
heirs or next of kin {NRS S7.250{2){e)).

____________________

1
Stats. Nev. 1931, ch. 74, at 112.

2
See also State v. Elsbury, 63 Nev. 463, 468, 175 P.2d 430 (1946).
the right in specific property is not assignable except where the rights of all parties in the
same property are assigned (NRS 87.250(2)(b)); his right in specific partnership property is
not subject to attachment or execution, except on a claim against the partnership (NRS
87.250(2)(c)); on death of a partner his right in specific partnership property vests in the
surviving partner (NRS 87.250(2)(d)); and his right in specific partnership property is not
subject to dower, courtesy, or allowance to widows, heirs or next of kin (NRS 87.250(2)(e)).
As to the second of his partnership rights, his interest in the partnership is his share of the
profits and surplus, and the same is personal property (NRS 87.260). This right is the same as
it was at common law. The legal nature of this interest was defined by this court in State v.
Elsbury, supra, at 468, where it was held: A partner has no individual property in any
specific assets of the firm. Instead, the interest of each partner in the partnership property is
his share in the surplus, after the partnership debts are paid and the partnership accounts have
been settled. Until that time arrives, it cannot be known what property will have to be used to
satisfy the debts and, therefore, what property will remain after the debts are paid.
The third partnership property right restricts partnership management personally to the
partners, and while he may assign his partnership rights, the only right acquired by his
assignee is a share in the profits (NRS 87.270 and 87.180(7)).
3. The probate code also bears upon the issues presented here. The rights of a surviving
partner are defined in NRS 143.040, which reads:
1. When there was a partnership existing between the testator or intestate, at the time of
his death, and any other person, the surviving partner shall have the right to continue in
possession of the effects of the partnership and to settle its business, but the interests of the
deceased shall be included in the inventory and appraised as other property.
2. The surviving partner shall proceed to settle the affairs of the partnership without
delay, and shall account to the executor or administrator, and pay over such balance as may
be, from time to time, payable to him as the representative of his testator or intestate.
3. Upon the application of the executor or administrator the court or judge may, whenever
it may appear necessary, order the surviving partner to render an account, and in case of
neglect or refusal may, after notice, compel it by attachment; and the executor or
administrator may maintain against him any action which the deceased could have
maintained.
of neglect or refusal may, after notice, compel it by attachment; and the executor or
administrator may maintain against him any action which the deceased could have
maintained.
4. Upon any sale of a partnership interest the surviving partner may be a bidder.
Sale of partnership interest is governed by NRS 148.210, which reads: Partnership
interests or interests belonging to an estate by virtue of any partnership formerly existing, an
interest in personal property pledged, and choses in action, may be sold in the same manner
as other personal property. Before confirming the sale of a partnership interest, whether made
to the surviving partner or to any other person, the court must carefully inquire into the
condition of the partnership affairs, and must examine the surviving partner, if in the county
and able to be present in court. It should be noted this section deals with a sale of a
partnership interest but does not attempt to legally define or describe that interest.
[Headnote 1]
4. Certain inescapable conclusions must follow from the application of those statutes to
the facts in this case. On Simpson's death, Balaban, as the sole surviving partner, became
vested by operation of law with title to all the assets of the partnership. It was Balaban's duty,
as well as the administrator of Simpson's estate, to use the partnership assets for partnership
purposes until it could be terminated (NRS 87.250(2)(d)). No interest in any of the physical
assets of the Desert Cab Company could be sold by the administrator of the estate of the
deceased partner, Simpson. The only interest which could be sold was the interest of the
deceased partner in the partnership. NRS 87.260; State v. Elsbury, supra. This interest was
the same as the partner held during his lifetime, namely, a share of the profits and surplus.
Following dissolution of the partnership by the death of Simpson, his estate was entitled to
have his interest in the partnership ascertained as of that date and to receive as an ordinary
creditor an amount equal to his interest in the dissolved partnership with interest, or at the
option of the administrator, in lieu of interest, the profits attributable to the use of his right in
the property of the dissolved partnership (NRS 87.420). The administrator also had the right
to an accounting against the person or partners continuing the business, absent any agreement
to the contrary, accruing as of the date of dissolution (NRS 87.430).
[Headnote 2]
Instead of following that course, the lower court allowed the administrator to sell either the
entire cab company, Simpson's interest in it or in specific partnership property, i.e., the Public
Service Commission's certificate of public necessity and convenience. Such an order was not
permissible, and the purported sale must be set aside and remanded to the lower court for
determination of Simpson's interest in the partnership and offer only that interest for sale
(NRS 148.210).
[Headnote 3]
At the new sale to be held, Balaban may be a bidder, but he is given no preferential
advantage over any other bidder (NRS 143.040(4)). The lower court's concern must be to see
that the estate receives fair value for the deceased partner's interest (NRS 148.210) and to
require, if demanded by the administrator, an accounting of the partnership business (NRS
87.430).
Should we approve the order entered by the lower court regarding sale of the partnership
property, we would be subjecting the surviving partner to future litigation as to what had been
sold and the value of Simpson's interest.
[Headnote 4]
5. The lower court also erred in allowing Vegas-Western Cab, Inc. to object to the
confirmation of the sale. NRS 148.070 provides that, Any person interested in the estate may
file written objections to the confirmation of the sale and may be heard thereon, and may
produce witnesses in support of his objections. While this court has never ruled on that exact
question, other courts have held that an unsuccessful bidder is not a person interested in the
estate. In re Scholes' Estate, 301 P.2d 172 (Wash. 1956); In re Van Der Werf's Estate, 53
N.W.2d 238 (Iowa 1952). We subscribe to that view.
Accordingly, the order confirming sale is reversed. The cause is remanded to the lower
court for an accounting between the living and the deceased partners and a determination of
Simpson's interest in the partnership.
If the accounting indicates the partnership debts exceed the value of the partnership assets,
there is no interest belonging to Simpson's estate. If the accounting indicates the partnership
assets exceed in value the partnership debts, there will then exist a surplus to which the estate
is entitled according to the deceased partner's share. The estate is entitled to have that interest
in the partnership ascertained as of the date of dissolution and to receive as an ordinary
creditor an amount equal to the deceased partner's interest in the dissolved partnership
together with interest, or at the option of the administrator, in lieu of the interest, the
profits attributable to the use of the deceased partner's right in the property of the
dissolved partnership {NRS S7.420).
interest in the partnership ascertained as of the date of dissolution and to receive as an
ordinary creditor an amount equal to the deceased partner's interest in the dissolved
partnership together with interest, or at the option of the administrator, in lieu of the interest,
the profits attributable to the use of the deceased partner's right in the property of the
dissolved partnership (NRS 87.420). If the surviving partner is not willing to pay over that
surplus in dollars to the estate, then the interest can be sold, at which sale the surviving
partner can be a bidder. If the surviving partner acquires that interest, title thereafter vests in
him as the sole owner. If a third person acquires the interest of the deceased partner, all he
acquires is a share in the profits and surplus of the partnership without a correlative right to
share in the operation and management of the partnership. He retains, however, the right to
demand an accounting and to demand dissolution and termination of the partnership.
Zenoff, Batjer, and Thompson, JJ., and Barrett, D. J., concur.
____________
86 Nev. 868, 868 (1970) Danning v. Lum's, Inc.
CURTIS B. DANNING, as Trustee in Bankruptcy for C. S. HINES, Jr.; JEROME B.
ROSENTHAL, individually; and ROSENTHAL & GREEN, a Law Firm, Appellants, v.
LUM'S, INC., a Nevada Corporation, and LUM'S, INC., a Florida Corporation, Respondents.
No. 6187
December 16, 1970 478 P.2d 166
Appeal from order of dismissal with prejudice entered by Eighth Judicial District Court,
Clark County; William P. Compton, Judge.
Appeal from order of the district court granting defendants' motion to dismiss plaintiffs'
second amended complaint on ground that complaint failed to state claim upon which relief
could be granted. The Supreme Court, Mowbray, J., held that where nowhere in plaintiffs'
complaint for recovery of moneys allegedly owed them by debtor who was instrumental in
promoting and building hotel which was under an agreement to be sold to defendants was
there a description of a res upon which constructive trust sought by plaintiffs could be
impressed, and payments due to debtor from defendants as result of sale were liabilities of
defendants and did not constitute property that might be subject to constructive trust,
dismissal of complaint for failure to state claim against defendants was proper.
payments due to debtor from defendants as result of sale were liabilities of defendants and did
not constitute property that might be subject to constructive trust, dismissal of complaint for
failure to state claim against defendants was proper.
Affirmed.
James L. Buchanan, II, of Las Vegas, and William VanDercreek, of Dallas, Texas, for
Appellants.
Lionel, Sawyer & Wartman, of Las Vegas, for Respondents.
1. Trusts.
Constructive trust is remedial device by which holder of legal title to property is held to be a trustee for
benefit of another who in good conscience is entitled to it.
2. Trusts.
Where nowhere in plaintiffs' complaint for recovery of moneys allegedly owed them by debtor who was
instrumental in promoting and building hotel which was under an agreement to be sold to defendants was
there a description of a res upon which constructive trust sought by plaintiffs could be impressed, payments
due to debtor from defendants as result of sale were liabilities of defendants and did not constitute property
that might be subject to constructive trust; dismissal of complaint for failure to state claim against
defendants was proper. NRCP 12(b).
OPINION
This is an appeal from an order of the district court that granted respondents' motion to
dismiss appellants' second amended complaint on the ground that the complaint failed to state
a claim upon which relief could be granted. NRCP 12(b).
1
We affirm the order of dismissal.
The appellants commenced this action in the district court to recover moneys allegedly
owed them by one Jay J. Sarno, who was instrumental in promoting and building the Caesar's
Palace Hotel in Las Vegas.2 The respondent corporations were named parties defendant
because, as the complaint alleges, "Caesar's Palace is under an agreement or contract of
sale to be sold to LUM'S INC.,
____________________

1
NRCP 12(b):
(b) [Defenses and Objection] How Presented. Every defense, in law or fact, to a claim for relief in any
pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive
pleading thereto if one is required, except that the following defenses may at the option of the pleader be made
by motion: . . . (5) failure to state a claim upon which relief can be granted, . . .
Palace Hotel in Las Vegas.
2
The respondent corporations were named parties defendant
because, as the complaint alleges, Caesar's Palace is under an agreement or contract of sale
to be sold to LUM'S INC.,
3
and appellants sought to impress a constructive trust for their
benefit on any moneys due Sarno as a result of the sale.
It is true that under our modern rules of civil procedure a liberality is extended to the
pleader that was not previously permissible. Even so, the complaint must allege facts
sufficient to establish all the necessary elements of the cause of action upon which recovery is
predicated. See Thurston v. Setab Computer Institute, 48 F.R.D. 134 (S.D.N.Y. 1969);
Shakespeare v. Wilson, 40 F.R.D. 500 (S.D. Cal. 1966). The reason for the rule has been well
set forth in Daves v. Hawaiian Dredging Co., 114 F.Supp. 643, 645 (D. Hawaii 1953), where
the court stated:
Thus it seems to be the purpose of Rule 8 to relieve the pleader from the niceties of the
dotted i and the crossed t and the uncertainties of distinguishing in advance between
evidentiary and ultimate facts, while still requiring, in a practical and sensible way, that he set
out sufficient factual matter to outline the elements of his cause of action or claim, proof of
which is essential to his recovery. [Citations.] Therefore, if a pleader cannot allege definitely
and in good faith the existence of an essential element of his claim, it is difficult to see why
this basic deficiency should not be exposed at the point of minimum expenditure of time and
money by the parties and the court. (Emphasis added.)
It is Lum's, Inc.'s position that appellants' complaint is fatally defective because it fails to
allege the existence of a res upon which a constructive trust could be imposed; and that
before one seeks to impress such a trust, the property must be in existence and described in
the complaint. We agree.
____________________

2
The action is still pending against Mr. Sarno in the district court.

3
Paragraph X of Second Amended Complaint:
That Caesar's Palace is under an agreement or contract of sale to be sold to LUM'S INC., a Florida
corporation, and possibly to other subsidiaries or assignees of LUM'S INC. for a reported consideration of some
$60,000,000.00, and Defendant, SARNO, has refused to account for such proceeds payable to him or on his
behalf or to otherwise satisfy his fiduciary duties and obligations to the other interested Cabana parties. That
Defendants, LUM'S INC., a Florida corporation, has noticed that the property included for the sale is subject to
the constructive trust as alleged herein.
[Headnote 1]
A constructive trust has been defined as a remedial device by which the holder of legal
title to property is held to be a trustee for the benefit of another who in good conscience is
entitled to it. The requirement that a constructive trustee have title (not mere possession) to
the property involved is critical to the imposition of a constructive trust. See Cherno v. Dutch
Am. Mercantile Corp., 353 F.2d 147 (2d Cir. 1965); Thompson v. Mobile Producing Co., 163
F.Supp. 402 (D. Mont. 1958); G. Bogert, Law of Trusts 208 (4th ed. 1963).
[Headnote 2]
It is in paragraph X, supra, of the complaint that the appellants have set forth the principal
allegations constituting the basis for their claim against Lum's, Inc. Nowhere in that
paragraph, or in the complaint, do we find any description of a res upon which a trust could
be imposed. At most, it is asserted that Caesar's Palace is under an agreement or contract of
sale to be sold to LUM'S INC., . . . Appellants ask the court to impose a constructive trust on
the payments due Sarno from Lum's, Inc. as a result of the sale. Such payments are Lum's,
Inc's liabilities. A liability does not constitute property that may be subject to a constructive
trust. As the court ruled in Bradford v. Chase Nat'l Bank, 24 F.Supp. 28, 34 (S.D.N.Y. 1938),
aff'd sub nom., Berger v. Chase Nat'l Bank, 105 F.2d 1001 (2d Cir. 1939), aff'd, 309 U.S. 632
(1939):
There must be an assetwhether it be land, a chattel, or a chose in actionin order to
have a trust of any kind, express, implied in fact, or impressed by law.
. . .
As it is impossible to make a res out of a liability or to impress a trust thereon, all the
plaintiffs' suits must necessarily fail. (Emphasis added.)
The order of the district court dismissing the complaint for failure to state a claim against
respondents Lum's, Inc. is affirmed.
Zenoff, Batjer, and Thompson, JJ., and Gezelin, D. J., concur.
____________
86 Nev. 872, 872 (1970) State Engineer v. Cowles Bros., Inc.
STATE ENGINEER OF THE STATE OF NEVADA, Appellant v. COWLES BROTHERS,
INC., Respondent.
No. 6186
December 18, 1970 478 P.2d 159
Appeal from an order reversing State Engineer's denial of application to appropriate waters
from an underground source. Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
Proceeding on petition for review of state engineer's order denying permission to drill well.
The district court reversed denial, and engineer appealed. The Supreme Court, Zenoff, J., held
that statute which declared that certain lake was navigable body of water and that title to bed
of such lake was held by state did not, after lake had gradually dried up, abolish doctrine of
reliction and make it inapplicable to corporation, which owned land adjoining dry lake bed,
and which sought permission to drill well in dry bed for purposes of irrigation of lands within
such bed.
Affirmed.
Batjer, J., dissented.
Harvey Dickerson, Attorney General, and L. William Paul, Deputy Attorney General, for
Appellant.
Cooke & Roberts, of Reno, for Respondent.
1. Navigable Waters; Waters and Water Courses.
If body of water within state is classified as nonnavigable at time of creation of state, underlying land
remains property of United States, but if such body is navigable, water and bed beneath it become property
of state.
2. Navigable Waters.
Body of water is navigable if it is used or is usable in its ordinary condition as highway of commerce over
which trade and travel are or may be conducted in customary modes of trade and travel on water.
3. Waters and Water Courses.
If land under water becomes exposed permanently, it belongs to adjoining landowners.
If exposure of land from under water is due wholly or in part to artificial causes and those causes are not
act of party owning shoreland, rules that prevail as to ownership of accreted or relicted land are same as in
case of accretion or reliction solely by natural causes.
For reliction to apply recession of water must be gradual and imperceptible.
Test of what constitutes gradual and imperceptible recession of water for purposes of applicability of
doctrine of reliction is that though witness may see from time to time that progress has been made he could
not perceive it while progress was going on.
7. Navigable Waters.
Statute which declared that certain lake was navigable body of water and that title to bed of such lake was
held by state did not, after lake had gradually dried up, abolish doctrine of reliction and make it
inapplicable to corporation, which owned land adjoining dry lake bed, and which sought permission to drill
well in dry bed for purposes of irrigation of lands within such bed. NRS 1.030, 537.030.
OPINION
On April 14, 1964 Cowles Brothers, Inc., owners of certain lands adjoining the dry bed of
Winnemucca Lake filed an application with the State Engineer of the State of Nevada to drill
a well on property located in the dry Winnemucca Lake bed for the purpose of irrigating lands
within the dry lake bed.
The application was denied on the ground that Cowles Brothers, Inc., did not own or
control the land where it planned to drill the well and put the water to beneficial use. The
State Engineer also asserted that because NRS 537.030, passed in 1921, declares
Winnemucca Lake to be a navigable body of water, title of the bed thereof remains in the
State of Nevada.
1

Respondent petitioned for review of the State Engineer's order denying permission to drill
the well. The district court reversed the State Engineer's ruling and directed the permit to
issue. The court's written decision ruled that Winnemucca Lake was a navigable body of
water on the date the State of Nevada was admitted to the Union and therefore title to the lake
bed vested to the state. The court held, however, that due to the recession of the waters and
resulting dry lake bed the doctrine of reliction applied and respondent, as a riparian owner,
became the owner of its proportionate share of the dry lake bed. By its decision the trial court
rejected the State Engineer's contention that NRS 537.030 did away with the doctrine of
reliction and this appeal is directed to that ruling.
____________________

1
NRS 537.030: Winnemucca Lake declared navigable; title to bed held by state. Winnemucca Lake,
located in Townships 24, 25, 26, 27 and 28 North, Ranges 23 and 24 East, Mount Diablo Meridian, Nevada, is a
navigable body of water and title to the bed thereof is held by the State of Nevada.
Engineer's contention that NRS 537.030 did away with the doctrine of reliction and this
appeal is directed to that ruling.
The question herein presented on appeal essentially is whether NRS 537.030 was intended
to abolish the common-law doctrine of reliction, and if not, whether the common-law
doctrine of reliction applies as against the state.
[Headnote 1]
1. When a territory is endowed with statehood one of the many items its sovereignty
includes is the grant from the federal government of all navigable bodies of water within the
particular territory, whether they be rivers, lakes or streams. If the body of water is classified
as non-navigable at the time of the creation of the state, the underlying land remains the
property of the United States, but if it is navigable under the definition hereinafter stated, the
water and the bed beneath it becomes the property of the state. United States v. Utah, 283
U.S. 64, 75 (1931); Shively v. Bowlby, 152 U.S. 1, 26, 27 (1894).
By the American revolution the people of each state in their sovereign character acquired
the absolute right to all their navigable waters and the soil under them. The shores of
navigable waters and the soil under them were not granted by the Constitution to the United
States, but were reserved to the states respectively. And new states have the same right to
sovereignty and jurisdiction over this subject as the original ones. County of St. Clair v.
Lovingston, 23 Wall (90 U.S.) 46, 68 (1874).
[Headnote 2]
A body of water is navigable if it is used or is usable in its ordinary condition as a highway
of commerce over which trade and travel are or may be conducted in the customary modes of
trade and travel on water. Brewer Oil Co. v. United States, 260 U.S. 77, 86 (1922).
We can find no quarrel with the trial judge's ruling that at the time of Nevada's statehood
in 1864 Winnemucca Lake was a body of navigable water in the legal sense. Neither party
disputes that finding and they concede as well that the title to the bed of navigable waters
passes to the state when the state is admitted to the Union. The bone of contention centers
upon the question of who owns the lake bed when the lake dries up and there is no lake at all.
[Headnote 3]
Generally, the common-law doctrine of reliction would parcel the dry lake bed to the
adjoining land owners as riparian owners.
owners. Reliction is the process of gradual exposure of land by the permanent recession of a
body of water. 6 Powell on Real Property, 983 (1970); 5A Thompson on Real Property,
2560 (1957 Replacement). When the land under the water becomes exposed permanently,
simply stated, it belongs to the adjoining land owners.
[Headnote 4]
When the exposure is due wholly or in part to artificial causes and those causes are not the
act of the party owning the shoreland the rules that prevail as to ownership of the accreted or
relicted land are the same as in the case of accretion or reliction solely by natural causes. 5A
Thompson on Real Property, 2460 (1957 Replacement). This is a diminution of a former,
harsher rule brought into being by the advent of more and more artificial causes such as
diversion dams, drainage areas and the like.
[Headnotes 5, 6]
Coupled with the foregoing, however, is the further requirement that in order for reliction
to apply the recession of the water must be gradual and imperceptible. County of St. Clair v.
Livingston, supra; see 4 Tiffany on Real Property, 1222 (1939). We think it clear that the
recission of Winnemucca was gradual and imperceptible within the legal import of that
terminology. The test of what is gradual and imperceptible is that though the witness may see
from time to time that progress has been made they could not perceive it while the progress
was going on. County of St. Clair v. Livingston, supra. Reliction applies if those factors exist
and they were so found to exist by the trial court in this case. Cf. State v. Longyear Holding
Co., 29 N.W.2d 657 (Minn. 1947).
[Headnote 7]
2. Before we may consider the application of the doctrine of reliction against the state
here, however, we must consider the effect of NRS 537.030 which in 1921 declared, first,
that Winnemucca Lake is a navigable body of water and, second, that title to the bed
thereof is held by the State of Nevada. No reason for the statute is disclosed by the record.
While the declaration that the lake was navigable was possibly made for some obscure
self-serving purpose, appellant and respondent agree that it does not in any way change the
status of navigability or non-navigability as of 1864. The state's title became vested in 1864 if
the lake was in fact then navigable. United States v. Utah, supra, and Brewer Oil Co. v.
United States, supra. Later changes in the navigability of the lake had no effect on the state's
title to the land underlying the lake.
no effect on the state's title to the land underlying the lake. This statement in the statutes
therefore served no purpose.
The difficulty brought about by the second part of the statute is whether or not its
enactment did away completely with the doctrine of reliction by taking away the adjoining
land owners' proportionate rights in the dry lake bed and keeping the dry bed within the state's
ownership as if the waters were still there. The respondents say that the statute only served
the purpose of redeclaring the common-law doctrine of reliction and that when the water
receded the exposed property belonged to the adjoining land owners.
3. We can only look to considerations of policy in construing this statute because we find
no help from authorities within or without this state. Some weight should naturally be given
to the possibility of the state developing the land as a recreation area or perhaps a reservoir
for irrigation purposes, although the state did not at any time promote the policy argument or
indicate that it so intended the use of the property.
More applicable bases are found in the policy reasons underlying the doctrine of reliction.
Various rationale have been given for this rule. [I]f this gain be by little and little, by small
and imperceptible degrees, it shall go to the owner of the land adjoining. For de minimus non
curat lex . . . . 2 Blackstone's Commentaries, 262 (Cooley Edition, 1899). [H]e who
sustains the burden of losses and of repairs, imposed by the contiguity of waters, ought to
receive whatever benefits they may bring by accretion . . . . Banks v. Ogden, 2 Wall (69
U.S.) 57, 67 (1864). [B]y custom it becomes as a perquisite to the land. . . . Yearsley v.
Gipple, 175 N.W. 641, 642 (Neb. 1919). [I]t is the interest of the community that all land
should have an owner, and most convenient, that insensible additions to the shore should
follow the title to the shore itself. Banks v. Ogden, supra. Powell, in Vol. 6, 983, of his
treatise agrees with the Minnesota Supreme Court that the rule rests upon a much broader
principle, and has a much more important purpose in view, viz., to preserve the fundamental
riparian righton which all others depend and which often constitutes the principal value of
the landof access to the water. Lamprey v. Metcalf, 53 N.W. 1139, 1142 (Minn. 1893).
Clearly, the last of these rationale has no application in the instant situation. The other
rationale are relevant, however, and weigh in respondent's favor here. Every parcel of land
should have an owner, for private ownership encourages use and developmentusually much
more quickly than public ownership.
ownership. Use and development mean more taxes to the state, and should the need for
recreational development or reservoirs appear the processes of eminent domain remain
available to the state. Here, the most efficient use of land requires that the doctrine apply. Cf.
State v. Aucoin, 20 So.2d 136 (La. 1944). In Aucoin, it was good policy to retain ownership
in the state so the land could be drained for purposes beneficial to the state. The nature of
Louisiana's bayous would seem to make this proposition self-explanatory. At the particular
location of Winnemucca Lake no similar design by the state is foreseeable, but it is readily
apparent from the record that the respondents could easily develop the property for grazing or
other agricultural purposes.
The question presented herein is one of first impression in this state. It is a question of
state common law whether, and in what way, the doctrine of reliction applies. Our legislature
has declared that the common law shall be the rule of decision in the courts of this state
unless repugnant to the constitution and laws of this state. NRS 1.030. For the reasons
expressed the common-law doctrine of reliction is not repugnant to NRS 537.030.
Accordingly, that statute does not abrogate the common-law rule, and the doctrine of reliction
applies even as against the state.
Affirmed.
Collins, C. J., Mowbray and Thompson, JJ., concur.
Batjer, J., dissenting:
I respectfully dissent. The majority has found that the common law doctrine of reliction is
not repugnant to NRS 537.030, and it is only in this regard that I disagree with the majority's
opinion.
In accordance with the constitutional principle of the equality of states, the title to the beds
of lakes and streams located within its boundaries passes to a state when it is admitted to the
union, if the rivers and lakes are then navigable, and if they are not then navigable the title to
the river and lake beds remains in the United States, and state laws cannot affect titles of the
beds of nonnavigable streams which are vested in the United States. United States v. Utah,
283 U.S. 64 (1931).
If Winnemucca Lake was not navigable on October 31, 1864, then all the subsequent acts
of the legislature of the State of Nevada could not make it so. The trial court found, and the
parties agree, that Winnemucca Lake was navigable when Nevada was admitted to the union.
It was unnecessary for the legislature of this state to reaffirm the navigability of
Winnemucca Lake because of any apprehension relating to its receding shoreline, because
once a waterway is determined to be navigable it remains so down to the last drop.
legislature of this state to reaffirm the navigability of Winnemucca Lake because of any
apprehension relating to its receding shoreline, because once a waterway is determined to be
navigable it remains so down to the last drop. United States v. Appalachian Elec. Power Co.,
311 U.S. 377 (1940); Economy Light & Power Co. v. United States, 256 U.S. 113 (1920).
If the only purpose of Chapter 51, Statutes of Nevada 1921 (subsequently NCL 8345,
now NRS 537.030) was to declare Winnemucca Lake to be a navigable body of water, that
legislation amounted to a nullity. If reiteration of an established status was its only purpose, it
became null and void on March 4, 1921, when it was first approved, and it has remained void
ever since, notwithstanding one reenactment. Chapter 2, Statutes of Nevada 1957.
It cannot be inferred that the legislatures in 1921 and 1957 were performing a useless act
and compounding a nullity. It is implicit in the wording of the statute that those legislatures
intended that the title to the bed of Winnemucca Lake was to continue to be held by the State
of Nevada.
Just as the common law doctrine of riparian rights, being unsuited to the condition in this
state was not adopted by the enactment of NRS 1.030
1
and the doctrine of appropriative
water rights was adopted (Reno Smelting, Milling and Reductions Works v. Stevenson, 20
Nev. 269, 21 P. 317 (1889)), so a statutory enactment has abrogated the common law doctrine
of reliction which is repugnant and in conflict with the declaration in NRS 537.030, that the
title to the bed of Winnemucca Lake is held by the State of Nevada. The common law must
give way to that statute. NRS 1.030; In re Bailey's Estate, 31 Nev. 377, 103 P. 232 (1909);
Davenport v. State Farm Mut. Auto. Ins. Co., 81 Nev. 361, 404 P.2d 10 (1965). Cf. United
Ass'n of Journeymen v. Stine, 76 Nev. 189, 351 P.2d 965 (1960).
It is clear that were it not for its abrogation by NRS 537.030, the doctrine of reliction
would have been controlling here. However, under the present law of this state and the
posture of this case, that doctrine is inapplicable. I would reverse the order of the trial court
and reinstate the order of the state engineer.
____________________

1
NRS 1.030: The common law of England, so far as it is not repugnant to or in conflict with the
Constitution and laws of the United States, or the constitution and laws of this state, shall be the rule of decision
in all courts of this state.
____________
86 Nev. 879, 879 (1970) Jones v. Jones
EDITH D. JONES, Appellant, v. GRAHAM
STARR JONES, Respondent.
No. 6147
December 21, 1970 478 P.2d 148
O'Donnell, Judge.
Divorced wife's action for breach of separation agreement. The district court granted in
part and denied in part divorced wife's motion to amend findings of fact and conclusions of
law and to alter or amend judgment, and plaintiff appealed. The Supreme Court, Collins, C.
J., held, inter alia, that non-merged separation agreement was binding on court in
post-divorce action and court did not have jurisdiction to modify agreement or grant different
relief.
[Rehearing denied January 26, 1971]
Gordon L. Hawkins, of Las Vegas, for Appellant.
Morris, Walker & Pilkington, of Las Vegas, for Respondent.
Under New York law, modification of separation agreement is not permitted when its enforcement as
private contract is sought and it is not merged in divorce decree, so long as it is not impeached or cancelled
in manner permitted by law.
2. Divorce; Husband and Wife.
Under Nevada law, agreement between husband and wife is not binding on court in original divorce
proceeding, but in post-divorce action on nonmerged support agreement, agreement controls court's award
and court does not have jurisdiction to modify agreement or grant different relief; accordingly, district
court's modification of nonmerged separation agreement in divorced wife's action for breach thereof was
beyond its authority.
3. Interest.
Under separation agreement not merged in divorce decree, divorced wife was entitled to interest on
past-due alimony and support payments from due dates rather than from date of judgment. NRS 99.040,
subd. 1.
Divorced wife who successfully sought recovery of past-due alimony and support payments of more than
$300 to which she was entitled under separation agreement was entitled to recover costs. NRS 18.020,
subd. 3.
5. Husband And Wife.
Trial court, in denying attorney fee to wife who obtained judgment in suit on separation agreement, was
required to give reasons for denial and abused discretion in failing to do so. NRS 18.010, subd. 3(a),
125.180, subd. 1.
86 Nev. 879, 880 (1970) Jones v. Jones
In determining whether damages recovered by divorced wife in suit on separation agreement exceeded
$10,000 within meaning of statute permitting award of attorney fees to prevailing party if recovery is less
than $10,000, interest on past-due installments of alimony and support was to be added to amount of
installments. NRS 18.010, subd. 3(a).
OPINION
This is an appeal in a post-divorce action from an order denying appellant's (plaintiff
below) motion to amend Findings of Fact and Conclusions of Law and to Alter or Amend the
Judgment. We reverse the order and remand the action for further proceedings in accordance
with this opinion.
Edith and Graham Jones were married in Massachusetts on July 6, 1934. Three children
were born of the marriage. On April 22, 1963, the parties entered into a separation agreement
in New York, their new residence, in which Graham agreed to pay Edith $225 per month for
her support so long as she did not remarry, and $87.50 per month for the support of two of
their children who were still minors. The agreement provided, among other things, that if the
husband failed to perform his obligation, the wife could, at her election, sue for breach of the
contract, or seek such other remedies in law or equity as might be available to her. The
agreement also permitted either party to sue for absolute divorce in any competent
jurisdiction, to require the agreement to be offered in evidence, and if accepted by the court
incorporated by reference in the decree. But it provided that notwithstanding incorporation of
the agreement into the decree, it was not to be merged in the decree but was to survive and be
enforceable as a contract binding upon the parties for all time. The agreement provided it was
to be construed in accordance with the laws of the State of New York.
Shortly after execution of the agreement by the parties, Graham moved to Nevada, sought
and received a default decree from Edith, and immediately remarried. He and his second wife
are now parents of a 6-year old daughter. The separation agreement was not offered in the
action nor did the Nevada court acquire personal jurisdiction over Edith.
In September, 1965, Graham commenced depositing $75 of the $175 per month he was
obligated to pay his former wife for child support in a bank in Las Vegas as an educational
fund for his two boys. Those accumulated funds are still available in that bank.
86 Nev. 879, 881 (1970) Jones v. Jones
that bank. In 1966, Edith initiated a Uniform Reciprocal Enforcement of Support Act
proceeding in New York against Graham. In the Nevada court where it was tried, the District
Attorney of Clark County, on behalf of Edith, entered into a stipulation with Graham's
counsel, which was approved by the court, under which Graham agreed to send $100 per
month to his former wife for the support of the two boys and continue to accumulate $75 per
month as an educational fund for their benefit.
On June 22, 1967, Graham ceased paying the $225 per month alimony payment to Edith.
On December 23, 1968, Edith commenced an action in the Nevada court for breach of the
New York separation agreement, alleging $4,050 due for unpaid alimony and $3,150 due for
unpaid child support. Graham answered the complaint, raised affirmative defenses to it and
filed a counterclaim.
As affirmative defenses, Graham claimed (1) the complaint failed to state a claim upon
which relief could be granted, (2) Edith was bound by the stipulation with the District
Attorney permitting the $75 per month to be placed in a trust account, (3) Edith had breached
the agreement by frustrating the father-son relationship by refusing to communicate the state
of health of the two boys to him and by preventing the boys from communicating with him or
visiting with him, and therefore was estopped from relying upon the agreement, (4) Edith had
so maliciously and intentionally breached the agreement that she had repudiated it, (5) his
financial condition had so changed from the time the agreement was executed that it would be
inequitable and unjust to require him to pay the sums sued for, and (6) by reason of his
changed financial condition he was incapable and unable to perform under the agreement.
As counterclaims, Graham alleged (1) when he entered the agreement he thought he would
be able to carry it out, but his income had decreased greatly and he had additional
responsibilities because of his second marriage, making the agreement inequitable,
unreasonable, and unfair in its terms and it should therefore be declared null and void, or in
the alternative, be modified to make it reasonable and equitable, (2) Edith's actions in
frustrating the father-son relationship constitute a repudiation or breach of the agreement and
it should be modified or declared null and void, and (3) Edith had intentionally frustrated the
jurisdiction of the Nevada court and prevented the agreement from being incorporated into
the decree of divorce and used the Reciprocal Enforcement of Support Act to harass him. For
the foregoing wrongs of Edith, Graham prayed that {1) Edith take nothing by her
complaint, {2) the agreement be declared null and void or be modified, and {3) he be
awarded costs and attorneys' fees.
86 Nev. 879, 882 (1970) Jones v. Jones
prayed that (1) Edith take nothing by her complaint, (2) the agreement be declared null and
void or be modified, and (3) he be awarded costs and attorneys' fees.
January 28, 1970, Edith moved to dismiss Graham's counterclaims. On April 22, 1969, the
motion was granted as to counts one and three, and denied as to count two. No appeal has
been taken from this order.
Following the trial, the judge found (1) Graham and Edith had entered into an agreement
for valuable consideration, (2) unpaid alimony installments amounted to $4,050 as of the date
of the complaint in this action, (3) unpaid child support amounted to $3,000, (4) Graham
presented no defense to the amounts, (5) Graham had created two trust accounts which he
should be ordered to apply to the $3,000 in arrears, with the balance to be applied on future
installments, such funds to be held as trust funds by Edith for the minor children, and (6)
future installments of support for the children should be reduced to $75 per month each and
future installments of alimony should be reduced to $50 per month.
The conclusions of law were that (1) Edith was entitled to judgment in the amount of
$4,050 for the support of herself, and the sum of $3,000 for the support of the children, (2)
the sums held in the trust accounts were to be turned over to Edith in satisfaction of the
$3,000 arrears, and the balance was to be applied to future installments as they became due,
and (3) future payments for child support provided in the agreement were to be reduced to
$75 per month per child, and the alimony payment was to be reduced to $50 per month.
Judgment was entered in accordance with the findings of fact and conclusions of law on
September 30, 1969. On October 10, 1969, Edith moved to amend the findings of fact and
conclusions of law and to alter or amend judgment. By her motion, Edith attempted to (1)
eliminate paragraph 6 of the findings of fact and paragraph 3 of the conclusions of law, (2)
add paragraphs to the findings of fact and conclusions of law and judgment providing for
interest at 7 percent on each installment from the time it became due, costs and attorneys'
fees.
December 5, 1969, the findings of fact, conclusions of law, and judgment were amended
to provide for interest at 7 percent from September 30, 1969. The motion was denied in all
other respects.
The issues requiring our consideration are these:
I. Whether the lower court exceeded its jurisdiction in modifying the separation agreement.
II. Whether the trial court erred in awarding interest from the date of the judgment
instead of the date each installment fell due.
86 Nev. 879, 883 (1970) Jones v. Jones
the date of the judgment instead of the date each installment fell due.
III. Whether the lower court erred in failing to award costs to the plaintiff.
IV. Whether the lower court erred in failing to award the plaintiff any attorney fees.
[Headnote 1]
1. New York law, under which the agreement must be construed, does not permit
modification of a separation agreement when its enforcement as a private contract is sought
and it is not merged in a divorce decree, so long as it is not impeached or cancelled in a
manner permitted by law. Carlson v. Carlson, 53 N.Y.S.2d 735 (S.Ct.App.Div. 1945);
Millman v. Millman, 207 N.Y.S.2d 159 (S.Ct.Spec. Term 1960); Weintraub v. Weintraub, 96
N.E.2d 724, 728 (N.Y. 1951). In Goldman v. Goldman, 26 N.E.2d 265 (N.Y. 1940), a leading
case on the point, modification of an alimony award from $21,000 per annum to $14,000 per
annum was allowed but the court made it very clear that it was the court decree adopting a
separation agreement it was allowing to be modified and not a separation agreement
surviving or independent of the decree. In Goldman the New York Court of Appeals said,
The court, in the exercise of its powers conferred by statute, directed the defendant to pay
the sum which both parties, at that time, agreed would be a suitable provision for his wife and
children. That direction might be enforced in manner provided by the statute, though the
contractual obligation could not be so enforced; and might be modified thereafter by the
court, though the contractual obligation could not be so modified without the consent of both
parties. Accord McMains v. McMains, 206 N.E.2d 185 (N.Y. 1965).
Massachusetts follows the same rule holding that a court can modify its decree but it
cannot modify a contract between the parties when it is not a part of the decree. Schillander v.
Schillander, 29 N.E.2d 686 (Mass. 1940).
[Headnote 2]
Nevada's law takes an equally strong position on this question. While an agreement
between the husband and wife is not binding upon the court in the original divorce
proceeding, Lewis v. Lewis, 53 Nev. 398, 2 P.2d 131 (1931); Drespel v. Drespel, 56 Nev.
368, 45 P.2d 792 (1935), in a post-divorce action on a nonmerged agreement for support, the
agreement controls the court's award and it does not have jurisdiction to modify that
agreement or grant different relief. Ballin v. Ballin, 78 Nev. 224, 371 P.2d 32 (1962). See
also Aseltine v. District Court 57 Nev. 269
86 Nev. 879, 884 (1970) Jones v. Jones
Court 57 Nev. 269, 62 P.2d 701 (1936), and Rush v. Rush, 82 Nev. 59, 410 P.2d 757 (1966).
[Headnote 3]
2. This is an action for damage for breach of contract. NRS 99.040(1) applies to all
contracts and requires interest to be paid on all sums from the time they become due. Paradise
Homes v. Central Surety, 84 Nev. 109, 437 P.2d 78 (1968); Close v. Isbell Constr. Co., 86
Nev. 524, 471 P.2d 257 (1970). Clearly, the separation agreement fixed the times when the
alimony and child support payments became due. The installments of $225 per month for
alimony and the installments of $87.50 per month for each child were payable in advance on
the 22nd day of April, 1963, and on the 22nd of each month thereafter until the entitlement
ended as provided in the contract. Edith was deprived of the use of those funds as each
installment came due. She is entitled to interest from those dates. See Day v. Day, 82 Nev.
317, 329, 417 P.2d 914 (1966) (concurring opinion, Thompson, J.).
[Headnote 4]
3. Edith contends the lower court erred in refusing to award her costs as the prevailing
party. We agree. This is an action for breach of contract, not in equity as contended by
Graham. NRS 18.020(3) provides for the allowance of costs in actions for the recovery of
money or damages where the plaintiff recovers over $300. This allowance is mandatory and
is not subject to the trial court's exercise of discretion. Randano v. Turk, 86 Nev. 123, 466
P.2d 218 (1970). See also Nelson v. Paul, 68 Nev. 365, 233 P.2d 857 (1951). If the action
were one in equity, award of costs would be discretionary with the trial court. Magee v.
Whitacre, 60 Nev. 202, 96 P.2d 201 (1939).
[Headnote 5]
4. The last issue concerns the failure of the trial court to award Edith an attorney's fee. This
is a contract action and her entitlement to an attorney's fee must stand or fall on the provisions
of NRS 18.010(3)(a)
1
and not under NRS 125.180(1).
2
In the trial of this case, Edith was
awarded damages of $7,050 which would have entitled her to an award of an attorney's
fee in the court's discretion.

____________________

1
NRS 18.010(3)(a) reads: The plaintiff as prevailing party when the plaintiff has not recovered more than
$10,000; or . . . .

2
NRS 125.180(1) reads: Where the husband, in an action for divorce, makes default in paying any sum of
money as required by the judgment or order directing the payment thereof, the district court may make an order
directing entry of judgment for the amount of such arrears, together with costs and disbursements not to exceed
$10 and a reasonable attorney's fee.
86 Nev. 879, 885 (1970) Jones v. Jones
In the trial of this case, Edith was awarded damages of $7,050 which would have entitled her
to an award of an attorney's fee in the court's discretion. However, none was awarded, but the
trial judge gave no reason or explanation for the denial. We think he should have stated his
reasons, to enable this court to undertake a reasonable review. In that sense, he violated his
discretion. Iske v. Metropolitan Utilities District of Omaha, 157 N.W.2d 887 (Neb. 1968).
[Headnote 6]
However, on the retrial of this matter in determining whether the damages recovered by
Edith exceed $10,000, the interest recovered on the past due installments of alimony and
child support should be added to the amount of the installments, and if that total exceeds
$10,000 then of course she would not be entitled to an attorney's fee absent an agreement to
pay such item. We believe that prejudgment interest amounts to damages for delay in
payment of a contractual obligation and does not represent, in the true sense of the word,
interest as understood in banking circles. Triangle Elec. Supply Co. v. Mojave Elec. Co.,
238 F.Supp. 815, at 818 (W.D.Mo. 1965).
Accordingly, the judgment of the lower court is reversed and the cause remanded for a
new trial in accordance with the views expressed in this opinion.
Zenoff, Batjer, and Thompson, JJ., and Wilkes, D. J., concur.
____________
86 Nev. 885, 885 (1970) Lantis v. Lantis
DEBORAH JEAN LANTIS, Appellant, v. EDWARD
DAVID LANTIS, Respondent.
No. 6166
December 21, 1970 478 P.2d 163
Appeal from an order modifying a decree of divorce. Second Judicial District Court,
Appeal by mother from an order of the district court modifying child custody provision of
divorce decree. The Supreme Court, Collins, C. J., held that it was not necessary that mother
be found unfit before she could be deprived of custody of an infant child previously awarded
to her, where there was an express finding of fitness of father, deeply explored concern for
welfare and best interests of child, and a determination that mother's conduct indicated a
lack of maturity and responsibility.
for welfare and best interests of child, and a determination that mother's conduct indicated a
lack of maturity and responsibility.
Affirmed.
Leonard T. Howard, Sr., of Reno, for Appellant.
Nada Novakovich, of Reno, for Respondent.
Parent and Child.
It was not necessary that mother be found unfit before she could be deprived of custody of an infant child
previously awarded to her, where there was an express finding of fitness of father, deeply explored concern
for welfare and best interests of child, and a determination that mother's conduct indicated a lack of
maturity and responsibility.
OPINION
This is an appeal from an order modifying a decree of divorce changing custody of an
infant female child from the mother to the father. We affirm the order of modification.
Deborah and Edward Lantis were married July 28, 1967, in Reno, Nevada. A female child,
Stacey Ann, was born to them. Marital difficulties ensued, and on October 3, 1969, they were
divorced. They entered into a property settlement and child custody agreement which was
submitted to and approved by the court. Pursuant to their agreement, custody of the child was
granted to Deborah with right of visitation reserved to Edward. Edward was to pay $100 per
month child support.
Shortly prior to the divorce, Deborah met another man by the name of Mario Nuno.
Immediately subsequent to the divorce Deborah and Mario commenced living together in the
home of a friend without benefit of marriage. The child was with them. That arrangement
continued for one week when Deborah and Mario decided to go to San Diego, California,
where, it appears, they planned to be married and establish a home. Deborah attempted to
have her friend care for the infant child for a period of approximately six weeks. The friend
refused. Deborah then contacted Edward, told him she was going to California with a girl
friend and asked him to care for Stacey while she was gone. Edward agreed, and arranged
for the baby to be cared for while he worked. Other than those hours, he took entire care of
the child. During this time, the child was also undergoing surgical treatment for a
moderately deformed foot, and it was agreed by both Edward and Deborah that the child
should remain in Reno under the care of the attending surgeon.
time, the child was also undergoing surgical treatment for a moderately deformed foot, and it
was agreed by both Edward and Deborah that the child should remain in Reno under the care
of the attending surgeon.
While Deborah was in California, Edward learned she had gone not with a girl friend but
with Mario and was cohabiting with him. Edward obtained a temporary restraining order
prohibiting Deborah from removing the child from his custody and filed a motion to modify
the decree of divorce revoking the award of Stacey's custody to Deborah and granting it to
him. Deborah, without having married Mario and breaking off her relationship with him,
returned from California and opposed the motion.
The trial judge, after receiving extensive evidence from both sides, found Edward a fit
person to have custody of the child, made no express finding about Deborah's fitness,
determined a change of custody was in the best interest of the child, and granted custody to
Edward with liberal visitation rights reserved to Deborah. From that order, Deborah appeals.
We affirm the order.
Deborah contends the lower court erred in that there was no substantial change of
circumstances, she was not found unsuitable, and that the court abused its discretion. She
relies principally upon the decisions of this court in Peavey v. Peavey, 85 Nev. 571, 460 P.2d
110 (1969), the tender years case, and Cooley v. Cooley, 86 Nev. 220, 467 P.2d 103 (1970),
the fitness of the mother case.
The issue before us in this case is this:
I. In a child custody modification application, must the mother be found unfit before she
can be deprived of the custody of an infant child previously awarded to her?
1. We do not believe that the tender years doctrine of Peavey v. Peavey, supra, applies in
the posture of this case. That doctrine had already operated when Deborah was awarded
custody of Stacey in the original decree. Nor do we believe that the rule of Cooley v. Cooley,
supra, controls the action of the lower court in this case. In Cooley, the mother was granted
custody of minor children in the original divorce proceeding even though she admitted an
adulterous relationship with another man which the lower court specifically found [did] not
make her a bad mother or render her unfit to have custody of these minor children. The
husband contended, as a matter of law, the lower court abused its discretion in awarding their
custody to her, relying upon Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98 (1961). This court
upheld the lower court in Cooley, overruled the contrary views of Sisson, and now permits
award of the custody of children in the original divorce proceeding to an adulterous
parent if other factors outweigh that marital misconduct.
lower court in Cooley, overruled the contrary views of Sisson, and now permits award of the
custody of children in the original divorce proceeding to an adulterous parent if other factors
outweigh that marital misconduct.
2. We believe the issue in this case is controlled by the rule announced in Murphy v.
Murphy, 84 Nev. 710, 447 P.2d 664 (1968), and Harris v. Harris, 84 Nev. 294, 439 P.2d 673
(1968). In Murphy, it was held in a situation similar to that presented here, where an initial
award of custody was sought to be changed, A change of custody is warranted only when:
(1) the circumstances of the parents have materially altered; and (2) the child's welfare would
be substantially enhanced by the change (citing cases).
Reference to the trial judge's oral comments, findings and conclusions are helpful and
enlightening as to his reasoning process in granting the custody change. The judge said, . . . I
think the big issue that confronts us here is not so much is not whether Debbie Lantis is fit
and proper and a decent person and so forth, but rather whether she is mature enough and
responsible enough to undertake all of the duties of the mother and take care of this little girl.
Frankly that's the way I see it, and this is what makes it hard. . . . I don't think Debbie is a
terrible person by any means. I don't approve of some of her conduct. I'm old-fashioned, too,
and I don't approve of it for one minute. The conduct itself doesn't necessarily in my opinion
make her unfit, unsuitable, or anything else, but it does indicate something to me, and it
indicates a lack of responsibility toward this little girl. . . . I'm not here to dictate morals to
anybody. What I'm saying is that her conduct is indicative of something that is lacking in
maturity and responsibility on her part. I don't think that she is, . . . As between the two
parents, I feel that Mr. Lantis has demonstrated that he has more responsibility, more suitable,
that it's in the best interest of the little girl to stay with him, and that Debbie is going to have
to prove something in the way of responsibility, and when she does maybe the custody will go
back. . . . Legal custody means that the person in whom the custody is placed is the one who
has the right to say where the child lives, what it does from day to day, and so forth, within
the confines of any order that the court makes. My order in this case is that the custody shall
be transferred to the father, that the mother shall have not just reasonable rights of visitation,
but have liberal rights of visitation, and I don't know; there is nothing more I can say except
that hopefully the things work out the best for all of you and particularly for that little girl.
Clearly, these findings uphold a material alteration in the parents' circumstances and
demonstrate that the court was deeply concerned about the best interests of the child.
In Harris v. Harris, supra, there was a comparable lack of finding one way or the other as
to the fitness of the mother, but an award of custody to the father was affirmed and it was
held, Since the record may be read to affirm the express finding that the father was fit to
have custody, and that the best interest of the child would be served by placing her in his care
[a female child the same as here], we will affirm the court's exercise of discretion. . . . Id. at
295. Here there was an express finding of fitness of the father, deeply explored concern for
the welfare and best interest of the child, and the absence of a specific finding one way or the
other concerning the mother.
The lower court's exercise of discretion was well within the limits of the law of this state.
See McGlone v. McGlone, 86 Nev. 14, 464 P.2d 27 (1970); Adams v. Adams, 86 Nev. 62,
464 P.2d 458 (1970).
Judgment affirmed.
____________
86 Nev. 889, 889 (1970) Lewis v. State
ALVIN LEWIS, Jr., a Minor Under the Age of 18 Years,
Appellant, v. THE STATE OF NEVADA, Respondent.
No. 6176
December 21, 1970 478 P.2d 168
Appeal from an order certifying appellant to stand trial as an adult on a felony robbery
charge. Eighth Judicial District Court, Clark County; John F. Mendoza, Judge.
The Supreme Court, Collins, C. J., held that statute authorizing court to certify a minor to
stand trial as an adult is not unconstitutional on theory that it constitutes an unlawful
delegation of legislative power to the juvenile court.
Affirmed.
Wiener, Goldwater & Galatz and J. Charles Thompson, of Las Vegas, for Appellant.
Heber P. Hardy, Deputy District Attorney, Clark County, for Respondent.
86 Nev. 889, 890 (1970) Lewis v. State
1. Constitutional Law; Infants.
Statute authorizing court to certify a minor to stand trial as an adult is not unconstitutional on theory that
it constitutes an unlawful delegation of legislative power to the juvenile court. NRS 62.280.
2. Infants.
Where judge in his oral decision preceding issuance of formal adult certification order stated, inter alia,
that minor was a menace, that he had committed robbery before, that he had committed another crime of
violence, and that he was aware of circumstances, order was not void on theory that it failed to state
reasons for its issuance. NRS 62.280.
3. Criminal Law.
Where objection to admission of probation department's report was not presented to lower court,
Supreme Court would not review question of admissibility.
OPINION
This is a direct appeal from an order of the lower court certifying appellant, a minor, to
stand trial as an adult on a felony robbery charge. We affirm the order.
Appellant, a 17-year-old minor, was arrested as a juvenile and charged with armed
robbery. The district attorney sought an order certifying him to stand trial as an adult. That
order was entered from which a direct appeal is taken pursuant to NRS 62.280.
The lower court, sitting as a juvenile court, when the petition for adult certification was
filed, ordered the Clark County Juvenile Probation Department to investigate all facts and
circumstances necessary to assist the court in ruling upon the application. A lengthy report
was filed which discussed the whereabouts of the minor, reasons for the hearing, previous
record, police report, school report, psychological report, family history and background, and
evaluation of the entire situation. The only recommendation made was that the Juvenile Court
Judge take whatever action he deemed necessary in the matter. A copy of that report was
served upon appellant's counsel.
Following rendition of the report and service upon appellant's counsel, a further hearing
was held by the juvenile court after proper notice which was attended by appellant, his
counsel, his mother, the deputy district attorney, and the deputy probation officer, who
assembled the information. The judge stated that he had read the report. Appellant's counsel,
without seeking to call any witnesses of his own, asking to examine or cross-examine any
witnesses present including the deputy probation officer, or attacking in any manner the
admissibility of the report, presented arguments to the court disagreeing with certain
conclusions reached in the report.
86 Nev. 889, 891 (1970) Lewis v. State
seeking to call any witnesses of his own, asking to examine or cross-examine any witnesses
present including the deputy probation officer, or attacking in any manner the admissibility of
the report, presented arguments to the court disagreeing with certain conclusions reached in
the report.
The judge, after determining appellant had nothing more to state to the court, rendered the
following opinion:
It apparently appears to me, Mr. Lewis, that you are a menace. You have committed
robbery before. You were placed on formal probation, whether you call it larceny from the
person or not, the fact still remains you did take with force and violence money from the
person of another, which is robbery.
The fact that the state desired to charge you with a lesser included offense is up to them.
The fact does remain that it was a crime of violence. The fact does remain in this particular
case that there was another crime of violence. The fact remains that you completely were
aware of the circumstances. You have been aware of them in the past. It is not a situation
where anybody led you into doing these things. It is not a situation where you were forced to
do them or that under the circumstances as such you were required to do what you did. In
both cases they were acts of willful contemplative volitional acts, something you thought
about before you did it, and then did it.
In this case you could very easily, if that boy had pulled the trigger, been charged with
murder or manslaughter or whatever. You are seventeen and a half years of age?
By the Minor: Yes.
By the Court: And you are aware of what you did. You are a man, son, and you will stand
trial as a man.
You are certified to stand trial as an adult and you are ordered into the custody of the
Sheriff pending bail. That is all.
Following that verbal opinion and order, a formal Adult Certification Order was entered
which recited:
This matter having come on for hearing before the Juvenile Court of the Eighth Judicial
District, County of Clark, State of Nevada, on petition of Larry L. Villnow, Deputy Probation
Officer, Clark County Juvenile Probation Department, on this 18th day of December 1969.
After hearing the testimony of the Probation Department and the Court being fully
advised in the premises,
and ordered:
IT IS HEREBY ORDERED that Alvin Lewis Jr. is certified to an Adult Status and
custody remanded to the Clark County Sheriff's Office.
86 Nev. 889, 892 (1970) Lewis v. State
The Chief Probation Officer, Clark County Juvenile Probation Department, is charged
with the execution of said Order.
Appellant contends that NRS 62.080
1
is unconstitutional and violates the separation of
powers doctrine, in that it fails to provide the necessary legislative guide lines for judicial
administration of the certification issue and thus allows the court to act arbitrarily and
capriciously. He also contends the adult certification order is void because it fails to set forth
sufficient basis to permit meaningful review. Appellant also attacks the admissibility of the
probation department's report as being hearsay.
The issues thus presented for our consideration are these:
I. Whether NRS 62.080 constitutes an unlawful delegation of legislative power to the
Juvenile Court.
II. Whether the adult certification order is void for failure to state reasons or
considerations.
[Headnote 1]
1. We hold NRS 62.080 to be constitutional. In reviewing a similar statute in the District
of Columbia, the United States Supreme Court in Kent v. United States, 383 U.S. 541, 86
S.Ct. 1045 (1966), upheld it against an attack that it failed to provide adequate standards and
said:
The issue is the standards to be applied upon such review.
We agree with the Court of Appeals that the statute contemplates that the Juvenile Court
should have considerable latitude within which to determine whether it should retain
jurisdiction over a child orsubject to the statutory delimitationshould waive jurisdiction.
But this latitude is not complete. At the outset, it assumes procedural regularity sufficient in
the particular circumstances to satisfy the basic requirements of due process and fairness, as
well as compliance with the statutory requirement of a full investigation.' Green v. United
States, 113 App.D.C. 348, 308 F.2d 303 (1962). The statute gives the Juvenile Court a
substantial degree of discretion as to the factual considerations to be evaluated, the weight to
be given them and the conclusions to be reached. It does not confer upon the Juvenile Court a
license for arbitrary procedure.
____________________

1
NRS 62.080 reads as follows: 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.
86 Nev. 889, 893 (1970) Lewis v. State
That court paraphrased guide lines which had been previously drawn up as consistent with the
basic aims and purposes of the Juvenile Court Act. They are set out in the margin as a guide
to the criteria and principles to be followed in waiving jurisdiction of the juvenile court or in
certifying a juvenile to stand trial as an adult.
2

We feel that the necessary standards are set out in the general purpose clause of the
Juvenile Court Act, NRS 62.290, which reads as follows:
This chapter shall be liberally construed to the end that each child coming within the
jurisdiction of the court shall receive such care, guidance and control, preferably in his own
home, as will be conducive to the child's welfare and the best interest of the state, and that
when such child is removed from the control of his parents, the court shall secure for him
care as nearly as possible equivalent to that which should have been given him by them."
____________________

2
An offense falling within the statutory limitations (set forth above) will be waived if it has prosecutive
merit and if it is heinous or of an aggravated character, oreven though less seriousif it represents a pattern of
repeated offenses which indicate that the juvenile may be beyond rehabilitation under Juvenile Court procedures,
or if the public needs the protection afforded by such action.
The determinative factors which will be considered by the Judge in deciding whether the Juvenile Court's
jurisdiction over such offenses will be waived are the following:
1. The seriousness of the alleged offense to the community and whether the protection of the community
requires waiver.
2. Whether the alleged offense was committed in an aggressive, violent, premeditated or wilful manner.
3. Whether the alleged offense was against persons or against property, greater weight being given to
offenses against persons especially if personal injury resulted.
4. The prosecutive merit of the complaint, i.e., whether there is evidence upon which a Grand Jury may be
expected to return an indictment (to be determined by consultation with the United States Attorney).
5. The desirability of trial and disposition of the entire offense in one court when the juvenile's associates in
the alleged offense are adults who will be charged with a crime in the U.S. District Court for the District of
Columbia.
6. The sophistication and maturity of the juvenile as determined by consideration of his home, environmental
situation, emotional attitude and pattern of living.
7. The record and previous history of the juvenile, including previous contacts with the Youth Aid Division,
other law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation to this Court,
or prior commitments to juvenile institutions.
8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the
juvenile (if he is found to have committed the alleged offense) by the use of procedures, services and facilities
currently available to the Juvenile Court.
86 Nev. 889, 894 (1970) Lewis v. State
nearly as possible equivalent to that which should have been given him by them.
An attack, similar to the one made here by appellant, was rejected by the Supreme Court of
New Mexico. In State v. Doyal, 286 P.2d 306 (1955), that court rejected an argument that the
legislation was required to spell out with particularity the factors best calculated to promote
the interest of a juvenile. The court stated: It is a weighing of such consideration that might
influence the judge to place the case for trial in the one or other court. The considerations that
might so move a judge are so multifarious, however, that to test the validity of legislation by
an omission to list them would be almost equivalent to attempting to name all the advantages
of being upright and good. Accord Briggs v. United States, 226 F.2d 350 (App. D.C. 1955).
See also State v. Owens, 416 P.2d 259 (Kan. 1966); People v. Shipp, 382 P.2d 577 (Cal.
1963).
[Headnote 2]
2. We see no merit to appellant's contention that the formal certification order is void
because it fails to state reasons for its issuance in violation of our decision in Kline v. State,
86 Nev. 59, 464 P.2d 460 (1970), and Kent v. United States, supra. In his oral decision
preceding issuance of the formal adult certification order, Judge Mendoza gave his reasons or
considerations therefor. Summarized, they are:
1. You are a menace.
2. You have committed robbery before.
3. You were placed on probation because of exerting force and violence upon another.
4. You have committed another crime of violence.
5. You were aware of the circumstances.
6. You have been aware of them in the past.
7. You did them of your own volition.
8. They were wilful acts.
9. You are 17 1/2 years old.
10. You are aware of what you did.
11. You are a man and you will stand trial as one.
Those reasons or considerations are in the record and permit meaningful review by this
court. Kline v. State, supra. The order was made after full investigation, is supported by
substantial relevant evidence, and received careful consideration of the Juvenile Court. Kent
v. United States, supra.
[Headnote 3]
3. We decline to review the question of the admissibility of the probation department's
report as being hearsay. Objection to it was not presented to the lower court and may not
be cited as an error for the first time on appeal.
86 Nev. 889, 895 (1970) Lewis v. State
to it was not presented to the lower court and may not be cited as an error for the first time on
appeal. Sherwood v. Sissa, 5 Nev. 349 (1870); Barra v. Dumais, 76 Nev. 409, 356 P.2d 124
(1960).
Affirmed.
____________
86 Nev. 895, 895 (1970) Pederson v. County of Ormsby
BJARNE PEDERSON, Appellant, v. COUNTY OF ORMSBY, and KEITH MACDONALD,
WILLIAM DIAL and JOHN MEDER as County Commissioners, Respondents.
No. 6191
December 21, 1970 478 P.2d 152
Appeal from an order denying an application for an injunction and claim for special
damages. First Judicial District Court, Carson City; Frank B. Gregory, Judge.
Action by landowner to enjoin county from enforcing ordinance proscribing gravel pit use
against him. The district court denied injunctive relief, and landowner appealed. The Supreme
Court, Zenoff, J., held that evidence on issue whether landowner was grandfathered into a
nonconforming use because he had used gravel from excavating and grading of house built on
land for commercial purposes before ordinance was enacted supported finding that landowner
did not operate a commercial gravel pit before enactment of ordinance.
Affirmed.
Gary A. Sheerin, of Carson City, for Appellant.
Robert List, District Attorney, Carson City, for Respondents.
1. Zoning.
Evidence on issue whether landowner, who sought to enjoin county from enforcing ordinance proscribing
gravel pit use against him, was grandfathered into a nonconforming use because he had used gravel from
excavating and grading of house built on land for commercial purposes before ordinance was enacted
supported finding that landowner did not operate a commercial gravel pit before enactment of ordinance.
2. Evidence.
Evidence that landowner operated a gravel pit between 1962 and 1968 was not relevant to question of an
actual operation of a gravel pit in 1961 prior to enactment of ordinance proscribing such use.
OPINION
Early in 1961 John Wiley and Bjarne Pederson orally agreed that Pederson would assist in
making certain improvements to five acres of Wiley's Government Homestead property so
that Wiley could get the government patent and then Pederson would buy it. The necessary
work was done, including the building of a house on one acre of the property. Wiley received
the government patent on July 11, 1961 and on July 31, 1961 he deeded the five acres to
Pederson. On the same day Pederson, in turn, deeded one acre to Joe and Mary Sanchez. The
house was located on that acre.
Between December of 1961 and April 1968 Pederson used part of the remaining four acres
as a commercial gravel pit for his ready-mix concrete business. On April 28, 1968 he was
ordered by Ormsby County (now denominated Carson City) to cease operation of the gravel
pit because of two ordinances proscribing such use. The ordinances, both similarly effective,
were enacted in 1961 and 1965. Pederson sought to enjoin the county from enforcing the
ordinances against him, contending that he was grandfathered into a nonconforming use
because he had used the gravel from the excavating and grading of the Sanchez house for
commercial purposes before the first ordinance was enacted December 1, 1961.
His petition for injunctive relief was denied and he appealed to this court principally on the
question of whether the excavation and use of the materials from the Sanchez residential
property qualifies as the use of the entire parcel as a commercial gravel pit.
1. It was agreed between the parties that for a nonconforming use to have been established
Pederson had to actually have used the parcel for a gravel pit before December 1, 1961.
Whether Pederson operated a commercial pit on the acreage in question before December 1,
1961 is a question of fact. The trial court found specifically that he did not operate a
commercial gravel pit on this property at that time, that the excavation for the construction of
the house and outbuildings was for the sole purposes of the house and was not commercial in
nature.
Some evidence favors Pederson's position. He used the decomposed granite accumulated
in the excavating and leveling for the house in his ready-mix business. Further, the purpose of
building the house was to provide a home for the person watching the pit. However,
neighbors testified that in 1961 no excavating was done on the property except around the
homesite and that any excavating and grading done after the house was built was done at the
request of Sanchez, the owner of the house, so that he could landscape his yard and build a
garage and pump house. The record also shows the excavation and grading were done
gradually because Sanchez could not afford to pay for it and Pederson was doing it as he was
able to use the gravel. Apparently, the trial court was satisfied that the primary activity
concerned the Sanchez house, not Pederson's business.
[Headnote 1]
The findings of a trial court are entitled to great respect and will not be disturbed unless
from the record they are unsupported by the evidence. Harvey v. Streeter, 81 Nev. 177, 400
P.2d 761 (1965). While it can be convincingly argued that Pederson at all times intended
eventually to make a gravel pit on the remaining four acres, the principal factor is whether he
actually used the property as a gravel pit at the time the ordinance was enacted. The trial court
reasonably concluded that the excavating and grading that were done on the property at that
time were almost solely associated with the construction of the house and that the use of the
gravel was merely ancillary to the main operation at that time. The use of the gravel from the
house was only incidental. The trial judge found that there had been no gravel pit in operation
in 1961 and because this finding was reasonable it will not be disturbed. There being no
actual use of the land as a commercial gravel pit the grandfather principles cannot be
applied to Pederson in this instance. San Diego County v. McClurken, 234 P.2d 972 (Cal.
1951).
Moreover, prior to December 1, 1961 the so-called gravel pit was upon the one acre parcel
owned by Sanchez and not upon land owned by Pederson. Generally, zoning ordinances do
not limit the right of a landowner to continue the use of the land in existence at the time of the
adoption of the ordinance. State ex rel. Davie v. Coleman, 67 Nev. 636, 224 P.2d 309 (1958).
This is the underlying premise of the grandfather principle. It is apparent that Pederson
does not fall within that principle when he did not own the land from which the gravel was
removed.
[Headnote 2]
2. Another issue raised by the appellant was the exclusion by the trial judge of nearly all
evidence that Pederson operated a gravel pit between 1962 and 1968. He apparently desired
to use that fact to support his assertion that it was evidence of his intention in 1961, but it is
not relevant to the question of an actual operation of a pit then. The admission of such facts
would not change our conclusion.
Because we conclude the trial judge's finding that Pederson did not operate a commercial
gravel pit before December 1, 1961 is supported by the evidence, we need not address other
points raised by appellant.
Affirmed.
Mowbray and Thompson, JJ., and Young, D. J., and Compton, D. J., concur.
____________
86 Nev. 898, 898 (1970) Sepulveda v. State
LAWRENCE WALTER SEPULVEDA, Appellant, v.
No. 6365
December 21, 1970 478 P.2d 172
Appeal from a judgment of conviction of involuntary manslaughter and sentence of
one-year imprisonment. Eighth Judicial District Court, Clark County; Howard W. Babcock,
Judge.
Defendant was convicted before the district court of involuntary manslaughter, and he
appealed. The Supreme Court held that defendant, who was charged with murder, who did
not object to submission of involuntary manslaughter instruction and who could have been
found guilty of murder, could not be heard to object on appeal to giving of involuntary
manslaughter instruction.
Affirmed.
Robert G. Legakes, Public Defender, and David M. Schreiber, Deputy Public Defender,
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, and Gary
Logan, Deputy District Attorney, Clark County, for Respondent.
A defendant may be found guilty of a lesser offense necessarily included in offense charged. NRS
175.501.
Offense of involuntary manslaughter is necessarily included in charge of murder. NRS 200.070.
3. Criminal Law.
Defendant, who was charged with murder, who did not object to submission of involuntary manslaughter
instruction and who could have been found guilty of murder, could not be heard to object on appeal to
giving of involuntary manslaughter instruction. NRS 200.070.
OPINION
Per Curiam:
Lawrence Walter Sepulveda was tried before a jury and convicted of involuntary
manslaughter under NRS 200.070
1
on April 30, 1970.
Sepulveda and a co-defendant had been charged in the stabbing murder of Lowell David
Young on November 7, 1969 in Las Vegas. Witnesses testified that Sepulveda and his
co-defendant fought with Young and in the process of the fight Sepulveda pushed Young
against a car and kicked him. Sepulveda and other witnesses testified that he pushed Young
in an effort to break up the fight and at no time kicked Young. In the course of the altercation
Sepulveda's co-defendant inflicted the fatal stab wounds upon Young.
[Headnotes 1, 2]
Appellant asserts that the involuntary manslaughter instruction and conviction were
improper since the stabbing was an intentional act done by another, and therefore he could
not be convicted under the terms of NRS 200.070. In this assertion appellant overlooks the
well-settled rule that one may be found guilty of a lesser offense necessarily included in the
offense charged. NRS 175.501. The offense of involuntary manslaughter is necessarily
included in a charge of murder. State v. Oschoa, 49 Nev. 194, 242 P. 582 (1926).
[Headnote 3]
Upon the evidence adduced, the jury might well have found appellant guilty of the more
serious offenses charged, as a principal within NRS 195.020.2 Appellant did not object to
the submission of the involuntary manslaughter instruction and it is apparent that the
evidence supported a finding of guilt as to the more serious charge.
____________________

1
200.070 Involuntary manslaughter defined. Involuntary manslaughter shall consist in the killing of a
human being, without any intent so to do, in the commission of an unlawful act, or a lawful act which probably
might produce such a consequence in an unlawful manner. . . .
appellant guilty of the more serious offenses charged, as a principal within NRS 195.020.
2
Appellant did not object to the submission of the involuntary manslaughter instruction and it
is apparent that the evidence supported a finding of guilt as to the more serious charge.
Therefore, appellant benefitted from the submission of this instruction which, on its face,
does not seem applicable to him. For these reasons, appellant may not now be heard to object
at this time. People v. Washburn, 201 P. 335, 336 (Cal.App. 1921).
Affirmed.
____________________

2
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 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.
____________
86 Nev. 900, 900 (1970) Hassett v. St. Mary's Hosp. Ass'n
FRANK HASSETT, Appellant, v. ST. MARY'S HOSPITAL ASS'N, a Nevada Corporation,
and DR. JAMES GREEAR, Respondents.
No. 6152
December 22, 1970 478 P.2d 154
Appeal from two orders of the Second Judicial District Court, Washoe County, John E.
Gabrielli, Judge, dismissing the action with prejudice with respect to both respondents.
Complaint was filed for damages against doctor and hospital. The district court dismissed
complaint, and plaintiff appealed. The Supreme Court, Mowbray, J., held that district judge
did not abuse his discretion in granting motions for dismissal for want of prosecution of
action in which defendant doctor was not served with process two years after complaint was
filed and defendant hospital was not served with copy of complaint and summons until two
and one-half years after complaint was filed.
Affirmed.
Zenoff and Batjer, JJ., dissented.
Don V. Purke and Virgil D. Dutt, both of Reno, for Appellant.
Goldwater, Taber, Hill and Mortimer and Julien G. Sourwine, both of Reno, for
Respondents.
Purpose of two-year discretionary power of dismissal for want of prosecution is to compel reasonable
diligence in prosecution of action after it has been commenced so that parties against whom it is brought
will have opportunity to properly present any defense that may be available at time of commencement of
action. NRCP 41(e).
Where defendant has made prima facie showing of unreasonable delay in serving summons and
complaint, it is plaintiff's duty to show circumstances excusing his tardiness or action may be dismissed.
NRCP 41(e).
District judge did not abuse his discretion in granting motions for dismissal for want of prosecution of
action in which defendant doctor was not served with process two years after complaint was filed and
defendant hospital was not served with copy of complaint and summons until two and one-half years after
complaint was filed. NRCP 41(e).
OPINION
Appellant-plaintiff Frank Hassett has appealed from two orders of the district court
dismissing his complaint for damages that he had filed against respondents-defendants Dr.
James Greear and St. Mary's Hospital, both of Reno. The orders of dismissal were granted
under the provisions of NRCP 41(e), which reads, in part:
(e) Want of Prosecution. 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. . . .
We affirm the orders of the district court dismissing the complaint against both
respondents-defendants.
1. The Facts.
On March 3, 1965, Dr. James Greear removed a cataract from Frank Hassett's right eye.
The operation was performed at St. Mary's Hospital in Reno. Hassett, after the operation and
while recuperating in the Hospital, scratched his eye while attempting to relieve the itching
resulting from the operation.
Two years later, on March 2, 1967, which was 1 day before the statute of limitations would
have barred this action, Hassett filed in the district court a two-count complaint seeking
damages from the respondents-defendants for their alleged negligence in caring for Hassett,
which he claimed caused him to suffer loss of sight in his right eye. No attempt was made to
effect service on Doctor Greear. Two years later, on March 4, 1969, Doctor Greear, without
yet having been served with process, moved to dismiss the complaint for want of prosecution
under the 2-year discretionary provision of NRCP 41(e). The motion was granted, and the
complaint against Doctor Greear was dismissed on July 22, 1969. Thereafter, in October 1969
(2 1/2 years after the complaint had been filed), the Hospital was served with a copy of the
complaint and summons. The Hospital then filed a 41(e) motion to dismiss, as Doctor Greear
had done, and the district judge entered an order on December 8, 1969, dismissing the
complaint against the Hospital.
2. The Discretion of the District Judge.
Our role on this appeal is clear and well defined. We are simply to determine whether the
district judge abused his discretion in granting the two 41(e) dismissal motions. This court, in
Harris v. Harris, 65 Nev. 342, 350, 196 P.2d 402, 406 (1948), has laid down the standard that
must govern our ruling in this appeal:
. . . 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. Raine v. Ennor, . . . 39 Nev. 365, 374, 158 P. 133; Inderbitzen v. Lane
Hospital, . . . 17 Cal.App.2d 103, 61 P.2d 514, 516; Cohn v. Rosenberg, 62 Cal.App.2d 140,
144 P.2d 399, 401; Allyne v. Murasky, . . . 200 Cal. 661, 254 P. 564, 566; Brown v.
Haymore, . . . 43 Ariz. 466, 32 P.2d 1027, 1028; Hicks v. Bekins Moving & Storage Co., . . .
9 Cir., 115 F.2d 406, 409; Pennsylvania Railroad Co. v. City of Pittsburgh, 335 Pa. 449, 6
A.2d 907, 911; Bancroft's Code Practice and Remedies, vol. 1, page 758, sec. 506, note 10;
and 10-year supplement, vol. 2, pages 1581, 1582, note 12. See also Volpert v. Papagna, 85
Nev. 437, 456 P.2d 848 (1969), wherein this court last year, in a unanimous opinion,
approved the Harris standard.
We have reviewed the record in this case, and it does support the rulings of the district
judge. There was no abuse of discretion in granting the orders of dismissal. Indeed, a recent
decision of our sister state, California, has held, under facts similar to the instant case, that the
court's refusal to dismiss constituted an abuse of discretion.
constituted an abuse of discretion. In Paul W. Speer, Inc. v. Superior Court, 77 Cal.Rptr. 152
(Cal.App. 1969, hearing denied, Cal. 1969), the appellate court issued a peremptory writ of
mandate to the judge who had denied the motion to dismiss for want of prosecution under the
2-year discretionary rule and said, 77 Cal.Rptr. at 155:
. . . In Black Bros. Co. v. Superior Court, supra [71 Cal.Rptr. 344 (1968) ], the facts were
very similar to the instant case. The complaint was filed on January 22, 1965, and service was
not made on the defendant until January 9, 1968. That court decided that the trial court . . .
abused its discretion in denying motion of defendant to dismiss.' In Anderson v. Nawa, 25
Cal.App. 151, 154, 143 P. 555, 556 [1914], the court held that: . . . the unexplained and
inexcusable failure to serve the summons within two years and ten months . . . prima facie
constituted good and sufficient grounds of dismissal.' (See also Sprajc v. Scandinavian
Airlines System, Inc., supra [50 Cal.Rptr. 181 (1966)], affirming a dismissal under section
583 where the complaint was filed on July 24, 1961, and service was not made on the
defendant until August 13, 1963.[)]
On the record before us we find there is an absence of any showing constituting good
cause. Since the plaintiff in this case has not met his burden of showing excusable delay,' the
trial court had a duty to dismiss the action upon the motion of petitioner. The failure to do so
was an abuse of discretion.
Let the peremptory writ of mandate issue as prayed.
[Headnote 1]
The purpose of the 2-year discretionary power of dismissal is to compel reasonable
diligence in the prosecution of an action after it has been commenced, so that the parties
against whom it is brought will have an opportunity to properly present any defense that may
be available at the time of the commencement of the action. It is the duty of the plaintiff to
act, and to act with reasonable diligence, and a defendant need make no move until the law
requires him to do so in response to the movements of the plaintiff at the various stages of the
litigation.
[Headnote 2]
It is the general policy, as declared by the courts, that where a plaintiff exercises
reasonable diligence in the prosecution of his action, the action shall be tried on the merits.
This policy is counterbalanced, however, by the policy that, when a plaintiff fails to exercise
reasonable diligence in the prosecution of his action, it may be dismissed by the district judge.
When the defendant has made a prima facie showing of unreasonable delay in serving the
summons and complaint, it is the plaintiff's duty to show circumstances excusing his
tardiness.
defendant has made a prima facie showing of unreasonable delay in serving the summons and
complaint, it is the plaintiff's duty to show circumstances excusing his tardiness.
Hassett chose not to testify at either hearing on the 41(e) motions to dismiss. He submitted
an affidavit that in essence charged four attorneys of the Washoe County Bar with whom he
had discussed his case at one time or another with negligence in not prosecuting it.
1
It is
upon this naked assertion that the dissenting opinion blames members of the bar for failure to
proceed diligently and would therefore reverse the orders of the district court granting the
41(e) motions to dismiss. We disagree with the reasoning of the dissenters. We must presume
from the record that no one involved with Hassett's case believed it had merit. On March 2,
1967, one day before the statute of limitations would have run, it was given a case number by
court order, under the practice in Washoe County. Next, a complaint-letter was sent, on
September 6, 1967, to the Joint Screening Panel of the Washoe County Medical Society and
the Washoe County Bar Association, charging Doctor Greear with professional negligence. A
hearing was held by that board on December 12, 1967, and the board concluded that there
was no possible basis for the negligence charge. It was at that hearing that Doctor Greear
learned that a complaint in district court had been filed against him. He asked at that time,
through his counsel, and several times thereafter that he be served. He never was served, and
so, 4 years after the act of negligence allegedly occurred, and 2 years after the complaint had
been filed against him, Doctor Greear filed his 41(e) motion to dismiss for want of
prosecution.
Under the state of this record, it was within the permissible limits of the court's discretion
to dismiss the action. Every man is entitled to his day in court, but a law suit is not a
unilateral affair. The rights of all parties to the litigation are involved. One who is charged
with a complaint and against whom substantial damages are sought is entitled to a
determination of those issues within a reasonable time. That is the purpose of 41(e).
Likewise, it is categorically unfair and unrealistic to brand members of the bar as
recalcitrant in this case on the naked charge that they failed to prosecute Hassett's case and
that this resulted in Hassett's prejudice. To do so would mean that any attorney who reviews a
case and fails to prosecute it is ipso facto guilty of malpractice. The inference apparent in this
case is that not one but several members of the bar concluded, after reviewing the matter,
that the complaint was without merit.2
____________________

1
Present counsel did not represent Hassett when he filed his complaint.
concluded, after reviewing the matter, that the complaint was without merit.
2

[Headnote 3]
Applying the standard this court announced in Harris, supra, and approved in Volpert,
supra, we conclude that the district judge did not abuse his discretion in granting the 41(e)
motions for dismissal. We therefore affirm the orders dismissing the complaint against the
respondents.
Collins, C. J., and Thompson, J., concur.
Zenoff, J., and Batjer, J., dissenting:
We do not dispute the generalization of the majority opinion that the trial court has a wide
discretion to dismiss actions provided there is no abuse of that discretion. Harris v. Harris, 65
Nev. 342, 350, 196 P.2d 402 (1948), relied upon by the majority adds, however, that The
discretion to be exercised, under the circumstances of the particular case, is a legal discretion,
to be exercised in conformity with the spirit of the law and in such a manner as to subserve
and not to impede or defeat the ends of substantial justice. That case goes on to say that
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."
____________________

2
Nevada Supreme Court Rule 203 provides:
Rule 203. Cannons of Professional Ethics of the American Bar Association adopted. The Canons of
Professional Ethics of the American Bar Association, as amended, and as interpreted by the numerical opinions
of the standing committee on professional ethics of the American Bar Association, are hereby adopted by
reference and made additional rules of professional conduct of the state bar, insofar as they are not in conflict
with the rules of professional conduct herein.
Canon 44 of the Canons of Professional Ethics of the American Bar Association provided:
44. Withdrawal from Employment as Attorney or Counsel.
. . . [T]he lawyer may be warranted in withdrawing on due notice to the client, . . . when . . . [he] discovers
that his client has no case . . .
The Canons of Professional Ethics have been superseded by the Code of Professional Responsibility adopted
by the American Bar Association effective January 1, 1970. In the new Code, DR 2-110(C)(1)(a) also provides:
(C) Permissive withdrawal [from employment].
. . . [A] lawyer may not request permission to withdraw . . . unless. . . :
(1) His client:
(a) Insists upon presenting a claim or defense that is not warranted under existing law . . .
an action for lack of prosecution its decision will not be disturbed on appeal. The focus of
this dissent is directed to what we believe to be the trial court's gross abuse of discretion.
In the order of dismissal the trial court ruled that the delay was caused by the plaintiff
himself and that no reasonable or valid excuse for the delay was shown by Hassett. The facts
belie that ruling. Hassett was compelled to hire four attorneys before he could get any action.
On February 28, 1967 he retained Attorney No. 1 who filed the complaint on March 2, 1967.
From that point to February 1968 Hassett solicited this attorney with letters and phone calls
seeking information as to what was being done on his case. He gave his attorney money for
depositions which were never taken. After considerable lapse of time Attorney No. 1 turned
the case over to Attorney No. 2 who did nothing concerning it for several months and then
advised Hassett that he must refuse the case for certain personal reasons.
In June of 1968 Attorney No. 2 transferred the case to Attorney No. 3 without Hassett's
knowledge. Late in 1968, getting no satisfaction from Attorney No. 3, Hassett retained
Attorney No. 4. Together they drafted interrogatories which were not served because, as was
explained to the trial court by Attorney No. 4, Hassett had to spend some time in New York
for treatments for the ailment which is the basis for his lawsuit. Once the complaint was
finally served upon the hospital it filed an answer. Then came the motion to dismiss.
Throughout the entire chronology it seems glaringly apparent that the client did all that he
could be expected to do but that he met the common failing of busy attorneys of
procrastinating to the last degree. On very similar facts, the granting of a motion to dismiss
was reversed in Johnson v. Westland Theatres, 187 P.2d 932 (Colo. 1947).
When a case has long been 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 seeks an appellate court to reverse the order of dismissal must see to it
that the record contains something substantial which will justify a reversal. Northern Ill.
Corp. v. Miller, 78 Nev. 213, 217, 370 P.2d 955. The something substantial in this case is
the clearly erroneous conclusion by the trial court that the client was at fault. The fault lay
solely in the hands of three dilatory attorneys who instead of rejecting the case at the outset
misled the client who is not expected to know about such things as motions to dismiss and
statutes of limitation.
The policy of the law is to try cases on their merits. Adams v. Lawson, 84 Nev. 687, 689,
448 P.2d 695, 696 (1968). Dismissal may be what counsel deserves but the client deserves a
little better. Sykes v. United States, 290 F.2d 555 (9th Cir. 1961). It serves no purpose to
dissect each case relied upon by the majority, such as, Anderson v. Nawa, 25 Cal.App. 151,
154, 143 P. 555, 556 (1914), where the court based its determination on the unexplained
failure to prosecute. Each case must rest upon its own facts and circumstances. In this case
Hassett was blamed by the trial court for the delay but the record shows otherwise. He was
not responsible for the delay in the prosecution of his lawsuit. Rather, despite his repeated
efforts, his attorneys delayed. Although the general rule is that the client is responsible for the
neglect of his attorney, respectable authority holds that this is not necessarily so when the
neglect is the attorney's failure to press the action. Daley v. County of Butte, 38 Cal.Rptr. 693
(Cal.App. 1964); Manson v. First National Bank, 77 A.2d 399 (Pa. 1951); see also the
collected cases in 15 A.L.R.3d 674, 12, and dissenting opinion in Link v. Wabash Railroad
Co., 370 U.S. 626 (1962). By his efforts in seeking other counsel, his persistence upon each
of them with letters and telephone calls, and his taking the file to opposing counsel to attempt
at least to discuss his lawsuit, Hassett exercised the reasonable diligence deemed desirable in
Black Bros. Co. v. Superior Court, 71 Cal.Rptr. 344 (1968), also relied upon by the majority.
To force a litigant to bring an action for malpractice against recalcitrant attorneys is
burdensome and unfair. He should not have to suffer through the obstacles of a lawsuit
against his lawyers. The lawyer's license carries the assurance that a litigant will not be
prejudiced because of his lack of knowledge on how to proceed to enforce his rights. What he
seeks is his day in court and if he does not get it, the reputation of the courts and bar is
severely and unnecessarily damaged.
We dissent.
____________
86 Nev. 908, 908 (1970) Lam v. Lam
KAI SING LAM, Appellant, v. NENG YEE LAM,
Respondent.
No. 6193
December 24, 1970 478 P.2d 146
Appeal from order modifying decree of divorce in matters relating to custody, child
support and property division. Eighth Judicial District Court, Clark County; Taylor H. Wines,
Judge.
Appeal by father from an order of the district court modifying decree of divorce in matters
relating to custody, child support and property division. The Supreme Court, Zenoff, J., held
that personal appearance of father, plus his having initiated proceeding to modify visitation
rights and having volunteered certain child support payments, caused subsequent
modification of order as to custody and support to be binding and enforceable against him;
however, issue of property, which was not adjudicated in original divorce proceedings, could
not be determined in subsequent modification proceeding without an express stipulation.
Jack J. Pursel, of Las Vegas, for Appellant.
Edward G. Marshall, of Las Vegas, for Respondent.
1. Divorce.
Judgment and decree of divorce cannot be modified, vacated or set aside except upon terms or reasons set
by rules or statute. NRS 125.140, subd. 2; NRCP 60(b, c).
2. Divorce.
Welfare of children, which is primary duty of trial court, exempts matters such as visitation rights from
six-month limitation period for filing of motion to modify divorce decree after entry of judgment. NRS
125.140, subd. 2; NRCP 60(b, c).
3. Divorce.
Where court which granted divorce had original jurisdiction over children in first instance, motion of
father to redetermine matters affecting their welfare was timely and appropriate, even though filed after
six-month limitation period provided by rules for filing of motion to modify decree after entry of judgment.
NRS 125.140, subd. 2; NRCP 60(b, c).
4. Divorce.
Personal appearance of father, plus his having initiated proceedings to modify visitation rights and his
having volunteered certain child support payments, caused subsequent modification order as to custody and
support to be binding and enforceable against him. NRS 125.140, subd. 2; NRCP 60(b, c).
86 Nev. 908, 909 (1970) Lam v. Lam
5. Divorce.
Issue of property, which was not adjudicated in original divorce proceedings, could not, without an
express stipulation, be determined in subsequent proceeding by father to modify visitation rights. NRS
125.150, subd. 5; NRCP 60.
OPINION
Neng Yee Lam, wife of Kai Sing Lam and mother of their three children, filed for divorce
in Nevada on April 13, 1967. Service of process was made by publication and personal
service upon her husband outside the state. He failed to file an answer and judgment was
taken by default. On May 17, 1967 the divorce decree was granted awarding custody of the
children to the mother, but in the absence of personal jurisdiction over the defendant and
since no property was located within the state no provisions for child support or division of
property were made.
Kai Sing moved to modify the decree on February 25, 1969, which was almost two years
after the decree was entered, thus, beyond the six months limitation period provided in Rule
60(b) and (c). Kai Sing requested in his motion to modify certain visitation rights of the
children and volunteered certain child support payments. On March 12, 1969 Neng Yee
moved on her part to modify the decree asking for a division of their property. After hearing
both motions the trial court ordered the former husband to deposit funds from a Canadian
bank account into a trust account from which child support would be payable and the
remainder of the monies on deposit in the Canadian bank to be equally divided between the
parties. It is this last order Kai Sing challenges contending that the trial court lacked
jurisdiction to modify the final divorce decree respecting the property. The question
principally on appeal is whether or not by entering his appearance for child support and
custody that appearance supported also the division of property that had not been litigated in
the principal action.
[Headnotes 1-4]
1. A judgment and decree of divorce cannot be modified, vacated or set aside except upon
the terms or reasons set by rules or statute. The pertinent statute in this case is NRS
125.140(2) which specifically allows the reopening of a judgment and decree of divorce for
matters relating to children of a marriage at any time.
86 Nev. 908, 910 (1970) Lam v. Lam
of a marriage at any time. Their welfare which, of course, is a primary duty of a trial court
(Atkins v. Atkins, 50 Nev. 333, 259 P. 288 (1927)), exempts such matters from the time
limitations of Rule 60(b) and (c). The court having had original jurisdiction over the children
in the first instance, a motion to redetermine matters affecting their welfare unquestionably
was timely and appropriate. McFarlane v. McFarlane, 73 P. 203 (Ore. 1903); 71 A.L.R.2d
1370, 1403. The personal appearance of the father, indeed, his initiating the modification
proceedings caused the modification order as to custody and support to be all the more
binding and enforceable.
2. The same cannot be said of the property division, however. Neither the defendant nor
the property were before the court at the original trial. Properly, no provision for property
division could then be made. The question is, can that division be made now when the
husband's appearance was for unrelated matters and not within the six month period of Rule
60?
[Headnote 5]
The issue of property was not adjudicated at the trial, therefore, it cannot be the subject of
a subsequent modification proceeding without an express stipulation. This is the net effect of
NRS 125.150(5). See also Schmutzer v. Schmutzer, 76 Nev. 123, 350 P.2d 142 (1960);
Finley v. Finley, 65 Nev. 113, 118, 189 P.2d 334 (1948) (overruled on another point in Day v.
Day, 80 Nev. 386, 395 P.2d 321 (1964)). Perhaps NRS 125.150(5), amended as of 1949, was
changed for the purposes of the Finley-Schmutzer situations. Whatever the reason, by the
terms of the amended statute, only a stipulation between the parties can do the job as respects
their property differences. Prior to the amendment, not even a stipulation could fill the void in
a modification proceeding that was created in the original proceeding. There is no stipulation
respecting its disposition, therefore, the appearance of the husband is limited to matters
concerning the welfare of the children and none other.
3. Consideration of other so-called issues is unnecessary. We do not accept the argument
that these proceedings were in reality one of modification for the custody and child support,
but a separate action as to the property. None of the characteristics of a separate action are
present.
The order relating to child support is affirmed, but that portion directing the disposition
of property interests is reversed and dismissed.
86 Nev. 908, 911 (1970) Lam v. Lam
portion directing the disposition of property interests is reversed and dismissed.
Batjer and Thompson, JJ., and Young, D. J., and Gabrielli, D. J., concur.
____________
86 Nev. 911, 911 (1970) State v. Silva
STATE OF NEVADA, Appellant, v. DIANE SILVA
and FRED E. SILVA, Respondents.
No. 5998
December 28, 1970 478 P.2d 591
Appeal from jury verdict and judgment of the Second Judicial District Court, Washoe
County; Thomas O. Craven, Judge.
Action against the State by wife and husband to recover damages incurred by reason of
forcible rape of wife by inmate of honor camp, a state facility. The district court rendered
judgment for plaintiffs, and the State appealed. The Supreme Court, Thompson, J., held that
the State was not immune from suit. The court further held that the State did not waive
statutory limit on recovery by purchasing liability insurance with limits in excess of statutory
amount.
Reversed and remanded for a new trial.
Harvey Dickerson, Attorney General, and Robert A. Groves, Deputy Attorney General, of
Carson City, for Appellant.
Echeverria and Osborne and John T. Coffin, of Reno, for Respondents.
Russell W. McDonald, of Carson City, Amicus Curiae.
Joseph P. Reynolds, of Reno, Amicus Curiae.
1. States.
Waiver of immunity from liability and consent by the State to civil actions, except those civil actions
based on exercise of performance or failure to exercise performed discretionary functions or duties, must
be favored in a close case. NRS 41.031, 41.032, 209.475.
86 Nev. 911, 912 (1970) State v. Silva
2. States.
State was not immune from action by wife and husband to recover damages incurred by reason of forcible
rape of wife by inmate of honor camp, on theory that operation and maintenance of camp was a
discretionary function. NRS 41.031, 41.032, 209.475.
3. States.
Showing of ordinary, rather than gross negligence, would be sufficient to fasten liability on State for
damages incurred by reason of the forcible rape of wife by inmate of honor camp, a state facility. NRS
41.031, 41.032, 209.475.
4. States.
Evidence generated jury question whether the State, sued by husband and wife to recover damages
incurred by reason of forcible rape of wife by an inmate of honor camp, a state facility, negligently
maintained the facility, with result that inmate was permitted to escape.
5. Constitutional Law; States.
Statutory limit of $25,000 as damages recoverable from the State under statute waiving immunity from
liability and consent to civil actions is not unconstitutional on theory that fixed monetary limit violates due
process; due process does not require that recovery against the State be stated as percentage of damage.
NRS 41.035, subd. 1; U.S.C.A.Const. Amend. 14, 1.
6. States.
Fact that the State purchased liability insurance in excess of $25,000 maximum fixed by statute waiving
immunity from liability and consent to civil actions, did not result in waiver of statutory limit, as regards
recovery for rape of wife by inmate who escaped from state run honor camp, since limit is fixed by
Legislature and can only be changed by act of Legislature. NRS 41.031, 41.035, subd. 1, 41.038.
OPINION
Wife and husband brought suit against the State to recover damages incurred by reason of
the forcible rape of the wife by an inmate of the Peavine Honor Camp, a state facility. At the
close of the evidence the district court directed a verdict against the State on the issue of
liability and allowed the jury to decide only the question of damages. The jury awarded
damages of $300,000 and $100,000 to the wife and husband, respectively. Judgment was duly
entered. The State moved for a new trial upon the ground of excessive damages, and, if
unsuccessful, for a reduction of each damage award to the statutory limit of $25,000. The
district court found the damages to be within permissible limits and declared the statutory
limitation of damages unconstitutional. Accordingly, the State's motions were denied.
86 Nev. 911, 913 (1970) State v. Silva
State's motions were denied. The victors sought a post-judgment evidentiary hearing as to
whether the State had purchased liability insurance in an amount greater than $25,000 for
each person, and if so, whether such purchase waived the statutory limitation. That hearing,
and other matters, were stayed by an order of this Court pending disposition of the State's
appeal which had been filed.
The main issue is immunity from suit and the extent to which the State waived immunity
by the enactment of NRS 41.031 et seq. Several subordinate questions must be resolved if we
rule that the State does not enjoy immunity in the circumstances disclosed. We turn first to
relate the relevant facts bearing on this issue.
1. In 1965 the State waived its immunity from liability and consented to civil actions,
except those civil actions based upon the exercise or performance or the failure to exercise or
perform discretionary functions or duties; as to these, immunity from liability was retained.
1
The Peavine Honor Camp was established by the Board of Prison Commissioners pursuant to
the authority of NRS 209.475 for the housing of prisoners assigned to state conservation and
rehabilitation work. Prisoners so assigned are thought to be good risks for work away from
the confinement of the state prison. The thrust of the honor camp program is rehabilitation
rather than punishment.
The State contends that the entire honor camp program involves the exercise of discretion
within the contemplation of NRS 41.031(2). The decision to establish the camp was
discretionary with the Board of Commissioners; the selection of inmates to be housed there
was discretionary with the warden and his screening committee; and the method of operating
the camp was discretionary with those charged with the duty of supervision. Accordingly, the
State is immune from this action. Heavy reliance is placed upon the Washington case of
Evangelical United Breth.
____________________

1
NRS 41.031: The State of Nevada hereby waives its immunity from liability and action and hereby
consents to have its liability determined in accordance with the same rules of law as are applied to civil actions
against individuals and corporations, except as otherwise provided in NRS 41.032 . . . .
NRS 41.032: No action may be brought under NRS 41.031 or against the employee which is:
1. . . . .
2. Based upon the exercise or performance or the failure to exercise or perform a discretionary function or
duty on the part of the state or any of its agencies or political subdivisions or of any employee of any of these,
whether or not the discretion involved is abused.
86 Nev. 911, 914 (1970) State v. Silva
case of Evangelical United Breth. Church of Adna v. State, 407 P.2d 440 (1966). On the other
hand, the respondents urge that the supervision and control of the honor camp was and is an
operational function imposing upon the State the duty to exercise ordinary care, and for the
breach of which liability may be found. Cf. Harrigan v. City of Reno, 86 Nev. 678, 475 P.2d
94 (1970). The distinction between discretionary and operational functions is obscure. The
supervision and control of a state facility involves the exercise of some discretion. To rule,
however, that the presence of discretion in the operation of a state facility creates an
immunity within the intendment of NRS 41.032(2) would annihilate the waiver of immunity
declared in NRS 41.031. In our judgment, this was not the legislative purpose.
Before the enactment of the statutory waiver of immunity, Nevada case law on the
viability of the doctrine of sovereign immunity was uncertain and in flux. Walsh v. Clark Co.
School Dist., 82 Nev. 414, 419 P.2d 774 (1966); Hardgrave v. State ex rel. Hwy. Dep't, 80
Nev. 74, 389 P.2d 249 (1964); Rice v. Clark County, 79 Nev. 253, 382 P.2d 605 (1963). The
trend was toward the judicial abolition of that doctrine. Rice v. Clark County, supra. It is only
fair to assume that the 1965 Legislature reacted to that trend, and elected to waive immunity
within limits and impose a ceiling upon the recovery allowable to a claimant, rather than
await further judicial action upon the subject. The apparent legislative thrust was to waive
immunity and, correlatively, to strictly construe limitations upon that waiver.
[Headnotes 1, 2]
With the legislative purpose in mind, our task becomes easier. In a close case we must
favor a waiver of immunity and accommodate the legislative scheme. Only when we
conclude that discretion alone is involved may we find immunity from suit. Although the
selection of inmates for honor camp service may primarily be a discretionary act, the manner
in which the camp is supervised and controlled is mainly operational in nature. Indeed, the
very fact that such inmates are not released from prison to roam at will, but remain under
state control for work assignment and honor camp living, establishes state recognition that
control and supervision is essential. We hold, therefore, that the State is not immune from
this suit.
[Headnote 3]
2. As noted, the district court directed a verdict against the State on the issue of liability
believing that reasonable minds could not differ on the point.2 Proof of negligence was not
that certain.
86 Nev. 911, 915 (1970) State v. Silva
minds could not differ on the point.
2
Proof of negligence was not that certain. The record
may be read to show that state personnel supervise the inmates during their working hours
and at night when they were at the honor camp. Bed checks were to be made every two hours
during the nighttime. The honor camp area was fenced and the gates sometimes locked. The
gates were open on the night the rapist escaped because of the movement of fire crews and
equipment engaged in fighting a forest fire. An expert witness testified favorably to the State
with regard to the reasonableness of its security at the honor camp. The record may also be
read to show a lack of due care in the security arrangements at the honor camp.
Moreover, there is a problem of foreseeability. The State earnestly contends that the
independent depravation of the rapist was not foreseeable and that liability should not rest
with the State where a third person is assaulted by one who elopes from the honor camp.
Indeed, the State suggests that the court should have directed a verdict in its favor for this
reason alone.
Was the risk of harm one reasonably to be perceived? Honor camp inmates are under the
supervision and control of the State and are paid for their work. The rapist was thought by
prison authorities to be a nocturnal prowler since he had been charged with several counts of
burglary before his incarceration at the prison. He was in prison about seven months before
his release for honor camp service. Female companionship is denied prison inmates and the
consequences of this denial is a matter of concern to prison authorities. The honor camp was
located near a populated subdivision in the City of Reno. On the other hand, the rapist was
not known to be a sex-offender. His conduct at the prison had been exemplary.
[Headnote 4]
In our view reasonable minds could reach different conclusions and the jury should have
been allowed to decide liability. Neither side was entitled to a directed verdict. Accordingly,
we must set aside the verdicts and remand for a new trial. However, there remain questions of
importance to be resolved for retrial.
____________________

2
The complaint alleges gross negligence. Why, we do not know since ordinary negligence is sufficient and
NRS 41.035(1) does not allow punitive damages. In any event, the court ruled that the State was grossly
negligent as a matter of law. For reasons stated in the body of the opinion we think that even ordinary negligence
was a jury question in this case.
86 Nev. 911, 916 (1970) State v. Silva
[Headnote 5]
3. The district court declared the statutory damage limit of $25,000 for each claimant
[NRS 41.035(1)] unconstitutional upon the ground that no state shall . . . deny to any person
within its jurisdiction the equal protection of the laws. U.S. Const. amend XIV, 1. The
argument is this. Although it may be permissible for the State to place a ceiling upon the
amount of damages recoverable, that ceiling must be expressed in terms of a percentage of
the total damages sustained; otherwise, claimants are not treated equally insofar as the
opportunity to be made whole is concerned. For example, any claimant whose damages do
not exceed $25,000 has the opportunity to obtain a full recovery, whereas one whose damages
exceed that amount has only the opportunity to recover a percentage of his loss. Thus, a dollar
limitation upon recovery discriminates between injured claimants, whereas a percentage
limitation would treat all claimants equally and not violate equal protection.
We do not see a constitutional problem here. The fault with the argument is the failure to
distinguish between the right to recover and the amount of recovery. All persons injured
through the negligence of the State have been granted the right to bring suit (except where
immunity is retained), and this right is granted equally and without discrimination on any
basis whatsoever. It seems to us quite impossible to devise a scheme of equality in the awards
of damages. The total damages sustained by a claimant is an uncertain amount in any case.
That amount is what negotiation or trial declares it to be, and the variation in result for
substantially similar injuries is remarkable. A percentage of the total damages sustained is
equally uncertain. In the nature of things, equality of treatment as to the amount of damages
cannot be achieved, and in our view, the equal protection clause has no bearing upon the
subject. Cf. Dandridge v. Williams, 397 U.S. 471 (1970). It was within the legislative power
to limit recovery.
[Headnote 6]
4. The respondents urge that the State may have waived the statutory limit upon recovery
by purchasing liability insurance with limits in excess of the statutory amount. They did not
plead waiver. By post-judgment motion they sought to discover the existence of insurance
and the limits thereof. That hearing was never held because of the pendency of this appeal.
Since this case must be tried anew we anticipate that the district court will allow pleading
amendments to present this issue.
86 Nev. 911, 917 (1970) State v. Silva
that the district court will allow pleading amendments to present this issue. We should,
therefore, express our view, and do so upon the assumption that the State has purchased
liability insurance with limits in excess of the statutory ceiling upon recovery.
The legislature authorized the State to insure itself against any liability arising under NRS
41.031. NRS 41.038. If liability is found in this case it is a liability under NRS 41.031, and
the limit upon the recovery of any claimant for such liability is $25,000. NRS 41.035(1). In
reading these sections together, 41.031, 41.038 and 41.035(1), we are compelled to conclude
that the legislative authorization to insure was to the extent of $25,000 for each claimant, and
no more. The purchasing of insurance with higher limits was not authorized and, if done,
cannot be considered as a legislative waiver of the statutory limit.
The case of Taylor v. State and Univ., 73 Nev. 151, 311 P.2d 733 (1957), is not apposite.
The court there discussed waiver of immunity by the purchasing of insurance. We are not
here concerned with waiver of immunity. That was accomplished by legislative act in 1965
and a limit placed upon recovery. That limitation is constitutionally permissible and may not
be enlarged except by the legislature.
Reversed and remanded for a new trial.
Zenoff, Batjer, and Mowbray, JJ., and Young, D. J., concur.
____________
86 Nev. 917, 917 (1970) United Services Auto. Ass'n v. Dokter
UNITED SERVICES AUTOMOBILE ASSOCIATION,
Appellant, v. DERALD D. DOKTER, Respondent.
No. 6197
December 28, 1970 478 P.2d 583
Appeal from declaratory judgment of the Eighth Judicial District Court, Clark County;
Action for declaratory judgment for determination of whether insured was entitled to
recover under uninsured motorist provisions of two separate automobile liability policies
issued by same insurer for injuries sustained by insured as pedestrian when he was struck by
vehicle driven by uninsured motorist. The district court entered judgment in favor of insured,
and insurer appealed. The Supreme Court, Thompson, J., held that pedestrian who was
named insured under two automobile liability policies written by same insurer could
recover under uninsured motorist provision of each policy actual damages sustained by
insured to full extent of combined limits of both policies notwithstanding each policy
included "other insurance" clause for prorating loss between available policies and
deeming loss not to be in excess of higher applicable limits of available policies.
insurer appealed. The Supreme Court, Thompson, J., held that pedestrian who was named
insured under two automobile liability policies written by same insurer could recover under
uninsured motorist provision of each policy actual damages sustained by insured to full extent
of combined limits of both policies notwithstanding each policy included other insurance
clause for prorating loss between available policies and deeming loss not to be in excess of
higher applicable limits of available policies.
Affirmed.
Young, D. J., dissented.
Dickerson, Miles & Gang, of Las Vegas, for Appellant.
Foley Brothers and Thomas D. Beatty, of Las Vegas, for Respondent.
1. Insurance.
Where insured who brought declaratory judgment action to recover under uninsured motorist provisions
of his two automobile liability policies issued by the same insurer would not reasonably anticipate
construction urged by insurer that other insurance clause contained in each policy limited insured to
recovery under one policy only, clause was ambiguous and would be construed against insurer.
2. Insurance.
Pedestrian who was named insured under two automobile liability policies written by same insurer could
recover under uninsured motorist provision of each policy actual damages sustained by insured to full
extent of combined limits of both policies notwithstanding each policy included other insurance clause
for prorating loss between available policies and deeming loss not to be in excess of higher applicable
limits of available policies.
OPINION
This is an action for declaratory judgment commenced by Dokter, the insured, against
United Services Automobile Association, his insurer. The insured, a pedestrian, was struck
and severely injured by an uninsured motorist. At the time of this misfortune he owned two
cars. Each was insured by a separate policy issued by United Services Automobile
Association. Each policy provided uninsured motorist protection to a limit of $10,000. An
arbitrator found Dokter's damages to exceed $20,000. The arbitrator, however, declined to
rule on whether the insured was entitled to recover under both policies or just one.
one. That issue was reserved for court adjudication. Cf. Northwestern Sec. Ins. Co. v. Clark,
84 Nev. 716, 448 P.2d 39 (1968). The district court ruled for the insured and ordered the
insurer to pay him $20,000. This appeal ensued. At issue is the effect to be given the other
insurance clause contained in each policy. That clause provides that if the insured has other
similar insurance available to him and applicable to the accident, the damages shall be
deemed not to exceed the higher of the applicable limits of liability of this insurance and such
other insurance, and the company shall not be liable for a greater proportion of any loss to
which this coverage applies than the limit of liability hereunder bears to the sum of the
applicable limits of liability of this insurance and such other insurance. We turn to resolve
this question.
1. To draw the issue of this case more precisely into focus it may be worthwhile to note
related matters which are not before us. Several cases have considered the other insurance
clause in relation to a state statute requiring insurers to provide uninsured motorist coverage.
1
Since 1967 Nevada has had such a statute. That statute, however, does not bear upon this case
since the insurance policies were written before it became operative. Consequently, those
cases are not particularly useful here. Other cases have been concerned with the interplay
between the other insurance clause and the excess clause when the injured claimant
occupied a car when hurt.
2
We are not here concerned with the excess clause since the
claimant insured was a pedestrian and not an occupant of an insured motor vehicle. Finally,
most of the cases concern multiple policies written by different insurers. The case at hand
involves two policies written by the same insurance company. These distinctions are
significant. Accordingly, our issue is a narrow onemay a pedestrian, who is the named
insured under two automobile policies written by the same insurance company, recover under
the uninsured motorist provision of each policy where each includes an other insurance
clause prorating the loss between available policies and deeming the loss not to be in excess
of the higher of the applicable limits of the available policies?
[Headnotes 1, 2]
2. The other insurance clause is not free of ambiguity when considered within the context
of this case. Its purpose is twofoldto prorate the loss and to fix the limit thereof.
____________________

1
Cases collected: Annot. 28 A.L.R.3d 551: Uninsured Motorist Insurance: Validity and Construction of
Other Insurance' Provisions.

2
For example: Smith v. Pacific Automobile Insurance Co., 400 P.2d 512 (Ore. 1965).
twofoldto prorate the loss and to fix the limit thereof. Obviously, there is no purpose in
proration unless the other insurance was written by another company, since that provision
is designed to preclude payment of a disproportionate amount of a loss shared with another
company. Deterding v. State Farm Mutual Automobile Ins. Co., 222 N.E.2d 523 (Ill.App.
1966); Safeco Ins. Co. of America v. Robey, 399 F.2d 330 (8 Cir. 1968); Woolston v. State
Farm Mutual Ins. Co., 306 F.Supp. 738 (W.D. Ark. 1969); cf. Government Employees Ins.
Co. v. Sweet, 186 So.2d 95 (Fla.App. 1966).
3
Accordingly, in the cited cases the courts
declined to apply the other insurance clause to limit recovery when the same insurance
company issued both policies. Because the insured would not reasonably anticipate the
construction urged, this clause is ambiguous in this situation and is to be construed against
the insurer. Home Indemnity Co. v. Desert Palace, Inc., 86 Nev. 234, 468 P.2d 19 (1970). The
insured does not receive a windfall since he paid two separate premiums for the indemnity of
two separate policies. Sturdy v. Allied Mutual Ins. Co., 457 P.2d 34 (Kan. 1969). We hold
that where the insurer issues two automobile policies containing uninsured motorist coverage,
the extent of coverage is the combined total amount of such policies, and actual damages
sustained by the insured are recoverable to the full extent of the combined limits of both
policies.
Affirmed.
Young, D. J., dissenting:
The issue to be decided in this case is whether there is any ambiguity in the other
insurance clause involved in the insurance policies in this matter. The majority of the court
indicates that there is no ambiguity in the other insurance clause when two different
insurance companies are involved, but that an ambiguity arises when the same insurance
company issues two policies to the same person. I do not agree with this contention. We are
concerned here with insurance policies and their interpretation, not insurance companies. A
careful reading of the language in the other insurance clause shows that it is free from
ambiguity. The clause clearly states that the limit of liability is the highest amount of liability
set forth in all policies involved, whether the policies are with the same company or
different companies.
____________________

3
Woolston, supra, is distinguishable from M.F.A. Mutual Ins. Co. v. Wallace, 431 S.W.2d 742 (Ark. 1968),
in that the policy in the latter case contained a clause specifically and unambiguously covering this situation.
involved, whether the policies are with the same company or different companies. The clause
also clearly fixes the liability of a company under each policy on a pro rata share basis. Horr
v. Detroit Automobile Inter-Insurance Exchange, 153 N.W.2d 655 (Mich. 1967).
Thus, in the instant case the maximum limit of liability under either policy is $10,000.00
and the company is liable in the amount of $5,000.00 under each policy, or a total of
$10,000.00 under both policies. I would reverse.
____________
86 Nev. 921, 921 (1970) Hardy v. First Nat'l Bank of Nev.
RICHARD L. HARDY, Appellant, v. FIRST NATIONAL BANK OF NEVADA, a National
Banking Corporation, Respondent.
No. 6237
December 28, 1970 478 P.2d 581
Appeal from a judgment and from orders of the First Judicial District Court, Carson City,
denying a demand for a jury trial and denying a motion to amend findings of fact; Richard L.
Waters, Jr., Judge.
Suit by bank to recover on three short-term notes signed by defendant. The district court
denied defendant's demand for jury trial and motion to amend findings of fact and enter
judgment for plaintiff, and defendant appealed. The Supreme Court held that defendant,
whose demand for jury trial was first made a year after matter was first set for trial, and after
it was reset for trial several times, waived his right to demand jury trial, under rule providing
that such demand be made no later than time of entry of first order setting case for trial, and
was compelled to proceed either by trial by court, by advisory jury, or by jury with consent of
all parties.
Affirmed.
Lester H. Berkson, of Stateline, and Jerry C. Lane, of Carson City, for Appellant.
Belford & Anglim, of Reno, for Respondent.
1. Jury.
Defendant, whose demand for jury trial, in suit by bank to recover on three short-term notes, was first
made a year after matter was first set for trial, and after it was reset for trial several times, waived his
right to demand jury trial, under rule providing that such demand be made no later
than time of entry of first order setting case for trial, and was compelled to proceed
either by trial by court, by advisory jury, or by jury with consent of all parties.
times, waived his right to demand jury trial, under rule providing that such demand be made no later than
time of entry of first order setting case for trial, and was compelled to proceed either by trial by court, by
advisory jury, or by jury with consent of all parties. NRCP 38(b), 39(b, c).
Failure of trial court, in suit by bank to recover on three short-term notes signed by defendant, to make
specific fact findings as to affirmative defenses did not constitute reversible error where record supported
judgment so that necessary findings could be implied. NRCP 52(a).
3. Judgment.
Fact that judgment, in suit by bank to recover on three short-term notes signed by defendant, used term
executed, rather than term signed, did not render judgment defective where it was evident that trial
court intended to use execute in sense of sign.
OPINION
Per Curiam:
Appellant Richard L. Hardy was sued on three short-term notes on October 13, 1967.
These notes represent second renewals of notes first executed in February 1966 and renewed
in May 1966. Appellant was the lone signator on two notes and was joined by his brother,
who is not a party to this appeal, on the third. At the time the notes were renewed in May,
appellant's employer, Harold Chisholm, was also a signator on one note, but his name does
not appear on the later renewal, so appellant and his brother were the only parties-defendant
below.
This matter was set for trial by an order dated April 22, 1968 but was subsequently taken
off the calendar. Before a new trial date was set, appellant demanded a jury trial. This demand
was denied.
After a trial to the court, respondent's prayer for relief was granted. Judgment was entered
against appellant for the amount of the three notes. In his findings of fact, Judge Waters did
not make specific findings with regard to the affirmative defenses asserted by appellant.
Appellant moved to amend the findings of fact so as, in effect, to release him from liability on
the note which in May had also been executed by Harold Chisholm. This motion was denied.
From that denial, as well as the judgment and the denial of the demand for a jury trial, Hardy
appeals.
[Headnote 1]
1. NRCP 38(b) specifies that demand for a jury trial is to be made not later than the time
of entry of the order first setting the case for trial."
setting the case for trial. Here, the demand for a jury trial was first made a year after the
matter was first set for trial, and after it was reset for trial several times. Therefore, appellant
waived his right to demand a jury trial under NRCP 38(b) and was compelled to proceed
under NRCP 39(b) or (c), which he did not do.
[Headnote 2]
2. Appellant urges that reversal of the judgment is required by NRCP 52(a) because of
Judge Waters' failure to make specific fact findings as to the affirmative defenses. Certainly,
such a failure may constitute reversible error. Pease v. Taylor, 86 Nev. 195, 467 P.2d 109
(1970). Where the record is clear and will support the judgment, however, findings may be
implied. Id. Here, the record does, indeed, clearly support the judgment so the necessary
findings will be implied.
[Headnote 3]
Appellant also urges that the judgment is defective because in the conclusions of law the
term executed was used, rather than the term signed, thereby rendering the finding of fact
a conclusion of law. It is evident that Judge Waters intended to use execute in the sense of
sign. Appellant's contention sanctifies form and overlooks substance. Cf. Bowman v.
Tisnado, 84 Nev. 420, 442 P.2d 899 (1968).
3. Other matters raised here by appellant relate to the soundness of factual bases necessary
to support the judgment, namely, whether there was consideration for the original notes and
whether respondent agreed not to hold appellant on the second renewal notes until Harold
Chisholm also signed them. On both these questions there is ample evidence to support Judge
Waters' findings so they will not be disturbed on review.
Affirmed.
____________
86 Nev. 923, 923 (1970) Rose v. State
RONALD GEORGE ROSE, Appellant, v. THE STATE
No. 6334
December 28, 1970 478 P.2d 573
Appeal from a conviction of burglary in the Eighth Judicial District Court, Clark County;
Howard W. Babcock, Judge.
Defendant was convicted before the district court of burglary and he appealed. The
Supreme Court held that stolen items in defendant's automobile were properly seized
without a search warrant where the items were in plain view, identified as fruits of
alleged burglary by victim and seizure was incidental to and contemporaneous with
defendant's arrest.
86 Nev. 923, 924 (1970) Rose v. State
defendant's automobile were properly seized without a search warrant where the items were
in plain view, identified as fruits of alleged burglary by victim and seizure was incidental to
and contemporaneous with defendant's arrest.
Affirmed.
Robert G. Legakes, Public Defender, and Steven L. Godwin, Deputy Public Defender,
Arrest; Searches and Seizures.
Seizure of stolen items without warrant from defendant's automobile was proper where seized items were
in plain view, identified by burglary victim as fruits of alleged burglary and seizure was incidental to and
contemporaneous with defendant's arrest.
OPINION
Per Curiam:
Ronald George Rose was tried before a jury and found guilty of burglary on April 16,
1970. Rose appeals the conviction asserting certain items were improperly admitted into
evidence because they were the product of an illegal search and seizure.
On December 25, 1969 a security guard noticed Rose in the guest parking area at the
Riviera Hotel. Rose walked to the employee parking area where he examined locks and straps
about two gas cans mounted on a jeep, then approached a Dodge vehicle which he began to
enter. At that point he was confronted by the security guard, questioned and detained. The
Clark County Sheriff's Office was phoned and the officers arrived shortly and placed Rose
under arrest.
Rose told the officers that he had driven to the hotel in the vehicle in the guest parking
area. One of the officers verified this information by examining the vehicle's registration. He
then walked around the vehicle, shined his flashlight through the right rear door window and
saw a box resting against a stereo tape carrying case.
The officer then examined one of the vehicles near which the security guard said Rose had
been loitering, a 1969 Dodge. He observed that a vent window had been forced open. He also
noticed a stereo tape deck and assorted clothing in the rear seat.
86 Nev. 923, 925 (1970) Rose v. State
Shortly thereafter the owner of the Dodge vehicle appeared. He examined his car,
confirmed that the vent window had been forced open, and stated to the officer that a tape
case and shirt were missing. He was then taken to Rose's vehicle, looked through the window,
and identified the tape case and box as his. The officer then seized and impounded these
items.
1. Appellant does not seriously challenge the search done by the officer in shining his
flashlight through the car window. Cases are replete where similar procedures have been held
not to be contrary to the fourth amendment. Hughes v. State, 86 Nev. 584, 471 P.2d 245
(1970); Schnepp v. State, 82 Nev. 257, 415 P.2d 619 (1966); Harris v. United States, 390
U.S. 234 (1968).
2. Appellant asserts, however, that even though the items were in plain view, so that there
is no assailable search, the seizure was not proper without a warrant. This position is
untenable in this case. The search was admittedly proper, the seized items were first
identified as the fruits of the alleged burglary, and the seizure was incidental to and
contemporaneous with Rose's arrest. Cf. Pendleton v. Nelson, 404 F.2d 1074 (9th Cir. 1968).
Requiring a search warrant in such a situation would be patently unreasonable.
Affirmed.
____________
86 Nev. 925, 925 (1970) Smithart v. State
JOHN WESLEY SMITHART, Appellant, v. THE
No. 6089
December 30, 1970 478 P.2d 576
Appeal from a judgment entered upon a jury verdict. Second Judicial District Court,
Washoe County; John E. Gabrielli, Judge.
Defendant was convicted in the district court of possession of a narcotic drug and the
possession of a dangerous drug and he appealed. The Supreme Court, Batjer, J., held that
where none of evidence acquired in search of main ranch house after arrest of defendant, and
after valid search of one-room cabin adjacent to main ranch house, was introduced at trial,
defendant was not prejudiced by the improper search of the main ranch house.
Affirmed.
Brown & Meredith, of Reno, for Appellant.
Harvey Dickerson, Attorney General; William J. Raggio, District Attorney and Kathleen
1. Criminal Law.
Where search warrant and accompanying papers were not admitted in evidence in prosecution for
possession of narcotic drug and possession of dangerous drug, contents of search warrant were not
reviewable on appeal.
2. Criminal Law.
Manner in which search warrant was executed was reviewable on appeal even though no motion to
suppress evidence was made before or during trial. NRS 174.125, 179.045, subd. 3, 179.075, subd. 1.
Search warrant which was secured at 5:13 p.m. and which was served at approximately 9:00 p.m. that
same evening was served forthwith as required by statute. NRS 174.125, 179.045, subd. 3, 179.075,
subd. 1.
4. Arrest.
Where defendant's arrest and search of premises took place some five months prior to United States
Supreme Court decision which limits warrantless search to the arrestee's person and area within the
immediate control to discover and remove weapons and to seize evidence in order to prevent its
concealment or destruction, constitutional standard for warrantless search which allowed search in the
immediate vicinity of the arrest was proper standard.
5. Courts.
Incriminating evidence obtained from defendant's person and from one-room cabin in which arrest and
warrantless search took place were admissible where arrest occurred prior to United States Supreme Court
decision which limited warrantless search to the arrestee's person and area within the immediate control to
discover and remove weapons and to seize evidence in order to prevent its concealment or destruction.
6. Criminal Law.
Where none of evidence acquired in search of main ranch house after arrest of defendant, and after valid
search of one-room cabin adjacent to main ranch house, was introduced at trial, defendant was not
prejudiced by the improper search of the main ranch house.
7. Criminal Law.
On appeal, Supreme Court will not consider anything outside the trial record.
8. Criminal Law.
Where codefendant who testified at joint trial for possession of narcotic drug and possession of
dangerous drug was subject to direct as well as cross-examination by defendant, trial court went beyond
any constitutional obligation to assure fair trial to defendant by instructing jury to consider codefendant's
testimony about her presence in cabin on night of her arrest only with regard to her and defendant
was not prejudiced by the testimony of the codefendant.
her and defendant was not prejudiced by the testimony of the codefendant. NRS 453.030, 454.395.
9. Criminal Law.
It is presumed that trial attorney fully discharged his duties and such presumption can only be overcome
by strong and convincing proof to the contrary.
10. Poisons.
Testimony of state chemist for state health division that diet pills bore legend that federal law prohibited
dispensing without prescription and that the pills could not be dispensed without prescription from licensed
physician together with evidence that defendant did not have such prescription was sufficient to establish
that the diet pills in defendant's possession were dangerous drugs. NRS 454.220, 454.220, subd. 2.
11. Criminal Law.
Where codefendant was not in custody at time of her initial conversation with police informant, who was
also auxiliary policewoman, nor at any time between the conversation and codefendant's arrest two days
later, informant had no duty to give codefendant Miranda warnings at the initial conversation and
codefendant's statement to informant concerning plans to have a pot party was admissible in prosecution
for possession of narcotic drug and possession of dangerous drug. NRS 453.030, 454.395.
It was not error to resubmit defendant's case to same grand jury which had returned prior indictments
which were dismissed because they were unaccompanied by proper transcript.
13. Criminal Law.
Trial court did not abuse its discretion by permitting police officer, whose name was not given on
indictment, to testify at trial. NRS 173.045.
14. Criminal Law.
Where no objection was made at trial to propriety of question as to whether defendant was an ex-felon,
defendant was not entitled to contend on appeal that such question was improper and highly prejudicial.
OPINION
The appellant was convicted by a jury of the possession of a narcotic drug and the
possession of a dangerous drug, in violation of NRS 453.030 and NRS 454.395.
On February 8, 1969, Sheila Summers, a police informant and auxiliary policewoman for
the Reno Police Department, met Carol Hoag at the Ranch House, located in Reno, Nevada.
They went to cabin No. 3 at the Ranch House where Carol Hoag revealed that she had some
marijuana and there was to be a pot party in a few days.
Sheila Summers presented this information to John Kempton, a Reno police officer, who
in turn secured a search warrant on February 10, 1969, at 5:13 p.m. At approximately 9:00
p.m. that same evening, officer Kempton and other Reno police officers arrived at the Ranch
House and commenced an observation of cabin No. 3.
The appellant and Larry King entered cabin No. 3 at approximately 10:50 p.m., five
minutes later Sheila Summers and Carol Hoag entered the cabin. At 11:00 p.m. the officers
knocked on the door of the cabin and asked to speak with the appellant. The lights inside the
cabin were immediately extinguished. The police continued knocking on the door and it was
opened by someone from the inside. Upon gaining entry the police officers arrested the
individuals in the cabin and searched their persons and the cabin.
The search produced a marijuana cigarette, marijuana residue in the toilet basin and on a
paper towel in the bathroom; some paper used for rolling cigarettes, a shoe box with
marijuana residue and a vial of marijuana residue. The searching officers also found a vial of
pills on the person of the appellant.
Incident to the arrests and subsequent to the search, the state sought indictments. The
grand jury returned three indictments. The first two were dismissed because the state had
failed to produce a transcript of the grand jury proceedings. The third indictment was
accompanied by the required transcript and charged the appellant with the possession of
marijuana and with the unlawful possession of a dangerous drug, methamphetamine
hydrochloride, in violation of NRS 454.395.
The appellant and Carol Hoag were tried as co-defendants. The jury returned verdicts
against both of them.
As the appellant's first assignment of error he claims that the search of cabin No. 3 was
illegal because the search warrant was improperly secured, and that the provisions within the
search warrant did not conform to the laws of this state. In Hardison v. State, 84 Nev. 125,
437 P.2d 868 (1968), this court held: NRS 174.465 [cf. NRS 174.125] requires that motions
to suppress evidence shall be made prior to trial. This was not done. Nor was there such
objection made at the trial of the case. The issue is now presented for the first time on appeal.
It is a general rule that failure either to utilize the statutory procedures to raise the
question prior to trial or to object at the trial of the case will preclude appellate consideration
of the issue when presented on appeal [citations omitted]. However, since appellant's
contentions are grounded on constitutional questions this court is obligated to consider
them on appeal."
since appellant's contentions are grounded on constitutional questions this court is obligated
to consider them on appeal.
[Headnote 1]
This case and Hardison v. State, supra, are distinguishable because there questionable
evidence was admitted into evidence, while here the search warrant and accompanying papers
were not admitted into evidence. The search warrant was not before the trial court, therefore
its contents are not reviewable on this appeal.
[Headnote 2]
However, the manner in which the search warrant was executed is reviewable even though
no motion to suppress was made before or during trial. Hardison v. State, supra; NRS
174.125.
[Headnote 3]
The appellant contends that the search warrant was defective because it was not executed
immediately after its issuance. NRS 179.045(3).
1
The word forthwith must be read in the
light of NRS 179.075(1), which provides: The warrant may be executed and returned only
within 10 days after its date. Here the warrant was served and returned within 10 days. The
provisions of both statutes have been met and the requirement that service be made forthwith
has been satisfied.
[Headnotes 4, 5]
The appellant next asserts that the police officers improperly searched his person without
the benefit of a search warrant. The record does not support this contention. The arresting
officers testified that the appellant did not enter the cabin until 10 minutes prior to the arrest
and before then they had no reason to believe he would be present. In Derouen v. Sheriff, 85
Nev. 637, 461 P.2d 865 (1969), this court decided that Chimel v. California, 395 U.S. 752
(1969), which limits a warrantless search to the arrestee's person and the area within the
immediate control to discover and remove weapons and to seize evidence in order to prevent
its concealment or destruction, would only receive prospective application. The search of the
appellant's person met the Chimel test. However, the arrest of the appellant and the search of
the premises took place on February 10, 1969, some five months prior to the decision in
Chimel, therefore the constitutional standards for a warrantless search then in effect
which allowed a search in the immediate vicinity of the arrest were met.
____________________

1
NRS 179.045(3): The warrant shall direct that it be served in the daytime, unless the magistrate, upon a
showing of good cause therefor, inserts a direction that it be served at any time.
Chimel, therefore the constitutional standards for a warrantless search then in effect which
allowed a search in the immediate vicinity of the arrest were met. Thurlow v. State, 81 Nev.
510, 406 P.2d 918 (1965); Stoner v. California, 376 U.S. 483 (1964). The incriminating
evidence obtained from the person of the appellant and from the one room cabin where the
arrest and search took place were all admissible under the standards announced by the United
States Supreme Court prior to Chimel. United States v. Rabinowitz, 339 U.S. 56 (1950) and
Harris v. United States, 331 U.S. 145 (1947).
[Headnotes 6, 7]
After the arrest of appellant and the search of the one room cabin the police searched the
main ranch house. It is conceded by the respondent that the search of that premises was
improper. However, a review of the record shows that the appellant was not prejudiced by the
search of the ranch house because none of the evidence acquired was introduced at the trial.
On appeal this court will not consider anything outside the trial record. Lindauer v. Allen, 85
Nev. 430, 456 P.2d 851 (1969); A Minor v. State, 85 Nev. 323, 454 P.2d 895 (1969); Wilson
v. Wilson, 55 Nev. 57, 24 P.2d 317 (1933); Clark County v. State, 65 Nev. 490, 199 P.2d 137
(1948).
[Headnote 8]
During the trial Carol Hoag, the co-defendant, took the stand and testified about her
presence in the cabin on the night of her arrest. Earlier in the trial the judge sustained the
appellant's objection to the introduction of any evidence offered by Carol Hoag that was
hearsay as to him, and instructed the jury to consider the evidence only with regard to her.
The appellant asserts that Bruton v. United States, 391 U.S. 123 (1968), is controlling and
that the instruction given by the trial judge was insufficient to avoid prejudice.
The Bruton case is not controlling. There the co-defendant did not take the stand. Instead a
third party testified as to a confession made by the co-defendant. The court held that the
constitutional right to confrontation of witness was denied the appellant. This case is
distinguishable. The right of confrontation was clearly present. The co-defendant was subject
to direct as well as cross-examination by the appellant. In the giving of the special instruction
on this point, the trial court went beyond any constitutional obligation to assure a fair trial to
the appellant.
[Headnote 9]
Among his other contentions the appellant claims that he was denied his constitutional
right to effective representation by counsel. It is presumed that an attorney has fully
discharged his duties. This presumption can only be overcome by strong and convincing
proof to the contrary. Bean v. State, 86 Nev. 80, 465 P.2d 133 (1970). This record does not
contain evidence of incompetency upon the part of the appellant's trial counsel.
[Headnote 10]
The appellant claims that there was no evidence introduced to show that the diet pills
taken from his person were dangerous drugs as defined in NRS 454.220(2).
2
The chief
chemist for the Nevada State Health Division was called as an expert witness by the state. He
testified that the pills in question bore the federal caution and that they could not be dispensed
without a prescription from a licensed physician. The appellant did not have such a
prescription. The diet pills were clearly within the provisions of NRS 454.220 and there was
sufficient evidence to support the determination that they were dangerous drugs.
The appellant asserts that Sheila Summers, as a police officer, should have given Carol
Hoag the Miranda warnings on February 8, 1969, when the parties met and Carol Hoag
divulged her plans to have a pot party. If such warnings were required, any statements made
after that date and prior to the warnings given at the time of arrest would be inadmissible.
Miranda v. Arizona, 384 U.S. 436 (1966). In Schaumberg v. State, 83 Nev. 372, 432 P.2d 500
(1967), we held the principles announced in Miranda and Escobedo (378 U.S. 478 (1964))
are to protect against the potentiality for compulsion that may be present in custodial
interrogation, and in State v. Billings, 84 Nev. 55, 436 P.2d 212 (1968), we held that
volunteered statements, not the result of police interrogation, are not subject to Miranda
protections.
[Headnote 11]
Carol Hoag was not in custody at the time of her initial conversation with Sheila Summers,
nor at any time between then and her arrest two days later.
____________________

2
NRS 454.220(2): Dangerous drug' means any drug unsafe for self-medication or unsupervised use on
animals and includes the following:
Any drug which has been approved by the Food and Drug Administration for general distribution and bears
the legend: Caution: Federal law prohibits dispensing without prescription.'
and her arrest two days later. Sheila Summers had no duty to give Carol Hoag the warnings
required in Miranda v. Arizona, supra, at their initial conversation, and her intervening
statement was properly admissible.
[Headnote 12]
The grand jury returned three indictments against the appellant, the first two
unaccompanied by a proper transcript. Appellant claims that it was error to resubmit his case
to the same grand jury. This issue is squarely answered in Bonnenfant v. State, 86 Nev. 393,
469 P.2d 401 (1970). Resubmission to the same grand jury is permissible.
[Headnote 13]
Appellant contends that the names of two state witnesses, officers Schmorde and Goodson
of the Reno police force were not placed upon the indictment and it was therefore error to
allow them to testify at the trial of the appellant. The name of officer Goodson did appear on
the third indictment under which appellant was tried, therefore his contention in this regard
lacks support in the record. However, the name of the other officer did not appear on the
indictment. In Mathis v. State, 82 Nev. 402, 419 P.2d 775 (1966), this court held that it was
not error for the trial court to allow witnesses to testify whose names were not endorsed on
the indictment because NRS 173.080 (now NRS 173.045), which requires the endorsements
of witnesses on an information did not apply to an indictment. Here the trial judge did not
abuse his discretion in allowing the officer, whose name was not given on the indictment, to
testify. Gallegos v. State, 84 Nev. 608, 446 P.2d 656 (1968).
[Headnote 14]
During the course of the trial the appellant was asked if he was an ex-felon. He now
contends that such questioning was improper and highly prejudicial. At the time that question
was propounded to the appellant his counsel did not object to the propriety of the question.
In Wilson v. State, 86 Nev. 320, 468 P.2d 346 (1970), we said: When an appellant fails to
specifically object to questions asked or testimony elicited during trial, but complains about
them, in retrospect upon appeal, we do not consider his contention as a proper assignment of
error. Wyatt v. State [86 Nev. 294, 468 P.2d 338 (1970)]; Cross v. State, 85 Nev. 580, 460
P.2d 151 (1969); Cranford v. State, 76 Nev. 113, 349 P.2d 1051 (1960); State v. Ceja, 53
Nev. 272, 298 P.
P. 658 (1931). The appellant's contention will not now be considered by this court.
The remainder of the assignments of error specified by appellant were listed as such but
were not argued in the briefs, nor was there any authority cited in support thereof. These
points have been reviewed by this court and found to be without merit. Riverside Casino v. J.
W. Brewer Co., 80 Nev. 153, 390 P.2d 232 (1964).
Collins, C. J., Zenoff, Mowbray, and Thompson, JJ. concur.
____________
86 Nev. 933, 933 (1970) City of Las Vegas v. Cragin Industries
CITY OF LAS VEGAS, NEVADA, and NEVADA POWER COMPANY, Appellants, v.
CRAGIN INDUSTRIES, INC., a Nevada Corporation, on Behalf of Itself and All Other
Taxpayers of the City of Las Vegas, County of Clark, State of Nevada; and CRAGIN
INDUSTRIES, INC., a Nevada Corporation, on Behalf of Itself and All Other Property
Owners With Property Abutting on and Along Charleston Boulevard Between Upland
Boulevard and Desert Lane in Las Vegas, Clark County, Nevada; and CRAGIN
INDUSTRIES, INC., a Nevada Corporation, on Behalf of Itself and All Other Property
Owners of Assessment Unit No. 4 as Contained in Las Vegas, Nevada, Special Assessment
District No. 476 Purportedly Created by Las Vegas, Nevada, Ordinance No. 1321,
Respondents.
No. 6165
December 30, 1970 478 P.2d 585
Appeal from a summary judgment and order denying a motion for a new trial. Eighth
Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.
Taxpayer filed suit, for itself and on behalf of all taxpayers in city and on behalf of various
property owners, seeking permanent injunction against placement of electrical wires above
ground by city and power company and declaration that agreement between city and power
company was contrary to ordinance. The district court rendered summary judgment granting
the injunction and declaring agreement to be void, and city and power company appealed.
The Supreme Court, Batjer, J., held that ordinance requiring underground circuits would
be construed to include all wiring in any way connected to steel lighting standards
authorized in the special assessment district created by the ordinance and not merely the
wires carrying power to mercury vapor luminaries provided for in plan for assessment
district, and in absence of repeal of ordinance, agreement between power company and
city to jointly violate ordinance by placing lines above ground was void and against public
policy, but that award of attorney fees to taxpayers' attorney was error.
the injunction and declaring agreement to be void, and city and power company appealed.
The Supreme Court, Batjer, J., held that ordinance requiring underground circuits would be
construed to include all wiring in any way connected to steel lighting standards authorized in
the special assessment district created by the ordinance and not merely the wires carrying
power to mercury vapor luminaries provided for in plan for assessment district, and in
absence of repeal of ordinance, agreement between power company and city to jointly violate
ordinance by placing lines above ground was void and against public policy, but that award of
attorney fees to taxpayers' attorney was error.
Affirmed in part, reversed in part and remanded.
Samuel P. Cowley, Jr., V. Gray Gubler, Attorneys for Nevada Power Company; George F.
Ogilvie, Jr., Attorney for City of Las Vegas, of Las Vegas, for Appellants.
Carl J. Christensen, of Las Vegas, for Respondents.
1. Appeal and Error; Judgment.
Where all parties to suit for injunctive and declaratory relief moved for summary judgment, trial court
was at liberty to find that parties had conceded that there remained no material question of fact and that the
case could be determined on a question of law, and where some parties had alleged that there was no
genuine issue as to any material fact, they were precluded from changing their position upon appeal.
2. Electricity; Public Service Commissions.
Statutory authorization for Public Service Commission to prescribe standards for maintenance, use and
operation of electric poles, wires, cables and appliances of all public utilities engaged in business of
furnishing electric power does not infringe upon a governmental subdivision's power to determine
reasonable location of those items belonging to public utilities, and commission was not vested with
original jurisdiction so as to bar jurisdiction of court to enter summary judgment for taxpayer in its suit to
enjoin placement of electrical wires above ground by city and power company in alleged violation of
ordinance. NRS 704.250, 704.780, subd. 1(c).
Any additional installation cost to power company because of judgment of trial court enjoining power
company and city from placing electrical wires on steel electric poles in violation of ordinance requiring
underground circuits was too remote and indirect to rate-making to render judgment objectionable as
amounting to authorization of rate-making by ordinance.
4. Electricity.
Ordinance requiring underground circuits would be construed to include all wiring in any way connected
to steel lighting standards authorized in the special assessment district created by the ordinance and
not merely the wires carrying power to mercury vapor luminaries provided for in plan
for assessment district, and in absence of repeal of ordinance, agreement between
power company and city to jointly violate ordinance by placing lines above ground
was void and against public policy.
ordinance and not merely the wires carrying power to mercury vapor luminaries provided for in plan for
assessment district, and in absence of repeal of ordinance, agreement between power company and city to
jointly violate ordinance by placing lines above ground was void and against public policy.
Ordinance enacted by municipal authorities is as binding upon all municipal authorities as any provision
of statutes or State or Federal Constitution until ordinance is properly repealed, which cannot be done by
resolution or contract.
6. Injunction.
Where city and power company had entered into agreement to violate ordinance by placing power lines
above ground, any citizen of city had standing to seek injunctive relief of abatement of unauthorized
conduct.
In absence of fraud, malice or wantonness, where there were no findings that any of affidavits presented
by city and power company were given in bad faith or solely for purpose of delay in taxpayers' suit to
enjoin city and power company from placing power lines above ground in violation of ordinance, and
where neither damages, nor attorney fees as damages were awarded, award of attorney fees to taxpayers'
attorney was unauthorized. NRCP 56(g); NRS 18.010, subd. 3(a).
OPINION
By the Court Batjer, J.:
On May 3, 1929, the city of Las Vegas and the Southern Nevada Power Company,
predecessor of Nevada Power Company, one of the appellants, entered into a franchise
agreement which granted to the power company the right to locate its electric poles and wires
within the city. The term of the franchise was for 50 years and it was in effect at the time this
litigation arose.
On March 20, 1968, the board of commissioners of the city of Las Vegas adopted
Ordinance No. 1321, establishing seven assessment units to effectuate improvements in the
designated localities. Notice of the proposed assessment districts had been published and
hearings held. In compliance with NRS 271.320(1), the commission implemented the plan for
improvements after determining that less than a majority of landowners in Assessment Units
1, 2, 3, 4, 6, 7 and 8 had filed written or oral protests.
The plan for Unit 4 in Special Assessment District No. 476, the only area here involved,
included the placement of mercury vapor luminaries on steel lighting standards with concrete
bases and underground circuits.
Thereafter on March 5, 1969, the city and Nevada Power Company entered into a
contractual agreement designated Joint Ownership Agreement. Under the terms of that
agreement the parties agreed that the power company would install extensions upon the top of
the steel light poles and string electric wires therefrom. Each contracting party was to retain
50 percent ownership of the poles. The express purpose of this contractual agreement was to
improve the appearance of the neighborhood adjacent to West Charleston Boulevard between
Cashman Drive and Desert Lane, by combining city and power company facilities on one set
of poles.
On April 10, 1969, Cragin Industries, Inc., filed suit for itself and on behalf of all
taxpayers in the city; all property owners abutting West Charleston Boulevard, and on behalf
of all property owners in Assessment Unit 4. The complaint sought a permanent injunction
against the city and power company prohibiting the placement of electrical wires above
ground; a declaration that the Joint Ownership Agreement was null, void, against public
policy and contrary to Ordinance 1321 requiring underground circuits.
In the answers filed by the city and the power company they defended upon the grounds
that the power company, had for 10 years previous to the litigation, maintained overhead
electrical wires on the opposite side of the street and that the franchise agreement afforded
them the right to place their wires in the contested location.
The city and the power company on one side and the respondents on the other moved for
summary judgment. Both the city and the power company contended that there was no
genuine issue as to any material fact to be tried.
Summary judgment was entered in favor of the respondents permanently enjoining the city
and the power company from constructing or maintaining overhead electrical power lines
along West Charleston Boulevard in Las Vegas, Clark County, Nevada; declaring the
agreement between the appellants dated March 5, 1969, to be null, void, against public policy
and of no force and effect, and allowing attorney fees in the amount of $1,500.
1
It is from
this part of the judgment that the appeal is taken.
The appellants contend that the trial court was without jurisdiction to enter the summary
judgment and that in any event summary judgment was improperly granted because there
remained genuine issues of fact to be litigated.
____________________

1
Although the respondents asked that Las Vegas Ordinance No. 1321 creating Las Vegas, Nevada, Special
Assessment District No. 476 be declared null, void and of no force and effect, the district court decreed it to be
lawful and valid.
event summary judgment was improperly granted because there remained genuine issues of
fact to be litigated. However, the only real issue, before this court for consideration, is the
validity of the agreement dated March 5, 1969, between the city and the power company
authorizing the power company to install overhead wiring on extensions of steel light poles in
Special Assessment District No. 476. The district court found the agreement to be null, void,
against public policy and of no force and effect. We agree with the finding of the district
court.
[Headnote 1]
Because all the parties moved for summary judgment, the trial court was at liberty to find
that the parties had conceded that there remained no material question of fact and that the
case could be determined on a question of law. Although the trial court did not specifically
find that there remained no genuine issue of fact, the appellants, in their motions for summary
judgment both alleged that there is no genuine issue as to any material fact and they are
now precluded from changing their position upon this appeal. Fox v. Johnson & Wimsatt,
127 F.2d 729 (U.S.App.D.C. 1942); Steiner v. United States, 36 F.Supp. 496 (D.C.D.C.
1941); Garrett Freightlines Inc. v. United States, 236 F.Supp. 594 (D.C. Idaho 1964).
[Headnote 2]
The appellants' contention that the trial court was without jurisdiction to enter summary
judgment in this case because the Public Service Commission of Nevada was vested with the
original jurisdiction is also without merit. The appellants' reliance on NRS 704.250
2
and
704.780(1)(c)
3
(repealed by Chap. 501, Statutes of Nevada 1969), as well as their reliance on
the cases cited in support of their contention is misplaced.
[Headnote 3]
The power company's claims that the judgment of the trial court enjoining them from
placing their electrical wires on the steel electric poles would affect their rates by forcing
them to expend additional sums and therefore amounted to authorization of rate-making
by ordinance.
____________________

2
704.250: The commission is authorized and directed to prescribe the standards for the maintenance, use
and operation of electric poles, wires, cables and appliances of all public utilities within the state engaged in the
business of furnishing electric power, light and energy.

3
NRS 704.780(1)(c): 1. The commission shall:
. . . :
(c) Upon application by any person or persons either in writing or in person, make such further rules and
regulations regarding the construction, maintenance and operation of the plants and devices used to generate and
distribute electricity in this state as may appear necessary and reasonable to the commission.
to expend additional sums and therefore amounted to authorization of rate-making by
ordinance. Any additional installation cost is so remote and indirect to rate-making that the
power company's claim cannot reasonably be accepted by this court. Cf. York Water Co. v.
City of York, 95 A. 396 (Penn. 1915). Although indirect costs may be appropriately
considered by a public service commission in establishing reasonable rates for a utility, it
does not follow that every action of a governmental subdivision which could conceivably
cause additional costs to a utility amounts to a act of rate-making.
The Public Service Commission of Nevada has no inherent power. Its only source of
power lies in constitutional and statutory provisions, and those provisions are to be strictly
construed. The authorization and mandate of the legislature that the commission should
prescribe standards for the maintenance, use and operation of electric poles, wires, cables,
and appliances of all public utilities within the state engaged in the business of furnishing
electric power, light and energy, or the authorization to make such further rules and
regulations regarding the construction, maintenance and operation of the plants and devices
used to generate and distribute electricity, encompasses the quantity and quality of service.
Included in the quality of service would be broad safety standards. However, this statutory
authorization and direction does not infringe upon a governmental subdivision's power to
determine the reasonable location of plants, electric poles, wires, cables, devices and
appliances of all public utilities.
Although safety is mentioned in the respondents' complaint, it is only in the nature of
comment and the question of safety has not been placed in issue by the pleadings.
We do not reach the respondents' contentions that an abutting property owner must show
special irreparable injury different in kind from that sustained by the general public, in order
to maintain an action challenging a particular use of a public street or that identity or
community of interests is essential to class or representative suit.
[Headnote 4]
Las Vegas Ordinance No. 1321 required underground circuits. That requirement must be
construed to include all wiring any way connected to the steel lighting standards authorized in
the special assessment district and not merely the wires carrying power to the mercury vapor
luminaries.
The power company and the city entered into an agreement authorizing them to jointly
violate Las Vegas Ordinance No. 1321. The trial court correctly found that the agreement
between the city and the power company was null, void and against public policy and
reached the proper result when it enjoined them from placing and maintaining overhead
electric power lines along West Charleston Boulevard in Special Assessment District No.
between the city and the power company was null, void and against public policy and reached
the proper result when it enjoined them from placing and maintaining overhead electric
power lines along West Charleston Boulevard in Special Assessment District No. 476.
In support of their contentions that the trial court erred, the appellants rely strongly on
Fogg v. Nevada C. O. Ry. Co., 20 Nev. 429, 23 P. 840 (1890). However, an examination of
that case reveals that there was no evidence of a violation of a statute or ordinance by the
carrier. The holding of the Fogg case is controlling only where a statute or ordinance has not
been violated. The power company and its predecessor through its franchise agreed to fully
observe all of the ordinances and regulations of the city of Las Vegas which were then in
existence or which would thereafter be adopted, relative to the making of excavations or the
erection of poles or pole lines or the construction and maintenance of conduits in streets,
alleys, or public grounds, or the use of power lines. The power company was bound by the
provision of Ordinance No. 1321 and it was precluded from entering into an agreement with
the city in violation thereof.
[Headnote 5]
When municipal authorities enact an ordinance it is not only binding on those persons and
entities coming within its scope but it is also binding upon all municipal authorities until it is
properly repealed, which cannot be done by a resolution or a contract. Houvouras v. City of
Huntington, 110 S.E. 692 (W.Va. 1922). After Ordinance No. 1321 was enacted it became as
binding upon the city commissioners of Las Vegas as any provision of our statutes or a
provision of the state or Federal Constitution. John L. Humbard Const. Co. v. City of
Middlesboro, 36 S.W.2d 38 (Ky. 1931).
In Meyer v. Seifert, 225 S.W.2d 4 (Ark. 1949), that court said: If the lawmaking body
chooses to include no exceptions in the law, and no provision for authorizing exceptions, then
permits to violate it cannot be granted by anybody, not even by the very lawmaking body that
enacted the law. The law can be changed or set aside only by a new enactment having the
same or greater quality and dignity.
[Headnote 6]
Here any citizen of the city of Las Vegas would have had standing to seek injunctive relief,
inasmuch as the relief sought is the abatement of unauthorized conduct. It was the only just,
speedy and effective remedy available to the respondent.
The power company argues that it is authorized to place its electric transmission poles in
the same area along West Charleston Boulevard where the special assessment district's steel
poles are located. That question is not before us and we do not decide it.
[Headnote 7]
We agree with the appellants' contention that the trial court erred when it awarded fees to
the respondents' attorney. No where does that court set out its reasons for granting those fees.
It could not rely on NRS 18.010(3)(a), because that statute as a condition precedent requires
the award of a money judgment. Cf. Blaine Fashions, Inc. v. Scheri Shop, 84 Nev. 339, 440
P.2d 904 (1968). Here the respondent does not ask for any damages and none was awarded.
In its complaint the respondent did not allege damages, but alleged the necessity for the
services of counsel and simply requested attorney fees.
Had the respondent asked for damages, or the trial awarded attorney fees as an item of
damage (McIntosh v. Knox, 40 Nev. 403, 165 P. 337 (1917)), the award would have been
proper because the institution of this litigation by the respondent resulted from the improper
action of the appellants, and the expenditure by the respondent for the services of counsel was
necessary. American Fed. of Mus. v. Reno's Riverside Hotel, Inc., 86 Nev. 695, 475 P.2d 220
(1970).
Because neither damages nor an award of attorney fees as damages are anywhere present
in this case and only attorney fees as such were awarded, this case does not come within the
reasoning of McIntosh v. Knox, supra, nor our holding in American Fed. of Mus. v. Reno's
Riverside Hotel, Inc., supra.
The trial court could not have relied on any statute or rule in effect in this state pertaining
to injunctions, in support of his award because they are silent on the matter of attorney fees.
Cf. Unity Light & Power Company v. City of Burley, 361 P.2d 788 (Idaho 1961). Without a
finding that any of the affidavits presented by the appellants were given in bad faith or solely
for the purpose of delay, the trial court could not have relied on NRCP 56(g)
4
to justify its
fee award. That court made no finding that any of the respondent's affidavits were presented
in bad faith or solely for the purpose of delay, nor does the record so reveal.
____________________

4
NRCP 56(g): Should it appear to the satisfaction of the court at any time that any of the affidavits
presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall
forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which
the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party or
attorney may be adjudged guilty of contempt.
in bad faith or solely for the purpose of delay, nor does the record so reveal.
Finally if the trial court made its award of attorney fees on the basis of decided cases, its
reliance was misplaced because as a general rule, without statutory authority, attorney fees
will not be awarded in an action for affirmative injunctive relief in the absence of fraud,
malice or wantonness. New York, C. & St. L. R. Co. v. Grodek, 186 N.E. 733 (Ohio 1933);
Capital Electric Power Association v. McGuffee, 83 So.2d 837 (Miss. 1955). Here there is no
allegation nor any finding of fraud, malice or wantonness.
The judgment of the district court is therefore affirmed as to the injunctive relief granted,
but is reversed as to the allowance of attorney fees; and the cause will be remanded for the
entry of judgment in accordance with this opinion.
Collins, C. J., Thompson, J., Sexton, D. J., and Craven, D. J., concur.
____________
86 Nev. 941, 941 (1970) Reynolds v. Warden
GENE REYNOLDS, Appellant, v. WARDEN OF
No. 6226
December 31, 1970 478 P.2d 574
Appeal from order of First Judicial District Court, Douglas County, Richard L. Waters, Jr.,
Judge, denying petition for writ of habeas corpus.
The district court denied the application, and petitioner appealed. The Supreme Court,
Mowbray, J., held that evidence supported conclusion that the petitioner did intelligently
waive constitutional right to counsel.
Affirmed.
Jerry C. Lane, of Carson City, for Appellant.
Harvey Dickerson, Attorney General, of Carson City; John Chrislaw, District Attorney,
and Howard D. McKibben, Deputy District Attorney, Douglas County, for Respondent.
1. Criminal Law.
A defendant's arraignment is critical stage in criminal process at which he has right to counsel.
2. Criminal Law.
Intelligent waiver of constitutional right of accused to be represented by counsel at every critical stage of
criminal proceedings must be tested in light of particular circumstances surrounding case, including
background, experience, and conduct of accused. U.S.C.A.Const. Amend. 6.
3. Habeas Corpus.
Evidence that defendant was advised of nature of charge of statutory rape and asked whether he desired
services of attorney, that defendant said he wished to obtain his own counsel but later advised court by
letter that he did not want attorney, and that trial judge before accepting guilty plea again advised him of
right to have counsel at all stages of proceedings and received affirmative answer from the defendant to
inquiry whether he fully understood nature of the charge supported conclusion that the petitioner
intelligently waived constitutional right to counsel. U.S.C.A.Const. Amend. 6.
4. Courts.
United States Supreme Court decision requiring affirmative showing of voluntariness prior to acceptance
of guilty plea is not to receive retrospective application, and failure to comply with such standards in
accepting guilty plea before the decision was not ground for reversal.
OPINION
The appellant, Gene Reynolds, was charged on July 9, 1966, with the offense of statutory
rape. NRS 200.360, subsection 2.
1
He pleaded guilty to the charge, and the district judge
sentenced him to serve not less than 5 nor more than 10 years in the Nevada State Prison. The
execution of the sentence was suspended, however, and Reynolds was placed on probation
for a 3-year term under the supervision of the Chief Parole and Probation Officer of the State
of Nevada. The district judge, in granting probation, imposed as a condition thereof that
Reynolds avoid associating with girls under the age of 18 years. On the afternoon of his
release from custody, Reynolds visited a girl under 18 years of age. Later, according to the
State Probation Officer's report, he forcibly raped two other females on two separate
occasions.
____________________

1
NRS 200.360, subsection 2:
2. Any person of the age of 16 years or upwards who shall have carnal knowledge of any female child under
the age of 18 years, either with or without her consent, shall be adjudged guilty of the crime of rape and
punished as before provided.
Note: NRS 200.360 was repealed in 1967. See present NRS 200.363, 200.365, 200.373, and 200.375.
other females on two separate occasions. Reynolds' probation was revoked, and he was
committed to the Prison to serve his term of confinement. He then filed this petition for
habeas, claiming (1) that he did not knowingly and intelligently waive his constitutional right
to counsel as guaranteed him in the Sixth Amendment to the United States Constitution and
(2) that the district judge erred by not fully advising him of his rights before accepting his
guilty plea. We reject both contentions, and we affirm the order of the district court denying
Reynolds' post-conviction application for habeas.
1. The Facts.
On July 9, 1966, Reynolds was charged by Information with the offense of statutory rape.
He was taken before the district judge and advised of the nature of the charge and that he
could be imprisoned for a term of not less than 5 years nor greater than life. He was asked
whether he desired the services of an attorney, and he responded that he wished to obtain his
own counsel; he asked time to contact his parents for that purpose. Reynolds stated that he
was 19 years old at that time.
2
Later he advised the court by letter, through the District
Attorney's office, in essence that he did not want an attorney. Reynolds was then brought
before the district court, and the judge again advised him of his right to have counsel present
to assist him at all stages of the proceedings. Reynolds insisted that he was willing to proceed
and wished to do so without benefit of counsel, whereupon the judge had the Information
read to him, advised him of the range of the penalty for the offense charged, and inquired
whether Reynolds fully understood the nature of the charge. Reynolds answered the court that
he understood the charge and wished to plead guilty. The judge then accepted the guilty plea.
A presentence investigation report was ordered and the time for sentencing continued until
the judge would have had an opportunity to consider the report. After reviewing the report,
the judge sentenced Reynolds to a term of not less than 5 years nor more than 10 years in the
Nevada State Prison, but rather than remanding him to the custody of the Warden, the judge
granted Reynolds probation for a period of 3 years. Almost immediately after his release,
Reynolds was taken into custody for violation of his probation, and the previously suspended
sentence was placed in effect. He then challenged his judgment of conviction by commencing
this post-conviction habeas proceeding.
2. The Right to Counsel.
____________________

2
He became 19 on September 17, 1966.
[Headnote 1]
Since Gideon v. Wainright, 372 U.S. 335 (1963), the right to counsel at every critical stage
of the proceedings has been extended to defendants appearing in state courts. A defendant's
arraignment is a critical stage in the criminal process. Hamilton v. Alabama, 368 U.S. 52
(1961); Garnick v. Miller, 81 Nev. 372, 403 P.2d 850 (1965). This right, however, may be
waived by the defendant. United States v. Priest, 409 F.2d 491 (5th Cir. 1969); United States
ex rel. Davis v. McMann, 386 F.2d 611 (2d Cir. 1967), cert. denied, 390 U.S. 958 (1968).
The standards for showing waiver are strict for overcoming the presumption of the
constitutional right to counsel. As the High Court announced in Von Moltke v. Gillies, 332
U.S. 708, 723-724 (1948):
. . . We have said: The constitutional right of an accused to be represented by counsel
invokes, of itself, the protection of a trial court, in which the accusedwhose life or liberty is
at stakeis without counsel. This protecting duty imposes the serious and weighty
responsibility upon the trial judge of determining whether there is an intelligent and
competent waiver by the accused.' To discharge this duty properly in light of the strong
presumption against waiver of the constitutional right to counsel, a judge must investigate as
long and as thoroughly as the circumstances of the case before him demand. The fact that an
accused may tell him that he is informed of his right to counsel and desires to waive this right
does not automatically end the judge's responsibility. To be valid such waiver must be made
with an apprehension of the nature of the charges, the statutory offenses included within
them, the range of allowable punishments thereunder, possible defenses to the charges and
circumstances in mitigation thereof, and all other facts essential to a broad understanding of
the whole matter. (Footnotes omitted.)
[Headnotes 2, 3]
We have reviewed these guidelines in Garnick v. Miller, supra; Bundrant v. Fogliani, 82
Nev. 388, 419 P.2d 293 (1966); Lawrence v. Warden, 84 Nev. 554, 445 P.2d 156 (1968); and
Clark v. Warden, 86 Nev. 104, 464 P.2d 777 (1970). In each case the intelligent waiver
must be tested in the light of the particular circumstances surrounding the case, including the
background, experience, and conduct of the accused. We conclude from the record in this
case that Reynolds did intelligently waive his right to counsel and may not be heard to
complain at this juncture. It is reasonably clear from the record that he was perfectly
satisfied and willing to proceed without counsel when he made his plea.3
from the record that he was perfectly satisfied and willing to proceed without counsel when
he made his plea.
3

3. The Denial of Due Process.
[Headnote 4]
Reynolds also complains that the judge, in accepting his guilty plea, failed to do so within
the standards announced by the Supreme Court of the United States in Boykin v. Alabama,
395 U.S. 238 (1969). Two recent decisions of this court are dispositive of this issue. In Stocks
v. Warden, 86 Nev. 758, 476 P.2d 469 (1970), and in Higby v. Sheriff, 86 Nev. 774, 476 P.2d
959 (1970), we have held that Boykin is not to receive retrospective application and is
effective only after June 2, 1969.
The order denying habeas is affirmed.
Zenoff, Batjer, and Thompson, JJ., and Mann, D. J., concur.
____________________

3
It would appear that he continued to remain satisfied until his probation was revoked, which may have
sparked this habeas application for post-conviction relief.
____________
A SPECIAL SESSION
of the
SUPREME COURT
of the
STATE OF NEVADA
Thursday, December 17, 1970
86 Nev. 949, 949 (1970) Special Session
SPECIAL SESSION OF SUPREME COURT
Thursday, December 17, 1970
A special session of the Supreme Court of the State of Nevada, commencing at 3 p.m.,
Thursday, December 17, 1970.
Present: Chief Justice Collins, Justices Zenoff (presiding), Batjer, Mowbray, and
Thompson; Attorney General-Elect Robert List; District Court Judge Kenneth L. Mann;
former Governor Grant Sawyer; Officers of the Court; Relatives and Friends of Chief Justice
Collins.
____________
Zenoff, J.:
The court will come to order.
May the record show that these proceedings are declared by this court to be a matter of
record, to be spread upon the minutes of the Supreme Court of Nevada and to be incorporated
in the appropriate volume of the Nevada Reports.
We have invited you to be in attendance today to honor the derobing, voluntarily, of our
good friend and associate, Justice Jon Collins. Justice Collins has decided to resign from the
service of the State of Nevada, which he has served well and faithfully for the past twelve
years as a member of the bench and prior to that in the office of the District Attorney of
White Pine County, State of Nevada.
I am pleased to present first our new Attorney General-Elect, a native son of this area, a
young attorney who has made his mark already in this community, Attorney General-Elect
Robert List.
Attorney General-Elect Robert List:
Thank you, Justice Zenoff. May it please the court, and most particularly Your Honor
Justice Collins, honored guests and friends, members of the bar, members of the bench and
other persons here present today: It is a distinct honor for me to be asked to participate in
these ceremonies. I am especially please, not only as the incoming Attorney General of the
State of Nevada, but as the outgoing District Attorney here in Carson City, to comment upon
what I consider to be the tremendous contributions which Justice Collins has made to this
bench and to this State on the part of law enforcement.
Someone once said that Moses was a great law giver, and that when he gave the Ten
Commandments he kept them short and to the point and thereby proved that he was no
regular lawyer.
that when he gave the Ten Commandments he kept them short and to the point and thereby
proved that he was no regular lawyer. I think it is fair to say that our honored Chief Justice
today would fall into that same category.
I had occasion recently to speak with Justice Collins' court reporter for many years,
Mr. Bill Wood of Ely, who told me of the dedication to the bench and to his duties as District
Judge of White Pine County, and I assured Mr. Wood that certainly that same devotion and
hard work and attitude toward his responsibilities had continued here in Carson City. During
the course of the conversation Bill remarked that Justice Collins is one of the few judges who
was literally shot at while serving on the bench, and we recalled that he had the dubious
distinction of presiding over the courtroom in Reno at the time two of our distinguished
colleagues, Mr. Liverato and Mr. Mulcahy, were mortally wounded.
Mr. H. L. Mencken once remarked that a judge is a law student who marks his own
examination papers. I think that in the case of Justice Collins that he has a great many people
both in the State of Nevada and certainly around the country looking over his shoulder as he
has, in effect, marked his own examination papers. Almost universally, it must be agreed,
those papers deserve excellent grades. he has established a reputation, not only in Carson City
and Ely, but throughout the State and throughout the nation. He is a fine writer of legal
opinions and is a distinguished member of this bench.
Finally, as I mentioned in the beginning, I think that he has been a particular credit to
those of us in the law enforcement profession where he started his public service. The district
attorneys of the State, the police chiefs, the sheriffs and, most importantly probably, the man
on the beat, the police officers themselves, have long considered Justice Collins to be a
friend. He is known as one who understands their problems, who knows the facts that
underlie many of the decisions that they have been compelled to make and which have been
reviewed by this court. He is going to be sorely missed by all of us in the law enforcement
profession.
I look forward as Attorney General to working with Justice Collins in his private
practice and know that it will continue to be a happy and rewarding relationship on my part.
Thank you again very much.
Zenoff, J:
Thank you, Mr. List. This court congratulates you and wishes you well when you
embark upon your new duties.
We have with us today the Honorable Pat Mann, District Judge in Tonopah, who has
assisted this court the past week by sitting with us in the absence of Justice Collins. Judge
Mann will grace us with his comments in his personal capacity as an old friend and as the
representative of the district judges of the State of Nevada. Judge Mann.
Judge Kenneth L. Mann:
Thank you, Mr. Chairman, Mr. Chief Justice, Justices of the Supreme Court and
honored guests. The main thing I wanted to tell you, Jon, is that I would assume that you have
been looking forward to the prospect of appearing before the district court judges in the not
too distant future.
Chief Justice Collins:
Maybe, Maybe not.
Judge Mann:
I don't know whether you had any trepidation over that prospect or not, but in the
event that you have, I am here to assure you that you have no cause for alarm.
I, of course, came from Northeastern Nevada, as did Chief Justice Collins, and had the
pleasure of trying a number of cases before him when I was a practicing attorney. I observed
many things that I have tried to adopt in my own approach to the judicial function. I know
that our trials moved along rapidly. I was always very much impressed by the fact that the
then Judge Collins always listened to an attorney, and he always listened to us in a manner
which gave us the feeling that he was interested in what we had to say. Jon, when you had to
rule adversely to a position that we took, those rulings were never made from a position of
arroganceit was just a straight-out ruling that you disagreed and saw things differently. I
really think that's all that any lawyer really asks of a judge on the trial bench; that and the
courtesy with which you presided. So again I say that while we do not like to see you leave
the judiciary, when you come back in the other door in the courtroom that the district judges
are going to treat you with the same thoughtful consideration that you extended to Nevada's
lawyers.
There is one other fact that I would like to mention. Of course, a district court is not
just the presiding judge.
course, a district court is not just the presiding judge. The district court also consists of the
various county clerks, the court reporters, and the deputy clerks who are involved in the
judicial proceedings. At least in the small counties of the State, a trial is still quite an
important event in many communities. As I travel around the State and follow somewhat the
same route that you took on many occasions I am always impressed with the great volume of
good will that you have established with district court personnel. These people have a
genuine affection for you. As you and I both know, these people are not inclined to commend
people if they don't mean it. As I held court in each one of these communities your name
would be mentioned. There was a feeling of real friendship, and sometimes that would talk
about some of the cases that you tried. And, of course, some know of your friendship with my
late uncle, Judge Breen. All of these people have told me how much they hate to see you
leave your present position. Consequently, I do not speak only for the district court judges, I
am honored to represent all of the district court personnel here today and to say that they all
join with me in wishing you the very, very best in the future.
Thank you.
Zennoff, J.:
Thank you, Judge Mann, for your remarks and thank you for your assistance to this
court in our hearings the past week.
We are exceptionally pleased to have with us Grant Sawyer, Former Governor of the
State of Nevada, an old, old friend of Justice Collins, a good dear friend to all of us, and the
Governor who had the wisdom and foresight to appoint Judge Collins to this bench. Governor
Sawyer.
Former Governor Grant Sawyer:
Mr. Presiding Justice, Mr. Chief Justice, Distinguished Members of the Court, the
judiciary, members of the Collins family and friends: I am extremely pleased that Justice
Thompson asked me to be with you today for two reasons particularlyone a very personal
one and one, I suppose, a public one. I have known Jon Collins for so long that when I looked
at his biography here, for a minute I thought he was lying about his age. I always thought he
was older than I was, but I see here he isn't unless he has perpetrated this fraud over all these
years.
I haven't known him since that day, May 7, 1923, when he was born, but I have
known him for a long, long time. I first really got to know Jon in Washington, D.C., when we
were both in law school. We were both employed, if you want to call it that, at the time by
Senator McCarran, who made it possible in large measure for both of us to go to law school.
We worked in his office, or did whatever you do under those circumstances. I don't really
think Judge Collins did very much work. I know that I didn't, but at any rate we got our $90 a
month, or whatever it was. We go through Georgetown Law School. Judge Collins then did
all kinds of things after that. He went to Northwestern and New York University and a
number of other things which I did not do. At any rate, we came back eventually to the State
and although I understand that the judge is of a nonpartisan bent, at the time he was involved
in one of the political parties in our State. It happened to be the same one in which I was
involved. I really never looked at him at all as a lawyer, certainly not as a judgeI did think
basically that he was a pretty good politician, and during those days he was moving around
pretty well. He finally decided to run for office and was elected district attorney at the same
time that I was district attorney in Elko. He didn't stay there too long, because in 1958 he ran
for judge in White Pine County and was elected, and as we all know served there until his
appointment on that day in May of 1966.
I knew Jon so well in May of 1966 that when the vacancy occurred it was with great
trepidation that I announced his appointment. Nevertheless, he was proven all of my fears to
be unfounded. And at this point when he is being derobed, I will have to say that my own
judgment in that appointment was about as sound as any of the decisions that I made during
those eight years. Judge Collins has certainly proved himself a sound, reasoned, totally
incorruptible, quite independent member of the judiciary. He has sat on this bench now from
May 1966. Prior to that time, he served on the bench in White Pine county and has
established a record for himself, not only in the judiciary but as a person that he can look back
upon with great pride.
It is for all these reasons that I am dismayed and sorry as a friend of his, as a member
of the bar and as a Nevadan that he has determined to leave the bench. Those decisions are
for reasons which are personal to him I am sure. The whole State will be deprived of one of
the outstanding public servants in our State. We will miss Judge Collins in his professional
capacity for a long, long time to come.
I am personally very pleased that he has decided to come to Las Vegas and join in the
firm of which I am a member. I have such a high regard for Jon Collins as a person and as a
lawyer that I am looking forward now to having some small share in the next phase of his
distinguished career. So Judge Collins, as a dear friend and great admirer and as just a
member of the bar, I want to say that we appreciate your many contributions to this State. It is
very difficult to express these things, but we are very sad that you are leaving. We wish you
all of the good luck in the world as you leave this bench and start to follow other channels.
Thank you.
Zenoff, J.:
Thank you, Governor Sawyer.
Justice Collins is completing twelve years as a member of the bench of the State of
Nevada. Throughout all of that time, give or take a month or two either way, Justice Jon
Collins, Justice John Mowbray and I have served together as members of the trial bench and
as members of this Supreme Court. Justice Mowbray has graciously consented to act as
spokesman for this court to express appreciation on behalf of this court and on behalf of the
people of the State of Nevada. Justice Mowbray.
Mowbray, J.:
Justice Zenoff and ladies and gentlemen: You know, Shakespeare once wrote parting
is such sweet sorrow, and today at this ceremony we are bidding farewell to Jon Collins who
is leaving the bench where he has served this bench, served over four and a half years, that he
may enter the private practice of the law.
Jon Collins has had a distinguished career in public service. He is a native Nevadan,
born in Ely where he attended the public schools of that city. He earned his bachelor of
science degree from the University of Pennsylvania. He then served with distinction in World
War II in the Navy. Afterward, he attended and was graduated from Georgetown University
Law School. He returned to Nevada and became District Attorney of White Pine County.
When he was in Washington he married the former Rita Barrett, who is here today with their
daughters, and Mr. Collins, his father, is also present. After his service as district attorney he
became the District Judge of the Seventh Judicial District where he served with distinction
until he was appointed to this court.
Seventh Judicial District where he served with distinction until he was appointed to this
court.
Jon Collins has really already earned his niche in the history of Nevada. He has earned
the reputation of a hard-working, serious, absolutely honest, dedicated jurist. Jon Collins has
kept faith with the spirit and the tradition of Nevada. His devotion to his family and to his
community has been unceasing and true to the pioneering spirithe is a man of the highest
ideals. His courage has repeatedly been demonstrated in his insistence upon uncompromising
compliance with those ideals.
Personally, and as a citizen and as a judge, I find it regrettable that he has been
compelled to make this decision and leave the ranks of this court. He will be missed, not
only by his colleagues here on this bench and members of the bar throughout the State, but
also by the people of the State whom he has served so well. So on behalf of this court is my
pleasure at this time, Chief Justice Jon Collins, as a memento of your tenure on this bench, to
present to you a portrait of your court, The Collins Court. We present this to you with our
sincere felicitations, best wishes and God speed. Congratulations.
Chief Justice Collins:
John, thank you very much.
Collins, C. J.:
Mr. Justice Zennoff, Mr. Justice Mowbray, Mr. Justice Batjer and Mr. Justice
Thompson: When I first came to this court nearly five years ago, there were only three of us.
Later, through the wisdom of the Legislature, it was enlarged to five members. The five
justices you now see sitting here comprised the last three-judge Supreme Court of the State of
Nevada and the first five-judge Supreme Court of the State of Nevada. It has been an honor
and a privilege to participate in those historic judicial events in Nevada.
Personally I find it very hard to leave judicial service because I see so much to be
done. I see the growth of this State and the need for understanding of judicial problems. I urge
the judges on this court to work toward improvement in judicial administration. I hope that
the people of Nevada will find it in their hearts to concern themselves with problems which
exist and help in the solution of them.
I would be remiss if I did not introduce to you my lovely wife, Rita, three daughters,
Pamela, Candace and Melissa and my father, Joe, who are here.
Melissa and my father, Joe, who are here. Would you please stand and let everybody to say
hello to you for a minute. [Mrs. Collins, Pamela, Candace, Melissa and Mr. Joe Collins
stand.] Thank you.
Through all of the many interesting and sometimes hard fought cases we have had, I
have learned to love and respect the members of this court. They are hard working lawyers.
We have differed at times in legal philosophy and what we thought the law out to be, but at
least we were able to keep talking and eventually set down in written form for the people of
this State our legal views. I believe we have made a substantial contribution to the law of this
State and perhaps in a small way to the law of this country.
Governor Sawyer, I am most grateful that you were able to take time, personal time, to
come from Las Vegas to Carson City today.
Judge Mann and Mr. List, it is an honor that you gentlemen were here to participate in
this session.
Zenoff, J.:
Thank you, Justice Collins.
Ladies and gentlemen, we thank you for attending this historic affair. We invite you to
join with us in a reception immediately at the conclusion of these proceedings across the hall
in the office of Justice Batjer.
Justice Collins, will you recess and adjourn the court.
Collins, C. J.:
Bailiff.
Bailiff:
The Supreme Court of the State of Nevada stands adjourned until Monday, January
11, 1971, at 9 a.m.
[Proceedings concluded at 3:40 p.m.]

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86 Nev.

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419 NORTH VIRGINIA STREET, RENO, NEVADA

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