Nevada Reports 1967 (83 Nev.) PDF

83 Nev.
1, 1 (1967)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 83
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83 Nev. 1, 1 (1967) Farrell v. State
JUNIOR GLEN FARRELL, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 5016
January 3, 1967 421 P.2d 948
Appeal from denial of Writ of Habeas Corpus by the Eighth Judicial District Court, Clark
County; John F. Sexton, Judge.
The Supreme Court, Collins, J., held that evidence adduced at preliminary examination
was sufficient to warrant binding defendant over for trial on charge of violating statute
dealing with lewdness with child under 14 years of age.
Affirmed.
Tad Porter, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, Edward G. Marshall, District Attorney, and Monte
J. Morris, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Evidence adduced at preliminary examination was sufficient to warrant binding defendant over for
trial on charge of violating statute dealing with lewdness with child under 14 years of age. NRS
201.230.
OPINION
By the Court, Collins, J.:
This is an appeal from an order of the district court denying appellant's discharge on
habeas corpus. We affirm the trial court's ruling.
Appellant urged to the trial court and here insufficiency of evidence to require him to stand
trial. He was charged with violation of NRS 201.230,
1
a felony. The magistrate, after a
preliminary examination, at which appellant was represented by counsel, found a public
offense had been committed, and sufficient cause to believe appellant guilty thereof and
bound him over to the district court for trial.
At the preliminary examination the child was called as a witness. In summary she testified
she was invited into appellant's house, given candy and taken into a bedroom. She further
stated appellant put his hand into her panties, at least twice and maybe three times. Appellant
then gave her two nickels and indicated the matter was to be a secret between them.
____________________

1
201.230 Lewdness with child under 14 years; penalty; conditions for parole, probation.
1. Any person who shall willfully and lewdly commit any lewd or lascivious act, other than acts
constituting the crime of rape and the infamous crime against nature, upon or with the body, or any part or
member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the
lust or passions or sexual desires of such person or of such child, shall be guilty of a felony.
2. For the violation of any of the provisions of this section, the trial judge shall fix, specifically, a
determinate sentence of the person convicted, which shall, in each case, consist of imprisonment in the state
prison for not less than 5 years nor more than 10 years.
3. No person convicted of violating any of the provisions of subsection 1 of this section may be:
(a) Paroled unless a board consisting of the superintendent of the Nevada state hospital, the warden of the
Nevada state prison and a physician authorized to practice medicine in Nevada who is also a qualified
psychiatrist certify that such person was under observation while confined in the state prison and is not a menace
to the health, safety or morals of others.
(b) Released on probation unless a psychiatrist licensed to practice medicine in the State of Nevada certifies
that such person is not a menace to the health, safety or morals of others.
Appellant, when interrogated by a detective of the Las Vegas Police Department,
apparently without objection, admitted the child had been invited into his home and given
candy on the day in question. He further admitted he stooped over to tie his shoelace and may
have accidentally rubbed against her private parts.
This in substance was the evidence before the magistrate upon which he bound appellant
over to the trial court. We said in Beasley v. Lamb, 79 Nev. 78, 378 P.2d 524 (1963), the state
is required only to present enough evidence so as to support a reasonable inference that the
accused committed the offense. Accord, Johnson v. State, 82 Nev. 338, 418 P.2d 495 (1966).
We think that burden has been adequately met here.
Affirmed.
Thompson, C. J., and Zenoff, J., concur.
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83 Nev. 3, 3 (1967) Mears v. State
JAMES BONSALL MEARS, JR., Also Known as JIM SCOTT,
Appellant, v. THE STATE OF NEVADA, Respondent.
No. 5058
January 3, 1967 422 P.2d 230
Appeal from judgment of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Defendant was convicted in the trial court of first-degree murder, and he appealed. The
Supreme Court, Thompson, C. J., held that denial of defendant's request for discovery as to
statements he had made to the law officers, statements of witnesses, photographs, and results
of scientific tests was not an abuse of discretion where none of defendant's statements,
statements of nonexpert witnesses or scientific reports were offered in evidence by the state.
Affirmed.
[Rehearing denied February 15, 1967]
Robert R. Herz and Mack Fry, of Reno, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and Gene
Barbagelata, Deputy District Attorney, Washoe County, for Respondent.
1. Constitutional Law.
Pretrial discovery of the accused's statements is not constitutionally compelled by the Fourteenth
Amendment to United States Constitution. U.S.C.A.Const. Amend. 14.
2. Mandamus; Prohibition.
Writs of mandamus and prohibition may not be employed to review orders granting or denying pretrial
discovery since such orders may be challenged only on appeal from final judgment.
3. Criminal Law.
On appeal from order granting or denying discovery, the appellate inquiry is whether the lower court
abused its discretion in denying discovery before trial.
4. Criminal Law.
Pretrial discovery, at least of defendant's statements, is the better practice. U.S.C.A.Const. Amend. 14.
5. Criminal Law.
Denial in first-degree murder prosecution of discovery by defendant of statements which he had made to
law officers, statements of witnesses, photographs and results of scientific tests was not an abuse of
discretion where none of defendant's statements, statements of nonexpert witnesses or scientific reports
were offered in evidence at trial. U.S.C.A.Const. Amend. 14.
6. Criminal Law.
Reviewing court cannot declare error in denial of certain pretrial discovery and evaluate its significance
when evidence sought to be discovered before trial was not used during trial.
7. Criminal Law.
It is permissible for defense counsel, during trial, to question witnesses as to statements given before trial,
and if it develops that the testifier did record or write a pretrial statement or report, the defendant, upon
request, has right to hear or see it.
8. Criminal Law.
Because a continuance of trial may be necessary to allow defendant to study pretrial statements or reports
made by witnesses among other reasons, it is sometimes the better to practice to allow pretrial discovery of
statements of witnesses, rather than to incur the risk of future trial disruption and delay.
9. Criminal Law.
Denial of pretrial examination in first-degree murder prosecution of a blood-alcohol test, a barbiturate
test, the autopsy and a ballistics test was not prejudicial error where prosecutor showed defense counsel the
blood-alcohol and barbiturate reports even though defense counsel's motion for production of
blood-alcohol, barbiturate and ballistics tests was denied on ground that he could have subpoenaed those
responsible for them.
10. Counties.
Where defendant charged with first-degree murder was allowed $500 for psychiatric examination, $250
for neurological examination and $100 for a psychological examination, failure to allow an additional sum
for general investigative purposes was not an abuse of discretion.
11. Criminal Law.
Denial of continuance to defendant charged with first-degree murder on ground that newspaper publicity
concerning statewide soft on crime controversy and stories about other notorious criminal cases created
an unfavorable climate for trial was not an abuse of discretion absent a substantial nexus between the
publicity and defendant's case.
12. Criminal Law.
Evidence of other offenses committed by defendant is excluded unless relevant to prove the commission
of the crime charged.
13. Criminal Law.
When defense of insanity is interposed, any words or conduct shedding light on that issue are admissible,
even though they disclose other criminal acts of the defendant.
14. Criminal Law.
Disclosure of other crimes by defendant interposing defense of insanity is relevant to his mental condition
and is essential information to formulation of a reliable expert opinion.
15. Criminal Law.
Where evidence of prior offenses committed by defendant asserting defense of insanity is adduced at
trial, jury should be instructed that purpose of evidence is to show information upon which expert opinion
as to defendant's sanity is based, and is not to be considered as proof that such other offenses were
committed.
16. Criminal Law.
Statute providing that when written charges have been requested and given or refused or given by court
on its own motion, counsel may not object to given instruction or except to failure to give a requested
instruction in order to preserve point for appellate review does not relieve counsel of duty to request that a
desired instruction be given, and the failure to do so normally waives right to complain on appeal, unless
the instruction is so necessary to the case that the court, sua sponte, must be sure that it is given. NRS
175.515.
17. Criminal Law.
Instruction that evidence adduced as to prior offenses committed by defendant asserting defense of sanity
is admitted to show information upon which expert opinion as to sanity is based and is not to be considered
as proof that such other offenses were committed need not be given unless requested by counsel. NRS
175.515.
18. Criminal Law.
Where defendant charged with first-degree murder asserted defense of insanity and did not request that
jury be instructed that purpose of evidence adduced from psychiatrist as to his prior offenses was to show
information upon which the expert opinion of his sanity was based and was not to be considered as proof
that such other offenses were committed, he could not complain on appeal of failure to give instruction.
NRS 169.110, 175.515.
19. Criminal Law.
Where record in first-degree murder prosecution did not establish that defendant was without counsel
when examined by psychiatrist who testified for state, complaint that such was the fact was not considered
on appeal.
20. Criminal Law.
M'Naghten test of insanity is not repudiated.
21. Arrest; Criminal Law.
Where defendant charged with murder was arrested by officer who had gone to defendant's trailer
pursuant to a police radio broadcast and record did not show what information radio communication gave
arresting officer, but arresting officer was accompanied by another officer who had originally attempted to
take defendant into custody at scene of fatal shooting and from whom defendant had temporarily escaped,
the composite knowledge of the officers at the arrest scene established probable cause for arrest, so that
seizure of gun found in defendant's trailer when they arrested him was incident to a lawful arrest and was
admissible.
22. Criminal Law.
Comment in closing summation by prosecutor in first-degree murder prosecution that because of
defendant's inconsiderate and selfish acts, there was a little girl who would not be able to hear her daddy
say Merry Christmas this year or any year was not appropriate and should not have been made but was
not reversible error in absence of objection of its affecting defendant's substantial rights.
23. Criminal Law.
Issue of whether denial of challenge for cause to one of jurors was error was not presented for appeal
where that juror was later excused peremptorily and record did not show that there still remained on jury a
juror whom defendant had unsuccessfully attempted to challenge for cause.
OPINION
By the Court, Thompson, C. J.:
This appeal is from a conviction of first degree murder and the sentence of death. On
March 20, 1965, Mears entered a Safeway store in Sparks, Nevada, and walked to the
window of the cashier's booth. He drew a pistol, pointed it at the clerk, and told her to lay it
all right there. The clerk turned and ran toward the manager's office. One shot was fired,
narrowly missing her. Mears ran out of the entrance door. Outside the store, and while
fleeing, Mears fired two shots toward the gathering crowd at the store entrance. The second
shot struck Howard Hawthorne in the chest, fatally wounding him.
An off-duty Sparks policeman saw Mears run to a car and throw himself onto the floor in
the rear.
throw himself onto the floor in the rear. A woman began driving the car from the parking
area. The officer identified himself and ordered her to stop. She did so, the officer approached
with revolver drawn, and ordered the occupants from the car. They slowly got out, but when
the officer's attention was momentarily diverted, Mears jumped into the driver's seat and sped
away. Although the officer fired several shots and attempted pursuit in his own car, Mears
managed to elude him. The car was found a short time later, abandoned in an alley in
downtown Sparks.
Officers of the Sparks Police department were informed by the radio dispatcher of the
assailant's suspected residenceSpace 49 of the Dude Corral Trailer Park, Sparks. They went
there and placed Mears under arrest as he came to the door in response to their request. The
police searched the trailer and found a .25 caliber revolver which they seized. Mears was
charged with murder. His defense was insanity. Nine errors are assigned. Three of them
concern the lower court's denial of certain pretrial motions; the others relate to occurrences
during trial.
1. Before trial the defendant sought to discover statements which he had made to law
officers, statements of witnesses, photographs, and the results of scientific tests, if any. The
discovery request was premised upon the demands of due process.
[Headnote 1]
The United States Supreme Court has held that pretrial discovery of the accused's
statements is not constitutionally compelled by the Fourteenth Amendment. Leland v.
Oregon, 343 U.S. 790 (1952); Cicenia v. Legay, 357 U.S. 504 (1958). The court inferentially
criticized the denial of discovery by noting that it may be the better practice to allow it. It
seems that discovery at trial, coupled with a continuance if necessary, is probably adequate to
meet constitutional requirements. Traynor, Ground Lost and Found in Criminal Discovery,
39 N.Y.U.L.Rev. 228, 230 (1964).
[Headnotes 2-5]
Unlike California, where the writs of mandamus and prohibition have been employed to
review orders granting or denying pretrial discovery (Jones v. Superior Court, 372 P.2d 919
(Cal. 1962); Powell v. Superior Court, 312 P.2d 698 (Cal. 1957), Nevada has refused that
relief. Pinana v. District Court, 75 Nev. 74, 334 P.2d 843 (1959); Marshall v. District Court,
79 Nev. 280, 382 P.2d 214 (1963). Here, as in the federal courts, orders granting or denying
discovery may be challenged only on appeal from final judgment {Shelby v. District Court,
S2 Nev. 204
only on appeal from final judgment (Shelby v. District Court, 82 Nev. 204, 414 P.2d 942
(1966), dictum) and the appellate inquiry is whether the lower court abused its discretion in
denying discovery before trial. We agree with the thought of the United States Supreme Court
that pretrial discovery (at least, of the defendant's statements) is the better practice. Our view
in this regard, however, does not resolve the issue now before uswhether the trial court was
guilty of an abuse of discretion in denying the requested discovery before trial. We have
concluded that an abuse of discretion does not appear from this record.
[Headnote 6]
We so conclude because none of the defendant's statements was offered in evidence at the
trial. We may not declare error and evaluate its significance when the evidence sought to be
discovered before trial was not used during trial.
[Headnotes 7, 8]
Neither may we find an abuse of discretion regarding the pretrial denial of the request to
inspect and copy the statements of non-expert witnesses. If trial testimony was received from
lay witnesses who had given statements before trial, the record does not disclose that fact. It
is permissible for defense counsel, during trial, to question the witnesses on this point. If it
develops that the testifier did record or write a pretrial statement or report, the defendant,
upon request, has the right to hear or see it. Walker v. State, 78 Nev. 463, 376 P.2d 137
(1962); State v. Bachman, 41 Nev. 197, 168 P. 733 (1917). If time is required for study, a
continuance of the trial may be necessary. For this reason, and others, it is sometimes the
better practice to allow pretrial discovery of the statements of witnesses, rather than to incur
the risk of future trial disruption and delay. In the instant case, defense counsel did not seek
discovery during trial. They did not inquire if the testifier had given a statement before trial.
We do not know whether such pretrial statements exist. There is no base from which to
evaluate the trial court's exercise of discretion in denying discovery.
[Headnote 9]
The scientific reports requested before trial were not offered in evidence by the state.
These included reports of a blood-alcohol test, a barbiturate test, the autopsy, and a ballistics
test. Before presenting the defense case, counsel moved for production of the blood-alcohol,
barbiturate and ballistics tests. That motion was denied. The court reasoned that defense
counsel could have subpoenaed those responsible for them.
Nevertheless, the prosecutor did show defense counsel the blood-alcohol and barbiturate
reports. In these circumstances, the denial of pretrial examination may not be deemed
prejudicial error.
[Headnote 10]
Next, the defendant complains about the trial court's refusal to order the county to pay
money for investigation expenses. Mears admitted the homicide. His defense was insanity.
The lower court did allow $500 for a psychiatric examination, $250 for a neurological
examination, and $100 for a psychological examination. Thus, money for investigation,
information and testimony relevant to the sole defense of insanity was provided. It is not
suggested that these allowances were inadequate. In this context, the failure to allow an
additional sum for general investigation purposes was not an abuse of discretion.
[Headnote 11]
Shortly before trial the accused asked for a continuance. He claimed that newspaper
publicity concerning the statewide soft on crime controversy, and stories about other
notorious criminal cases, created an unfavorable climate for his trial. None of the publicity
concerned his case. Absent a substantial nexus between the publicity and the case at bar, we
cannot find an abuse of discretion in denying a continuance. Cf. Hanley v. State, 80 Nev. 248,
391 P.2d 865 (1964).
2. In rebuttal the state offered psychiatric opinion testimony to controvert the opinion
evidence given by the defense to establish insanity. In relating the personal background and
history of the defendant, the state's psychiatrist mentioned prior criminal offenses which the
defendant had committed. The judge struck that reference in the testimony of one of the
psychiatrists, told the jury to disregard it, and denied a defense motion for mistrial. The
testimony of the other psychiatristAlso with this he has had sociopathis, antisocial traits,
in which he has committed a numberquite a number of offenses.was allowed to remain
in the record over objection. This is assigned as prejudicial error.
[Headnotes 12, 13]
It is true, as the appellant suggests, that Nevada follows the rule of exclusion concerning
evidence of other offenses. We exclude such evidence unless relevant to prove the
commission of the crime charged. Tucker v. State, 82 Nev. 127, 412 P.2d 970 (1966), and the
many Nevada cases therein cited. That rule, however, does not touch the issue here presented.
We are not concerned in this case with proving the commission of the homicide.
homicide. It is admitted that the defendant killed Hawthorne. He sought to escape legal
responsibility for the homicide because of insanity. When that defense is interposed, any
words or conduct shedding light on that issue are admissible, even though they disclose other
criminal acts of the defendant. Brothers v. State, 183 So. 433 (Ala. 1938); Grammer v. State,
196 So. 268 (Ala. 1940); Vol. 2, Wigmore, Evidence 228 (3d ed. 1940).
Subordinately it is contended that the court should have given a limiting instruction that
the jury should not regard the testimony as evidence of the truth of the defendant's statements
so related by the psychiatrist. This contention rests upon the California decisions of In re
Spencer, 406 P.2d 33 (Cal. 1965) and People v. Nicolaus, 409 P.2d 193 (Cal. 1966) and, we
think, is sound.
1

[Headnotes 14, 15]
As we have indicated, the defendant's disclosure of other crimes is relevant to his mental
condition, and is essential information to the formulation of a reliable expert opinion. It is
also apparent that such information carries prejudice, for should the jury find against the
defense of insanity, its awareness of the past criminal activity of the accused may weigh
heavily in fixing penalty. For this reason the jury should be instructed that the purpose is to
show the information upon which the expert opinion is based, and is not to be considered as
proof that such other offenses were committed. That instruction was not given in this case,
apparently because it was not requested.
[Headnotes 16-18]
NRS 175.515,
2
which we considered in Harvey v. State, 78 Nev. 417, 375 P.2d 225
(1962) and Graves v. State, 82 Nev. 137, 413 P.2d 503 (1966), applies to written charges
which have been requested and given, or refused, or to charges given by the court on its own
motion. In such event, counsel need not object to the given instruction, or except to the failure
to give a requested instruction, in order to preserve the point for appellate review.
____________________

1
The California cases dealt with incriminating statements made by the defendant to the psychiatrist, in the
absence of counsel, and concerning the crime for which he was on trial. The rationale, however, has equal
application to statements about other offenses.

2
NRS 175.515 reads: When any written charge has been requested and given, or refused, or given by the
court of its own motion, the question or questions contained in such charge need not be excepted to, but the
written charge, given or refused, with the endorsements showing the action of the court, shall form part of the
record, and any error in the decision of the court thereon may be taken advantage of on appeal in like manner as
if presented in a bill of exceptions.
give a requested instruction, in order to preserve the point for appellate review. The statute
does not, however, relieve counsel of the duty to request that a desired instruction be given.
The failure to so request normally waives the right to complain on appeal, unless the
instruction is so necessary to the case that the court, sua sponte, must be sure that it is given.
In our view the limiting instruction we have been discussing need not be given unless
requested by counsel. Since the request was not made he may not now complain.
3

[Headnote 19]
Complaint is made that the defendant was without counsel when examined by a
psychiatrist who testified for the state. Since the record does not establish this fact we will not
consider the point.
[Headnote 20]
3. The remaining assignments of error may be resolved rather quickly. (a) We are once
more asked to repudiate the M'Naghten test of insanity and substitute another. In Bean v.
State, 81 Nev. 25, 36, 398 P.2d 251, 257 (1965), we wrote: Though aware that the standard
is the subject of an extensive assault by medical authority, we are not yet persuaded that
either medical science or the law has fashioned a preferable guide for trial purposes. Perhaps
future developments will cause us to change our view. At this date, however, we adhere to the
expression in Bean v. State, supra.
(b) The trial court, over objection, allowed the state to introduce in evidence the .25 caliber
revolver which the police officer found in the defendant's trailer when they arrested him. The
contention is that the arrest of Mears was without probable cause and, consequently, illegal.
Therefore, the seizure of the gun cannot be sanctioned on the theory that it occurred incident
to a lawful arrest.
[Headnote 21]
The predicate for the contention that the arrest was without probable cause is that the
arresting officer had gone to the trailer pursuant to a police radio broadcast, and the record
does not show what information that radio communication gave the arresting officer. The
arresting officer was not alone. He was accompanied by the officer who had originally
attempted to take Meara into custody, and from whom Mears had temporarily escaped.
____________________

3
Had the instruction been requested and refused, we would be called upon to decide whether the error was
harmless or prejudicial. NRS 169.110.
had temporarily escaped. The composite knowledge of the officers at the arrest scene
established probable cause for arrest. Miller v. United States, 356 F.2d 63 (5 Cir. 1966); State
v. Fioravanti, 215 A.2d 16 (N.J. 1965). The seizure of the gun was incident to a lawful arrest.
[Headnote 22]
(c) During his closing summation to the jury the prosecutor made a comment carrying
emotional appeal.
4
Defense counsel did not object. The comment was not appropriate and
should not have been made. However, the absence of objection and our review of the record
cause us to conclude that the substantial rights of the accused were not affected by the
prosecutor's remark. Kuk v. State, 80 Nev. 291, 392 P.2d 630 (1964); Dotson v. State, 80
Nev. 42, 389 P.2d 77 (1964).
[Headnote 23]
(d) Finally it is suggested that prejudicial error occurred when the trial court refused to
allow a challenge for cause to one of the jurors who was later excused by peremptory
challenge. The defendant used all of his peremptory challenges. We need not pass upon
whether the court ruled correctly in denying the challenge for cause, since the objectionable
juror was later excused peremptorily (cf. People v. Wilkes, 284 P.2d 481 (Cal. 1955)) and the
record does not show that there still remained on the jury a juror whom the defendant had
unsuccessfully attempted to challenge for cause. Cf. State v. Raymond, 11 Nev. 98 (1876);
Bryant v. State, 72 Nev. 330, 305 P.2d 360 (1956).
The defendant is an indigent and has been represented throughout by court-appointed
counsel. We commend them for their diligent service. The lower court is directed to give
them the certificate specified in subsection 4 of NRS 7.260 in order that they be compensated
for services on appeal.
Affirmed.
Collins and Zenoff, JJ., concur.
____________________

4
The statement: There is no humor in this case. A man lies dead. A little girl is fatherless and a woman is
without her husband because of the selfish acts, the inconsiderate, selfish acts of this defendant. There was a
little girl here that will not be able to hear her daddy say, Merry Christmas' this year, or any year in the future
because of the inconsiderate, selfish act of this defendant. By your verdict you can denounce this conduct. There
is only one verdict, ladies and gentlemen, that you can return that will insure that another woman will not be
made a widow, that another little girl will not have to go through life without the loving arms of her father.
____________
83 Nev. 13, 13 (1967) Galloway v. Truesdell
WILLIAM W. GALLOWAY, Duly Elected and Acting Treasurer of Clark County, a Political
Subdivision of the State of Nevada, Appellant, v. ROBERT I. TRUESDELL, Respondent.
No. 5173
January 5, 1967 422 P.2d 237
Appeal from an order of the Eighth Judicial District Court, Clark County, refusing to grant
an injunction; John F. Sexton, Judge.
Action for a declaratory judgment, injunction and recovery of fine and forfeiture pursuant
to statutes relating to solemnization of marriages by unauthorized persons. From an order of
the lower court refusing to grant an injunction, the plaintiff appealed. The Supreme Court,
Craven, D. J., held that the statute requiring an ordained minister to apply to a district judge
for a certificate to perform marriages and giving district judge authority to determine
qualifications of minister and to grant, deny or subsequently revoke certificate was
unconstitutional as imposing nonjudicial powers and functions upon district judges.
Affirmed.
Edward G. Marshall, District Attorney, John A. Porter, Chief Civil Deputy District
Attorney, of Las Vegas, for Appellant.
Mendoza, Foley and Garner, of Las Vegas, for Respondent.
Under doctrine of separation of powers the independence of one branch from the others and
requirement that one department cannot exercise powers of the other two is fundamental in our system of
government. Const. art. 3, 1; art. 4, 1 et seq.; art. 5, 1 et seq.; art. 6, 1.
Legislative power, which, unless limited, is practically absolute, is power of law-making
representative bodies to frame and enact laws and to amend or repeal them. Const. art. 4, 1 et seq.
Unless there are specific constitutional limitations to the contrary, statutes are to be construed in favor
of legislative power.
The executive power extends to carrying out and enforcing laws enacted by Legislature and, in
absence of constitutional limitation, Legislature may state which actions the executive shall or shall not
perform. Const. art. 5, 1 et seq.
Judicial power is the authority to hear and determine justiciable controversies and includes the authority
to enforce any valid judgment, decree or order. Const. art. 6, 1, 6.
District judges are constitutionally established judicial officers and the instrumentalities by whom the
judicial power is exercised and through whom District Courts function. Const. art. 3, 1; art. 6, 1, 5,
6.
Judicial function of district judges and District Courts is the exercise of judicial authority to hear and
determine questions in controversy that are proper to be examined in District Courts as expressly
authorized in the jurisdictional provision of District Courts in the Constitution, art. 6, 6, and it also
includes the authority to exercise functions that can be subsumed under and are incidental to the court's
jurisdiction; judicial function, however, also includes the authority to exercise powers that are reasonably
incidental to the fulfillment of, and that are inherent in, the much broader judicial powers provisions in
the Constitution, art. 3, 1; art. 6, 1. Const. art. 3, 1; art. 6 1, 5, 6.
Generally, judicial power cannot include powers or functions that do not stem from basic judicial powers
and functions set forth in the Constitution and cannot include power or function that must be derived from
basic legislative or executive powers. Const. art. 3, 1; art. 6, 1, 5, 6.
Ministerial functions are inherent and incidental powers of the legislative, executive and judicial
departments and are methods of implementation to accomplish or put into effect basic function of each
department. Const. art. 3, 1.
The term quasi judicial should properly refer only to a legislative or executive activity as it is an
activity which seems to be judicial in nature but in reality is not.
Police power of state with respect to regulating and licensing public utilities and businesses, including
power of granting or revoking licenses, permits and certificates, is exclusively legislative.
12. Marriage.
Legislature has power to provide in statutes the qualifications and licensing requirements of all persons
thought necessary to legally perform the marriage ceremony.
13. Constitutional Law; Marriage.
Imposing requirement that person who performs marriage ceremony must be certified so to do is proper
exercise of legislative power, and this power is subject to judicial control only in case of violation of a state
or federal constitutional provision.
Generally, Legislature may not confer or impose powers nonjudicial in character upon the judiciary.
Const. art. 3, 1.
Legislature may grant administrative or ministerial powers or functions to courts and judges, but these
powers or functions must be reasonably incidental to fulfillment of judicial duties. Const. art. 3, 1; art.
6, 6.
The Constitution is to be interpreted in light of changing conditions, but there cannot be a departure from
basic principles contained therein.
17. Statutes.
The maxim expressio unius est exclusio alterius, the expression of one thing is the exclusion of another,
is applied in Nevada.
It was intent of Constitution to give only judicial power to the courts. Const. art. 3, 1; art. 6, 6.
19. Constitutional Law; Marriage.
Statute requiring an ordained minister to apply to district judge for certificate to perform marriages and
giving district judge responsibility for determining qualifications of minister and to act in granting or
denying or subsequently revoking certificate is unconstitutional because it imposes nonjudicial powers and
functions upon district judges. NRS 122.070; Const. art. 3, 1; art. 6, 6.
Courts must maintain the constitutional supremacy of the doctrine of separation of powers; legislature
may not confer nor impose non-judicial powers upon judges or courts, and courts must not encroach upon
prerogatives of other branches of government nor assume nor exercise any powers or functions that must be
classified as non-judicial. Const. art. 3, 1.
OPINION
By the Court, Craven, D. J.:
The question presented for determination on this appeal is the constitutionality of Section
122.070 of the Nevada Revised Statutes, which provides as follows:
122.070 Licensed, ordained ministers may solemnize marriages; certificates of
permission to perform marriages; issuance, revocation; temporary replacements.
1. Any licensed or ordained minister in good standing within his denomination, whose
denomination, governing body and church, or any of them, are incorporated or organized and
established in the State of Nevada, may join together as husband and wife persons who
present a marriage license obtained from any county clerk of the state, if such minister first
obtains a certificate of permission to perform marriages as provided in this section.
this section. The fact that a minister is retired shall not disqualify him from obtaining a
certificate of permission to perform marriages if, prior to such retirement, he had active
charge of a congregation within this state for a period of at least 3 years.
2. Any application for such certificate shall be filed by the minister with the judge of the
district court of the county in which such minister resides, and shall contain information
showing the date of licensure or ordination, or both, of the minister, the name of the
denomination, governing body and church, or any of them, with which he is affiliated. Each
application shall be accompanied by a copy of the denominational standing of such minister,
a copy of which the district judge shall file with the secretary of state.
3. For the purpose of determining the qualifications of any minister who has filed an
application for a certificate, the district judge with whom such application has been filed may
request that:
(a) The congregation of such minister furnish any evidence which the judge considers
necessary or helpful, and the congregation shall furnish such evidence.
(b) The district attorney and the sheriff conduct an investigation of the background and
present activities of such minister.
4. If the judge of the district court approves an application, he shall notify the secretary
of state of such approval within 10 days thereafter. After receipt of such notification, the
secretary of state shall immediately certify the name of such minister to each county clerk and
county recorder in the state.
5. A certificate of permission shall be issued only for the period of July 1 to June 30,
inclusive, and if issued after July 1 shall be valid only until the following June 30. All
certificates may be renewed annually.
6. If any minister to whom a certificate of permission has been issued severs ties with his
congregation or moves from the county in which his certificate was issued, the certificate
shall expire immediately upon such severance or move, and the trustee, warden or other
officer of the congregation authorized to speak for it shall, within 5 days following the
severance or move, give written notice of the fact of such severance or move to the district
judge who issued the certificate.
7. Any district judge who has issued a certificate of permission to a minister may revoke
such certificate for good cause shown after hearing.
8. If the certificate of any minister is revoked as provided in subsections 6 and 7, the
district judge shall inform the secretary of state of such fact, and the secretary of state
shall immediately remove the name of such minister from the list and shall notify each
county clerk and county recorder of such fact.
in subsections 6 and 7, the district judge shall inform the secretary of state of such fact, and
the secretary of state shall immediately remove the name of such minister from the list and
shall notify each county clerk and county recorder of such fact.
9. A temporary replacement for a licensed or ordained minister certified pursuant to this
section may solemnize marriages pursuant to subsection 1 during such time as he may be
authorized to do so by a district judge in the county in which he is a temporary replacement,
for a period not to exceed 90 days. The minister whom he temporarily replaces shall provide
him with a written authorization which shall state the period of time during which it is
effective.
More particularly the question is whether or not NRS 122.070 grants powers to, and
imposes duties upon, District Judges that are non-judicial in character, not incidental to the
Judicial function, and are therefore unconstitutional and invalid delegations of ministerial
powers and duties.
In the Court below appellant sought a Declaratory Judgment, Injunction and Recovery of
Fine and Forfeiture pursuant to Sections 122.070, 122.260
1
and 122.270
2
of the Nevada
Revised Statutes. Appellant alleged the Respondent had represented himself to be an ordained
Minister of the Nevada Mission Fellowship; that he actually performed civil marriage
ceremonies in the Chapel of the Bells located at 2233 Las Vegas Boulevard South, Las
Vegas, Nevada, without any legal authority because he had failed to obtain a certificate of
permission to perform marriages as required by, and in violation of, the statute (NRS
122.070).
Respondent admitted performing marriage ceremonies without following the statutory
steps outlined to obtain a certificate of permission to perform marriages. An Order to Show
Cause was issued, ordering the Respondent to appear before the District Court, and show
cause why he should not be enjoined from performing civil marriages in Clark County,
Nevada; why he should not be adjudged guilty of violation the statutes relating to the
performance of civil marriage ceremonies and fined in the sum of $500 for every
unauthorized ceremony; and why he should not be jailed until he paid such fine and
forfeiture.
____________

1
NRS 122.260. Solemnization of marriage by unauthorized person; solemnization where legal impediment
known: Penalty. If any person shall undertake to join others in marriage, knowing that he is not lawfully
authorized so to do, or knowing of the existence of any legal impediment to the proposed marriage, he shall be
punished by a fine not exceeding $500 and shall be imprisoned in the county jail until the fine is paid.

2
NRS 122.270. Recovery of forfeitures by civil actions. In all cases when a violation of the provisions of
this Chapter is not declared a misdemeanor or gross misdemeanor, the fines and forfeitures shall be recovered by
a civil action, to be brought by any person aggrieved or by the county treasurer.
he should not be adjudged guilty of violation the statutes relating to the performance of civil
marriage ceremonies and fined in the sum of $500 for every unauthorized ceremony; and why
he should not be jailed until he paid such fine and forfeiture.
In its decision the Court below held that the statutory regulations and directives to be
followed to secure a certificate of permission to perform marriages were contrary to the
provisions of the Nevada Constitution defining the jurisdiction and judicial functions of the
District Courts.
This appeal is taken from the order holding the statute unconstitutional, and refusing to
grant an injunction.
I.
The division of powers is probably the most important single principle of government
declaring and guaranteeing the liberties of the people. This subject is thoroughly and
comprehensively explored by the late Honorable Arthur T. Vanderbilt in his book, The
Doctrine of the Separation of Powers (Pub. 1953 by University of Nebraska Press).
A more worthwhile recommendation to judges and lawyers alike cannot be made to
convince all who will read the book than that the division of powers is the most important
principle of government. The booklet embodies three lectures given by the late Honorable
Arthur T. Vanderbilt, former Chief Justice of the Supreme Court of New Jersey.
In the Foreword of the booklet it is stated: * * * The extent to which a country can
successfully resolve the conflict between the three branches of government is to a very great
extent the measure of that country's capacity for self-government.
In the Introduction the author states: In recent decades it has been fashionable in certain
quarters to pronounce funeral orations over the remains of the doctrine [of separation of
powers], but despite these attempts at burial it retains a remarkable vitality that tends to
increase the more it is threatened. Instinctively people seem to sense in its violation, even in
hours of danger, a threat to much that they hold dear in their daily life and they recognize in
its observance the possibility of attaining the reign of law which alone can insure the freedom
so essential to both the individual and to our civilization. * * *
* * * Individual freedom and the progress of civilization are attainable, but only if each of
the three branches of government conforms to the constitutional principles of the separation
of powers. This they will do only if the people so will. The problem in the first instance thus
becomes one of popular education in the fundamental principles of free government.
problem in the first instance thus becomes one of popular education in the fundamental
principles of free government. Among these principles there is none more significant today
than the doctrine of the separation of powers. (Bracketing added.)
The Constitution of the State of Nevada distributes governmental powers into the
Legislative, Executive and Judicial departments; and each department is separate from the
others. Article 3, Section 1, of the Nevada Constitution provides: The powers of the
Government of the State of Nevada shall be divided into three separate departments,the
Legislative,the Executive and the Judicial; and no persons charged with the exercise of
powers properly belonging to one of these departments shall exercise any functions,
appertaining to either of the others, except in the cases herein expressly directed or
permitted. (Emphasis supplied.)
This section establishes the concept of tripartite government. The Constitution confirms
and firmly fixes this principle of separation of governmental powers by creating, in Article 4,
Article 5 and Article 6, a legislature, an executive and a judiciary. In the opening words of
each Article's first section the whole power there granted is lodged in that branch, e.g., Article
6, Section 1, states, The Judicial power of this State shall be vested in a Supreme Court,
District Courts, and in Justices of the Peace. * * *
[Headnote 1]
The separation of powers; the independence of one branch from the others; the
requirement that one department cannot exercise the powers of the other two is fundamental
in our system of government.
Montesquieu has recited the reasons for the desirability of having the governmental
powers separate. In City of Enterprise v. State, 69 P.2d 953 (Ore. 1937), he is quoted: * * *
there can be no liberty * * * if the power of judging be not separated from the legislative and
executive powers. * * * Were the power of judging joined with the legislative, the life and
liberty of the subject would be exposed to arbitrary control, for the judge would be the
legislator: Were it joined to the executive power the judge might behave with all the violence
of an oppressor.
II.
This appeal involves a consideration of what constitutes legislative executive and judicial
powers.
[Headnotes 2, 3]
Briefly stated, legislative power is the power of law-making representative bodies to frame
and enact laws, and to amend or repeal them. This power is indeed very broad, and, except
where limited by Federal or State Constitutional provisions, that power is practically absolute.
Unless there are specific constitutional limitations to the contrary, statutes are to be construed
in favor of the legislative power. In the Matter of Platz, 60 Nev. 296, 108 P.2d 858 (1940).
See also: Hard v. Depaoli, 56 Nev. 19, 41 P.2d 1054 (1935); Moore v. Humboldt County, 48
Nev. 397, 232 P. 1078 (1925); State v. Lincoln County Power Dist., 60 Nev. 401, 111 P.2d
528 (1941).
[Headnote 4]
The executive power extends to the carrying out and enforcing the laws enacted by the
Legislature. Except where there is a constitutional mandate or limitation, the Legislature may
state which actions the executive shall or shall not perform.
[Headnotes 5-7]
Judicial Power is the capability or potential capacity to exercise a judicial function. That
is, Judicial Power is the authority to hear and determine justiciable controversies. Judicial
power includes the authority to enforce any valid judgment, decree or order. A mere naked
power is useless and meaningless. The power must be exercised and it must function to be
meaningful. A District Judge is a constitutionally established judicial officer (Const. Art. 6,
Sections 1, 5 and 6), and the instrumentality by whom the Judicial Power is exercised and
through whom District Courts function. A judicial function is the exercise of judicial
authority to hear and determine questions in controversy that are proper to be examined in a
court of justice. Judicial function includes the right to exercise any lesser power that can be
subsumed under, or is included as an integral part of, the broader heading of Judicial
Power; that is, any power or authority that is inherent or incidental to a judicial function is
properly within the realm of judicial power, as described above. The incidental power must
relate back and be directly derived from the basic judicial power and the basic judicial
function, as described above. Judicial Power, or the exercise of judicial functions cannot
include powers or functions that do not stem from the basic judicial powers and functions set
forth in the Constitution, unless the Constitution otherwise expressly provides. Such a power
or function would have to be termed non-judicial and would have to be otherwise expressly
authorized by the Constitution to be valid.
Hence it follows that the judicial power, and the exercise thereof by a judicial function,
cannot include a power or function that must be derived from the basic Legislative or
Executive powers.
The foregoing conclusion is verified in the express language of the Constitution of
Nevada. In the division of powers set forth in Article 3, Section 1, supra, in addition to
vesting the powers in each branch of government, it also expressly provides that * * * no
person charged with the exercise of powers properly belonging to one of the departments
shall exercise any function appertaining to either of the others * * *. (Emphasis supplied.)
The functions of District Courts, referred to above, are expressly set forth in Article 6, Section
6, of the Constitution specifying the jurisdiction of District Courts, set forth in full hereafter.
III.
[Headnote 8]
In addition to the constitutionally expressed powers and functions of each Department,
(the Legislative, the Executive, and the Judicial) each possesses inherent and incidental
powers that are properly termed ministerial. Ministerial functions are methods of
implementation to accomplish or put into effect the basic function of each Department. No
Department could properly function without the inherent ministerial functions. Without the
inherent powers of ministerial functions each Department would exist in a vacuum. It would
be literally helpless. It is because of the inherent authority of ministerial functions that the
three Departments are thus linked together and able to form a co-ordinated and
interdependent system of government. While the Departments become a co-ordinated,
efficient system under such a process, yet each Department must maintain its separate
autonomy.
[Headnote 9]
It is in the area of ministerial functions of each Department where there frequently occurs
an overlapping or even a duplication of functions. However, the overlapping is more apparent
than real. These seemingly overlapped powers have been termed quasi-legislative,
quasi-executive, and quasi-judicial by students of government. Some of the confusion has
been caused by a misuse of the quasi terms, even in decisions of courts, i.e.,
quasi-judicial should properly only refer to a legislative or executive activity, and not to a
judicial activity. By definition quasi means superficially resembling but intrinsically
different. It is when an activity seems to be judicial in nature, but in reality it is not, that it is
termed quasi-judicial.
but in reality it is not, that it is termed quasi-judicial. (A better term, perhaps, would be
pseudo.) To say that an inherent, incidental judicial function is quasi-judicial is an absolute
contradiction of terms. Such an overlapping or duplication of effort or function can be
entirely valid so long as each can logically and legitimately trace its efforts or functions back
to, and it is derived from, its basic source of power.
However, it is in the area of inherent ministerial powers and functions that prohibited
encroachments upon the basic powers of a Department most frequently occur. All
Departments must be constantly alert to prevent such prohibited encroachments lest our
fundamental system of governmental division of powers be eroded. To permit even one
seemingly harmless prohibited encroachment and adopt an indifferent attitude could lead to
very destructive results. There are not a small number of decisions of courts of last resort in
this country that have fallen into this trap of error. It is essential to the perpetuation of our
system that the principle of the separation of powers be understood. The lack of
understanding about the principle is widespread indeed, and creates a problem of no small
proportions. There must be a fullness of conception of the principle of the separation of
powers involving all of the elements of its meaning and its correlations to attain the most
efficient functioning of the governmental system, and to attain the maximum protection of the
rights of the people. It is because of this vital problem that the instant appeal must be
examined in depth and thoroughly.
IV.
[Headnote 10]
In the Legislature rests the entire power of the people, which is neither vested by the
people through the Constitution in the executive or judicial departments nor limited by
provisions in the Nevada or United States Constitutions. It is so certain as to require little
discussion that the police power of the state to regulate public utilities, license businesses of
all kinds, regulate such businesses, general control thereof including the power of granting or
revoking licenses, permits or certificates in connection therewith, is exclusively legislative
within the power. It is said at 45 Am.Jur. 742, Section 30: A pastor is not an officer of a
religious corporation, but, in the administration of the marriage ceremony is a public civil
officer, * * *.
[Headnote 11]
The legislature has the power, absent any constitutional provisions, to provide in the
statutes the qualifications and licensing requirements of all persons thought necessary to
legally perform the marriage ceremony.
perform the marriage ceremony. Blakeslee v. Blakeslee, 41 Nev. 235, 168 P. 950 (1917);
State ex rel. Fowler v. Moore, 46 Nev. 65, 207 P. 75 (1922); Clark v. Clark, 80 Nev. 52, 389
P.2d 69 (1964).
[Headnote 12]
The State has a paramount interest in the marriage ceremony and its ramifications. Certain
proper restrictions, such as the requirement that the person who performs the ceremony must
be certified so to do, can be imposed by the Legislature, in a proper exercise of its legislative
power. This power is subject to judicial control only where, in the exercise thereof, there has
been a violation of a State or Federal constitutional provision, which limits the Legislature in
the performance of acts in connection with the power it assumes to exercise. However, the
State's cardinal interest in marriage and the ramifications thereof is no greater than the State's
interest in the general health and welfare of the people: the right and power to license
physicians, dentists, businesses of all kinds, to license or grant privileges to carry concealed
weapons, regulate and license public utilities and other examples too numerous to mention, as
more particularly set out hereafter. These subjects are all properly within the legislative
sphere, and the function of licensing, controlling and regulating them is logically and
legitimately derived from the basic legislative power. On the other hand, there are regulating
and licensing powers of the Judicial Department that are within the province of the judicial
function, i.e., licensing attorneys to practice law; prescribing rules of professional conduct for
attorneys and judges; disbarring attorneys; promulgating and prescribing any and all rules
necessary or desirable to handle the business of the courts or their judicial functions. In short,
everything is a proper subject of licensing, controlling and regulating when the authority
asserted by the judiciary can logically and legitimately be traced back to, and is derived from,
the Judicial Power, as described above. See: State ex rel. Kitzmeyer v. Davis, 26 Nev. 373, 68
P. 689 (1902).
V.
[Headnote 13]
Generally, the legislature may not confer or impose powers non-judicial in character upon
the judiciary. Montgomery v. State, 163 So. 365 (Ala. 1935); Oates v. Rogers, 144 S.W.2d
457 (Ark. 1940); Burnett v. Greene, 122 So. 570 (Fla. 1929); Anway v. Grand Rapids Ry.
Co., 179 N.W. 350 (Mich. 1920); Searle v. Yensen, 226 N.W. 464 (Neb. 1929);, Floeck v.
Bureau of Revenue, 100 P.2d 225 (N.M. 1940); In re Richardson, 160 N.E. 655 {N.Y. 192S);
Great Northern Ry. Co. v. McDonnell, 45 N.W.2d 721 {N.D. 1950); Kearns v. Sherrill, 27
N.E.2d 407 {Ohio 1940); State v. Huber, 40 S.E.2d 11 {W. Va. 1946).
re Richardson, 160 N.E. 655 (N.Y. 1928); Great Northern Ry. Co. v. McDonnell, 45 N.W.2d
721 (N.D. 1950); Kearns v. Sherrill, 27 N.E.2d 407 (Ohio 1940); State v. Huber, 40 S.E.2d
11 (W. Va. 1946).
[Headnote 14]
However, the legislature may grant administrative or ministerial powers or functions to
courts and judges, but these powers or functions must be reasonably incidental to the
fulfillment of judicial duties. Powers v. Isley, 183 P.2d 880 (Ariz. 1947); Allan v. Bailey, 14
P.2d 1087 (Colo. 1932); Borseth v. City of Lansing, 61 N.W.2d 132 (Mich. 1953); State ex
rel. Mason v. Baker, 288 N.W. 202 (N.D. 1939). The case of Frazier v. Moffatt, 239 P.2d 123
(Cal. 1951), sums it up quite well: In consonance with the spirit and intent of the foregoing
constitutional provision [Separation of powers], the courts of this state have uniformly held
that the Legislature is without power to confer upon courts jurisdiction that is not given or
authorized to be given them by the Constitution, and that the Legislature can impose no duties
on the judiciary but such as are of a judicial character. * * *
* * * [T]he delegation of power imposed upon the judiciary by the Legislature * * * is the
imposition of a duty with a corresponding power that is to be classed as a judicial act. This
we say because in the light of the historical concept of the powers and duties of a magistrate,
the authority conferred by section 838 of the Penal Code [issuance of warrants] is manifestly
a power to exercise functions incidental to the judicial position of a magistrate. Such a power
is no more objectionable than the power to appoint an arbitrator or a referee. Tuolumne
County v. Stanislaus County, 6 Cal. 440, 442. If a power or duty imposed by the Legislature
upon the judiciary partakes of a judicial or quasi-judicial [sic] character it is not subject to
constitutional infirmity. (Emphasis and bracketing added.)
VI.
Article 6, Section 6, of the Nevada Constitution defines the jurisdiction of District Courts:
Sec: 6. Jurisdiction of district courts. The District Courts in the several Judicial Districts of
this State shall have original jurisdiction in all cases in equity; also in all cases at law which
involve the title or the right of possession to, or the possession of real property, or Mining
claims, or the legality of any tax, impost, assessment, toll or municipal fine, and in all other
cases in which the demand (exclusive of interest) or the value of the property in controversy,
exceeds Three Hundred Dollars, also in all cases relating to the estates of deceased
persons, and the persons and estates of Minors and insane persons, and of the action of
forcible entry and unlawful detainer; and also in all criminal cases not otherwise provided
for by law; They shall also have final appellate jurisdiction in cases arising in Justice
Courts, and such other inferior tribunals as may be established by law.
relating to the estates of deceased persons, and the persons and estates of Minors and insane
persons, and of the action of forcible entry and unlawful detainer; and also in all criminal
cases not otherwise provided for by law; They shall also have final appellate jurisdiction in
cases arising in Justice Courts, and such other inferior tribunals as may be established by law.
The District Courts, and the Judges thereof shall have power to issue writs of Mandamus,
Injunction, Quo-Warranto, Certiorari, and all other writs proper and necessary to the complete
exercise of their jurisdiction; and also shall have power to issue writs of Habeas Corpus on
Petition by, or on behalf of any person held in actual custody in their respective districts.
This section is clear in establishing the areas over which the District Courts have
jurisdiction and specifically describes the judicial functions.
[Headnote 15]
The constitution is a living thing and is to be interpreted in the light of changing
conditions. Evans v. Job, 8 Nev. 322 (1873); State ex rel. Miller v. Lani, 55 Nev. 123, 27
P.2d 537 (1933). But there cannot be a departure from the basic principles contained therein.
This is emphatically confirmed in King v. Board of Regents, 65 Nev. 533, 200 P.2d 221
(1948), where this Court said, per the late revered Justice Badt, at 543: Even though we
concede the elasticity of the constitution, as a living thing, to be interpreted in the light of
new and changing conditions, even, though we may not condemn legislation simply because
the object or purpose is new (no matter how astonishing or revolutionary) so long as a
constitutional limitation is not violated, the support of such a drastic departure from the usual
conception of the constitutional control' vested in a board is undoubtedly weakened by its
total lack of precedent. Continuing, this Court said further: It is not essential that any given
limitation of power be definitely expressed in the constitution. Every positive direction
contains an implication against anything contrary to, or which would frustrate or disappoint
the purpose of that provision. The frame of the government, the grant of legislative power
itself, the organization of the executive authority, the erection of the principal courts of
justice, create implied limitations upon the law-making authority as strong as though a
negative was expressed in each instance * * *.' 1 Cooley's Constitutional Limitations, 8th
Ed., 177. The rule is here so logically expressed and has been so long recognized and
followed that it may at this time be stated almost as a maxim. State v. Arrington, 18 Nev.
412, 4 P. 735; State v. Moran, 43 Nev. 150, 182 P.
P. 927. Nor is it weakened by recognition of the fact that certain executive and judicial
powers are often exercised by the legislature [sic], judicial powers by the executive [sic] and
certain legislative powers by the judiciary [sic]. Examples of this are so commonly
recognized as not to require discussion. (Emphasis supplied.)
In State v. Douglass, 33 Nev. 82, 110 P. 177 (1910), this Court said, Every constitutional
officer derives his power and authority from the Constitution, the same as the Legislature
does, and the Legislature, in the absence of express constitutional authority, is as powerless to
add to a constitutional office duties foreign to that office, as it is to take away duties that
naturally belong in it. The Court there further stated, It is well settled by the courts that the
Legislature, in the absence of special authorization in the Constitution, is without power to
abolish a constitutional office or to change, alter, or modify its constitutional powers and
functions. (Emphasis added.)
And in Lake v. Lake, 17 Nev. 230, 30 P. 880 (1882), this Court said: It is settled that
affirmative words in a constitution, that courts shall have the jurisdiction stated, naturally
include a negative that they shall have no other. (Emphasis added.)
[Headnote 16]
The maxim EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS, the expression of one
thing is the exclusion of another, has been repeatedly confirmed in this State. See also: In re
Bailey's Estate, 31 Nev. 377, 103 P.232 (1909); Leake v. Blasdel, 6 Nev. 40 (1870); State v.
Arrington, 18 Nev. 412, 4 P. 735 (1884); Ex Parte Arascada, 44 Nev. 30, 189 P. 169 (1920).
The language in State v. Hallock, 14 Nev. 202 (1879), is also very important in this regard.
There this Court said: It is true that the constitution does not expressly inhibit the power
which the legislature has assumed to exercise, but an express inhibition is not necessary. The
affirmation of a distinct policy upon any specific point in a state constitution implies the
negation of any power in the legislature to establish a different policy. Every positive
direction contains an implication against anything contrary to it which would frustrate or
disappoint the purpose of that provision. The frame of the government, the grant of legislative
power itself, the organization of the executive authority, the erection of the principal courts
of justice, create implied limitations upon the law-making authority as strong as though a
negative was expressed in each instance.' People v. Draper, 15 N.Y. 544. (Emphasis
supplied.)
VII.
Our Constitution, even though being a living thing and flexible still has limitations upon
the powers that the legislature can grant to a District Court. As was pointed out above,
nonjudicial functions cannot be imposed upon courts and judges unless expressly stated in the
Constitution. Also, it is recalled that the intent of the framers of the Constitution must be
fulfilled. Since Article 3, Section 1, states that there shall be legislative, executive and
judicial powers separated in this State, we should determine for the purposes of decision what
the framers meant when they separated the judicial department from the legislative and
executive departments. The best authority for the answer is the Constitution itself. Article 6,
Section 6, must be viewed as being a final statement concerning the areas over which the
District Courts can exercise their power.
[Headnote 17]
Article 6, Section 6, provides that District Courts have jurisdiction of all cases in law and
equity. As pointed out, supra, Article 3, Section 1, vested the entire judicial power in the
courts and the functions of the courts are expressly described in Article 6, Section 6. It was
the intent of the framers of the Constitution to give only judicial power to the courts, and
this is made clear by the phraseology used.
There are two recent Nevada cases which confirm the preceding conclusion. See: Nevada
Tax Commission v. Hicks, 73 Nev. 115, 310 P.2d 852 (1957) and Nevada Tax Commission
v. Mackie, 75 Nev. 6, 333 P.2d 985 (1959). (See also: Ormsby County v. Kearney, 37 Nev.
314, 142 P. 803 (1914).)
In Nevada Tax Commission v. Mackie, supra, it is stated: Such being the case, the
modification of the commission's order in this case amounted to administrative rather than
judicial action and was beyond the authority of a reviewing court.
VIII.
[Headnote 18]
We have now reached the point where we must make specific applications of all of the
foregoing basic, fundamental principles to the instant case.
NRS 122.070 requires: (1) an ordained minister to make application to a District Judge for
a certificate (license) to perform marriages; and (2) the District Judge is to determine the
qualifications of the minister. To determine the qualifications of the minister {a) the District
Judge may require the minister's congregation to furnish evidence of qualification and if
so required the congregation shall furnish such evidence; and {b) the Sheriff and the
District Attorney shall conduct an investigation at the request of the District Judge.
of the minister (a) the District Judge may require the minister's congregation to furnish
evidence of qualification and if so required the congregation shall furnish such evidence; and
(b) the Sheriff and the District Attorney shall conduct an investigation at the request of the
District Judge. The District Judge may thereupon grant or deny the certificate (license); and
he may thereafter revoke the certificate for good cause shown after hearing.
This statute clearly imposes unconstitutional non-judicial powers and functions upon
District Judges.
The case of In re Richardson, 160 N.E. 655 (N.Y. Court of Appeals 1928), clearly supports
this conclusion. In an opinion written by the late Chief Judge Benjamin N. Cardoza, one of
the most eminent jurists this country has ever produced, it is said:
By Laws of 1928, chapter 15, which became a law on February 8, 1928, section 34 of the
Public Officers Law was amended so as to provide that in any proceeding for the removal of a
public officer, the Governor may direct his delegate, whether a judge or a commissioner, to
conduct an investigation into the charges, or to take evidence as to the truth thereof at a
hearing for such purpose, or both. If such a direction is made, the Governor may require the
Attorney General or the district attorney of the county in which the officer resides to assist the
person so appointed both in the conduct of the investigation and thereafter in the hearing. * *
*
We think there has been an attempt by section 34 of the Public Officers Law, both in its
original and in its amended form, to charge a justice of the Supreme Court with the
mandatory performance of duties nonjudicial. He is made the delegate of the Governor in aid
of an executive act, the removal of a public officer. Matter of Guden, 171 N.Y. 529, 64 N.E.
451. At the word of command he is to give over the work of judging, and set himself to other
work, the work of probing and advising. * * * From the beginnings of our history, the
principle has been enforced that there is no inherent power in Executive or Legislature to
charge the judiciary with administrative functions except when reasonably incidental to the
fulfillment of judicial duties. People v. Hall, 169 N.Y. 184, 62 N.E. 170; Matter of State
Industrial Commission, 224 N.Y. 13, 16, 119 N.E. 1027.* * * Elasticity has not meant that
what is of the essence of the judicial function may be destroyed by turning the power to
decide into a pallid opportunity to consult and recommend (cf. Frankfurter and Landis, Power
of Congress, etc.; a Study in the Separation of Powers, 37 Harvard Law Review, 1010,
1020).
Congress, etc.; a Study in the Separation of Powers, 37 Harvard Law Review, 1010, 1020). *
* * Nowhere has the doctrine thus established been applied more steadily or forcefully than in
the courts of New York. Matter of Davies, 168 N.Y. 89, 61 N.E. 118, 56 L.R.A. 885; Matter
of State Industrial Commission, supra. The function of the judges is to determine
controversies between litigants'. Matter of State Industrial Commission, supra. They are not
adjuncts or advisers, much less investigating instrumentalities, of other agencies of
government. Their pronouncements are not subject to review by Governor or Legislature.
Dinan v. Swig, 223 Mass. 516, 112 N.E. 91. They speak the rule or sentence'.
The statute was thus an encroachment upon the independence of judicial power even in
the form in which it stood until recently amended. Still more clearly is it such an
encroachment in its form as now reframed. The judge is made a prosecutor. He is to have his
counsel and assistant counsel and experts and detectives. He is to follow trails of suspicion, to
uncover hidden wrongs, to build up a case as a prosecutor builds one. If he were the district
attorney of the county, he would do no more and no less. What he learns is not committed to
a record available to all the world. It is locked within his breast to be withheld or disclosed as
his discretion shall determine. No doubt he is to act impartially, neither presenting from
malice nor concealing from favor. One might say the same of any prosecutor. The outstanding
fact remains that his conclusion is to be announced upon a case developed by himself.
Centuries of common-law tradition warn us with echoing impressiveness that this is not a
judge's work. We should be sorry to weaken that tradition by any judgment of this court.
(Emphasis supplied.)
In State Board of Medical Registration and Examination v. Scherer, 46 N.E.2d 602 (Ind.
1943), holding a similar act unconstitutional, the Court said: The granting and revocation of
licenses to engage in trades, businesses, or professions is a ministerial function. Ministerial
boards act as fact-finding bodies to ascertain whether applicants conform to a legislative
formula by which the right to a license is fixed. It is well settled that under the division of
powers, these ministerial factfinding duties may not be delegated to courts, and that the
so-called appeal provisions of statutes which undertake to vest in courts jurisdiction to try and
determine de novo the facts entitling an applicant to a license, or to continue to operate under
a license, must be treated as merely providing procedure by which the proceeding may be
brought before the court for an investigation to determine whether the ministerial body
has acted legally and within its powers.
by which the proceeding may be brought before the court for an investigation to determine
whether the ministerial body has acted legally and within its powers. In all of such cases, if
the ministerial board has conformed to a statutory procedural method, and its decision is
supported by substantial evidence, its findings and determination will not be disturbed.
Spurgeon et al. v. Rhodes, 1906, 167 Ind. 1, 78 N.E. 228; Stone, Superintendent v. Fritts,
1907, 169 Ind. 361, 82 N.E. 792, 15 L.R.A., N.S. 1147, 14 Ann.Cas. 295; In re Northwestern
Indiana Telephone Co. et al., 1930, 201 Ind. 667, 171 N.E. 65; Lloyd et al. v. City of Gary,
1938, 214 Ind. 700, 17 N.E.2d 836. It is true that the statute here in question seems to
contemplate a de novo proceeding before the court, and a finding of guilty' or not guilty',
but, regardless of what may seem a legislative intention to the contrary, this court has
consistently construed similar statutes as vesting in the courts only such jurisdiction as the
Constitution permits. In cases of applicants for a license to practice medicine, surgery, or
obstetrics, who have not obtained a diploma from a licensed school, the board examines the
applicant in materia medica, surgery, and obstetrics. The impropriety of courts reexamining
applicants in such subjects, and, in case of conflicting evidence as to qualifications,
substituting its judgment for that of the board, is obvious. It is clear that courts cannot decide
for themselves the cases in which they will assume jurisdiction to weigh evidence as to
qualifications and those in which they will not. The jurisdictional question involves basic
constructional considerations. (Emphasis supplied.)
See also: People ex rel. Ferris v. Horton, 264 N.Y.S. 84, 147 Misc. 506, aff'd 269 N.Y.S.
579, 239 App.Div. 610 (1934), declaring unconstitutional a statute that allowed judges to
issue permits to carry pistols; Brashears v. Lindenbaum, 56 A.2d 844 (Md. 1948), declaring
unconstitutional a statute that allowed judges to issue liquor licenses; State v. Huber, 40
S.E.2d 11 (W.Va. 1946), declaring unconstitutional a statute that allowed judges to suspend
liquor licenses; Close v. Southern Maryland Agricultural Ass'n, 108 A. 209 (Md. 1919),
declaring unconstitutional a statute that allowed judges to license horse race betting or
bookmaking.
To sustain the present law, conferring ministerial duties on District Judges to issue
certificates of permission to marry, to conduct investigations for that purpose, and to revoke
them, will, in principle, totally destroy the theory of separation of powers intended to be
forever inviolate by Article 3, Section 1, and Article 6, Section 6.
By no stretch of the imagination can the ministerial functions imposed by the statute on
District Judges be traced back to the Judicial Power and Judicial Function described above.
They are not derived from the basic Judicial Power.
District Judges are constitutional officers (Art. 6, Secs. 1, 5 and 6). The statute in question
attempts to impose on District Judges non-judicial functions that would change, alter or
modify the judicial functions of District Courts and District Judges. See also: State v.
Douglass, supra; Moore v. Orr, 30 Nev. 458, 98 P. 398 (1908).
[Headnote 19]
It is our duty to maintain the supremacy of the Constitution. The courts must be wary not
to tread upon the prerogatives of other departments of government or to assume or utilize any
undue powers. If this is not done, the balance of powers will be disturbed and that cannot be
tolerated for the strength of our system of government and the judiciary itself is based upon
that theory.
NRS 122.070 is unconstitutional and void because it violates Article 3, Section 1, and
Article 6, Section 6, of the Nevada Constitution by imposing legislative, administrative,
ministerial, and investigative functions upon the District Courts and District Judges that are
non-judicial in character and are unauthorized.
The lower court decision is affirmed.
Thompson C. J., and Collins, J., concur.
____________
83 Nev. 31, 31 (1967) Jones v. Free
GEORGE DITSON JONES, GEORGE H. HOWELL, Jr., WINONA L. JACKSON and
OWEN E. JACKSON, Appellants, v. WILLIAM FREE, Respondent. WESTERN
GEOTHERMAL INC., Intervenor and Respondent.
No. 5107
January 9, 1967 422 P.2d 551
Appeal from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Appeal from orders of the trial court authorizing receiver of corporation to settle
controversy with another corporation, dismissing counterclaims and denying motion to set
aside foregoing two orders. The Supreme Court, Collins, J., held that order authorizing
receiver of corporation to enter into compromise agreement on behalf of corporation with
another corporation concerning joint venture contract leading to leasehold interest in
steam lands and resulting in end of litigation between them was supported by evidence.
83 Nev. 31, 32 (1967) Jones v. Free
dismissing counterclaims and denying motion to set aside foregoing two orders. The Supreme
Court, Collins, J., held that order authorizing receiver of corporation to enter into
compromise agreement on behalf of corporation with another corporation concerning joint
venture contract leading to leasehold interest in steam lands and resulting in end of litigation
between them was supported by evidence.
Affirmed.
Springer & Newton, of Reno, and Roy B. Woolsey, of Newport Beach, California, for
Appellants.
Bible, McDonald & Carano, and Robert H. Moore, of Reno, for Respondent William Free.
Vargas, Dillon, Bartlett & Dixon, of Reno, for Intervenor and Respondent Western
Geothermal, Inc.
1. Judgment.
Where there was identity of thing sued for, cause of action, parties, quality in persons for or against
whom claim was made in prior and subsequent proceedings, decision in prior case was res judicata and
parties in second action were bound thereby.
2. Appeal and Error.
Orders authorizing receiver of corporation to settle controversy, dismissing counterclaims, and
denying setting aside of foregoing two orders were in a sense final orders terminating litigation and were
appealable. NRCP 72(b) (1).
Officers and directors of corporation were entitled to entertain appeal from orders authorizing
receiver of corporation to settle controversy. NRS 78.635, subd. 2.
4. Corporations.
Receiver appointed by court under statute dealing exclusively with private corporations has broad
powers, subject to continuing supervision and approval of court. NRS 78.635, subd. 2.
5. Corporations.
Order authorizing receiver of corporation to enter into compromise agreement on behalf of
corporation with another corporation concerning joint venture contract leading to leasehold interest in
steam lands and resulting in end of litigation between them was supported by evidence. NRS 78.635,
subd. 2.
Inasmuch as neither officers and directors of corporation nor their counsel appeared at hearing with
respect to compromise agreement on behalf of corporation and offered no objection to it,
they should not be heard to complain on appeal of compromise proposed by receiver
and approved.
83 Nev. 31, 33 (1967) Jones v. Free
agreement on behalf of corporation and offered no objection to it, they should not be heard to complain on
appeal of compromise proposed by receiver and approved.
OPINION
This is an appeal by George Ditson Jones, George H. Howell, Jr., Winona L. Jackson and
Owen E. Jackson, defendants below and officers and directors of Transcontinental Oil Co.,
Inc., a Nevada corporation, from various orders of the trial court. The orders complained of
are: (1) an order entered by the trial court authorizing Harry C. Levy, receiver of
Transcontinental Oil Co., Inc., to settle a controversy with Western Geothermal, Inc.,
Intervenor; (2) an order dismissing appellants' counterclaims; (3) an order denying the setting
aside of the foregoing two orders. Transcontinental apparently held a lease on some land in
Imperial Valley, California, valuable for production of steam from wells. It entered into a
joint venture contract concerning the leasehold interest with Western Geothermal for
purposes of development of the steam to produce electrical energy and other byproducts.
Transcontinental encountered financial problems, and was beset with internal difficulties
among the officers, directors and stockholders. It also became ensnarled in a controversy with
Western Geothermal over their contract.
William Free, a substantial stockholder of Transcontinental, commenced this action, which
among other things, sought the appointment of a receiver of Transcontinental pursuant to
NRS Chapter 78. Western Geothermal was permitted to intervene and joined in the relief
requested. Harry C. Levy of Las Vegas, Nevada, was appointed and qualified as receiver. His
appointment was immediately attacked for various reasons, but was sustained by this court in
Transcontinental Oil Co. v. Free, 80 Nev. 207, 391 P.2d 317 (1964).
Following that decision the receiver embarked upon his duties on behalf of
Transcontinental under supervision of the district court. Transcontinental had no assets except
the leasehold interest in the steam lands. The record indicates some evidence of a default
procedure by the owner and lessor of the steam lands because of failure to perform in
accordance with the terms of the lease. There were liens and claims against the steam land
for unpaid taxes, judgments and other proceedings clouding the title which were the
obligation of lessee to correct.
83 Nev. 31, 34 (1967) Jones v. Free
the steam land for unpaid taxes, judgments and other proceedings clouding the title which
were the obligation of lessee to correct. The receiver needed money to correct those problems,
but had none. Finally, after considerable negotiation among the receiver and his attorney,
Western Geothermal and its attorney, the appellants through their attorney of record, Toy
Gregory, Sr., Esquire, of Las Vegas, a form of agreement was reached dealing with the
leasehold interest and particularly the joint venture agreement between Transcontinental and
Western Geothermal. The new agreement provided, among other things, that Western
Geothermal would pay over immediately $50,000 to the receiver to permit him to meet
expenses of the receivership and to clear up clouds on the title of the leasehold property.
There is no question that the agreement substantially modified the rights of Transcontinental
and Western Geothermal under the original joint venture agreement, particularly in the area
of drilling requirements and the nature and type of interest retained by Transcontinental. The
agreement also provided for dismissal of counterclaims pleaded by Transcontinental against
Western Geothermal and Free.
Receiver petitioned the district court for authority to execute the agreement. It is admitted
by the parties and the court expressly found that notice of the hearing of the petition was
given to Mr. Gregory as attorney for appellants. A day or so before the hearing Mr. Gregory
had been seriously injured in an automobile wreck. Appellants neither in person nor through
their counsel appeared at the hearing. Mr. Gregory made no request for continuance because
of his accident or injuries. At the hearing the receiver appeared with his counsel and testified,
urging the court to grant him authority to execute the agreement. Western Geothermal,
through its counsel, likewise appeared, examined the receiver and joined in urging the court
to grant authority to the receiver to enter the agreement. The court gave its permission. The
agreement was executed by the parties. Western Geothermal paid over the $50,000 and the
receiver went about clearing the clouds on the title of the lease-hold property and satisfying
the expenses of the receivership.
Subsequently the trial court dismissed the counterclaims of Transcontinental and Salton
Sea against Free and Western Geothermal as a condition of the agreement it had allowed the
receiver to enter. Its first order was made ex parte. On appellants' motion to reconsider the
order with proper notice to all parties, it re-affirmed its order of dismissal, and ruled there
were no further issues to be tried in the lawsuit. Appellants and other parties were then served
by Western Geothermal with a document entitled "Notice of Entry of Judgment," which
appellants contend commenced the time running within which they could take appeal to
this court from final, appealable orders of the trial court.
83 Nev. 31, 35 (1967) Jones v. Free
a document entitled Notice of Entry of Judgment, which appellants contend commenced
the time running within which they could take appeal to this court from final, appealable
orders of the trial court.
We conclude the errors complained of by appellants are not well taken and affirm the
orders of the court below.
[Headnote 1]
The question of the appointment of Harry C. Levy as receiver of Transcontinental under
NRS Chapter 78 is res judicata and appellants are bound thereby. That very question was
ruled upon by this court in Transcontinental Oil Co. v. Free, supra, at pages 210-211, where
we said:
Finally, Transcontinental insists that Free did not make a proper showing to justify the
appointment of a receiver and that the district court abused its discretion in granting his
request. This argument is not entitled to credit. NRS 78.650(1) lists 10 circumstances, any
one of which will authorize the appointment of a temporary receiver upon application by a
holder of 10% of the outstanding stock. For the purposes of this opinion it is sufficient to note
that Free alleges four of them in his amended verified complaint. The affidavit of Kenneth P.
Dillon alleges one of them, viz., danger to the public. Clearly, the showing was sufficient.
Underwriters, Inc. v. District Court, 61 Nev. 42, 113 P.2d 616, 115 P.2d 932. The very point
being once raised and ruled upon, we will not consider it further. Tomiyasu v. Golden, 81
Nev. 140, 400 P.2d 415 (1965). There was (1) identity in the thing sued for; (2) identity of the
cause of action; (3) identity of persons and of parties to the action; (4) identity of the quality
in the person for or against whom the claim is made. Smith v. Gray, 50 Nev. 56, 67, 250 P.
369 (1926).
[Headnotes 2, 3]
The orders, which are in a sense final orders and terminate the litigation, are appealable.
NRCP 72(b) (1),
1
4 C.J.S., Appeal and Error 132, nn. 40.5, 45.15, 147, n. 84; State v.
Burton, 44 N.E.2d 506, 508 (Ind. 1942); Jordan v. Burbach, 330 S.W.2d 249, 252
(Tex.Civ.App. 1959); Northern Nevada Loan Association v. Cazier, 49 Nev. 115, 118, 239 P.
395, 396 (1925); cf. Alper v. Posin, 77 Nev. 328, 363 P.2d 502 (1961); Nevada First National
Bank v. Lamb, 51 Nev.
____________________

1
NRCP 72 (b) Appealable Determinations. 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.
83 Nev. 31, 36 (1967) Jones v. Free
162, 271 P. 691 (1928). Appellants, so far as the record reveals, are officers and directors of
Transcontinental, and as such are entitled to entertain this appeal. This court said in Golden v.
District Court, 31 Nev. 250 (1909), at 263, 101 P. 1021, at 1026: We think, however, that
the directors are necessary parties. They of necessity have a financial interest in the
corporation, and are the ones who are intrusted with its management by the stockholders.* * *
An order dissolving a corporation and placing its affairs in the hands of a receiver, not only
effects a radical change in the legal status, but ousts the control of its affairs by the board of
directors as such.
Appellants complain most strongly about the trial court's order authorizing the receiver to
enter a compromise agreement on behalf of Transcontinental with Western Geothermal
concerning the joint venture contract relating to the leasehold interest in the steam lands.
Pursuant to this same agreement the counterclaims were dismissed and the litigation for all
intents and purposes ended. Appellants say the action of the trial court; (a) constituted an
erroneous delegation of judicial power beyond the jurisdiction of the court; (b) constituted the
making of a new contract between the litigants; (c) deprived them of property without due
process; (d) exceeded the powers of the receiver who they contend had powers only under
NRS Chapter 32 and not NRS Chapter 78.
The last point is quickly disposed of because the appointment was clearly under NRS
Chapter 78, approved by this court in Transcontinental Oil Co. v. Free, supra, and is res
judicata.
We note that NRS Chapter 78 deals exclusively with private corporations, not joint
adventurers, individuals, partners or otherwise. Transcontinental Oil Co. admittedly is a
private Nevada corporation, and so far as the receivership is concerned is the only corporation
(even though a party to the joint venture agreement with Western Geothermal) for whom
receivership was sought. To say that a receiver appointed to handle the affairs of one private
corporation could, without more, also deal in the same manner with the affairs of another
private corporation (Western Geothermal) is without authority anywhere. It is said in Clark
on Receivers, Third Edition. Vol. 1, Sec. 11(a), pages 13 and 14:
(a) Receiver appointed by court. A receiver appointed by the court is a person who by
such appointment becomes an officer of the court to receive, collect, care for, administer, and
dispose of the property or the fruits of the property of another or others brought under the
orders of court by the institution of a proper action or actions.
83 Nev. 31, 37 (1967) Jones v. Free
or others brought under the orders of court by the institution of a proper action or actions.
A receiver appointed by the court is an arm or hand of the court, and as said above, an
officer of the court and a representative of the court.
The court itself, having assumed jurisdiction, obtains by its orders the control of the
property. The receiver is but the court's officer. He is subject to the court's directions and
orders and in the discharge of his official duties is entitled to apply to the court for
instructions.
After the appointment of the receiver is effected, the relation of the receiver and the
original defendant or owner is that of caretaker and owner.
[Headnote 4]
A receiver appointed by a court under NRS Chapter 78 has broad powers, subject of
course to the continuing supervision and approval of the court. NRS 78.635 (2) sets forth that
power and authority and states:
(a) To demand, sue for, collect, receive and take into his or their possession all the goods
and chattels, rights and credits, moneys and effects, lands and tenements, books, papers,
choses in action, bills, notes and property, of every description of the corporation; and
(b) To institute suits at law or in equity for the recovery of any estate, property, damages
or demands existing in favor of the corporation; and
(c) In his or their discretion to compound and settle with any debtor or creditor of the
corporation, or with persons having possession of its property or in any way responsible at
law or in equity to the corporation at the time of its insolvency or suspension of business, or
afterwards, upon such terms and in such manner as he or they shall deem just and beneficial
to the corporation; and
(d) In case of mutual dealings between the corporation and any person to allow just
setoffs in favor of such person in all cases in which the same ought to be allowed according to
law and equity.
Subparagraph (c) specifically authorizes a receiver to compound and settle with any
debtor or creditor of the corporation, or with persons having possession of its property or in
any way responsible at law or in equity to the corporation at the time of its insolvency or
suspension of business, or afterwards, upon such terms and in such manner as he or they shall
deem just and beneficial to the corporation; * * *. Clark on Receivers, Third Edition, in
construing the power of receivers to compromise claims, says in Vol.
83 Nev. 31, 38 (1967) Jones v. Free
on Receivers, Third Edition, in construing the power of receivers to compromise claims, says
in Vol. 2, Sec. 366, page 623:
When a receiver has been authorized by the court to collect claims, he does so as a part of
the court's equitable power to preserve the res. In preserving the res the court exercises
discretion, which may go so far as to determine that it is for the best interest of the
receivership to accept part of a claim, rather than take a chance and suffer the hazard of a
prolonged proceeding demanding the full amount. The court's order to a receiver to
compromise a claim or claims should be very definite and clear.
In Vol. 3, Sec. 655, page 1147, he says:
A receiver when administering or settling an estate of one kind or another, or operating a
business under orders of court, is frequently confronted with the proposition: Shall he
compromise a claim for or against the estate, or shall he sue or stand suit? If the receiver's
order of appointment expressly authorizes the receiver to compromise such claims, then he
must use his discretion and best business judgment as to matters too small to present to the
court. However, it is better practice and the better part of wisdom to go to the court and ask
the court's instructions as to compromising large or substantial claims. In addition to going
before the court, it is further advisable to notify all parties or creditors who may be vitally
interested in such a compromise. Although the receiver may not compromise claims without
the order of court, nevertheless his acts of compromising claims subsequently may be
ratified.* * *
[Headnotes 5, 6]
Here the district court allowed the compromise proposed by receiver. It had substantial
evidence before it, and we will not disturb its order. Furthermore, neither appellants nor their
counsel appeared at the hearing and offered objection to it. They should not be heard to
complain now.
Clark on Receivers, Third Edition, Vol. 2, Sec. 423, page 711, states: The receiver by
accepting the receivership does not adopt the contracts and obligations of the defendant. He
cites as authority for that statement Peabody Coal Co. v. Nixon, 226 F. 20 (8 Cir. 1915). In
that case receivers were appointed for a railroad company. The railroad had a contract with a
coal company to purchase certain quantities of coal at a price determined by a complex
formula. Receivers notified the coal company they would not be bound by the contract and
asked the chancellor to approve their action. The coal company opposed the action of the
receivers and sought to convince a master to whom the matter was referred for the taking
of evidence, that the contract was in the best interest of the receivers and it should affirm
the contract.
83 Nev. 31, 39 (1967) Jones v. Free
opposed the action of the receivers and sought to convince a master to whom the matter was
referred for the taking of evidence, that the contract was in the best interest of the receivers
and it should affirm the contract. In the meantime negotiations were undertaken between the
receivers and the coal company to compromise the matter and reach a negotiated settlement.
This failed. The court stated at page 22 of the report, We had occasion in another case (Ry.
Co. v. Lusk et al., 224 Fed. 704) at this term to observe that it is not the rule that the contract
of the owner of a trust estate is binding on the receivers until renounced, but, contra, that the
receivers are not bound by the contract until they have affirmed it and assumed its burdens
under the direction of the court. We need not say much more.* * * The court approved the
receivers' renouncement of the contract in its entirety.
Clark on Receivers, Third Edition, further states, Vol. 2, Sec. 423, page 711, Ordinarily,
the court will not order the receiver to perform contracts which are not beneficial to the estate
represented by the receiver. The record in this case indicates the receiver, considering all
aspects of the problem facing Transcontinental, felt it was in the best interest of the company
to compromise the claim it had against Western Geothermal under the joint venture
agreement in the leasehold of the steam lands. This proposal was presented to the court for its
instruction. The court approved and authorized the compromise. We see no error.
Other points were urged, but since they will not affect the result we decline to pass upon
them.
Affirmed.
____________
83 Nev. 39, 39 (1967) Conrad v. Sadur
HOWARD L. CONRAD, Appellant, v. IRWIN SADUR,
Respondent.
No. 5125
January 9, 1967 422 P.2d 236
Appeal from judgment based upon promissory note. Eighth Judicial District Court, Clark
The trial court rendered a default judgment for plaintiff, and defendant appealed. The
Supreme Court, Zenoff, J., held that where parties stipulated that plaintiff's motion to
strike defendant's pleadings and to render default judgment for plaintiff should be
granted unless defendant should submit to taking of deposition, and defendant failed to
appear for deposition, default judgment was proper even if plaintiff's failure to appear
was for reasons of health.
that where parties stipulated that plaintiff's motion to strike defendant's pleadings and to
render default judgment for plaintiff should be granted unless defendant should submit to
taking of deposition, and defendant failed to appear for deposition, default judgment was
proper even if plaintiff's failure to appear was for reasons of health.
Affirmed.
Babcock & Sutton, of Las Vegas, for Appellant.
Murray Posin, of Las Vegas, for Respondent.
1. Stipulations.
Where parties stipulated that plaintiff's motion to strike defendant's pleadings and to render default
judgment for plaintiff should be granted unless defendant should submit to taking of deposition, and
defendant failed to appear for deposition, rule requiring wilful failure to appear to justify default
judgment was inapplicable, and entry of default judgment was proper even if plaintiff's failure to appear
was for reasons of health. NRCP 37(d).
2. Stipulations.
Generally, it is not an abuse of discretion to enforce a valid stipulation.
OPINION
By the Court, Zenoff, J.:
Irwin Sadur brought suit in the trial court for $50,000 and costs based upon a promissory
note executed by Conrad. Conrad's answer consisted of a general denial except that he
admitted the execution of the note and further alleged the affirmative defense of absence of
consideration.
The sole issue on appeal arose when Sadur attempted to take Conrad's deposition in
advance of trial. The deposition was noticed for April 7, 1965 at the office of respondent's
attorney in Las Vegas. On April 5, Conrad moved the court for an order that the deposition be
taken in California, stating that he resided there and that his health prohibited him from
traveling to Nevada.
Evidently, there was no immediate hearing on Conrad's motion. The record shows that it
was not until October 11, 1965 that Sadur moved for an order to strike Conrad's pleadings
and for a default judgment on the ground that Conrad had refused to make himself available
for the taking of his deposition and that no time or place could be arranged. Thereafter, the
parties agreed by written stipulation of attorneys for both, as follows: "It is hereby stipulated
and agreed by and between the parties to the above-entitled action, by and through their
respective counsel of record that plaintiff's motion for an order striking defendant's
pleadings in the above-entitled action and rendering a default judgment in favor of
plaintiff and against defendant is hereby granted unless defendant appear and submit to
the taking of his deposition, upon oral examination, pursuant to Rule 26 of Nevada Rules
of Civil Procedure, before Frank Nelson, Notary Public, or before some other officer
authorized by law to administer oaths, on the 24th day of November, 1965, at 2:00
o'clock P.M. of said day, at the offices of Sherman & Sturman, Esqs.,
It is hereby stipulated and agreed by and between the parties to the above-entitled action,
by and through their respective counsel of record that plaintiff's motion for an order striking
defendant's pleadings in the above-entitled action and rendering a default judgment in favor
of plaintiff and against defendant is hereby granted unless defendant appear and submit to the
taking of his deposition, upon oral examination, pursuant to Rule 26 of Nevada Rules of Civil
Procedure, before Frank Nelson, Notary Public, or before some other officer authorized by
law to administer oaths, on the 24th day of November, 1965, at 2:00 o'clock P.M. of said day,
at the offices of Sherman & Sturman, Esqs., 8500 Wilshire Boulevard, Beverly Hills,
California. One of the trial judges appended to the stipulation, SO ORDERED.
Conrad failed to appear for the deposition. Thereafter, Sadur filed notice of application for
judgment, but Conrad presented in opposition a telegram from his doctor, stating that
Conrad's attendance at the deposition was potentially serious to his health.
The court entered an order striking appellant's pleadings and entered judgment against
Conrad for $50,000 with interest, plus costs. Conrad appeals from that judgment.
1. The assignment of error is the contention that NRCP 37(d) requires a willful failure
to appear to justify a judgment by default and that Conrad's failure to appear for reasons of
health could not be deemed willful. Schatz v. Devitte, 75 Nev. 124, 335 P.2d 783 (1959).
Hence, the trial court abused its discretion in granting the motion to strike and entering the
judgment.
[Headnotes 1, 2]
Schatz v. Devitte, supra, is not appropriate to these facts. The stipulation sets this case
apart because Conrad did not seek relief from the default judgment after it was entered below.
Los Angeles City School District v. Landier Investment Co., 2 Cal.Rptr. 662 (1960).
Generally, it is not an abuse of discretion to enforce a valid stipulation. Gottwals v. Rencher,
60 Nev. 47, 51, 98 P.2d 481 (1940); Miller v. Walser, 42 Nev. 497, 507, 181 P. 437 (1919);
Garaventa v. Gardella, 63 Nev. 304, 323, 169 P.2d 540 (1946). We have in this case what
amounts to a judgment by consent and Rule 37(d) does not apply.
Affirmed.
Thompson, C. J., and Collins, J., concur.
____________
83 Nev. 42, 42 (1967) Ibsen v. State
CLYDE GEORGE IBSEN, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 5111
January 10, 1967 422 P.2d 543
Appeal from conviction of first degree murder. Sixth Judicial District Court, Humboldt
County; Merwyn H. Brown, Judge.
The Supreme Court, Zenoff, J., held that failure of justice of the peace to fully advise
defendant of his right to counsel and method of obtaining an appointed attorney to represent
him when he requested one deprived defendant of his constitutional right to be represented
thereafter by an attorney.
Reversed and remanded.
Mann & Scott, of Elko, for Appellant.
Harvey Dickerson, Attorney General, Donald Leighton, District Attorney, Humboldt
County, for Respondent.
1. Criminal Law.
Failure of justice of the peace to fully advise defendant of his right to counsel and method of
obtaining an appointed attorney to represent him when he requested one deprived defendant of his
constitutional right to be represented thereafter by an attorney. NRS 171.370; U.S.C.A.Const. Amend.
6.
2. Criminal Law.
Defendant who requested an attorney to represent him, which request was not granted, did not waive
his right to counsel when he conferred with district attorney since he had already learned from justice of
peace that counsel could not be appointed for him, so that district attorney's admonition that defendant
could have counsel became ineffectual in view of court's prior statement. NRS 171.370; U.S.C.A.
Const. Amend. 6.
3. Criminal Law.
Confessions which are obtained by unconstitutional means fall within rule of automatic reversal, since
prejudice is presumed.
4. Criminal Law.
Testimony of two cell mates of defendant was admissible where record supported conclusion that cell
mates acted independently of any agency relationship with law officials, and while they were encouraged
to learn what information they could from defendant and were later rewarded for their success, they were
unrelated to the State except as informers.
5. Criminal Law.
Judge's action, in apparent violation of statute relating to exclusion of witnesses during trial, of calling
F.B.I. agents into courtroom and reading defendant's testimony to them, after which judge asked the
agents if such testimony was true or false, was erroneous but was not sufficiently
harmful by itself to constitute reversible error.
83 Nev. 42, 43 (1967) Ibsen v. State
judge asked the agents if such testimony was true or false, was erroneous but was not sufficiently harmful
by itself to constitute reversible error. NRS 175.167.
OPINION
Delbert Howard, a well-known resident of Winnemucca, was last seen alive near his
residence on July 8, 1965. Suspicions aroused, authorities began a search for the missing
Howard. It was not until Clyde George Ibsen was arrested in Sarasota, Florida, July 20th, that
the veil of mystery began to lift. There, Ibsen, under arrest for vagrancy, gave information in
the first of a series of interrogations by law enforcement officers that ultimately turned the
key on his jail door for the rest of his life. On December 15, 1965, he was convicted of
murder and sentenced to prison for life without possibility of parole. Ibsen appeals from that
conviction.
Of the several assignments of error, first and foremost our attention is directed to the
contention that Ibsen was denied his constitutional right to counsel. We must decide this case,
of course, in conformity with the decisions of the Supreme Court of the United States. The
revelations of the voluminous record lead inescapably to the conclusion that the capable and
expert investigation notwithstanding, an error by the justice of the peace was so inherently
prejudicial that we are compelled to order that this case be remanded for another trial.
1. Extending umbrella-like over the entire episode, was the continuing concern over the
whereabouts of Delbert Howard. All that was known was that he had disappeared and that,
four days after his absence, someone not resembling Howard was observed trying to cash a
check on his account in Las Vegas, several hundred miles from his residence in Winnemucca.
An all-points bulletin describing Howard's car resulted in Ibsen's arrest in Sarasota, Florida.
Also in Ibsen's possession were some of Howard's personal effects. There were signs of blood
in the car.
Miranda v. Arizona, 384 U.S. 436 (1966), had not yet been decided. Our attention must
then be directed to the fundamental Sixth Amendment right to counsel prescribed by
Escobedo v. Illinois, 378 U.S. 478 (1964).
From his arrest July 20, 1965, in Sarasota, Florida, until his final confession to the District
Attorney of Humboldt County, September S, 1965, Ibsen was in continuous custody.
83 Nev. 42, 44 (1967) Ibsen v. State
September 8, 1965, Ibsen was in continuous custody. He was interrogated seven times by
F.B.I. agents; four times in Sarasota, and three times by Agent Bell in Winnemucca. We
reject the state's contention that the F.B.I. interrogations of Ibsen were directed solely to the
federal violation with which he was charged in Florida. Before each interrogation he was
fully informed of his rights. The trial resolved that he did not request an attorney at any of the
questioning sessions, and the record does reflect that his statements in Sarasota were
voluntarily given.
On July 29, Ibsen was returned to Winnemucca from Florida and taken before the justice
of the peace on a state charge of the unlawful taking of a motor vehicle. At that time in court
he requested that an attorney be appointed for him. The justice of the peace advised him that
he had no authority to appoint one for him. At the same proceeding the preliminary hearing
date was set for August 30, over a month away.
Thereafter on August 13, 1965, from his jail cell, he wrote the justice of the peace
demanding an immediate preliminary hearing. In a separate letter dated September 3, 1965,
he again requested appointment of an attorney. No action was taken on either request.
On September 7th, he was brought before the justice of the peace and agreed to September
15th as the date for his preliminary hearing and again he requested appointment of an attorney
and was refused. The justice of the peace was unaware of NRS 171.370 (approved April 3,
1965, five months prior to Ibsen's appearance before the justice of the peace) which outlines
the avenue by which an indigent may obtain court-appointed counsel at the justice of the
peace level.
1

In the meantime, on July 30 and July 31, he was questioned by F.B.I. Agent Bell.
____________________

3
NRS 171.370. Magistrate to inform defendant of charge and his right to counsel; procedure for
appointment of attorney for indigent defendant.
1. When the defendant is brought before the magistrate upon an arrest, either with or without a warrant, on
a charge of having committed a public offense, the magistrate must immediately inform him of the charge
against him, and of his right to the aid of counsel at every stage of the proceedings, and before any further
proceedings are had.
2. Any defendant charged with a felony or a gross misdemeanor who is an indigent may, by written
application addressed to the district court and delivered to the magistrate, request the appointment of an attorney
to represent him.
3. The application shall be accompanied by the defendant's affidavit, which shall state:
(a) That he is without means of employing an attorney; and
83 Nev. 42, 45 (1967) Ibsen v. State
by F.B.I. Agent Bell. Finally, on August 1, he told Bell that he killed Howard with a coke
bottle and threw the body in the Pacific Ocean. The method of killing, and the details of the
disposal of the body were untrue. These omissions, however, were supplied on September
8th, after two cell mates, the Mullins brothers, obtained from Ibsen a map drawn by him of
the location of Howard's body.
The interrogations prior to being taken before the justice of the peace on July 29 met
constitutional requirements. Ibsen was alert, intelligent, and aware of the reason for the
investigation from the date of his arrest. At his earlier interviews with F.B.I. agents he told of
his background which included two years' college education. The right to remain silent was
known to him at all stages, and he acknowledged all of his rights and chose to talk. When he
chose not to talk he said so, and interrogation ceased.
[Headnotes 1, 2]
However, the failure of the justice of the peace to fully advise Ibsen of his right to counsel
and the method of obtaining an appointed attorney to represent him when he requested one
deprived appellant of his constitutional right to be represented thereafter by an attorney. The
day following the second appearance before the justice of the peace (when he was again
refused an attorney September 8, 1965), the district attorney told Ibsen that through the
information supplied by the Mullins', Howard's body was found. Had counsel been appointed
as required, the district attorney could not have thereafter talked to Ibsen, absent appointed
counsel's approval. Nor can it be contended that Ibsen waived his right to counsel when he
conferred with the district attorney since he had already learned from the justice of the peace
that counsel could not be appointed for him. The district attorney's admonition that Ibsen
could have counsel became ineffectual, in view of the court's prior statement. Naturally, it
would appear to him then to be a fruitless request. One cannot waive a right which he does
not think he has. Ibsen was entitled to rely on the court's advice rather than the district
attorney's. The guiding hand of counsel" was essential to advise petitioner * * * in this
delicate situation.
____________________
(b) Facts with some particularity, definiteness and certainty concerning his financial disability.
4. The magistrate shall forthwith transmit the application and affidavit to the appropriate judge of the
district court. If, after reading the application and affidavit and conducting such further inquiry as he may deem
necessary, the judge finds that the defendant is without means of employing an attorney, the judge shall appoint
an attorney or designate the public defender to represent him.
83 Nev. 42, 46 (1967) Ibsen v. State
of counsel was essential to advise petitioner * * * in this delicate situation. Powell v.
Alabama, 287 U.S. 45, 84 A.L.R. 527 (1932). After the confessions to the district attorney,
Ibsen was then charged with murder on September 9, 1965, and counsel was provided for
him.
The circumstances commanded the appointment of an attorney. Any concern that a
guilty defendant would go free disappeared in the face of the evidence already known to the
law enforcement officials. They had Ibsen in possession of Howard's personal possessions,
and his car. He admitted having been with Howard. With the finding of the body, his
purchase of a pistol in Winnemucca was linked to the method of the killing. He was
identified at the trial as the person who tried to cash Howard's check on Howard's account
using Howard's personal identification in Las Vegas.
With all these facts, the district attorney took Ibsen's confession anyway. Its admission into
evidence was error prejudicial in itself. Hamilton v. Alabama, 368 U.S. 52 (1961); White v.
Maryland, 373 U.S. 59 (1963). The defendant testified at the trial and told the entire story as
he had related it in his confession to the district attorney and to Agent Bell. His defense was
largely based on self defense against an alleged homosexual attack. Without the confessions,
defendant may have availed himself of the right not to testify. He was denied the freedom of
choice because of the prejudicial atmosphere and by the fact there was no attorney to guide
him at a time when he was incapable of freely making his own decisions.
We were forewarned in the dissenting opinion of Mr. Justice Douglas in Crooker v.
California, 357 U.S. 433 (1958), when he said, The court properly concedes that the right to
counsel extends to pretrial proceedings as well as to the trial itself * * *. The demands of our
civilization expressed in the due process clause require that the accused who wants a counsel
should have one at any time after the time of arrest. With the advent of Escobedo v. Illinois,
supra, that view became the law.
We are, of course, familiar with the landmark case of Gideon v. Wainright, 372 U.S. 335
(1963), where in the State of Florida, Gideon, in custody for a felony and being indigent,
requested the State court that an attorney be appointed to represent him, which request was
denied. Reason and reflection, stated the Supreme Court of the United States, require us to
recognize that in our adversary system of justice any person hailed into court who is too
poor to hire a lawyer cannot be assured to a fair trial unless counsel is appointed for him."
83 Nev. 42, 47 (1967) Ibsen v. State
person hailed into court who is too poor to hire a lawyer cannot be assured to a fair trial
unless counsel is appointed for him.
Gideon established the right to an attorney at the trial stage of criminal proceedings.
Escobedo established the right to be represented by an attorney, under special circumstances,
at the jailhouse before he gets to the courtroom. An indicted defendant cannot be interrogated
under any circumstances in the absence of his attorney without having his 6th Amendment
right to counsel impaired. Massiah v. United States, 377 U.S. 201 (1964) (made binding on
the states by McLeod v. Ohio, 381 U.S. 356 (1965)).
Massiah v. United States, supra, * * * A constitution which guarantees a defendant the
aid of counsel at * * * trial could surely vouchsafe no less to an indicted defendant under
interrogation by the police in a completely extrajudicial proceeding. Anything less * * *
might deny a defendant effective representation by counsel at the only stage when legal aid
and advice would help him.' 360 U.S., at 326 (Douglas, J., concurring.)
Recognition of this fundamental concept was given in the 1965 session of the Nevada
Legislature when it enacted NRS 171.370 which provides an indigent with court-appointed
counsel. Obviously, the justice of the peace in Winnemucca did not know of this statute but
his unawareness cannot overcome the resulting prejudice.
[Headnote 3]
Unconstitutional confessions fall within the rule of automatic reversal. Prejudice is
presumed.
2. The Mullins brothers were in custody for the commission of a criminal offense. Ibsen
drew a map for them showing the location of Howard's body, with the idea that the Mullins
brothers would dispose of the body when they got out of jail. Instead, they gave the map to
the district attorney.
[Headnote 4]
The record supports the conclusion that the Mullins brothers acted independently of any
agency relationship with the law officials. While they were encouraged to learn what
information they could from Ibsen, and were later rewarded for their success, they were
unrelated to the State except as informers as that term is applied in ordinary police detection.
The testimony of the Mullins brothers was admissible. People v. Flores, 46 Cal.
83 Nev. 42, 48 (1967) Ibsen v. State
46 Cal. Rptr. 412 415 (1965). People v. Teale 404 P.2d 209, 219-220 (Cal. 1965).
[Headnote 5]
3. Another alleged error occurred during the trial court's voir dire hearing concerning the
admissibility of the statements and confessions. Defendant had testified to his version of the
events surrounding the interrogations and in rebuttal the trial judge called the F.B.I. agents
into the courtroom. He proceeded to read the defendant's testimony to them, then asked the
agents if the testimony was true or false. Appellant contends that this procedure violated the
exclusion of witnesses' rule which had already been invoked.
2

The unusual procedure was wrong, but the deviation was not sufficiently harmful by itself
to constitute reversible error. See Rainsberger v. State, 76 Nev. 158, 350 P.2d 995 (1960),
decided before NRS 175.167 enacted in 1961.
4. The remaining specifications of error are without merit.
____________
83 Nev. 48, 48 (1967) Howard v. Sheriff
BARBARA LOUISE HOWARD, Appellant, v. SHERIFF
OF CLARK COUNTY, Respondent.
No. 5245
January 12, 1967 422 P.2d 538
Appeal from Order of the Eighth Judicial District Court, Clark County, denying petition
for habeas corpus to be released on bail pending trial; John C. Mowbray, Judge.
The lower court denied petition of accused, charged with murder of a police officer, for
habeas corpus to be released on bail pending trial, and accused appealed. The Supreme Court,
Thompson, C. J., held that evidence that the accused was seen scuffling with deceased
police officer about time officer must have been shot, combined with the conjectural
connection of that scuffling with the fatal shooting of police officer, was not such "evident
proof or great presumption" of first-degree murder as to justify denying bail to the
accused.
____________________

2
NRS 175.167. Exclusion of witnesses during trial. Upon request by either party, the judge may exclude
from the courtroom any witness of the adverse party, not at the time under examination, so that he may not hear
the testimony of other witnesses. However, such exclusion shall not apply to the district attorney or his deputy or
to any counsel or cocounsel for the defendant who is actually engaged in the prosecution or defense of such
trial.
Thompson, C. J., held that evidence that the accused was seen scuffling with deceased police
officer about time officer must have been shot, combined with the conjectural connection of
that scuffling with the fatal shooting of police officer, was not such evident proof or great
presumption of first-degree murder as to justify denying bail to the accused.
Order reversed.
Collins, J., dissented.
Charles L. Kellar, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, Carson City, and Edward G. Marshall, Clark County
District Attorney, and Earl Gripentrog, Deputy District Attorney, Las Vegas, for Respondent.
1. Bail.
Bail may be denied one accused of murder when, through evident proof or great presumption, it
appears that the defendant has committed first-degree murder. Const. art. 1, 7.
2. Bail.
Under rule that bail may be denied one accused of murder when, through evident proof or great
presumption, it appears that defendant has committed first-degree murder, burden rests with the state to
supply that proof.
3. Bail.
Since bail may only be denied one accused of murder when, through evident proof or great
presumption, it appears that defendant has committed first-degree murder, offenses less than first-degree
murder are bailable as of right.
4. Bail.
Evidence that the accused was seen scuffling with deceased police officer about time officer must
have been shot, combined with conjectural connection of that scuffling with the fatal shooting of the
officer, was not such evident proof or great presumption of first-degree murder as to justify denying
bail. Const. art. 1, 7.
5. Bail.
In case where police officer was shot to death, in order to deny bail to accused, state was bound to
produce some competent evidence tending to establish that the accused shot the decedent, and it was not
permissible for the court to arrive at that conclusion by stacking inference upon inference. Const. art.
1. 7.
6. Bail.
Evident proof or great presumption that accused has committed first-degree murder, which is required
before bail may be denied one accused of a capital offense, contemplates more than a mere inference
of guilt of first-degree murder, which might be sufficient to hold one for trial in the
district court.
a mere inference of guilt of first-degree murder, which might be sufficient to hold one for trial in the
district court. Const. art. 1, 7.
OPINION
The state charged Barbara Louise Howard and Thomas Howard, her husband, with the
murder of Police Officer William Fortye on October 28, 1966, at Las Vegas. After a
preliminary examination, both were held to answer in the district court. They entered pleas of
not guilty at the arraignment. A motion for severance was granted. A separate information
was then filed against Barbara in the district court. Soon thereafter, she filed a petition for
habeas corpus to be released on bail pending trial. Her application was denied and she
appealed to this court for relief. We think that the showing made below by the state was
insufficient to allow the court to deny bail. Therefore, on the day scheduled for the oral
argument of this appeal, we ordered her release from confinement, upon giving bail in the
sum of $5,000. This opinion is in explanation of that ruling.
[Headnotes 1-3]
Bail may be denied one accused of murder when, through evident proof or great
presumption, it appears that the defendant has committed first degree murder. Nev. Const.,
Art. 1, 7; Ex parte Wheeler, 81 Nev. 495, 406 P.2d 713 (1965). The burden rests with the
state to supply that proof. Lesser included offenses are bailable as of right, since none of them
is a capital offense.
Here, the state presented to the lower court the transcript of the testimony received at the
preliminary examination, and nothing more. We have examined that record with care and find
it wholly inadequate to show first degree murder, when tested by the constitutional standard
of evident proof or great presumption.
The charge is that Barbara Louise Howard killed Officer Fortye by shooting at and into his
body with a firearm. Four witnesses gave testimony at the preliminary hearing: a pathologist,
a police patrolman, a taxi driver, and a church organist. The pathologist stated that the
autopsy disclosed three gunshot wounds; two of them superficial, and the third a fatal chest
wound. He opined that death occurred within 5 minutes after infliction of the chest wounds
and that none of the wounds was self-inflicted.
after infliction of the chest wounds and that none of the wounds was self-inflicted.
The police patrolman testified that, at 2:30 a.m. on October 28, he received a radio
message from control and proceeded to Highland Boulevard near the Walker Furniture Store.
A police car, with engine running and with all lights on, was stopped on the east side of the
road headed north. Officer Fortye was lying dead beside the left front tire of the car. His tie
was ripped off, his shirt torn and pulled apart. His hat was underneath the front grill of the
car, and his handcuffs lay near the right front tire. The ground was spattered with blood. On
the hood of the police car was a driver's license bearing the name of Thomas Cornelius
Howard.
The taxi driver stated that, at about 2:23 a.m., while driving along Highland at 5 or 10
miles per hour, he saw a police car stopped, facing north. An officer stood beside it, talking to
a negro man. About 15 feet in front and to the right of the patrol car was a light colored
Dodge or Plymouth, in which a negro woman sat behind the steering wheel. He identified
Barbara and Thomas Howard as the two negroes he had observed.
Finally, the church organist testified that he also had driven along Highland Boulevard
about that time. He noticed the two stopped cars. He saw a Negro woman scuffling with
Officer Fortye. She had hold of the officer's sleeves. He then saw a negro man run up and
grab either the officer's arm or the woman's arm. The officer shoved the man back toward a
parked car. The witness did not identify the Howards as the two he had seen scuffling with
the officer during the early morning hours of October 28.
[Headnotes 4-6]
Such was the evidence which persuaded the lower court to deny Barbara Howard's request
to be released on bail, pending trial. As already stated, the charge is that Barbara Howard
willfully and with malice, shot and killed Officer Fortye. Only evidence tending to show the
elements of first degree murder will allow the trial court to deny a bail application. Ex parte
Wheeler, supra. That showing was not made at the preliminary hearing. The most that may be
gathered from the evidence is that Barbara was seen scuffling with the officer about the time
he must have been shot. The connection between that encounter and the shooting is left
wholly to conjecture. If the state possessed evidence tending to establish the elements of first
degree murder, the prosecutor did not offer it. The murder weapon, fingerprint evidence,
ballistic studies, eye witness testimony, admissions, confessions, if any exist, were not
produced.
weapon, fingerprint evidence, ballistic studies, eye witness testimony, admissions,
confessions, if any exist, were not produced. Of course, we do not mean to suggest that the
state must present all of its evidence at the preliminary hearing. We do hold, however, that
some competent evidence tending to establish that the accused shot the decedent is required.
It is not permissible, in ruling on a bail application, to arrive at that conclusion by stacking
inference upon inference. Our constitutional standard requires more. The void in proof is
particularly apparent since the same evidence is relied upon to support the murder charge
against Thomas Cornelius Howard. He also was seen scuffling with the police officer. Which
one of the scufflers shot Forye, or is the culprit someone else who happened upon the
scene? The record does not suggest an answer. The evident proof or great presumption
required by the Constitution before bail may be denied one accused of a capital offense,
contemplates more than a mere inference of guilt of some crime (either first degree murder or
a lesser included offense) which may suffice to hold one for trial in the district court. Cf.
Beasley v. Lamb, 79 Nev. 78, 378 P.2d 524 (1963). We therefore reverse the order of the
lower court, and direct that Barbara Louise Howard be released from custody pending trial,
upon giving bail in the amount of $5,000.
Zenoff, J., concurs.
Collins, J., dissenting:
The evidence presented at the preliminary examination is accurately summarized in the
majority opinion. From that evidence I reach a different conclusion. It is true the evidence is
principally, if not totally, circumstantial as to the fact of the killing, premeditation and
deliberation, but a person can be convicted of a crime at trial, requiring proof beyond a
reasonable doubt, solely upon circumstantial evidence (including murder in the first degree).
In State v. Van Winkle, 6 Nev. 340, 5-6-7 Nev. 648 (1871), at page 656 and 657, it is said:
To this end, it is proper that the jury be admonished in fitting terms that it is essentially
necessary to the security of mankind that juries should convict, when they can do so safely
and conscientiously, upon circumstantial testimony; and that otherwise, the very secrecy with
which crimes are often committed would secure safety to the criminal; * * * and that if the
jury is convinced by the evidence of such guilt beyond such [reasonable] doubt, it is equally
their duty to convict, whether the result is produced by direct or by circumstantial evidence.
Accord: State v. Thompson, 31 Nev. 209, 217
v. Thompson, 31 Nev. 209, 217, 101 P. 557 (1909); State v. White, 52 Nev. 235, 285 P. 503
(1930); State v. Plunkett, 62 Nev. 265, 149 P.2d 101 (1944).
Evidence presented at the preliminary examination showed a violent, vicious killing of the
officer. The time factor is particularly pertinent. At 2:23 a.m. both defendants were identified
and observed at the crime scene in the deceased officer's presence. At 2:30 a.m., seven
minutes later, another officer arrived and found officer Fortye's body under circumstances
described in the majority opinion, including the driver's license belonging to defendant
Thomas Cornelius Howard lying on the hood of the police car. In the interval of those seven
minutes the church organist observed a negro woman scuffling with the officer. No other
persons were seen or observed at the scene. We recently said in Beasley v. Lamb, 79 Nev. 78,
378 P.2d 524 (1963), the state is required only to present enough evidence so as to support a
reasonable inference that the accused committed the offense. Accord: Johnson v. State, 82
Nev. 338, 418 P.2d 495 (1966); Farrell v. State, 83 Nev. 1, 421 P.2d 948 (1967). That burden
of proof applies to murder in the first degree, as well as any other felony or gross
misdemeanor. Are we now to say a different degree of proof is required to hold a defendant
without bail than to bind him over for trial? Here, in my opinion, the state produced sufficient
evidence of a circumstantial nature showing a reasonable inference that murder in the first
degree had been committed, and that defendants committed it. There is in the record evident
proof or great presumption of first degree murder sufficient to hold defendant Barbara
Louise Howard without bail, and satisfy our constitutional requirement.
____________
83 Nev. 53, 53 (1967) Howard v. State
LARRY NORMAN HOWARD, Appellant, v. STATE
No. 5100
January 16, 1967 422 P.2d 548
Defendant was convicted of attempted robbery and state in amended information requested
court to punish defendant as an habitual criminal. The lower court determined that defendant
was not constitutionally entitled to jury trial and sentenced him to life imprisonment, and he
appealed. The Supreme Court, Collins, J., held that the legislature direction that the court
shall determine the habitual criminal issue is not violative of the constitutional right of
trial by jury.
sentenced him to life imprisonment, and he appealed. The Supreme Court, Collins, J., held
that the legislature direction that the court shall determine the habitual criminal issue is not
violative of the constitutional right of trial by jury.
Affirmed.
Jerry Carr Whitehead and Frank J. Fahrenkopf, Jr., of Reno, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and Robert
Gaynor Berry, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
The word court in habitual criminal statute providing that court shall determine issue of previous
conviction means judge and not judge and jury. NRS 207.010, subd. 4.
2. Criminal Law.
Habitual criminal proceeding does not charge a separate offense, but is held solely to determine facts,
which if true, will increase punishment. NRS 207.010.
3. Criminal Law.
Being an habitual criminal is not a separate offense, but a status. NRS 207.010.
4. Criminal Law.
Habitual criminal hearing is procedural. NRS 207.010, subd. 4.
5. Criminal Law.
Habitual criminal statute does not increase punishment of the principal offense, but simply allows
enlarged punishment for one who cannot be rehabilitated, and who repeatedly violates the law. NRS
207.010.
6. Criminal Law.
Society has right to remove from its ranks for a longer time those who refuse to conform to a lawful
mode of living.
7. Criminal Law.
In an habitual criminal hearing, state must prove beyond a reasonable doubt the identity of the person
and conviction of prior felonies. NRS 207.010, subd. 4.
8. Criminal Law.
Trial judge alone may receive proof in habitual criminal hearing. NRS 207.010, subd. 4.
9. Jury.
Trial by jury as used in constitutional provision that right of trial by jury shall remain inviolate
means trial as it existed at the common law as of the time of adoption of state charter. Const. art. 1,
3.
10. Jury.
Parties cannot be deprived of trial by jury who were entitled to demand it and before formation of the
Constitution and cases not having the right at that time to demand a jury, cannot now demand a jury
as of right, because of constitutional provision.
demand a jury as of right, because of constitutional provision. Const. art. 1, 3.
11. Jury.
Defendant was not entitled to a jury trial relative to his prior convictions in habitual criminal proceeding.
Const. art. 1, 3; NRS 207.010, subd. 4.
12. Jury.
Habitual criminal hearing is not a case in a constitutional sense, and there is no right to trial by jury.
NRS 207.010, subd. 4; Const. art. 1, 3.
13. Jury.
Legislative direction in habitual criminal statute that the court shall determine the issue does not violate
jury trial provision of Constitution. Const. art. 1, 3; NRS 207.010, subd. 4.
OPINION
Appellant was found guilty of the crime of attempted robbery, a felony. In an amended
information the state alleged appellant to have been previously convicted of three felonies and
requested the court to punish him as an habitual criminal as authorized in NRS 207.0101 at
the habitual criminal hearing the appellant contended that he was constitutionally entitled to
have a jury trial. The court ruled against him, heard the evidence, found him to have been
previously convicted of three felonies and sentenced him to life imprisonment.
____________________

1
207.010 Habitual criminals: Definition; punishment; trial of primary offense.
1. Every person convicted in this state of any crime of which fraud or intent to defraud is an element, or of
petit larceny, or of any felony, who shall previously have been twice convicted whether in this state or
elsewhere, of any crime which under the laws of the situs of the crime or of this state would amount to a felony,
or who shall previously have been three times convicted, whether in this state or elsewhere, of petit larceny, or of
any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, shall be adjudged to
be an habitual criminal and shall be punished by imprisonment in the state prison for not less than 10 years.
petit larceny, or of any felony, who shall previously have been three times convicted, whether in this state or
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.
3. In proceedings under this section, each previous conviction shall be alleged in the accusatory pleading
charging the primary
heard the evidence, found him to have been previously convicted of three felonies and
sentenced him to life imprisonment. From that ruling and sentence he appeals.
[Headnote 1]
Appellant urges that Article 1, Section 3 of the Nevada Constitution which provides, The
right of trial by Jury shall be secured to all and remain inviolate forever, renders infirm NRS
207.010(4) (see footnote 1). In the alternative he contends that the statute can be
constitutionally upheld if the word court be construed to mean judge and jury rather than
judge alone. We disagree, approve the ruling and affirm the conviction.
[Headnotes 2-6]
The authorities are in complete agreement that an habitual criminal proceeding does not
charge a separate offense, but is held solely to determine facts, which if true, will increase
punishment. State v. Bardmess, 54 Nev. 84, 7 P.2d 817 (1932); Carter v. State, 79 Nev. 89,
378 P.2d 876 (1963); Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966); Hollander v. State,
82 Nev. 345, 418 P.2d 802 (1966); Graham v. West Virginia, 224 U.S. 616 (1912); State v.
Mayo, 101 So. 228 (Fla. 1924); State v. Furth, 104 P.2d 925 (Wash. 1940); Haffke v. State,
30 N.W.2d 462 (Neb. 1948); Poppe v. State, 52 N.W.2d 422 (Neb. 1952); State v. Morton,
338 S.W.2d 858 (Mo. 1960); State v. Hoffman, 385 P.2d 741 (Ore. 1963); Tyson v. Hening,
136 S.E.2d 832 (Va. 1964). It is not a separate offense to be an habitual criminal, but a status.
State v. Hoffman, supra. The hearing is procedural, is not a separate crime, and does not
increase punishment of the principal offense for which a defendant is on trial. The statute
simply allows enlarged punishment for one who cannot be rehabilitated, and who as a
recidivist, repeatedly violates the law.
____________________
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.
4. If a defendant charged under this section is found guilty of, or pleads guilty to, the primary offense, but
denies any previous conviction charged, the court shall determine the issue of such previous conviction after
hearing all relevant evidence presented on such issue by the prosecution and the defendant. The court shall
impose sentence pursuant to subsections 1 and 2 of this section upon finding that the defendant has suffered
previous convictions sufficient to support an adjudication of habitual criminality.
5. Nothing in this section limits the prosecution in introducing evidence of prior convictions for purposes of
impeachment.
6. Presentation of an exemplified copy of a felony conviction shall be prima facie evidence of conviction of
a prior felony.
simply allows enlarged punishment for one who cannot be rehabilitated, and who as a
recidivist, repeatedly violates the law. Society has the right to remove from its ranks for a
longer time those who refuse to conform to a lawful mode of living.
[Headnotes 7, 8]
At the hearing of a person alleged to be an habitual criminal two facts must be proved: (1)
identity of the person; and (2) conviction of prior felonies. The state's proof must be beyond a
reasonable doubt. Hollander v. State, supra. We hold that the trial judge alone may receive
that proof.
[Headnotes 9, 10]
The words trial by jury referred to in the Nevada Constitution (Art. I, Sec. 3) mean trial
as it existed at the common law as of the time of adoption of our state charter. In State v.
McClear, 11 Nev. 39 (1876), at page 44, a statement is found having to do with trials by jury
and is appropriate: This provision [Art. I, Sec. 3, Nevada Constitution] has reference to the
right of trial by jury as it existed at the time of the adoption of the Constitution, and we are
called upon to determine what were the constitutional elements of a jury as understood at that
time. It has been frequently decided in many of the older states that the trial by jury
contemplated by the constitution is a trial by a common law jury. And at page 52, this court
further said: Cases which before the constitution were not triable, need not be made so now.
Parties cannot now be deprived of trial by jury who were entitled to demand it at and before
the formation of the constitution. And, on the other hand, cases not having the right at that
time to demand a jury, cannot now demand a jury as of right, because of the constitutional
provision.
[Headnotes 11-13]
What we have said before relative to the nature of the habitual criminal hearing irresistibly
draws us to the conclusion that it is not a case in the constitutional sense and appellant has
no right to a jury trial. The legislative direction that the court shall determine the issue is
constitutional.
Judgment affirmed.
____________
83 Nev. 58, 58 (1967) Rains v. State
ROBERT D. RAINS, Appellant, v. THE STATE
No. 5133
January 18, 1967 422 P.2d 541
Appeal from conviction of the court sitting without a jury of violation of NRS 205.272,
Unlawful Taking of Vehicles. Fourth Judicial District Court, Elko County; Taylor H. Wines,
Judge.
Defendant was convicted in the lower court of taking a vehicle without permission of the
owner, and he appealed. The Supreme Court, Zenoff, J., held that although defendant had a
right to trial by jury such right was subject to waiver, and where defendant and the state
consented to trial without a jury defendant would not be relieved of his choice on theory no
waiver of jury trial is permitted in criminal cases.
Affirmed.
Batjer and Sheerin, of Carson City, for Appellant.
Harvey Dickerson, Attorney General, and Joseph O. McDaniel, District Attorney, Elko
County for Respondent.
1. Jury.
The right to a jury trial in a criminal case can be waived by defendant, although defendant has no
absolute right to compel a trial without a jury. Const. art. 1, 3; NRS 174.480.
2. Criminal Law.
Defendant's only constitutional right concerning method of trial is to an impartial trial by jury.
Const. art. 1, 3.
3. Jury.
The right to a jury trial is a personal privilege, but is subject to constitutional or statutory mandate.
4. Criminal Law.
Statute providing that issues of fact must be tried by jury, unless a trial by jury be waived by consent
of both parties supplements statute providing that conviction must be based on verdict or a judgment, and
does not conflict with it. NRS 169.190, 174.480.
5. Jury.
Although a defendant had a right to trial by a jury in a prosecution for taking a vehicle without
consent of owner, such right was subject to waiver, and where defendant and the state consented to trial
without a jury defendant would not be relieved of his choice on theory no waiver of jury trial is permitted
in criminal cases. Const. art. 1, 3; NRS 174.480.
83 Nev. 58, 59 (1967) Rains v. State
6. Automobiles.
Evidence was sufficient to sustain conviction for taking a vehicle without consent of the owner. NRS
205.272.
OPINION
On July 20, 1965 Mr. and Mrs. Larry Crouch owned a certain 1965 Harley-Davidson
motorcycle which was parked in their backyard in Elko. On that evening at about 10:00 p.m.
Mrs. Crouch covered the vehicle, went to pick up her husband who was at church, and upon
their return 15 minutes later, the bike was gone.
At approximately 10:35 p.m. a Nevada Highway Patrolman learned of the stolen
motorcycle which he had seen pass him a few minutes earlier. He set off in pursuit and
identified the person on the motorcycle as the defendant. The defendant attempted to outrun
the officer at 90 miles per hour through Carlin Canyon on U.S. Highway 40 until the
motorcycle ran out of gas. Defendant was hiding in the brush when he was discovered and
handcuffed by the officer.
At the trial there was eye witness testimony, in addition to the above, that a person of the
size and description of the defendant was seen pushing a motorcycle in the vicinity of the
Crouch residence the evening in question. Rains testified that he and a friend had met two
strangers at a hotel in Elko, that they bet him that he could not ride their motorcycle, that it
was parked outside the hotel at about 10:30 p.m. on that evening when he accepted their dare,
and that he thought that the strangers owned it. There was no other testimony to support his
explanation, only that of his companion who said he overheard Rains and two young men
talking about motorcycles.
Rains was charged with violation of NRS 205.272, taking vehicle without consent of
owner. At the commencement of trial, his attorney and the district attorney waived a jury. The
court found defendant guilty and he was sentenced to prison from one to ten years. Appealing
from that conviction, he contends that although a trial by jury was waived by both parties the
court had no right to accept the waiver for the reason that a proper construction of Nev.
Const. art. 1, 3, provides: The right of trial by jury shall be secured to all and remain
inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner
to be prescribed by law; * * * NRS 174.4S0 states as follows: "Issues of fact: How tried.
83 Nev. 58, 60 (1967) Rains v. State
NRS 174.480 states as follows: Issues of fact: How tried.
1. Issues of fact must be tried by jury, unless a trial by jury be waived by consent of both
parties expressed in open court and entered in its minutes.
2. In cases of misdemeanor the jury may consist of 12, or any number less than 12 upon
which the parties may agree in open court.
The latter statute was amended in 1961 to its present form. Prior to the amendment,
Section 1 read: Issues of fact must be tried by jury, unless a trial by jury be waived in cases
not amounting to a felony, by consent of both parties expressed in open court and entered in
its minutes.
Rains asserts that since the Nevada Constitution mentions only the right of waiver of a jury
trial in civil cases, ergo, no waiver is permitted in criminal cases. He suggests that the public
policy of this state supports this position and requires a trial by jury in a criminal case and the
jury cannot be waived.
He further contends that application of NRS 174.480 (which conditions a defendant's right
to waive a jury upon the consent of the other party, the State) to criminal cases would be in
derogation of the state constitutional provision mentioned above and not consistent with NRS
169.190. If this be so, the waiver stated in open court by defendant's counsel and the
prosecutor was invalid and the court had no jurisdiction to proceed absent the jury.
[Headnotes 1-3]
1. The right to a jury trial in a criminal case can be waived, but the ability to waive the
constitutional right does not ordinarily carry with it the right to insist upon the opposite of
that right, i.e., although a defendant can under some circumstances waive his constitutional
right to a public trial he has no absolute right to compel a private trial. The defendant's only
constitutional right concerning the method of trial is to an impartial trial by jury. Singer v.
United States, 380 U.S. 24 (1965); Patton v. United States, 281 U.S. 276 (1930). The right to
a jury trial is a personal privilege, but yet still subject to constitutional or statutory mandate.
Schick v. United States, 195 U.S. 65, 72 (1904). Just as the federal government has
recognized that the waiver of a jury trial has a proper place in its system of criminal justice
the states have done likewise for their systems. (This state with NRS 174.480.)
Requiring the consent of the prosecutor or court, or both, before a waiver becomes
effective is a reasonable protective condition. The premise is that society has a legitimate
interest in seeing that cases in which it believes a conviction is warranted are tried before the
tribunal which the constitution regards as most likely to produce a fair result.
83 Nev. 58, 61 (1967) Rains v. State
regards as most likely to produce a fair result. Singer v. United States, supra; Alldredge v.
State, 156 N.E.2d 888 (Ind. 1959); State v. Taylor, 391 S.W.2d 835 (Mo. 1965); Cornell Law
Quarterly, Vol. 51, Page 339 (1966).
This state in State v. McClear, 11 Nev. 39 (1876), held that the state has certain rights as
well as the prisoner. The people need protection as well as the defendant who is accused of
the crime. The right of trial by jury as guaranteed by the constitution is as much for the
protection of the whole people as for the individual prisoner.
We reaffirm the policy of McClear. Nev. Const. art. 1, 3, wherein it relates to trial by
jury has not been changed since its adoption. We perceive no reason to depart from
well-established authority in its interpretation.
[Headnote 4]
Appellant's public policy argument has little credence in light of the legislative history of
NRS 174.480. We likewise interpret the statute as supplementing NRS 169.190 rather than
conflicting with it.
1

[Headnote 5]
In this case all parties consented to the trial proceeding without a jury. The defendant will
not now be allowed to be relieved of his choice.
[Headnote 6]
2. The defendant also alleges as error that the state failed to produce evidence showing
that he had the requisite intent to deprive the owner of his vehicle. In Harvey v. State, 78 Nev.
417, 420, 375 P.2d 225 (1962), this court said that the question of whether the property was
originally taken with such intent (felonious) is one of fact, the determination of which is to be
made from a consideration of all the circumstances preceding, attending and following the
taking of the property. (Citing State v. Cudney, 47 Nev. 224, 218 P. 736.) This case is
replete with facts which entitled the trier to find that the requisite intent was sufficiently
proved.
Affirmed.
____________________

1
NRS 169.190: Conviction must be based on verdict or judgment. No person can be convicted of a public
offense, tried by indictment or information, unless by a verdict of a jury, accepted and recorded by the court, or
upon a plea of guilty, or when he refuses to plead after judgment against him upon a demurrer to the indictment
or information.
____________
83 Nev. 62, 62 (1967) Hudson v. District Court
JOSEPH HICKS HUDSON Petitioner, v. EIGHTH JUDICIAL DISTRICT
COURT, in and for the County of Clark, Respondent.
No. 5127
January 23, 1967 422 P.2d 688
Original proceedings in prohibition.
Proceedings to restrain district court from proceeding with petitioner's trial on appeal for
violation of municipal ordinance. The Supreme Court, Zenoff, J., held that statutes, reviewed
in their entirety, reflect an intention of legislature to provide a right to jury trial to one who
has appealed to the district court from a conviction in the municipal court for municipal
ordinance violation.
Relief granted.
Robert L. Reid, of Las Vegas, for Petitioner.
Sidney R. Whitmore, City Attorney, and James M. Bartley, Assistant City Attorney, Las
Vegas, for Respondent.
1. Jury.
Trial of criminal offenses unknown to common law were never within scope of constitutional right to
jury trial, and legislature may grant right to jury trial in such cases.
2. Jury.
Statutes, reviewed in their entirety, reflect an intention of legislature to provide a right to jury trial to
one who has appealed to the district court from a conviction in the municipal court for municipal
ordinance violation. NRS 189.050, 189.080, 266.550, 266.595.
OPINION
Petitioner Joseph Hicks Hudson, was arrested and convicted in Las Vegas for violating a
municipal ordinance, to wit: Contributing to the delinquency of a minor. The ordinance
incorporates by reference certain acts which have been declared misdemeanors by the State
and makes them misdemeanors under local law.
LAS VEGAS CITY CODE: Sec. 6-1-34. STATE MISDEMEANORS: The commission
of any act within the Corporate Limits of the City, or the failure to perform any act
within such Corporate Limits, which is made a misdemeanor by the laws of the State is
hereby declared to be and shall constitute a misdemeanor.
Petitioner seeks a writ of prohibition from this court to restrain the District Court of the
Eighth Judicial District from proceeding with this trial (on appeal) for violation of the said
city ordinance. He contends that the district court is without jurisdiction to proceed in that he
is entitled under the Constitution and by statute to a jury trial.
The question is: Does the petitioner, having been convicted and sentenced in the municipal
court for the commission of a misdemeanor, upon and by virtue of such appeal, have a
constitutional and/or statutory right to a jury trial in the district court?
The petitioner was before this court prior to his first trial and we then determined that a
defendant charged with violation of a municipal ordinance does not have a right to trial by
jury in the municipal court. Hudson v. City of Las Vegas, 81 Nev. 677, 409 P.2d 245 (1965);
NRS 266.550. However, Hudson was found guilty in the lower court and appealed to the
district court, where he demanded a trial by jury on the grounds that an appeal is de novo and
that the Nevada statutes allow him a jury in the district court although denied to him in the
municipal court.
NRS 266.595 provides the right of appeal to the district court from any final judgment of
the municipal court in the same manner and with the same effect as appeals from justice court
in civil or criminal cases. Through NRS 189.050 an appeal duly perfected from justice court
transfers the action to the district court for trial anew. The procedure on appeal is determined
by NRS 189.080 which provides that the proceedings shall be the same as in criminal actions
originally commenced in the district court.
[Headnote 1]
1. The trial of criminal offenses unknown to the common law were never within the scope
of the constitutional right to jury trial; the legislature may grant the right to a jury trial in such
cases. State v. Ketterer, 79 N.W.2d 136, 140 (Minn. 1956). Some states with statutes
containing the same or similar provisions as those of Nevada have interpreted them to mean
that no greater right exists on appeal than was afforded at the original trial in municipal court.
State v. Ketterer, supra; State v. Cousins, 397 P.2d 217, 219 (Ariz. 1964). Other states,
however, have adopted a contrary view. For example, where a statute regarding appeals from
a justice of the peace and police magistrates specifies that appeals be taken to the district
court in the same manner provided by law from justice of the peace courts in criminal
cases, they are dealt with as criminal cases: by "criminal cases," is meant cases in violation
of the laws of the state.
by criminal cases, is meant cases in violation of the laws of the state. They hold that the
violation of an ordinance, being on the same footing as a crime under the criminal laws of the
state, must, under the language of statutes like NRS 189.080, be tried in the same manner (by
jury) unless waived. This is held to be true when a case originates in a justice court and is
then appealed, for on the appeal the trial is de novo. The case is then considered as if it had
originated in the district court. State ex rel. Suchta v. District Court, 283 P.2d 1023, 1024
(Wyo. 1955); State v. Romich, 176 P.2d 204, 210 (Idaho 1946); Miller v. Winstead, 270 P.2d
1010, 1012 (Idaho 1954); City of Birmingham v. Williams, 155 So. 877, 878 (Ala. 1934).
[Headnote 2]
This state has not heretofore passed on the question. In State ex rel. Callahan v. Second
Judicial District Court, 54 Nev. 377, 18 P.2d 449 (1933), an appeal from municipal court was
tried before a jury in district court, but there is no indication that any issue concerning the
right to have a jury trial at that stage was considered. Ex parte Ohl, 59 Nev. 309, 92 P.2d 976
(1939), escaped the problem because of the limited area of review by a writ of habeas corpus.
There, the court considered the wrongful denial of a jury trial an error within jurisdiction
which had to be tested on appeal, and not by the writ of habeas corpus.
A review of the authorities affords but one conclusion: the determination of the issue must
be found from the legislative intent as reflected in the statutes. We find such intention in a
legislative expression of NRS 6.170 which provides, where criminal * * * cases originating
in the municipal court * * * are brought before the district court, the county clerk shall give a
statement of the amount due to the jurors * * * to the district judge, who shall, on approval
thereof * * * direct the treasurer of the town or city to pay the same. Unless a trial by jury
was contemplated, there is no purpose for the statute.
We hold, therefore, that the Nevada statutes reviewed in their entirety reflect that the
intention of the legislature was to provide a right to jury trial to one who appeals from
conviction in the municipal court.
1
The Eighth Judicial District Court in and for the County
of Clark shall proceed to set this matter for trial in the same manner as criminal cases
originating in that court.
____________________

1
We are not unmindful that this ruling will add to the existing burdens of the congested trial calendars of the
district courts in Nevada. This, however, is a legislative matter.
The Eighth Judicial District Court in and for the County of Clark shall proceed to set this
matter for trial in the same manner as criminal cases originating in that court.
____________
83 Nev. 65, 65 (1967) In re Schaengold
In The Matter of the PETITION of MELVIN EDWARD SCHAENGOLD for Review of
Recommendation of Board of Bar Examiners That Membership in the State Bar of Nevada be
Denied.
No. 5231
January 23, 1967 422 P.2d 686
Original proceeding in Supreme Court for review of recommendation of Board of Bar
Examiners that petitioner's application for membership in state bar and admission to practice
be denied, and to set aside Board's recommendation. The Supreme Court, Thompson, C. J.,
held that applicant who was intellectually and morally qualified could not be denied
admission simply on ground that he had history of mental illness, where applicant had never
been judicially declared incompetent, nor hospitalized other than by a voluntary admission,
and where psychiatrist appointed by Board of Bar Examiners to examine applicant refused to
pass judgment upon applicant's ability to function as a lawyer.
Petition granted and petitioner admitted to practice.
Melvin Edward Schaengold, Petitioner, In Propria Persona.
Jerry Carr Whitehead, of Reno, for the Board of Bar Examiners, State Bar of Nevada.
1. Attorney and Client.
Applicant who was intellectually and morally qualified for admission to membership in state bar
could not be denied admission on ground that he had history of mental illness, where applicant had never
been judicially declared incompetent, nor hospitalized other than by a voluntary admission, and where
psychiatrist appointed by Board of Bar examiners to examine applicant refused to pass judgment upon
applicant's ability to function as a lawyer. SCR 51, 70, 72, 114.
The practice of law is not matter of state's grace or favor, but it is a right for those who possess necessary
qualifications.
OPINION
Melvin Schaengold passed the Nevada bar examination in 1965, but has not yet been
admitted to practice. The Board of Bar Examiners recommends that he be denied admission
because he has had a long and sustained history of mental illness which, in the opinion of
the Board, impairs his judgment and ability to give advice to others. Three hospitalizations,
the current testimony of a psychiatrist, and isolated occurrences in the life of Schaengold are
the touchstone of its recommendation. We are asked to review that recommendation and
decide whether Schaengold is eligible to practice law in Nevada. It is our judgment that he
should be admitted to practice.
The applicant is a 48-year-old native citizen of the United States, a graduate of an
approved law school, and a member in good standing of the Ohio bar since 1944. During the
course of his professional career there, a number of complaints were lodged against him.
None resulted in disciplinary action. Since coming to Nevada in 1964, be has supported
himself mainly by doing legal research for various lawyers in this state. Letters from Ohio
and Nevada attorneys attesting to his legal competency and good moral character are in the
file before us. Indeed, the Board does not challenge his intellectual attainment or his good
moral character. The recommendation against admission to the bar rests upon the notion that
his mental illness suggests that he is now, and will continue to be, unfit to assume the
responsibilities of a lawyer.
[Headnote 1]
We do not share that view. The applicant has never been judicially declared incompetent,
nor hospitalized other than by voluntary admission. In 1942, while a member of the armed
forces, he became severely depressed and attempted suicide. His wife's illness precipitated
this conduct. He was hospitalized for a few days. The staff psychiatrist recommended a
disability discharge, which was granted. He returned to law school, completed his studies,
and embarked upon a legal career in Ohio. More than 21 years later he voluntarily admitted
himself for treatment to the Los Angeles County General Hospital, following another suicide
attempt. He had ingested about 100 aspirin tablets.
tablets. His depression on that occasion resulted from a shattered love affair. He was treated
and observed for one week, released, and returned to Cincinnati where he voluntarily
admitted himself to the Jewish Hospital for further treatment. Twelve days later he was
released with the recommendation that he continue to receive supportive psychotherapy.
The applicant has made no effort to conceal his misfortunes from the Board. He has been
candid and forthright in response to inquiry. The Board suggested a current psychiatric
examination, to which the applicant agreed. The doctor found him to be suffering from a form
of psychosis characterized by a loosening of the thinking processes under pressure, which
condition the doctor believes to be permanent. We think it noteworthy, however, that the
doctor was unwilling to pass judgment upon Schaengold's ability to function as a lawyer.
1

Isolated instances of poor emotional control are cited in the Board's report to us. In 1963
he committed an assault upon his girl friend in Los Angeles and was found guilty of a breach
of the peace. The conviction was later expunged, pursuant to a statutory procedure. During
the course of the Board's investigation, the applicant delivered a pocket copy of a book to the
Secretary of the Board, with an acerbic inscription. At the hearing held by the Board, those
present thought that the applicant was on the verge of losing self-control. The recited
happenings are pointed to as corroborative of mental illness.
No case is cited denying bar admission for the reasons advanced here, nor have we found
one. SCR 51,
2
governing the qualifications of applicants, does not preclude Schaengold.
____________________

1
Q. Have you any evidence in those records where that (confusion) had any adverse effect on others than
the applicant?
A. No, I don't. I think something ought to be clarified here. It is not my role to determine your role or
ability to function in the legal area, and I have never said anything about this area on the work up. My role is
solely to examine your thinking and to present it to the Board. If they want to make a judgment in terms of how
you function as an attorney, this is their decision, not mine.

2
SCR 51 reads: An applicant for examination for a license to practice as an attorney and counselor at law in
this state shall:
1. Be a citizen of the United States of America.
2. Have attained his majority.
3. Have been, and still be, a bona fide resident of the State of Nevada for a period of at least 6 months
preceding the examination for which he applies, and shall have been physically present within the State of
Nevada during all of the 6-month period for which bona fide residence is claimed. Should a bona fide resident,
after completing the 6-month residence requirement above, absent himself from Nevada with the intention in
good faith to return without delay and continue his residence, the time of such absence shall not result in the loss
of the applicant's bona fide residence.
the qualifications of applicants, does not preclude Schaengold. One need not show the
absence of recorded emotional disturbance, or mental illness, before being eligible to write
the bar examination. SCR 70 refers to the denial of admission to practice, for failure to pass
the examination or upon the applicant's failure to qualify in any other particular. The quoted
phrase refers to the qualifications expressed in SCR 51 and does not embrace the case before
us. SCR 72 deals with a denial of admission, for failure to meet character standards, and does
not touch this case. SCR 114 does allude to mental incompetency, but is operative only
against those who are licensed to practice in this state and later become ill.
Perhaps we possess inherent power to deny admission for reasons other than those
expressed in our rules of court. The Board presses the thought that we do possess such power
and asks that we invoke it here. We need not decide the point. We are impelled to rule for Mr.
Schaengold mainly because of the uncertainty which inheres in evaluating mental and
emotional disturbances. Psychiatry is far from being an exact science. A mental or emotional
disturbance requiring treatment is not an uncommon experience for many successful business
and professional people. We fear that a grave injustice may result if we were to approve the
Board's recommendation. The price of error is too great.
[Headnote 2]
The practice of law is not a matter of the State's grace or favor. Ex parte Garland, 4 Wall.
333 (1866); Schware v. Board of Bar Examiners. 353 U.S. 232 (1957). For those who
possess the necessary qualifications it is a right.
____________________
4. If application for admission is made prior to September 12, 1966, have completed satisfactorily 2 years
of college work in an accredited college or university.
5. If application for admission is made after September 12, 1966, have completed satisfactorily 3 years of
college work in an accredited college or university, or have completed satisfactorily 2 years of college work if he
was enrolled in a 4-year full-time law school program of an accredited college or university, and shall present
evidence of the same.
6. Have received a degree of bachelor of laws, or an equivalent law degree, from a law school approved by
the committee on legal education and admissions to the bar of the American Bar Association, and shall present
evidence of the same.
7. Demonstrate that he is of good moral character and that he is willing and able to abide by the high ethical
standards required of attorneys and counselors at law.
8. Not have been refused admission to practice law, or have been disbarred from the practice of law, in any
state or before any court or governmental agency of the United States on the ground of unfitness of character.
possess the necessary qualifications it is a right. Ex parte Kellar, 81 Nev. 240, 401 P.2d 616
(1965); Willner v. Committee on Character, 373 U.S. 96 (1963). We hold the Board of Bar
Examiners in high regard and appreciate its untiring service to this court and to the Bar of
Nevada. The ultimate responsibility, however, rests with us. On the record before us, we
conclude that Melvin Schaengold is entitled to practice law in Nevada. It is so ordered.
____________
83 Nev. 69, 69 (1967) Barsland, Inc. v. Shaw
BARSLAND, INC., a Nevada Corporation, Appellant,
v. RUTH L. SHAW, Respondent.
No. 5157
January 30, 1967 422 P.2d 1003
Appeal from the Second Judicial District Court, Washoe County; Thomas O. Craven,
Judge.
Action by manager against corporate employer for breach of management contract. The
trial court rendered judgment for plaintiff, and defendant appealed. The Supreme Court,
Thompson, C. J., held that evidence was sufficient to sustain finding that management
contract providing that manager should be paid salary of $350 per month for term of five
years, that manager could be fired for good cause on 30 days' written notice, and that
employer could terminate employment contract without cause by paying manager sum equal
to $350 per month for remainder of employment, was not modified by parties and that
employer had terminated management contract without cause.
Affirmed.
Vargas, Dillon, Bartlett & Dixon, and Melvin Brunetti, of Reno, for Appellant.
Hawkins, Rhodes & Hawkins and A. D. Jensen, of Reno, for Respondent.
Upon consideration by Supreme Court on appeal of question of whether evidence supported jury
determination, Supreme Court was bound to assume that jury believed evidence most favorable to
respondent.
2. Master and Servant.
In suit by manager against corporate employer for breach of management contract providing that manager
should be paid salary of $350 per month for term of five years, that manager could be fired for good cause
on 30 days' written notice, and that employer could terminate employment contract without cause by paying
manager sum equal to $350 per month for remainder of employment, evidence sustained finding that
contract was not modified by parties and that employer had terminated contract without cause.
3. Fraud.
Evidence that individual who owned corporate defendant was man of wealth was admissible as relevant
to affirmative defense of fraud.
4. Fraud.
Information disclosing disparity between litigants in business activity and background may aid in
resolving charge of fraud.
5. Fraud.
Charge of fraud raised in complaint or at trial permits greater latitude of inquiry at trial.
6. Master and Servant.
In suit by manager against corporate employer for breach of management contract, evidence concerning
relationship of employer's sole stockholder with certain woman, and suggesting that to please her the
stockholder purchased from plaintiff the property which was subject of management contract was
admissible as having some bearing upon issue of fraud raised by corporate employer as affirmative defense.
OPINION
This is an action to recover damages for breach of a management contract. Ruth Shaw,
plaintiff, claims that the contract was terminated without cause by Barsland, Inc., defendant.
The case was tried to a jury. It favored Shaw with a verdict and fixed her damages at $18,900.
Judgment was entered upon the verdict. This appeal by Barsland challenges the sufficiency of
the evidence to support the trial result, and certain evidentiary rulings. It is our opinion that
the challenges are unsound. Therefore, we affirm the judgment.
1. On January 9, 1963, Shaw and Barsland signed escrow instructions to Pioneer Title
Insurance Company which, if performed, would accomplish a transfer of ownership of
Shangri La Guest House, Reno, Nevada, from Shaw to Barsland. The purchase price was
$110,000; $50,000 down, and payment of the $60,000 balance to be evidenced by a
promissory note in that amount, secured by a trust deed, and payable $30,000, or more, plus
6 percent interest one year later, and $30,000, or more, plus 6 percent interest two years
later.
$30,000, or more, plus 6 percent interest one year later, and $30,000, or more, plus 6 percent
interest two years later. The down payment was made, and the note and securing instrument
were duly executed.
Later that same day the parties entered into a management contract by which Barsland
agreed to employ Shaw as manager of Shangri La for the term of 5 years at a salary of $350
per month. Among other provisions, the contract stated: Barsland may terminate Shaw's
employment for good cause on 30 days' written notice. If Barsland desires to terminate this
employment contract without cause, it may do so at any time by paying to Shaw a sum equal
to $350 per month for the then remainder of the term of employment hereunder. The
obligations of Barsland under this contract shall not be terminated by a sale or other
disposition of the Shangri La property and, in such event, Barsland shall be obligated to
terminate this contract in accordance with the provisions of this paragraph.
[Headnote 1]
Relying upon the quoted proviso, Shaw commenced suit, contending that her employment
was terminated without cause. Barsland answered, asserting that it had cause to terminate,
pleaded the affirmative defense of fraud, and counterclaimed, seeking to rescind the sale and
the management contracts. Barsland also urged that the sale and management contracts were
later modified and, as modified, were fully performed and the parties discharged from further
liability. This latter contention is again pressed on appeal, Barsland conceding that the jury
could permissibly find for Shaw on all other issues raised in defense. Our inquiry, then, is
whether the evidence will support the jury's conclusion that the management contract was not
later modified. In resolving this inquiry we are obliged to assume that the jury believed the
evidence most favorable to Shaw. On that assumption, the evidence to sustain the verdict is
ample. We need not recite all of it. A brief statement will suffice.
[Headnote 2]
In October 1963 Barsland informed Shaw that she had failed to properly perform her
duties as manager. Negotiations followed. Later that month Barsland paid off the balance due
on the escrow contract of sale, and then notified Shaw that her management contract was
terminated for cause. The premature pay-off of the sale contract and termination notice of the
management contract are pointed to by Barsland as conclusive evidence of a meeting of the
minds that the original agreements were modified and canceled.
evidence of a meeting of the minds that the original agreements were modified and canceled.
On the other hand, Shaw directs our attention to the fact that, during the October discussions,
nothing was said about terminating her management contract; that an accelerated payment of
the balance of the purchase price was permitted under the escrow contract of sale and was
not, therefore, inconsistent with the terms of that contract; that the termination notice, which
Barsland gave after paying the balance due on the sale contract, was an acknowledgment that
the management contract was still in existence and expressly fixed her damages should
Barsland terminate it without cause. Clearly, the jury could accept Shaw's view of the
meaning to be given the premature pay-off and termination notice, find that the management
contract was not modified and grant her a recovery in damages for breach of the management
contract. The jury's factual determination finds support in the evidence and may not be
disturbed by this court.
[Headnotes 3-5]
2. Barsland, Inc. was wholly owned by Frederick Barton, a man of extensive business
experience and the owner of many business enterprises. During trial, over objection,
searching inquiry was made into his wide business activity and background. That inquiry also
suggested that Barton was a man of wealth. Counsel for Barton argues that the disclosure was
prejudicial. The court correctly allowed that evidence to come in, for it possessed relevance to
the affirmative defense of fraud. Information disclosing a disparity between litigants in
business activity and background may aid in resolving the charge of fraud. Puget Sound
National Bank v. McMahon, 330 P.2d 559 (Wash. 1958). Indeed, a charge of fraud permits a
greater latitude of inquiry. Simpson v. Harris, 21 Nev. 353 (1893); Robt. Pierce Co. v.
Sherman Gardens, 82 Nev. 395, 419 P.2d 781 (1966).
[Headnote 6]
Evidence was also received concerning Barton's relationship with a woman guest at
Shangri La which, if believed, would suggest that Barton wished to purchase the guest home
to please her. Such evidence was properly allowed as having some bearing upon the issue of
fraud.
We perceive no error in the trial.
Affirmed.
____________
83 Nev. 73, 73 (1967) Jacobs v. Jacobs
RAY D. JACOBS, Appellant, v. GWYNELLE
JACOBS, Respondent.
No. 5134
January 31, 1967 422 P.2d 1005
Appeal from decree ordering separate property of the husband to the wife for her support.
Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Divorce action. The trial court rendered judgment ordering husband to execute to wife all
his interest in their home for her future support, maintenance and security, and husband
appealed. The Supreme Court, Zenoff, J., held that statute providing that divorce court could
set aside such portion of husband's property for support of wife and their children as should
be deemed just and equitable authorized trial court to set aside husband's interest in their
home where wife had genuine need for house in that she was advancing in years and
declining in health and where the setting aside was not used as a vehicle to do equity between
the parties.
Affirmed.
Frank R. Petersen, of Reno, for Appellant.
Oliver C. Custer, of Reno, for Respondent.
Divorce.
Statute providing that divorce court can set aside such portion of husband's property for support of
wife and their children as should be deemed just and equitable authorized trial court in divorce action to
set aside husband's interest in their home for her future support, maintenance and security where wife had
genuine need for home in that she was advancing in years and declining in health and where the setting
aside was not used as a vehicle to do equity between the parties. NRS 125.150, subds. 3, 4.
OPINION
Ray and Gwynelle Jacobs were married in Reno on January 23, 1956. No children were
born of this union, although they reared two children of Ray's prior marriage. Gwynelle
worked part time, while Ray was sporadically employed in various businesses and jobs.
Gwynelle, from the early days of the marriage, became the principal supporter of the family,
and her financial burdens included the paying off of Ray's extensive obligations incurred
prior to and during the marriage.
and her financial burdens included the paying off of Ray's extensive obligations incurred prior
to and during the marriage. Ultimately, Gwynelle was forced to obtain full time employment
in order to meet these financial obligations. The stress of the financial concerns coupled with
the continuous marital discord affected her health to the extent that she had an operation and
underwent treatment for a nervous condition.
At the time of the divorce, March 28, 1966, the parties acknowledged in their pleadings
that the deed to their home was held in joint tenancy, and consequently the main issue on this
appeal centers solely upon the trial court's disposition of that home.
Although the trial court did not order periodic alimony payments, it did order Ray to
execute to Gwynelle a deed of conveyance of all of his right, title and interest in and to their
home stating that it should be set aside (to the wife) for her future support, maintenance and
security. (Emphasis supplied.) This case, therefore, is distinguishable from Thorne v.
Thorne, 74 Nev. 211, 326 P.2d 729 (1958), wherein support was neither raised or
adjudicated, and Zahringer v. Zahringer, 76 Nev. 21, 348 P.2d 161 (1960), wherein support
was not ordered.
In our view, NRS 125.150, subsection 3, provides the statutory authority to the trial court
to set aside the separate property of the husband for the wife (provided an actual need for
support is shown and the setting aside is not used as a vehicle to do equity between the
parties, as is the rule applying to community property.) 133 A.L.R. 860, 862. From time
immemorial, this court has affirmed the trial courts in their efforts to provide and protect the
needs of the wife or children who are victims of divorce. Even as the statutes were changed
the protective provisions (with respect to separate property of the husband) remained, i.e., *
* * the court may set apart such portions for her support and the support of the children as
shall be just and equitable * * *. Wuest v. Wuest, 17 Nev. 217, 223, 30 P. 886 (1882);
Powell v. Campbell, 20 Nev. 232, 239, 20 P. 156 (1888); Greinstein v. Greinstein, 44 Nev.
174, 178, 191 P. 1082 (1920); Lewis v. Lewis, 71 Nev. 301, 289 P.2d 414 (1955). In light of
such authority, we construe Subsection 3 of NRS 125.150 as providing the statutory authority
to the trial court to apply the husband's separate property to the wife's required needs when
sought and actual need is shown by the evidence.
Gwynelle's need for the house is genuine in that she is advancing in years and declining
in health.
advancing in years and declining in health. This court will not disturb the findings of the trial
court regarding the disposition of the homestead.
1
Walker v. Walker, 41 Nev. 4, 11, 164 P.
653 (1917).
We are satisfied that there was no abuse of discretion.
Affirmed.
____________________

1
NRS 125.150(4) provides: In the event of the death of either party or the subsequent remarriage of the
wife, all alimony awarded by the decree shall cease, unless it shall have been otherwise ordered by the court.
The effect of the trial court's decree in this case was to make the award of the husband's interest in the homestead
permanent regardless of death or remarriage. Apparently, from the record, this was the result the trial judge had
in mind.
____________
83 Nev. 75, 75 (1967) Lerner Shops v. Marin
LERNER SHOPS OF NEVADA, INC., A Nevada Corporation,
Appellant, v. JOSEPHINE PEGGY MARIN, Respondent.
No. 5152
February 2, 1967 423 P.2d 398
Appeal from jury verdict for damages for false imprisonment. First Judicial District Court,
Ormsby County; Richard L. Waters, Jr., Judge.
Action by customer against clothing store for false imprisonment and assault based upon
alleged detention by manager of store. The trial court entered judgment for the customer and
the store appealed. The Supreme Court, Zenoff, J., held that, under statute, store was entitled
to instruction on defense of reasonableness of detention.
Reversed and remanded for new trial.
Bradley & Drendel, of Reno, and Jacob L. Rothstein, of San Francisco, for Appellant.
Irma Lang, of Stateline, Nevada, for Respondent.
1. False Imprisonment.
False imprisonment is a restraint of one's liberty without any sufficient cause therefor.
False imprisonment under criminal statute is an unlawful violation of personal liberty of another, and
consists of confinement or detention without sufficient legal authority. NRS 200.460.
Submission to mere verbal direction of another, unaccompanied by force or threats of any character,
does not constitute false imprisonment. NRS 598.030.
Evidence did not sustain customer's contention that she was placed in fear when she accompanied
manager from store in which manager found her in store where alleged theft occurred. NRS 598.030.
To establish false imprisonment, restraint of freedom must be against plaintiff's will and intent to
confine is an essential element.
Evidence, in action for false imprisonment, which indicated that customer who allegedly pilfered ski
jacket voluntarily returned to store with manager and which was subject to conflicting interpretations,
created jury question as to reasonableness of detention. NRS 598.030 and subd. 3.
Where manager of clothing store detained customer who brought action for false imprisonment to
investigate possible theft of ski jacket, store was entitled to instruction regarding reasonableness of
detention. NRS 598.030 and subd. 3.
Successful plaintiff is entitled to compensation for all the natural and probable consequences of false
imprisonment including injury to feelings from humiliation, indignity and disgrace to person, physical
suffering and injury to health due to mental suffering. NRS 598.030 and subd. 3.
9. Damages.
Where plaintiff claims future pain and suffering arising from subjective physical injury, claim must be
substantially supported by expert testimony to the effect that the future pain and suffering is a probable
consequence rather than a mere possibility.
Instruction in action for false imprisonment regarding future pain and suffering as may reasonably be
expected to follow from confinement was erroneous since victim's symptoms were not related to physical
injury.
OPINION
This is an appeal by Lerner Shops of Nevada, Inc., from a jury verdict in favor of the
plaintiff, Josephine Peggy Marin.
Damages in the sum of $ 12,500 were awarded on Peggy's claim for false imprisonment
and assault based upon her alleged detention by the manager of Lerner's store in Reno.
On November 23, 1964, Peggy, who was then twenty years old, went shopping with her
sister, Marcellina, in Reno. In Lerner's store Marcellina made a down payment on a coat.
Then she and Peggy went to a part of the store where ski jackets were sold. Peggy was
wearing a ski jacket which she had purchased approximately a month earlier in J. C. Penney's.
Peggy handed Marcellina her own ski jacket to hold and then tried on other ski jackets from
the store rack. Marcellina, while waiting, reversed the hood on Peggy's jacket making it a
different color than when they had entered Lerner's. After trying on the jackets Peggy then put
on her own jacket, which was now different in appearance, and the two left the store. Lerner's
at the time had in their rack ski jackets similar to Peggy's.
An employee of Lerner's, Solomon Harris, saw Peggy leave wearing a ski jacket which he
believed he had seen her take off the store rack. He ascertained that it had not been sold to her
and advised the store manager, Mr. Mandlestam. Together they left the store in search of
Peggy and Marcellina and found them in Leed's shoe department next door to Lerner's. Mr.
Mandlestam and Harris approached Peggy and her sister and Mandlestam asked Peggy if she
had been in Lerner's store, to which she answered in the affirmative. He then asked both girls
to accompany him back to Lerner's. Mr. Mandlestam and Harris walked back to Lerner's
followed by Peggy and Marcellina. The girls returned without protest.
It appears undisputed that Mandlestam is a soft spoken person, not overpowering in
physical appearance. He did not threaten force or violence in any sense, nor was an arrest
attempted. Back at Lerner's the manager asked Peggy to remove her jacket, which she did
without protest. He looked at the jacket and Peggy told him that she bought it at Penney's.
While inspecting the jacket he also looked at Peggy's wallet in the pocket of the coat before
returning it to plaintiff who thereafter left the store with her sister.
Peggy commenced an action for false imprisonment, among other claims, alleging that
because of the shock and humiliation occasioned by her detention, she has suffered nausea
and headaches which have continued to the time of trial. In its answer Lerner's asserted the
defense of NRS 59S.030,1 Nevada's shop lifting law.
Lerner's asserted the defense of NRS 598.030,
1
Nevada's shop lifting law. The statute is
designed to give relief to shop keepers who have reason to believe that their merchandise is
being pilfered, by allowing them to reasonably detain a suspect without subjecting themselves
to civil liability.
The trial court refused to instruct the jury on the existence of NRS 598.030, thus, not
allowing that defense. Lerner's principal ground for appeal is based on this denial. Other
alleged errors were asserted, but we are of the opinion that the refusal to allow the instruction
was error so prejudicial that the action must be reversed and remanded for a new trial.
[Headnotes 1-3]
1. False imprisonment is a restraint of one's liberty without any sufficient cause therefor.
Zayre of Virginia, Inc. v. Gowdy, 147 S.E.2d 710 (Va. 1966). As defined in NRS 200.460
false imprisonment (as a crime) is an unlawful violation of the personal liberty of another,
and consists in confinement or detention without sufficient legal authority. It is generally
acknowledged that submission to the mere verbal direction of another, unaccompanied by
force or threats of any character, does not constitute false imprisonment. Grayson Variety
Store, Inc. v. Shaffer, 402 S.W.2d 424 (Ky. 1966).
There is a split of authority on whether or not in the absence of statute probable cause (or
reasonable grounds for detention) is a defense in an action for false imprisonment. The
sounder position is that where a person has reasonable grounds to believe that another is
stealing his property he is justified in detaining him for a reasonable time in order to
investigate. Collyer v. S. H. Kress Co., 54 P.2d 20 (Cal. 1936); Bettolo v. Safeway Stores, 54
P.2d 24 (Cal. 1936).
In view of the existence of NRS 598.030, we do not know from the record why the trial
court refused to instruct the jury in accordance with the statute. The legislation is consistent
with the desire of society to assist the store owner in reducing the mounting problem of loss
from shop lifting.
____________________

1
NRS 598.030(3) provides: Any merchant who has probable cause for believing that merchandise has been
wrongfully taken by an individual and that be can recover such merchandise by taking such individual into
custody and detaining him may, for the purpose of attempting to effect such recovery or for the purpose of
informing a peace officer of the circumstances of such detention, take the individual into custody and detain him,
on the premises, in a reasonable manner and for a reasonable length of time. Such taking into custody and
detention by a merchant shall not render such merchant criminally or civilly liable for false arrest, false
imprisonment, slander or unlawful detention unless such taking into custody and detention are unreasonable
under all the circumstances.
mounting problem of loss from shop lifting. Without the protection of the statute a store
owner in detaining a suspected shoplifter to recover property which may be worth only a few
dollars risks liability in much greater sums in damages.
[Headnotes 4-7]
We find no restraint by the employees of Lerner's in Leed's. Peggy could easily have
refused to accompany Mandlestam back to Lerner's but instead she went willingly. There is
nothing in the record to justify her contention that she was placed in fear at that time. The
restraint of freedom must be against the plaintiff's will and the intent to confine is an essential
element. Prosser, Torts, Sec. 12 (1955). Having voluntarily returned to the Lerner store it then
became the responsibility of the jury to determine whether the detention in Lerner's was
reasonable, since the facts were subject to conflicting interpretations. This determination
could not be justly made without allowing the appellant its only real defense, probable cause
for the detention in Lerner's. It was entitled to an instruction on this point.
2. Peggy's claim for damages was allegedly founded on shock, humiliation, nausea,
headaches, depression, worry, loss of confidence, erratic eating habits, and loss of reputation.
As to damages, the trial court instructed the jury: You may consider the following items of
damage which may be recovered for false imprisonment if you find for the plaintiff: The
physical discomfort during the imprisonment, the inconvenience to her, mental suffering,
embarrassment and humiliation, resulting in physical or mental illness, or any harm done to
her reputation. You may also consider, in determining the amount of your award, such future
pain and suffering as may reasonably be expected to follow from the confinement.
(Emphasis supplied.)
[Headnotes 8-10]
A successful plaintiff is entitled to compensation for all the natural and probable
consequences of the wrong, including injury to the feelings from humiliation, indignity and
disgrace to the person, and physical suffering. The injury to health may be due to mental
suffering. Great Atlantic & Pacific Tea Co. v. Smith, 136 S.W.2d 759 (Ky. 1940); Boies v.
Raynor, 361 P.2d 1, 3 (Ariz. 1961). This court, however, has limited the claim for future pain
and suffering arising from subjective physical injury, and in such cases the claim must be
substantially supported by expert testimony to the effect that future pain and suffering is a
probable consequence rather than a mere possibility.
mere possibility. Curti v. Franceschi, 60 Nev. 422, 111 P.2d 53 (1941); Gutierrez v. Sutton
Vending Serv., 80 Nev. 562, 397 P.2d 3 (1964). To this extent, the emphasized portion of the
instruction was erroneous because Peggy's symptoms were not related to physical injury.
Other assignments of error are found to be without merit.
____________
83 Nev. 80, 80 (1967) Fairbanks v. Pavlikowski
ACE FAIRBANKS, Petitioner, v. JOSEPH S. PAVLIKOWSKI, Justice of the Peace, Las
Vegas Township, Las Vegas, Clark County, Nevada, Respondent.
No. 5270
YERKER ELVIRA TAYLOR, Petitioner, v. HERMAN E. FISHER, Jr., Justice of the
Peace, Las Vegas Township, Las Vegas, Clark County, Nevada, Respondent.
No. 5271
February 6, 1967 423 P.2d 401
Application for writs of prohibition and quo warranto denied.
Original proceedings on petitions which parties stipulated might be construed as in quo
warranto as well as prohibition, wherein it was asserted that justices of peace had no
jurisdiction and did not legally occupy their offices. The Supreme Court, Collins, J., with
Zenoff, J., concurring in result, held that, even if Las Vegas township, which in 1960 census
had population of over 100,000 had less than 100,000 people in 1965 when statute was
passed authorizing two justices of the peace in townships having population of 100,000 or
more as determined by last national census or had less than 100,000 population in 1967 when
justices of peace assumed their offices, statute was applicable to Las Vegas township and
justices of the peace appointed lawfully occupied their offices.
Proceedings dismissed.
Thompson, C. J., dissented.
Richard H. Bryan, Public Defender, Robert G. Legakes, Deputy Public Defender, Clark
County, for Petitioners.
George E. Franklin, Jr., District Attorney, R. Ian Ross, Deputy District Attorney, Clark
County, for Respondents.
1. Statutes.
That statute authorizing two justices of peace to be elected in townships having population of 100,000
or more applied only to Las Vegas township did not render statute invalid as a local or special law,
inasmuch as, if there were other townships of that population, statute would then apply to them. Const.
art. 4, 20, 21.
2. Statutes.
Courts must give legislative enactment effect intended if court can determine intention.
3. Statutes.
Court cannot refuse to apply a law though inartfully drawn or worded if by interpretation the
legislative purpose can be reasonably determined or means to accomplish it ascertained.
Legislature has right and prerogative to use what measure or standard its wisdom directs in
determining applicability of statute.
5. Justice of the Peace.
Even if Las Vegas township, which in 1960 census had population of over 100,000, had less than
100,000 people in 1965 when statute was passed authorizing two justices of the peace in townships
having population of 100,000 or more as determined by last national census or had less than 100,000
population in 1967 when justices of peace assumed their office, statute was applicable to Las Vegas
township and justices of the peace appointed lawfully occupied their offices. NRS 4.020, subd. 3;
Const. art. 4, 20, 21.
OPINION
The above petitions were ordered consolidated for hearing and, in conference with the
court, counsel for the respective parties stipulated the petitions might be construed as seeking
quo warranto as well as prohibition, for the reason that if respondents have no jurisdiction,
neither do they legally occupy the offices.
Petitioners were charged with crimes in the justice court of Las Vegas township, Clark
County, Nevada. At preliminary hearings, each objected to the jurisdiction of the named
justice of the peace, contending he had no jurisdiction in the matter, nor that he lawfully
occupied the office.
matter, nor that he lawfully occupied the office. Respondents ruled against petitioners. The
issue is that the statute cannot be constitutionally applied under the circumstances hereinafter
described, because, while appearing to be general on its face, it is in fact a special statute. We
conclude petitioners are in error and deny the petitions seeking either quo warranto or
prohibition.
The national census tabulated in April 1960 showed that Las Vegas township, as then
existing geographically, had a population of 106,755 people and that the City of North Las
Vegas (then included in the Las Vegas township) had a population of 18,422. On June 20,
1960, the Board of Commissioners of Clark County created a new township out of the Las
Vegas township and designated it North Las Vegas township.
The 1965 session of the Nevada legislature enacted NRS 4.020(3), which reads:
3. From and after the 1st Monday in January 1967, there shall be one justice's court in
each of the townships of the state having a population of 100,000 or more, as determined by
the last preceding national census of the Bureau of the Census of the United States
Department of Commerce, for which two justices of the peace shall be elected by the
qualified electors of the township at the general state election to be held in November 1966,
and at each state general election held every 2 years thereafter.
1

At the general election held on November 8, 1966 respondents were elected justices of the
Peace of Las Vegas township. They assumed office January 3, 1967 and have since been
exercising the civil and criminal jurisdiction of their office, including the performance of
marriages.
Petitioners contend respondents have no jurisdiction, requiring that they be prohibited
from further proceedings for the reason that neither occupies the office lawfully. Petitioners'
arguments are that Las Vegas township no longer had a population of 100,000 persons when
North Las Vegas township was created out of it, but was reduced to 88,333 by a simple
computation deducting 18,422 from 106,755. They say, the enactment of NRS 4.020(3) in
1965 operated nowhere within the State of Nevada because there was no township having a
population of 100,000 (including Las Vegas township). Further, that it was improper and
unlawful to certify to the electors of Las Vegas township that they were entitled to elect two
justices of the peace because it was no longer the same geographical area with 100,000
or more population as shown in the 1960 census.
____________________

1
Chap. 446, Stats. of Nev. 1966, 1221 and 1222.
justices of the peace because it was no longer the same geographical area with 100,000 or
more population as shown in the 1960 census. Finally, though entitled to one justice of the
peace in that township, it would be impossible to say which of respondents would have been
elected had there been but one office to fill rather than two. In fact, they argue that persons
other than either respondent might have been chosen by the people had they voted for but one
office holder. Thus, while the statute NRS 4.020(3) is not unconstitutional, neither respondent
was lawfully elected, holds office, nor has jurisdiction over these petitioners.
[Headnote 1]
NRS 4.020(3), while inartfully drawn, was obviously intended by the legislature to operate
in any township in Nevada, which by the 1960 census had 100,000 or more population within
it. The fact it might apply only to Las Vegas township is of no moment, for if there were
others, the statute would then too apply. It therefore conforms to the constitutional mandate
that there shall be no local and special laws, and that general laws shall have uniform
operation. Nev. Const. Art. 4, Sec. 20,
2
and 21;
3
Cauble v. Beemer, 64 Nev. 77, 177 P.2d
677 (1947).
____________________

2
Section 20. Certain local and special laws prohibited. The legislature shall not pass local or special laws in
any of the following enumerated casesthat is to say:
Regulating the jurisdiction and duties of justices of the peace and of constables, and fixing their
compensation;
For the punishment of crimes and misdemeanors;
Regulating the practice of course [sic courts] of justice;
Providing for changing the venue in civil and criminal cases;
Granting divorces;
Changing the names of persons;
Vacating roads, town plots, streets, alleys, and public squares;
Summoning and impaneling grand and petit juries, and providing for their compensation;
Regulating county and township business;
Regulating the election of county and township officers;
For the assessment and collection of taxes for state, county, and township purposes;
Providing for opening and conducting elections of state, county, or township officers, and designating the
places of voting;
Providing for the sale of real estate belonging to minors or other persons laboring under legal disabilities;
Giving effect to invalid deeds, wills, or other instruments;
Refunding money paid into the state treasury, or into the treasury of any county;
Releasing the indebtedness, liability, or obligation of any corporation, association, or person to the state, or
to any county, town, or city
[Headnotes 2, 3]
We are required to give a legislative enactment the effect intended if we can determine the
intention. Ex parte Siebenhauer, 14 Nev. 365 (1879); Ex parte Iratacable, 55 Nev. 263, 30
P.2d 284 (1934). We cannot refuse to apply a law though inartfully drawn or worded if by
interpretation the legislative purpose can be reasonably determined, or the means to
accomplish it ascertained. State ex rel. Copeland v. Woodbury, 17 Nev. 337, 30 P. 1006
(1883).
The obvious purpose of NRS 4.020(3) was to provide an additional justice of the peace in
any township in Nevada having an enlarged population. This would allow criminal and civil
cases to be heard and disposed of expeditiously and not unusually delay the determination of
valuable personal and property rights. The vast majority of people whose rights are judicially
determined appear in inferior courts of our state.
[Headnotes 4, 5]
The legislature chose in this case to use as a standard or measure the decennial census of
the people living in any given township in this state. This may have been a poor choice of
standards to employ because, as this controversy shows, its use has created confusion and
uncertainty. That, however, is the right and prerogative of the legislature to use what measure
or standard its wisdom directs. The census, regularly taken each 10 years, is a reliable,
accurate count of population in a given area as of a given period of time. Perhaps it was that
reliability which prompted the legislature to adopt it as the measure of population. The
difficulty arises in the manner in which they directed it to be used as the measure or yardstick.
Factually, it is undeniable that as of the 1960 census Las Vegas township did have over
100,000 people. Whether Las Vegas township had more or less than 100,000 people in 1965
when the act was passed or even in 1967 when petitioners assumed their office is
immaterial and not controlling.
____________________
of this state; but nothing in this section shall be construed to deny or restrict the power of the legislature to
establish and regulate the compensation and fees of county officers, to authorize and empower the boards of
county commissioners of the various counties of the state to establish and regulate the compensation and fees of
township officers in their respective counties, to establish and regulate the rates of freight, passage, toll, and
charges of railroad, tollroads, ditch, flume, and tunnel companies incorporated under the laws of this state or
doing business therein.

3
Section 21. General laws shall have uniform operation. In all cases enumerated in the preceding section,
and in all other cases where a general law can be made applicable, all laws shall be general and of uniform
operation throughout the State.
when the act was passed or even in 1967 when petitioners assumed their office is immaterial
and not controlling. By calculation, respondents suggest we should say, as a matter of law,
Las Vegas township had but 88,333 population when North Las Vegas township was created
out of it. But that is not the standard or measure the legislature directed to be used, and we
say application of the standard directed by the legislature, the 1960 census and those
following each 10 years, is a reasonable one rendering the statute capable of intelligent
interpretation. Perhaps standards such as the number of civil and criminal cases docketed in
the justice court of any township in a given year, or the vote cast and counted in that township
for the member of Congress in the preceding general election would have been a better
standard, generating less confusion and creating a continuing standard of accuracy. The
legislators chose to use the census and they, not this court, create law.
We feel the present legislature might see fit, notwithstanding this opinion, to review NRS
4.020(3) and clarify other points of confusion which may exist or arise. The welfare of the
people affected by the statute is, however, within their exclusive province.
The petitions seeking writs of prohibition and quo warranto are denied and the proceedings
dismissed.
Zenoff, J., concurring:
I concur with the result enunciated by Justice Collins but I readily concede the merit of the
dissenting opinion. We are bound, however, to uphold the application of a valid statute
wherever it is reasonable to do so. In this case the legislative intent is apparent, but the
statutory standard compels a strained interpretation. Yet since Las Vegas Township did exist
in 1960, as Justice Collins recites, and the population of that township was over 100,000, the
yardstick of NRS 4.020, subsection 3, can be made to apply.
Thompson, C. J., dissenting:
The respondents are the newly elected Justices of the Peace of Las Vegas Township. These
consolidated proceedings in quo warranto challenge their right to hold office and, if
successful, will preclude their further handling of the criminal cases pending against the
petitioners in the Justices' Court of Las Vegas Township. The right of each respondent to hold
the office of Justice of the Peace rests upon the premise that each was duly elected pursuant
to the direction of NRS 4.020{3).1 That statute was enacted in 1965 and directs that two
justices of the peace shall serve one justice's court in each township "having a population
of 100,000 or more, as determined by the last preceding national census."
each was duly elected pursuant to the direction of NRS 4.020(3).
1
That statute was enacted
in 1965 and directs that two justices of the peace shall serve one justice's court in each
township having a population of 100,000 or more, as determined by the last preceding
national census. If that statute applies to Las Vegas Township, the respondents may continue
to serve as Justices of the Peace. If the statute does not apply to Las Vegas Township, the
purported election of each respondent to the office of Justice of the Peace was, and is void. It
is my opinion that NRS 4.020(3) does not apply.
Our constitution forbids the enactment of a local or special law regulating the election of
township officers and regulating the jurisdiction and duties of justices of the peace. Nev.
Const. Art. IV., Sec. 20. Such a law must be general and of uniform application throughout
the state. Nev. Const. Art. IV., Sec. 21. It is, of course, permissible to classify according to
population without violating the proscription of Art. IV., Sec. 20. State vs. Donovan, 20 Nev.
75 (1887); cf. State vs. Boyd, 9 Nev. 43 (1885). I do not find any constitutional infirmity in
NRS 4.020(3) as written, since it may apply equally to all townships coming within the class
mentioned. Consequently, had the Las Vegas Township with its 1960 population of 106,755
people not been later divided, the 1965 statute would apply and two justices of the peace for
that township would be authorized. This, however, is not the case presented to us.
Las Vegas Township was divided after the 1960 census was taken. Thus, the township
listed in the census as having a population of 106,755 no longer exists. Only the name has
been perpetuated. A national census has never been taken of the population of the Las Vegas
township as it exists now, as it existed in 1965 when the legislation was passed, or at anytime.
Any attempt to apply NRS 4.020(3) to a township created after the 1960 census was taken,
requires a gross distortion of plain statutory language. Indeed, even if one ignores the
obvious, and by sophistry considers that a census was taken in 1960 of the presently bounded
Las Vegas Township, the statute cannot apply for want of the required population, since upon
division the 1960 population of Las Vegas Township was reduced to no more than SS,333
persons.
____________________

1
NRS 4.020(3) reads: From and after the 1st Monday in January 1967, there shall be one justice's court in
each of the townships of the state having a population of 100,000 or more, as determined by the last preceding
national census of the Bureau of the Census of the United States Department of Commerce, for which two
justices of the peace shall be elected by the qualified electors of the township at the general state election to be
held in November 1966, and at each state general election held every 2 years thereafter.
was reduced to no more than 88,333 persons. Respectfully, I suggest that the majority, by
construction, has made NRS 4.020(3) a local or special law in direct violation of the
interdiction of our constitution.
I share the concern of my colleagues about the effect of a decision in this case which
would oust the respondents from office. Each has been acting as a justice of the peace for
about six weeks and has handled the business of the Justices' Court of Las Vegas Township
during that time. Ouster from office would perhaps nullify their actions and precipitate further
litigation.
2
Notwithstanding this concern, I think it more important to preserve the integrity
of our State Constitution. It is my judgment that todays opinion will work the greater evil as
time passes.
I dissent.
____________________

2
The legislature is presently in session and may write a new law to effectuate desired ends. Should such
occur each respondent would probably be appointed to serve as a justice of the peace.
____________
83 Nev. 87, 87 (1967) Bartsas Realty, Inc. v. Leverton
BARTSAS REALTY, INC., Appellant, v. HERSHEL LEVERTON and FIRST NATIONAL
BANK OF NEVADA, Executor of the Estate of Louis A. Woitishek, Also Known as L. A.
WOITISHEK, Deceased, Respondents.
No. 5155
February 9, 1967 423 P.2d 397
Appeal from judgment determining which real estate broker was the procuring cause of a
realty transaction. Eighth Judicial District Court, Clark County; John Mowbray, Judge.
The lower court after reversal and remand, 82 Nev. 6, 409 P.2d 627, of judgment awarding
commission to one broker, determined that broker for whom judgment had been originally
entered was procuring cause of sale and was entitled to commission, and the other broker
appealed. The Supreme Court, Zenoff J., held that evidence supported finding that real estate
broker, who claimed commission on sale of real property, who had presented offer to
purchase property to executor of estate, but who had no personal contact with offeror after
first offer was rejected and had nothing to do with subsequent negotiations by another broker
culminating in sale of such property became ineffective after original offer was made and
was thus not procuring and inducing cause of sale.
property became ineffective after original offer was made and was thus not procuring and
inducing cause of sale.
Affirmed.
Gregory & Gregory, of Las Vegas, for Appellant.
Jones, Wiener & Jones, of Las Vegas, for Respondent Hershel Leverton.
Samuel S. Lionel, of Las Vegas, for Respondent First National Bank of Nevada.
It is not function of Supreme Court to readjust factual findings specifically determined by court
below.
2. Brokers.
Evidence supported finding that real estate broker, who claimed commission on sale of real property,
who had presented offer to purchase property to executor of estate, but who had no personal contact with
offeror after first offer was rejected and had nothing to do with subsequent negotiations by another broker
culminating in sale of such property, became ineffective after original offer was made and was thus not
procuring and inducing cause of sale.
If finding of trial court is supported by substantial evidence, Supreme Court will sustain such
determination.
OPINION
This case was considered once before by this court in Bartsas Realty, Inc. v. Leverton, 82
Nev. 6, 409 P.2d 627 (1966). A detailed statement of facts is set out in that opinion. The
controversy concerns the claim of a real estate agency seeking payment of a commission.
Mrs. Bartsas, a principal in the realty company, had presented to the executor of the estate
of Louis A. Woitishek an offer to purchase certain property from the estate. The offer was
made on behalf of Louis Davidson, a principal in United States Development Company. The
offer was refused by the executor. Mrs. Bartsas thereafter sought to reach Davidson for the
purpose of submitting another offer on his behalf, but Davidson had retained Leverton as his
new agent, although he had not so notified Bartsas. Leverton, for Davidson, submitted several
additional offers which ultimately resulted in the purchase of the property for Davidson
under terms and provisions different from those contained in the offer made by Bartsas.
the purchase of the property for Davidson under terms and provisions different from those
contained in the offer made by Bartsas. The trial court affirmed the executor's agreement to
pay the commission to Leverton, and Bartsas appealed.
We remanded the prior proceedings with the request that the trial court find specifically
whether Bartsas Realty was the procuring cause of the sale. From that hearing, the trial court
found that Leverton, not Bartsas, was the procuring cause of the sale and was therefore
entitled to the commission from the executor representing the estate. Bartsas again appeals
from the findings of the trial court.
1. The rehearing developed that Bartsas had had no further personal contact with
Davidson after the first offer was rejected. She admitted that she did not have an exclusive
listing of the property and that she had nothing to do with the negotiations between Leverton
and the executor concerning the property. She further acknowledged that she was ineffective
in her efforts to sell the property to Mr. Davidson, although she did send a letter to him after
the first offer was rejected. Leverton, through his testimony, detailed his various offers to the
executor on behalf of Davidson which culminated in the final agreement.
The lower court found that Bartsas had abandoned efforts to procure a sale to Davidson's
company, that Bartsas' efforts on behalf of that company were ineffective and productive of
no results, and that Bartsas was not the procuring and inducing cause of the sale.
Accordingly, it was resolved that Leverton was the sole procuring and inducing cause of the
sale.
[Headnote 1]
It is not the function of this court to readjust factual findings specifically determined by the
court below. Utter v. Casey, 81 Nev. 268, 401 P.2d 684 (1965); Bird v. Mason, 77 Nev. 460,
366 P.2d 338 (1961); LeMon v. Landers, 81 Nev. 329, 402 P.2d 648 (1965). This court on the
first appeal was unable to rule as a matter of law that Bartsas was the procuring cause. We
find no additional justification for doing so now from the record on rehearing.
[Headnotes 2, 3]
There is substantial evidence to support the finding that she became ineffective with
Davidson after her offer was made. Evidently Davidson no longer wanted her services. His
reasons are unexplained, nor are they pertinent here. If the finding of the trial court is
supported by substantial evidence this court will sustain that determination.
will sustain that determination. Lawry v. Devine, 82 Nev. 65, 410 P.2d 761 (1966); Harvey v.
Streeter, 81 Nev. 177, 400 P.2d 761 (1966).
Affirmed.
____________
83 Nev. 90, 90 (1967) Gambs v. Morgenthaler
JEANNE GAMBS, Appellant, v. CLARENCE MORGENTHALER, JUNE
MORGENTHALER, and LOWELL H. HALL, Doing Business Under the Fictitious Name of
THE PLAZA MOTOR LODGE, an Unincorporated Association, Respondents.
No. 5145
February 15, 1967 423 P.2d 670
Bowen, Judge.
Action for personal injuries allegedly sustained during slip and fall on an outside metal
stairway at motel. Respondents moved by special appearance to quash alleged or purported
service of process upon them. The trial court granted respondents' motion, and plaintiff
appealed. The Supreme Court, Collins, J., held that personal service of summons and
complaint on former residents outside of forum state provided reasonable method of notice to
former residents who were otherwise subject to jurisdiction of forum state court under
minimum contacts theory based on occurrence of injury while defendant former residents
lived in forum state and operated motel at which alleged injury occurred.
Guild, Guild & Cunningham and Drennan A. Clark, of Reno, for Appellant.
Leslie A. Leggett, of Reno, for Respondents.
Process.
Personal service of summons and complaint on former residents outside of forum state provided
reasonable method of notice to former residents who were otherwise subject to jurisdiction of forum state
court under minimum contacts theory based on occurrence of injury while defendant former residents
lived in forum state and operated motel at which alleged injury occurred; overruling
State ex rel.
forum state and operated motel at which alleged injury occurred; overruling State ex rel. Pacific States
Security Co. v. District Court, 48 Nev. 53, 226 P. 1106, NRCP 4(e) (1) and (iii); U.S.C.A.Const.
Amend. 14.
OPINION
This is an action for personal injury brought by appellant against respondents. She
contends she was injured when, in June 1963, she slipped and fell on an outside metal
stairway negligently maintained by respondents at a motel they owned and operated in Reno,
Nevada. In September 1964 respondents moved to California, and became permanent, lawful
residents there. This action was filed in December 1964, and summons issued.
On February 11, 1966 an affidavit for publication of summons was filed and the court
entered its order authorizing service by publication pursuant to NRCP 4(e). On February 10,
1966, one day before the order was signed and filed, appellant caused a copy of the summons
to be mailed to respondents at an address in California. The summons did not contain a brief
statement of the cause of action, though such a statement is required by NRCP 4(b). The trial
court found that a copy of the complaint was not attached to the summons when received by
respondents. On March 9, 1966 respondents were each personally served in California with
summons and complaint. On March 28, 1966 respondents moved by special appearance to
quash alleged or purported service of process upon them. The motion was granted by the trial
court. This appeal is from that order.
The issue is whether the State of Nevada has a method of substituted service by statute or
rule on a former resident if facts show minimum contact sufficient to satisfy due process. The
minimum contact was the occurrence of the injury while the defendants lived in Nevada, and
operated their motel here, even though they subsequently moved outside the state before an
action was commenced. We conclude the trial court was in error, reverse its order and remand
the action for further proceedings.
The basic rule of in personam jurisdiction in this country was stated in Pennoyer v. Neff,
95 U.S. 714 (1877), holding that a court may not acquire jurisdiction in personam over a
defendant in an action through the service of process outside the state in which the forum
exists.
the state in which the forum exists. That general rule has since been substantially eroded, and
in Milliken v. Meyer, 311 U.S. 457 (1940), it was held that the acquisition of personal
jurisdiction on one domiciled within the state meets all the requirements of due process, when
the defendant is given actual notice of the proceeding and an opportunity to be heard.
Still later, the concept of due process being satisfied by substituted service was expanded
to include the minimum contacts doctrine. It was upheld as to corporations in International
Shoe Co. v. State of Washington, 326 U.S. 310 (1945), and to individuals in Owens v.
Superior Court, 345 P.2d 921 (Cal. 1959).
Further liberalization was approved in McGee v. International Life Insurance Co., 355
U.S. 220 (1957), where it was held due process was satisfied in a suit against a foreign
corporation not served with process within the forum state based upon a contract which had
substantial connections with the state.
Nevada has followed this trend and this court held in State ex rel. Crummer v. District
Court, 69 Nev. 276, 249 P.2d 226 (1952), that a resident of Nevada, defendant in an in
personam cause of action for breach of contract and money damages, who had departed and
could not be found within the state, but who was served personally with process in California
pursuant to an order for publication of summons (NCL (1929) 8582) was obligated to
appear and defend. That decision distinguished Nahas v. Nahas, 59 Nev. 220, 90 P.2d 223, 92
P.2d 718 (1939), Perry v. Edmonds, 59 Nev. 60, 84 P.2d 711 (1938), and Pacific States
Security Company v. District Court, 48 Nev. 53, 226 P. 1106 (1924), by pointing out they
were actions against non-residents of whom the state itself possessed no jurisdiction. The
latter case, Pacific States Security Company v. District Court, supra, was decided prior to
Milliken v. Meyer, supra, International Shoe Co. v. State of Washington, supra, and Owens v.
Superior Court, supra, and is no longer good authority, at least in the minimum contacts
cases. To that extent we overrule its holding.
This court said in State ex rel. Crummer v. District Court, supra, at page 283: Nowhere
does our statute [NCL (1929) 8582, 8583] purport to define its jurisdictional limits nor
characterize the jurisdiction which may be exercised under it. It does no more, and purports to
do no more, than provide a method by which such jurisdiction as the state possesses may in
certain cases be exercised through its courts. * * * Such jurisdictional limits are fixed by the
relationship between the person served and the commanding state; by the existence or
lack of existence of any personal duty to respond to the command of process."
person served and the commanding state; by the existence or lack of existence of any personal
duty to respond to the command of process. Likewise we held in Metal-Matic v. District
Court, 82 Nev. 263, 415 P.2d 617 (1966), that under the long-arm statute (NRS 14.080)
jurisdiction by service of substituted process can be acquired over a foreign manufacturer of
an allegedly defective product which it reasonably expects will enter interstate commerce and
which causes injury to a Nevada plaintiff.
The controversy arises here because, respondents say, even though there is jurisdiction in
Nevada courts to entertain an action under these circumstances, still there must be a statute or
rule providing the method or statutory provision for service of process by publication and we
have none. Appellant, on the other hand, says we do have the method under NRCP 4(e)(1)(i)
and (iii).
1
NRCP 4{e){1) has its origin in Nevada Compiled Laws, 1929, Sections S5S2 and
S5S3, which in turn were taken from the California Code of Civil Procedure, 412 and
413.2 Respondents contend we are bound by
____________________

1
(i) General. When the person on whom service is to be made resides out of the state, or has departed from
the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of
summons, and the fact shall appear, by affidavit, to the satisfaction of the court or judge thereof, and it shall
appear, either by affidavit or by a verified complaint on file, that a cause of action exists against the defendant in
respect to whom the service is to be made, and that he is a necessary or proper party to the action, such court or
judge may grant an order that the service be made by the publication of summons.
Provided, when said affidavit is based on the fact that the party on whom service is to be made resides out
of the state, and the present address of the party is unknown, it shall be a sufficient showing of such fact if the
affiant shall state generally in such affidavit that at a previous time such person resided out of this state in a
certain place (naming the place and stating the latest date known to affiant when such party so resided there);
that such place is the last place in which such party resided to the knowledge of affiant; that such party no longer
resides at such place; that affiant does not know the present place of residence of such party or where such party
can be found; and that affiant does not know and has never been informed and has no reason to believe that such
party now resides in this state; and, in such case, it shall be presumed that such party still resides and remains out
of the state, and such affidavit shall be deemed to be a sufficient showing of due diligence to find the defendant.
This rule shall apply to all manner of civil actions, including those for divorce.
* * * * *
(iii) Publication. The order shall direct the publication to be made in a newspaper, to be designated by the
court or judge thereof, for a period of four weeks, and at least once a week during said time. In case of
publication, where the residence of a nonresident or absent defendant is known, the court or judge shall also
direct a copy of the summons and complaint to be deposited in the post office, directed to the person to be
served at his place of residence. When publication is
NRCP 4(e)(1) has its origin in Nevada Compiled Laws, 1929, Sections 8582 and 8583, which
in turn were taken from the California Code of Civil Procedure, 412 and 413.
2
Respondents contend we are bound by the interpretation of 412 and 413 announced
by the Supreme Court of California in De La Montanya v. De La Montanya, 44 P.
____________________
ordered, personal service of a copy of the summons and complaint, out of the state, shall be equivalent to
completed service by publication and deposit in the post office, and the person so served shall have twenty days
after said service to appear and answer or otherwise plead. The service of summons shall be deemed complete in
cases of publication at the expiration of four weeks from the first publication, and in cases when a deposit of a
copy of the summons and complaint in the post office is also required, at the expiration of four weeks from such
deposit.

2
412. Summons; service by publication; prerequisites; order.
Where the person on whom service is to be made resides out of the State; or has departed from the State; or can
not, after due diligence, be found within the State; or conceals himself to avoid the service of summons; or is a
corporation having no officer or other person upon whom summons may be served, who, after due diligence, can
be found within the State, and the fact appears by affidavit to the satisfaction of the court, or a judge thereof; and
it also appears by such affidavit, or by the verified complaint on file, that a cause of action exists against the
defendant in respect to whom the service is to be made, or that he is a necessary or proper party to the action; or
when it appears by such affidavit, or by the complaint on file, that it is an action which relates to or the subject of
which is real or personal property in this State, in which such person defendant or corporation defendant has or
claims a lien or interest, actual or contingent, therein, or in which the relief demanded consists wholly or in part
in excluding such person or corporation from any interest therein, such court, or judge, may make an order that
the service be made by the publication of the summons.
413. Summons; service by publication; order; mailing; personal service out of state; post office defined.
The order must direct the publication to be made in a newspaper, to be named and designated as most likely
to give notice to the person to be served, and for such length of time as may be deemed reasonable, at least once
each calendar week; but publication against a defendant residing out of the State, or absent therefrom, must be
pursuant to Section 6065 of the Government Code, except in proceedings instituted pursuant to the provisions of
Chapter 4, Title 3, Part 3, of this code. In case of publication, where the residence of a nonresident or absent
defendant is known, the court, judge, or justice, must direct a copy of the summons and complaint to be
forthwith deposited in the post office, directed to the person to be served, at his place of residence. When
publication is ordered, personal service of a copy of the summons and complaint out of the State is equivalent to
publication and deposit in the post office. Service is complete upon the making of such personal service or at the
expiration of the time prescribed by the order for publication, whichever event shall first occur.
As used in this section post office' includes mail box, sub-post office, substation and mail chute or other like
facility regularly maintained by the Government of the United States. (The above text was slightly amended in
1957 but the change does not affect the matter considered here.)
Respondents contend we are bound by the interpretation of 412 and 413 announced by the
Supreme Court of California in De La Montanya v. De La Montanya, 44 P. 345 (1896).
Appellants contend De La Montanya v. De La Montanya, supra, was overruled by Allen v.
Superior Court, 259 P.2d 905, 907 (Cal. 1953), which held: As long provided by California
law, a person who resides out of the State; or has departed from the State; or can not, after
due diligence, be found within the State; or conceals himself to avoid the service of summons'
is subject to service by publication. Code Civ. Proc. sec. 412. Under such circumstances,
personal service outside the state is declared to be equivalent to publication.' Ibid. sec. 413.
This statutory language is literally broad enough in its terms to authorize a personal judgment
based on the extraterritorial service of process, either through publication' or personal
service' on a defendant without the state. See 37 Cal.L.Rev. 80, 84. Appellants further say
that enactment of California Code of Civil Procedure, 417;
3
restricted the general power of
the court under 412 and 413. Their contention is supported in Allen v. Superior Court,
supra, at page 908, which reads: With this background of legislative action and judicial
decisions, the Legislature enacted in 1951 section 417 of the Code of Civil Procedure. 23
Cal.Jur. sec. 137, p. 763; sec. 159, p. 782. * * * As so based on the broad authority of sections
412 and 413, section 417 is manifestly designed to restrict the power of the court if a personal
judgment is to be entered. Thus its operation is made dependent on defendant's residence
within the state either at the time of commencement of the action or time of service, and on
his personal service with summons.
In effect, then, Nevada courts under NRCP 4(e) (1) have an identical method of acquiring
jurisdiction over absent defendants by substituted service as do California courts under CCP
412 and 413, except we do not have the limitation imposed by 417.
____________________

3
417. Jurisdiction to render personal judgment against person served out of state.
Where jurisdiction is acquired over a person who is outside of this State by publication of summons in
accordance with Sections 412 and 413, the court shall have the power to render a personal judgment against such
person only if he was personally served with a copy of the summons and complaint, and was a resident of this
State at the time of the commencement of the action or at the time of service.
( 417 was amended in 1957 to provide for service if defendant was a resident at the time the cause of action
arose. This change came after Allen v. Superior Court, supra, and prior to Owens v. Superior Court, supra.)
imposed by 417. We think the construction of CCP 412 and 413 by the California
Supreme Court in Allen v. Superior Court, supra, is a reasonable one and we are persuaded to
adopt it. Stocks v. Stocks, 64 Nev. 431, 183 P.2d 617 (1947); City of Reno v. District Court,
59 Nev. 416, 95 P.2d 994 (1939).
Respondents contend NRCP 4(e) (2)
4
is a restriction upon NRCP 4(e)(1) and limits
service by publication only to residents of Nevada. We do not agree. Clearly NRCP 4(e)(1)
and 4(e)(2) are independent of each other though dealing with the same subject matter,
service of process.
We limit the ruling in this case to the exact factual situation presented; i.e., personal
service of summons and complaint on defendants outside of Nevada. NRCP 4(e)(1)(iii).
Clearly they had actual notice of the pendency of the action and opportunity to appear and
defend. We have provided and employed a reasonable method of notice to defendants,
Milliken v. Meyer, supra, State ex rel. Crummer v. District Court, supra, who are otherwise
subject to the jurisdiction of the Nevada court under the minimum contacts theory. Whether
service of process by publication if completed by mailing and publication of summons in a
newspaper would be adequate to satisfy constitutional requirements of due process remains to
be decided. Perhaps the court and bar of Nevada should consider the adoption of a rule
similar to California Code of Civil Procedure 417.
The order quashing service of process is reversed and the matter remanded for further
proceedings.
____________________

4
(2) Personal Service Outside the State. Personal service outside the state upon a natural person over the
age of 18 years may be made (i) in any action where the person served is a resident of this state, and (ii) in any
action affecting specific property or status, or in any other proceeding in rem without regard to the residence of
the person served. When such facts shall appear, by affidavit, to the satisfaction of the court or judge thereof,
and it shall appear, either by affidavit or by a verified complaint on file, that a cause of action exists against the
person in respect to whom the service is to be made, and that he is a necessary or proper party to the action, such
court or judge may grant an order that the service be made by personal service outside the state. Such service
shall be made by delivering a copy of the process together with a copy of the complaint in person to the person
served. The methods of service are cumulative, and may be utilized with, after, or independently of, other
methods of service.
____________
83 Nev. 97, 97 (1967) Kuk v. Warden
JEROME PETER KUK, Petitioner v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 5296
February 15, 1967 423 P.2d 675
Original petition for writ of Habeas Corpus.
The Supreme Court held that failure of petitioner to raise point, that he was not tried
within 60 days after he was found sane and able to assist counsel in defense of murder charge,
before his trial and conviction waived his right to present issue collaterally in original petition
for habeas corpus.
Writ denied. Proceedings dismissed.
Jerome Peter Kuk, in Proper Person.
1. Habeas Corpus.
When the legislature amended the habeas corpus statute to provide for an appeal to the Supreme
Court from a denial of the writ by a district judge, this remedy precluded an additional and independent
application for a writ of habeas corpus to a justice of the Supreme Court where no new grounds are
asserted and where applicant did not avail himself of the right of an appeal to the Supreme Court. NRS
34.380, subd. 3.
2. Habeas Corpus.
Where appeal was not taken by petitioner to the Supreme Court from order of district court dismissing
his habeas corpus petition, petitioner was not entitled to further consideration of points made before
district court by original petition for habeas corpus. NRS 34.380, subd. 3.
Due process is not applicable to pretrial delay.
4. Habeas Corpus.
Failure of petitioner to raise point, that he was not tried within 60 days after he was found sane and
able to assist counsel in defense of murder charge, before his trial and conviction waived his right to
present issue collaterally in original petition for habeas corpus. NRS 178.460, subd. 1, 173.495.
OPINION
Per Curiam:
Petitioner seeks an original writ of habeas corpus in proper person and forma pauperis
from this court asking that he be discharged from the restraint of the warden of the Nevada
State Penitentiary. We deny issuance of the writ.
Petitioner was convicted in the Eighth Judicial District Court of Clark County, Nevada, of
the crime of murder in the first degree.
83 Nev. 97, 98 (1967) Kuk v. Warden
degree. The jury fixed his penalty at life imprisonment without possibility of parole. The
conviction was upheld upon appeal to this court. Kuk v. State, 80 Nev. 291, 392 P.2d 630
(1964). Thereafter the Nevada Board of Pardons commuted his sentence to life imprisonment
with possibility of parole.
He petitioned for habeas corpus to the United States District Court for the District of
Nevada. On June 27, 1966 an order was entered dismissing the petition on three grounds for
failure to exhaust state remedies, namely: (1) involuntariness of statements and confessions
introduced at trial because of insanity; (2) the confession should have been excluded because
made in the absence of counsel; and (3) that certain comments made by the prosecuting
attorney during closing argument infringed his rights against self-incrimination, thereby
depriving him of a fair trial. It was denied on a fourth ground where he claimed that adverse
and prejudicial newspaper publicity deprived him of a fair trial because the point had been
considered and rejected by this court in Kuk v. State, supra.
Simultaneously petitioner sought habeas corpus from the First Judicial District Court of
Ormsby County, Nevada, on the same grounds urged to the United States District Court.
Counsel was appointed for him as an indigent person, the writ issued and a hearing held. The
trial court refused to make the writ permanent and dismissed the proceeding. No appeal was
taken by petitioner to this court from that order as he was entitled to do by NRS 34.380(3),
which reads:
3. An applicant who has petitioned the district judge of a judicial district, as provided in
this chapter, and whose application for such writ is denied, may appeal to the supreme court
from the order and judgment of the district judge or district court refusing to grant the writ or
to discharge the applicant, but such appeal shall be taken within 30 days from the day of entry
of the order or judgment.
In the present petition, petitioner again urges the same points made to the United States
District Court and the First Judicial District Court of Ormsby County, Nevada, with one
addition. He further contends that following receipt of the opinion of the sanity commission,
finding him sane and able to assist counsel in defense of the offense charged, he was not tried
within 60 days thereafter as directed by NRS 178.460(1)
1
He did not raise the point in his
appeal to this court from conviction in the trial court, but seeks now to attack it
collaterally.
____________________

1
1. Upon receiving the report, findings and opinion of the sanity commission, and if the decision is that the
person examined then and there:
(a) Knew the difference between right and wrong;
(b) Understood the nature of the offense charged; and
(c) Was of sufficient mentality to aid and assist counsel in defense
83 Nev. 97, 99 (1967) Kuk v. Warden
did not raise the point in his appeal to this court from conviction in the trial court, but seeks
now to attack it collaterally.
[Headnote 1]
In Ex parte Merton, 80 Nev. 435, 437-438, 395 P.2d 766 (1964), this court said:
This court is of the opinion that when the legislature amended the habeas corpus statute
to provide for an appeal to the supreme court from a denial of the writ by a district judge, this
remedy precluded an additional and independent application for a writ of habeas corpus to a
justice of the supreme court where no new grounds are asserted and where he did not avail
himself of the right of an appeal to this court.
[Headnote 2]
Thus, on the points (1) through (4) mentioned above, petitioner is not entitled to further
consideration by habeas corpus.
[Headnotes 3, 4]
We said in Oberle v. Fogliani, 82 Nev. 428, 420 P.2d 251 (1966): The Nevada
Constitution does not contain a speedy and public trial provision. The Sixth Amendment to
the Federal Constitution does. It reads: In all criminal prosecutions the accused shall enjoy
the right to a speedy and public trial.' However, this part of the Sixth Amendment has not
been extended to state court cases (Gaines v. Washington, 277 U.S. 81 (1927), on public trial;
Phillips v. Nash, 311 F.2d 513 (7th Cir. 1962); In re Sawyer's Petition, 229 F.2d 805 (7th Cir.
1956); State v. Squier, 56 Nev. 386, 54 P.2d 227 (1936); Cooper v. State, 196 Kan. 421, 411
P.2d 652 (1966)), because due process, being primarily concerned with the fairness of the
trial itself, has not yet been regarded as applicable to pretrial delay. Accordingly, we are not
faced with a habeas application bottomed upon a constitutional violation. The issue in that
case concerned failure to observe the 60-day rule for trial under NRS 17S.495.
____________________
of the offense charged, or to show cause why judgment should not be pronounced, the district judge shall within
10 days forward to the district judge of the district court committing the person charged with the public offense
to the Nevada state hospital, and to the district attorney of the proper county, respectively, one copy of the
report, findings and opinion of the sanity commission. Upon receipt thereof, the district attorney shall notify the
sheriff of the county of the findings of the sanity commission and arrange for the return of the person to that
county for trial upon the offense there charged or the pronouncement of judgment, as the case may be. The
person shall not be returned more than 30 days before the date set for the trial or pronouncement of judgment.
Such date shall be within 60 days of the receipt of the findings of the sanity commission.
83 Nev. 97, 100 (1967) Kuk v. Warden
under NRS 178.495. Before trial petitioner raised the point by application to the trial court for
habeas corpus but did not appeal an adverse ruling to this court. Instead he attempted to
collaterally attack the point after trial and conviction by an original application for habeas
corpus. We then said, ibid. 420 P.2d 251, at page 253: We abhor such callous disregard of
the defendant's rights and would not have allowed it to occur had the matter been presented to
us before trial. This was not done. As a consequence, the defendant waived his right to
present the same issue collaterally after trial and conviction.
Issuance of the writ is denied.
____________
83 Nev. 100, 100 (1967) Heffley v. State
JAMES ALVIN HEFFLEY, Appellant, v. THE STATE
No. 5115
February 17, 1967 423 P.2d 666
Appeal from conviction of second degree burglary and sentencing under the habitual
criminal statute. Second Judicial District Court, Washoe County; John W. Barrett, Judge.
The defendant was convicted in the trial court of second degree burglary and he appealed.
The Supreme Court, Zenoff, J., with one judge concurring in result, held that search without
warrant by police who had had custody of automobile from time of its seizure on public
highway following arrest of driver for possession of pistol until officer took inventory of
contents and found two passports and two certificates of vehicle registration, which had been
taken in a burglary, on floor by rear seat and was not unreasonable, and the passports and
certificates were thus admissible against driver.
Affirmed.
[Rehearing denied March 20, 1967]
James C. Martin, of Carson City, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and Herbert J.
Santos, Deputy District Attorney, Washoe County, for Respondent.
1. Searches and Seizures.
The constitutional rule that a search warrant must be obtained before a search is conducted has
exceptions.
If search is for purposes of inventory of personal effects and not exploratory, articles which are found
as result and which supply foundation for reasonable suspicion on part of the police are not subject to
unlawful search and seizure, for police are in a place where they have a right and obligation to be.
A police officer, when there is just cause must not only impound vehicle from public highway for its
own protection but must also inventory the contents so that they may be safeguarded for the owner and in
order to defeat dishonest claims of theft of contents of the vehicle and to protect temporary storage bailee
against false charges.
If policing conduct indicates that intention of search of a vehicle impounded from public highway is
exploratory rather than inventory, fruits of the search are forbidden.
The fundamental right of privacy connected with a home is different from and in greater need of
protection than automobile on public right of way; in case of automobile, police and other people using
public highway as well as vehicle owner have interest which must be protected.
6. Criminal Law; Searches and Seizures.
Search without warrant by police who had had custody of automobile from time of its seizure on
public highway following arrest of driver for possession of pistol until officer took inventory of contents
and found two passports and two certificates of vehicle registration, which had been taken in a burglary,
on floor by rear seat was not unreasonable, and the passports and certificates were thus admissible
against driver in burglary prosecution.
7. Criminal Law.
Passports and registration certificates which had been taken in burglary and which were found on
floor by rear seat of vehicle defendant had been driving were not rendered inadmissible in burglary
prosecution of defendant simply because those documents had been unrelated to initial purpose for which
investigation of the vehicle had been begun.
8. Arrest.
When police officers found passports and vehicle registration certificates, which bore names other
than that of arrested driver's, lying near back seat of vehicle which had been originally investigated
because it answered description of that being used by person attempting to sell guns to pawn
shops and which contained an unusually large number of guns in plain view on rear
seat, police had good cause to become suspicious and inquisitive.
attempting to sell guns to pawn shops and which contained an unusually large number of guns in plain view
on rear seat, police had good cause to become suspicious and inquisitive.
9. Arrest.
If during lawful search possible evidence of crime other than that for which arrest is made comes to
officer's attention, he must heed it.
OPINION
On October 25, 1965 the residence of Eccles and Chester was burglarized in Washoe
County. Among the items stolen were Eccles' passport, Chester's passport, a trailer
registration, and a truck title. No identity of the culprit was established at that time.
Heffley was arrested in his automobile in Sacramento, California, on November 13, 1965,
while he was waiting for a stop light. Officer Santich, the arresting officer, had received a
radio report that a person driving a car answering the description of that of Heffley was
attempting to sell guns to pawn shops and he was ordered to investigate. Santich approached
Heffley at the stop light and while interrogating him saw the butt of a pistol under the driver's
seat. He also observed several shotguns, rifles, and pistols piled on the rear seat. He ordered
Heffley out of the car, arrested him for possession of the pistol, took the pistol from the car,
and then had Heffley taken to jail in another police car which had been summoned by
Santich. Santich drove Heffley's car to the same police station three blocks away.
A complete search of the entire automobile was immediately made at the station by officer
Santich. He looked into the trunk and under the hood, although no unusual articles were
found in those places. On the floor by the rear seat he found the two passports and the two
certificates of registration along with, of course, the arsenal of guns. He made a list of the
items he found in the automobile.
Santich gave the documents to officer Waters who after advising Heffley of his
constitutional rights showed Heffley those instruments and questioned him concerning them.
While it is not clear at what stage he obtained the information from Heffley that they were not
his, nevertheless, from information obtained from Heffley, Waters called the Washoe County
Sheriff's Department and was informed of the Eccles-Chester burglary.
burglary. Thereafter, Heffley confronted by Waters with this information, readily confessed to
the burglary. Subsequently, Heffley was found guilty of second degree burglary and also of
being an habitual criminal and was sentenced to life imprisonment.
Heffley contends on appeal that the passports and certificates and his resultant confession
when confronted with them were fruits of an illegal search which contributed to his
conviction.
1. We do not feel compelled to decide this case on the basis that the search of defendant's
car was incidental to his lawful arrest. Preston v. United States, 376 U.S. 364 (1964);
Thurlow v. State, 81 Nev. 510, 406 P.2d 918 (1965); State v. Schwartzenberger, 422 P.2d
323 (Wash. 1966). Preston and Thurlow involved general exploratory searches, extensive in
character. In both instances, the searches of the vehicles were held too remote from the arrest
and therefore unreasonable under the circumstances. Our consideration is focused directly to
the reasonableness of the search which was conducted after Heffley was placed in custody
and his automobile impounded at the police station.
[Headnotes 1, 2]
The constitutional rule that a search warrant must be obtained before a search is conducted
is not without exception. If the search is for the purposes of inventory of personal effects and
not exploratory, articles found as a result which supply the foundation for a reasonable
suspicion on the part of the police are not subject to unlawful search and seizure. This is so
because the police are in a place where they have a right and obligation to be, as in this case,
when they find the objects of seizure. People v. Ortiz, 305 P.2d 145 (Cal. 1956); People v.
Simpson, 339 P.2d 156 (Cal. 1959); State v. Wade, 376 P.2d 915 (Kan. 1962); State v. Olson,
263 P.2d 824 (Wash. 1953).
1

[Headnotes 3, 4]
The police officer, when there is just cause, has a duty not only to impound a car from the
public highway for its own protection, but also to inventory the contents so that they may be
safeguarded for the owner. Such practice is deemed necessary to defeat dishonest claims of
theft of the car's contents and to protect the temporary storage bailee against false charges.
People v. Ortiz, supra. If, however, the policing conduct indicates that the intention is
exploratory rather than inventory the fruits of that search are forbidden.
____________________

1
Approval of the inventory doctrine is footnoted in People v. Cooper, 44 Cal.Rptr. 483, page 491 (1965),
decided after Preston, supra.
inventory the fruits of that search are forbidden. People v. Garrison, 11 Cal.Rptr. 398 (1961).
Unfortunately, distinguishing inventory from exploration may prove to be ambitious and
unprecise. We can only say that each case must be determined upon its own facts and
circumstances.
[Headnote 5]
The historical difference in treatment between buildings and automobiles justifies the
inventory procedure used by the police. The fundamental right of privacy connected with a
man's home is understandably different and in greater need of protection than an automobile
on the public right of way. In the latter case the police and other people using the public
highway, as well as the owner of the vehicle, have an interest which must be protected.
Chapman v. United States, 365 U.S. 610 (1961); Carroll v. United States, 267 U.S. 132
(1924).
[Headnote 6]
In this case from the time of seizure of the car until the inventory at the police station, the
vehicle was in the lawful custody of the officers. In these circumstances the search without a
warrant of defendant's automobile could not be said to be unreasonable. It is only
unreasonable searches that are prohibited by the Constitution. United States v. Rabinowitz,
339 U.S. 56 (1950).
We acknowledged the duty of police officers to inventory at the police station in Arabia v.
State, 82 Nev. 453, 421 P.2d 952 (1966). The segregation of prisoners and the inventorying
of their personal belongings is a matter of internal police administration, and does not offend
the purposes of the Fourth Amendment. During the period of police custody, an arrested
person's personal effects, like his person, are subject to reasonable inspection, examination,
and test. (Concurring opinion of Justice Thompson.)
[Headnote 7]
Consequently, since no right of the defendant was violated by reason of the inspection of
the guns in the back seat of his automobile, the officer was not required to overlook the
passports and registrations which became visible, or were already visible, when the interior of
the car was examined at the police station. Under the circumstances the possession of this
evidence was legally obtained by the police and properly received. The officers are not bound
to ignore this evidence. It is also not rendered inadmissible simply because it was unrelated to
the initial purpose for which the investigation of the car was begun. See People v. Loomis, 42
Cal.Rptr. 124 (1965).
State v. Elkins, 422 P.2d 250 (Ore. 1966), is distinguishable. There a police officer, in the
process of an arrest, sent certain pills found on Elkins to be analyzed. He had no basis for
suspicion that the pills were a narcotic.
[Headnote 8]
We find no such analogy to the facts here. Heffley's car was loaded with an unusually large
number of guns in plain view on the rear seat. The officers had the responsibility to inventory
the property, for if it later developed that Heffley owned the guns and the automobile they
would be responsible for their safekeeping. The requirement to inventory placed the
California Police officers in lawful possession of everything they found in the car at the time
it was taken into custody. When they found the passport and certificates of ownership of
vehicles lying near the back seat they not only became responsible for their safekeeping, but
under the circumstances they had good cause to become suspicious and inquisitive since the
documents bore names other than Heffley's.
Law officers are expected to be suspicious and inquisitive. The society they protect
demands that they ask questions. Officer Waters asked Heffley about the certificates. At first,
he stated that the owners were his friends. Later, he confessed that they were products of the
burglary for which he now stands convicted.
[Headnote 9]
The criminal implications of Heffley's possession of the evidence were voluntarily
supplied by Heffley. It is conceded that in all other respects the confession met the
constitutional requirements of Escobedo and Miranda.
2
We subscribe, there fore, to the rule
that if during a lawful search possible evidence of a crime other than that for which an arrest
is made comes to an officer's attention it is his duty to pay heed to it. The officer was in a
place he had a right to be and doing a thing he had a right to do. He is not required to turn his
eyes away. The evidence and confession were properly received.
Affirmed.
Collins, J., concurring:
I concur in the result of the opinion by Mr. Justice Zenoff and add the following:
Things seized for which there are reasonable grounds for suspicion by a police officer that
they are the implements or fruits of a crime, other than that for which the arrest was
lawfully made, require the officer to make further investigation.
____________________

2
Escobedo v. Illinois 378 U.S. 478 (1964); Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694 (1966).
fruits of a crime, other than that for which the arrest was lawfully made, require the officer to
make further investigation. And where, as here, the suspicion proved true, the evidence may
be lawfully admitted. Its seizure, following a lawful arrest, does not violate the constitutional
prohibition of either Nevada or the United States against unlawful searches and seizures. See
State v. Elkins, 422 P.2d 250 (Ore. 1966). The crux of this rule is reasonable suspicion in
the officer's mind. If he can point to facts, circumstances or even statements of the person
arrested as basis for the reasonable suspicion, then his duty to pursue the investigation further
is clear. That is exactly what happened here, and the arresting officer's suspicion as to the two
passports and certificates of registration was reasonable as being fruits and implements of
another crime. Without further investigation he could not and would not know what other
crime was committed or where. The impression or suspicion gained from a consideration of
all the circumstances of the case created his obligation and right to inquire further. It might be
argued he was obligated to get a search warrant from a magistrate before searching the car
further or seizing the evidence, but how could he state under oath sufficient facts to get a
search warrant at that moment? He did not know and could not know the passports and
registration certificates were products of a burglary in Washoe County, Nevada, or any other
crime committed in any other place. As a matter of practical necessity, the officer had to
continue his investigation based upon the reasonable suspicion present. When the
investigation was completed, he had no need for the search warrant. He then had actual
knowledge of the commission of a felony burglary in Washoe County, Nevada, and
reasonable grounds to believe appellant committed it. It is said in Abel v. United States, 362
U.S. 217 (1960), When an article subject to lawful seizure properly comes into an officer's
possession in the course of a lawful search it would be entirely without reason to say that he
must return it because it was not one of the things it was his business to look for. Also see
Carroll v. United States, 267 U.S. 132 (1925). It seems to me it would be entirely without
reason to require the officer to return the two passports and registration to appellant or to
expect the trial court to suppress them as evidence.
Thompson C. J., dissenting:
I would set aside this conviction on the authority of Preston v. United States, 376 U.S. 364
(1964), and Thurlow v. State, 81 Nev. 510, 406 P.2d 918 (1965). A warrantless search of the
defendant's car at a time when he was in jail and at a place remote from the place of his
lawful arrest is not constitutionally permissible.
the defendant's car at a time when he was in jail and at a place remote from the place of his
lawful arrest is not constitutionally permissible. I find no suggestion in the search and seizure
opinions of the United States Supreme Court that securing an inventory of items in the
defendant's car somehow makes those items constitutional evidence in a later trial for a crime
wholly unrelated to the initial arrest. Such a notion completely destroys the rationale of
Preston and, I think, is a transparent effort to avoid its doctrine.
I dissent.
____________
83 Nev. 107, 107 (1967) Mohr Park Manor, Inc. v. Mohr
MOHR PARK MANOR, INC., a Nevada Corporation, and JAMES
H. MCGROARTY, Appellants, v. ANNA MOHR, Respondent.
No. 5137
February 21, 1967 424 P.2d 101
Appeal from Eighth Judicial District Court, Clark County, David Zenoff, Judge.
Action by landowner for declaratory judgment annulling option agreement. The trial court
rendered judgment for landowner and appeal was taken. The Supreme Court, Wilkes, D. J.,
held that option agreement providing that purchaser would, as soon as financing had been
obtained, cause escrow to be set up in regard to sale of parcels was not nullity because of
failure to specify time within which option could be exercised and reasonable time for
exercise would be implied.
Singleton, DeLanoy & Jemison, of Las Vegas, for Appellants.
Coulthard & Smith, of Las Vegas, for Respondent.
1. Vendor and Purchaser.
Option to purchase property is contract wherein owner in return for valuable consideration agrees
with another person that latter may buy property within specified time upon express terms and conditions.
Option contract is distinct from contract which is underlying agreement and it must stand or fall on its
own merits.
3. Contracts.
In interpreting an agreement court may not modify it or create new or different one.
4. Contracts.
Court is not at liberty to revise agreement while professing to construe it.
5. Contracts.
Contract should be construed if logically and legally permissible so as to effectuate valid contractual
relations rather than in manner which would render agreement invalid or render performance impossible.
6. Contracts.
In construing contract court should ascertain intention of parties from language employed as applied to
subject matter in view of surrounding circumstances.
Unilateral option contract can be made irrevocable by giving of written promise under seal, by giving of
consideration, or by subsequent action in reasonable reliance thereon.
Where option agreement recited consideration of ten dollars paid by buyer to seller and agreement was
under seal and buyer in reliance thereon expended money and effort in furtherance of development of
property, agreement would not fail for alleged lack of consideration.
9. Contracts.
Option contract does not require mutuality of obligation.
Option contract, so long as it remains unaccepted, is unilateral writing lacking mutual elements of
contract but when accepted by optionee becomes executory contract which is mutually binding on parties.
Option intended by parties to run for unlimited time is void.
Court cannot save option which is void for purporting to run for unlimited time by implying reasonable
time.
Option which is to remain open for limited time but in which no time is stated is valid and law will imply
reasonable time for its duration.
14. Contracts.
In construing contract, court must supply those things which it is bound under law to imply in order to
carry out intent of parties so as to make agreement lawful, effective and reasonable.
Option agreement providing that purchaser would, as soon as financing had been obtained, cause escrow
to be set up in regard to sale of parcels was not nullity because of failure to specify time
within which option could be exercised and reasonable time for exercise would be
implied.
to sale of parcels was not nullity because of failure to specify time within which option could be exercised
and reasonable time for exercise would be implied.
OPINION
By the Court, Wilkes, D. J.:
This is an appeal from a declaratory judgment annulling an option agreement. Anna Mohr,
plaintiff, filed a complaint seeking a declaratory judgment on November 1, 1962. Mohr Park
Manor, Inc., and James H. McGroarty, defendants, answered and thereafter trial was held
before the court. Judgment was entered annulling the agreement on May 9, 1966. Appeal was
commenced on May 23, 1966, by Mohr Park Manor, Inc., and James H. McGroarty, the
appellants. We believe that the trial court erred and therefore reverse the judgment and
remand for further proceedings.
In late 1961 Mrs. Mohr and a friend contacted McGroarty at his office in Las Vegas in an
effort to sell him her 150 acre tract in that city. Several meetings followed wherein the
development of the tract as a senior citizens project was discussed. Contemplating the
acquisition of the property McGroarty caused defendant Mohr Park Manor, Inc., to be
incorporated in February of 1962.
On March 2, 1962, the parties executed the following instrument:
AGREEMENT
This Agreement, made and entered into this 2nd day of March, 1962, by and between
Anna Mohr, a widow, hereinafter referred to as Seller, and Mohr Park Manor, Inc., a
Nevada corporation, hereinafter referred to as Buyer,
WITNESSETH:
Whereas, Seller is the owner of a parcel of land consisting of approximately 150 acres
of land situated in the County of Clark, State of Nevada, and more particularly
described as follows: * * *
Whereas, Seller is desirous of selling said property described above to Buyer and Buyer
wishes to purchase said property.
Now, Therefore, for and in consideration of the payment of $10.00 paid by Buyer to
Seller, receipt of which is hereby acknowledged, together with the mutual promises and
agreements hereinafter made between the parties hereto, it is agreed as follows:
and agreements hereinafter made between the parties hereto, it is agreed as follows:
1. The Seller hereby agrees to release and convey to Buyer, parcels of land not less
than 20 acres
1
at any one time upon request being made by Buyer to Seller to release
said parcels of land from the real property described herein as the real property the
subject of this agreement.
2. It is expressly understood and agreed between the parties hereto that it will be
necessary for Buyer herein to finance the contemplated construction upon said real
property and to do so it will be necessary for Buyer to have a clear title to such parcels
released to Buyer, Buyer, however, hereby agrees that Buyer will, as soon as financing
has been obtained, cause an escrow to be set up in regard to the sale of the released
parcels, said escrow to provide that Seller herein shall be paid the sum of $3,000.00 per
acre for each acre of land released and conveyed out of said escrow before any profits
can be distributed to Buyer.
3. Buyer further agrees to furnish to Seller a promissory note in an amount equal to
$3,000.00 for each acre of land released and deeded to Buyer. Said promissory note to
be placed into the escrow to be established as aforesaid, with instructions to the escrow
agent that said promissory note is to be surrendered to Buyer and marked paid when the
amount of money due thereon shall have been paid to Seller.
4. It being further expressly understood and agreed between the parties hereto that the
sales price of the real property hereinabove described is the sum of $3,000.00 per acre
and that the Buyer is granted by this instrument the irrevocable right to buy all of the
real property described above for that price,
2
In Witness Whereof, the parties hereto
have hereunto set their hands and seals the day and year first above written.
____________________

1
Deleted at this place in the instrument were the words and not to exceed 46 acres. This deletion was
initialed by both parties.

2
At this point, the parties deleted the following: it being further understood and agreed, however, that in the
event Buyer has not exercised the right to buy all of said property within a period of five (5) years from the date
hereof, the Seller herein shall be released from the obligation of selling the remaining balance of land to the
Buyer. It is understood that the Buyer herein is only obligated to purchase such portions of said described real
property as Buyer desires to purchase, and Buyer shall also have the right to determine which parcels it will
purchase in what order.
The contemporaneous nature of this deletion is evidenced by the parties failing to replace the now
inapplicable comma after price with a period. This deletion was also initialed by both parties.
In Witness Whereof, the parties hereto have hereunto set their hands and seals the day
and year first above written.
This instrument was drafted by an attorney not presently involved in this case. The parties
hold different views as to whether the attorney prepared the instrument for Mrs. Mohr or for
both parties. The trial court adopted a finding that the instrument was drafted on behalf of
both parties. We must conclude that Mrs. Mohr was represented by counsel in the preparation
of this instrument.
After the execution of the instrument and between April and December 1962 appellants
expended approximately $8,000.00 for engineering. McGroarty attended planning
commission meetings and met with various persons regarding the obtaining of financing,
architectural work, engineering, zoning, etc. The record is clear that both money and effort
were expended by appellants in furtherance of the development of the property. Mrs. Mohr
was aware of these expenditures and efforts and for a time at least was satisfied with the plans
and progress.
In June of 1962 Mrs. Mohr demanded a quitclaim deed from appellants which demand
was not met. On November 1, 1963, she filed this suit.
Respondent contends that no valid option or contract was created by the March 2, 1962,
instrument because it is lacking in essential elements; that it is both uncertain and vague; that
the instrument is unenforceable for lack of mutuality of obligation and consideration; that, if
an option, it was not exercised timely or in accordance with its terms. Appellants contend that
a valid and binding option was entered into between the parties; that the option is reasonably
certain and definite and will support specific performance; that the option was repudiated by
Mrs. Mohr prior to the expiration of the option period.
The trial court held the instrument of March 2, 1962, to be a total legal nullity, a nudum
pactum, for the reason that it does not specify any time for its acceptance, or any contingency
upon the happening of which it could be exercised as an option.
To be decided by this court is whether the instrument constituted a binding, legally
enforceable option. We hold that an option does exist and remand for a determination of the
period of its validitya reasonable time under the circumstances.
[Headnotes 1, 2]
An option to purchase property is a contract wherein the owner, in return for valuable
consideration, agrees with another person that the latter may buy property within a specified
time upon expressed terms and conditions. McFerran v. Heroux, 269 P.2d S15, S19 {Wash.
269 P.2d 815, 819 (Wash. 1954); Bowles v. Babcock & Wilcox Co., 76 S.E.2d 703, 704 (Ga.
1953). The option contract is distinct from the contract which is the underlying agreement
and it must stand or fall on its own merits. Simpson, Contracts 20 (1954); Restatement,
Contracts 24 (1932). This distinction is seen in Neely v. Denton, 68 So.2d 537, 540 (Ala.
1953) wherein it is stated: An option in its inception, is neither a sale nor an agreement to
sell. It is simply a contract by which the owner of property agrees with another, that he shall
have the right to buy the property at a fixed price within a time certain.' [Citation omitted.]
See also Auslen v. Johnson, 257 P.2d 664 (Calif. Dist. Ct. of App. 1953).
[Headnotes 3-6]
In interpreting an agreement a court may not modify it or create a new or different one. A
court is not at liberty to revise an agreement while professing to construe it. Reno Club, Inc.
v. Young Investment Co., 64 Nev. 312, 323-24; 182 P.2d 1011 (1947). On the other hand, a
contract should be construed, if logically and legally permissible, so as to effectuate valid
contractual relations, rather than in a manner which would render the agreement invalid, or
render performance impossible. Reno Club, Inc. v. Young Investment Co., supra, 325. See
also 4 Williston, Contracts 620 (3d Ed. 1961) wherein it stated: The Writing Will Be
Interpreted If Possible So That It Shall Be Effective and Reasonable. An interpretation which
makes the contract or agreement lawful will be preferred over one which would make it
unlawful; an interpretation which renders the contract or agreement valid and its performance
possible will be preferred to one which makes it void or its performance impossible or
meaningless; an interpretation which makes the contract or agreement fair and reasonable will
be preferred to one which leads to harsh or unreasonable results. A court should ascertain the
intention of the parties from the language employed as applied to the subject matter in view
of the surrounding circumstances.
[Headnotes 7, 8]
It is contended that the agreement lacks consideration. We find this contention to be
without merit. Corbin cites three ways in which a unilateral option contract can be made
irrevocable: 1) By the giving of a written promise under seal; 2) by the giving of
consideration; 3) by the subsequent action in reasonable reliance thereon. Corbin, Contracts
263 (1963). Though any one is adequate, all three appear to have occurred in the instant
case.
one is adequate, all three appear to have occurred in the instant case.
It would appear that the bilateral contract which arises upon exercise of the option is also
supported by consideration. The buyer is to pay $3,000.00 per acre for the land. It is
unnecessary, however, for this court to consider the merits of the underlying agreement; that
question is not before us today. As noted above, we are solely concerned with the validity of
the option agreement.
[Headnotes 9, 10]
Respondent contends that the agreement lacks mutuality of obligation (sometimes
referred to as want of consideration). This assertion misconstrues the very nature of an
option contract which does not require mutuality of obligation. Witkin, Summary of
California Law, Contracts 74. An option so long as it remains unaccepted, is a unilateral
writing lacking mutual elements of a contract, but when accepted by optionee, an executory
contract, which is mutually binding on the parties, arises. Crane-Rankin Development Co. v.
Duke, 90 P.2d 883 (Okla. 1939); Davenport v. Doyle Petroleum Corporation, 126 P.2d 57, 61
(Okla. 1942).
We now turn to what we regard as the main issue to be decided. Respondent contends that
the option is invalid because of uncertainty and indefiniteness as to time. The trial court held
that the failure to specify a time within which the option could be exercised rendered the
instrument a nullity, a nudum pactum, saying The crux of the instant case is that no valid
option agreement ever was executedthe agreement of March 2, 1962, being a total nullity.
Respondents and the trial court placed great stress upon a statement in C.J.S.: An option
for an indefinite term is a nudum pactum. 91 C.J.S., Vendor and Purchaser 6 (1955). This
statement first appeared in Corpus Juris and was later adopted and included in C.J.S., relying
on Bristo v. Christine Oil & Gas Co., 71 So. 521 (La. 1916). Close examination will reveal
that the Bristo case involved a perpetual lease for mineral rights and that the option was
invalidated for two reasons: 1) Under a Louisiana statute which provides that the price of a
sale must not be out of proportion with the value of the thing sold there was failure of
consideration; and, 2) the purported extension for an unlimited time was violative of the rule
against perpetuities. We feel that the statements in C.J.S. and the holding in the Bristo case
are not in point in this case for the reason that there they were concerned with an option for
an unlimited1 time whereas in this case we are concerned with an option for an indefinite
but limited time.2 According to the language of the agreement, that time was "as soon as
financing has been obtained."
that there they were concerned with an option for an unlimited
1
time whereas in this case we
are concerned with an option for an indefinite but limited time.
2
According to the language
of the agreement, that time was as soon as financing has been obtained.
[Headnotes 11-13]
An option actually intended by the parties to run for an unlimited time (i.e., forever) is
void. A court cannot save such an option by implying a reasonable time because such an
interpretation would be exactly contrary to the intention of the parties. However an option
which is to remain open for a limited time but in which no time is stated is valid because the
law will imply a reasonable time for its duration. Restatements, Contracts 46 (1932).
This principle and general philosophy are illustrated by Shull v. Sexton, 390 P.2d 313, 316
(Colo. 1964) where the court states:
Although a contract may be uncertain or incomplete in some respects, its specific
performance may nevertheless be decreed where the uncertainty or incompleteness
relates to matters which the law makes certain or complete by presumption, rule, or
custom and usage. [See also authorities cited therein.] * * * But the Shulls point out
that the contract thus created lacks any provision for the time of performance. Courts
have applied the doctrine of performance within a reasonable time where the contract
fails to specify the time for the discharge of obligations. [Citations omitted.] * * *
Reasonable time is measured by the circumstances of the case. [Citation omitted.]
[Headnotes 14, 15]
Although the instrument of March 2, 1962, is no pearl of draftsmanship, we do not
subscribe to the position that the court is being asked to rewrite the contract for the parties.
Where possible, the court must supply those things which it is bound under the law to imply
in order to carry out the intent of the parties so as to make the agreement lawful, effective and
reasonable. That the parties have burdened the court with the necessity of establishing by
law what is a reasonable time under the circumstances is true; however, this is a duty
which the court cannot ignore.
____________________

1
This is close to the term unlimited option used by Prof. Corbin in his article The Effect of Options on
Consideration, 34 Yale L.J. 571 (1925). There the unlimited option situation was treated as an illusory promise.

2
To the extent that the broad language quoted from C.J.S. above is, or seems to be, inconsistent with the
holding in this case, we deem its authority as unpersuasive.
necessity of establishing by law what is a reasonable time under the circumstances is true;
however, this is a duty which the court cannot ignore.
As we have determined that the trial court was in error in finding the option to be a nullity,
this case must be remanded for the factual determination of what is a reasonable time within
which the option may be exercised in the context of this case.
Reversed.
____________
83 Nev. 115, 115 (1967) Peoples v. State
ROBERT G. PEOPLES, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 5158
February 21, 1967 423 P.2d 833
Appeal from judgment of the Fifth Judicial District Court, Nye County; Peter Breen,
Judge.
Murder prosecution. The lower court entered judgment against defendant and appeal was
taken. The Supreme Court, Thompson, C. J., held that testimony regarding prior threats made
by defendant to victim was relevant to premeditation, deliberation and malice and was
properly admitted.
Affirmed.
Harold Cutler and Hubert R. Sommers, of Los Angeles, California, and Michael L. Hines
of Las Vegas, Nevada, for Appellant.
Harvey Dickerson, Attorney General, of Carson City, William P. Beko, District Attorney,
Nye County, and Chadwick E. Lemon, Deputy District Attorney, of Tonopah, for Respondent.
1. Homicide.
Testimony regarding prior threats made by defendant to victim was relevant to premeditation,
deliberation and malice and was properly admitted in murder prosecution.
2. Criminal Law.
Defendant who did not ask for a limiting instruction could not on appeal complain that instruction was
not given.
3. Criminal Law.
The Supreme Court would not presume that jury's verdict was influenced by prosecutor's attempt to offer
in evidence defendant's switchblade knife which played no part in the homicide.
4. Criminal Law.
Where sheriff at time he asked defendant and companion, Which one of you has the gun? did not know
that a homicide had been committed, but was rather referring to a prior shooting of a gun in a barroom,
testimony concerning conversation was not inadmissible on ground that defendant had not been informed
of his right to remain silent and his right to counsel prior to inquiry.
5. Criminal Law.
That state failed to produce for defendant's use before trial copies of autopsy report, X-rays and
photographs was not error, where defense counsel had not moved for production of any of the items before
trial.
6. Jury.
That jurors knew the district attorney was not basis for disqualifying them. NRS 175.105.
In view of record which failed to show any inflammatory publicity or that defense counsel had sought a
change of venue, finding of denial of due process could not be made.
8. Criminal Law.
Defendant waived his right to a speedy trial by his failure to assert that right before trial.
9. Mental Health.
Claim of error that defendant was not competent to assist in his defense was not supported by the record.
10. Criminal Law.
Claim of error that jury was not adequately supervised and had an opportunity to discuss the case with
witnesses was no supported by the record.
OPINION
Peoples was convicted of first degree murder and is serving a life sentence without
possibility of parole. His appeal to this court presses many claims of error. We have
concluded that none has merit and affirm the conviction.
[Headnotes 1, 2]
1. At trial the defendant objected to testimony by the witness Roberts about prior threats
made by the defendant to the victim. The lower court correctly allowed that evidence it since
was relevant to premeditation, deliberation and malice. King v. State, S0 Nev. 269
State, 80 Nev. 269, 392 P.2d 310 (1964); State v. Fitch, 65 Nev. 668, 200 P.2d 991 (1948);
State v. Canak, 55 Nev. 293, 31 P.2d 1033 (1934). The defendant now contends that the court
should have given the jury a limiting instruction. He offers no authority to support his
contention, nor have we found any. In any event, the defendant did not ask for such an
instruction, and may not now complain that it was not given. Mears v. State, 83 Nev. 3, 422
P.2d 230 (1967).
[Headnote 3]
2. The contention is advanced that prejudicial error occurred when the prosecutor
attempted to offer the defendant's switchblade knife into evidence. Objection was interposed
and sustained. It is conceded that the knife played no part in the homicide. Notwithstanding
the court's ruling, the defendant suggests that the jury must have been swayed by the
prosecutor's effort to offer inadmissible evidence. We will not presume that the jury's verdict
was somehow influenced by this bit of offered evidence which the court excluded. Indeed,
had the evidence been erroneously received, we would deem it harmless in the context of this
case. Cf. Bean v. State, 81 Nev. 25, 34, 398 P.2d 251 (1965).
[Headnote 4]
3. Shortly after the homicide a deputy sheriff walked up to the defendant and his
companion and asked: Which one of you has the gun? Defense counsel interrupted, stating:
I will object to him paraphrasing the testimony. Lets have what the words were. The
witness then answered: All I can remember is they said: I don't know anything about the
shooting.' Defense counsel moved to strike the answer which he had elicited. The motion
was denied. It is now claimed that the question and answer violated the rule of Escobedo v.
Illinois, 378 U.S. 478 (1964). It is clear from the record that at the time the sheriff inquired of
the defendant about the gun, the sheriff did not know that a homicide had been committed.
His inquiry was directed to a prior shooting of a gun in a barroom which had not caused
harm. The killing occurred later the same day at a different place. Escobedo is inapposite
since the officer's inquiry was general, and unrelated to the homicide. Indeed, none of the
requisites needed for the application of Escobedo are present here. Cf. Bean v. State, supra.
[Headnotes 5-10]
4. The remaining assignments of error may be summarily handled. (a) The defendant
complains that the State failed to produce for his use before trial copies of the autopsy
report, X-rays and photographs.
produce for his use before trial copies of the autopsy report, X-rays and photographs. The
photographs were delivered to defendant's trial counsel,
1
before trial. The X-rays taken of
the victim were lost or misplaced by the doctor before trial and could not be produced.
Defense counsel did not move for the production of any of the mentioned items before trial.
This claim of error is patently without substance. (b) It is asserted that the jury was unfair
because seven of its members knew the district attorney. Of course, such acquaintanceship
does not disqualify, NRS 175.105. The jury did not contain a member whom the defendant
had unsuccessfully challenged for cause. This appellate complaint has no merit. (c) It is
argued that inflammatory publicity precluded a fair trial. Such publicity is no part of the
record on appeal. Trial counsel was apparently satisfied with the jury selected following voir
dire for he did not seek to change the place of trial. Cf. Hanley v. State, 80 Nev. 248, 391
P.2d 865 (1964). In these circumstances we cannot find a denial of due process. Bean v.
State, supra. (d) The defendant now complains that he was not given a speedy trial. The
record shows that most of the delay in bringing the case on for trial was attributable to the
defendant. In any event, the statutory right to a speedy trial [178.495; 169.160(1)] must be
asserted before trial, or it is waived. Cf. Oberle v. Fogliani, 82 Nev. 428, 420 P.2d 251
(1966). (e) It is suggested that the defendant was not competent to assist in his defense. The
suggestion finds no support in the record. The defendant did not seek a competency hearing
before trial, nor is there an indication that he should have requested such a hearing. Thus, we
do not reach the questions presented in Hollander v. State, 82 Nev. 345, 418 P.2d 802 (1966)
or Krause v. Fogliani, 82 Nev. 459, 421 P.2d 949 (1966). (f) It is asserted that the jury was
not adequately supervised and had an opportunity to discuss the case with witnesses. The
record does not support this assertion.
2
(g) Finally, the prosecutor is charged with having
misstated a minor bit of evidence in jury argument. Defense counsel objected, whereupon it
was agreed between them that the jury could call for the record and resolve the dispute if it
wished to do so.
____________________

1
Hubert Sommers, Esquire, of the California bar was retained counsel on appeal, but did not participate in
the trial.

2
The assertion rests on affidavits secured from two witnesses after the case was concluded and while this
appeal was pending. Those affidavits, attached to appellant's brief, are not properly a part of the record on
appeal. We note, however, that they do not contain facts from which prejudice to the right to a fair trial may be
presumed.
wished to do so. That ended the matter. We perceive no error.
For the reasons expressed the conviction is affirmed.
____________
83 Nev. 119, 119 (1967) Brooks Rent-A-Car v. Allied Credit
BROOKS RENT-A-CAR CO., INC., and IRVING BELL, Appellants, v. ALLIED CREDIT
BUREAU, INC., a Nevada Corporation, Respondent.
No. 5169
February 21, 1967 423 P.2d 883
Appeal from summary judgment; Eighth Judicial District Court, Clark County; William P.
Compton, Judge.
Action to collect certain debts. The lower court granted summary judgment for plaintiff,
and defendants appealed. The Supreme Court held that affidavits presented genuine issue of
fact as to amounts owing precluding summary judgment.
Reversed.
George A. Cromer, of Las Vegas, for Appellants.
Herman E. Fisher, Jr., and Patrick Finnegan, of Las Vegas, for Respondent.
Judgment.
Affidavits presented genuine issue of fact as to amounts owing precluding summary judgment in an
action brought to collect certain debts. NRCP 56(e).
OPINION
Per Curiam:
Appellants ask that we set aside a summary judgment entered against them on the basis
that a genuine issue of material fact exists. We view this contention as sound and reverse the
lower court's order so that a full trial on the merits might be had.
Respondent, the assignee of various creditors of appellant, brought an action to collect
certain debts. In support of a motion for summary judgment and pursuant to NRCP 56(a)
respondent offered, in the form of an affidavit, an audit of the accounts of the assignors.
The affidavit of appellant Irving Bell was offered which disputed the amounts owing and
which indicated that respondent's audit was made without reference to the payment
records of Brooks Rent-A-Car, Inc., of which he was president.
83 Nev. 119, 120 (1967) Brooks Rent-A-Car v. Allied Credit
respondent offered, in the form of an affidavit, an audit of the accounts of the assignors. The
affidavit of appellant Irving Bell was offered which disputed the amounts owing and which
indicated that respondent's audit was made without reference to the payment records of
Brooks Rent-A-Car, Inc., of which he was president.
It is clear that if the facts in both affidavits are accepted as true, Turner v. Redfield, 82
Nev. 273, 416 P.2d 233 (1966), a genuine issue of fact is presented. NRCP 56(e).
Reversed.
____________
83 Nev. 120, 120 (1967) Dixon v. State
ROBERT LEE DIXON, Appellant, v. THE STATE
No. 5170
February 23, 1967 424 P.2d 100
Appeal from jury verdict of conviction for attempted grand larceny and judgment
sentencing defendant as an habitual criminal. Eighth Judicial District Court, Clark County;
William P. Compton, Judge.
The trial court rendered judgment, and defendant appealed. The Supreme Court, Zenoff, J.,
held that circumstantial evidence was sufficient to establish venue, but that case would be
remanded for correction of sentence.
Affirmed on the merits. Reversed for correction of sentence.
Foley, Garner & Shoemaker, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, and
James D. Santini, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
There need be no positive testimony that violation occurred at specific place, and it is sufficient if it
can be concluded from evidence as a whole that act was committed at place alleged in indictment.
2. Criminal Law.
Prosecutor has duty to prove venue.
3. Criminal Law.
Venue may be established by circumstantial evidence and need not be shown beyond reasonable
doubt, but better practice is to prove venue by direct evidence.
83 Nev. 120, 121 (1967) Dixon v. State
4. Criminal Law.
Circumstantial evidence in grand larceny prosecution was sufficient to establish venue.
5. Criminal Law.
Error in sentencing defendant, who was adjudged an habitual criminal, both on substantive charge and on
habitual criminal count, did not render trial and proceeding a nullity, but required only remand for
imposition of single assignment of punishment.
OPINION
Robert Lee Dixon was convicted of attempted grand larceny and thereafter adjudged to be
an habitual criminal. He was sentenced to the Nevada State Prison for not less than one year
nor more than seven years on the first count and for a period of not less than ten years nor
more than ten years on the habitual criminal count. Dixon appeals from the conviction.
At the hearing before this court Dixon's counsel abandoned all but one assignment of
error. He contends only that the State failed to prove that the crime was committed in Clark
County, Nevada, as alleged in the indictment.
Dixon was accused of attempting to rifle the cash register of a Safeway Store in Clark
County, Nevada. No testimony nor evidence directly referred to the city or county in which
the store was located. However, the store manager testified that he resided in Las Vegas, that
at the time of the trial (although not at the time of the offense) he was the Safeway Store
manager of North Las Vegas, an adjoining city to the city of Las Vegas, and that on the date
of this offense, October 19, 1965, he was employed at Store No. 335 on Tonopah Highway
where the crime took place. The produce manager testified that at the time of the offense he
was employed at Safeway Store No. 335, 701 Tonopah Highway, and the Safeway Store meat
cutter likewise so testified. The defendant himself testified that he lived on 109 Frederick, Las
Vegas, Nevada, and that he knew that the incident in which he was involved occurred in the
Safeway Store on or about October 19, 1965.
[Headnotes 1-3]
1. The general rule governing proof of venue is that there need be no positive testimony
that the violation occurred at a specific place, but it is sufficient if it can be concluded from
the evidence as a whole that the act was committed at the place alleged in the
indictment.
83 Nev. 120, 122 (1967) Dixon v. State
the evidence as a whole that the act was committed at the place alleged in the indictment.
United States v. Budge, 359 F.2d 732 (Ill. 1966); State v. Glasscock; 415 P.2d 56 (N.M.
1966); Holsonbake v. State, 416 P.2d 178 (Okl. 1966); State v. Gordon, 412 P.2d 875 (Ariz.
1966); State v. Crowe, 414 P.2d 50 (Kan. 1966); Tate v. People, 247 P.2d 665 (Colo. 1952);
People v. Megladdery, 106 P.2d 84 (Cal. 1940). It is the duty of the prosecutor to prove
venue. Venue may be established by circumstantial evidence and need not be shown beyond a
reasonable doubt. Turner v. State, 285 P.2d 459 (Okl. 1955); Swift v. State, 220 P.2d 300
(Okl. 1950). (Smazal v. State, 142 N.W.2d 808 (Wis. 1966), compels the degree of proof to
be beyond a reasonable doubt.)
[Headnote 4]
It is better practice to prove venue by direct evidence and it is unfortunate that the time of
courts must be taken up with argument and searching of evidence on such issues when a
single question propounded by the prosecutor at the trial would have avoided the issue.
Dustin v. People, 181 P.2d 457 (Colo. 1947). Notwithstanding this observation, it is our
opinion that the circumstantial evidence heretofore related sufficiently established venue in
this case.
[Headnote 5]
2. We note that this case was tried before our decision in Hollander v. State, 82 Nev. 345,
418 P.2d 802 (1966), in which we held that there can be only one assignment of punishment
when a defendant is charged as an habitual criminal. However, failure to properly sentence
does not render the entire trial and proceeding a nullity. Because of the discretion allowed to
the trial court in this instance we direct that the case be remanded and the punishment
corrected in accordance with Hollander. In all other respects the judgment of conviction is
affirmed.
____________
83 Nev. 123, 123 (1967) Piazza v. Reid
GEORGE J. PIAZZA AND BILL STREMMEL, Appellants, v. JOHN L. REID, EDNA A.
REID, His Wife, and SYLVIA POLAK, Respondents.
No. 5184
March 7, 1967 424 P.2d 413
Appeal from order denying continuance. Second Judicial District Court, Washoe County;
Grant L. Bowen, Judge.
The Supreme Court held that denial of oral motion for continuance based on illness of
material witness was not abuse of discretion, even if testimony of absent witness was material
to movants' case, where movants failed to file affidavit setting forth grounds for continuance.
Affirmed in part and reversed in part.
Daniel J. Olguin, of Reno, for Appellants.
Oliver C. Custer, of Reno, for Respondents.
Continuance.
Denial of oral motion for continuance based on illness of material witness was not abuse of discretion,
even if testimony of absent witness was material to movants' case, where movants failed to file affidavit
setting forth grounds for continuance. DCR 21; NRS 16.010.
OPINION
Per Curiam:
The issue on this appeal is whether the district court's denial of appellants' oral motion for
continuance, which was based upon the illness of a material witness, was an abuse of
discretion. Neven v. Neven, 38 Nev. 541, 148 P. 354, 154 P. 78.
Appellants failed to file an affidavit setting forth their grounds for continuance. Rule 21 of
the District Court Rules of Procedure; NRS 16.010. However, notwithstanding such
noncompliance, appellants contend that the undisputed circumstances, as a matter of law,
compelled the district court's granting of said motion. We do not agree. Even though the
testimony of the absent witness was material to appellants' case, it was incumbent upon them
to file an affidavit in order to establish standing to attack the district court's discretion.
83 Nev. 123, 124 (1967) Piazza v. Reid
Since no affidavit was filed, we cannot say that the lower court abused its discretion.
Appellants also claim error as to the manner of computing interest on the amounts found
due respondents. Respondents have conceded such error. Thus we must reverse that part of
the judgment. In all other respects the judgment is affirmed.
____________
83 Nev. 124, 124 (1967) Blosser v. Wilcox
THEODORE L. BLOSSER and D. MARIE BLOSSER,
Appellants, v. RAY C. WILCOX, et al., Respondents.
No. 5177
March 10, 1967 424 P.2d 886
Appeal from judgment of the Eighth Judicial District Court, Clark County; Taylor H.
Wines, Judge.
Action to compel specific performance of written agreement to sell real property. The
lower court denied relief, and plaintiffs appealed. The Supreme Court, Thompson, C. J., held
that finding that written agreement to sell real property providing that matter of price was left
to judgment of independent appraiser whose task was to determine fair market value was too
uncertain to permit specific performance was clearly erroneous.
Reversed.
Johnson & Steffen, of Las Vegas, for Appellants.
Morton Galane, of Las Vegas, for Respondent Ray C. Wilcox.
1. Specific Performance.
Finding that written agreement to sell real property providing that matter of price was left to judgment of
independent appraiser whose task was to determine fair market value was too uncertain to permit specific
performance was clearly erroneous.
2. Specific Performance.
Written agreement to sell real property providing that matter of price is left to judgment of independent
appraiser whose task is to determine fair market value need not specify how appraiser is to determine
market value or approach to be used in order to be certain and susceptible of specific
performance, and such specification of method is wholly unnecessary and may be left
to discretion of appraiser, and when appraisal has in fact been made and price fixed,
contract may be specifically enforced.
certain and susceptible of specific performance, and such specification of method is wholly unnecessary
and may be left to discretion of appraiser, and when appraisal has in fact been made and price fixed,
contract may be specifically enforced.
OPINION
[Headnote 1]
Blosser commenced this action against Wilcox to compel specific performance of a
written agreement to sell real property. The district court ruled that the agreement was too
uncertain to allow specific enforcement and denied Blosser that relief. He has appealed. We
have concluded that the finding on this point was clearly erroneous and, therefore, do not
reach other appellate issues. The case must be reversed for further proceedings not
inconsistent with this opinion.
Blosser and Wilcox owned adjoining ranch properties with government cotton allotments.
They had negotiated for the sale of the Blosser ranch to Wilcox but could not agree upon a
price. Consequently, when a written agreement was finally consummated the matter of price
was left to the judgment of an independent appraiser selected by them. The appraiser's task
was to determine fair market value. The specific language was to ascertain the fair market
value of the improvements and the farming machinery and related equipment to be transferred
by Blosser to Wilcox, a list of such machinery and equipment being set forth in Exhibit A,
which said exhibit is attached hereto and by this reference incorporated herein as if fully set
forth.
1
An appraisal was made and submitted to the parties. Later the appraiser revised his
appraisal downward by $20,000. Blosser sought specific performance of the agreement as
implemented by the original appraisal. Wilcox claims that the revised appraisal is the true
appraisal, and contended that Blosser, by failing to accept it as such, repudiated the
agreement. Wilcox, therefore, by counterclaim sought to rescind the agreement. After hearing
the case the lower court declared that it was impossible to find any agreement of the parties
to accept a certain type of appraisal" and concluded that the remedy of specific
performance was not available.
____________________

1
The quoted proviso is only a part of one paragraph of the agreement. We deem the balance of the
paragraph irrelevant to the issue at hand, and do not relate it for this reason.
parties to accept a certain type of appraisal and concluded that the remedy of specific
performance was not available.
It is not uncommon for a seller and buyer to leave the matter of price or value to the
judgment of a qualified, experienced appraiser in whom they have confidence. Here, the
quoted provision required the appraiser to determine fair market valuea phrase having a
well defined and rather common meaning.
[Headnote 2]
The lower court fell into error when it assumed that the agreement must specify how the
appraiser is to determine market valuethe approach to be usedin order to be certain and
susceptible of specific enforcement. Such a specification of method is wholly unnecessary,
and may be (and normally is) left to the discretion of the appraiser. When the appraisal has in
fact been made and the price fixed the contract may be specifically enforced. Martin v.
Vansant, 168 P. 990 (Wash. 1917); 5A Corbin, Contracts, Sec. 1173, P. 278.
The difficulty in the instant matter does not arise because of any uncertainty in the written
agreement. Rather, it came about because the appraiser made an original appraisal and later
revised it. The seller found the first appraisal acceptable; the buyer preferred the revised
version. On remand, the lower court will have to decide which of the two figures should
govern the parties, and then fashion appropriate relief within the framework of the pleadings
and the evidence.
Reversed.
____________
83 Nev. 126, 126 (1967) Intermountain Lumber v. Glens Falls
INTERMOUNTAIN LUMBER AND BUILDERS SUPPLY, INC., a Nevada Corporation,
Appellant, v. GLENS FALLS INSURANCE COMPANY, a New York Corporation
Authorized to Do Business in the State of Nevada, Respondent.
No. 5178
March 15, 1967 424 P.2d 884
Appeal from judgment of the Eighth Judicial District Court, Clark County; Richard L.
Waters, Jr., Judge.
Proceeding on appeal from a default judgment entered by the lower court against plaintiff
for failure to reply to defendant's counterclaim. The Supreme Court, Thompson, C. J., held
that where plaintiff's motion for summary judgment was filed before defendant filed
responsive pleading and thus could not be deemed to have been directed to issues raised
by counterclaim later filed, plaintiff's motion for summary judgment could not be relied
upon to excuse plaintiff's failure to reply to defendant's counterclaim within 20 days after
service.
that where plaintiff's motion for summary judgment was filed before defendant filed
responsive pleading and thus could not be deemed to have been directed to issues raised by
counterclaim later filed, plaintiff's motion for summary judgment could not be relied upon to
excuse plaintiff's failure to reply to defendant's counterclaim within 20 days after service.
Judgment affirmed.
[Rehearing denied April 20, 1967]
Stanley Pierce, of Las Vegas, for Appellant.
Singleton, DeLanoy & Jemison, of Las Vegas, for Respondent.
Whether entry of default against plaintiff for failing to reply to defendant's counterclaim should have
been vacated raised issue which Supreme Court could review on appeal from default judgment.
2. Judgment.
Plaintiff's motion for summary judgment, filed before defendant filed responsive pleading, could not
be deemed to have been directed to issues raised by counterclaim later filed. NRCP 56(a).
3. Judgment.
Where plaintiffs motion for summary judgment was filed before defendant filed responsive pleading
and thus could not be deemed to have been directed to issues raised by counterclaim later filed, plaintiff's
motion for summary judgment could not be relied upon to excuse plaintiffs failure to reply to defendant's
counterclaim within 20 days after service. NRCP 12(a).
4. Pleading.
Rule providing that plaintiff shall serve his reply to counterclaim and answer within 20 days after
service of answer but that service of motion permitted under rule alters such period of time enlarges time
within which to reply to counterclaim only when motion is pending which is directed to issues raised by
counterclaim. NRCP 12(a).
5. Judgment.
Phrase good cause shown within rule providing that court may set aside entry of default for good
cause shown is broad in scope and includes mistake, inadvertence, surprise or excusable neglect
referred to in other rule governing vacation of default on latter grounds. NRCP 55(c), 60(b) (1).
Although Supreme Court prefers to have case resolved on its merits, such preference alone will not
allow it to overrule exercise of discretion below when rules governing vacation of default had not been
met. NRCP 12(a), 55(c), 60(b)(1).
7. Judgment.
District court was not bound to declare that alleged failure of plaintiffs counsel's secretary to
transcribe reply to defendant's counterclaim, inexperience of his secretarial staff, or that
counsel was busy with press of other matters was excusable and could properly
determine that neither inadvertence, mistake, surprise nor excusable neglect was
shown as ground for vacation of default for failing to reply to defendant's
counterclaim within 20 days.
counterclaim, inexperience of his secretarial staff, or that counsel was busy with press of other matters was
excusable and could properly determine that neither inadvertence, mistake, surprise nor excusable neglect
was shown as ground for vacation of default for failing to reply to defendant's counterclaim within 20 days.
NRCP 55(c), 60(b)(1).
8. Judgment.
Although good cause contemplated by rule to vacate entry of default may be somewhat broader in
scope than mistake, inadvertence, surprise or excusable neglect referred to in other rule for setting aside
default judgment, it does not embrace inexcusable neglect.
OPINION
[Headnote 1]
We are asked to review the discretionary refusal of the lower court to set aside an entry of
default against the plaintiff, Intermountain Lumber, for failing to reply to the counterclaim of
Glens Falls Insurance Company. Proof was offered on the counterclaim and judgment entered
for Glens Falls in the amount of $85,000. This appeal is from that judgment.
1
Whether the
entry of default should have been vacated raises an issue which we may review upon appeal
from the default judgment. Hanley v. Tobler, 73 Nev. 214, 313 P.2d 1110 (1957).
This action was commenced on October 28, 1964. Within 20 days thereafter and before a
responsive pleading was filed by the defendant, the plaintiff moved for summary judgment.
This was permissible. NRCP 56(a). The defendant subsequently filed an answer and
counterclaim. The plaintiff failed to reply thereto within 20 days, and on April 29, 1965,
default was entered by the clerk. On that same day the court ruled on the plaintiff's motion for
summary judgment, granting it as to liability, but reserving the matter of damages for trial.
Thereafter, the plaintiff unsuccessfully moved to vacate the clerk's entry of default.
____________________

1
The plaintiff Intermountain recovered a judgment against the defendant Glens Falls for $25,432 on its
complaint for wrongful attachment, which amount, when offset against the defendant's default judgment, gives
the defendant a net judgment of $56,606.96 plus costs. The plaintiff also appeals from the judgment in its favor
of $25,432 claiming that it should have been for a greater amount. We decline to discuss this point other than to
note that the damage award in plaintiff's favor rested upon conflicting evidence.
The plaintiff-appellant asks us to reverse for two reasons. First, the argument is made that
the time within which to reply to the counterclaim was enlarged by reason of the plaintiff's
pending motion for summary judgment. This argument rests upon the provisions of NRCP
12(a). Second, that good cause was shown for setting aside the entry of default, and that an
abuse of discretion occurred when the trial court failed to do so. This contention rests upon
NRCP 55(c). It is our judgment that neither contention is sound for the reasons hereafter
expressed.
[Headnotes 2-4]
1. The relevant part of Rule 12(a) reads: The plaintiff shall serve his reply to a
counterclaim in the answer within 20 days after service of the answer * * *. The service of a
motion permitted under this rule alters these periods of time as follows, unless a different
time is fixed by order of the court: (1) If the court denies the motion or postpones its
disposition until tried on the merits, the responsive pleading shall be served within 10 days
after notice of the court's action; * * *. As already noted, the plaintiff's motion for summary
judgment was filed before the defendant filed a responsive pleading and, therefore, cannot be
deemed to have been directed to the issues raised by the counterclaim later filed. Moore v.
Moore, 78 Nev. 186, 189, 370 P.2d 690 (1962). In this circumstance, the quoted proviso of
Rule 12(a) is inoperative, and may not be relied upon to excuse the plaintiff's failure to reply
to the counterclaim within 20 days after service. That provision enlarges the time within
which to reply to a counterclaim only when a motion is pending which is directed to the
issues raised by the counterclaim. Cf. Gull v. Hoalst, 77 Nev. 54, 359 P.2d 383 (1961). It is
manifest that the plaintiff's default was not prematurely entered in this case.
[Headnote 5]
2. Rule 55(c) provides that a court may set aside an entry of default for good cause
shown. Here, the motion to vacate was premised upon the mistake, inadvertence, surprise
and excusable neglect of plaintiff's counsela ground for challenging a final judgment under
Rule 60(b) (1). Though counsel may have mistakenly proceeded under an inappropriate rule
in expressing his ground to vacate the entry of default, this does not work to his prejudice,
since the phrase good cause shown in Rule 55(c) is broad in scope, and includes the
mistake, inadvertence, surprise and excusable neglect referred to in Rule 60(b)(1).
[Headnotes 6, 7]
Counsel's affidavit in support of the motion to vacate asserted that, upon receiving the
answer and counterclaim, he had dictated a reply to his secretary; that she had failed to
transcribe it; that his secretarial staff was inexperienced; and that he was terribly busy with
the press of other matters. The showing does not necessarily establish mistake, surprise or
inadvertence. It does suggest neglect. However, the lower court was not bound to declare
such conduct excusable. Bryant v. Gibbs, 69 Nev. 167, 243 P.2d 1050 (1952); Guardia v.
Guardia, 48 Nev. 230, 229 P. 386 (1924); Harper v. Mallory, 4 Nev. 447 (1868). Though we
prefer to have a case resolved upon its merits (Howe v. Coldren, 4 Nev. 171 (1868); Hotel
Last Frontier v. Frontier Properties, 79 Nev. 150, 380 P.2d 293 (1963)) such preference alone
will not allow us to overrule an exercise of discretion below when the rules governing the
vacation of a default have not been met. In the Hotel Last Frontier case, supra, where we
reversed the refusal to set aside a default judgment, there was at least a presentation of facts
showing that the aggrieved party and his counsel could reasonably assume that a default
would not be taken. That showing was absent in Nevada Industrial Guaranty v. Sturgeon, 80
Nev. 254, 391 P.2d 862 (1964), and is absent here. Indeed, the opposite appears from the
present record, since counsel for the defendant, early in the litigation, had notified plaintiff's
counsel that usual courtesies would not be extended; that no quarter would be asked and none
would be given. In our judgment it was permissible for the lower court to rule that neither
inadvertence, mistake, surprise nor excusable neglect was shown.
[Headnote 8]
Though the good cause contemplated by Rule 55(c) to vacate the entry of default may be
somewhat broader in scope than the mistake, inadvertence, surprise or excusable neglect
referred to in Rule 60(b) (1) for setting aside a default judgment, we are confident that it does
not embrace inexcusable neglect.
Affirmed.
____________
83 Nev. 131, 131 (1967) Schnepp v. Fogliani
DONALD JAMES SCHNEPP, Petitioner, v. JACK FOGLIANI,
Warden, Nevada State Prison, Respondent.
No. 5175
March 16, 1967 425 P.2d 141
Original petition for writ of habeas corpus following conviction of burglary.
The Supreme Court, Zenoff, J., held that remarks made by police officer while riding in
courthouse elevator with petitioner, codefendant and a juror, that the little one, meaning
petitioner, went in burglarized place and the big one, meaning codefendant, was too big to go
in place and thus drove getaway car and jocular remarks referring to slightly built
petitioner's ability to coerce 300 pound codefendant to accompany him created inherently
harmful prejudice which was incapable of rebuttal, so that admonition to jury did not cure
prejudice and writ would issue unless petitioner was given new trial within reasonable time.
Writ granted unless a new trial is afforded within a reasonable time.
Gary A. Sheerin, of Carson City, for Petitioner.
Harvey Dickerson, Attorney General, C. B. Tapscott, Chief Assistant Attorney General,
for Respondent.
1. Habeas Corpus.
Remedy of habeas corpus was appropriate where petitioner sought relief on ground that he was
deprived of fair trial before twelve impartial jurors because of an incident that occurred during trial.
2. Habeas Corpus.
Remarks made by police officer while riding in courthouse elevator with petitioner, codefendant and a
juror, that the little one, meaning petitioner, went in burglarized place, that big one, meaning
codefendant, was too big to go in place and thus drove getaway car and jocular remarks referring to
slightly built petitioner's ability to coerce 300 pound codefendant to accompany him created inherently
harmful prejudice which was incapable of rebuttal, so that admonition to jury did not cure prejudice and
required that petitioner be discharged by habeas corpus unless given new trial within reasonable time.
OPINION
[Headnote 1]
Donald Schnepp and a codefendant were convicted of burglary. The conviction was
affirmed on appeal. (Schnepp v. State, S2 Nev. 257
State, 82 Nev. 257, 415 P.2d 619 (1966).) He now seeks habeas corpus for post conviction
relief on the ground that he was deprived of a fair trial before 12 impartial jurors because of
an incident that occurred during the trial. The remedy is appropriate. Messmore v. Fogliani,
82 Nev. 153, 413 P.2d 306 (1966).
During a late morning recess of the second day of the trial the petitioner, his codefendant,
two deputies from the sheriff's office and a member of the jury were riding in the elevator in
the courthouse. One deputy sheriff made the statement. This little one (pointing at the
petitioner) went in the place [burglarized], the big one (pointing at the co-defendant) is too
big to go in the place, he drove the get away car. There were also jocular remarks referring
to Schnepp's ability to coerce the codefendant to accompany Schnepp since Schnepp is slight
and the codefendant weighed about 300 pounds.
The incident was called to the attention of the trial judge who, informally and in chambers,
determined that the matter was not serious. He ordered the trial to proceed but did admonish
the jury in the statutory manner to decide the case only as the case is submitted to them.
1. The point now in issue was not raised when the conviction was first appealed to this
court. Since then, Parker v. Gladden, 385 U.S. 363, 17 L.Ed.2d 420 (1966), was decided by
the U.S. Supreme Court. Extrajudicial remarks in the presence of jurors have assumed
different proportions. There, it was held that the remark of the bailiff, Oh, that wicked
fellow, he is guilty, to certain jurors, despite its lack of Tarzan-like quality, deprived the
defendant of his right to be adjudged by 12 impartial and unprejudicial jurors and was
inherently prejudicial. Cf. Turner v. Louisiana, 379 U.S. 466. 472-473 (1965); Patterson v.
Colorado, 205 U.S. 454, 562; Sheppard v. Maxwell, 384 U.S. 333 (1966); Pointer v. Texas,
380 U.S. 400 (1965).
[Headnote 2]
In this case, the two officers were in charge of the defendants who were prisoners of the
state. Their duties were to safeguard the prisoners and insure their attendance in court during
the trial. The comments made in the elevator were meant in jest but they were not funny to
the defendant whose liberty was at stake. State v. Cotter, 54 N.W.2d 43 (Wis. 1952). The
presence of the juror precluded any right on the part of the officers to be good fellows for
the badge and uniform clothed them with the dignity of the state, the impact of which cannot
be measured. The remarks bore directly on the guilt or innocence of the defendant.
of the defendant. Parker v. Gladden, supra, declares that these circumstances create prejudice
inherently harmful, incapable of rebuttal. When so deep-rooted, as here, an admonition to the
jury provides no help. Cf. State v. Pacheco, 82 Nev. 172, 414 P.2d 100 (1966); Parker v.
Gladden, supra.
It is ordered that the writ of habeas corpus must issue and Schnepp be discharged unless
the state gives him a new trial within a reasonable time. (Pate v. Robinson, 383 U.S. 375, 386
(1966).) We commend the efforts of court-appointed counsel and direct the sum of $350.00
be paid him upon the filing of the appropriate certificate.
Thompson, C. J., concurs.
I concur in the result announced in the majority opinion but for different reasons. The
majority reads Parker v. Gladden, 385 U.S. 363, 17 L.Ed.2d 420, to mean that the improper
remark of the bailiff in the presence of jurors to be inherently prejudicial. The United States
Supreme Court comes close to saying that, but to my mind stops short of a flat holding of
inherent prejudice. They say in 17 L.Ed.2d at 423, Aside from this, we believe that the
unauthorized conduct of the bailiff involves such a probability that prejudice will result that
it is deemed lacking in due process,' Estes v. Texas, 381 US 532, 542-543, 14 L.Ed 2d 543,
549, 550, 85 S.Ct 1628 (1965). The court seems to base its decision on the fact that one juror
testified that she was prejudiced by the statements and that the petitioner was entitled to be
tried by twelve, not nine or even ten, impartial and unprejudiced jurors.
1
Thus it appears to
me their decision is bottomed upon a finding of actual prejudice, not presumed prejudice,
albeit to only two of the twelve jurors.
If the decision rests upon actual prejudice, some proceeding must be followed to enable
the trial court to determine actual prejudice. This proceeding should consist of further or
additional voir dire examination of all the jurors with counsel for both defendant and state
participating. This was not done in the instant case. Instead, the trial judge held an in-chamber
hearing with counsel, determined the incident was not prejudicial, gave the jury a cautionary
instruction and proceeded with the trial. For that handling of the matter, where there was no
factual finding of lack of prejudice by examination of the jurors themselves, the writ must be
granted.
The United States Supreme Court sanctions this approach in Remmer v. United States,
347 U.S. 227, at pp.
____________________

1
Oregon law permitted conviction by ten jurors, not twelve, and ten testified they had not heard the remark of
the bailiff.
Remmer v. United States, 347 U.S. 227, at pp. 229-230, when it said: The trial court should
not decide and take final action ex parte on information such as was received in this case,
2
but should determine the circumstances, the impact thereof upon the juror, and whether or not
it was prejudicial, in a hearing with all interested parties permitted to participate. This
procedure was approved by this court in Conforte v. State, 77 Nev. 269, 362 P.2d 274 (1961),
where at page 273 it was held: The lower court determined from such evidence that any
presumption of prejudice was rebutted and that the communication to the juror did not
prejudice any member of the jury. This determination is supported by substantial evidence
and will not be disturbed.
I have great faith that jurors when properly and adequately informed of their constitutional
and statutory duty to decide the issue of guilt or innocence solely upon evidence presented in
open court can and will follow that instruction. If, inadvertently through no fault of his own a
juror receives extra-judicial information on the merits of the trial, but states solemnly under
oath, after examination by both parties, he can and will set it out of his mind and not consider
it in reaching a verdict, he must be believed and the trial continued or the verdict upheld.
Otherwise, I say, our whole jury system is at stake. Jurors do not live in a vacuum, and
everyone who has ever participated in a jury trial knows jurors come into the trial with some
if not a great deal of previously acquired information about the issues of the case they are to
try. If they can be trusted to be seated at the commencement of the trial on their statement
under oath they will consider only that evidence allowed to come before them in reaching
their verdict, why can't they be trusted during trial in the same manner? I say they can. But
they must be examined on the question of actual prejudice, for only the juror can state the
condition of his mind on that subject. No such examination was conducted by the trial court,
and it was unable to factually determine the prejudice or absence of it from the bailiff's
unwarranted remarks about the defendant, whether jocular or not.
I fear a holding of inherent prejudice under circumstances present in this case, will set
off a rash of attacks on jury convictions. Unless jurors are totally sequestered throughout
every criminal jury trial, I see no way to prevent inadvertent happenings of the sort described
here. The entire strength of the jury system depends upon trustworthy and conscientious
jurors who will obey their oath and follow the court's instructions on performance of their
duty.
____________________

2
An unnamed person communicated with a trial juror indicating the juror could personally profit for a verdict
favorable to petitioner.
will obey their oath and follow the court's instructions on performance of their duty. If we
cannot accord jurors that confidence and trust, then the whole system is in jeopardy.
The dissenting opinion of Mr. Justice Harlan in Parker v. Gladden, supra, while not the
law of the case, articulates the dangers of a holding of inherent prejudice without a factual
finding far better than I can state them. He says at page 424 and 425 of the opinion: Thus,
though I believe unintentionally, the Court's opinion leaves open the possibility of
automatically requiring a mistrial on constitutional grounds whenever any juror is exposed to
any potentially prejudicial expression of opinion. * * * Here no procedure adopted by the
State is to be faulted and it seems clear to me that the rule of Stroble v. California, 343 U.S.
181, 96 L.ed 872, 72 S.Ct 599, and Irvin v. Dowd, supra, should apply and a substantial
showing of prejudice in fact must be made before a due process violation can be found. * * *
[I]t is an impossible standard to require that tribunal [the jury] to be a laboratory, completely
sterilized and freed from any external factors.' Rideau v. Louisiana, 373 U.S. 723, 733, 10
L.ed 2d 663, 669, 83 S.Ct 1417 (Clark, J., dissenting).
____________
83 Nev. 135, 135 (1967) Aldabe v. Evans
ALVERA M. ALDABE, Appellant, v.
DAVID EVANS, Respondent.
No. 5024
March 27, 1967 425 P.2d 598
Judge.
The trial court entered order granting summary judgment for one of several defendants and
appeal was taken. The Supreme Court held that under the rule providing that court may direct
entry of final judgment as to one or more but fewer than all of parties only upon express
determination that there is no just reason for delay, where trial court entered summary
judgment for one of several defendants and did not make express determination that there
was no just reason for delay, order was not final and appeal would be dismissed without
prejudice to right of appellant to appeal after final judgment against all parties defendant.
Appeal dismissed.
James W. Johnson, Jr., of Reno and Lionel K. Hvolboll, of Sacramento, California, for
Appellant.
Paul A. Richards, of Reno, for Respondent.
Appeal and Error.
Under the rule providing that court may direct entry of final judgment as to one or more but fewer
than all of parties, where trial court entered summary judgment for one of several defendants and did not
make express determination that there was no just reason for delay, order was not final and appeal would
be dismissed without prejudice to right of appellant to appeal after final judgment against all parties
defendant. NRCP 54(b), 56.
OPINION
Per Curiam:
This is an appeal from an order granting summary judgment in favor of respondent in civil
action No. 213296, Second Judicial District Court, Washoe County, Nevada, pursuant to
NRCP 56. The trial court held there was no genuine issue as to any material fact. Civil action
No. 213296 involved multiple parties defendant, of whom respondent was one.
NRCP 54(b) provides:
(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one
claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or
third-party claim, or when multiple parties are involved, the court may direct the entry of a
final judgment as to one or more but fewer than all of the claims or parties only upon an
express determination that there is no just reason for delay and upon an express direction for
the entry of judgment. In the absence of such determination and direction, any order or other
form of decision, however designated, which adjudicates fewer than all the claims or the right
and liabilities of fewer than all the parties shall not terminate the action as to any of the
claims or parties, and the order or other form of decision is subject to revision at any time
before the entry of judgment adjudicating all the claims and the rights and liabilities of all the
parties.
We held in Wilmurth v. State, 79 Nev. 490, at 492, 387 P.2d 251, on an appeal from an
order dismissing the State of Nevada as a party, The lower court in directing entry of
judgment in favor of this movant on June 10, 1963 did not make an express determination
that there is no just reason for delay,' as provided by NRCP 54{b).
for delay,' as provided by NRCP 54(b). Therefore, the order of dismissal entered on June 10,
1963 was not final. Tobin Packing Co. v. North American Car Corp., 2 Cir., 188 F.2d 158;
Garbose v. George A. Giles Co., 1 Cir., 183 F.2d 513. The same rule applies here.
Accordingly, this appeal is dismissed without prejudice to the right of appellant to present
any grievance to this court after final judgment against all parties defendant in civil action
No. 213296 in the court below.
____________
83 Nev. 137, 137 (1967) Fairman v. State
EARL FAIRMAN, Jr., Appellant, v. THE STATE
No. 5188
March 27, 1967 425 P.2d 342
Appeal from the Eighth Judicial District Court, Clark County; William P. Compton,
Judge.
Prosecution for sale and possession of marijuana. The trial court entered a judgment of
conviction, and the defendant appealed. The Supreme Court, Collins, J., held that allowing
evidence of prior offense to be admitted over defendants' objection was reversible error.
Harvey Dickerson, Attorney General, of Carson City, George E. Franklin, Jr., District
Attorney, James H. Bilbray and James D. Santini, Deputy District Attorneys, of Clark
1. Criminal Law.
Generally, evidence of perpetration of distinct crimes from those for which defendant has been tried
will not be considered, but there are exceptions to such general rule.
2. Criminal Law.
Generally, evidence of other crimes may be considered only when it tends to establish either (1)
motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan, embracing
commission of two or more crimes so related to each other that proof of one tends to establish the others;
or (5) identity of person charged with commission of crime for which defendant is being tried.
3. Criminal Law.
In prosecution for sale and possession of marijuana, where prosecution was based only upon events of
December 22, allowing evidence of prior offense of December 18 to be admitted over defendant's
objection was reversible error. NRS 177.060, subd. 2(b), 453.030.
4. Criminal Law.
Conviction for both sale and possession of marijuana arising out of the identical transaction was
improper. NRS 173.260, subd. 2, 453.030.
OPINION
Appellant was convicted of two crimes, sale and possession of marijuana, a narcotic. His
appeal urges two grounds of error. He contends the trial court wrongly admitted evidence of a
prior offense and erroneously permitted the jury to find him guilty of two crimes arising out
of the same transaction or act. We agree, reverse the convictions, and remand for a new trial.
On December 18, 1965 Curtis Wheeler, a police informer, arranged to purchase marijuana
from appellant. Wheeler contacted Fairman at the Cove Hotel in Las Vegas, Nevada, who
drove Wheeler to 1649 G Street, entered a house, returned a few minutes later with a brown
envelope and gave it to Wheeler for $5.00. On December 22, 1965 the identical series of
events occurred. On each occasion contents of the brown envelope proved to be marijuana.
[Headnotes 1-3]
Appellant was charged, in a two-count indictment, for selling and possession of narcotics
in violation of NRS 453.030,
1
based only upon the events of December 22. During the trial
the court allowed evidence of the prior offense of December 18 to be admitted over objection
of appellant, pursuant to the authority of Overton v. State, 78 Nev. 198, 370 P.2d 677 (1962)
and State v. Nystedt, 79 Nev. 24, 377 P.2d 929 (1963), for the purpose of showing a common
scheme or plan. The jury convicted him of both crimes. The court denied his motion for a
new trial and he appeals. NRS 177.060 (2)(b). Sentencing was stayed pending determination
of this appeal.
The common scheme or plan doctrine was first engrafted into the law of Nevada in State
v. McFarlin, 41 Nev. 4S6
____________________

1
453.030 Acts prohibited. It shall be unlawful for any person to * * * possess, * * * sell * * * any narcotic
drug, except as authorized in NRS 453.610 to 453.240, inclusive.
into the law of Nevada in State v. McFarlin, 41 Nev. 486, 172 P. 371 (1918), where at page
494 this court said: It is the general rule that evidence of the perpetration of distinct crimes
from those for which a defendant is being tried will not be considered. There are, however,
exceptions to this general rule. In the well-known case of People v. Molineux, 168 N.Y. 264,
61 N.E. 286, 62 L.R.A. 193, this question was considered at length, and it was held that,
generally speaking, evidence of other crimes might be considered only when it tends to
establish either (1) motive; (2) intent; (3) absence of 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 others; or (5) the identity of the person charged with
the commission of the crime for which the defendant is being tried. Such is, we think, the
correct rule. [Citations omitted.]. In Nester v. State, 75 Nev. 41, 334 P.2d 524 (1959), at
page 47, this court defined the meaning of the fourth exception to the general rule when it
said:
A common scheme or plan' here means that one act or one plan or scheme might
involve the commission of two or more crimes under circumstances that would make it
impossible to prove one without proving all. 20 Am.Jur. 296.
The test is not whether the other offense has certain elements in common with the crime
charged, but whether it tends to establish a preconceived plan which resulted in the
commission of that crime.' Wigmore on Evidence, 2d ed. sec. 300. In that case evidence of a
separate and distinct act of rape was approved but under the fifth exception, identity.
We think the same reasoning is sound here. Sale of marijuana on December 18, 1965 was
a different act from the sale on December 22d. One could be proven independently of the
other. They were not so related that proof of one tends to establish the other. It is true they
were similar in plan or modus operandi, but such similarity was rejected in Nester v. State, at
pages 47 and 48.
Can admission of the evidence be sustained under one of the other exceptions? It was
suggested by the prosecution to the trial court it could be admitted under the rule of Overton
v. State, 78 Nev. 198, 370 P.2d 677 (1962), which held, In Wallace v. State [77 Nev. 123,
359 P.2d 749], a narcotics case, we held admissible evidence of a separate offense, offered in
rebuttal, to contradict the testimony of the defendant that he had never seen marijuana. In the
case at bar, the evidence was offered during presentation of the State's case in chief. Overton
contends that this distinction is material. We do not agree. We perceive no difference in
principle between offering of such evidence during the State's case in chief to show the
defendant's knowledge of the narcotic nature of the substance, which knowledge was put
in issue by his not guilty plea, and offering such evidence in rebuttal to refute the
defendant's testimony that he did not possess such knowledge."
perceive no difference in principle between offering of such evidence during the State's case
in chief to show the defendant's knowledge of the narcotic nature of the substance, which
knowledge was put in issue by his not guilty plea, and offering such evidence in rebuttal to
refute the defendant's testimony that he did not possess such knowledge. The holding in
Wallace is still the law of Nevada, but the added comment in Overton is dictum. State ex rel.
Nourse v. Clarke, 3 Nev. 566, 572 (1867). We will decide that issue when squarely presented
to us. The trial court in Overton struck the evidence of a separate offense, but defendant
complained he was prejudiced because the intermediate step required by Nester v. State, 75
Nev. 41, 334 P.2d 524 (1959), was not taken. The dictum is disclosed by the following
portion of that opinion at page 207:
The suggested procedure in Nester is the preferred method, if circumstances permit.
Wyatt v. State, 77 Nev. 490, 367 P.2d 104. However, in the instant case, the so-called
intermediate step' could not be taken by the court because evidence of the sale of heroin was
in the case without prior notice or warning of any kind. The court, then, did what it
considered to be proper under the circumstances, and granted Overton's motion to strike.
However, for the reasons heretofore given, we do not believe that the court below was
obliged to do that. In any event, Overton did not sustain a prejudice when the court granted
his respective motions to strike such testimony. Accordingly, this assignment of error is also
without merit.
[Headnote 4]
Because this case must be retried, we feel obligated to pass upon the issue raised of
conviction for both sale and possession of marijuana arising out of the identical transaction.
The problem involves interpretation of NRS 173.260(2). That statute was amended in 1965,
Stats. Nev. 1965, ch. 122, 2. It now reads as follows, with the part deleted in 1965
appearing in brackets: The prosecution is not required to elect between the different offenses
or counts set forth in the indictment or information [, but the defendant may be convicted of
but one of the offenses charged, and the same must be stated in the verdict.] and a plea of
guilty to one or more offenses charged in the indictment or information does not preclude
prosecution for the other offenses. The defendant may be convicted of any number of
offenses charged, but each offense of which the defendant is convicted must be stated in the
verdict or the finding of the court.
The trial court interpreted the statute to mean that a defendant could be found guilty of two
crimes under the same statute, arising out of the identical factual situation and charged and
tried under the same indictment.
arising out of the identical factual situation and charged and tried under the same indictment.
The jury, relying upon the court's instructions, found appellant guilty of both sale and
possession of marijuana arising out of the events occurring on December 22, 1965, described
above. A single statute makes both acts criminal. NRS 453.030.
2
Penalty for those violations
is fixed in NRS 453.210.
3
If the conviction is lawful, appellant can be punished for both
crimes, with the sentences to run consecutively or concurrently as the court directs. NRS
176.150.
We hold there can be but one conviction.
California courts have dealt extensively with this problem. In the leading case of People v.
Roberts, 254 P.2d 501 (Cal. 1953), where a defendant was charged and adjudged guilty of
transporting and possession of heroin, each a violation of a single statute, the convictions
were not allowed to stand. The
____________________

2
453.030 Act prohibited. 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.

3
453.210 Penalties.
(a) Except as otherwise provided in subsections 2 and 3 of this section, any person who violates any
provision of NRS 453.010 to 453.240, inclusive, shall upon conviction, be fined not more than $2,000 and be
imprisoned in the state prison not less than 2 years or more than 5 years.
(b) for a second offense, or if, in case of a first conviction of violation of any provision of NRS 453.010 to
453.240, inclusive, the offender shall previously have been convicted of any violation of the two acts were
incident to a laws of the United States or of any state, territory or district relating to narcotic drugs or
marihuana, the offender shall be fined not more than $2,000 and be imprisoned in the state prison not less than 5
years or more than 10 years.
(c) For a third or subsequent offense, or if the offender shall previously have been convicted two or more
times in the aggregate of any violation of the law of the United States or of any state, territory or district relating
to narcotic drugs or marihuana, the offender shall be fined $2,000 and be imprisoned in the state prison not less
than 10 years or more than 20 years.
(d) Except in the case of conviction for a first offense, the imposition or execution of sentence shall not be
suspended and probation or parole shall not be granted until the minimum imprisonment herein provided for the
offense shall have been served.
2. Any person who is convicted of the illegal sale, exchange, barter, supplying or giving away of narcotic
drugs or marihuana to a person who is:
(a) Twenty-one years of age or older shall be fined $10,000 and imprisoned in the state prison for not less
than 20 years or more than 40 years. For a second or subsequent offense, such offender shall, upon conviction,
be fined $10,000 and imprisoned in the state prison for not less than 40 years, which term may be extended to
life.
two acts were incident to a sale of heroin. The court said at page 505, However,
co-operative acts constituting but one offense when committed by the same person at the
same time, when combined, charge but one crime and but one punishment can be inflicted.'
Cited was People v. Clemett, 280 P. 681 (Cal. 1929). It then sustained convictions for
conspiracy and selling heroin, but reversed convictions for possession and transporting as
necessarily incident to its sale. The same holding was followed in People v. Mateo, 341 P.2d
768 (Cal. DCA 1959). The court wrote at page 772, It is well established that where the only
possession shown is necessarily incidental to its sale or furnishing separate convictions for
sale and possession cannot be had. [citations omitted] * * * But conviction may be had where
the narcotic possessed is separate and distinct from that sold. People v. Holliday, 1953, 120
Cal.App.2d 562, 564, 261 P.2d 301.
A later California Supreme Court case, Neal v. State, 357 P.2d 839 (Cal. 1960), dealt with
multiple convictions arising out of the same transaction and interpretation of California Penal
Code Section 654.
4
Defendant was convicted of arson and two counts of attempted murder
when he threw gasoline into the bedroom of his victims, a husband and wife, and ignited it.
The court held at page 844, The conviction for both arson and attempted murder violated
Penal Code section 654, since the arson was merely incidental to the primary objective of
killing Mr. and Mrs. Raymond. Petitioner, therefore can only be punished for the more
serious offense, which is attempted murder [but both counts].
We dealt with some aspects of this problem in State v. Carter, 79 Nev. 146, 379 P.2d 945
(1963), where a defendant was charged in separate counts of a single information with the
crimes of assault with a deadly weapon and robbery. He was found guilty of assault and
battery and robbery. The convictions were had before the amendment of NRS 173.260(2) in
1965 (cited above). Carter holds that more than one conviction of the offense charged and of
those necessarily included within the offense charged, is precluded. The robbery conviction
was upheld but the assault and battery conviction, a necessarily included offense, was
adjudged void. We do not feel the amendment to NRS 173.260(2) in 1965 changes this rule.
____________________

4
[A]n act or omission which is made punishable in different ways by different provisions of this code may
be punishable under either of such provisions, but in no case can it be punished under more than one.
Possession of the marijuana is a necessarily included offense when incident to the sale as
shown by the facts of this case and only one conviction can be had for either the sale or
possession, but not both. Conviction for the sale would bar further prosecution for possession.
State v. Carter, supra.
Reversed and remanded for a new trial.
____________
83 Nev. 143, 143 (1967) Hidden Wells Ranch v. Strip Realty
HIDDEN WELLS RANCH, INC., a Nevada Corporation, Appellant, v. STRIP REALTY,
INC., a Nevada Corporation, Respondent.
No. 5162
March 30, 1967 425 P.2d 599
Appeal from Eighth Judicial District Court, Clark County; George E. Marshall, Judge.
Action for real estate broker's commission. The trial court granted summary judgment for
plaintiff, and defendant appealed. The Supreme Court, Collins, J., held that grant of summary
judgment for plaintiff on theory that written agreement was the contract between the parties,
notwithstanding affidavit that oral agreement constituted the real contract, was error.
Reversed and remanded for further proceedings.
Jones, Wiener & Jones, of Las Vegas, for Appellant.
John Peter Lee, of Las Vegas, for Respondent.
1. Judgment.
The burden of establishing the lack of triable issue of fact is upon the party moving for summary
judgment.
2. Judgment.
Generally, trial judge may not in granting summary judgment pass upon the credibility or weight of
opposing affidavits or evidence, but must accept as true all evidence favorable to the party against whom
the motion is made.
3. Judgment.
In action for real estate sales commissions, grant of summary judgment for plaintiff on theory that
written agreement was the contract between the parties, notwithstanding affidavit that
oral agreement constituted the real contract, was error.
the contract between the parties, notwithstanding affidavit that oral agreement constituted the real contract,
was error.
OPINION
This is an appeal from an order of the trial court granting respondent's motion for summary
judgment. We believe that the order was in error and remand for further proceedings.
In 1962 appellant purchased real property known as the Hidden Wells Ranch. Respondent
acted as real estate broker on this transaction. In 1964 appellant, through the brokerage efforts
of respondent, sold Hidden Wells Ranch to Nevada Land and Mortgage Company. The
purchaser assumed an outstanding obligation against the property and executed a second deed
of trust to the seller for the balance of the purchase price. No money exchanged hands on this
transaction. Nevada Land and Mortgage Company breached its purchase contract, paid no
money under the second deed of trust, and the property was bid in by appellant at the trustee's
sale.
Prior to default, oral conversations were had between appellant and respondent regarding
real estate sales commissions. It was then agreed that appellant would pay, and did pay
respondent $15,000 as the commission earned on its initial purchase of the ranch in 1962.
The controversy arises over the agreement relating to the commission to be paid on the sale of
the ranch by appellant to Nevada Land and Mortgage Company in 1964. The amount of the
commission, $10,118.50, is not in dispute, but disagreement exists whether the agreement
establishes that the commission payment is to be considered a presently existing obligation to
be paid by appellant to respondent regardless of default by purchaser Nevada Land and
Mortgage Company (see Engel v. Wilcox, 75 Nev. 323, 340 P.2d 93 (1959)) or whether
liability for the commission was conditioned (precedent) upon payment by the purchaser of
all or at least two installments under the promissory note secured by the deed of trust (see
Fitch v. LaTourrette, 75 Nev. 484, 346 P.2d 704 (1959).
[Headnotes 1, 2]
The trial court granted summary judgment in favor of respondent, holding that there was
no genuine issue as to any material fact and respondent (plaintiff below) was entitled to
judgment as a matter of law for $10,118.50, together with certain interest payments. In
reaching this conclusion the trial court ruled that the contract of the parties was
established by Exhibit B offered by respondent and that an affidavit by I. P. LaRue, Jr., on
behalf of appellant and in opposition to Exhibit B, "did not rebut" respondent's exhibit.
The trial court ruled as a matter of law that respondent's Exhibit B was the contract of the
parties, although signed only by appellant. I. P.
court ruled that the contract of the parties was established by Exhibit B offered by respondent
and that an affidavit by I. P. LaRue, Jr., on behalf of appellant and in opposition to Exhibit B,
did not rebut respondent's exhibit. The trial court ruled as a matter of law that respondent's
Exhibit B was the contract of the parties, although signed only by appellant. I. P. LaRue's
affidavit, on the other hand, contends the oral agreement establishes the contract of the parties
and that Exhibit B is merely some evidence of the contract. The trial court in granting
summary judgment to respondent passed upon the weight and credibility of the affidavits and
exhibits of the respective parties when it ruled, Rule 56 and the interpretations thereof
provide that an affidavit by a person competent as a witness to testify as to certain matters in
controversy is conclusive. This may not be done. We said in Short v. Hotel Riviera, Inc., 79
Nev. 94, at 103, 378 P.2d 979 (1963), In 6 Moore Federal Practice, 2070, it is said that in
such motions the trial court should not pass upon the credibility of opposing affidavits,
unless the evidence tendered by them is too incredible to be accepted by reasonable minds.'
And the burden of establishing the lack of triable issue of fact is upon the moving party. 6
Moore, Federal Practice, 2070. Accord, Aldabe v. Adams, 81 Nev. 280, at 285, 402 P.2d 34
(1965). Generally speaking, then, the trial judge may not in granting summary judgment pass
upon the credibility or weight of the opposing affidavits or evidence. That function is
reserved for the trial. On a summary judgment motion the court is obligated to accept as true
all evidence favorable to the party against whom the motion is made. Turner v. Redfield, 82
Nev. 273, 416 P.2d 233 (1966); Catrone v. 105 Casino Corp., 82 Nev. 166, 414 P.2d 106
(1966); Franktown v. Marlette, 77 Nev. 348, 364 P.2d 1069 (1961); Parman v. Petricciani, 70
Nev. 427, 272 P.2d 492 (1954).
[Headnote 3]
A genuine issue of facts exists as to the contract of the parties regarding payment of the
commission. The affidavit of I. P. LaRue, Jr., on behalf of appellant, contends the contract is
the oral agreement of the parties made in December 1963 when affiant states it was agreed a
commission would be paid only if, as and when such payments [on the promissory note and
security from Nevada Mortgage Company to appellant] were made. Under the authority
cited above, this contention must be accepted by the trial court as true in passing upon the
motion. Instead, the trial court ruled that Exhibit B was the parties' contract, and affidavits
and other exhibits on behalf of respondent were "conclusive."
on behalf of respondent were conclusive. The record does not show that Exhibit B ripened
into a contract, and the lower court's contrary finding is, we think, clearly erroneous.
Reversed and remanded for trial.
____________
83 Nev. 146, 146 (1967) Prudential Insurance Co. v. Lamme
PRUDENTIAL INSURANCE COMPANY OF AMERICA, DONALD J. TILBERG and
MARION SMITH, Appellants, v. VALERIE LAMME, Individually, and as Natural Guardian
of RODNEY LAMME, a Minor, and DEBRA LAMME, a Minor, Respondent.
No. 5185
March 31, 1967 425 P.2d 346
Appeal from judgment of the Eighth Judicial District Court, Clark County; George E.
Marshall, Judge.
Suit on mortgage protection life insurance policy. The lower court entered judgment for
plaintiff, and defendant insurer appealed. The Supreme Court, Thompson, C. J., held that
conditional receipt, which was issued by mortgage protection life insurer to applicant a few
weeks prior to applicant's death, which was issued after insurer received non-medical portion
of application and accepted first quarterly premium, and which provided that after
non-medical and medical parts of application were completed, insurer should determine
whether proposed insured was insurable, created temporary contract of insurance subject to
condition of rejection by insurer, and, where rejection did not occur prior to applicant's death,
insurer was liable to beneficiary under policy even though medical information form was
never completed in that applicant did not appear for physical examination.
Judgment affirmed.
Hawkins and Cannon, of Las Vegas, for Appellants.
Foley Brothers, of Las Vegas, for Respondent.
1. Insurance.
Court should not be unaware of fact that insurer and its representatives are expert in field whereas
applicant for insurance is not and should not subordinate its significance to strict legal doctrine.
2. Insurance.
Conditional receipt, which was issued by mortgage protection life insurer to applicant a few weeks prior
to applicant's death, which was issued after insurer received non-medical portion of application and
accepted first quarterly premium, and which provided that after non-medical and medical parts of
application were completed, insurer should determine whether proposed insured was insurable, created
temporary contract of insurance subject to condition of rejection by insurer, and, where rejection did not
occur prior to applicant's death, insurer was liable to beneficiary under policy even though medical
information form was never completed in that applicant did not appear for physical examination.
OPINION
The main issue on this appeal is the legal effect of a life insurance conditional receipt
issued by the Prudential Insurance Company to Richard Lamme a few weeks before he died.
His widow, Valerie Lamme, brought suit against Prudential to recover $25,000 as the
beneficiary of a mortgage protection life insurance policy.
1
The insurance policy was never
issued. Prudential, however, had received Richard's application on a form labelled Part I, the
non-medical portion, had accepted the first quarterly premium payment of $52.64, and, in
return, had given Richard a conditional receipt. Part II of the application, the medical
information form to be supplied by the examining physician, was never completed since
Richard did not appear for a physical examination. He died from a heart attack about 7 weeks
after applying for insurance. A jury favored Valerie with its verdict, and this appeal by
Prudential followed. We must decide whether the conditional receipt afforded Richard
interim coverage. It is our opinion that it did. Accordingly, we affirm the judgment.
The use of the conditional receipt has fostered extensive litigation and is a popular subject
for law review comment.
2
There are two types of conditional receipts in common usagethe
approval type which usually recites that coverage shall be in force from a specified date
provided the application is approved as applied for at the home office of the insurance
company; and, the "insurability type" receipt which provides that insurance coverage
shall be effective as of a specified date provided the company is satisfied that on such
date the applicant was an insurable risk under the company's underwriting rules for the
policy applied for.
____________________

1
The basic policy was to be for $5000 with additional, but diminishing term insurance, initially in the amount
of $20,000.

2
Cases collected annot. 2 A.L.R.2d 943; 7 Stanford L.Rev. 292 (1955); 63 Yale L.J. 523 (1954); 15
U.Chi.L.Rev. 379 (1948); 60 Harv.L.Rev. 1164 (1947); 44 Yale L.J. 1223 (1935). See also the lucid article of
Samuel Fortunato, Conditional Receipts: Should the Uninsurable Have Insurance?, Vol. 1, No. 3, The Forum
(1966).
approved as applied for at the home office of the insurance company; and, the insurability
type receipt which provides that insurance coverage shall be effective as of a specified date
provided the company is satisfied that on such date the applicant was an insurable risk under
the company's underwriting rules for the policy applied for. The receipt here involved is of
the latter type, since the basic proviso is that after Part I and Part II of the application are
completed, Prudential shall determine to its satisfaction that the proposed insured was
insurable.
3

When presented with this type of conditional receipt, most courts have found the insurance
company liable to the beneficiary, even though the application had not been accepted prior to
the death of the applicant, if the applicant was found to have been an insurable risk at the time
of the medical examination. Ransom v. The Penn Mutual Life Ins. Co., 274 P.2d 633 (Cal.
1954); Gaunt v. John Hancock Mutual Life Ins. Co., 160 F.2d 599 (2 Cir. 1947); United
Founders Life Ins. Co. v. Carey, 363 S.W.2d 236 (Tex. 1962); Life Ins. Co. of North America
v. De Chiaro, 172 A.2d 30 (N.J. 1961); Reynolds v. Northwestern Mutual Life Ins. Co., 176
N.W. 207 (Iowa 1920); Albers v. Security Mutual Life Ins. Co., 170 N.W. 159 (S.D. 1918).
Of course, the cited cases do not quite reach the issue presented to us since, here, a physical
examination of the applicant was not made. It is the position of Prudential that this distinction
is crucial; that the medical examination required by Part II of the application for insurance is
a condition precedent to liability; that insurability cannot fairly be determined without such
examination. The cases of Paulk v. State Mutual Life Ins. Co., 69 S.E.2d 777 (Ga. 1952);
Mofrad v. New York Life Ins. Co., 206 F.2d 491 (10 Cir. 1953); Silva v. Sentinel Life Ins.
Co., 361 S.W.2d 731 (Tex. 1962), and perhaps others, support this view.
[Headnote 1]
The position of Prudential has appeal as a matter of strict contract law. Yet, an insurance
policy is not an ordinary contract. It is a complex instrument, unilaterally prepared, and
seldom understood by the assured.
____________________

3
The receipt in pertinent part reads: If the required and completed Part 1 and the required and completed
Part 2 of the application and such other information as may be required by the Company are received by the
Company at one of its Home Offices, and if the Company after the receipt thereof determines to its satisfaction
that the proposed insured was insurable on the later of the dates of said Parts 1 and 2 * * *.
seldom understood by the assured. The same is equally true of the conditional receipt. The
parties are not similarly situated. The company and its representatives are expert in the field;
the applicant is not. A court should not be unaware of this reality and subordinate its
significance to strict legal doctrine. Allen v. Metropolitan Life Ins. Co., 208 A.2d 638 (N.J.
1965). Nor should a court be obliged to overlook the obvious advantage to the company in
obtaining payment of the premium when the application is made. It is a device to avoid the
possibility that the applicant will change his mind and revoke his application, or deal with a
rival company. Metropolitan Life Ins. Co. v. Grant, 268 F.2d 307 (9 Cir. 1959), Pope, J.,
concurring. A conditional receipt tends to encourage deception. We do not mean to imply
affirmative misconduct by the soliciting insurance agent. We suggest only that if nothing is
said about the complicated and legalistic phrasing of the receipt, and the agent accepts an
application for insurance together with the first premium payment, the applicant has reason to
believe that he is insured. Otherwise, he is deceived.
[Headnote 2]
For these reasons we hold that the conditional receipt created a temporary contract of
insurance subject to a condition-rejection of Richard Lamme's application by the insurance
company. Since rejection did not occur prior to his death, the company is liable. Patterson,
Essentials of Insurance Law, 2d ed., p. 100 (1957); Allen v. Metropolitan Life Ins. Co., supra;
Ransom v. The Penn Mutual Life Ins. Co., supra.
In Ransom, supra, the court construed the insurability condition of the receipt as a
condition subsequent; that is, a condition which if not met would terminate coverage, rather
than a condition precedent; that is, a condition which, if met, would initiate coverage. Such
construction may, on occasion, allow one who is not insurable for physical reasons, to secure
insurance coverage, since the applicant's insurability at the moment his application is received
and premium paid is irrelevant. Metropolitan Life Ins. Co. v. Wood, 302 F.2d 802 (9 Cir.
1962). Indeed, this is the main criticism directed to the Allen and Ransom decisions. See: 7
Stanford L.Rev. 292 (1955); Fortunato, Conditional Receipts: Should the Uninsurable Have
Insurance, Vol. 1, No. 3, The Forum (1966).
Notwithstanding this possible result in some instances, we think that the policy
considerations heretofore expressed carry the greater weight. The life insurance companies
may still write "COD" insurance,4 or, in the light of experience, choose to assume the risk
sometimes involved in the use of the conditional receipt.
write COD insurance,
4
or, in the light of experience, choose to assume the risk sometimes
involved in the use of the conditional receipt. Our holding renders it unnecessary to consider
other assigned errors.
Affirmed.
____________________

4
Absent a contrary agreement (the conditional receipt, for example) payment of the initial premium and
delivery of the policy are usually concurrent acts, thereby creating a period between the signing of the
application by the applicant and the delivery of the policy during which no money has been advanced to the
insurance company, and no insurance is in effect. This is called COD, or cash on delivery insurance.
____________
THOMAS CORNELIUS HOWARD, Appellant, v.
SHERIFF OF CLARK COUNTY, Respondent.
No. 5289
March 31, 1967 425 P.2d 596
Appeal from denial of petition for habeas corpus. Eighth Judicial District Court, Clark
County; John Mowbray, Judge.
The trial court entered order dismissing petition and the petitioner appealed. The Supreme
Court, Zenoff, J., held that in considering habeas corpus petition claiming that there was no
probable cause to connect defendant with the crime of murder charged and that there was no
evidence in preliminary hearing of premeditation or other elements of first-degree murder,
degree of evidence needed to show probable cause was not the same as that applied by court
in allowing codefendant bail, since before bail may be denied by one accused of capital
offense there must be more than mere inference of guilt which may suffice to hold one for
trial.
Affirmed.
Harvey Dickerson, Attorney General, and George E. Franklin, Jr., District Attorney, Clark
1. Habeas Corpus.
In considering habeas corpus petition claiming that there was no probable cause to connect defendant
with the crime of murder charged and there was no evidence in preliminary hearing of premeditation
or other elements of first-degree murder, degree of evidence needed to show
probable cause was not the same as that applied by court in allowing codefendant
bail, since before bail may be denied by one accused of capital offense there must
be more than mere inference of guilt which may suffice to hold one for trial.
premeditation or other elements of first-degree murder, degree of evidence needed to show probable
cause was not the same as that applied by court in allowing codefendant bail, since before bail may be
denied by one accused of capital offense there must be more than mere inference of guilt which may
suffice to hold one for trial.
2. Homicide.
Information charging murder without specifying degree is sufficient to charge murder in the first
degree.
3. Homicide.
Statutes providing different punishment for first and second degree murder do not create two distinct
crimes which must be pleaded accordingly, and it is permissible to simply charge murder and leave
degree to be stated by jury.
4. Habeas Corpus.
Record on petition for habeas corpus sufficiently established probable cause to connect defendant
with the crime of murder as charged.
5. Habeas Corpus.
Hereafter, good cause must be shown for delay before trial court or Supreme Court will entertain
petitions for writs of habeas corpus brought immediately before the trial.
OPINION
Thomas Cornelius Howard and Barbara Louise Howard were charged with killing Officer
Fortye by shooting at and into his body with a firearm. Four witnesses gave testimony at the
preliminary hearing: a pathologist, a police patrolman, a taxi driver, and a church organist.
The pathologist stated that the autopsy disclosed three gunshot wounds; two of them
superficial, and the third a fatal chest wound. He opined that death occurred within 5 minutes
after infliction of the chest wounds and that none of the wounds were self-inflicted.
The taxi driver stated that at about 2:23 a.m. on October 28, 1966, while driving along
Highland at 5 or 10 miles per hour, he saw a police car stopped, facing north. An officer
stood beside it, talking to a negro man. About 15 feet in front and to the right of the patrol car
was a light colored Dodge or Plymouth, in which a negro woman sat behind the steering
wheel. He identified Barbara and Thomas Howard as the two negroes he had observed.
The church organist testified that he also had driven along Highland Boulevard about that
time. He noticed the two stopped cars. He saw a Negro woman scuffling with Officer Fortye;
she had hold of the officer's sleeves.
Fortye; she had hold of the officer's sleeves. He then saw a negro man run up and grab either
the officer's arm or the woman's arm. The officer shoved the man back toward a parked car.
The witness, however, did not identify the Howards as the two he had seen.
The police patrolman testified that at 2:30 a.m. he received a radio message from control
and proceeded to Highland Boulevard near the Walker Furniture Store. A police car, with
engine running and with all lights on, was stopped on the east side of the road headed north.
Officer Fortye was lying dead beside the left front tire of the car--his tie ripped off, his shirt
torn and pulled apart. His hat was underneath the front grill of the car, and his handcuffs lay
near the right front tire. The ground was spattered with blood. On the hood of the police car
was a driver's license bearing the name of Thomas Cornelius Howard.
As a result of the preliminary hearing both Thomas Howard and his wife Barbara were
held to answer in the district court to the charge of murder. They entered pleas of not guilty at
the arraignment. A separate information was then filed against Barbara in the district court.
Her petition for habeas corpus to be released on bail pending trial, which was denied by the
trial court, was granted in the amount of $5,000 by this court, 83 Nev. 48, 422 P.2d 538
(1967). A motion for severance had been granted. Thomas' trial was set for January 3, 1967.
On December 30, 1966, he petitioned for a writ of habeas corpus contending: (1) that there
was no probable cause to connect him with the crime charged, and (2) that there was no
evidence at the preliminary hearing of any premeditation or of any of the other elements of
first degree murder and therefore the magistrate could, at most, bind Howard over for a lesser
crime than first degree murder. He appeals from the denial of that petition.
[Headnote 1]
1. Howard contends that the ruling of this court in his wife's application for bail binds the
trial court to apply the same degree of evidence for probable cause as that relied upon by this
court in allowing her bail. He is incorrect. In that case the majority opinion clearly held that
the standard to be applied in the consideration of bail is more stringent than that used in the
determination of probable cause. The evident proof or great presumption required by the
Constitution before bail may be denied one accused of a capital offense, contemplates more
than a mere inference of guilt of some crime {either first degree murder or a lesser included
offense) which may suffice to hold one for trial in the district court."
(either first degree murder or a lesser included offense) which may suffice to hold one for trial
in the district court. (Emphasis supplied.) Howard v. Sheriff, supra.
[Headnotes 2, 3]
2. Petitioner's second point is also without merit. 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 degree which must be
pleaded accordingly. It is permissible to simply charge murder and leave the degree to be
stated by the jury. Commonwealth v. Di Stasio, 11 N.E.2d 799 (Mass. 1937); State v.
Sullivan, 203 A.2d 177 (N.J. 1964); State v. Nutter, 81 N.W.2d 20 (Iowa 1957); State v.
Nunn, 321 P.2d 356 (Ore. 1957); State v. Jefferds, 152 A.2d 231 (R.I. 1959); Stevens v.
Myers, 156 A.2d 527 (Pa. 1959); State v. Martin, 55 N.W.2d 258 (Iowa 1952); People v.
Fowler, 174 P. 892 (Cal. 1918); People v. Coston, 191 P.2d 521 (Cal. D.C.A. 1948); People
v. Witt, 148 P. 928 (Cal. 1915); State v. Woolery, 378 P.2d 751 (Ariz. 1963); 4 Wharton,
Criminal Procedure (1957), Sec. 1799. We said in Graves v. Young, 82 Nev. 433, 420 P.2d
618 (1966), The words murder in the first degree' are a legal conclusion. The facts alleged
in the indictment and proof of trial determine degree.
[Headnote 4]
Discounting, therefor, the second contention, the record sufficiently establishes probable
cause. Beasley v. Lamb, 79 Nev. 78, 378 P.2d 524 (1963); Morton v. State, 82 Nev. 223, 414
P.2d 952 (1966); 51 Iowa L. Rev. 164, 167-168 (1965-66); See Shelby v. District Court, 82
Nev. 204, 414 P.2d 942, 944 (1966), and cases cited therein.
[Headnote 5]
3. We note with concern that the petition for habeas corpus was sought almost
immediately before the trial (a long New Year's holiday intervened). We admonish petitioner
for the undue delay in bringing his petition which resulted in loss of trial time, inconvenience
to jurors and discomfiture to the district court. Hereafter, in similar circumstances good cause
for the delay must be shown before the trial courts or this court will entertain petitions of this,
or a like, nature.
Affirmed.
I concur in the result announced in this opinion and the reasons therefor with one
exception. I continue to adhere to my dissent in Howard v. Sheriff, 83 Nev. 48, 422 P.2d 538
(1967). I persist in the opinion there should be no difference in the burden of proof required
to hold a person without bail in a capital case from that required to bind him over for trial. In
attempting to establish a difference the majority of the court has not provided any realistic,
practical standard to be followed. They say there is a difference, but fail to say what it is. I
fear they have injected confusion into the law where there need be none.
____________
83 Nev. 154, 154 (1967) Walker v. Fogliani
JOSEPH MILES WALKER, Petitioner, v. JACK FOGLIANI,
Warden, Nevada State Prison, Respondent.
No. 5240
April 3, 1967 425 P.2d 794
Original petition for a writ of habeas corpus.
The Supreme Court, Zenoff, J., held that prosecutor's remark in opening statement to
effect that petitioner was apprehended in state penitentiary, prosecutor's inquiring of witness
concerning homosexuality when it was conceded that prosecutor could not connect subject
with petitioner, and refusal to grant motion for production of written report of investigation
made by police officer who testified for prosecution, together, resulted in denial of fair trial.
Writ granted unless a new trial is afforded within a reasonable time.
John Squire Drendel and Jerry Carr Whitehead, of Reno, for Petitioner.
Harvey Dickerson, Attorney General, George G. Holden, Deputy Attorney General, and
William J. Raggio, District Attorney, Washoe County, for Respondent.
1. Courts.
Petitioner who was tried prior to Supreme Court's decision in Escobedo v. Illinois was not entitled to
benefit of right to counsel rule announced therein.
2. Criminal Law.
Reference to past criminal history is reversible error.
3. Criminal Law.
Refusal to allow production of police officer's written report of investigation deprived defendant of right
to impeach officer's testimony on cross-examination.
4. Criminal Law.
Prosecutor's remark in opening statement to effect that petitioner was apprehended in state penitentiary,
prosecutor's inquiring of witness concerning homosexuality when it was conceded that prosecutor could not
connect subject with petitioner, and refusal to grant motion for production of written report of investigation
made by police officer who testified for prosecution, together, resulted in denial of fair trial.
5. Criminal Law.
Every man, no matter who he may be, is guaranteed a fair trial; no matter how guilty defendant might be
or how outrageous his crime, he must not be deprived of a fair trial and any action official or otherwise that
would have that effect may not be tolerated.
6. Criminal Law.
Fair trial is very minimal standard to require before imposition of death penalty.
7. Habeas Corpus.
Petitioner who was denied fair trial would be entitled to discharge unless given new trial within
reasonable time.
OPINION
Joseph Miles Walker has filed a petition for a writ of habeas corpus with this court seeking
release from prison on the ground that he was denied certain constitutional rights at trial. We
believe that his contention is sound.
[Headnote 1]
Joseph Miles Walker was convicted of murder and sentenced to death. The conviction was
affirmed. Walker v. State, 78 Nev. 463, 376 P.2d 137 (1962).
1
Certiorari was denied by the
U.S. Supreme Court (Walker v. Nevada, 375 U.S. 882 (1963)). Walker then petitioned the
U.S. District Court for a writ of habeas corpus contending (1) that he was denied the right of
counsel, and (2) that there was an accumulation of errors during his trial in the state court
which considered in the aggregate deprived him of a fair trial in accordance with due
process of law.
____________________

1
The majority of the three-judge Nevada Supreme Court held that the errors committed by the trial court
were harmless. Justice Thompson, dissenting, took the view that since the jury fixed death as the punishment
he could not say that the errors were harmless.
in the aggregate deprived him of a fair trial in accordance with due process of law. The
Federal District Court denied the petition. On appeal the Ninth Circuit Court of Appeals
reversed and remanded directing that the district court enter its order holding further
proceedings in abeyance to afford Walker a reasonable opportunity to apply to the Nevada
courts for their re-examination of the question of whether or not in the light of Escobedo v.
Illinois, 378 U.S. 478 (1964), he was denied the benefit of counsel. United States v. Fogliani,
343 F.2d 43 (9th Cir. 1965). Complying with that order, a hearing was held in the state trial
court below on the question narrowed to Walker's assertion that he had asked for the
assistance of counsel but that it had been denied. The trial court found from the hearing that
Walker had not requested an attorney. Whether or not such a request was made is now
immaterial in that the United States Supreme Court in Johnson v. New Jersey, 384 U.S. 719,
16 L.Ed.2d 882 (1966), has ruled that the doctrine of Escobedo need not be applied
retroactively. We turn, therefore, to the second point.
The clear and unmistakable purport of the Ninth Circuit Court of Appeals to the second
point in issue compels another review of the aggregate of trial court errors as constituting
grounds for a new trial. Conceding that the contention presents an issue worthy of serious
consideration our meeting it now would overlook the possibility of its elimination by future
developments in orderly and proper procedure. United States v. Fogliani, supra, p. 48.
The court in the first appeal acknowledged three trial court errors but disclaimed them as
harmless. The so-called harmless errors included (1) the remark by the prosecuting attorney in
his opening statement to the effect that appellant was apprehended at the Oklahoma State
Penitentiary (2) the asking by the prosecutor of a question of a witness during the presentation
of the prosecution's case in chief of a question concerning homosexuality when the
prosecutor, after objection, admitted that he could not connect the subject of homosexuality
with the appellant, and (3) the refusal to grant the motion by defense counsel for the
production of a written report of the investigation made by a police officer who testified for
the prosecution.
We do not believe that the strong current of present judicial authority permits the sort of
errors which together are so serious as to amount to a denial of a fair trial. In Chapman v.
California, 386 U.S. 18 (1967), the U.S. Supreme Court decided that the harmless error rule
merely blocks the setting aside of convictions for small errors or defects and that before a
constitutional error can be held harmless the court must be able to declare a belief that it
was harmless beyond a reasonable doubt.
aside of convictions for small errors or defects and that before a constitutional error can be
held harmless the court must be able to declare a belief that it was harmless beyond a
reasonable doubt.
[Headnotes 2-4]
Reference to past criminal history is reversible error. Marshall v. United States, 360 U.S.
310 (1959); Michelson v. United States, 335 U.S. 469 (1948); Boyd v. United States, 142
U.S. 450 (1892); Vol. 1, Wigmore, Evidence 193-94 (3rd ed. 1940). Refusal to allow
production of the written statement deprived defendant of his valuable right to impeachment
by cross-examination. Pointer v. Texas, 380 U.S. 400 (1965). Incidence of homosexuality in
the prison, particularly when the prosecutor admitted that it had no relevancy whatsoever to
the defendant, could only contribute adversely to the already prejudiced climate of the trial
proceedings. The Ninth Circuit Court clearly indicated that the errors were not harmless, nor
can we say otherwise in view of Chapman, that the errors complained of were harmless
beyond a reasonable doubt.
The danger of allowing prejudicial remarks and testimony during a trial is not confined to
their momentary effect upon the jurors. Trial tactics are influenced immeasurably. Counsel is
forced to object and argue repeatedly. Defendant may be compelled to testify when it is his
right not to do so. Ibsen v. State, 83 Nev. 42, 422 P.2d 543 (1967).
[Headnote 5]
This reversal for a new trial is a hard burden to bear because Walker is a confirmed
criminal. But it is a proud tradition of our system that every man, no matter who he may be, is
guaranteed a fair trial. As stated by Chief Justice Traynor in People v. Cahan, 282 P.2d 905,
at 912 (Cal. 1955), Thus, no matter how guilty a defendant might be or how outrageous his
crime, he must not be deprived of a fair trial, and any action, official or otherwise, that would
have that effect would not be tolerated.
[Headnote 6]
The requisites of a trial free of prejudicial atmosphere are too deeply implanted to require
repetition; for when the death penalty is executed, its consequences are irretrievable. A fair
trial therefore is a very minimal standard to require before its imposition. In order that all
people be assured of fair trials, Walker, and the likes of him, must be likewise so assured. He
has not had that fair trial.
[Headnote 7]
We must be certain that he be tried free of prejudicial error. Were we to pass on this
responsibility under the present circumstances to a higher court, the extensive delay before
the next hearing might well make another trial impossible.
2
This is not necessarily true now,
but our determination cannot turn on that consideration. Our judgment, delicate as it may be,
is that on the state of this record due process of law has been denied under the federal and
state constitutions and the conviction cannot stand. It is ordered that the writ of habeas corpus
must issue and Walker be discharged unless the State gives him a new trial within a
reasonable time. Pate v. Robinson, 383 U.S. 375, 386 (1966); Schnepp v. Fogliani, 83 Nev.
131, 425 P.2d 141 (1967).
Thompson, C. J., concurring:
On appeal from the conviction, I dissented from the majority of the court. Walker v. State,
78 Nev. 463, 474, 376 P.2d 137, 142 (1962). It was then my view that the conviction should
be set aside and a new trial accorded Walker, since multiple substantial errors had resulted in
a denial of due process under the federal and state constitutions. The passing of time has not
caused me to come to a different conclusion, and I concur fully with the opinion of Mr.
Justice Zenoff.
The law of the case doctrine which seems to be the basis of the present dissent of Mr.
Justice Collins, is, I think, wholly inappropriate to the matter at hand. A state supreme court
is not the final arbiter of federal constitutional rights. In this area, federal supervision of state
criminal justice has existed throughout our history. See: Judiciary Act of 1789, ch. 20, 25, 1
Stat. 85, providing for direct review by the Supreme Court of state decisions that turn on a
question arising under the federal constitution; Judiciary Act of 1867, ch. 28, 1, 14 Stat.
385, providing for the review of state convictions by federal habeas corpus. Mr. Justice
Frankfurter wrote in Brown v. Allen, 344 U.S. 443 (1953): Insofar as this jurisdiction
enables federal district courts to entertain claims that state supreme courts had denied rights
guaranteed by the United States Constitution, it is not a case of a lower court sitting in
judgment on a higher court. It is merely one aspect of respecting the Supremacy Clause of the
Constitution whereby Federal law is higher than State law.
____________________

2
* * * The courts of Nevada are entitled * * * to have the first opportunity to consider the problem which
has now arisen on account of the decision in Escobedo * * *. United States v. Fogliani, supra, page 47.
law is higher than State law. It is for the Congress to designate the member in the hierarchy of
the federal judiciary to express the higher law. The fact that Congress has authorized district
courts to be the organ of higher law rather than a Court of Appeals, or exclusively this Court,
does not mean that it allows a lower court to overrule a higher court. It merely expresses the
choice of Congress how the superior authority of federal law should be asserted.
It, therefore, is apparent that the prior opinion of this Court in Walker v. State, supra,
cannot have the overriding significance given it by Mr. Justice Collins, since the court of
appeals for the ninth circuit has strongly indicated its disapproval of that decision. See:
United States v. Fogliani, 343 F.2d 43, 48 (9 Cir. 1965). That court wrote: No present
purpose would be served by extended and detailed discussion of the second ground of
appellant's petition, that in which it is urged that an accumulation of errors in the state trial
proceedings resulted in a trial so substantially unfair as to violate federal requirements of due
process. Conceding that the contention presents an issue worthy of serious consideration, our
meeting now would overlook the possibility of its elimination by future developments in
orderly and proper procedure. The case was then remanded to the state district court for
further proceedings. I read the quoted language to mean that the State of Nevada should have
the first opportunity to correct the constitutional infirmity of Walker's conviction, and if we
choose not to do so, the federal court, on a later application, will.
I cannot agree with the reasons given by the majority of the court in reversing the
conviction and granting a new trial. In effect the majority opinion reverses a prior decision of
this court. Shambles are being made of the ancient doctrine of the law of the case. It is a
rule universally recognized by the Courts that a decision once made upon due deliberation
ought not to be disturbed by the same Court, except upon the most cogent reasons and upon
undoubted manifestation of error. Linn v. Minor, 4 Nev. 462, 465 (1868). Whenever a
cause has been once fairly tried and finally determined, by a competent tribunal, the same
questions, as between the same parties, ought not to be tried over again. They should be
considered as forever settled. This rule is necessary for the repose of society. It is in the
interest of the public that there should be an end of litigation. McLeod v. Lee, 17 Nev. 103,
112 (1882). Points once settled in the Supreme Court should not be unsettled except for
very weighty reasons. Nev.-Cal.
be unsettled except for very weighty reasons. Nev.-Cal. Transportation Co. v. Commission,
60 Nev. 317, 108 P.2d 850 (1941).
Furthermore, the reversal is on fewer grounds of contended error than were before this
court previously. My colleagues accept the finding of the trial judge on the evidentiary
hearing held pursuant to order of the Ninth Circuit Court of Appeals regarding the confession.
Thus they accept as true the deputy warden's statement that Walker did not request an
attorney prior to talking to the district attorney of Washoe County in Ardmore, Oklahoma.
That being so, the confession was properly admitted in evidence by the original trial court and
the jury could give it such weight as it chose.
Three errors remain, all of which were specifically passed upon by this court previously,
Walker v. State, 78 Nev. 463, 376 P.2d 137 (1962), and ruled harmless. They include (1) the
remark of the prosecuting attorney in his opening statement to the effect that appellant was
apprehended in the Oklahoma State Penitentiary; (2) the asking by the prosecution of a
question of a witness during the presentation of the prosecution's case in chief concerning
homosexuality when the prosecution, after objection, admitted that he could not connect the
subject of homosexuality with appellant; and (3) the refusal to grant the motion of defense
counsel for the production of a written report of the investigation made by a police officer
who testified for the prosecution.
It becomes pertinent to recall what this court previously said about those points, especially
in view of the now changed posture of the case where admission of the confession of Walker
is no longer a point of contention. Regarding point (1), this court said at page 466, 78
Nevada, In his opening remarks to the jury the district attorney, over the objection of
appellant, was permitted to state that appellant was apprehended at the Oklahoma State
Penitentiary in McAlester, Oklahoma.
This statement was improper because it connotes the commission of an offense by
appellant other than the one for which he was being tried. The objection, therefore, should
have been sustained. State v. Lindsay, 63 Nev. 40, 161 P.2d 351.
The appellant, however, was not prejudiced by this opening remark because the place of
apprehension was contained in appellant's written confession and mentioned by him in his
oral testimony. Walker's confession being ruled admissible, the error clearly becomes
harmless.
As to point (2), this court said on pages 466 and 467 of 7S Nevada, During the direct
examination of prosecution witness Gladden, the district attorney asked: 'Now, based on
your experience as a deputy warden at the Oklahoma State Penitentiary, and your some
eight years' experience altogether at the prison, and based on your close contact with the
inmate personnel, can you state the incidence of homosexuality with the inmate
population?'
78 Nevada, During the direct examination of prosecution witness Gladden, the district
attorney asked: Now, based on your experience as a deputy warden at the Oklahoma State
Penitentiary, and your some eight years' experience altogether at the prison, and based on
your close contact with the inmate personnel, can you state the incidence of homosexuality
with the inmate population?'
Appellant's counsel objected to the question and moved that it be stricken from the
record.
The district attorney maintained that the question was relevant to motive, saying: One of
the theories of the State's case will be that, in addition to robbery, this was a homicide in the
perpetration of a homosexual act.' However, when questioned by the court, he admitted that
he did not intend to show that Gladden had any knowledge of the appellant in this respect.
The district attorney erred in asking the question, but no intentional misconduct appears
as would justify a reversal on that ground. People v. Doetschman, 69 Cal.App.2d 486, 159
P.2d 418.
The court sustained the objection and stated to the jury: The Court instructs you that
under all the facts and circumstances of this case, and the state of the evidence to date, this is
an improper question. The Court has sustained an objection to it. I ask you to completely
disregard it, wipe it out of your minds, and let it have no more effect upon you than if this
question had never been asked.'
Appellant did not move for a mistrial. As heretofore stated, he objected to the question
and moved that it be stricken. The court's action was in exact compliance with appellant's
request and, consequently, he cannot complain of the court's ruling in this regard. In view of
appellant's admissions that he committed the homicide in question, we are of the opinion that
the mere asking of the question did not affect any substantial right of the appellant or prevent
him from having a fair and impartial trial. We again are concerned with the jury's
trustworthiness in following an explicit instruction from the trial court as to the performance
of its duty. The immediate prejudice was not so apparent at the exact moment of the
happening of the event as this court noted, because appellant did not then move for a mistrial.
The whole atmosphere of prejudice, or the lack of it, could have been deeply and realistically
explored by the trial court and counsel at the very moment it took place. Appellant's counsel
was, for the moment, satisfied with the court's ruling which found no prejudice to have
existed. Are we, or any other appeal court, so perceptive or clairvoyant to be able now, some
six years later, from a cold, printed record to substitute our judgment for that of the trial
judge and counsel on the scene and engaged in the proceeding?
be able now, some six years later, from a cold, printed record to substitute our judgment for
that of the trial judge and counsel on the scene and engaged in the proceeding? The time to
make a critical determination of prejudice is at and during the trial by the trial judge when the
parties, their counsel, the jury and all other relevant factors to make a rational judgment are
present. This court in its earlier opinion on the exact point and for solid reasons found the
error to be harmless. I agree and do not feel we are warranted or compelled, as my colleagues
believe, to reconsider the point. Otherwise, we in the judiciary are making determination of
public and private rights under the law an endless treadmill dependent upon the ebb and flow
of legal opinion to the end we are gobbled up by refinement on top of refinement.
Turning to the third point, this court said on pages 468 and 469 of 78 Nevada, Nevada
Wise, a Reno Police officer, who on September 24, 1960, spent two hours examining the
pickup camper, its contents, and the body of the victim, testified on cross-examination that he
had made a written report of this investigation. Appellant thereupon made a motion to
produce the written report so that he could further cross-examine the witness. This motion
was denied. We are of the opinion that the trial judge should have granted the motion to
produce. State v. Bachman, 41 Nev. 197, 168 P. 733; People v. Rosario, 9 N.Y.2d 286, 213
N.Y.S.2d 448, 173 N.E.2d 881. Its refusal to do so is not reversible error if no substantial
right of the appellant was prejudiced by the trial court's erroneous ruling. NRS 169.110.
Wise testified on direct examination that he had gone to the pickup camper to photograph
the scene and to process it for latent fingerprints, and that he took photographs of the exterior
and interior of the camper. Some of these photographs were received in evidence after Wise
had testified that they correctly and accurately portrayed that which they purported to portray.
Wise also identified certain articles received in evidence which appeared in the photographs.
This testimony, was corroborated by Officers Williams and Manin who were present while
Wise was making the investigation and taking the photographs. The photographs depicted a
stab wound in decedent's back, the tied hands, and blankets and other articles covering the
body.
Appellant in his written confession admitting stabbing and tying the hands of the victim
and later covering the body. At the trial he testified that the confession as given was
accurately transcribed except for certain discrepancies which he pointed out and described as
being very minor.
Under these circumstances we cannot conceive how Wise's testimony could have been
materially impeached by his written statement, or how the failure to furnish appellant the
statement was in any way prejudicial.
Can we say that this court did not give fair and candid consideration to the point? Perhaps
if I were called upon to pass upon the point initially I might have taken a different stand.
However, I am impressed with the point made by Mr. Justice Thompson in his dissent where
he said at page 478, Though the rule announced in Jencks [353 U.S. 657 (1957)] appears, at
this time, to be a rule of procedure and not binding on state courts, it is most persuasive.
However, when this one procedural error is balanced against all other admissible evidence,
including the appellant's confession, I am persuaded it is harmless, notwithstanding severity
of the punishment inflicted upon Walker. I do not feel Pointer v. Texas, 380 U.S. 400 (1965),
relied upon by the majority, is controlling authority on this point.
That brings us to the point whether we are bound to follow the expression of opinion of
the Ninth Circuit Court of Appeals, Walker v. Fogliani, 343 F.2d 43, at 48, when it states,
No present purpose would be served by extended and detailed discussion of the second
ground of appellant's petition, that in which it is urged that an accumulation of errors in the
state trial proceedings resulted in a trial so substantially unfair as to violate federal
requirements of due process. Conceding that the contention presents an issue worthy of
serious consideration, our meeting it now would overlook the possibility of its elimination by
future developments in orderly and proper procedure. I feel we have the right and duty to
make our own judicial determination upon the issues and apply the law, both state and
federal, as we understand it, under our oath as judges. As state judges, I believe our role is to
give practical effect and meaning to the decisions of the United States Supreme Court, and to
apply them faithfully when duty requires it. But where the facts are different, even by a shade,
we should be realistic and practical in our judicial pronouncements. We should follow
cautiously, not try to outleap the federal courts.
The majority opinion relies heavily upon the case of Chapman v. California, 386 U.8. 18
(1967). I do not read Chapman to be applied retroactively, nor has the Supreme Court so
ruled yet. Moreover, the majority opinion in that case said at page 4, We are urged by
petitioners to hold that all federal constitutional errors, regardless of the facts and
circumstances, must always be deemed harmful. Such a holding, as petitioners correctly
point out would require an automatic reversal of their convictions and make further
discussion unnecessary.
as petitioners correctly point out would require an automatic reversal of their convictions and
make further discussion unnecessary. We decline to adopt any such rule. All 50 States have
harmless-error statutes or rules, and the United States long ago through its Congress
established for its courts the rule that judgments shall not be reversed for errors or defects
which do not affect the substantial rights of the parties.' 28 U.S.C. 2111. None of these rules
on its face distinguishes between federal constitutional errors and errors of state law or
federal statutes and rules. All of these rules, state or federal, serve a very useful purpose
insofar as they block setting aside convictions for small errors or defects that have little, if
any, likelihood of having changed the result of the trial. We conclude that there may be some
constitutional errors which in the setting of a particular case are so unimportant and
insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not
resulting in the automatic reversal of the conviction.
Chapman further holds, We, therefore, do no more than adhere to the meaning of our
Fahy case when we hold, as we now do, that before a federal constitutional error can be held
harmless, the court must be able to declare a belief that it was harmless beyond a reasonable
doubt. Where have the majority demonstrated in their opinion that the errors are of such a
fundamental constitutional nature?
Finally, in view of the analysis of the evidence and errors set forth above, it appears to me,
while a matter of exceedingly fine judgment, the errors were harmless beyond a reasonable
doubt.
I respectfully dissent.
____________
83 Nev. 165, 165 (1967) Paso Builders, Inc. v. Hebard
PASO BUILDERS, INC., a California Corporation, Appellant, v. R. T. HEBARD; H & H
INVESTMENT CORP., a Nevada Corporation; FIRST WESTERN SAVINGS AND
LOAN ASSOCIATION, a Nevada Corporation; FIRST TITLE INSURANCE
COMPANY, a Nevada Corporation; NEVADA ESCROW SERVICES, INC., a
Nevada Corporation; LAWYERS TITLE OF LAS VEGAS, INC., a Nevada
Corporation; and KARSTEN T. BRONKEN, Respondents.
No. 5025
April 6, 1967 426 P.2d 731
Appeal from dismissal orders and summary judgments of the Eighth Judicial District
Court, Clark County; George E. Marshall, Judge.
Action at law for damages brought by seller of real property against numerous defendants.
The lower court dismissed the complaint as to some defendants and gave summary judgment
for other defendants, and appeal was taken. The Supreme Court, Thompson, C. J., held, inter
alia, that where defendant civil engineer who supplied erroneous property description did not
respond to appeal or otherwise seek to sustain dismissal in his favor, reviewing court would
treat his default as a confession of error and reverse the dismissal, and that where prayer for
relief of plaintiff seller alleged that a constructive trust be impressed upon certain portion of
real property sold as against buyer's nominee, and legal title to that property was, by trust
deed, vested in title insurance company as trustee, beneficiary of that trust deed being a
savings and loan association, summary judgment in favor of defendant nominee would be
affirmed upon ground that seller failed to join indispensable parties.
Affirmed as to some respondents and reversed as to others.
Collins, J., concluded in part, dissented in part.
Morton Galane, of Las Vegas, for Appellant.
Michael L. Hines, of Las Vegas, for Respondent Karsten T. Bronken.
John Peter Lee, of Las Vegas, for Respondents Nevada Escrow Services, Inc., a Nevada
Corporation, and Lawyer Title of Las Vegas, Inc., a Nevada Corporation.
Christensen, Bell & Morris, of Las Vegas, for Respondents R. T. Hebard and H & H
Investment Corp., a Nevada Corporation.
Since the court in its order of dismissal did not expressly exclude matters outside the pleadings from
consideration, reviewing court would treat the dismissal order as a summary judgment. NRCP 12(b).
Where defendant civil engineer who supplied erroneous property description did not respond to
appeal or otherwise seek to sustain dismissal in his favor, reviewing court would treat his default as a
confession of error and reverse the dismissal.
3. Judgment.
Where prayer for relief of plaintiff seller of real property alleged that a constructive trust be
impressed upon certain portion of real property sold as against buyer's nominee, and legal title to that
property was, by trust deed, vested in title insurance company as trustee, beneficiary of that trust deed
being a savings and loan association, summary judgment in favor of defendant nominee would be
affirmed upon ground that seller failed to join indispensable parties.
4. Judgment.
Granting of summary judgment in favor of defendant buyer of real property was improper in suit
against buyer and others, which was grounded in part upon provision in agreement of sale that buyer
should be jointly and severally liable, where lower court did not express its reason for granting summary
judgment to buyer and it was possible that, upon trial, a valid defense to claim that buyer was personally
liable for deficiency balance of purchase price could be shown.
5. Escrows.
Because the personal liability of buyer of real property was secured by reason of agreement of sale
providing for his several liability, seller of property could not impose liability for amount due following
foreclosure of trust deed on escrow corporation or on title corporation on grounds that these defendants
failed to require buyer's signature as a comaker of the promissory note for which trust deed was given as
security, which allegedly caused seller to lose personal liability of buyer and resulted in damage.
6. Escrows.
Escrow corporation and title corporation were not liable to seller of real property for deficiency
remaining after foreclosure by reason of erroneous description in trust deed which was foreclosed since
the two corporations were entitled to rely upon description of the property furnished by surveyor, where
agreement of sale provided that latter was to supply the description, after which security instrument was
prepared.
7. Negligence.
The doctrine of negligence per se, when applicable, does not dispense with proof of cause.
8. Escrows.
Defendant title company could not be found liable to plaintiff seller of real property on a theory of
negligence where title company complied with provisions of sales agreement and escrow instructions and it
followed the directions which seller and buyer jointly gave.
OPINION
By The Court, Thompson, C. J.:
This suit started below as one in equity to reform a deed of trust running to the plaintiff
Paso Builders as beneficiary, but later, by supplemental complaint, was converted to an action
at law for damages. The case was never tried. The supplemental complaint was dismissed
pursuant to Rule 12(b)(5) as to some of the defendants, and as to others, summary judgments
were entered in their favor. Paso has appealed from the dismissals and summary judgments. It
is worthwhile to relate the circumstances giving rise to this litigation, the original posture of
the law suit, and Paso's later shift of position.
In January, 1963 Paso entered into a written agreement with Hebard for the sale of
approximately 80 acres of land. A down payment of 29 percent of the purchase price was
made. The balance, $321,970.80, plus interest, was to be paid in specified installments over
the ensuing 3 years. An escrow was opened with Nevada Escrow Service, and instructions
prepared and signed in conformity with the agreement of sale. Lawyers Title Insurance was to
issue a joint protection policy of title insurance.
The agreement allowed Hebard to designate a nominee in whom title to the 80 acres was
to vest. Hebard named the H & H Investment Corp. as his nominee, and Paso executed a
grant deed to that company. The agreement also provided that the balance of the purchase
price was to be evidenced by a promissory note and secured by a first deed of trust upon all
but 16 acres of the property. On January 17, 1963 H & H Investment Corp. signed the note
and trust deed. Hebard did not sign the promissory note as maker, though the agreement of
sale provided that the obligations of the buyers were joint and several. The trust deed was
recorded, the promissory note was delivered to Paso, title insurance issued, and the escrow
closed in May, 1963. Paso did not object to the form of the instruments.
The description of the property embraced by the deed of trust running to Paso was
incorrect. The agreement of sale provided that the 16 acres to be excluded by the deed of
trust were "bounded on the north by Jewel Avenue, Sandhill Road on the west, and Lamb
Boulevard on the northeasterly side."
provided that the 16 acres to be excluded by the deed of trust were bounded on the north by
Jewel Avenue, Sandhill Road on the west, and Lamb Boulevard on the northeasterly side.
An exact legal description was to be supplied by Karsten Bronken, a licensed civil engineer,
whom Paso was to pay. Bronken made the survey and furnished a description to Nevada
Escrow and Lawyers Title in order that the deed of trust could be prepared. The legal
description which he supplied did not conform to the general description of the agreement of
sale, although one would not be aware of the mistake by merely reading the document. It
embraced almost 20 acres rather than 16, it was not bounded on the northeasterly side by
Lamb Boulevard, and extended farther along Sandhill Road than contemplated by the
agreement. By excluding more property from the trust deed than intended, Paso's security was
impaired to some extent.
In October, 1963 H & H Investment Corp. executed a deed of trust on some of the property
which had been mistakenly excluded from the deed of trust previously given by it to Paso.
This later deed of trust named First Title Insurance Co. as trustee, and First Western Savings
and Loan Association, beneficiary. It secured a promissory note for $1,187,800 made by H &
H Investment Corp. to First Western. A portion of the property embraced by the deed of trust
was subdivided (Capitol Hills Tract No. 1) and construction commenced. The balance of that
property (Capitol Hills No. 2) was further encumbered by second trust deeds on individual
lots to secure the payment of various promissory notes to individual contractors for labor and
materials supplied by them. The record is bare of any suggestion that either First Title
Insurance or First Western, knew or should have known of the incorrect description in the
prior trust deed from H & H Investment Corp. to Paso.
In December, 1963 Paso first became aware of the mistake in the description of the
property of the trust deed running to it as beneficiary and commenced a suit in equity seeking
reformation of the deed of trust so that the property covered thereby would conform to the
agreement of sale. Paso named Hebard, H & H Investment Corp., First Title Insurance Co.,
and First Western as defendants. Later, Nevada Escrow Services, Lawyers Title Insurance and
Bronken were added as defendants. The original complaint was twice amended. It is not
useful to relate all of the motions of the various defendants successfully directed to the
original, the first, and the second amended complaints. As we read the record, Paso finally
abandoned its effort to plead a claim for reformation of the trust deed.
trust deed. We assume that such abandonment came about because of Paso's election to
foreclose the deed of trust. The record shows that in December, 1963 Paso delivered to
Lawyers Title, Trustee, a written declaration of default of payments due upon the
$321,970.80 promissory note given to Paso by H & H Investment. Paso demanded sale of the
security. On March 31, 1964, a trustee's sale was held. Paso bid in the property for $180,000
and received a grant deed from the trustee. By choosing to foreclose the deed of trust, Paso
proceeded upon a course wholly irreconcilable with the reformation of that instrument. In the
words of Cardozo: Where two inconsistent remedies, proceeding upon irreconcilable claims
of right, are open to a suitor, the choice of one bars the other. Ratchford v. Cayugo County
Cold Storage & Warehouse Co., 112 N.E. 447, 448 (N.Y. 1916). Trachtenberg v. Glen Alden
Coal Co., 47 A.2d 820 (Pa. 1946).
In any event, the lower court granted Paso leave to file a supplemental complaint. It did so.
That pleading requests damages of $177,461.10 (the deficiency remaining after foreclosure of
the trust deed) from Hebard, H & H Investment Corp., Nevada Escrow Services, Lawyers
Title and Bronken. First Title Insurance and First Western are not named as defendants and
we deem them to be removed from this litigation.
1

[Headnote 1]
Hebard and H & H Investment jointly answered the supplemental complaint, and later
moved for summary judgment. Their joint motion was granted. Nevada Escrow and Lawyers
Title jointly filed a motion to dismiss the supplemental complaint pursuant to Rule 12(b)(5),
or in the alternative, for summary judgment since matters outside the pleadings were
presented for consideration. Their joint motion to dismiss was granted. Since the court in its
order of dismissal, did not expressly exclude matters outside the pleadings from consideration
(NRCP 12(b)), we shall treat the dismissal order as a summary judgment. S. & S. Logging
Company v. Barker, 366 F.2d 617 {9 Cir.
____________________

1
The pleadings are exceedingly difficult to follow. The plaintiff's second amended complaint was dismissed
as to all defendants. Thereafter, the plaintiff persuaded the court to sign an order vacating the dismissals and
allowing the plaintiff to file a supplemental complaint. Plaintiff then filed a document entitled Third Amended
and Supplemental Complaint. That pleading amended nothing. It was a completely new complaint based
primarily upon occurrences since the litigation started. In the circumstances we choose to look only to the claim
for relief alleged in the supplemental complaint to which the judgments and dismissals from which this appeal is
taken were directed.
F.2d 617 (9 Cir. 1966); cf. Buss v. Consolidated Casinos Corp., 82 Nev. 355, 418 P.2d 815
(1966). The defendant Bronken filed a Rule 12 (b)(5) motion to dismiss which was granted.
We turn to determine the propriety of the rulings below as to each of the defendants.
[Headnote 2]
1. Paso v. Bronken. As noted, Karsten Bronken was the civil engineer who supplied the
erroneous property description. The claim for relief against him is based on negligence. He
did not respond to this appeal or otherwise seek to sustain the dismissal in his favor. We
choose to treat his default in this regard as a confession of error, and, therefore, reverse the
dismissal. Toiyabe Supply Co. v. Arcade Dress Shops, Inc., 74 Nev. 314, 330 P.2d 121
(1958).
[Headnote 3]
2. Paso v. H & H Investment Corp. The prayer for relief alleged against H & H
Investment Corp. is that a constructive trust be impressed upon the real property called
Capitol Hills No. 2 (refer to statement of facts). Legal title to that property is, by trust deed,
vested in First Title Insurance Company as Trustee. The beneficiary of that trust deed is First
Western Savings & Loan Association. Neither the trustee nor the beneficiary is a party
defendant to the supplemental complaint. Though other reasons may exist to defeat a
constructive trust here, we affirm summary judgment for H & H Investment Corp. upon the
ground that the plaintiff failed to join indispensable parties. Cf. Robinson v. Kind, 23 Nev.
330 (1896).
In passing we note that Paso does not seek a deficiency judgment against H & H
Investment Corp. for the amount due upon the $321,970.80 promissory note after foreclosure
of the trust deed given as security therefor. See Sims v. Grubb, 75 Nev. 173, 336 P.2d 759
(1959); McMillan v. United Mortgage Co., 82 Nev. 117, 412 P.2d 604 (1966).
[Headnote 4]
3. Paso v. Hebard. Paso's claim for relief against Hebard rests upon the provision of the
agreement of sale that the buyers shall be jointly and severally liable. Paso seeks damages of
$177,460.10. The record does not disclose whether Hebard assigned his rights under the
agreement of sale to H & H Investment Corporation, his nominee. In any event, it is Paso's
contention, that Hebard, by promising to be severally liable for the purchase price, cannot
now escape that liability by insisting that Paso must look only to the H & H Investment Corp.
who signed the promissory note and trust deed.
When Paso and Hebard made the agreement of sale, the identity of Hebard's nominee,
should he decide to name one, was unknown to Paso. Hence, the express provision for the
several liability of Hebard. The agreement of sale does not contain the slightest suggestion
that, in the event of default, Paso was to resort to the security alone. Nor does the trust deed
later executed by Hebard's nominee, H & H Investment Corp., to secure the promissory note
for the purchase price balance, contain an anti-deficiency clause. As noted in Montgomery v.
De Picot, 96 P. 305 (Cal. 1908), [I]t is a very easy matter, when reliance is intended to be
placed on the financial responsibility of the original vendee, to specify in the contract that, in
addition to the mortgage, his personal obligation shall be given. That specification was made
here by providing for Hebard's several liability.
In granting summary judgment to Hebard the lower court did not express its reason.
Perhaps, upon trial, a valid defense to the claim that he is personally liable for the deficiency
balance of the purchase price can be shown. We do not know. In any event, the record as it
now stands does not justify a summary judgment in his favor. Therefore, we reverse and
remand for trial.
[Headnote 5]
4. Paso v. Nevada Escrow and Lawyers Title. It is alleged that Lawyers Title is the alter
ego of Nevada Escrow. We need not be concerned with this contention. Paso's claim for relief
against these defendants offers three propositions.
First, Paso seeks to impose liability for the amount remaining due following foreclosure of
the trust deed, because these defendants failed to require Hebard's signature as a co-maker of
the $321,970.80 promissory note for which the trust deed was given as security. Only
Hebard's nominee signed the note. It is contended that this failure caused Paso to lose the
personal liability of Hebard and resulted in damage. The contention is not sound, since
Hebard's personal liability was secured by reason of the agreement of sale providing for his
several liability. Thus, it was not essential that his signature also appear as a co-maker of the
note. We express no opinion as to the duty of the escrow in these circumstances absent a
provision in the agreement of sale for the several liability of Hebard.
[Headnote 6]
Second, Paso urges that these defendants are somehow liable for the deficiency remaining
after foreclosure by reason of the erroneous description in the trust deed foreclosed. We think
it clear from this record that Nevada Escrow and Lawyers Title were entitled to rely upon
the description furnished by Karsten Bronken.
think it clear from this record that Nevada Escrow and Lawyers Title were entitled to rely
upon the description furnished by Karsten Bronken. The agreement of sale provided that
Bronken was to supply the description. He did so, and the security instrument was prepared
accordingly. There is no reason to charge Nevada Escrow or Lawyers Title with Bronken's
mistake. He was not their agent, nor did the description he furnished give notice of error.
[Headnotes 7, 8]
Third, it is alleged that Lawyers Title was negligent per se since it prepared the trust deed
and thus engaged in the practice of law without a license to do so in violation of statute. We
are referred to Pioneer Title Insurance v. State Bar, 74 Nev. 186, 326 P.2d 408 (1958);
Biakanja v. Irving, 310 P.2d 63 (Cal. 1957), noted in 11 Vanderbilt L.Rev. 599 (1958). The
Pioneer Title Insurance case, supra, was an injunction suit, and had nothing to do with the
liability of an escrow agent should it engage in the unauthorized practice of law. In Biakanja,
supra, a notary public, who was not a lawyer, prepared an invalid will. The court found
liability, because damage resulted from the notary public's mistakes in drafting the will. The
Notary's unauthorized practice of law in that instance was ruled to be negligence per se. We
need not express our view as to whether Lawyers Title engaged in the practice of law when it
prepared the trust deed, nor need we discuss the implications of negligence per se, since the
title company's conduct did not proximately cause damage to Paso. The title company was
obliged to comply with the provisions of the agreement of sale and escrow instructions. It did
so, and may not be held responsible to the seller in damages for following the directions
which the seller and buyer jointly gave. The doctrine of negligence per se, when applicable,
does not dispense with proof of cause.
We conclude as follows: (1) The dismissal in favor of Bronken is reversed and the cause
remanded for trial. (2) The summary judgment in favor of Hebard is reversed and the cause
remanded for trial. (3) As to all other parties, the judgments below are affirmed.
Bowen, D. J., concurs.
Collins, J., concurring in part; dissenting in part:
I concur in the majority opinion of the court except reversal of summary judgment in favor
of Hebard, and from that order, I dissent.
This issue involves Hebard's personal liability for the deficiency in the amount due under
the promissory note given for the balance on the purchase price. The property was sold under
the deed of trust resulting in an alleged deficiency of $177,461.10. Paso asks judgment
against Hebard personally for that amount. It contends he was a party to the contract creating
joint and several obligations of the buyers (Hebard or his nominee). The contract provided the
escrow holder was to vest title to the property in Hebard or his nominee and could accept a
promissory note from Hebard or his nominee. Escrow holder accepted and delivered to Paso a
promissory note and deed of trust from H & H Investment Company, Hebard's nominee. It
was under this deed of trust the sale was had, resulting in the alleged deficiency of
$177,461.10. Paso was estopped in claiming further personal liability of Hebard under the
note where it accepted without objection the note and deed of trust from H & H Investment
Company, and, without objection, executed and delivered its deed to H & H Investment
Company.
The word nominee ordinarily indicates one designated to act for another as his
representative in a rather limited sense. It is used sometimes to signify an agent or trustee. It
has no connotation, however, other than that of acting for another, in representation of
another, or as the grantee of another. Schuh Trading Co. v. Commissioner of Internal
Revenue, 95 F.2d 404 (7 Cir. 1938).
The use of a nominee, dummy or strawman in real estate sales transactions has a well
accepted meaning. It was stated by Judge Swan in In re Childs Co., 163 F.2d 379
(C.C.A.N.Y. 1947), It is familiar practice in real estate transactions, and particularly when a
purchase money mortgage is to be given, for the real purchaser to take title in the name of a
nominee or dummy' who will execute the mortgage; thereby the real purchaser avoids
personal liability for any deficiency judgment in case the mortgage is foreclosed. [Citations
omitted.] In such cases the vendor usually demands a down payment believed to be large
enough to insure against the mortgagor's default, and where the mortgagee knows he is
dealing with a dummy', he is actually contracting for the land as his sole security. See 43
Yale L.J. 140, 141. Harvey on Real Estate Law & Title Closing, 3d Ed. 362, p. 364. All
those conditions are met in this case. There was a substantial down payment (29 percent of
the purchase price), the contract of sale permitted title to vest in the nominee with the
nominee to give back the promissory note and deed of trust.
back the promissory note and deed of trust. Clearly appellant seller was not dealing with an
undisclosed principal, but was content to look only to the land for the balance of its purchase
price.
Appellant-seller urges that use in the contract of sale of the words Buyers (plural) and
that Sellers and Buyers were jointly and severally liable creates an ambiguity in the contract
requiring factual evidence to resolve, thus precluding summary judgment in favor of Hebard.
However, at the time the contract was executed there was but one buyer, who was Hebard.
Nothing is said in the contract who the nominee of the buyer might even be. Obviously
Hebard used a corporate nominee, H & H Investment Company, for the express purpose of
limiting his personal liability for the balance of the purchase price. Paso agreed to this in the
contract and carried out the agreement by conveying title to the nominee and accepting back
its promissory note and deed of trust. To say Hebard is now personally liable on the note
because of the joint and several obligation clause in the contract is to frustrate the parties'
contract permitting use of a nominee by the buyer. It is said in Lee v. Ravanis, 212 N.E.2d
480 (Mass. 1965), Except for some special circumstance we can see no purpose in any
reference to a nominee if the buyer is obliged to incur liability on the mortgage and mortgage
note. Neither can I. Nowhere in all the facts outside the pleadings is such special
circumstance shown. See also Strawmen in Realty Transactions, 25 Wash. U.L.Q. 232
(1940).
Moreover, courts generally do not favor deficiency judgments against other than the buyer.
Here appellant-seller seeks to fix personal liability on Hebard of some $177,461.10. A New
York court refused to set aside a transfer of assets from a nominee to a nominator corporation
precluding satisfaction of a deficiency judgment. The court refused to recognize a trust
relationship between the two corporations or to set aside the conveyance as being without
consideration and a fraud upon creditors. Fraw Realty Co. v. Natanson, 185 N.E. 679 (N.Y.
1933). In a note on the case it is said in 43 Yale L.J. 140, at 141, Where the mortgagee
knows he is dealing with a dummy,' he is actually contracting for the land as his sole
security. * * * Hence, the court might, consistent with established doctrine, have sustained a
legally justifiable method of avoiding deficiency judgments.
____________
83 Nev. 175, 175 (1967) Bullis v. State
JOHN BULLIS and JOSEPH JAMES BARRETT, Appellants
v. THE STATE OF NEVADA, Respondent.
No. 5079
April 11, 1967 426 P.2d 423
Appeal from order denying new trial and motion in arrest of judgment. Second Judicial
District Court, Washoe County, John W. Barrett, Judge.
Defendants were convicted in the trial court of first degree burglary and they appealed.
The Supreme Court, Zenoff, J., held that information charging that defendant burglariously
entered building with intent to commit larceny was not defective on ground that it failed to
specify either grand larceny or petit larceny.
Affirmed.
[Rehearing denied May 9, 1967]
Samuel B. Francovich, of Reno, for Appellants.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, Herbert Joseph
Santos, Deputy District Attorney, and Virgil D. Dutt, Deputy District Attorney, Washoe
1. Burglary.
Information charging that defendants burglariously entered building with intent to commit larceny
was not defective for failing to specify either grand larceny or petit larceny. NRS 205.060, 205.220,
205.240.
2. Burglary.
Primary concern in burglary indictment is with the unlawful entry, and intended felony or theft need
not be described with same specificity that might be required in charging offense of larceny or another
felony. NRS 205.060, 205.220, 205.240.
3. Criminal Law.
Denial of motion for continuance made immediately prior to trial was within discretion of trial court.
OPINION
Defendants were convicted jointly of first degree burglary arising out of an illegal entry
and tunneling through basement dividing walls which encompassed three stores in downtown
Reno.
83 Nev. 175, 176 (1967) Bullis v. State
Reno. They were apprehended midway in their efforts. They demurred to the information
which was in the statutory language, NRS 205.060, as follows:
John Bullis and Joseph James Barrett, also known as Joseph James Russo * * * did
wilfully, unlawfully, feloniously and burglariously enter in the nighttime a certain building
situated in Washoe County, to wit, Fashion Fair, located at 211 N. Virginia Street, Reno,
Nevada, with the intent then and there to commit larceny. The contention of the demurrer
was that there is no crime of larceny in this state, only grand larceny (NRS 205.220) and
petty larceny (NRS 205.240) which, it was alleged, made the information defective because
one or the other should be specified.
The demurrer was overruled. After the trial and conviction, they moved for a new trial and
arrest of judgment which was denied. They appeal from the final judgment and denials of the
motions.
[Headnotes 1, 2]
1. The crime for which the defendants were charged and convicted is burglary not larceny.
The allegation of the intent to commit larceny is simply an element of the crime of burglary.
State v. Patchen, 36 Nev. 510, 517, 137 P. 406 (1913); Harris v. Commonwealth, 37 S.E.2d
868, 871 (Va. 1946). Since the primary concern in a burglary indictment is with the unlawful
entry, the intended felony or theft need not therein be described with the same specificity that
might be required in charging the offense of larceny or another felony. People v. Peck, 194
N.E.2d 245, 247 (Ill. 1963); Register v. State, 112 So.2d 523, 524 (Miss. 1959); People v.
Smith, 24 P. 988 (Cal. 1890). (See Howard v. Sheriff, 83 Nev. 150, 425 P.2d 596 (1967).)
[Headnote 3]
2. The trial court properly instructed the jury on all the issues and questions of law. The
denial of a motion for continuance immediately prior to trial was within the discretion of the
trial court and we find no abuse of that discretion. Other allegations of error are without
merit.
Affirmed.
____________
83 Nev. 177, 177 (1967) Gordon v. State
HAROLD GATES GORDON, Appellant, v. THE STATE
No. 5208
April 11, 1967 426 P.2d 424
Appeal from conviction of robbery. Eighth Judicial District Court, Clark County; John
Mowbray, Judge.
Defendant was convicted in the lower court of robbery, and he appealed. The Supreme
Court, Thompson, C. J., held that testimony by police officer that police felt the accomplice
was in custody and was to meet defendant at motel at time earlier than police had found
where he was did not advise court what accomplice had actually said or why officer thought
information was credible and reliable and was not sufficient to show probable cause for arrest
without warrant or to obtain warrant for arrest, so that fruits of search incident to arrest were
inadmissible.
Robert E. Rose of Goldwater, Taber and Hill, of Reno, for Appellant.
Harvey Dickerson, Attorney General, and George E. Franklin, Jr., District Attorney of
Clark County, and Jerry L. Kaufman, Deputy District Attorney of Clark County, for
Respondent.
Proscription in Fourth Amendment to the United States Constitution against issuance of search or
arrest warrants except upon probable cause is enforceable against the states through the Fourteenth
Amendment. U.S.C.A.Const. Amends. 4, 14.
2. Arrest.
Probable cause for arrest without a warrant exists if facts and circumstances known to officer at
moment of arrest would warrant a prudent man in believing that a felony had been committed by the
person arrested.
3. Arrest; Criminal Law.
Testimony by police officer that police felt accomplice was in custody and was to meet accused at
motel at time earlier than they had found where he was did not advise trial court what accomplice actually
had said or why officer thought information was credible and reliable and did not show probable cause
for arrest without warrant or to obtain arrest warrant, so that fruits of search incident to arrest were
inadmissible.
4. Arrest.
To show probable cause for arrest without a warrant, trial court must be informed of facts upon which
the arresting officer acted.
5. Arrest.
The requirements of reliability and particularity needed to support an arrest without a warrant are not less
stringent than when an arrest warrant is obtained.
6. Criminal Law.
Burden rests with prosecution to establish probable cause for arrest.
7. Criminal Law.
Before a federal constitutional error may be deemed harmless, the Supreme Court must be able to declare
a belief that it was harmless beyond a reasonable doubt and could not possibly have influenced the verdict.
8. Criminal Law.
Where two eyewitnesses to robbery identified clean-shaven defendant as the culprit although robber had
been a bearded man and a defense witness testified that defendant did not have a beard on day of robbery,
testimony concerning moist shaving brush and facial hairs found in search of bathroom in defendant's motel
bathroom was important to the conviction, so that erroneous admission of such evidence seized pursuant to
warrantless arrest for which probable cause was not shown was not harmless.
OPINION
By the Court Thompson, C. J.:
During the mid-afternoon of May 4, 1965 a bearded man, armed with a gun, entered the
office of the Housing Authority in Las Vegas. He directed the employee on duty to open the
safe and turn over the money on hand. She did as directed, and the thief left with about $600.
Later the same day Harold Gates Gordon was registered under another name at the
Branding Iron Motel, Unit No. 7. At approximately 11 p.m. that evening law officers, using a
pass key secured from the motel manager, entered Gordon's room, arrested him, and
conducted a search for evidence. The officers did not possess an arrest warrant or a search
warrant. In the bathroom they found shaving equipment, a moist shaving brush, and facial
hairs in the bowl of the sink, which they seized. Testimony concerning the fruits of the search
was received at the trial over objection. The apparent purpose in offering such testimony was
inferentially to show that Gordon had recently shaved and could have been the bearded
robber. Two eye witnesses to the robbery identified Gordon as the perpetrator. A defense
witness testified that Gordon did not have a beard on the day of the robbery. He had seen him
during the early afternoon at a pool hall. The jury convicted Gordon of robbery, and this
appeal ensued.
The main question presented is whether Gordon's arrest without a warrant was
constitutionally permissible. The lower court ruled that it was, and therefore allowed
testimony about the fruits of the search, since it believed that the search was incident to a
lawful arrest.
1
This, we think, was error.
[Headnotes 1, 2]
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).
[Headnotes 3-6]
In the case at hand the evidence touching on the issue of probable cause for arrest is
meager. Only one officer testified. He stated that: We felt the accomplice was in custody and
was to meet the accused at the motel at a time earlier than we had found where he was. The
officer did not advise the court what the accomplice had actually said, and why he thought
the information was credible and reliable. Cf. McCray v. Illinois, 386 U.S. 300 (1967). The
essential supporting facts were not related. The court must be informed of the facts upon
which the officer acted if probable cause for a warrantless arrest is to be shown. Beck v.
Ohio, supra; cf. McCray v. Illinois, supra. Indeed, even had an arrest warrant been obtained,
the constitution requires a greater showing of probable cause than is disclosed by the present
record. Aguilar v. Texas, 378 U.S. 108 (1963). The requirements of reliability and
particularity needed to support a warrantless arrest are not less stringent than when an arrest
warrant is obtained. Wong Sun v. United States, 371 U.S. 471 (1962). The burden rests with
the prosecution to establish probable cause for an arrest. That burden was not met here.
2
[Headnotes 7, S]
____________________

1
We proceed on the premise that if the objects seized were not constitutional evidence, neither was testimony
concerning them.

2
Our holding renders it unnecessary to decide whether, in any event, the Fourth Amendment prohibition was
violated by the unannounced police intrusion into Gordon's motel room. See: Ker v. California, 374 U.S. 23
(1962); Stoner v. California, 376 U.S. 483 (1963).
[Headnotes 7, 8]
Subordinately the state suggests that the error was harmless, since there were two
eye-witnesses to the robbery who identified Gordon as the culprit and also other substantial
evidence of guilt. The robber, however, was a bearded man. Gordon did not have a beard
when arrested, and a defense witness testified that he did not have a beard earlier that day.
Identity was crucial, and the evidence conflicting. The testimony concerning the moist
shaving brush and facial hairs which the officers found in their bathroom search of Gordon's
unit was relevant evidence tending to lend weight to the State's case. Before a federal
constitutional error may be deemed harmless we must be able to declare a belief that it was
harmless beyond a reasonable doubt and could not possibly have influenced the verdict.
Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705 (1967); Fahy v. Connecticut, 375 U.S.
85 (1963). We cannot so declare in this case. It seems apparent that the unconstitutional
evidence was important to the conviction.
Appellant's counsel was appointed to take this appeal. We direct the lower court to give
him the certificate specified in subsections 3 and 4 of NRS 7.260, to enable him to receive
compensation for his services on appeal.
____________
83 Nev. 180, 180 (1967) Misty Management v. District Court
MISTY MANAGEMENT CORPORATION and TRI-AVIATION CORPORATION; and the
STATE OF NEVADA Upon the Relation of Misty Management Corporation and
Tri-Aviation Corporation, Petitioners, v. THE FIRST JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for the County of Ormsby, Honorable Richard L. Waters,
Jr., the Judge Thereof, and THOMAS DANIEL WYATT, Respondents.
No. 5282
April 17, 1967 426 P.2d 728
Original proceeding in prohibition.
Original proceeding to prohibit district court from hearing motion to vacate judgment on
ground that it was void. The Supreme Court, Thompson, C. J., held that upon dismissal, for
procedural defaults, of plaintiff's attempted appeal from judgment for defendant
notwithstanding verdict for plaintiff, judgment notwithstanding verdict became res
judicata, and trial court was thereafter without power to entertain plaintiff's motion to
vacate judgment notwithstanding verdict.
Supreme Court, Thompson, C. J., held that upon dismissal, for procedural defaults, of
plaintiff's attempted appeal from judgment for defendant notwithstanding verdict for plaintiff,
judgment notwithstanding verdict became res judicata, and trial court was thereafter without
power to entertain plaintiff's motion to vacate judgment notwithstanding verdict.
Alternative writ made permanent.
[Rehearing denied May 29, 1967, 83 Nev. 253, 428 P.2d 196.]
Collins, J. dissenting.
E. M. Gunderson, of Las Vegas, and Ball, Hunt, Hart and Brown and George E. McGill,
of Long Beach, California, for Petitioners.
Martillaro and Bucchianeri and Daniel R. Walsh, of Carson City, for Respondents.
1. Judgment.
Even if district court, in granting judgment for defendant notwithstanding verdict for plaintiff
incorrectly evaluated legal effect of proof offered at trial, post judgment remedy of plaintiff was by
appeal.
2. Judgment.
Judgment erroneously entered by reason of trial court's improper view of proof is not void judgment
within meaning of rule allowing court to relieve party from final judgment if it is void. NRCP 60(b)(3).
3. Judgment.
Propriety of judgment for defendant notwithstanding verdict for plaintiff could have been presented to
Supreme Court by properly perfected appeal.
Upon dismissal, for procedural defaults, of plaintiff's attempted appeal from judgment for defendant
notwithstanding verdict for plaintiff, judgment notwithstanding verdict became res judicata, and trial
court was thereafter without power to entertain plaintiff's motion to vacate judgment notwithstanding
verdict. NRCP 60 (b)(3).
5. Jury.
Granting judgment for defendant notwithstanding verdict for plaintiff did not deny to plaintiff his
constitutional right to jury trial. NRCP 50(b).
OPINION
This is an original proceeding in prohibition to preclude the district court from hearing a
motion to vacate a judgment upon the ground that it is void.
the ground that it is void. The judgment was entered in an action filed by Thomas Wyatt
against Misty Management. Wyatt sought to set aside a deed to certain real property, and also
requested damages. The case was tried to a jury. At the close of the evidence, Misty
Management moved for a directed verdict. The motion was denied, and the case allowed to
go to the jury. The jury favored Wyatt with its verdict. Misty Management then filed a motion
for a judgment n.o.v. The court granted that motion, and directed the entry of judgment for
Misty Management. Wyatt appealed, but his appeal was dismissed by this court for failure to
comply with essential procedural requirements.
1
Wyatt then filed a motion in the district
court to vacate the judgment. It is this motion to which the present prohibition proceeding is
directed.
The motion to vacate the judgment entered at court direction for Misty Management, rests
upon Rule 60(b)(3) which allows the court to relieve a party from a final judgment if it is
void. That provision is normally invoked (either by motion, or by independent action) in a
case where the court entering the challenged judgment was itself disqualified from acting,
e.g., Osman v. Cobb, 77 Nev. 133, 360 P.2d 258 (1961), or did not have jurisdiction over the
parties, e.g., LaPotin v. LaPotin, 75 Nev. 264, 339 P.2d 123 (1959); Foster v. Lewis, 78 Nev.
330, 372 P.2d 679 (1962), or of the subject matter of the litigation. None of these infirmities
exist here. All agree that the district court enjoyed complete jurisdiction over the subject
matter and the parties in the case of Wyatt v. Misty Management, and was not otherwise
disqualified from acting. Wyatt's claim that the judgment n.o.v. is void does not rest upon a
lack of jurisdiction in the traditional sense. Instead, it is his position that the judgment n.o.v.
is void since there was substantial evidence to support the jury verdict, and the court was,
therefore, deprived of power to set it aside. Additionally, he presses the notion that the court's
action in granting a judgment n.o.v. denied his constitutional right to a jury trial. We think
that his claims are without substance.
[Headnotes 1-4]
If we were to assume, arguendo, that the court in granting the judgment n.o.v. incorrectly
evaluated the legal effect of the proof offered at trial, the post-judgment remedy was by
appeal. Annat v. Beard, 277 F.2d 554 (5 Cir. 1960). A judgment which is erroneously
entered by reason of the trial court's improper view of the proof is not a void judgment
within the meaning of Rule 60{b) {3). Cf. Annat v. Beard, supra; Ackerman v.
____________________

1
Daniel R. Walsh counsel for respondent in this proceeding was not counsel for Wyatt at trial or on appeal.
which is erroneously entered by reason of the trial court's improper view of the proof is not a
void judgment within the meaning of Rule 60(b) (3). Cf. Annat v. Beard, supra; Ackerman v.
United States, 340 U.S. 193 (1950). The propriety of the judgment n.o.v. which Wyatt now
seeks to challenge by motion under Rule 60(b) (3) could have been presented to this court by
a properly perfected appeal. As already noted, an appeal was attempted, but dismissed for
procedural defaults. Wyatt slept on his rights in perfecting his appeal, and now asks the lower
court to resolve a contention, which, had orderly procedure been followed, would have been
resolved by us. Upon dismissal, the judgment n.o.v. became res judicata. Wight v.
Montana-Dakota Utilities Co., 299 F.2d 470 (9 Cir. 1962); Stumpff v. Harper, 214 P. 709
(Okla. 1923); Vestal: Preclusion/Res Judicata Variables: Adjudicating Bodies, 54
Georgetown L.J. 857, 882 (1966). The words of Justice Douglas in United States v.
Munsingwear Inc., 340 U.S. 36, 41 (1950) are apropos: The case illustrates not the hardship
of res judicata but the need for it in providing terminal points for litigation.
[Headnote 5]
The notion that a favorable ruling upon a Rule 50(b) motion for judgment n.o.v. somehow
violates the constitutional guaranty of a jury trial has been rejected by the United States
Supreme Court. Neely v. Eby Construction Co., 386 U.S. 317 (1967), see also; Montgomery
Ward & Co. v. Duncan, 311 U.S. 243 (1940). Further discussion on this point is not
warranted.
Since the issue now sought to be presented to the lower court has become res judicata, and
is not of jurisdictional stature, we rule that the court is without power to entertain the motion
to vacate the judgment n.o.v. Stumpff v. Harper, supra. The case was terminated when the
appeal was dismissed and the remittitur issued. The alternative writ of prohibition heretofore
issued is made permanent.
The trial court's entertainment of a motion under Rule 60(b) (3) should be approved. It is
true, as pointed out by the majority opinion, that direct attacks on a judgment under Rule
60(b) (3) are most often allowed in those cases lacking jurisdiction over the parties or subject
matter. Yet I construe Rule 60{b) {3) to encompass a broader meaning.
60(b) (3) to encompass a broader meaning. See Bass v. Hoagland, 172 F.2d 205 (5 Cir. 1949).
As stated by C. J. Gibson in Abelleira v. District Court, 109 P.2d 942 (Cal. 1941):
But in its ordinary usage the phrase lack of jurisdiction is not limited to these
fundamental situations. For the purpose of determining the right to review by certiorari,
restraint by prohibition, or dismissal of an action, a much broader meaning is recognized.
Here it may be applied to a case where, though the court has jurisdiction over the subject
matter and the parties in the fundamental sense, it has no jurisdiction (or power) to act
except in a particular manner, or to give certain kinds of relief, or to act without the
occurrence of certain procedural prerequisites. * * * Speaking generally, any acts which
exceed the defined power of a court in any instance, whether that power be defined by
constitutional provision, express statutory declaration, or rules developed by the courts and
followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term
is used to indicate that those acts may be restrained by prohibition or annulled on certiorari. *
* *'
Nevada has recognized the broader concept of jurisdiction in Treadway v. Wilder, 12 Nev.
108 (1877).
The right by trial by jury is a sacred constitutional right, of which no litigant, in a proper
case, can be deprived without his consent; and if any of the material issues, to try which either
party has a right to demand a jury, be decided against him by the court upon proofs admitted
without his waiver of a jury, he is deprived of a substantial right, guaranteed to him by the
constitution and laws. A court has not jurisdiction to try an issue which the constitution and
laws declare shall be tried by a jury, unless a jury be waived; and if it be tried by the court
when a jury is demanded, the party against whom the judgment is rendered upon such issue,
is not bound thereby.
Conceding that the Treadway case was decided prior to Nevada's adoption of the federal
rules, it is nevertheless authority for the proposition that a court lacks jurisdiction when
Nevada Constitution, Art. 1, 3, is violated. (Also see Rule 38 (a).)
The main issue, in my view, is whether an improper application of Rule 50(b) violates
one's right to a jury trial as guaranteed by Art. 1, 3, and Rule 38(a). The majority feels we
are bound by the determination of Neely v. Eby Construction Co., 386 U.S. 317 (1967), and
Montgomery Ward & Co. v. Duncan, 311 U.S. 243 (1940), which hold that the constitutional
guaranty of a jury trial is not violated by granting a judgment n.o.v. However, those cases
establish only that Rule 50(b) is constitutional when properly applied.
is constitutional when properly applied. In footnote 2 of Justice Black's dissent in Neely v.
Eby Construction Co. he states:
Certainly if there were sufficient evidence to go to the jury, then Rule 38(a) and the
Seventh Amendment preclude the Court of Appeals from directing a dismissal of petitioner's
case after she obtained a jury verdict.
A careful reading of the record in this case discloses substantial conflicting evidence on all
issues tried, including fraud practiced upon Wyatt by Misty Management, its officers and
agents. Under these circumstances it was arbitrary and in excess of jurisdiction for the trial
court to grant a judgment n.o.v. to defendant. At the close of Wyatt's evidence and again at
the close of the case, the trial court reserved ruling on Misty Management's motion for
directed verdict under NRCP 50, and submitted the case to the jury. The jury, all twelve
concurring, found for Wyatt and against Misty Management on all issues, including a
counterclaim. They answered ten detailed interrogatories also by unanimous action in favor of
Wyatt and against Misty Management.
In Professor Moore's treatise it is stated:
The standards for granting a motion for judgment n.o.v., on which the constitutionality of
such action depends, are the same as those governing the direction of a verdict. * * * Thus,
the motion for judgment n.o.v. may be granted only when, without weighing the credibility of
the evidence, there can be but one reasonable conclusion as to the proper judgment. Where
there is conflicting evidence, or there is insufficient evidence to make a one-way' verdict
proper, judgment n.o.v. should not be awarded. In considering the motion, the court must
view the evidence in the light most favorable to the party who secured the jury verdict. And
this approach governs the actions of appellate courts as well as trial courts. (5 Moore, Fed.
Pract. 50.07 (2).)
In discussing the case of Manaia v. Potomac Electric Power Co., 268 F.2d 793 (4 Cir.
1959), he states in 50.07(1), at page 2355, regarding the constitutionality of judgments
n.o.v.: It must be recognized, however, as indicated in the opinion just quoted, that the
constitutionality of the judgment n.o.v. is dependent on adherence to the standards limiting
the power of the courts to invade the province of the jury. Segal v. Chicago City Ry. Co.,
155 N.E. 757 (Ill. 1927); see De Pinto v. Provident Life Ins. Co., 323 F.2d 826 (9 Cir. 1963).
Title to Carson Hot Springs, Ormsby County, Nevada, improved real property, value at
$375,000, was restored to Wyatt by the jury's verdict. As a result of the judgment n.o.v.
he was deprived of that title without payment. In light of the above authority, it is my opinion
that where a judge improperly invades the province of a jury in setting aside its verdict, the
action constitutes an unconstitutional denial of right to a trial by jury and his resulting
judgment is void.
____________
83 Nev. 186, 186 (1967) In re Laiolo
In Re the Applications of PAUL R. LAIOLO and ROBERT
J. SULLIVAN for Writs of HAbeas Corpus.
Nos. 5209, 5210
April 18, 1967 426 P.2d 726
Original proceedings.
Habeas corpus proceeding to challenge validity of arrest and restraint under bank licensing
ordinance. The Supreme Court, Thompson, C. J., held that bank license ordinance, exempting
banks doing business under federal laws and basing fee on capitalization, was so vague as to
violate due process in view of doubt as to whether exemption applied only to national banks
or to state banks which joined federal reserve system, and for lack of definition of
capitalization.
Writs granted and petitioners discharged.
Stewart and Horton, of Reno, for Petitioner Laiolo.
Vargas, Dillon, Bartlett and Dixon, and Albert F. Pagni, of Reno, for Petitioner Sullivan.
Richard Breitweiser, City Attorney, Samuel T. Bull, Assistant City Attorney, Samuel B.
Francovich and G. W. Belcher, Special Assistant City Attorneys, for Respondent.
1. Habeas Corpus.
Habeas corpus was appropriate remedy to determine whether licensing ordinance, under which
petitioners were arrested, was so vague and indefinite as to violate due process. NRS 34.500, subd. 4.
2. Licenses.
It is unlawful to carry on business, subject to license, without a license, unless exempt.
3. Municipal Corporations.
Terms of ordinance which carries serious sanctions for disobedience must be sufficiently explicit to
inform those who are subject to it what conduct will render them liable to its penalties.
83 Nev. 186, 187 (1967) In re Laiolo
When governmental intention is in doubt, ordinance must be strictly construed and doubt resolved in
favor of party charged with violation.
Bank license ordinance, exempting banks doing business under federal laws and basing fee on
capitalization, was so vague as to violate due process, in view of doubt as to whether exemption applied
only to national banks or to state banks which joined federal reserve system, and for lack of definition of
capitalization.
OPINION
[Headnote 1]
These are consolidated original proceedings for writs of habeas corpus. Each petitioner is a
President of a State Bank, and each challenges the legality of his arrest and restraint for the
failure of his bank to pay a Reno City business license fee. In each instance the challenge
rests mainly upon the ground that the ordinance as written is unconstitutional as applied to
banks since its language is so vague and indefinite as to violate due process.
1
Habeas is an
appropriate remedy to resolve this question. NRS 34.500(4) [authorizing discharge from
restraint when the process, though proper in form, has been issued in a case not allowed by
law]; In re Philipie, 82 Nev. 215, 414 P.2d 949 (1966) [holding that the constitutionality of a
city ordinance may be raised by habeas].
The relevant facts are undisputed. Sullivan is the President of the Valley Bank of Nevada,
and Laiolo is President of the Pioneer Citizens Bank of Nevada. Each bank was organized
under the laws of Nevada, has its principal place of business in the City of Reno, and each is
a state member bank under the Federal Reserve Act subject to control of Federal law and
the rules and regulations of the Board of Governors of the Federal Reserve System. As a
member of the Federal Reserve System, each bank also does business under the Federal
Deposit Insurance Corporation Act.
The business license section of the Reno Municipal Code, 4.01.360, regarding banks,
reads: Every person engaged in the banking business, except banks doing business under the
laws of the United States, shall pay for and obtain a license to carry on such business
according to the following schedule: (1) Those having a capitalization of less than
$500,000.00 shall pay for such license the sum of $240.00 per year; {2) Those having a
capitalization of $500,000.00 or over, and not exceeding $1,000,000.00, shall pay for
such license the sum of $360.00 per year; {3) Those whose capitalization exceeds
$1,000,000.00 shall pay for such license the sum of $4S0.00 per year."
____________________

1
Other points were pressed but need not be considered.
83 Nev. 186, 188 (1967) In re Laiolo
shall pay for such license the sum of $240.00 per year; (2) Those having a capitalization of
$500,000.00 or over, and not exceeding $1,000,000.00, shall pay for such license the sum of
$360.00 per year; (3) Those whose capitalization exceeds $1,000,000.00 shall pay for such
license the sum of $480.00 per year.
[Headnotes 2-4]
It is, of course, unlawful to carry on any business (unless exempt) without a license. Reno,
Nev. Municipal Code 4.01.020. The violator is subject to a fine of not less than $1 nor more
than $500 to imprisonment of not more than 6 months, or to both fine and imprisonment.
Each day's violation is a separate offense. Reno, Nev. Municipal Code 1.12.010. Since the
ordinance carries serious sanctions for disobedience, its terms must be sufficiently explicit to
inform those who are subject to it what conduct will render them liable to its penalties.
Connally v. General Construction Co., 269 U.S. 385 (1926). The requirement of clarity is
sometimes held to apply with special force to a licensing ordinance. Williams v. City of
Richmond, 14 S.E.2d 287 (Va. 1941). When governmental intention is in doubt the ordinance
must be strictly construed and the doubt resolved in favor of the party charged with violation.
Smith v. District Court, 75 Nev. 526, 347 P.2d 526 (1959); Ex parte Todd, 46 Nev. 214, 210
P. 131 (1922); Ex parte Smith, 33 Nev. 466, 111 P. 930 (1910). With these standards in mind
we turn to examine the provision under attack.
The petitioners each contend that the ordinance as applied to banks is constitutionally
infirm for uncertainty. They press the notion that one reading the phrase except banks doing
business under the laws of the United States, cannot ascertain whether those words embrace
only national banks chartered under federal law, or whether they also include state banks
which have elected to become members of the Federal Reserve System and, to that extent, are
doing business under the laws of the United States. Furthermore, they point out that the
standard for determining the amount of the license fee to be paid is vague and uncertain, since
the ordinance does not define capitalization.
[Headnote 5]
We are unable to refute the validity of the petitioners' arguments by resort to any
established rules of construction. It seems to us that the words of exception are susceptible to
either of the two interpretations suggested. The same difficulty inheres in the term
capitalization. Does it mean authorized capitalization," {cf.
83 Nev. 186, 189 (1967) In re Laiolo
capitalization, (cf. NRS 659.070(2)), or the declared and nominal capital, surplus and
undivided profits, cf. David v. Guaranty Bank and Trust Co., 102 So. 505 (La. 1925), or
paid up capital (NRS. 661.020)?
The words of Connally v. General Construction Co., supra, at 391 are apropos: And a
statute which either forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ as to its application,
violates the first essential of due process of law.
2
In our judgment 4.01.360 of the Reno
Municipal Code is unconstitutionally vague.
3
Therefore, each petition for habeas corpus is
granted.
____________________

2
See Void for Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960); and, Due Process
Requirements of Definiteness in Statutes, 62 Harv.L.Rev. 77 (1948).

3
It is apparent that the intended scope of the exception, as well as the meaning of the term capitalization,
may each easily be clarified by appropriate amendment.
____________
83 Nev. 189, 189 (1967) Hansen v. Edwards
DR. RICHARD E. HANSEN, Appellant, v. DR.
WILLIAM A. EDWARDS, Respondent.
No. 5309
April 21, 1967 426 P.2d 792
Appeal from order granting injunction enforcing a post-employment covenant. Second
Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Proceeding by employer against former employee for injunctive relief and damages based
upon breach of post-employment covenant. The trial court entered order granting injunction
enforcing covenant. The former employee appealed. The Supreme Court, Zenoff, J., held that
facts that podiatrist's post-employment covenant restricted practice of surgical chiropody by
former employee within radius of 100 miles of city, but did not mention time limitation and
that former employee opened office near podiatrist and acquired approximately 180
customers of podiatrist, warranted modification of injunction to restrain practice within
boundary of city for one year.
Affirmed as modified.
[Rehearing denied May 16, 1967]
Collins, J., dissented in part.
Bissett, Logar & Groves of Reno for Appellant.
Echeverria and Osborne, and John T. Coffin, of Reno, for Respondent.
1. Contracts.
An agreement of employee not to compete with his employer after termination of employment is in
restraint of trade and will not be enforced in accordance with its terms unless the same are reasonable.
2. Contracts.
Where public interest is not directly involved, test for determining validity of post-employment
restrictive covenant is whether it imposes upon employee any greater restraint than is reasonably
necessary to protect business and good will of employer.
3. Contracts.
A restraint of trade is unreasonable, in absence of statutory authorization or dominant social or
economic justification, if it is greater than is required for protection of person for whose benefit restraint
is imposed or imposes undue hardship upon person restricted.
4. Contracts.
The period of time during which restrictive covenant is to last and the territory that is included are
important factors to be considered in determining reasonableness of agreement.
5. Contracts.
The medical profession is not exempt from post-employment restrictive covenant provided covenant
meets test of reasonableness.
6. Contracts.
Public has an interest in seeing that competition is not unreasonably limited or restricted, but it also
has interest in protecting freedom of persons to contract, and in enforcing contractural rights and
obligations.
7. Contracts.
The substantial risk of employer's losing patients to former employee is of itself an adequate basis for
reasonably designed post-employment restrictive covenant.
8. Contracts.
Facts that podiatrist's post-employment covenant restricted practice of surgical chiropody by former
employee within radius of 100 miles of city, but did not mention time limitation and that former
employee opened office near podiatrist and acquired approximately 180 customers of podiatrist,
warranted confinement of area of restraint to practice within boundary of city and a time interval of one
year.
9. Injunction.
Preliminary injunction may be modified at any time whenever ends of justice require such action. NRS
2.110.
10. Labor Relations.
Statute making it a misdemeanor for employer to do anything to prevent former employee from obtaining
employment was not applicable to employees who intended self-employment. NRS 613.200.
OPINION
Dr. William Edwards, a practitioner of podiatry for many years in the Reno area,
commenced this action for injunctive relief and damages based upon a breach of a
post-employment covenant. The restriction was contained in an employment contract between
the two parties and basically provided that Hansen, the employee, was not to engage in the
practice of surgical chiropody within a radius of 100 miles of Reno on the termination of
employment. No time limitation on this restriction was mentioned. The agreement was
executed September 16, 1959, and was re-executed containing the same covenant on July 22,
1966.
After Hansen terminated the contract on September 12, 1966 he opened his own office for
the practice of podiatry near the office of Edwards. Edwards sought, and obtained after a
hearing, an order for a preliminary injunction restraining Hansen from practicing his
profession within a radius of 100 miles of Reno pending trial upon the merits of the case.
Hansen appeals from the order granting the preliminary injunction assigning as error that the
restrictive covenant was invalid as against public policy.
[Headnotes 1-4]
1. An agreement on the part of an employee not to compete with his employer after
termination of the employment is in restraint of trade and will not be enforced in accordance
with its terms unless the same are reasonable. Where the public interest is not directly
involved, the test usually stated for determining the validity of the covenant as written is
whether it imposes upon the employee any greater restraint than is reasonably necessary to
protect the business and good will of the employer. A restraint of trade is unreasonable, in the
absence of statutory authorization or dominant social or economic justification, if it is greater
than is required for the protection of the person for whose benefit the restraint is imposed
or imposes undue hardship upon the person restricted.
protection of the person for whose benefit the restraint is imposed or imposes undue hardship
upon the person restricted. The period of time during which the restraint is to last and the
territory that is included are important factors to be considered in determining the
reasonableness of the agreement. Weatherford Oil Tool Company v. Campbell, 340 S.W.2d
950 (Tex. 1960). Allright Auto Parks, Inc. v. Berry, 409 S.W.2d 361 (Tenn. 1966); State v.
Kelly, 408 S.W.2d 383 (Mo. 1966); Orkin Exterminating Company v. Burnett, 146 N.W.2d
320 (Iowa 1967); Meryl, Inc. v. Facherra, 274 N.Y.S.2d 188 (1966); Beneficial Finance Co.
of Lebanon v. Becker, 222 A.2d 873 (Pa. 1966); Spalding v. Southeastern Personnel of
Atlanta, Inc., 149 S.E.2d 794 (Ga. 1966); Baker v. Starkey, 144 N.W.2d 889 (Iowa 1966);
Engineering Associates, Inc. v. Pankow, 150 S.E.2d 56 (N.C. 1966); 31 Tenn.L.Rev. 450
(1963-64); 48 Iowa L.Rev. 159 (1963); 41 N.C.L.Rev. 253 (1962-63); 10 Kan.L.Rev. 86
(1961-62); 73 Harvard L.Rev. 625 (1959-60); 41 A.L.R.2d 1; 43 A.L.R.2d 91; 58 A.L.R. 153.
[Headnotes 5, 6]
The medical profession is not exempt from a restrictive covenant provided the covenant
meets the tests of reasonableness. Foltz v. Struxness, 215 P.2d 133 (Kan. 1950) (area of 100
miles for a period of ten years); Cogley Clinic v. Martini, 112 N.W.2d 678 (Iowa 1962) (25
mile radius for three years); Lovelace Clinic v. Murphy, 417 P.2d 450 (N.M. 1966) (county
limits and three years). The public has an interest in seeing that competition is not
unreasonably limited or restricted, but it also has an interest in protecting the freedom of
persons to contract, and in enforcing contractual rights and obligations. Lovelace, supra, pp.
453-454.
[Headnote 7]
The substantial risk of losing patients to an employee is itself an adequate basis for a
reasonably designed restraint. In the short time that Hansen opened his office after
terminating the employment contract he acquired approximately 180 of Edwards' customers.
Edwards should have the opportunity to recoup this loss and, in addition, to readjust his office
routine which had previously been geared to Hansen's association.
[Headnotes 8, 9]
2. It appears that the trial court by granting the injunction decided only that the covenant
was valid and reserved the question of reasonableness to the trial on merits.
the question of reasonableness to the trial on merits. However, a review of the record permits
the conclusion that nothing more can be added than is presently known that would affect a
determination of that question. The circumstances of this case warrant a confinement of the
area of restraint to the boundary limits of the City of Reno and a time interval of one year
commencing February 10, 1967, the date of the injunction. A preliminary injunction may be
modified at any time whenever the ends of justice require such action. In re Arkansas
Railroad Rates, 168 F. 720 (8 Cir. 1909). We deem the restriction thus modified to be
reasonable.
1

3. Hansen contends that NRS 613.200 is Nevada's legislative expression that restrictive
covenants are invalid. NRS 613.200 provides as follows:
Any person, association, company or corporation within this state, or any agent or officer
on behalf of such person, association, company or corporation, who shall willfully do
anything intended to prevent any person who shall have for any cause left or been discharged
from his or its employ from obtaining employment elsewhere in this state shall be guilty of a
misdemeanor, and upon conviction thereof shall be punished by a fine of not less than $50
nor more than $250, or by imprisonment in the county jail at the rate of 1 day for each $2 of
such fine if the fine is not paid.
[Headnote 10]
A few states have statutes specifically prohibiting restraints such as that with which we are
here concerned.
2
Those statutes do not compare with NRS 613.200. We are of the opinion
that our statute is not directed to this problem. It concerns only persons who seek employment
with someone else, not those who intend self-employment.
The order granting the injunction is affirmed as modified. Further proceedings relating to
damages may ensue without further direction from this court.
____________________

1
NRS 2.110. This court may reverse, affirm or modify the judgment or order appealed from * * *.

2
California, Business and Professions Code 16600: Except as provided in this chapter, every contract by
which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent
void. Also Ala. Code tit. 9, 22, 23 (1940); Mich.Comp.Laws 445.761, 445.766 (1948; S.D. Code
10.0706 (1939); Fla.Stat. 542.12 (1957); La.Rev.Stat. 23.921 (1950); N.D.Rev. Code 9-0806 (1943);
Okla.Stat. tit. 15, 217 (1951).
Collins, concurring in part, dissenting in part:
I concur with the majority that the trial court by granting the preliminary injunction
decided only that the covenant was valid and reserved the question of reasonableness to the
trial on the merits. However, I do not agree that a review of the record of the hearing
pertaining to the granting of the injunction now permits us to fix, as a matter of law, the
reasonableness of the restraint either as to time or space. This appeal is from the propriety of
the granting of the injunction, not a determination of the reasonableness of the covenant on
the merits of the entire controversy. Blinn v. Hutterische Soc. of Wolf Creek, 194 P. 140
(Mont. 1920).
We should decide, in my opinion, only that covenants in restraint of trade are not ipso
facto void in Nevada under our existing general principles of law. Therefore, the granting of
the preliminary injunction pending a determination on the merits was within the lower court's
discretion. Sutton v. Sutton, 110 S.E. 777 (N.C. 1922). NRS 613.200 does not apply to this
situation.
The reasonableness of the restraint as to time requires a further factual consideration in
this case which is not within our province to make initially. Solen v. V. & T. R.R. Co., 13
Nev. 106, 135 (1878). I feel the court is departing from its proper role in fixing at this state of
the proceedings the operative limits of time and space of the covenant in the contract.
The court is not just modifying the preliminary injunction pending trial on the merits, for
some reasonable, compelling purpose (Phenix v. Frampton, 29 Nev. 306, 319 (1907), but is
making a final adjudication of the matter, on both fact and law.
____________
83 Nev. 194, 194 (1967) Henry v. State
ALTON CLARENCE HENRY, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 5229
April 27, 1967 426 P.2d 791
Appeal from conviction for illegal possession of a hypodermic syringe and needle in
violation of NRS 453.125. Eighth Judicial District Court, Clark County; Clarence Sundean,
Judge.
The lower court rendered judgment, and defendant appealed. The Supreme Court held that
evidence sustained conviction, even though syringe and needle were found in purse of
defendant's companion, in view of evidence of joint use and possession.
83 Nev. 194, 195 (1967) Henry v. State
even though syringe and needle were found in purse of defendant's companion, in view of
evidence of joint use and possession.
Affirmed.
Dorsey & Harrington, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, District Attorney, and James D.
Santini, Deputy District Attorney, Clark County, for Respondent.
1. Poisons.
Evidence sustained conviction for illegal possession of hypodermic syringe and needle for purpose of
administering drugs, even though syringe and needle were found in purse of defendant's companion, in
view of evidence of joint use and possession. NRS 443.125.
2. Criminal Law.
Where there is substantial evidence to support verdict, reviewing court will not disturb verdict or set
aside judgment.
OPINION
Per Curiam:
The sole issue on appeal is whether the evidence was sufficient to sustain Henry's
conviction for the illegal possession of a hypodermic syringe and needle for the purpose of
administering subcutaneously habit-forming drugs to a human being in violation of NRS
453.125.
The defendant, Henry, contends that since the syringe and needle were found in his
companion's purse there was not substantial evidence to show his possession at the time of
his arrest.
The evidence shows that Henry and his girl friend lived together for a period of time at the
place of arrest. Law officers testified that they observed the couple administer drugs to each
other by means of a syringe and needle approximately two hours prior to the arrest. When the
officers under the authority of a search warrant entered the premises, Henry and the woman
were on the bed. The woman's purse containing the syringe and needle was on a table near the
bed.
[Headnotes 1, 2]
Such evidence substantiates the State's contention that Henry was in joint possession of the
syringe and needle when they were found by the officers. See Williams v. People, 315 P.2d
189 (Colo. 1957); People v. MacArthur, 271 P.2d 914 {Cal.
83 Nev. 194, 196 (1967) Henry v. State
(Cal. 1954); Gonzales v. People, 264 P.2d 508 (Colo. 1953); People v. Basco 264 P.2d 88
(Cal. 1953); State v. Chin Gim 47 Nev. 431, 224 P. 798 (1924). Where there is substantial
evidence to support a verdict in a criminal case, the reviewing court will not disturb the
verdict nor set aside the judgment. Terrano v. State, 59 Nev. 247, 91 P.2d 67 (1939).
1

Affirmed.
____________________

1
The cases of Terrano v. State, supra, and State v. Chin Gim, supra, have been overruled as to other legal
conclusions not in issue here. Whitley v. State, 79 Nev. 406, 386 P.2d 93, at Footnote 5 (1963).
____________
83 Nev. 196, 196 (1967) Glens Falls Ins. v. First Nat'l Bank
GLENS FALLS INSURANCE COMPANY, Appellant, v. FIRST
NATIONAL BANK OF NEVADA, Respondent.
No. 5204
May 1, 1967 427 P.2d 1
Appeal from the Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Motion by creditor for judgment against surety under bond posted in compliance with
requirement of ex parte order wrongfully obtained by defaulting debtor to restrain sale of
property securing debt. The trial court granted judgment against surety, and surety appealed.
The Supreme Court, Collins, J., held that creditors had not lost right to move for reasonable
damages by failure to move under rule for dissolution or modification of restraining order in
absence of unreasonable delay between ex parte issuance of order and dissolution by denial of
preliminary injunction, and that creditor was not obligated to proceed against debtor before
proceeding against surety but that interest during the period of restraint at the rate in the
promissory note secured by the property was not proper measure of damages.
Affirmed in part, and reversed and remanded in part.
Wait & Shamberger, of Reno, for Appellant.
Belford & Anglim, of Reno, for Respondent.
1. Injunction.
Refusal of trial court to grant preliminary injunction constituted determination that temporary
restraining order should be dissolved, thus entitling party who had been restrained to seek damages
against surety which had posted restraining order bond.
damages against surety which had posted restraining order bond. NRCP 65.
2. Injunction.
In absence of unconscionable or unreasonable delay between issuance of ex parte restraining order
and its dissolution by denial of preliminary injunction, failure of party restrained under ex parte order to
move under rule for dissolution or modification did not deprive party restrained of right to reasonable
damages proximately caused by restraining order. NRCP 65(b).
3. Injunction.
Amount of attorneys' fee awarded as damages to party wrongfully restrained by ex parte restraining
order was discretionary with trial court in proceedings on bond. NRCP 65(c).
4. Injunction.
Party seeking damages proximately caused by wrongful ex parte restraining order may move against
surety under restraining order bond without first proceeding against surety's principal. NRCP 65(c).
5. Injunction.
A motion is a proper procedure for party wrongfully restrained by ex parte restraining order to seek
judgment of damages against surety under restraining order bond. NRCP 65(c).
6. Injunction.
Interest during the period of restraint at the rate in the promissory note secured by property sale of
which had been wrongfully restrained by defaulting debtor was not proper measure of damages
proximately caused by restraining order and recoverable from surety. NRCP 65 (c).
7. Injunction.
Creditor is entitled to damages recoverable from surety, for defaulting debtor's wrongful restraint of
sale of property securing debt only if property is sold pursuant to notice of default and then only to extent
of reduction in value of securing property during period of restraint. NRCP 65(c).
OPINION
This appeal is from a judgment against appellant in the amount of $11,944.96 on a surety
bond. First National Bank of Nevada was temporarily restrained by MJB Investment
Company from selling certain real property of which it was beneficiary under a deed of trust.
Appellant posted a bond required by the restraining order in the amount of $1,000, which
later was increased to $15,000.
The order, based upon the allegations of MJB's complaint, issued January 12, 1966
without notice under NRCP 65, and restrained the sale until a hearing for a preliminary
injunction could be held on January 26, 1966.
could be held on January 26, 1966. On January 27, 1966 an order was entered denying
issuance of the preliminary injunction and dissolving the temporary restraining order
(although it was also dissolved by its own terms under the rule). Respondent's only effort
directed solely to the temporary restraining order was to move for an order increasing the
bond from $1,000 to $15,000, which was granted the same day it was issued. Between
January 12 and 26, 1966 respondent's counsel engaged in considerable legal activity,
including interviewing of witnesses, examination of law and documents, preparation of order
increasing security, preparation of requests for admissions, subpoenas, and orders dissolving
the temporary restraining order and denying preliminary injunction. During this period
respondent made no motion to modify or dissolve the temporary restraining order as
permitted under Rule 65(b).
1
Instead counsels' efforts were mainly directed toward defeat of
the issuance of a preliminary injunction. The efforts were successful, which in effect decided
the cause, and on February 25, 1966 the case was dismissed with prejudice on the merits. No
appeal has been taken from that order.
On March 1, 1966 respondent moved in the same action, for judgment against appellant,
as security, under NRCP 65(c). The amounts sought were interest, $6,888.96 (computed at
the rate in the promissory note secured by the deed of trust from January 12 to 28, 1966, the
period of restraint); attorneys' fees, $5,000; and court costs, $56, a total of $11,944.96. The
trial court granted leave for discovery incident to the motion and, upon notice to all parties, it
was heard June 30, 1966. Judgment as described above was entered July 14, 1966 for
respondent. At the hearing the only evidence presented was an affidavit of Morgan Anglim,
one of counsel for respondent, supporting the request for attorneys' fees and costs.
Appellant's appeal asserts error of the trial court contending that the evidence is not
sufficient to sustain the judgment, that the judgment is contrary to law and asks judgment in
its favor as a matter of law. We find error only in the trial court's use of interest at the contract
rate as the measure of damages and reverse as to that point. We sustain the other rulings.
____________________

1
* * * On 2 days' notice to the party who obtained the temporary restraining order without notice or on such
shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or
modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the
ends of justice require.
[Headnotes 1-3]
Refusal of the trial court to grant the preliminary injunction constituted a determination
that the temporary restraint should be dissolved, thus entitling respondent to seek damages
against appellant as security under the bond posted by it. Future Fashions, Inc. v. American
Security Co. of New York, 58 F.Supp. 36 (S.D.N.Y. 1944). While respondent had the right
under Rule 65(b) to move upon two days' notice or less to dissolve or modify the restraining
order, we are not prepared to say on this record it must do so or lose its right to move for
reasonable damages proximately caused by the restraining order. It is unnecessary to
compartmentalize the steps and events surrounding the issuance of a temporary restraining
order and effort to obtain a preliminary injunction as suggested by counsel for appellant. The
legal steps taken by counsel for respondent after being served with the restraining order can
no doubt be said to aid its prospective defense of the cause of action as well as an effort to
preclude issuance of the preliminary injunction, but the main thrust of the effort was to defeat
the restraining order. The record reveals that no unconscionable or unreasonable delay
occurred between the ex parte issuance of the restraining order and the determination that it
should be dissolved when the preliminary injunction was denied. The issues presented in the
complaint and restraining order were complex and preparation necessary to defend one,
unavoidably related to defense of the others. Circumstances different from those present in
this case may warrant a different rule, but we will consider that problem when presented to
us. This ruling also disposes of the contended error of the trial court in awarding respondent
attorneys' fees and costs. The amount of the attorneys' fee was discretionary with the trial
court. We find no abuse of discretion.
[Headnote 4]
Error is urged by the appellant that evidence was lacking of the occurrence of a condition
precedent to its liability on the bond and the damages, because respondent did not proceed
first against the principal MJB for payment. Such contention has been fully resolved against
the appellant's position by this court in Short v. Sinai, 50 Nev. 346, 259 P. 417 (1927). The
court said at page 350, quoting from McMillan v. Bull's Head Bank, 32 Ind. 11, 2 Am.Rep.
323:
[Headnote 5]
The surety is bound with his principal as an original promisor; he is a debtor from the
beginning, and must see that the debt is paid, and is held ordinarily to know every default
of his principal, and cannot protect himself by the mere indulgence of the creditor, nor by
want of notice of the default of the principal, however such indulgence or want of notice
may, in fact, injure him.
the debt is paid, and is held ordinarily to know every default of his principal, and cannot
protect himself by the mere indulgence of the creditor, nor by want of notice of the default of
the principal, however such indulgence or want of notice may, in fact, injure him. Being
bound with the principal, his obligation to pay is equally absolute. On the other hand, the
contract of a guarantor is his own separate contract; it is in the nature of a warranty by him
that the thing guaranteed to be done by the principal shall be done, not merely an engagement
jointly with the principal, to do the thing. A guarantor, not being a joint contractor with his
principal, is not bound to do what the principal has contracted to do, like a surety, but only to
answer for the consequences of the default of the principal. The original contract of the
principal is not his contract, and he is not bound to take notice of its nonperformance, and
therefore the creditor should give him notice; and it is universally held that, if the guarantor
can prove that he has suffered damage by the failure to give such notice, he will be discharged
to the extent of the damage thus sustained. It is not so with a surety.' Moreover the
proceeding was properly brought by respondent as a motion under Rule 65(c). 3 Bender's Fed.
Practice, pp. 651-2, and see Ringelberg v. United Journeymen, 73 Nev. 185, 314 P.2d 380
(1957).
[Headnote 6]
Finally, the matter must be remanded to the district court for proper determination of
damages, if any, proximately caused by the temporary restraining order wrongfully secured by
MJB Investment Company. The record fails to show the reasoning or theory of the trial court
in adopting the interest rate prescribed in the promissory note given by MJB Investment
Company to First National Bank of Nevada as the measure of damage. Appellant, as surety
under the restraining order bond, was no party to that contract, nor did its assurance run to the
performance of the contract. Furthermore, when the property is ultimately sold under the trust
deed or the default cured, the beneficiary would receive in either event its interest at the
contract rate. Thus if the measure of damages was interest, either at the contract or legal rate,
beneficiary would enjoy double recovery. Appellant's undertaking against loss, in the event
the restraint was improper, was only to damages and costs sustained or incurred by reason
of the restraining order.
[Headnote 7]
We hold, therefore, that if the property was sold pursuant to the notice of default the
proper measure of damages would be the reduction or diminution in the value of the
security during the period of restraint.
be the reduction or diminution in the value of the security during the period of restraint.
Fidelity & Deposit Co. v. Walker, 48 So. 600 (Ala. 1909). This requires a factual
determination by the trial court upon proper proof. McMillan v. United Mortgage Co., 82
Nev. 117, 412 P.2d 604 (1966). If the property was not sold, we fail to see where respondent
suffered any damages because its accruing interest at the contract rate, and the cost of
preserving and maintaining the property and expenses of the default proceedings may still be
recovered either upon the default being cured by payment or ultimately upon the trustee's sale.
Affirmed on all issues except the question of damages, concerning which the order of the
trial court is reversed and the matter remanded.
____________
83 Nev. 201, 201 (1967) City of Reno v. District Court
CITY OF RENO, Petitioner, v. SECOND JUDICIAL DISTRICT COURT, and JOSEPH
JAMES BARRETT and JOHN GEORGE BULLIS, Respondents.
No. 5225
May 3, 1967 427 P.2d 4
Original proceeding in certiorari.
Proceeding by municipality to review ruling by district court that municipal ordinance was
unconstitutional. The Supreme Court, Thompson, J., held that ordinance prohibiting persons
of evil reputation from consorting for an illegal purpose and permitting the inference of
illegal purpose from such consorting made status, instead of action, a crime and therefore was
unconstitutional denial of due process.
Proceeding dismissed and judgment below affirmed.
Clinton E. Wooster, of Reno, for Petitioner.
Samuel B. Francovich, of Reno, for Respondents.
C. G. Griswold and Jerry Carr Whitehead, of Reno, for Nevada Trial Lawyers and Nevada
Civil Liberties Union, amicus curiae.
Certiorari proceeding to review district court's determination that disorderly conduct ordinance was
unconstitutional was authorized. NRS 34.020, subd. 3.
2. Criminal Law.
The doing of an act and presence of criminal intent which are basic constituents of a crime cannot be
supplied by inference from the mere fact that the defendant has an evil reputation and is found consorting
with another of evil reputation. NRS 193.120, 208.070.
To punish for reputation does not square with constitutional safeguards of life, liberty and property.
4. Arrest.
A citizen's freedom may be temporarily interrupted by an officer to make some inquiries incident to a
legitimate investigation.
An ordinance proscribing the consorting of persons of evil reputation for an unlawful purpose and
permitting the inference of unlawful purpose from such consorting made status a crime and therefore was
unconstitutional denial of due process.
OPINION
The Reno, Nev., Municipal Code, 12-112-1, creates a crime called disorderly conduct
for which one may be punished by a fine not to exceed $500, by imprisonment not to exceed
6 months, or by both. The part of the ordinance with which this proceeding is concerned
prohibits persons of evil reputation from consorting for an unlawful purpose. A person of evil
reputation is defined as one who has been convicted of any felony, misdemeanor or gross
misdemeanor involving moral turpitude, or has the general reputation in the community as a
prostitute, panderer, narcotics user, burglar or thief. Proof that the accused bears an evil
reputation and is found consorting with any person of evil reputation is prima facie evidence
that such consorting was for an unlawful purpose.
[Headnote 1]
The district court declared the ordinance unconstitutional. The City has brought this
proceeding in certiorari to review that ruling. The proceeding is authorized. NRS 34.020(3).
1
The ordinance is reproduced in the footnote.2 Its constitutionality is challenged on the
premise that it fails to satisfy the demands of due process.
____________________

1
NRS 34.020(3) provides: In any case prosecuted for the violation of a statute or municipal ordinance
wherein an appeal has been taken from a justice's court or from a municipal court, and wherein the
The ordinance is reproduced in the footnote.
2
Its constitutionality is challenged on the
premise that it fails to satisfy the demands of due process. The main contention is that due
process is denied since the effect of the law is to make status a crime (as distinguished from
conduct or attempted action). We are referred to Robinson v. California, 370 U.S. 660 (1962)
[holding unconstitutional a statute which imposed criminal penalties for the condition of
being addicted to the use of narcotics]; Edwards v. California, 314 U.S. 160 (1941) [where, in
a concurring opinion, Justice Jackson wrote: Does indigence' as defined by the application
of the California statute constitute a basis for restricting the freedom of a citizen, as crime or
contagion warrant its restriction? We should say now, and in no uncertain terms, that a man's
mere property status, without more, cannot be used by a state to test, qualify, or limit his
rights as a citizen of the United States. Indigence' in itself is neither a source of rights or a
basis for denying them. The mere state of being without funds is a neutral
factconstitutionally an irrelevance, like race, creed, or color.]; Hicks v. District of
Columbia, 383 U.S. 252 (1966) [where Justice Douglas, dissenting from the dismissal of
certiorari as improvidently granted, expressed his view that the personal condition of being
a vagrant cannot constitutionally be made a crime]; Sherry, Vagrants, Rogues and
VagabondsOld Concepts in Need of Revision, 4S Calif.L.Rev. 557 {1960) [espousing the
theme that the crime of status should be held to deny due process of law]; 37
N.Y.U.L.Rev. 102 {1962); Foote, Vagrancy-Type Law and Its Administration, 104
U.Pa.L.Rev. 603 {1956).
____________________
district court has passed upon the constitutionality or validity of such statute or ordinance, the writ shall be
granted by the supreme court upon application of the state or municipality or defendant, for the purpose of
reviewing the constitutionality or validity of such statute or ordinance, but in no case shall the defendant be tried
again for the same offense.

2
A. Definition.
Evil reputation as used in this Ordinance shall be defined as follows:
a. Conviction of any felony; or
b. Conviction of any misdemeanor or gross misdemeanor involving moral turpitude; or
c. Having a general reputation in the community as a prostitute, panderer, narcotics user, burglar or thief.
B. Disorderly Conduct.
Any person who is engaged in any illegal occupation or who bears an evil reputation, who is found
consorting for an unlawful purpose with a person or persons who bear an evil reputation, thieves or criminals,
shall be guilty of the offense of disorderly conduct and upon conviction thereof shall be confined in the County
Jail for a period not to exceed six (6) months or fined not more than Five Hundred Dollars ($500.00), or both
such fine and imprisonment.
C. Prima Facie Evidence.
In any prosecution under this Ordinance, proof that the defendant is engaged in an illegal occupation or
bears an evil reputation and is found consorting with any person or persons of an evil reputation, thieves or
criminals, shall be prima facie evidence that such consorting was for an unlawful purpose.
view that the personal condition of being a vagrant cannot constitutionally be made a crime];
Sherry, Vagrants, Rogues and VagabondsOld Concepts in Need of Revision, 48
Calif.L.Rev. 557 (1960) [espousing the theme that the crime of status should be held to deny
due process of law]; 37 N.Y.U.L.Rev. 102 (1962); Foote, Vagrancy-Type Law and Its
Administration, 104 U.Pa.L.Rev. 603 (1956).
It is suggested that the rationale expressed in the cited authorities should control the
resolution of the enactment before us since its effect is to make criminal the mere state of
being an ex-convict, or of having an evil reputation.
Subordinately, the disorderly conduct ordinance is attacked on the ground that its language
is so vague and indefinite as to violate due process. It is submitted that the terms evil
reputation, general reputation, consorting, moral turpitude, unlawful purpose, are
unclear and uncertain for a valid penal law. In this regard the following authorities are
offered. Lanzetta v. New Jersey, 306 U.S. 451 (1939) [holding New Jersey's gangster act
unconstitutional on the ground of vagueness]; Connally v. General Construction Co., 269
U.S. 385 (1926) [where, inter alia, the court wrote: And a statute which either forbids or
requires the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application, violates the first essential of
due process of law.]; Edelman v. California, 344 U.S. 357, 362 (1953) Black, dissenting
[where the term dissolute person was, by Justice Black, found too vague and uncertain];
Musser v. Utah, 333 U.S. 95 (1948) [where the court hinted that the phrase injurious to
public morals might attempt to cover so much that it effectively covers nothing]; People v.
Belcastro, 190 N.E. 301 (Ill. 1934) [where the Illinois Vagabond Act was struck down]; cf. In
re Laiolo, 83 Nev. 186, 426 P.2d 726 (1967).
Finally, a constitutional challenge is aimed at subsection (c) of the ordinance which allows
proof that the defendant bears an evil reputation and is found consorting with any person of
evil reputation to be prima facie evidence that such consorting was for an unlawful
purpose. It is argued that proof of the mere association of persons of evil reputation bears no
rational connection to the fact presumedthat the association was for an unlawful
purposeand must be struck down on the authority of Tot v. United States, 319 U.S. 463
(1943); United States v. Romano, 382 U.S. 136 (1965); Carter v. State, 82 Nev. 246, 415
P.2d 325 (1966); People v. Licavoli, 250 N.W. 520 (Mich. 1933); Ex Parte Smith, 36 S.W.
62S {Mo.
S.W. 628 (Mo. 1896). It is suggested that the association of such persons does nor necessarily
point to an unlawful purpose; that the sub-paragraph is wholly incompatible with the
presumption of innocence, and with the burden cast upon the state to prove guilt beyond a
reasonable doubt. Contra: State v. Salerno, 142 A.2d 636 (N.J. 1958); People v. Pieri, 199
N.E. 495 (N.Y.Ct.App. 1936).
The district court relied upon each of the mentioned constitutional standards in striking
down the ordinance.
[Headnotes 2, 3]
The traditional concept of a crime contemplates action or the failure to act. Indeed, our
legislature defines a crime as an act or omission forbidden by law. NRS 193.120. An
attempt to commit a crime likewise requires the doing of an act accompanied by the requisite
intent. NRS 208.070. These basic constituents of a crime were ignored by the framers of the
disorderly conduct ordinance, since that offense is defined in terms of being rather than in
terms of acting. Punishment is prescribed for one's status, or personal condition. The
enactment does not demand the doing of an act or the presence of criminal intent in order to
punish for disobedience. These requisites are sought to be supplied by inference from the
mere fact that the defendant has an evil reputation and is found consorting with another who
bears the same burden. To punish for reputation offends one's sense of fundamental fairness
and does not square with the constitutional safeguards of life, liberty and property. State v.
Kartz, 13 R.I. 528 (1882).
The justification for such proscription must be found, if at all, within the police power of a
municipality to legislate for the public welfare and safety. The cases of People v. Pieri, 199
N.E. 495 (N.Y.Ct.App. 1936) and State v. Salerno, 142 A.2d 636 (N.J. 1958) may be read to
support this view, though in Salerno the court did not undertake to resolve the constitutional
challenge. In any event, it is apparent that the exercise of governmental power in this fashion
confronts the revered doctrine that one may not be deprived of his liberty or property without
due process of law. One force must yield to the other. Our role is to decide which has the
greater stature in the matter at hand.
The aim of the ordinance is to prevent crime. Armed with the authority which it bestows,
an officer may harass a reputed criminal, and, perhaps, force him to leave town. He may
arrest and jail on mere suspicion. He may round up individuals for interrogation, and
otherwise use its protections in any manner which his fancy may suggest.
manner which his fancy may suggest. It is questionable whether this so-called tool of crime
prevention is effective. Commentators have reported that it is not. The casual relation
between the assumption of a proscribed status and the propensity for future criminal conduct
has not been demonstrated. Foote, Vagrancy-Type Law and Its Administration, 104
U.Pa.L.Rev. 603, 625-627 (1956); Lacey, Vagrancy and Other Crimes of Personal Condition,
66 Harv.L.Rev. 1203, 1226 (1953); Note, Vagrancy Concept Reconsidered: Problems and
Abuses of Status Criminality, 37 N.Y.U.L.Rev. 102, 134 (1962).
[Headnotes 4, 5]
This type of law is not needed to grant an officer the right to stop persons and make some
inquiries incident to a legitimate investigation. A citizen's freedom may be temporarily
interrupted for that purpose. People v. Mickelson, 380 P.2d 658 (Cal. 1963); cf. People v.
Rivera, 201 N.E.2d 32 (N.Y.Ct.App. 1964) dealing with the New York stop and frisk
statute. The vice of the ordinance before us is that it allows the forceful detention of persons
belonging to the class described without any showing of probable causenot a mere
temporary interruption to answer questions. One possessing an evil reputation may be
arrested, booked, arraigned, put to the expense of bail and counsel, or, if indigent, he must
languish in jail awaiting trialall because of the officer's subjective, on the spot evaluation,
aided, of course, by the presumption that the defendant had some unlawful purpose in mind.
In our judgment the interests of a free society are not promoted by such an ordinance. We
share the view of the district court that the ordinance is unconstitutional on its face since its
effect is to make status a crime thereby violating due process. This proceeding is dismissed
and the judgment below is affirmed.
Our duty is clear that we must uphold the constitutionality of a statute (or ordinance of the
City of Reno in this case) if we can. To put it another way, if there is any doubt upon the
constitutionality of a law it ought to be sustained. State v. McClear, 11 Nev. 39, 68 (1876).
All statutes (and ordinances) come to this court clothed with a presumption of
constitutionality. We should not declare them unconstitutional unless we have no choice.
Here we have another choice.
A comparable ordinance was constitutionally upheld in People v. Pieri, 199 N.E. 495
(N.Y. 1936). A similar ordinance was discussed by the Supreme Court of New Jersey in State
v. Salerno, 142 A.2d 636 (N.J. 1958), which refused to pass upon the constitutionality of the
ordinance but reversed the conviction on other grounds.
The New York ordinance, discussed in Pieri, supra, reads in part:
Section 722: Any person who with intent to provoke a breach of the peace, or whereby a
breach of the peace may be occasioned, commits any of the following acts shall be deemed to
have committed the offense of disorderly conduct: * * *
Who bears an evil reputation and with an unlawful purpose consorts with thieves and
criminals * * * consorting with persons of like evil reputation, thieves or criminals shall be
prima facie evidence that such consorting was for an unlawful purpose.
Interpreting the elements of the crime necessary to be proved to sustain a conviction, the
court said in Pieri, supra, at page 497:
Here then is the crime. If a person of bad reputation, with intent to provoke a breach of
the peace, keeps company with criminals, makes them his associates, for an unlawful
purpose, he is guilty of disorderly conduct. Nothing unconstitutional about such a statute.
[Emphasis supplied.] There may be difficulty in finding the evidence or in proving the case,
but when proved, an offense is committed not unlike vagrancy,' which has been in the statute
books for many a day.
That is the touchstone of Reno's problem. One can envision great difficulty in securing
evidence and in getting it admitted at the trial, but we should let Reno try and not strike down
the ordinance before any experience is had with it. This court, the district court and the Reno
municipal court would still have the obligation to require the city attorney to comply with
constitutional requirements of due process in its enforcement.
The Reno City Council, in its wisdom, saw fit to adopt the measure in an effort to combat
crime attributable to persons of evil reputation. Thus, when a municipality such as Reno
undertakes to experiment with programs and techniques to deal with the problem, we should
not prevent that undertaking unless it is our clear, legal and constitutional duty to do so.
The United States Supreme Court has not seen fit yet to hold unconstitutional vagrancy
statutes, including the status question presented here. Hicks v. District of Columbia, 383
U.S. 252 {1966).
U.S. 252 (1966). Hence, in the absence of any decisive mandate from that court, we should
hold unconstitutional only those ordinances and statutes where we have no choice.
We must be extremely careful that our dedication to pure constitutional principal does not
destroy the very thing we are trying to protect. Society has to adjust to the rules of the game
being played, and if that game is ruthless, brutal crime, society has to have ingenious, but
lawful techniques to deal with it.
____________
83 Nev. 208, 208 (1967) Nevada Paving, Inc. v. Callahan
NEVADA PAVING, INC., and SIDNEY LEWIS CURTIS, Appellants, v. K. F.
CALLAHAN, Special Administrator of the Estate of Valentina Khochtaria, Deceased,
Respondent.
No. 5230
May 9, 1967 427 P.2d 383
Appeal from order denying motion to set aside appointment of special administrator; also
hearing of motion to dismiss appeal. Proceedings converted by the court to consider issues
submitted as petition for writ of certiorari to review the jurisdiction of the trial court to
appoint a special administrator. Second Judicial District Court, Washoe County; Thomas O.
Craven, Judge.
Estate proceedings wherein defendants in wrongful death action by county public
administrator who had been appointed special administrator moved to set aside the
appointment. The lower court denied the motion, and appeal was taken. The Supreme Court,
Zenoff, J., held that the order was not appealable and that right of action for wrongful death
was not asset of estate but was sufficient to justify appointment of special administrator, who
acts in capacity of personal representative for purpose of filing suit.
Writ denied.
Leslie A. Leggett, and Woodburn, Forman, Wedge, Blakey, Folsom & Hug, of Reno, for
Appellants.
Bradley & Drendel, of Reno, for Respondent.
1. Executors and Administrators.
Statute providing that there shall be no appeal from order appointing special administrator does not
conflict with statute allowing appeal to Supreme Court from order granting letters of administration; the
statute prohibiting appeal applies only to letters of special administration whereas statute permitting appeal
refers to letters of general administration. NRS 140.020, 155.190, subd. 1.
Letters of general administration are issued only after notice, opportunity to be heard, and resolution of a
possible contest.
Letters of special administration may be issued ex parte without notice and are in many instances
designed to cover emergency situations.
Order refusing to set aside appointment of county public administrator as special administrator was not
appealable, in view of statute providing that there shall be no appeal from order appointing a special
administrator. NRS 140.020.
Though order refusing to set aside appointment of county public administrator as special administrator
was not appealable, Supreme Court would treat the appeal as though it were an original proceeding in
certiorari to review whether the order had been entered in excess of jurisdiction of district court, since
merits of the appeal pointed directly to the jurisdictional question. NRS 140.020.
Right of action for wrongful death was not asset of decedent's estate but was sufficient to justify
appointment of special administrator who acts in capacity of personal representative for purpose of filing
suit.
7. Death.
Institution of action for wrongful death was not matter having to do with administration of decedent's
estate.
8. Death; Executors and Administrators.
Proceeds realized from cause of action for wrongful death do not become part of decedent's estate but are
held by administrator for benefit of persons entitled thereto.
9. Death.
Personal representative within wrongful death statute is broad enough to include a temporary, special,
or ancillary administrator or executor. NRS 12.090.
10. Death.
A wrongful death action does not belong to decedent's estate but belongs instead to survivors who suffer
loss by reason of death. NRS 12.090.
11. Death.
Special administrator did not lack authority to prosecute wrongful death action though order appointing
him contained no specific direction or authorization to bring the action. NRS 12.090.
OPINION
On June 8, 1965, Valentina Khochtaria died intestate following an accident in Reno
wherein he was struck by a pickup truck driven by Sidney Lewis Curtis, an employee of
Nevada Paving, Inc. The decedent left surviving a sister who lives in Tiflis, Georgia, U.S.S.R.
[Headnotes 1-5]
K. F. Callahan, the Public Administrator of Washoe County, was appointed special
administrator of the estate of the decedent by order of District Judge John E. Gabrielli on
June 24, 1966. He brought suit against Curtis and his employer. The defendants filed a
motion in the estate proceedings for an order vacating, annulling, and setting aside the
appointment of Callahan as special administrator. After a hearing the motion was denied,
from which denial the defendants have appealed. Callahan then filed a motion to dismiss this
appeal. His motion was based on the premise that the order refusing to set aside his
appointment as special administrator is not appealable. NRS 140.020 expressly states that
there shall be no appeal from an order appointing a special administrator, and Callahan
reasons that it follows that an order refusing to vacate the appointment of a special
administrator is likewise not appealable. In opposition to the motion Nevada Paving and
Curtis relied upon NRS 155.190 (1) which allows an appeal to this court from an order
granting letters of administration. It may appear that the mentioned statutes are in conflict.
However, we do not think so. We read NRS 155.190(1) to have reference to letters of general
administration and NRS 140.020 to apply only to letters of special administration and
therefore not in conflict with each other. It makes sense to so construe those statutes for
letters of general administration are issued only after notice, an opportunity to be heard and
the resolution of a possible contest. On the other hand, letters of special administration may
be issued ex parte without notice and are in many instances designed to cover emergent
situations. Realizing this it becomes apparent why the legislature thought it best to provide
for an appeal from an order granting letters of general administration but refused that
remedy from an order granting special letters.
appeal from an order granting letters of general administration but refused that remedy from
an order granting special letters. We hold, therefore, that the present appeal from an order
refusing to set aside the appointment of Callahan as special administrator is not an appealable
order, and grant the motion to dismiss this appeal. Since the merits of the appeal point
directly to the jurisdiction of the lower court we choose to resolve the issue and shall treat this
appeal as though it is an original proceeding in certiorari to review whether the order of the
district court was entered in excess of its jurisdiction.
It is claimed that the court, in appointing the special administrator, acted in excess of
jurisdiction. The issue centers upon whether or not an action for wrongful death is an asset of
a decedent's estate. Appellant's position is that such cause of action is not an asset, and that,
since there were no other assets in decedent's estate, the trial court had no jurisdiction to
appoint a special administrator.
[Headnotes 6-9]
1. We hold that the right of action is not an asset of the estate of the deceased.
Nevertheless it is sufficient to justify the appointment of an administrator who then acts in the
capacity of a personal representative for the purpose of filing a suit. The bringing of the
action is not a matter having to do with administration of the estate. The proceeds realized
from the cause of action do not become a part of decedent's estate but are held by the
administrator for the benefit of persons entitled thereto. In re Estate of Milliman, 415 P.2d
877 (Ariz. 1966); Dominguez v. Galindo, 264 P.2d 213 (Cal. Dist.Ct.App. 1953). The term,
personal representative, as used in wrongful death statutes is generally considered broad
enough to include a temporary, special or ancillary administrators or executors. Kyes v.
Pennsylvania R. Co., 109 N.E.2d 503 (Ohio 1952).
[Headnote 10]
Nevada's wrongful death statute, NRS 12.090, authorizes a wrongful death action to be
brought by the personal representative for the benefit of decedent's heirs.
1
This statute is
substantially the same as that of other states.
____________________

1
NRS 12.090: Heirs guardians, personal representatives may maintain action for death of adult. When the
death of a person not a minor is caused by the wrongful act or neglect of another, his heirs, or his personal
representatives for the benefit of his heirs, may maintain an action for damages against the person causing the
death, or, if such person be employed by another person who is responsible for his conduct, then also against
such other person. If such adult person
substantially the same as that of other states. Ruiz v. Santa Barbara Gas & Electric Co., 128
P. 330 (Cal. 1912). Dominguez v. Galindo, supra; In re Estate of Milliman, supra. A wrongful
death action does not belong to the decedent's estate but belongs instead to his survivors who
suffer a loss by reason of his death. We do not consider Troyer's Estate, 48 Nev. 72, 227 P.
1008 (1924), In re Dickerson's Estate, 51 Nev. 69, 268 P. 769 (1928), nor Forrester v.
Southern Pacific Co., 36 Nev. 247, 134 P. 753 (1913), to be contrary to this view. For
purposes of clarity, however, the ruling of this case expressly supplants any inconsistency
reflected in those opinions. (See Hesler v. Snyder, 422 P.2d 432 (Okla. 1967).
It seems incongruous to say that if a decedent's estate consists of but one dollar thus
requiring probate, his administrator can bring a wrongful death action, but if he leaves no
estate only the heirs may do so. Surely this would place form before substance. We do not
believe the legislature intended such result in the enactment of NRS 12.090.
[Headnote 11]
2. Another issue on appeal is concerned with the order appointing the special
administrator. That order did not specifically direct or authorize the special administrator to
bring the wrongful death action. Absent that directive, appellants assert that the administrator
did not have authority to sue. The omission in the order was inconsequential. The petition
supporting the request for special administrator prayed that the appointment be made to
prosecute any action or claim for the death of Khochtaria. Further, the statute providing for
the appointment of a special administrator (NRS 140.040(2)) allows the special administrator
to commence, maintain or defend suits and other legal proceedings.
2
Writ of certiorari
denied.
____________________
have a guardian at the time of his death, only one action can be maintained for the injury to or death of such
person, and such action may be brought by either the personal representatives of such adult person deceased for
the benefit of his heirs, or by such guardian for the benefit of his heirs.

2
NRS 140.040(2): The special administrator may:
(a) For any and all necessary purposes, commence, maintain or defend suits and other legal proceedings as
an administrator.
(b) Sell such perishable estate as the district court may order to be sold.
(c) Exercise such other powers as may have been conferred upon him by the appointment.
(d) Obtain leave to borrow money or to lease or mortgage or execute a deed of trust upon real property in
the same manner as a general administrator.
Writ of certiorari denied.
Collins, J., concurs.
The necessary consequence of the opinion in today's case is to erase the precondition that
an estate exist before special letters of administration may issue. A cause of action for
wrongful death is not an estate subject to administration. Troyer's Estate, 48 Nev. 72, 227
P. 1008 (1924). An estate must exist before administration is justified. In re Dickerson's
Estate, 51 Nev. 69, 268 P. 769 (1928). The recovery in a wrongful death case is for the heirs
of the decedent who sustained a compensable loss by reason of his death. Estes v. Riggins, 68
Nev. 336, 232 P.2d 843 (1951); See also: Nordyke v. Pastrell, 54 Nev. 98, 7 P.2d 598 (1932);
Wells, Inc. v. Shoemake, 64 Nev. 57, 177 P.2d 451 (1947); Jefferson v. Joiner, 75 Nev. 207,
337 P.2d 622 (1962); Bower v. Landa, 78 Nev. 246, 371 P.2d 657 (1963); Porter v.
Funkhouser, 79 Nev. 273, 382 P.2d 216 (1963); Barney v. Clark County, 80 Nev. 104, 389
P.2d 392 (1964). The recovery is not subject to administration in the estate proceeding.
The mere fact that NRS 12.090 allows an action for the wrongful death of an adult to be
commenced by his heirs, or his personal representative for the benefit of his heirs, does not
answer the issue presented. I cannot read those words to carry authority to the probate court to
appoint an administrator in the absence of an estate to administer. Rather, those words grant
an alternative method for instituting suit when the decedent leaves an estate and a personal
representative has been appointed. In such case either the heirs or the personal representative
of the deceased may commence suit. When no estate is left, only the heirs may maintain the
action.
This construction of NRS 12.090 is in harmony with NRS 140.010 providing for the
appointment of a special administrator. A portion of that statute reads: The district judge
shall appoint a special administrator to collect and take charge of the estate of the deceased,
in whatever county or counties the same may be found, and to exercise such other powers as
may be necessary to preserve the estate. Apparently the existence of an estate is a
precondition to letters if the quoted words are to be given meaning.
Two California cases support the majority opinion. Ruiz v. Santa Barbara Gas & Electric
Co., 128 P. 330 (Cal. 1912); Dominguez v. Galindo, 264 P.2d 213 (Cal.App. 1953). I doubt
that the other citations of authority are supportive. In re Estate of Milliman, 415 P.2d S77
{Ariz.
re Estate of Milliman, 415 P.2d 877 (Ariz. 1966) involved general letters of administration,
and I assume that there existed an estate to be administered, though one cannot determine this
from the opinion. Hesler v. Snyder, 422 P.2d 432 (Okla. 1967) concerned the authority of a
foreign administratrix to maintain the action, and involves considerations not presented in
this case. All other authorities cited by the majority opinion and some not there cited, but
found in the respondent's brief, are inapposite since they involve statutes restricting the
prosecution of the cause of action to the personal representative alone. I refer to the
following: In re Waits Estate, 146 P.2d 5 (Cal. 1944) involving the Federal Employers
Liability Act; Hutchins v. St. Paul, 46 N.W. 79 (Minn. 1890); Findlay v. Chicago, 64 N.W.
732 (Mich. 1895); Bradley v. Missouri, 71 N.W. 282 (Neb. 1897); Missouri v. Lewis, 40
N.W. 401 (Neb. 1888); Richards v. Riverside Ironworks, 49 S.E. 437 (W.Va. 1904); Berry v.
Rutland, 154 A. 671 (Vt. 1931); St. Louis v. Smitha, 190 S.W. 237 (Tex. 1916). None dealt
with an alternative type statute such as NRS 12.090.
The majority opinion overrules the intendment of Troyer's Estate, supra, In re Dickerson's
Estate, supra, and places a strained construction upon NRS 12.090 and NRS 140.010 when
read together. Full meaning can be accorded each statute without doing violence to either. We
should construe them to accomplish that end.
____________
83 Nev. 214, 214 (1967) Parker v. Municipal Judge
FRANK PARKER, Petitioner, v. MUNICIPAL JUDGE
OF THE CITY OF LAS VEGAS, Respondent.
No. 5213
HENRY DENNIS STAMPS, Petitioner, v. MUNICIPAL
JUDGE OF THE CITY OF LAS VEGAS, Respondent.
No. 5261
May 15, 1967 427 P.2d 642
Consolidated original proceedings in prohibition.
Proceedings against the municipal judge by petitioners who had been tried and found
guilty in municipal court under disorderly persons ordinance. The Supreme Court,
Thompson, C. J., held that the ordinance making it a misdemeanor for one with physical
ability to work and no visible means of support to be in a public place makes status of
poverty a crime and therefore is unconstitutional denial of due process.
for one with physical ability to work and no visible means of support to be in a public place
makes status of poverty a crime and therefore is unconstitutional denial of due process.
Writs heretofore issued made permanent.
Charles L. Kellar, of Las Vegas, for Petitioners Frank Parker and Henry Dennis Stamps.
Sidney R. Whitmore, City Attorney, Las Vegas, and James M. Bartley, Assistant City
Attorney, for Respondent.
Constitutional Law.
Ordinance making it a misdemeanor for one with physical ability to work and no visible means of
support to be in a public place makes status of poverty a crime and therefore is unconstitutional denial of
due process.
OPINION
These are consolidated proceedings in prohibition to test the constitutionality of the
disorderly persons ordinance of the City of Las Vegas. Each petitioner was charged with
being a disorderly person in that he had the physical ability to work, no visible means of
support, and was in a public place.
1
Each was tried before the Municipal Court and found
guilty. Neither has been sentenced because these proceedings intervened. The Municipal
Court is not a court of record. Therefore, we must assume that the charges were proven true,
i.e., that each petitioner, at the time specified, had the ability to work, was without visible
means of support, and was found in a public place. Thus, our concern is whether that part of
the ordinance under which they were charged is unconstitutional on its face. It is our
judgment that it is unconstitutional since its effect is to make the status of poverty a crime
thereby violating due process.
____________________

1
Title VI, Ch. 1, 11, Las Vegas City Code. Disorderly Persons: Persons within the Limits of the City who
have the physical ability to work, not having visible means of support, living idly, or who are found loitering or
loafing about the streets, alleys or public places of the City, or who are found loafing or loitering habitually in or
about the dramshops, tippling houses, saloons, barrooms, roadhouses, night clubs, gambling houses or places
resorted to by persons for purposes of prostitution or immoral purposes, shall be deemed disorderly persons and
shall be guilty of a misdemeanor.
thereby violating due process. City of Reno v. District Court, 83 Nev. 201, 427 P.2d 4 (1967)
[where we held unconstitutional a municipal ordinance prohibiting persons of evil reputation
from consorting for an unlawful purpose]; Robinson v. California, 370 U.S. 660 (1962)
[holding unconstitutional a statute which imposed criminal penalties for the condition of
being addicted to the use of narcotics]; Hicks v. District of Columbia, 383 U.S. 252 (1966)
[where Justice Douglas, dissenting from the dismissal of certiorari as improvidently granted,
expressed his view that the personal condition of being a vagrant cannot constitutionally be
made a crime].
We approve, without qualification, the comment of Justice Jackson in his concurring
opinion in Edwards v. California, 314 U.S. 160, 184, 185 (1941): We should say now, and
in no uncertain terms, that a man's mere property status, without more, cannot be used by a
State to test, qualify, or limit his rights as a citizen of the United States. Indigence' in itself is
neither a source of rights or a basis for denying them. The mere state of being without funds
is a neutral factconstitutionally an irrelevance, like race, creed, or color. Writers upon the
subject condemn this type of ordinance as inimical to our fundamental notions of freedom,
and hostile to the idea that every person has value. Foote, Vagrancy-Type Law and Its
Administration, 104 U.Pa.L.Rev. 603 (1956); Sherry, Vagrants, Rogues and VagabondsOld
Concepts in Need of Revision, 48 Cal.L.Rev. 557 (1960); Douglas, Vagrancy and Arrest on
Suspicion, 70 Yale L.J. 1 (1960); Comment, 37 N.Y.U.L.Rev. 102 (1962). We likewise
condemn it.
Our reasons for voiding a law which makes status, rather than conduct, a crime are fully
articulated in City of Reno v. District Court, supra, and need not again be expressed. We do,
however, add one further comment. The ordinance before us, unlike that involved in the City
of Reno v. District Court case, does not attempt to interject, by way of presumption, an
unlawful purpose, to justify its validity. Of course, in our view, such addition would not
save the ordinance from constitutional challenge. We note this distinction only to point out
that this ordinance cannot meet constitutional standards under any analysis. It simply is not a
crime to be unemployed, without funds, and in a public place. To punish the unfortunate for
this circumstance debases society. The comment of Justice Douglas is relevant: How can we
hold our heads high and still confuse with crime the need for welfare or the need for work?
Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L.J. 1, 12 (1960).
Finally, we reject the thought that over the years the use and application of this type of law
will somehow average out to be a worthwhile tool in the administration of justice.
[A]verages in the administration of justice do not avail the person who is wronged
grievously in his own, particular case. The appeal to time and patience may assist in evolving
better concepts and techniques for future use of the profession, but it cannot excuse or
exonerate our sending an innocent man to the penitentiary here and now. Enlightenment
tomorrow or elsewhere will not serve, for his destiny rests in our hands today, and our sense
of injustice . . . forbids us to be patient at his cost. Cahn, The Consumers of Injustice, 34
N.Y.U.L. Rev. 1166, 1176 (1959). See also: City of Seattle v. Drew 423 P.2d 522 (Wash.
1967); Territory of Hawaii v. Anduha, 48 F.2d 171 (9 Cir. 1931); Shuttlesworth v. City of
Birmingham, 382 U.S. 87 (1965).
The peremptory writ of prohibition heretofore issued in each case is made permanent.
The court rules unconstitutional the Las Vegas vagrancy ordinance because it makes a
crime of status. In other words, society is not punishing an overt act coupled with intent,
classically the elements of a crime, but the status or being of a person at a given time, such
as indigency, addiction to narcotics or alcohol, being a tramp or bum or idle or dissolute
person.
The ordinance is declared unconstitutional on the authority of City of Reno v. District
Court, 83 Nev. 201, 427 P.2d 4 (1967) (to which I dissented, and in which dissent I persist);
Robinson v. California, 370 U.S. 660 (1962); and the dissenting opinion of Justice Douglas in
Hicks v. District of Columbia, 383 U.S. 252 (1966).
But the fact remains the United States Supreme Court has refused so far to declare the true
vagrancy type of statutes dealing with status unconstitutional. Edelman v. California, 344
U.S. 357 (1953); Hicks v. District of Columbia, 383 U.S. 252 (1966).
The main attack on the constitutionality of vagrancy statutes comes from legal writers
rather than the courts. One cannot escape the conclusion that the administration of
vagrancy-type laws serves as an escape hatch to avoid the rigidity imposed by real or
imagined defects in criminal law and procedure. * * * If it is necessary to ease the
prosecution's burden of proof or to legalize arrests for mere suspicion, then the grave policy
and constitutional problems posed by such suggestions should be faced."
the grave policy and constitutional problems posed by such suggestions should be faced.
Foote, Vagrancy-Type Law and Its Administration 104 U.Pa.L.Rev. 603, 649 (1956). They
[vagrancy laws] reflect a disregard for basic and essential elements of effective criminal
theory in that the vagrancy concept replaces actual causation of criminal harm with suspicion
causation' and substitutes status for the traditional requirement of conduct. The necessarily
vague cast of these statutes, furthermore, gives rise to serious doubt as to their constitutional
validityboth on their face and as enforced. Dubin and Robinson, The Vagrancy Concept
Reconsidered, 37 N.Y.U.L.Rev. 102, 104 (1962). There is little dissent from the conclusion
that the vagrancy law is archaic in concept, quaint in phraseology, a symbol of injustice to
many and very largely at variance with prevailing standards of constitutionality. Sherry,
Vagrants, Rogues and VagabondsOld Concepts in Need of Revision, 48 Cal.L.Rev. 557,
566 (1960).
Courts on the other hand have generally upheld the constitutionality of the vagrancy-type
statutes. In re Cregler, 363 P.2d 305 (Cal. 1961); State v. Starr, 113 P.2d 356 (Ariz. 1941);
People v. Bell, 115 N.E.2d 821 (N.Y. 1953); State v. Harlowe, 24 P.2d 601 (Wash. 1933);
Levine v. State, 166 A. 300 (N.J.Ct.Err. & App. 1933); Dominguez v. City and County of
Denver, 363 P.2d 661 (Colo. 1961); City of Portland v. Goodwin, 210 P.2d 577, rehearing
denied 210 P.2d 586 (Ore. 1949); Taft v. Shaw, 225 S.W. 457 (Mo. 1920). Contra: Lanzetta
v. New Jersey, 306 U.S. 451 (1939). Vagrancy laws have for their purpose a salutary object.
They give the police a weapon to be used for the prevention of crime. They [vagrancy laws]
are designed to prevent crime and if the officer must wait until a crime is committed, the
preventive purposes of the statute wholly fail. Beail v. District of Columbia, 82 A.2d 765,
767; reversed on other grounds, 201 F.2d 176 (D.C. Cir. 1952). No doubt the purpose of the
lawmakers * * * was to eliminate the tendency to commit crime which such condition
fosters. Lucas v. State, 238 P. 502 (Okla. 1925). Prevention, within the area of criminal law,
is greatly undeveloped. The doctrine is widely practiced and constantly undergoing
development in business and medicine, but unfortunately not within the law. It is undoubtedly
the key to successful handling or juvenile offenders, but because of a traditional concept that
only an act accompanied by wrongful intent is punishable, criminal law has lagged far
behind.
criminal law has lagged far behind. Perhaps, other than a feeble effort within the vagrancy
field, the only other area of criminal law dealing with prevention of crime is the peace bond.
There, following usual criminal procedure, a person is placed under bond to prevent or
restrain commission of another crime, usually assault and battery. It is important, if
constitutionally permissible, to sanction a statute whereby crime can be prevented.
The problem is not so much with vagrancy statutes themselves, but in the manner in which
they are enforced. Rather, the vagrancy laws, vaguely phrased, requiring no showing of
specific criminal conduct for conviction, and under which arrest without a warrant is
generally permitted, have provided the police with an effective tool for circumventing the
real or imagined defects in criminal law and procedure.' Dubin and Robinson, The
Vagrancy Concept Reconsidered, supra, 129. Because vagrancy laws are for the most part
misdemeanors, enforced mainly against the poor, the uneducated, the sodden and the weak,
seldom is there substantial and broad review of convictions on appeal. The answer to those
problems, however, lies not with the law, but in upgrading the quality of misdemeanor courts,
judges and police forces.
The main constitutional attack on vagrancy laws is that they can be construed as crimes of
status rather than conduct, 37 N.Y.L.Rev. 114, 115 (1962), arising out of idleness or
indigency, Edwards v. California, 314 U.S. 160 (1941). In Edwards, Mr. Justice Jackson said,
Indigence' in itself is neither a source of rights nor a basis for denying them. The mere state
of being without funds is a neutral factconstitutionally an irrelevance, like race, creed, or
color. But, if the idleness and resulting indigency are purposefully brought about by a
person, rather than resulting from some factor over which he has no control, are we not
encouraging by law intentional idleness, a condition which will soon sap the strength of our
nation and contribute to its downfall? Under the guise of glorifying personal liberty as the
paramount object of our constitution, are we not encouraging idleness and clothing it with
acceptability and respectability?
But without great difficulty vagrancy statutes can be rewritten, making clear that conduct,
not status, is the crime. See Sherry, Vagrants, Rogues and VagabondsOld Concepts in
Need of Revision, supra, pp. 569 to 572. The 1967 Nevada legislature took a large step in this
direction in revising the substantive criminal law of Nevada. Vagrancy was completely
redefined in Chapter 211, Stats.
redefined in Chapter 211, Stats. Nev. 1967, p. 458,
1
which amended NRS 207.030. The clear
purport of the amendment is to make certain defined acts the crime rather than status.
Furthermore, the charter of the City of Las Vegas was revised by the same legislature
requiring the city to modify its vagrancy ordinance to conform substantially to the statutory
definition of vagrancy quoted above. Chapter 526, Stats. Nev. 1967.
____________________

1
Every person is a vagrant who:
(a) Solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any
place open to the public or exposed to public view;
(b) Solicits any act of prostitution;
(c) Is a pimp, panderer or procurer or lives in or about houses of prostitution;
(d) Accosts other persons in any public place or in any place open to the public for the purpose of begging
or soliciting alms;
(e) Goes from house to house begging food, money or other articles, or seeks admission to such houses
upon frivolous pretexts for no other apparent motive than to see who may be therein, or to gain an insight of the
premises;
(f) Keeps a place where lost or stolen property is concealed;
(g) Loiters in or about any toilet open to the public for the purpose of engaging in or soliciting any lewd or
lascivious or any unlawful act;
(h) Loiters or wanders upon the streets or from place to place without apparent reason or business and who
refuses to identify himself and to account for his presence when requested by any peace officer so to do, if the
surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such
identification;
(i) Is found in any public place under the influence of intoxicating liquor; or any drug, or the combined
influence of intoxicating liquor and any drug, in such a condition that he is unable to exercise care for his own
safety or the safety of others, or by reason of his being under the influence of intoxicating liquor, or any drug, or
the combined influence of intoxicating liquor and any drug, interferes with or obstructs or prevents the free use
of any street, sidewalk or other public way;
(j) Loiters, prowls or wanders upon the private property of another, in the nighttime, without visible or
lawful business with the owner or occupant thereof, or who, while loitering, prowling or wandering upon the
private property of another, in the nighttime, peeks in the door or window of any inhabited building or structure
located thereon, without visible or lawful business with the owner or occupant thereof; or
(k) Lodges in any building, structure or place, whether public or private, without the permission of the
owner or person entitled to the possession or in control thereof.
2. Every vagrant is guilty of a misdemeanor.
____________
83 Nev. 221, 221 (1967) State ex rel. Dep't Hwys. v. LoBue
THE STATE OF NEVADA, on Relation of Its Department of
Highways, Appellant, v. MARY LoBUE, Respondent.
No. 5228
May 18, 1967 427 P.2d 639
Appeal from judgment of the Eighth Judicial District Court, Clark County; George E.
Marshall, Judge.
Condemnation case. From an award entered by the lower court the state appealed. The
Supreme Court, Thompson, C. J., held that where grantor by unconditional grant deed
conveyed to county, which made an unconditional acceptance, and where the underlying
consideration, given sincerely and innocently in the belief that it would be fulfilled, failed,
grantor could not sue in equity to cancel deed but was left only to an action at law for
damages.
Judgment reversed and cause remanded.
[Rehearing denied June 29, 1967]
Harvey Dickerson, Attorney General, Carson City, and Melvin L. Beauchamp, Deputy
Attorney General, for Appellant.
Foley Brothers, of Las Vegas, and Cooper and Nelsen of Los Angeles, California, for
Respondent.
1. Counties.
Evidence in condemnation case sustained findings that grantor was induced to execute deed to county
because of representations by authorized agents of county that her remaining property would be benefited
by having 2900 feet of additional frontage along the roads to be constructed by the county, that
representations were sincerely and innocently made in the belief that they would be fulfilled, that county
did not build roads, that consideration for conveyance failed and that grantor did not intend gift or a
dedication of the land for public use.
2. Deeds.
Mere statement of use to which land conveyed is to be devoted, and in consideration of which
conveyance is made, does not subject estate transferred to a condition subsequent. NRS 111.170.
3. Cancellation of Instruments.
Failure of consideration for unconditional grant deed, without more, does not justify equitable relief, and
grantor's remedy when bargained for consideration fails is an action at law for damages.
4. Deeds.
Conveyance in consideration of promise to support grantor is treated differently than an ordinary
commercial conveyance.
5. Cancellation of Instruments.
Where grantor by unconditional grant deed conveyed to county, which made an unconditional
acceptance, and where underlying consideration, given sincerely and innocently in the belief that it would
be fulfilled, failed, grantor could not sue in equity to cancel deed but was left only to an action at law for
damages.
OPINION
This is a condemnation case commenced by the State against Mary LoBue to acquire two
separate parcels of land (5.19 acres) in Clark County for interstate highway purposes.
Sometime before trial the parties, through counsel, stipulated that the ownership of another
parcel of land (3.80 acres) to which the State held record title adverse to LoBue's claim of
ownership, could be decided by the Court in this litigation.
1
It was understood that if the
court found for LoBue the scope of the condemnation case would be enlarged to embrace all
of the land, that is 8.99 acres, and the cause then tried to a jury to find just compensation and
assess severance damages. On the other hand, should the court rule for the State, the disputed
parcel would not be included in the condemnation jury trial. The case thus became a
bifurcated affairthe first dispute, an equitable proceeding, to be resolved by the court; and
the second, the condemnation case, to be decided by a jury.
The district court ruled that LoBue was the owner of the disputed land, and, in effect,
cancelled the deeds through which the State had acquired title. Consequently all three parcels
totalling 8.99 acres were included in the jury trial which followed. The jury awarded LoBue
$548,525 as just compensation for the property taken; $108,205 severance damages; and
found that the remainder of some of her property was benefited by the highway to the extent
of $5,000. A judgment for $651,730 with interest then accrued of $127,567.40 was duly
entered. This appeal by the State ensued.
The main claim of error is addressed to the court's finding that LoBue was the owner of the
disputed acreage to which the State held record title. Since the jury returned a lump sum
verdict for all of the property condemned {$54S,525) without assessing compensation for
each parcel separately, and as the failure to segregate by parcel likewise affects the lump
sum severance damages awarded, this assigned error, if sustained, requires a reversal of
the entire case.
____________________

1
On March 4, 1957 LoBue, by grant deed had conveyed the disputed acreage to Clark County. On September
6, 1962 the County, by quitclaim deed, conveyed its title to the State. The stipulation provided, inter alia, that
Clark County need not be joined as a party to the litigation and that LoBue could assert against the State all
rights and remedies that she may have had against Clark County.
verdict for all of the property condemned ($548,525) without assessing compensation for
each parcel separately, and as the failure to segregate by parcel likewise affects the lump sum
severance damages awarded, this assigned error, if sustained, requires a reversal of the entire
case. It is our opinion that the ruling below vesting ownership of the disputed parcel in
LoBue, thus subjecting that parcel to the condemnation suit, was clearly erroneous. Therefore,
we reverse and remand for another trial to determine just compensation, severance damages,
and benefits, if any, due to the State's condemnation of the two parcels totalling 5.19 acres.
The disputed parcel (3.80 acres) is removed from this litigation and the State's title thereto
confirmed.
[Headnote 1]
On March 4, 1957 LoBue, by grant deed, conveyed the disputed parcel (3.80 acres) to
Clark County. The County Commissioners, by resolution, accepted the conveyance
unconditionally and recorded the deed. On September 6, 1962 Clark County conveyed its title
to the State. The trial court made the following relevant findings: That LoBue was induced to
execute the deed to the County because of representations by authorized agents of the County
that her remaining property would be benefited by having 2900 feet of additional frontage
along the roads to be constructed by the County; that the representations were sincerely and
innocently made by the County agents in the belief that they would be fulfilled; that the
County did not build the roads; that the consideration for the conveyance failed; and that
LoBue, as grantor, did not intend a gift or a dedication of the land for public use. As we read
the record each finding is supported by substantial evidence.
[Headnote 2]
We turn first to examine the grant deed. It is unconditional in form. The words used are:
* * * the undersigned grantor does hereby grant, bargain, sell and convey to Clark County,
Nevada, for street and road purposes, all of the following described land * * *. Those words
do not provide for termination of the estate conveyed upon the occurrence or nonoccurrence
of a specified event. It is well settled that a mere statement of the use to which the land
conveyed is to be devoted, and in consideration of which the conveyance is made, does not
subject the estate transferred to a condition subsequent. I Rest. Prop. Sec. 45, p. 143; 3
Powell, Real Property, p. 143; Greene v. O'Connor, 25 A. 692 (R.I. 1892); Fuchs v.
Reorganized School Dist., 251 S.W.2d 677 (Mo. 1952); Gramer v. City of Sacramento, 41
P.2d 543 (Cal. 1935); Booth v. Los Angeles County, 12 P.2d 72 {Cal.App.
Booth v. Los Angeles County, 12 P.2d 72 (Cal.App. 1932); See also NRS 111.170 [where it
is provided that the words grant, bargain and sell are used to convey an estate in fee simple
unless restrained by express terms contained in the deed]. Additionally, we note that the deed
does not provide for reverter to or re-entry by the grantor.
The acceptance of the deed by the County was likewise unconditional. [Cf. State ex rel.
Dep't of Hwys. v. Wells Cargo Inc., 82 Nev. 82, 411 P.2d 120 (1966) where Clark County
accepted a grant deed from Wells subject to a conditionthe right of Wells to encroach upon
the property conveyed where Wells' weighing installations were locatedand the Court held
that Wells had retained an easement which was compensable in an eminent domain
proceeding.] Thus, an absolute, unconditional transfer of title occurred when LoBue made
and delivered her grant deed to Clark County.
The consideration for that conveyance failed. Clark County did not construct the roads.
That failure, however, was not accompanied by fraud or bad faith on the part of the County.
The County acted in good faith in making its representations. Apparently it did not complete
the road project because the State's proposed highway plan rendered the County project
unnecessary.
[Headnote 3]
The State's claim of error centers on the proposition that failure of consideration for an
unconditional grant deed, without more, does not justify equitable relief. Fraud in the
inception of the transaction, or some kindred circumstance, must exist before rescission or
cancellation is in order. Abundant case authority sustains this contention. Desert Centers, Inc.
v. Glen Canyon, Inc., 356 P.2d 286 (Utah 1960); Williams v. Sullivan, 138 S.E.2d 368 (Ga.
1964); City of Cleveland v. Herron, 131 N.E. 489 (Ohio 1921); Suburban Properties, Inc. v.
Hanson, 382 P.2d 90 (Ore. 1963); Hewett v. Dole, 124 P. 374 (Wash. 1912); Miller v. Village
of Brookville, 89 N.E.2d 85 (Ohio 1949); Lawrence v. Gayetty, 20 P. 382. (Cal. 1889);
Borden v. Boyvin, 130 P.2d 718 (Cal.App. 1942); Norby v. Pister, 250 P.2d 633 (Cal.App.
1952). The grantor's remedy when the bargained for consideration fails and a reason for
equitable relief is not present, is an action at law for damages.
[Headnote 4]
LoBue acknowledges the law as we have stated it but insists that Nevada has adopted a
different rule; that failure of consideration, without more, will, in this State, allow equity to
intervene and cancel a deed.
intervene and cancel a deed. Kerr v. Church, 74 Nev. 264, 329 P.2d 277 (1958). Though it is
true that in Kerr this court affirmed a decree cancelling a deed upon the ground that the
consideration therefor failed, we think that case properly falls within a well established
exception to the rule we have just related. The prevailing view in this country favors the
rescission of a deed if the grantee fails to perform his promise to support the grantor. The
essence of Kerr was the failure of the grantee to allow the grantor, during his lifetime, to
jointly use the home which was the subject of the deed. Clearly this was a form of support.
The rationale underlying the support exception varies: inadequacy of the legal remedy
(Ford v. Ford, 43 N.E.2d 756 (Ohio 1942)); theory of a breach of a condition subsequent
(Nadler v. Nadler, 8 N.W.2d 306 (Wis. 1943)); the failure to support raises a presumption of
fraud at the inception of the transaction (DaCosta v. Bischer, 122 N.E. 819 (Ill. 1919));
(Sethmann v. Bulkley, 61 P.2d 765 (Cal. 1936)); and, the mere failure of consideration
(Martinez v. Martinez, 141 P. 469 (Colo. 1914)). Whatever the reason assigned, it is clear
that a conveyance in consideration of a promise to support the grantor is treated differently
than an ordinary commercial transaction. Comment: 9 U.Pitt.L.Rev. 206 (1948); annot. 112
A.L.R. 670.
In addition to the Kerr case our attention is directed to the decision of Russell v. Ruffcorn,
54 Nev. 162, 10 P.2d 632, (1932) where, on appeal, the court directed cancellation of a deed
because the consideration therefor failed. In that case, however, the parties had also executed
a contract which provided that the deed was to be accepted as part payment for stock held in
escrow pursuant to a conditional permit of the Commissioner of Corporations of California
under which the stock was not to be sold without the written consent of the Commissioner.
His consent was not secured, though both parties to the agreement, at the time it was entered
into, apparently believed that no difficulty would be experienced in obtaining the
Commissioner's consenta mutual mistake. That circumstance, coupled with the failure of
consideration, led the court to decree equitable relief. Such additional factors are not present
in the case at hand.
[Headnote 5]
We conclude that, in these circumstances, the grantor's (LoBue) remedy for the failure of
Clark County to construct the roads is an action at law for damages; not a suit in equity to
cancel the deed. The reason for withholding equitable relief is the need for preserving the
finality of a deed and the integrity of title to real property. This can best be accomplished by
limiting the grantor to the remedy of damages.
limiting the grantor to the remedy of damages. We express no opinion on the point of
damages. Perhaps the highway construction by the State along the disputed parcel benefited
LoBue as much as the originally planned County roads; perhaps not. That question was not
presented to the trial court for decision.
For the reasons expressed the judgment below is reversed and the cause remanded.
The peculiar circumstances surrounding the execution of the grant deed for road purposes
captured more than my usual interest because I was the trial judge in State ex rel. Dep't of
Hwys. v. Wells Cargo, Inc., 82 Nev. 82, 411 P.2d 120 (1966). Initially, I did not see the
distinction between the subject of the deed in this case from the execution of the deed to the
county in the Wells case. It seems clear now that Mr. Justice Badt found that in Wells the trial
judge was correct in his conclusion, though not in the way in which he arrived at it.
In this case, LoBue gave the deed for street and road purposes in return for a promise that a
road would be constructed along the remainder of the property. An interstate highway was
built on the property, though not by the promising party and not to the same specifications as
originally promised. Yet, not only was the promise kept but the road is a much more travelled
artery as an interstate highway than as a county road. It is reasonably probable that respondent
received even more than bargained for.
____________
83 Nev. 226, 226 (1967) Nevada Sav. & Loan v. Gen. Aluminum
NEVADA SAVINGS & LOAN ASSOCIATION, Appellant, v.
GENERAL ALUMINUM CORPORATION, Respondent.
No. 5238
May 18, 1967 427 P.2d 648
Appeal from judgment of the Eighth Judicial District Court, Clark County; Clarence
Sundean, Judge.
Proceeding to foreclose materialman's lien. The lower court ordered foreclosure, and
defendant property owner appealed. The Supreme Court held that lien of plaintiff
materialman, who furnished materials that were used on defendant's property, attached
to property when defendant's predecessor in title requested, received and used materials
on such property, notwithstanding fact that such predecessor was also materialman, and
where lien was properly recorded, defendant's subsequent ownership took subject
thereto.
83 Nev. 226, 227 (1967) Nevada Sav. & Loan v. Gen. Aluminum
who furnished materials that were used on defendant's property, attached to property when
defendant's predecessor in title requested, received and used materials on such property,
notwithstanding fact that such predecessor was also materialman, and where lien was
properly recorded, defendant's subsequent ownership took subject thereto.
Affirmed.
Charles W. Deaner, of Las Vegas, for Appellant.
Foley Brothers, of Las Vegas, for Respondent.
Mechanics' Liens.
Lien of plaintiff materialman, who furnished materials that were used on defendant's property,
attached to property when defendant's predecessor in title requested, received and used materials on such
property, notwithstanding fact that such predecessor was also materialman, and where lien was properly
recorded, defendant's subsequent ownership took subject thereto. NRS 108.020, subd. 1.
OPINION
Per Curiam:
This is an appeal from the District Court's foreclosure of Respondent's materialman's lien
upon a parcel of real estate belonging to Appellant.
Appellant's main contention is that Respondent cannot assert a lien against its property
pursuant to NRS 108.020(1) because Appellant's predecessor in title was also a materialman.
See Tarter, Webster & Johnson, Inc. v. Windsor Developers, 31 Cal.Rptr. 452 (Cal. 1963).
We disagree. The undisputed facts disclose that the materials furnished by the Respondent
were used on Appellant's property, that Appellant's predecessor in title had requested such
improvements, that Appellant became owner of the property subsequent to the recording of
the lien, and that Appellant received the benefit of the improvements.
We conclude that under NRS 108.020(1), the lien attached to the property when
Appellant's predecessor in title requested, received, and used the materials on the property,
notwithstanding the fact that such predecessor was also a materialman. Therefore, since the
lien was properly recorded, Appellant's subsequent ownership took subject thereto.
Affirmed.
____________
83 Nev. 228, 228 (1967) O'Neill v. Dunn
MARTIN J. O'NEILL, Appellant, v. RICHARD J. DUNN, aka DICK DUNN;
SOUTHWESTERN PUBLISHING COMPANY, INC., a Nevada Corporation; NEVADA
BROADCASTER FUND, INC., a Nevada Corporation; BILL OAKES; FALON FRALEY;
VICTOR WHITTLESEA; FRANK NATUSCH; WARNER A. and ALBERTA FRIEMUTH;
CARL BEAUVOIS; AL J. ALLEMAN; WINSTON BELL; JOHN GRAY, Respondents.
No. 5310
May 18, 1967 427 P.2d 647
Appeal from judgment of the Eighth Judicial District Court, Clark County; John P. Sexton,
Judge.
Action for defamation of character. The trial court entered judgment from which plaintiff
appealed. On motion to dismiss appeal, the Supreme Court, Collins, J., held that order
denying jury trial is neither final nor interlocutory and is thus not appealable.
On motion to dismiss appeal, motion granted.
Foley, Garner & Shoemaker, of Las Vegas, for Appellant.
Morse & Graves, Jones & Holt, Jones & Jones, Hawkins, Cannon & Hawkins, all of Las
Vegas, for Respondents.
Aggrieved party does not have right to appeal unless it is expressly granted by statute or rule.
For purposes of appeal, final judgment in action or proceeding is essentially one that disposes of
issues presented in case, determines costs, and leaves nothing for future consideration of court.
Order denying jury trial is neither final nor interlocutory and is thus not appealable. NRCP 72.
OPINION
ON MOTION TO DISMISS APPEAL
Appellant commenced the above action, which included two additional defendants, Las
Vegas Sun, Inc., and Las Vegas Television, Inc., seeking damages for defamation of
character.
83 Nev. 228, 229 (1967) O'Neill v. Dunn
The two defendants, Las Vegas Sun, Inc., and Las Vegas Television, Inc., made a written
demand for trial by jury, but later the action was dismissed as against them by stipulation of
counsel for appellant. No other demand for a jury trial was made by any party. On May 5,
1966 the trial court, with plaintiff and the remaining defendants present, entered an order
setting the matter for trial before a jury on September 14. On September 13 plaintiff posted
the first day's jury fees with the clerk. At the commencement of the trial on September 14,
prior to the selection of the jury, the defendants made a motion that the matter be tried by the
court only. The trial judge granted the motion and ordered the matter to be tried without a
jury on the grounds that the jury fees were withdrawn by the defendants against whom the
action had been dismissed; the plaintiff had not posted jury fees until the day prior to the trial;
and further that defendants had been led to believe that there would be a trial before the court
alone. The trial by the court was thereupon continued and notice of appeal filed. Defendants
now move to dismiss the appeal in this court on the ground that an appeal does not lie under
NRCP 72(b)
1
from an order denying a jury trial.
We feel the motion is well taken and the appeal must be dismissed.
____________________

1
(b) Appealable Determinations. 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 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.
83 Nev. 228, 230 (1967) O'Neill v. Dunn
[Headnotes 1-3]
The order is not one designated by Rule 72 as an appealable order, nor is any other statute
cited or known to us authorizing the appeal. An aggrieved party does not have the right to
appeal unless it is expressly granted by statute or rule. Esmeralda County v. Wildes, 36 Nev.
526, 137 P. 400; Quinn v. Quinn, 53 Nev. 67, 292 P. 621. Alper v. Posin, 77 Nev. 328, 363
P.2d 502. A final judgment in an action or proceeding is essentially one that disposes of the
issues presented in the case, determines the cost, and leaves nothing for the future
consideration of the court. Smith v. Smith, 69 Nev. 171, 243 P.2d 1048; Magee v. Whitacre,
60 Nev. 202, 96 P.2d 201, 106 P.2d 751; Nevada First National Bank of Tonopah v. Lamb,
51 Nev. 162, 271 P. 691. Alper v. Posin, supra. Clearly the order denying the jury trial is
neither final nor interlocutory from which an appeal will lie when subjected to these tests.
Accordingly, the order of dismissal must be entered. Brunzell Construction Co. Inc. of
Nevada v. Harrah's Club, 81 Nev. 414, 404 P.2d 902; Musso v. Triplett, 78 Nev. 355, 372
P.2d 687; Nevada Gaming Commission v. Byrens, 76 Nev. 374, 355 P.2d 176.
It is therefore ordered that the appeal is hereby dismissed.
____________
83 Nev. 230, 230 (1967) Stamps v. State
HENRY DENNIS STAMPS, Appellant, v. THE
No. 5017
May 23, 1967 428 P.2d 187
Appeal from the Eighth Judicial District Court, Clark County; John Mowbray, Judge.
Defendant was convicted of possession of narcotics in the trial court and he appealed. The
Supreme Court held that evidence of police officer that defendant had thrown yellow object
on ground coupled with finding of yellow balloon containing heroin in area where the thrown
object would have landed would support inference that defendant had possession of the object
thrown.
Affirmed.
Raymond E. Sutton, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, District Attorney, and Addeliar
D. Guy, Deputy District Attorney, Clark County, for Respondent.
1. Poisons.
Evidence of police officer that defendant had thrown yellow object on ground coupled with finding of
yellow balloon containing heroin in area where the thrown object would have landed would support
inference that defendant had possession of the object thrown.
Where officers discovered evidence in public area where it was voluntarily thrown, there was no
search.
Looking at that which is open to view is not a search.
An officer may take custody of proper objects of seizure which he sees in plain sight if he is lawfully
where he is.
OPINION
Per Curiam:
Appellant was convicted by a jury of the crime of possession of narcotics, sentenced to
five years in the state prison, and fined $100. Prior to trial, a motion to suppress evidence was
denied. Appellant asserts as error the denial of that motion. He also contends that there was
insufficient evidence to show that he had possession of the narcotics which were introduced
against him.
Two officers of the Las Vegas police force, while making a routine check of the residences
of suspected narcotics peddlers, drove by 1405 Helen Street in their unmarked vehicle during
the evening of June 5, 1965. A car which they did not recognize was parked in the driveway
with its headlights and blinker light on and with the motor running. The officers parked
nearby and waited to see who would get into the car.
The appellant, whom the officers knew but did not recognize, came out of the house, got
into the car, and drove away. The police followed.
Stamps pulled his vehicle into the crowded parking lot of the Hillcrest Tavern with the
officers close behind. As the two detectives parked next to his car, appellant jumped out,
leaving the motor running and the lights on. He reached into his left-hand pocket and made
a throwing motion toward the rear of the car.
his left-hand pocket and made a throwing motion toward the rear of the car. One officer
testified to having seen a yellow object being thrown.
The officers, who were not in uniform, verbally identified themselves to the fleeing man.
After a brief chase he was tackled and restrained. During the scuffle appellant was shown a
police badge.
All three returned to the vicinity of the cars. With the aid of a flashlight, the officers found
near the rear of the car three balloons lying within a foot of each otherone was yellow.
Each balloon contained a number of capsules filled with a white powdery substance later
analyzed as heroin.
[Headnotes 1-4]
Evidence of the throwing of a yellow object, coupled with the finding of a yellow balloon
containing heroin in the area where the thrown object would have landed, will support the
inference by the jury that defendant had possession of the object thrown. People v. Cisneros,
332 P.2d 376 (Cal.Dist. Ct.App. 1958); People v. Spicer, 329 P.2d 917 (Cal.Dist.Ct. App.
1958); People v. Lawton, 309 P.2d 862 (Cal.Dist. Ct.App. 1957). The officers discovered the
evidence in a public area where it was voluntarily thrown, hence there was no search.
Looking at that which is open to view is not a search. Ellison v. United States, 206 F.2d 476
(D.C. Cir. 1953). An officer may take custody of proper objects of seizure which he sees in
plain sight if he is lawfully where he is. Ker v. California, 374 U.S. 23 (1963); Heffley v.
State, 83 Nev. 100, 423 P.2d 666 (1967).
Affirmed.
____________
HENRY DENNIS STAMPS, Appellant, v. THE
No. 5018
May 23, 1967 428 P.2d 188
Appeal from the Eighth Judicial District Court, Clark County; John Mowbray, Judge.
Defendant was convicted in the trial court of possession of narcotics, and he appealed. The
Supreme Court held that search warrant was issued upon sufficient probable cause based on
affidavit of police that because of information received from several sources, two of which
were reliable in the past, defendant's residence was placed under surveillance as the suspected
center of traffic in heroin, and during the period of observation persons known to be
addicts came and left premises at irregular times, and on several occasions recognized
heroin addicts were seen leaving house carrying penny balloons known as "bags" and
used for carrying heroin.
center of traffic in heroin, and during the period of observation persons known to be addicts
came and left premises at irregular times, and on several occasions recognized heroin addicts
were seen leaving house carrying penny balloons known as bags and used for carrying
heroin.
Affirmed.
Harvey Dickerson, Attorney General, George E. Franklin, District Attorney, and Alan R.
Johns, Deputy District Attorney, Clark County, for Respondent.
Search warrant was issued upon sufficient probable cause based on affidavit of police that because of
information received from several sources, two of which were reliable in the past, defendant's residence
was placed under surveillance as the suspected center of traffic in heroin, and during the period of
observation persons known to be addicts came and left premises at irregular times during early morning
hours and on several occasions recognized heroin addicts were seen leaving house carrying penny
balloons known as bags and used for carrying heroin.
Lapse of two days between surveillance of house suspected to contain heroin and execution of search
warrant obtained by police officers was not fatal.
Where defendant was observed while he planted something in his backyard, and in an effort to find
what it was, police officers encountered other contraband scattered about the yard in several subterranean
hiding places, digging up what defendant had planted did not amount to an illegal exploratory search
where police officers had obtained search warrant to search defendant's premises.
4. Poisons.
From the findings of narcotics in the yard of the house where defendant lived, jury could reasonably
infer possession by him.
5. Criminal Law; Witnesses.
No error was committed where prosecutor asked defendant whether he had been arrested pursuant to
grand jury indictment, question was stricken and jury was instructed to disregard it, and prosecutor then
asked whether defendant had been convicted of a felony, defendant replied yes and court precluded
further pursuance of matter. NRS 43.130.
OPINION
Per Curiam:
On appeal from a conviction of possession of narcotics, the assertion is made that the
procedure followed by the police which led to the discovery of the incriminating evidence
was improper.
which led to the discovery of the incriminating evidence was improper. On the contrary, we
deem it to be exemplary and commendable.
Based on information received from several sources, two of which were allegedly reliable
in the past, appellant's residence was placed under surveillance as a suspected center of traffic
in heroin. During the period of observation, persons known to be addicts (some with records
of narcotic convictions) came and left the premises at irregular times during early morning
hours. On several occasions, recognized heroin addicts were seen leaving the house carrying
penny balloons known as bags and used for carrying heroin. Two such persons were
observedone in a stupor, the other apparently undergoing preliminary
withdrawalexhibiting symptoms of narcotics use.
he foregoing information was gathered over a period of time and presented by affidavit to
a magistrate who issued a search warrant based thereon. A two-day period elapsed between
the last observation of the house and the search.
When a search of the house yielded no contraband, the officers then proceeded to dig in
the back yard because appellant previously was seen to dig a hole in the back yard, put
something in it, refill the hole and water the freshly turned dirt. Several buried caches of
heroin and marijuana were found there, sealed in clear plastic bags.
The several points of error which appellant urges with regard to the search of the yard and
the seizure of the contraband are without merit.
1. NRS 179.030 provides: 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. It is asserted that the affidavit did not support the issuance
of the warrant.
Our most recent case dealing with probable cause is Gordon v. State, 83 Nev. 177, 426
P.2d 424 (1967). Although it dealt with a warrantless arrest and search, the matter of probable
cause was discussed. It was there said that, 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. Justification of a search
warrant, not an arrest, is involved here, but the element of probable cause is the same.
[Headnote 1]
The warrant was supported by a recitation in the affidavit of the observations by the police
themselves (with the exception of the burying episode). Such a record clearly establishes
sufficient probable cause.
sufficient probable cause. Aguilar v. Texas, 378 U.S. 108 (1964). A prudent man would be
justified in issuing a warrant authorizing the search.
In Aguilar the court refused to uphold a search warrant based on unsubstantiated
conclusions of the officers who sought it. But the majority opinion stated: If the facts and
results of such a surveillance had been appropriately presented to the magistrate, this would,
of course, present an entirely different case. 378 U.S. 108, 109 (1964), Footnote 1. This,
then, is the entirely different case of which Mr. Justice Goldberg was speaking, and the
constitutional requirements are satisfied.
[Headnote 2]
2. The two-day lapse of time between surveillance and the search are not fatal. Under
ideal conditions it takes two hours to merely obtain a search warrant. Collings, Toward
Workable Rules of Search and SeizureAn Amicus Curiae Brief, 50 Cal.L.Rev. 421, 446
(1962). We cannot say that a two-day lapse between the last observation and the execution of
the warrant is unreasonable. Carr v. State, 184 So.2d 226 (Fla.Dist.Ct.App. 1966);
Underdown v. District of Columbia, 217 A.2d 659 (D.C.Ct.App. 1966).
[Headnote 3]
3. Appellant was observed while he planted something in the back yard. In an effort to
find what it was, officers encountered other contraband scattered about the yard in several
subterranean hiding places. This conduct did not amount to an illegal exploratory search.
Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931). 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. Heffley v. State, 83
Nev. 100, 423 P.2d 666 (1967). See also Stamps v. State, Case No. 5017, decided this day.
[Headnote 4]
4. From the findings of narcotics in the yard of the house where appellant lived, the jury
could reasonably infer possession by him. State v. Chin Gim, 47 Nev. 431, 224 P. 798 (1924).
1
We perceive no less reason for attributing constructive possession to Stamps than we did
for attributing joint possession of a syringe and needle to the appellant in Henry v. State, 83
Nev. 194, 426 P.2d 791 (1967).
____________________

1
Overruled in part on a different point in Whitley v. State, 79 Nev. 406, 386 P.2d 93 (1963), at Footnote 5.
[Headnote 5]
The final asserted grounds for error concern the prosecutor's having asked appellant
whether he had been arrested pursuant to a grand jury indictment. The question was not
answered. It was stricken and the jury was instructed to disregard it. The prosecutor then
asked whether defendant had been convicted of a felony. NRS 48.130. His answer was yes.
The court precluded further pursuance of the matter. This was not error.
Affirmed.
____________
83 Nev. 236, 236 (1967) Vegas Franchises v. Culinary Workers
VEGAS FRANCHISES, LTD., a Limited partnership, dba STEAK CORRAL, Appellant, v.
CULINARY WORKERS UNION, LOCAL NO. 226, ET AL., Respondents.
No. 5234
May 23, 1967 427 P.2d 959
Appeal from order of Eighth Judicial District Court, Clark County, denying preliminary
injunction; John F. Sexton, Judge.
Restaurant owners brought suit to enjoin peaceful picketing by unions. The lower court
denied a preliminary injunction, and owners appealed. The Supreme Court, Thompson, C. J.,
held that state court had jurisdiction to entertain suit where it found that case was one that
National Labor Relations Board would decline to hear and that peaceful picketing of the
restaurant to coerce restaurant owners into signing collective agreement covering restaurant
employees, who had not expressed desire to join union, violated state's public policy
expressed in its right to work law, and denial of preliminary injunction was error.
Reversed.
[On rehearing. Original opinion reaffirmed. 83 Nev. 422, 432 P.2d 263.]
John Peter Lee, of Las Vegas, for Appellant.
Joseph C. Crawford, of Las Vegas, and Philip Paul Bowe of Carroll, Davis, Burdick &
McDonough, of San Francisco, California, for Respondents.
1. Labor Relations.
Although National Labor Relations Board had not affirmatively expressed its unwillingness to hear the
case, state court had jurisdiction, under residual jurisdiction clause of National Labor
Relations Act, to entertain restaurant owners' suit to enjoin peaceful picketing by
unions where it found that case was one that Board would decline to hear.
jurisdiction, under residual jurisdiction clause of National Labor Relations Act, to entertain restaurant
owners' suit to enjoin peaceful picketing by unions where it found that case was one that Board would
decline to hear. National Labor Relations Act, 14(c)(1), 29 U.S.C.A. 164(c)(1).
2. Labor Relations.
Peaceful picketing of restaurant by unions to coerce restaurant owners into signing collective agreement
covering restaurant's employees, who had not expressed a desire to join the union, violated state's public
policy as expressed in its right to work law, and, since First and Fourteenth Amendments do not preclude
state's injunction of peaceful picketing, denial of preliminary injunction was error. NRS
614.090-614.110, 614.090, subds. 1, 2; U.S.C.A.Const. Amends. 1, 14.
OPINION
By the Court, Thompson C. J.:
The owners of the Steak Corral, a restaurant in Las Vegas, brought suit to enjoin the
peaceful picketing of their place of business by the Culinary and Bartenders Unions. The
owners charge that the picketing is unlawful since the unions' purpose is to coerce Steak
Corral employees' choice of a bargaining representative in violation of the public policy of
Nevada. Alternatively, the owners claim that picketing is precluded since the unions' purpose
is to force them to sign a collective agreement containing a non-discriminatory hiring hall
provision contrary to Nevada's Right To Work Law. The district court found that it had
jurisdiction to entertain the suit, but denied the owners motion for a preliminary injunction.
This appeal followed. We agree that the state court had jurisdiction, but hold that the court
committed error when it refused to grant the owners' motion for a preliminary injunction.
1. Jurisdiction. The threshold issue is jurisdiction. It is conceded that the employer's
business operations affect commerce within the meaning of the National Labor Relations Act.
However, this case falls within the residual jurisdiction conferred upon State courts by section
14(c) of the Act, 29 U.S.C. 164(c) (1).
1
The owners alleged and the trial court found that
the new restaurant enterprise of Steak Corral would not produce $500,000 annual gross
volume of business which is the National Labor Relations Board standard for asserting
jurisdiction over a restaurant.
____________________

1
29 U.S.C. 164(c)(1) reads: The Board, in its discretion, may, by rule of decision or by published rules
adopted pursuant to the Administrative Procedure Act, decline to assert jurisdiction over any labor dispute
involving any class or category of employers, where, in the opinion of the Board, the effect of such labor dispute
on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction: * * *.
not produce $500,000 annual gross volume of business which is the National Labor Relations
Board standard for asserting jurisdiction over a restaurant. Brennan's French Restaurant, 129
N.L.R.B. 52 (1960).
[Headnote 1]
It is not necessary for the state court to withhold its process until the Board affirmatively
expresses its unwillingness to take a given case. The party seeking relief need only
demonstrate that the case is one which the Board would decline to hear. Russell v. Electrical
Workers Local 569, 409 P.2d 926 (Cal. 1966); Continental Slip F. Bldrs., Inc. v. Brotherhood
of C. & G., 393 P.2d 1004 (Kan. 1964); District U. Local, 227, Amal. Meat Cut., Etc. v.
Fleischaker, 384 S.W.2d 68 (Ky. 1964); Radio & T.V. Local Union 1264 v. Broadcast
Service, 380 U.S. 255 (1965); Cox, The Landrum-Griffin Amendments to the National Labor
Relations Act, 44 Minn.L.Rev. 257, 262 (1959). That demonstration was made in this case.
Our decision in Painter's Local v. Tom Joyce Floors, 81 Nev. 1, 398 P.2d 245 (1965), is
wholly inapposite since that case did not concern the residual jurisdiction of state courts
under Section 14(c) of the Act. The lower court properly ruled that it had jurisdiction to hear
and decide this injunction suit.
2. Public policy. The lower court found that the unions here involved represent employees
in the food and beverage dispensing business; that the employees of Steak Corral have not
expressed a desire to join the unions; that the employer desires the employees to be
represented by any organization satisfactory to them; and that the unions presented to the
employer a collective agreement covering the employees which the employer refused to sign,
whereupon picketing was initiated. These findings are fully supported by the record.
The employer's claim to injunctive relief centers upon the unions' effort to organize the
employees of the Steak Corral from the top, and without deference to the employees' choice
of bargaining representative. The contention is that such action by the unions is in direct
violation of the public policy of Nevada as expressed in NRS 614.090(1)(2).
2
That statute in
plain language declares that individual workmen shall have full freedom of association,
self-organization, and designation of representatives of their own choosing to negotiate
the terms and conditions of employment.
____________________

2
NRS 614.090 provides: In the interpretation and application of NRS 614.090 to 614.110, inclusive, the
public policy of this state is declared as follows:
1. Negotiations of terms and conditions of labor should result from voluntary agreement between employer
and employees. Governmental authority has permitted and encouraged employers to organize in the corporate
and other forms of capital control. In dealing with such employers, the individual organized worker is helpless to
exercise actual liberty of contract and to protect his freedom of labor, and
full freedom of association, self-organization, and designation of representatives of their own
choosing to negotiate the terms and conditions of employment. A strikingly similar statute
was before the United States Supreme Court in Building Service E.I.U. v. Gazzam, 339 U.S.
532 (1950). The issue presented for decision was whether the First and Fourteenth
Amendments to the Federal Constitution permit the State to enjoin peaceful picketing carried
on for the purpose of compelling an employer to sign a contract with a labor union which
coerces his employees' choice of bargaining representative. The court ruled that state
injunctive relief was permissible. It wrote: But since picketing is more than speech and
establishes a locus in quo that has far more potential for inducing action or nonaction than the
message the pickets convey, this Court has not hesitated to uphold a state's restraint of acts
and conduct which are an abuse of the right to picket rather than a means of peaceful and
truthful publicity. 339 U.S. at 537. See also International Brotherhood v. Vogt, 354 U.S. 284
(1957); Pappas v. Stacey, 116 A.2d 497 (Me. 1955).
In Gazzam, supra, the state court enjoined the picketing and the Supreme Court upheld the
state court's right to do so. Here, our state district court denied preliminary injunctive relief.
To this extent, the two cases are different, but that difference is of no moment since the issue
is one of law rather than discretion. Peaceful picketing carried on to coerce the employees'
choice of bargaining representative either conflicts with the policy expressed in NRS
614.090(1)(2), or it does nota question of law.
____________________
thereby to obtain acceptable terms and conditions of employment. Therefore, it is necessary that the individual
workman have full freedom of association, self-organization, and designation of representatives of his own
choosing to negotiate the terms and conditions of his employment, and that he shall be free from the interference,
restraint or coercion of employers of labor, or their agents, in the designation of such representatives or in
self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or
protection.
2. The employers have enjoyed these rights for ages and now enjoy the right to negotiate with their
employees and prospective employees through agencies and representatives of their own choosing. The
workmen should enjoy the same right and should be accorded the same privilege in protecting and providing for
their most valuable asset, the labor of their brain and brawn, as is accorded the employers in the protection and
enhancement of their property rights in their industries and affairs. Mutuality of conduct in the negotiations
between the employers and workers concerning wage agreements, working conditions and all other matters
connected with the employment of human beings in industry of any kind is essential to the welfare of both and to
the industrial peace of the community, state and Nation.
[Headnote 2]
In a different context, the Court of Appeals for the Ninth Circuit used strong language in
denouncing the union's effort to organize employees from the top, and without deference to
their free choice of bargaining representative. Retail Clerks Union, Local 770 v. N.L.R.B.
370, F.2d 205 (9 Cir. 1966). The court wrote: The rights, nevertheless, to self-organization
and to bargain collectively through representatives of their own choosing granted by Section
7 of the Act are the rights of the employees, not of any labor union or the employer, and no
labor organization has authority to arrogate unto itself the representation of any unrepresented
groups of employees without their consent. Id. at 208. Though the frame of reference was
different, the quoted language expressing the concept of employees' rights applies with equal
force to the issue at hand. We hold that the peaceful picketing here under consideration is
contrary to the public policy of Nevada as expressed in NRS 614.090(1)(2).
In so concluding we are not unaware of Culinary Workers v. Court, 66 Nev. 166, 207 P.2d
990 (1949) which contains language to the effect that peaceful picketing by strangers does
not violate NRS 614.090 (then NCL 2825.32). Id. 66 Nev. at 182. The Culinary Workers case
was decided one year before the Supreme Court ruled in Gazzam, supra, and, in our
judgment, is no longer a correct explication of the law on this point. Therefore, we overrule
that phase of the Culinary Workers opinion.
3. We note initially that this appeal is from an order denying a preliminary injunction.
Dictum in the case of Ringelberg v. U.A. Journeymen, 72 Nev. 156, 297 P.2d 1079 (1956)
suggests that the preliminary determination of the trial court upon a motion for an injunction
pendente lite is a discretionary matter and does not necessarily foretell the ultimate result
upon the merits of the case after a full trial. Consequently, absent an abuse of discretion, such
preliminary determination will not be overturned on appeal. We have no quarrel with that
suggestion when the issue before the trial court is one of discretion rather than law. In the
case at hand the basic question is one of law, and will not be altered by subsequent
occurrences at the trial for permanent injunctive relief. There is no reason to await further
proceedings before ruling. If Ringelberg is read to have a broader significance than just
suggested, we overrule any such implication.
In the light of our holding it is not necessary to consider the alternative point on
appealwhether peaceful picketing was precluded since the unions' purpose is to force the
employer to sign a collective agreement containing a nondiscriminatory hiring hall
provision, allegedly contrary to Nevada's Right To Work Law.
was precluded since the unions' purpose is to force the employer to sign a collective
agreement containing a nondiscriminatory hiring hall provision, allegedly contrary to
Nevada's Right To Work Law.
The order denying a preliminary injunction is reversed and the trial court is directed to
issue a preliminary injunction restraining the unions from endeavoring to compel the
employer to coerce his employees to designate the unions as their representatives for
collective bargaining by picketing the employer's premises.
____________
83 Nev. 241, 241 (1967) Bialer v. St. Mary's Hospital
NED BIALER and VIVIAN BIALER, Appellants, v. ST.
MARY'S HOSPITAL, a Corporation, Respondent.
No. 5241
May 24, 1967 427 P.2d 957
Appeal from order granting summary judgment in action for malpractice. Second Judicial
District Court, Washoe County; John E. Gabrielli, Judge.
Malpractice action against hospital for injury sustained as a result of injection
administered by nurse. The trial court granted hospital's motion for summary judgment and
plaintiff appealed. The Supreme Court, Zenoff, J., held that doctrine of res ipsa loquitur does
not apply to cases of injury sustained by hospital patient after injection, and that party who
has sustained injury as a result of injection by nurse must make minimum showing by expert
testimony that some variance from recognized standard of care proximately caused injury.
Affirmed.
Lohse and Lohse, of Reno, for Appellants.
Goldwater, Taber and Hill, and Robert E. Rose, of Reno, for Respondent.
1. Negligence.
Doctrine of res ipsa loquitur does not apply unless event must be of kind which ordinarily does not occur
in absence of someone's negligence; event must be caused by agency or instrumentality within exclusive
control of defendant; and event must not have been due to any voluntary action or
contribution on part of plaintiff.
not have been due to any voluntary action or contribution on part of plaintiff.
2. Hospitals.
Administration of hypodermic injection by nurse is not matter of such ordinary experience that it would
allow jury to infer that injury which results from giving of shot could not have occurred but for nurse's
negligence.
3. Hospitals.
Doctrine of res ipsa loquitur does not apply to cases of injury sustained by hospital patient from injection
made by nurse.
4. Hospitals.
Doctrine of res ipsa loquitur does not arise merely because results of hypodermic injection were not as
hoped.
5. Hospitals.
It cannot be said that full spectrum of possible consequences from giving of hypodermic injection are
within the layman's common knowledge.
6. Hospitals.
Party who sued hospital for injury resulting from injection by nurse must make minimum showing by
expert testimony that some variance from recognized standard of care proximately caused injury.
7. Hospitals.
Since undesirable reactions from injection can result from a number of causes other than negligence,
persons administering injection are not held to a precise determination of these conditions in advance.
OPINION
An action of malpractice was brought against the hospital as employer of the nurse who
gave Vivian Bialer an injection. The facts were agreed upon by the parties.
On February 18, 1963, plaintiff Vivian Bialer submitted to surgery at St. Mary's Hospital
in Reno, Nevada. The operation was performed by John P. Sande, M.D. and was known as a
gastric resection. Post-operatively, on or about February 19, 1963, Theresa Mann Houston, a
registered nurse employed by St. Mary's Hospital, within the scope of her employment, and
pursuant to orders of Dr. Sande, gave the plaintiff an intra-muscular or subcutanous injection
in the left buttock.
Immediately after the injection the plaintiff experienced a painful burning reaction at the
site of the injection, and thereafter, a hematoma, ecchymosis and sloughing developed at the
site of the injection which required medical care and subsequent surgery.
The plaintiff sought to apply the doctrine of res ipsa loquitur to the cause of action.
Objection was raised in the form of a motion for summary judgment on behalf of the hospital.
The trial court granted the motion, and, from the order which followed, this appeal was
brought.
The issue to be decided here is whether the doctrine of res ipsa loquitur is applicable to the
circumstances of this case. We hold that it is not and affirm the summary judgment.
[Headnotes 1, 2]
For the doctrine of res ipsa loquitur to apply, three conditions must be met: (1) the event
must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2)
the event must be caused by an agency or instrumentality within the exclusive control of the
defendant; and (3) the event must not have been due to any voluntary action or contribution
on the part of the plaintiff. Prosser, Torts (3rd Ed. 1965), 39, p. 218. Only the first element
has any application here. It is our judgment that the administration of hypodermic injections
is not a matter of such ordinary experience that it would allow a jury to infer that an injury
which results from the giving of a shot could not have occurred but for defendant's
negligence.
1

[Headnotes 3-6]
In those situations where a patient has sustained injury after an injection, courts have
usually refused to apply the doctrine of res ipsa loquitur. It clearly does not arise merely
because of the fact that the results were not as hoped. Riley v. United States, 248 F.Supp. 95
(D. Md. 1965); Buchanan v. Downing, 394 P.2d 269 (N.M. 1964); cf. Pack v. Nazareth
Literary and Benevolent Institute, Inc., dba Memorial Hospital, 362 S.W.2d 816 (Tenn.App.
1962); Tangora v. Matanky, 42 Cal.Rptr. 348 (Cal.App. 1964). Further, it cannot be said
that the full spectrum of possible consequences from the giving of a shot are within the
layman's common knowledge.
____________________

1
Res ipsa loquitur in malpractice cases has been the subject of many law review articles and case authorities.
It is apparent that its evolution requires a determination on a case-by-case basis. Comment in this state may be
found in Corn v. French, 71 Nev. 280, 286, 289 P.2d 173 (1955), and in Hospital Association v. Gaffney, 64
Nev. 225, 236, 180 P.2d 594 (1947). Other reference materials: 30 Tenn.L.Rev. 314 (1963); Rossen, Defense
Against Res Ipsa in Medical Malpractice, 13 Clev.-Mar.L.Rev. 128 (1964); Comment, The Doctrine of Res Ipsa
Loquitur and Its Applicability to Medical Malpractice Suits in Alabama, 15 Ala.L.Rev. 102 (1962); Brophy,
Highlights on Res Ipsa Loquitur in Medical Malpractice Cases, 502 Ins.L.J. 645 (1964); Note, The Application
of Res Ipsa Loquitur in Medical Malpractice Cases, 60 Nw.U.L.Rev. 852 (1966); 10 Kan.L.Rev. 617 (1962); 35
Temp.L.Q. 221 (1962).
cannot be said that the full spectrum of possible consequences from the giving of a shot are
within the layman's common knowledge. At least a minimum showing by expert testimony is
required that some variance from the recognized standard of care proximately caused the
injury. Buchanan v. Downing, supra.
[Headnote 7]
Unforeseen and undesirable reactions from an injection can result from a number of causes
other than negligence; for example, the emotions and allergies of the patient, the manner in
which the injection was given (though not amounting to negligence), the internal condition of
the patient before or after an operation, and perhaps others. Buchanan v. Downing, supra.
Persons administering the injection are not held to a precise determination of these conditions
in advance. Fisher v. Wilkinson, 382 S.W.2d 627 (Mo. 1964).
Affirmed.
____________
83 Nev. 244, 244 (1967) Kline v. Robinson
LEWIS EDWARD KLINE and ELLA L. KLINE, Appellants, v.
W. SCOTT ROBINSON and MARJORIE L. ROBINSON, Respondents.
No. 5146
May 25, 1967 428 P.2d 190
Appeal from the Eighth Judicial District Court, Clark County; Merwyn H. Brown, Judge.
Action on note. The trial court directed verdict for plaintiff lenders and dismissed
defendant borrowers' counterclaims, and borrowers appealed. The Supreme Court, Collins, J.,
held that evidence, including evidence that lenders required loan to be in form of a sale of
realty by borrowers with option to repurchase upon completion of construction, but in no
event to repurchase before six months had elapsed so that lenders might utilize the long term
capital gain tax advantage under the federal tax law, presented question for jury as to whether
transaction was a loan or a sale. The Court further held that usurious interest voluntarily paid
may be recovered by a borrower because usury statute makes an agreement for greater rate of
interest null and void and of no effect as to such excessive rate of interest over that
allowed by statute.
rate of interest null and void and of no effect as to such excessive rate of interest over that
allowed by statute.
Reversed and remanded for trial.
Jones, Wiener & Jones, of Las Vegas, for Appellants.
Jones & Holt and Galane & Wines, of Las Vegas, for Respondents.
1. Trial.
In considering motion for directed verdict, trial court must view the evidence and all inferences most
favorable to party against whom made, and may not test the credibility of the witnesses nor weigh the
evidence, and entry of order directing verdict is proper if there is no question of fact remaining to be
decided. NRCP 50(a).
The Supreme Court in reviewing order granting motion for directed verdict was required to apply the
same test as the trial court and to view the evidence and all inferences most favorable to the party against
whom made, and could not test the credibility of the witnesses nor weigh the evidence and must hold
order directing verdict proper if there was no question of fact remaining to be decided. NRCP 50(a).
3. Appeal and Error; Trial.
In considering motions to dismiss counterclaims, the same test of evidence and inferences must be
applied by the trial court and the Supreme Court as in the case of a directed verdict so that both courts
must view the evidence and all inferences most favorable to the party against whom made and may not
test the credibility of the witnesses nor weigh the evidence. NRCP 41(b, c).
4. Mortgages.
Evidence, in action on note, including evidence that lenders required loan to be in form of a sale of
realty by borrowers with option to repurchase upon completion of construction, but in no event to
repurchase before six months had elapsed so that lenders might utilize the long term capital gain tax
advantage under the federal tax law, presented question for jury as to whether transaction was a loan or a
sale.
Sale is the transfer of the property in a thing for a price in money and the transfer is that of the
general or absolute interest in property as distinguished from a special property interest.
6. Contracts.
A loan is the delivery of a sum of money to another under contract to return at some future time an
equivalent amount with or without an additional sum agreed upon for its use; and if such is the intent of
the parties such transaction shall be deemed a loan regardless of its form.
In a sale the delivery of the absolute property in a thing and the receipt of a price therefor
consummate the transaction; in a "loan" the initial transaction creates a debit and credit
relationship which is not terminated until replacement of sum borrowed with
agreed interest.
in a loan the initial transaction creates a debit and credit relationship which is not terminated until
replacement of sum borrowed with agreed interest.
8. Usury.
Whether transaction in form of a sale with option to repurchase is in fact a sale or a loan disguised as a
sale to cover up a scheme to collect usurious interest is an issue for the jury.
9. Usury.
Usurious interest voluntarily paid may be recovered by the borrower because usury statute makes an
agreement for greater rate of interest null and void and of no effect as to such excessive rate of interest over
that allowed by the statute; overruling Hawthorne v. Walton, 72 Nev. 62, 294 P.2d 364.
OPINION
This appeal is from an order of the trial court directing a verdict for respondents Robinson
(plaintiffs below) under NRCP 50(a) and dismissing appellants' Kline (defendants and
counterclaimants below) counterclaims under NRCP 41(b) and (c). We feel the orders to be
in error, reverse and remand for further proceedings.
This is an action on a $22,600 promissory note. Respondents recovered a judgment against
appellants for $17,866.84 and for foreclosure of a second deed of trust.
1
Appellants
admitted the amount due under the note but affirmatively defended on the ground the entire
sum was unpaid usurious interest. Appellants' counterclaims sought cancellation of deeds of
trust and a chattel mortgage as security for a promissory note representing the unpaid balance
of usurious interest, and recovery of $111,514.51 as usurious interest previously paid
respondents, because they contend the transaction was a loan and not a sale.
[Headnotes 1, 2]
In considering respondents' motion for a directed verdict under NRCP 50(a), the rule of
Bliss v. DePrang, 81 Nev. 599, 407 P.2d 726 (1965), controls. The trial court must view the
evidence and all inferences most favorable to the party against whom made, and may not
test the credibility of the witnesses nor weigh the evidence.
____________________

1
Subsequent to the trial of this matter the opinion in McMillan v. United Mortgage Co., 82 Nev. 117, 412
P.2d 604 (decided March 29, 1966), was handed down. The one-action rule now requires the holder of a note
secured by trust deed to first exhaust the security before proceeding on the note. See also dictum, Paso Builders,
Inc. v. Hebard, 83 Nev. 165, 426 P.2d 731 (1967); Sims v. Grubb, 75 Nev. 173, 336 P.2d 759 (1959).
view the evidence and all inferences most favorable to the party against whom made, and may
not test the credibility of the witnesses nor weigh the evidence. If there is no question of fact
remaining to be decided, the order directing the verdict is proper. We must apply the same
test as the trial court.
[Headnote 3]
Likewise, in considering the motions to dismiss Klines' counterclaims under NRCP 41(b)
and (c), the rule of Schmidt v. Merriweather, 82 Nev. 372, 418 P.2d 991 (1966), controls. The
same test of the evidence and inferences must be applied by the trial court and this court as in
the case of a directed verdict.
Our review of the record summarizes evidence and inferences favorable to the Klines. In
1963 they bought real property for $135,000 in Las Vegas for purposes of investment and
improvement, intending to build a shopping center. They paid down $40,000, assumed a
pre-existing deed of trust in the amount of $42,000, and gave a new deed of trust for $53,000.
Klines approached Robinsons for a construction loan of $235,000. Robinsons agreed to a loan
of only $165,000 when the $42,000 pre-existing deed of trust holder would not subordinate to
the construction loan. Robinsons required the loan to be in the form of a sale of the property
by Klines with the option to repurchase upon completion of construction, but in no event was
the repurchase to occur before six months had elapsed. This was to allow Robinsons the
long-term capital tax advantage under the federal tax law. Robinsons assumed the $53,000
purchase money deed of trust, but paid Klines no other money for the conveyance of the
property. Klines additionally agreed to make the payments due under the $42,000 pre-existing
trust deed, which they did to the extent of $2,925.81. Robinsons later paid the balance due of
$39,074.19 on this secured debt without request of Klines or obligation under the contract.
To lend additional credence to their theory of sale, Robinsons required Klines to enter a
five-year lease for the identical premises with monthly rental reserved. Terms of the lease
required Robinsons, as lessors, to construct a shopping center at a cost not to exceed
$165,000. Klines had the option to purchase the premises within three and not later than five
years for $247,250. No rentals were ever demanded or paid under this lease. It was
substantially, if not totally, disregarded by the parties.
Upon commencement of construction of the shopping center, Robinsons, as owners,
caused to be prepared and recorded a "Notice of Non-responsibility" to disclaim
responsibility to suppliers of labor and materials under NRS 10S.040.2
a Notice of Non-responsibility to disclaim responsibility to suppliers of labor and materials
under NRS 108.040.
2

During construction of the shopping center the initially agreed advance of $165,000 by
Robinsons proved inadequate, and subsequently they advanced an additional $25,000 and
ultimately a total of $227,710 to complete the program. The advances beyond $190,000 were
not the subject of further written contracts between the Robinsons and Klines.
Robinsons' total advancements to this project were $315,765.75. This consisted of
$227,710 in construction costs and $88,055.75 in satisfying the two purchase money deeds of
trust.
When the shopping center was completed, Klines applied to and were granted by First
Western Savings & Loan Company of Las Vegas a loan of $450,000. They received net from
the loan $431,773, from which expenses of the escrow were deducted, leaving a balance of
$422,547 available to them. Robinsons demanded $445,147.11 to resell the shopping center
to Klines, which included a penalty of $200 per day or $2,000 for a ten-day closing delay
following January 20, 1964. The Klines were short $22,600 in meeting the price demanded by
Robinsons from the money received from First Western, and they gave Robinsons their note
in that amount. Payments made on the note reduced the obligation to $17,866.84, the money
judgment directed by the trial court in favor of Robinsons and from which this appeal is
taken.
The transaction resulted in a profit to Robinsons of $129,381.35 (difference between
$445,147.11 and the sum of $227,710 and $88,055.75) for the period from July 16, 1963 to
January 27, 1964, an elapsed time slightly in excess of six months. Robinsons apparently
qualified under the long-term capital gain law in reselling the property to Klines after holding
it in excess of six months (actually six months and eleven days).
Two areas of testimony by respondent W. Scott Robinson are particularly pertinent to the
issue here. Testimony by him relating to the time within which he resold the shopping center
to Klines is as follows:
Q. And actually the property was purchased, reconveyed to Dr. Wine, approximately six
months after you took title to the property? A. Whatever time First Western made him the
loan. Q. That was approximately six months after you had the property deeded?
____________________

2
But see Verdi Lumber Co. v. Bartlett, 40 Nev. 317, 161 P. 933, which holds an owner cannot escape
liability for labor and materials by posting such a notice on his own property.
the property deeded? A. A little over six months. About seven months. Q. Was there any
reason why it was done at that time that the property was reconveyed? A. I told him I would
sell it back to him after six months so they could take capital gains.
3

Testimony by him whether the transaction was one of loan or sale reveals as follows:
Q. The questions were: Q. If I told you it was closer to four months afterwards, would
that refresh your recollection? A. No, because I don't remember. Q. You don't remember? A.
No, it was their idea, not mine, to get the loan paid off. Q. Now, do you remember those
questions being asked and your giving those answers? A. Yes. Q. Now, Mr.
Robinson(interrupt) A. to get the loan and pay me off; that was a slip of tongue right
there if you want the correct answer. Q. What? A. That might have been a slip of tongue on
my part right there.
[Headnote 4]
The trial judge in concluding there was no disputed factual issues to be presented to the
jury, ruled that the evidence clearly and convincingly disclosed a sale with right of
repurchase, and not a loan. Hence there was no question of usury. In light of the evidence
reviewed above, he was not entitled to withdraw from the jury's consideration the nature of
the transaction, as either a loan or sale. The distinction between a sale and a loan has been
succinctly defined in Milana v. Credit Discount Co., 163 P.2d 869 (Cal. 1945);
[Headnotes 5, 6]
A sale is the transfer of the property in a thing for a price in money. The transfer of the
property in the thing sold for a price is the essence of the transaction. The transfer is that of
the general or absolute interest in property as distinguished from a special property interest. A
loan, on the other hand, is the delivery of a sum of money to another under a contract to
return at some future time an equivalent amount with or without an additional sum agreed
upon for its use; and if such be the intent of the parties the transaction will be deemed a loan
regardless of its form. [Citations]
[Headnotes 7, 8]
consummate the transaction.
____________________

3
It is extremely doubtful a buyer is entitled to a capital gain under federal tax law.
In a loan the initial transaction creates a debit and credit relationship which is not terminated
until replacement of the sum borrowed with agreed interest. Whether a transaction in the
form of a sale with option to repurchase is in fact a sale, or a loan disguised as a sale to cover
up a scheme to collect usurious interest is an issue for the jury. Cannon v. Seattle Title Trust
Co., 252 P. 699 (Wash. 1927); Rosemead Co. v. Shipley Company, 278 P. 1038 (Cal. 1929);
Britz v. Kinsvater, 351 P.2d 986 (Ariz. 1960); Kawauchi v. Tabata, 413 P.2d 221 (Hawaii
1966).
There is a wealth of evidence in this case from which a jury might find there was a loan
rather than sale, especially when instructed they can disregard form and look to the substance
of the transaction and intent of the parties. Fiedler v. Darrin, 50 N.Y. 437 (1872), Annot., 154
A.L.R. 1065.
[Headnote 9]
If the jury were to find Robinsons loaned Klines money to build the shopping center, they
then must be properly instructed on the law of usury in Nevada. The Nevada usury statute,
NRS 99.050,
4
while making an agreement to pay a greater rate of interest than therein
allowed is void, has been construed in Hawthorne v. Walton, 72 Nev. 62, 294 P.2d 364
(1956), to preclude recovery of usurious interest voluntarily paid. This decision is not only
contrary to the great weight of authority but is unique in American and English law. See
Annot., 59 A.L.R.2d 519. We feel strongly that our usury statute should be construed to
reflect the wiser and more just result of the well reasoned authorities. Therefore we
specifically overrule the holding in Hawthorne.
The rule is, then, that usurious interest voluntarily paid may be recovered by the borrower
because NRS 99.050 makes an agreement for a greater rate of interest null and void and of no
effect as to such excessive rate of interest over that allowed by the statute. The reasoning
behind this rule is well stated in Stock v. Meek, 221 P.2d 15, 20 (Cal. 1950), where Chief
Justice Traynor said, "The theory of that law is that society benefits by the prohibition of
loans at excessive interest rates, even though both parties are willing to negotiate them.
____________________

4
Limitations on agreed interest rates.
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.
Justice Traynor said, The theory of that law is that society benefits by the prohibition of
loans at excessive interest rates, even though both parties are willing to negotiate them.
Accordingly, voluntary' payments of interest do not waive the rights of the payors. A
fortiori, usurious interest involuntarily paid is recoverable.
Finally, if the jury first found the transaction was a loan rather than a sale, it would then
become a further question of fact for them to say whether Klines voluntarily paid Robinsons
usurious interest and if so, how much.
Since the right of Robinsons to bring suit upon the promissory note without first
exhausting their security was not an issue at trial nor raised on appeal, we make no decision
concerning it, but we do direct the trial court's attention to McMillan v. United Mortgage Co.,
supra.
Accordingly, the orders directing a verdict for Robinsons under Rule 50(a) and dismissing
Klines' counterclaims under Rules 41(b) and (c) are reversed and the matter is remanded for
trial.
Thompson, C. J., and Craven, D. J., concur.
____________
83 Nev. 251, 251 (1967) Donoghue v. Rosepiler
HELEN DONOGHUE, Appellant, v. ALBERT W. ROSEPILER and BETTY I.
ROSEPILER; and WAYNE DIES, dba DIES REALTY, Respondents.
No. 5244
May 25, 1967 427 P.2d 956
Appeal from the Eighth Judicial District Court, Clark County; John F. Sexton, Judge.
Action by purchasers against vendor for specific performance of contract for sale of land
or in alternative for damages, wherein vendor filed third-party complaint against realtor, and
realtor counterclaimed against vendor. The trial court granted purchasers' motion for
summary judgment, and vendor appealed. The Supreme Court, Collins, J., held that the
summary judgment was not final nor appealable in absence of express determination that
there was no just reason for delay in granting it.
Appeal dismissed without prejudice.
Calvin C. Magleby, of Las Vegas, for Appellant.
Jones Wiener & Jones and Herbert L. Waldman, of Las Vegas for Respondents Rosepiler;
Dickerson & Miles, of Las Vegas, for Respondent Wayne Dies.
Appeal and Error.
Summary judgment for purchasers and against vendor for specific performance of contract for sale of
land in action wherein purchasers sued for specific performance and vendor filed third-party complaint
against realtor and he filed counterclaim against vendor was not final nor appealable in absence of
express determination that there was no just reason for delay in granting the summary judgment. NRCP
54(b), 56.
OPINION
This appeal arises from a real estate transaction. Appellant Donoghue (defendant and
third-party plaintiff below) owned certain real property in Clark County, Nevada. She gave an
exclusive listing to Wayne Dies, doing business as Dies Realty (third-party defendant and
counterclaimant below) to sell the property on specified terms and conditions. Dies advertised
the property for sale and obtained an offer from respondents Rosepiler (plaintiffs below),
which was accepted by appellant. Immediately subsequent to the execution of the offer and
acceptance agreement by Donoghue, and apparently while still in the hands of Dies, she
demanded return of the document because it differed in some respects from the terms of the
listing. Dies refused her demand and delivered the document to Rosepilers who, when
Donoghue refused to carry out the agreement, brought this action for specific performance, or
in the alternative for damages. Donoghue admitted she signed the agreement, but contended
her signature was obtained by trickery and ruse and that Dies had ceased to be her agent and
had become the agent of Rosepilers.
The trial court, pursuant to NRCP 56, granted summary judgment to Rosepilers and
against Donoghue for specific performance of the contract for sale of the land. This appeal
ensued. The third-party complaint of Donoghue against Dies, and his counterclaim against
her remain to be tried. Thus the action is one involving multiple parties and is governed by
NRCP 54(b). The trial court did not make an express determination that there was no just
reason for delay in granting summary judgment for Rosepilers and against Donoghue, hence
the judgment is not final or appealable.
We held in Wilmurth v. State, 79 Nev. 490, at 492, 387 P.2d 251 (1963), on an appeal
from an order dismissing the State of Nevada as a party, The lower court in directing entry
of judgment in favor of this movant on June 10, 1963 did not make an express determination
that there is no just reason for delay, as provided by NRCP 54(b). Therefore, the order of
dismissal entered on June 10, 1963 was not final. Tobin Packing Co. v. North American Car
Corp., 2 Cir., 188 F.2d 158; Garbose v. George A. Giles Co., 1 Cir., 183 F.2d 513. The same
rule applies here. Accord, Aldabe v. Evans, 83 Nev. 135, 425 P.2d 598 (1967).
Accordingly, this appeal is dismissed without prejudice to the right of appellant to present
any grievance to this court she may have after final determination of the third-party complaint
and counterclaim in civil action No. A 33910 in the court below.
____________
83 Nev. 253, 253 (1967) Misty Management v. Distr
MISTY MANAGEMENT CORPORATION and TRI-AVIATION CORPORATION; and the
STATE OF NEVADA Upon the Relation of Misty Management Corporation and
Tri-Aviation Corporation, Petitioners, v. THE FIRST JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for the County of Ormsby, HONORABLE RICHARD L.
WATERS, Jr., the Judge Thereon, and THOMAS DANIEL WYATT, Respondents.
No. 5282
May 29, 1967 428 P.2d 196
On Petition for rehearing.
Original proceeding to prohibit district court from hearing motion to vacate judgment on
ground that it was void. The Supreme Court made alternative writ permanent, 83 Nev. 180,
426 P.2d 728. On rehearing, the Supreme Court, Thompson, C. J., held that litigant seeking to
cancel a deed for fraud could not have demanded a jury trial as a matter of right, and jury
verdict in his favor was merely advisory and could be set aside without violating litigant's
constitutional rights.
Petition denied.
E. M. Gunderson, of Las Vegas, and Ball, Hunt, Hart and Brown and George E. McGill,
of Long Beach, California, for Petitioners.
Martillaro and Bucchianeri and Daniel R. Walsh, of Carson City, for Respondents.
Jury; Trial.
Litigant seeking to cancel a deed for fraud could not have demanded a jury trial as a matter of right,
and jury verdict in his favor was merely advisory and could be set aside without violating litigant's
OPINION ON PETITION FOR REHEARING
By petition for rehearing, Wyatt re-asserts the contention that his constitutional right to a
jury trial was violated when the court set aside the jury verdict and entered judgment n.o.v.
We rejected that contention. See, Misty Management v. District Court, 83 Nev. 180, 426 P.2d
728 (1967). We again reject it for the reasons initially expressed, but wish to add a further
comment on the point.
The action commenced by Wyatt against Misty Management was primary an equitable
proceedinga suit to cancel a deed for fraud. Consequently, Wyatt could not demand a jury
trial as a matter of right. A jury was allowed, and its verdict was merely advisory to the court.
Musgrave v. Casey, 68 Nev. 471, 235 P.2d 729 (1951); Johnston v. DeLay, 63 Nev. 1, 158
P.2d 547 (1945).
Rehearing denied.
Respondents in their petition for rehearing urge several grounds: (a) the court has
overlooked, misapplied, or failed to consider a statute, decision, or principle directly
controlling; (b) the court has overlooked or misconceived some material facts; (c) the court
has overlooked or misconceived a material question in the case; (d) there is serious doubt as
to the validity, correctness, or adequacy of precedent relied upon and the case itself is of great
precedent potential or of grave public concern.
The opinion in petition for rehearing in the Nevada case of Gershenhorn v. Stutz, 72 Nev.
312, 306 P.2d 121 (1956), quotes with approval from Rehearing in American Appellate
Courts, 44 Cal.L.Rev. 627, at page 658, as follows, It [petition for rehearing] should be
brief and it should not be argumentative; it should point to the conflict created [by] or the
controlling matter overlooked in the original decision. It should not be expected to also
serve the role of persuading the court how the conflict or error should be resolved. That is the
object of resubmission. The object of the petition is only to show that the petitioner is entitled
to a rehearing, not that he is entitled to a different decision on the merits.' The four grounds
for rehearing are suggested in the article quoted as typical. A fifth ground is suggested in the
article at page 640 as, The standard, perhaps more precisely called ideal, which appears
almost everywhere is that rehearing will be granted to avoid doing substantial injustice. This
ground is also relied upon by respondents. Thus, in a hard case such as this, and where
rehearing is sought and opposed with great earnestness, we should carefully consider the
reasons for and against the proposition.
In my opinion the principal ground upon which we should grant rehearing in this case is
what I fear to be a misapplication of a decision relied upon by the court. The court in its
decision says at page 3 (Advance Opinion No. 5282, filed April 17, 1967), The notion that a
favorable ruling upon a Rule 50(b) motion for judgment n.o.v. somehow violates the
constitutional guaranty of a jury trial has been rejected by the United States Supreme Court.
Neely v. Eby Construction Co., 386 U.S. 317 (1967); see also, Montgomery Ward & Co. v.
Duncan, 31 1 U.S. 243 (1940). Further discussion on this point is not warranted. The Neely
case was to some extent analyzed in my dissenting opinion, but it deserves more careful
analysis than given it either by the majority of the court or me, if it is to control the decision
in this case.
In Neely, supra, at page 1, Mr. Justice White said:
Petitioner brought this diversity action in the United States District Court for the District
of Colorado alleging that respondent's negligent construction, maintenance, and supervision
of a scaffold platform used in the construction of a missile silo near Elizabeth, Colorado, had
proximately caused her father's fatal plunge from the platform during the course of his
employment as Night Silo Captain for Sverdrup & Parcel, an engineering firm engaged in the
construction of a missile launcher system in the silo. At the close of the petitioner's evidence
and again at the close of all the evidence, respondent moved for a directed verdict.
moved for a directed verdict. The trial judge denied both motions and submitted the case to a
jury, which returned a verdict for petitioner for $25,000.
Respondent then moved for judgment notwithstanding the jury's verdict or, in the
alternative, for a new trial, in accordance with Rule 50(b), Federal Rules of Civil Procedure.
The trial court denied the motions and entered judgment for petitioner on the jury's verdict.
Respondent appealed, claiming that its motion for judgment n.o.v. should have been granted.
Petitioner, as appellee, urged only that the jury's verdict should be upheld.
The Court of Appeals held that the evidence at trial was insufficient to establish either
negligence by respondent or proximate cause and reversed the judgment of the District Court
with instructions to dismiss the action.' Without filing a petition for rehearing in the Court of
Appeals, petitioner then sought a writ of certiorari, presenting the question whether the Court
of Appeals could, consistent with the 1963 amendments to Rule 50 of the Federal Rules and
with the Seventh Amendment's guarantee of a right to jury trial, direct the trial court to
dismiss the action. The question presented by the case as stated by him on page 4 is, The
question here is whether the Court of Appeals, after reversing the denial of a defendant's Rule
50(b) motion for judgment notwithstanding the verdict, may itself order dismissal or direct
entry of judgment for defendant. He then added, As far as the Seventh Amendment's right
to jury trial is concerned, there is no greater restriction on the province of the jury when an
appellate court enters judgment n.o.v. than when a trial court does; consequently, there is no
constitutional bar to an appellate court granting judgment n.o.v. See Baltimore & Carolina
Lines, Inc. v. Redman, supra. Likewise, the statutory grant of appellate jurisdiction to the
courts of appeals is certainly broad enough to include the power to direct entry of judgment
n.o.v. on appeal.
The Neely case decided a different issue than is involved here. Nor do I have any particular
quarrel with the holding, but it is, in my opinion, misapplied as authority in this case.
Mr. Justice Black in his dissenting opinion in Neely succinctly points up the issue with
which we are concerned, when he said, Petitioner and respondent, both in their briefs on the
merits and in their oral argument, have vigorously and extensively addressed themselves to
the question of whether the lower court was correct in holding that petitioner's evidence of
negligence and proximate cause was insufficient to go to the jury.
jury. The Court, however, conveniently avoids facing this issuewhich if resolved in
petitioner's favor, would completely dispose of this caseby a footnote statement that this
issue was not presented in the petition for certiorari nor encompassed by our order granting
certiorari. Further, he says in a footnote, Certainly, if there were sufficient evidence to go to
the jury, then Rule 38(a) and the Seventh Amendment preclude the Court of Appeals from
directing a dismissal of petitioner's case after she had obtained a jury verdict.
The exact same issue is involved here. The trial judge was precluded by NRCP 38(a)
1
and
the Nevada Constitution, Art. 1, Sec. 3,
2
from granting a judgment n.o.v. where Wyatt
obtained a jury verdict on disputed evidence. A judgment n.o.v. can be constitutionally
granted only where, as a matter of law, reasonable men could not draw different inferences
from the facts. It must be a one-way verdict. Any different rule gives Nevada trial judges
power to deny absolutely the right of a trial by jury in any civil case.
The majority holds that litigation must come to an end and that the cause was res judicata
when Wyatt's appeal was dismissed. I agree with that rule, except when its effectiveness is
accomplished at the expense of a constitutional right to trial by jury.
The rule relating to judgments n.o.v. is the same as that relating to directed verdicts. In
Bliss v. DePrang, 81 Nev. 599, 602, 407 P.2d 726 (1965), this court said,
In brief, where there is testimony that is conflicting on material issues, the court should
not direct a verdict. Even where the trial court would feel obliged to set aside a verdict as
against the weight of the evidence, it is powerless to direct a verdict if there is substantial
evidence for the party against whom the motion is made. A directed verdict is proper only in
those instances where the evidence is so overwhelming for one party that any other verdict
would be contrary to the law. Greene v. Werven, 275 F.2d 134 (8th Cir. 1960). And where
the defect is jurisdictional it can be collaterally attacked. Vasquez v. Vasquez, 240 P.2d 319
(Cal. 1952), where it is said,A wrong decision made within the limits of the court's power is
error correctable on appeal or other direct review, but a decision which oversteps the
jurisdiction and power of the court is void and may be set aside directly or collaterally."
____________________

1
(a) Right Preserved. 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.

2
The right of trial by Jury shall be secured to all and remain inviolate forever; * * *.
the court is void and may be set aside directly or collaterally. (Emphasis supplied. Citations
omitted.)
A further ground for rehearing suggested by respondents is lack of jurisdiction of the trial
judge pursuant to District Court Rule 26
3
as construed in State v. Blackwell, 65 Nev. 405,
198 P.2d 280 (1948). Petitioners oppose this ground and urge the trial judge had jurisdiction
under Rules 3 and 4
4
of the amendment to special rules of the First Judicial District Court
and the Circuit Court Judges Act, NRS 3.040.
5
We should resolve these conflicting rules and
statutes which directly involve the jurisdiction of trial judges in Nevada.
In petitioners' reply brief to petition for rehearing it is suggested for the first time in this
litigation that the action was primarily an equitable proceeding. Thus, they argue, Wyatt could
not demand a jury trial as a matter of right. If so, is not the court's opinion relying on the
Neely case, supra, mere dictum?
____________________

3
1. Except as otherwise provided in subsection 2 of this rule, when any district judge shall have entered
upon the trial or hearing of any cause, proceeding or motion, or made any ruling, order or decision therein, no
other judge shall do any act or thing in or about such cause, proceeding or motion, unless upon the written
request of the judge who shall have first entered upon the trial or hearing of such cause, proceeding or motion.
2. The judges in any judicial district having more than one judge shall adopt such rules as they deem
necessary to provide for the division and disposal of the business of their judicial district.

4
Rule 3. Assignment of case.
A. No case shall be assigned to a department upon filing.
B. All civil and criminal actions, except as hereafter provided, shall be assigned to a department for all
further action therein when set for trial or pretrial, or when any contested matter has been heard therein. Probate
and guardianship matters, unless summary administration be ordered, shall remain in the department in which
first heard.
C. Reassignment will not be made unless upon good cause and order signed by both judges, or upon
disqualification, or as otherwise provided by Rule or law.
Rule 4. Motions and orders.
A. Ex-parte orders, uncontested motions and orders thereon, or other matters prior to departmental
assignment, may be dealt with by either judge.

5
1. The district judges provided for 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.
the court's opinion relying on the Neely case, supra, mere dictum? I do not feel we should
allow an entirely new theory to be injected into this case at this stage of the proceedings.
Respondents' petition for rehearing sets forth additional contentions, which if true,
sanction a fundamentally unjust result in this case. These contentions are:
(a) Based upon affirmance of the sale of Carson Hot Springs by Wyatt to Misty
Management as final by the decision of this court, Robert Wagner, real estate broker, has
made demand upon Wyatt for payment of $18,750 real estate commission.
(b) Misty Management has filed with the United States District Court in Las Vegas, a
proceeding for reorganization of a corporation under Chapter X of the Federal Bankruptcy
Act, wherein it alleges itself unable to pay its debts as they mature. Among its assets it lists
the Carson Hot Springs property with aggregate fair value of the real property and
improvements of $815,000. Among its liabilities it lists two unsecured promissory notes
owed to Dr. Wyatt in the principal amounts of $90,000 and $275,000, and representing the
unpaid purchase price of the Carson Hot Springs. Misty Management alleges equitable title in
itself, but also states the property to have been conveyed to Tri-Aviation Corporation without
consideration on August 6, 1966.
Where one of the grounds on a petition for rehearing is substantial injustice, Rehearing in
American Appellate Courts, supra, describes such a proceeding when grounded on substantial
injustice, As a procedural device * * * it permits an element of accommodation in an
otherwise rigid system; and in relieving rigidity it is a safety valve on a safety valve.' In the
traditional sense, this court is concerned principally with the rule of law. But we are also a
court of justice, and we should not hesitate, when justice requires it, to prevent an injustice.
I would grant the rehearing.
____________
83 Nev. 260, 260 (1967) Industrial Indem. v. Fidelity-Phenix
INDUSTRIAL INDEMNITY COMPANY, a Corporation, Appellant, v. FIDELITY-PHENIX
INSURANCE COMPANY, a Corporation, Respondent.
No. 5259
May 31, 1967 428 P.2d 200
Appeal from summary judgment. Eighth Judicial District Court, Clark County; George E.
Marshall, Judge.
Declaratory judgment action by insurer of owner of forklift truck against automobile
insurer of employer whose employee was injured while using forklift truck to unload truck.
The lower court granted summary judgment in favor of defendant and plaintiff appealed. The
Supreme Court, Thompson, C. J., held that where employer's automobile policy provided
coverage for injuries sustained while loading or unloading but specifically excluded
employees of insured and employee was injured while using defective forklift truck to unload
truck covered by policy, employer's insurer was under no duty to defend suit by employee
against owner and lessee of forklift truck.
Affirmed.
Elwin C. Leavitt, of Las Vegas, for Appellant.
Singleton, DeLanoy & Jemison, of Las Vegas, for Respondent.
Insurance.
Where automobile policy of employer provided coverage for injuries sustained while loading or
unloading but specifically excluded employees of insured and employee was injured while using
defective forklift truck to unload truck covered by policy, employer's insurer was under no duty to defend
suit by employee against owner and lessee of forklift truck.
OPINION
This is a declaratory relief action by Industrial Indemnity against Fidelity-Phenix. It is
Industrial's contention that the omnibus clause of an automobile insurance policy issued by
Fidelity covered the liability of A-1 Inland Rentals (the insured of Industrial) as an additional
insured, thereby requiring Fidelity to defend a tort action commenced by one Wambolt, an
employee truck driver of Pacific Clay Products, the insured of Fidelity.
insured of Fidelity. It is Fidelity's position that by reason of the employee exclusion
provision of the policy which it issued to Pacific Clay Products, it may not be held liable for
the claim of Wambolt against A-1 Inland Rentals and is not obliged to defend that case.
The district court granted summary judgment to Fidelity and this appeal by Industrial
followed. In order to understand the issues a brief reference to the underlying tort action is
essential. It arose out of the following circumstances. Pacific Clay Products sold a load of
concrete pipe to Ace Plumbing & Heating, and delivered it by truck to Las Vegas, Nevada.
Upon arrival, the truck driver, Wamboldt, an employee of Pacific Clay Products, commenced
unloading the pipe. To accomplish unloading he used a fork lift truck furnished by Ace
Plumbing & Heating, who in turn had rented the fork lift truck from A-1 Inland Rentals. The
seat of the fork lift truck was defective causing Wambolt to fall and incur injury. He
thereafter filed suit for damages against A-1 Inland Rentals and Ace Plumbing & Heating.
The plaintiff in the instant litigation, Industrial Indemnity, had issued a comprehensive
liability policy to A-1 Inland Rentals covering the use of the fork lift truck owned by A-1
Inland Rentals. The defendant in the case at hand, Fidelity-Phenix, had issued a
comprehensive automobile liability policy to Pacific Clay Products covering the use of the
truck in which the pipe was delivered. That policy contained an omnibus clause, a loading
and unloading clause, and an employee exclusion clause, to which we will hereafter refer.
A-1 Inland Rentals and its carrier, Industrial, tendered the defense of the tort case to
Fidelity asserting that the latter's automobile policy gave primary coverage and that the
Industrial policy was excess insurance. Fidelity refused that tender and this action for
declaratory relief ensued.
Since all agree that the comprehensive liability policy issued by Industrial to A-1 Inland
Rentals covers liability for the accident in question, we turn to examine the Fidelity policy to
determine whether it likewise is involved. The named insured of the Fidelity automobile
policy is Pacific Clay Products. However, the omnibus clause of that policy provides that the
term insured also includes any person while using an owned automobile * * * provided
the actual use of the automobile is by the named insured or with his permission, and the use
of an automobile includes the loading or unloading thereof. Notwithstanding the omnibus
clause defining the scope of the term insured, the Fidelity policy under exclusions
provides that this policy does not apply * * *
to bodily injury of any employee of the insured arising out of and in the course of his
employment by the insured * * *. We must consider the meaning to be given the omnibus
and employee exclusion clauses in the factual setting of this case.
Industrial argues that its insured A-1 Inland Rentals also qualifies as an insured under the
Fidelity Policy since Wambolt was unloading the truck within the loading and unloading
provision of that policy. Thus, being an insured under the Fidelity Policy, the employee
exclusion provision is inoperative since Wambolt was not the employee of A-1 Inland
Rentals. On the other hand, Fidelity insists that even if we assume coverage under the
loading and unloading clause, liability is precluded since the employee exclusion applies
where the injured employee is the employee of the named insured.
For the purposes of our decision in this case we shall assume that A-1 Inland Rentals
qualified as an additional insured under the loading and unloading clause of the Fidelity
policy, and shall rest our decision upon the construction to be accorded the employee
exclusion provision of that policy. On this narrow point case authority divides. Wisconsin, for
example, supports the position here taken by Industrial Indemnity, [See: Sandstrom v.
Clausen's Estate, 46 N.W.2d 831 (Wis. 1951); McMann v. Faulstich, 47 N.W.2d 317 (Wis.
1951)] while New Jersey, New York and others support the contention of Fidelity. [Maryland
Casualty Co. v. New Jersey Mfrs. Cas. Ins. Co., 128 A.2d 514 (N.J. Super. 1957); Standard
Surety & Casualty Co. v. Maryland Cas. Co., 119 N.Y.S.2d 795 (N.Y.Sp.Ct.App.Div. 1953);
Erie Railroad Co. v. American Automobile Ins. Co., 114 A.2d 873 (N.J.Super. Ct. 1955);
Clinchfield Railroad Co. v. United States F. & G. Co., 263 F.2d 932 (6 Cir. 1959); Campbell
v. American Farmers Mutual Ins. Co., 238 F.2d 284 (8 Cir. 1956).]
The Maryland Casualty Co. v. New Jersey Mfrs. Cas. Ins. Co. case, supra, is factually on
point with the case at hand and we prefer its resolution of the narrow question here presented.
In line with that opinion we hold that the employees exclusion clause of the Fidelity policy
precludes coverage for A-1 Inland Rentals as an additional insured under the Fidelity policy.
1
An injured employee of the named insured may not recover on that policy since liability for
injury to that person is expressly excluded. Had Pacific Clay Products, the named insured in
the Fidelity policy, been designated as a defendant in the underlying tort case, Fidelity,
would not be obliged to defend since liability to an employee of Pacific Clay Products was
excluded.
____________________

1
For an in depth study see Risjord and Austin, Who is the Insured Revisited 28 Ins. Counsel J. 100 (1961);
also: Brown and Risjord, Loading and Unloading, 29 Ins. Counsel J. 197 (1962).
insured in the Fidelity policy, been designated as a defendant in the underlying tort case,
Fidelity, would not be obliged to defend since liability to an employee of Pacific Clay
Products was excluded. Erie Railroad Co. v. American Automobile Ins. Co., supra;
Clinchfield Railroad Co. v. United States F. & G., supra; Campbell v. American Farmers
Mutual Insurance Co., supra. It seems to us an a fortiori proposition that when the defendant
in the tort action is not the named insured, Fidelity should not be in a worse position.
For the reasons expressed the summary judgment in favor of Fidelity is affirmed.
____________
83 Nev. 263, 263 (1967) Tehansky v. Wilson
DOROTHY TEHANSKY, Appellant, v. PEARLE WILSON and FIRST NATIONAL BANK
OF NEVADA, Co-Executors of the Estate of ERIC RANDOLPH WILSON, Deceased,
Respondents.
No. 5266
June 2, 1967 428 P.2d 375
Appeal from ruling of the Second Judicial District Court, Washoe County; Thomas O.
Craven, Judge.
Civil action, wherein motion was made to amend pleading after statute of limitations had
run. The trial court denied motion and appeal was taken. The Supreme Court held that
pleading which was defective for failure to contain required acknowledgment in proper
person could be cured by motion to amend, notwithstanding that motion was made after
statute of limitations had run.
Reversed.
Peter Echeverria, of Reno, for Appellant.
Wait and Shamberger, of Reno, for Respondents.
1. Pleading.
Absence of acknowledgment is defect in pleading which is not jurisdictional, but is ground for motion to
strike or set aside the pleading, and trial court should not disregard such defective pleading without
affording opportunity to pleader to supply an acknowledgment. DCR 30; NRCP 11, 15(a, c); NRS
137.080.
2. Limitation of Actions.
Pleading which was defective for failure to contain required acknowledgment in proper person could be
cured by motion to amend notwithstanding that motion was made after statute of limitations had run. DCR
30; NRCP 11, 15(a, c); NRS 137.080.
OPINION
Per Curiam:
The main issue on this appeal is whether a defective pleading under DCR 30 and NRCP
11, requiring acknowledgment of a pleading in proper person, can be cured by a motion to
amend under NRCP 15(a), notwithstanding that the motion was made after the statute of
limitations had run under NRS 137.080.
The Appellant contends that despite the acknowledgment requirement as set forth in DCR
30 and NRCP 11, such provisions are subject to a motion to amend pursuant to NRCP 15(a).
Appellant further contends that such motion should be given retroactive effect under NRCP
15(c) to the date of the original pleading, thus avoiding the statute of limitation violation
under NRS 137.080. We agree.
The absence of an acknowledgment is a defect in the pleading which is not jurisdictional,
but is merely a ground for a motion to strike or set aside the pleading. However, we have held
that the trial court cannot disregard such a defective pleading without affording an
opportunity to the pleader to supply an acknowledgment. Gregerson v. Collins, 80 Nev. 452,
396 P.2d 27, (1964); Cheek v. Bell, 80 Nev. 244, 391 P.2d 735 (1964).
[Headnotes 1, 2]
In the instant case, the trial court denied the opportunity to amend on the grounds that the
rule set forth in DCR 30 is mandatory, and since such defect was not cured prior to the
running of the statute of limitations, NRCP 15(a) and NRCP 15(c) were inapplicable. This
was error. In Weiler v. Ross, 80 Nev. 380, 395 P.2d 323 (1964), we stated, in holding that the
running of the statute of limitations did not bar a creditor from amending his complaint under
NRCP 15(a), that the incorrect designation in the complaint of the defendant as special
administrator when he was, in fact, the general administrator, was an inadvertance totally
unrelated to the merits of the controversy between the creditor and estate, and without
prejudice to the rights of either. In these circumstances we do not hesitate to declare that the
trial judge should have permitted the amendment in the interest of justice.
We conclude that such reasoning applies to the instant case, and hence the amendment
under NRCP 15(a) should have been allowed.
Reversed.
____________
83 Nev. 265, 265 (1967) In re Batten
In the Matter of the Petition of W. LEO BATTEN for
Permission to Write the Nevada State Bar Examination.
No. 5194
June 5, 1967 428 P.2d 195
Petition for permission to write state bar examination. The Supreme Court held that 1951
rule imposing precondition that an applicant for admission to bar possess a law degree from a
law school approved by the American Bar Association would not be waived as to petitioner
whose law school, at time of his graduation in 1931, was not so accredited.
Petition denied.
W. Leo Batten, in proper person, for petitioner.
Howard Cunningham, of Reno, for the Board of Bar Examiners.
Rule requiring applicant for admission to bar to possess a law degree from a law school approved by
the American Bar Association before he can be allowed to write bar examination does not offend
constitutional proscriptions and is reasonable. SCR 51(6).
The 1951 rule imposing precondition that an applicant for admission to bar possess a law degree from
law school approved by the American Bar Association before he may be allowed to write bar
examination was not waived as to petitioner whose law school, at time of his graduation in 1931, was not
so accredited. SCR 51(6).
OPINION
Per Curiam:
[Headnotes 1, 2]
W. Leo Batten has petitioned this court to waive the precondition that he possess a law
degree from a law school approved by the American Bar Association, and allow him to write
the (1967) bar examination. SCR 51(6) was adopted in 1951.
83 Nev. 265, 266 (1967) In re Batten
in 1951. The petitioner graduated from Fordham Law School in 1931. At that time Fordham
was not accredited by the committee on legal education and admissions to the bar of the
American Bar Association. The petitioner claims that we should not tolerate a retroactive
application of SCR 51(6). His claim however is not bottomed upon a legal right. Indeed it has
been decided that an admission requirement such as SCR 51(6) does not offend constitutional
proscriptions and that such a rule requiring graduation from an accredited law school is
reasonable. Hackin v. Lockwood, 361 F.2d 499 (9 Cir. 1966); Henington v. State Board of
Bar Examiners, 291 P.2d 1108 (N.M. 1956).
Though we appreciate the position in which the petitioner finds himself we are not
disposed to waive the requirement for him and deny a waiver to others. All must be treated
equally and to date we have not been convinced that the interests of the Bar of Nevada will be
promoted by eliminating SCR 51(6). Accordingly the petition is denied.
____________
83 Nev. 266, 266 (1967) Matthews v. State ex rel. Tax Comm'n
JOSEPH E. MATTHEWS, Petitioner, v. STATE OF NEVADA
ex rel. NEVADA TAX COMMISSION, Respondent.
No. 5358
June 6, 1967 428 P.2d 371
Original proceeding in prohibition.
Proceeding to determine validity of local school support tax law. The Supreme Court,
Thompson, C. J., held that local school support tax law enacted by Legislature in 1967 did
not violate constitutional proscription against amending a referred law except by direct vote
of people, although its effect was to increase rate of sales and use tax authorized by
referendum of voters in 1956, where Sales and Use Tax Act of 1956 was approved to provide
revenue for state and tax is paid into general fund while the school tax was enacted to provide
support for public schools and funds are earmarked for that purpose.
Petition denied and proceeding dismissed.
Springer and Newton, and Robert A. Grayson, of Reno, for Petitioner.
Russell W. McDonald and Frank W. Daykin, of Carson City, for Respondent.
Legislature is vested with all governmental powers not expressly denied to it by Constitution of
United States and state Constitution.
2. Taxation.
The power to tax is an essential attribute of sovereignty.
3. Statutes.
Local school support tax law enacted by Legislature in 1967 did not violate constitutional
proscription against amending a referred law except by direct vote of people, although its effect was to
increase rate of sales and use tax authorized by referendum of voters in 1956, where Sales and Use Tax
Act of 1956 was approved to provide revenue for state and tax is paid into general fund while the school
tax was enacted to provide support for public schools and funds are earmarked for that purpose. Const.
art. 4, 1; art. 11, 1 et seq.; art. 19, 1, subd. 2; NRS 372.010 et seq.
OPINION
The Nevada Constitution provides that a proposal which has become law by referendum of
the voters shall not be amended except by the direct vote of the people.
1
The purpose of this
proceeding in prohibition is to determine whether the Local School Support Tax Law, enacted
by the legislature in 1967, violates the constitutional proscription against amending a referred
law, since its effect is to increase the rate of the Sales and Use Tax authorized by referendum
of the voters in 1956. For the reasons hereafter expressed we hold that the 1967 Local School
Tax Support Law does not offend that constitutional proscription, and is therefore, a
constitutionally permissible taxing statute.
It is not useful to reproduce the two taxing laws. They are almost identical in language.
Both bear upon the same objects of taxation; that is to say, each imposes a sales tax upon the
sale of tangible personal property, and a use tax upon the storage and use of tangible
personal property.
____________________

1
Nev. Const. art. XIX, 1(2) reads: If a majority of the voters voting upon the proposal submitted at such
election votes approval of such statute or resolution or any part thereof, such statute or resolution or any part
thereof shall stand as the law of the state and shall not be amended, annulled, repealed, set aside, suspended or in
any way made inoperative except by the direct vote of the people. If a majority of such voters votes disapproval
of such statute or resolution or any part thereof, such statute or resolution or any part thereof shall be void and of
no effect.
sale of tangible personal property, and a use tax upon the storage and use of tangible personal
property. The rate of tax approved by the voters in 1956 is 2 percent, while the rate specified
in the 1967 School Tax is 1 percent. The method of collecting the tax is the same. It is
evident that the necessary effect of the School Tax is to increase the rate of the Sales and Use
Tax from 2 percent to 3 percent. However, there is a major difference between the two since
their purposes do not coincide. The Sales and Use Tax Act of 1956 was approved to provide
revenue for the State of Nevada, and that tax is paid into the general fund. The School Tax
was enacted to provide support for the public schools and the funds are earmarked for that
purpose. Within this framework, the narrow question presented is whether the constitutional
prohibition against amending a referred law (except by the direct vote of the people)
precludes legislative power to enact a separate but identical tax for a different governmental
purpose?
The answer must be found in an appreciation of our scheme of government and the desire
to give appropriate effect to the several constitutional provisions bearing upon the problem.
We are not here solely concerned with the referendum proscription. That provision is but a
part of the constitutional scheme. Of necessity we must also pay deference to art. IV, 1,
vesting the power to make law in the legislature, and to art. XI, commanding the legislature to
provide for public education.
[Headnotes 1, 2]
From the beginning we have recognized that the legislature is vested with all governmental
powers not expressly denied to it by the Constitution of the United States and the
Constitution of Nevada. This principle was first declared with respect to taxation in Gibson v.
Mason, 5 Nev. 283, 292 (1869), and has been reasserted from time to time. Riter v. Douglass,
32 Nev. 400, 109 P. 444 (1910); Tesoriere v. District Court, 50 Nev. 302, 258 P. 291 (1927).
The power to tax is an essential attribute of sovereignty, Ex parte Robinson, 12 Nev. 263
(1877). Of course, the referendum clause, which was added to our constitution in 1904, is a
limitation upon legislative power. However, it seems to us that a reasonable but narrow
construction of the prohibition against amending a referred law is essential if these other
important constitutional provisions are to be accommodated.
[Headnote 3]
It follows that the voters approval in 1956 of a sales and use tax for the general fund
cannot be a perpetual limitation upon legislative power to impose the same kind of tax
solely for the support of public education.
upon legislative power to impose the same kind of tax solely for the support of public
education. Neither may the voters expression in 1956 be deemed a directive to future
legislatures that the public schools are to be supported only through some other form of
taxation. Instead, the 1956 referendum must stand for what it isan approval by the voters of
a 2 percent sales and use tax for the general fund of Nevada. That law exists today in the
same form and for the same purpose. Such a construction of the referendum proscription
gives full effect to that provision without intimidating the legislative power to tax for public
education. Though we have been unable to find a case squarely on point, our view is
supported by the rationale of State v. Pelosi, 199 P.2d 125 (Ariz. 1948) and Staples v. Bishop,
286 S.W.2d 505 (Ark. 1956).
Another constitutional provision not heretofore mentioned possesses relevance to the
problem at hand, and lends strong support to the conclusion we have reached. Nev. Const. art.
IV, 17 provides, inter alia, that an act or section amended be re-enacted at length. This
provision has been construed in a series of cases from State v. Trolson, 21 Nev. 419 (1893) to
McCormick v. Sixth Judicial District Court, 69 Nev. 214, 246 P.2d 805 (1952). The most
valuable discussion is found in State v. Cole, 38 Nev. 488, 151 P. 944 (1915) where the court
quoted with approval the following language in Southern Pacific Co. v. Bartine, 170 F. 725
(C.C.D. Nev. 1909): * * * when a new act is complete in itself, when it does not purport to
be amendatory of any previous act, and requires no reference to another law to discover its
scope and meaning, * * * though the new law has the effect of modifying a former law, it is
not an amendatory statute * * *. That test is met here. The School Tax Act of 1967 is
complete in itself, does not purport to be amendatory of the 1956 Sales and Use Tax Act, and
no reference to the latter is needed to discover the scope and meaning of the school tax. The
petition for prohibition is denied and this proceeding is dismissed.
Taxation is a specific legislative method of providing income with which to carry out
governmental functions. State taxation is within the authority of the legislature. The question
of the wisdom, justice or expediency of legislation is for the legislative body and not for the
courts. If the cause is unpopular, and all taxes are, the avenue of the referendum is available
to the people to repeal this school support tax act if they so choose.
While we are not immune from public expressions, we cannot be sensitive to it. Ours is
purely a legal function, to determine the validity of the statute in the light of constitutional
requirements. Of long standing is the firmly established principle that a statute is presumed to
be constitutional, and in case of doubt as to its constitutionality the doubt must be resolved in
favor of its validity. Caton v. Frank, 56 Nev. 56, 44 P.2d 521; Viale v. Foley, 76 Nev. 149, at
155, 350 P.2d 721 (1960). Indeed, in some states a statute will not be declared void unless its
invalidity is, in the judgment of the court, beyond reasonable doubt. Verry v. Trenbeath, 148
N.W.2d 567 (N.D. 1967).
Justice Collins said in Fairbanks v. Pavlikowski, 83 Nev. 80, 423 P.2d 401, We are
required to give a legislative enactment the effect intended if we can determine the intention.
I agreed, expressing the view that the presumption of validity must prevail whenever it is
reasonable to do so. Here, the act now before us is distinctive in several major points. Its
designated purpose is to make funds available to the schools from the one percent tax, the
funds from the 1955 tax go into the general fund for all governmental purposes; the tax is one
percent as against two percent called for in the 1955 statute; the one percent money goes back
to the county of origin to be used for the support of their schools, and no such provisions
appear in the 1955 Sales Tax statute.
If the 1955 sales tax were repealed by the voters, the 1967 act could stand alone. This must
be considered as one of the factors used to determine its validity. We only know that the
people voted on the amount, two percent, that they would accept as a sales tax. (A proposed
increase to three percent was voted down in 1963.) However, we do know that though the
amount of the tax levy was considered, it is clear that no specific use for the money was
determined. It is reasonable to guess that the 1963 increase would have been approved by the
voters if it had been earmarked for school uses, but we do not know and have no right to
speculate.
Simply stated, the legislature, in its considered wisdom, enacted the 1967 school tax act
and I do not feel that the petitioner has overcome the presumption of its constitutionality.
When the people of Nevada approved the sales and use tax of 1955 by referendum vote in
1956, they consented to three things. They gave their approval to the legislature to be taxed
upon purchase by them of tangible personal property1 at the rate of 2 percent,2 with the
tax revenue produced to go to the general support of state government.3 The incidence or
burden of the tax was to fall squarely upon them as consumers.4
upon purchase by them of tangible personal property
1
at the rate of 2 percent,
2
with the tax
revenue produced to go to the general support of state government.
3
The incidence or burden
of the tax was to fall squarely upon them as consumers.
4

Because it was a legislative enactment referred to the people for their approval, the statute
when approved by them stood as the law of the state.
5

Thereafter it could not be amended, annulled, repealed, set aside, suspended or in any
way made inoperative except by the direct vote of the people. Article 19, Constitution of
Nevada, Section 1(2). The otherwise unlimited power of the legislature was thus
constitutionally limited directly and indirectly in amending the sales tax. This direct and
indirect limitation extended, in my belief, to all three facets of this particular tax, i.e.: (1) as a
tax upon the purchase of tangible personal property; (2) at the rate of 2 percent; (3) with the
proceeds going to the general support of state government.
It would appear the legislature did indirectly what it could not do directly. Counsel for
respondent State Tax Commission admitted during his argument that the legislature could not
constitutionally raise the present sales tax to 3 percent or order that 1 percent of it be devoted
to direct support of the schools instead of state government generally, without prior approval
of the people. That would be a direct amendment of the sales tax and prohibited.
My colleagues feel that by calling the new tax a local school tax, fixing the rate at 1
percent, directing its reversion to the county of origin for support of the schools, and
enacting it as a separate law, it avoids the clear import of Art.
____________________

1
372.105 Imposition and rate of sales tax. For the privilege of selling tangible personal property at retail a
tax is hereby imposed upon all retailers at the rate of 2 percent of the gross receipts of any retailer from the sale
of all tangible personal property sold at retail in this state on or after July 1, 1955.

2
See Footnote 1.

3
See preamble to Chapter 397, Stats. of Nev. 1955, at page 762, which reads, An Act to provide revenue for
the State of Nevada; * * *.

4
372.110 Method of collection of sales tax. The tax hereby imposed shall be collected by the retailer from
the consumer insofar as it can be done.

5
Art. 19, Constitution of Nevada, Section 1(2) which reads: When the majority of the electors voting at a
state election shall by their votes signify approval of a law or resolution, such law or resolution shall stand as the
law of the state, and shall not be overruled, annulled, set aside, suspended, or in any way made inoperative
except by the direct vote of the people. When such majority shall so signify disapproval the law or resolution so
disapproved shall be void and of no effect.
tax, fixing the rate at 1 percent, directing its reversion to the county of origin for support of
the schools, and enacting it as a separate law, it avoids the clear import of Art. 19, section
1(2) of the Nevada Constitution. They concede the method of collecting the two taxes is
identical and that the necessary effect is an increase in the present sales and use tax from 2
percent to 3 percent. But they say the purposes of the two taxes do not coincide and therefore
it is constitutionally permitted.
I feel the people have clearly made known their views in the matter of sales and use taxes
to the legislature. They limited the legislature not only as to source and rate, but also to
purpose. A sales tax has a well known incidence or burden and affects the taxpayers in a
clearly understood manner. Economically it casts a heavier burden on the low or
fixed-income groups than upon the wealthy or increasing income groups, especially where
food and drugs are taxed as they are in both the 1955 sales tax and the 1967 school support
tax. The people simply said, and our constitution supports them, we do not want further taxes
of this kind imposed upon us, regardless of what you might call them or where you intend to
spend them without our approval in advance.
I would declare the 1967 local school support tax unconstitutional.
____________
83 Nev. 272, 272 (1967) Brown v. Justice's Court
JAMES B. BROWN, DARRELL COOMES, ROBERT GROSBECK, HARLEN HARMON,
HARVEY W. HUNT, MARK LINZA and PATRICK McKENNA, Petitioners, v. JUSTICE'S
COURT OF CARSON TOWNSHIP, County of Ormsby, State of Nevada, Respondent.
No. 5333
June 7, 1967 428 P.2d 376
Petition for writ of prohibition to halt further proceedings after criminal arraignment.
Petitioners, who were charged with crime of escape from state prison where they had been
confined for conviction of crimes, filed original petition for writ of prohibition directed to
Justice of the Peace of Ormsby County. The Supreme Court, Zenoff, J., held that lapse of 32
days between booking of petitioners and their first appearance before judicial officer and
lapse of 18 more days before petitioners were arraigned in justice court, was not such delay,
without a further showing of some prejudicial effect to defendants' constitutional rights,
as to cause justice's court to lose its jurisdiction to proceed with case.
in justice court, was not such delay, without a further showing of some prejudicial effect to
defendants' constitutional rights, as to cause justice's court to lose its jurisdiction to proceed
with case.
Writ denied.
James C. Martin, Robert Potter, John Tom Ross, Gary A. Sheerin, William J. Crowell, J.
MacArthur Wright, of Carson City, Jack Christensen, of Zephyr Cove, for Petitioner.
Robert F. List, District Attorney, Ormsby County, for Respondent.
1. Habeas Corpus.
Petitioners, charged with escape from state prison where they had been confined for conviction of crimes
and aggrieved by allegedly unnecessary delay in being taken before magistrate, could not resort to remedy
by writ of habeas corpus, since they already were in lawful custody because of the convictions for which
they were originally imprisoned. NRS 171.200, 171.300, subd. 1.
2. Criminal Law.
Appeal may not be taken from denial by justice of the peace of motion to dismiss criminal proceeding,
since appeal to district court may only be taken from final judgment of justice's court. NRS 177.060,
subd. 1.
3. Prohibition.
Writ of prohibition was proper remedy for petitioners, charged with crime of escape from state prison
where they had been confined for conviction of crimes, where their motion to dismiss the proceedings
against them on ground of unnecessary delay had been denied by justice of the peace. NRS 171.200,
171.300, subd. 1, 177.060, subd. 1.
4. Arrest.
Federal requirements for bringing arrested person before magistrate without unnecessary delay are not
necessarily binding upon state courts. NRS 171.200, 171.300, subd. 1.
5. Criminal Law.
Primary reason for speedy arraignment by judicial officer is to inform accused of his privilege against
self-incrimination. NRS 171.200, 171.300, subd. 1.
6. Constitutional Law; Criminal Law.
Accused has right to speedy trial and due process of law to assure that he is not left to languish in jail.
NRS 171.200, 171.300, subd. 1.
7. Criminal Law.
Lapse of 32 days between booking of defendants, charged with crime of escape from state prison where
they had been confined for conviction of crimes, and defendants' first appearance before judicial officer,
and lapse of 18 more days before defendants were arraigned in justice court, was not such delay, without
further showing of some prejudicial effect to defendants' constitutional rights, as to
cause justice's court to lose its jurisdiction to proceed with case.
without further showing of some prejudicial effect to defendants' constitutional rights, as to cause justice's
court to lose its jurisdiction to proceed with case. NRS 171.200, 171.300, subd. 1.
OPINION
This is a petition for a writ of prohibition directed to the Justice of the Peace of Ormsby
County. The writ is based on the allegation that that officer lost jurisdiction over petitioners
charged with escape from the state prison.
On January 30, 1967, six of the petitioners were arrested and then booked in the county
jail of Ormsby County for escape from the state prison where they had been confined for
conviction of crimes.
1
The complaints for escape were filed against the petitioners on
February 23, 1967. On March 3 the petitioners, who had been placed in solitary confinement
(commonly referred to as the hole) in the prison, were formally arrested and taken before a
magistrate and informed of the charge against them and of their constitutional rights.
Thirty-two days had elapsed between the booking and their first appearance before a judicial
officer. Counsel was appointed for each of the petitioners on March 7, and on March 21 they
were arraigned in Justice Court. At that arraignment a motion to dismiss on their behalf was
denied and a date was set for preliminary examination. This petition for prohibition was then
sought to halt that proceeding and is primarily directed to the fact that the petitioners were not
brought before a magistrate without unnecessary delay as required by NRS 171.200
2
and
NRS 171.300(1).
3

[Headnotes 1-3]
1. Availability of a remedy is one of the problems that concerned the petitioners. Since
they already were in lawful custody because of the convictions for which they were
imprisoned, they could not at this time resort to habeas corpus.
____________________

1
The seventh petitioner was returned directly to the prison and was not booked on this date. However, in all
other respects the contentions are the same.

2
NRS 171.200. The defendant must, in all cases, be taken before the magistrate without unnecessary
delay.

3
NRS 171.300(1). Except as provided in subsection 2, when an arrest is made without a warrant by a peace
officer or private person, the person arrested must, without unnecessary delay, be taken before the nearest or
most accessible magistrate in the county in which the arrest is made, and a complaint, stating the charge against
the person, must be laid before such magistrate.
custody because of the convictions for which they were imprisoned, they could not at this
time resort to habeas corpus. Ex parte Sheply, 66 Nev. 33, 202 P.2d 882 (1949); Wells v.
People of State of California, 352 F.2d 439 (9th Cir. 1965); Commonwealth v. Ashe, 16 A.2d
668 (Pa. 1940); Eaton v. Beto, 368 F.2d 839 (5th Cir. 1966); McNally v. Hill, Warden, 293
U.S. 131 (1934); Boseant v. Fitzharris, 370 F.2d 105 (9th Cir. 1966); Schack v. State, 194
So.2d 53 (Fla. 1967); State v. Adams, 419 P.2d 739 (Ariz. 1966). Likewise, they could not
appeal from the denial of their motion to dismiss the proceeding by the justice of the peace.
NRS 177.060(1);
4
Allgood v. State, 78 Nev. 326, 372 P.2d 466 (1962); People v. Wilson, 32
Cal.Rptr. 44 (Cal. 1963); People v. Aguilar, 344 P.2d 880 (Cal. 1959); State v. Roberts, 153
N.E.2d 203 (Ohio 1957); People v. Goldman, 213 N.Y.S.2d 573 (N.Y. 1961); United States
v. Golden, 239 F.2d 877 (2nd Cir. 1956); United States v. Foster, 278 F.2d 567 (2nd Cir.
1960); Chereton v. United States, 256 F.2d 576 (6th Cir. 1958). Therefore, under these
circumstances, prohibition, if successful, would provide speedy and adequate relief. Hunter v.
Justice Court, 223 P.2d 465 (Cal. 1950); Providence Baptist Church v. Superior Court, 251
P.2d 10 (Cal. 1953); Coughlan v. Justice Court of Kern River Judicial Dist., 267 P.2d 368
(Cal. 1954); Martin v. Superior Court, 394 P.2d 211 (Ariz. 1964); State v. District Court of
Fourteenth Jud. Dist., 393 P.2d 54 (Mont. 1964); State v. Davison, 420 P.2d 842 (Mont.
1966).
[Headnote 4]
2. The right of an arrested person to be brought before a magistrate without unnecessary
delay after his arrest is afforded by statute in most states and does not per se import any direct
federal constitutional guarantee. Kent v. United States, 272 F.2d 795 (1st Cir. 1959). Thus,
the proscriptions of McNabb v. United States, 318 U.S. 332 (1943), Upshaw v. United States,
335 U.S. 410 (1948), Mallory v. United States, 354 U.S. 449 (1957), and Culombe v.
Connecticut, 367 U.S. 591 (1960), have generally only been applied to the federal courts.
These federal requirements are not necessarily binding upon the state courts. Brown v.
Turner, 257 F.Supp.
____________________

4
NRS 177.060(1). Appeals to district and supreme court. The party aggrieved in a criminal action, whether
that party be the state or the defendant, may appeal as follows:
1. To the district court of the county from a final judgment of the justice's court * * *.
734 (N.C. 1966); Allen v. Bannan, 332 F.2d 399 (6th Cir. 1964); Culombe v. Connecticut,
supra.
In the state courts the failure to bring the arrested person immediately before a magistrate
after his arrest has been asserted to make any confession or admission obtained from him
during the interim inadmissible if the delay was causally connected with the securing of the
confession. State v. Zukauskas, 45 A.2d 289, 292 (Conn. 1945); People v. Wallace, 220
N.E.2d 198 (Ill. 1966); People v. Davis, 220 N.E.2d 222 (Ill. 1966); People v. Garner, 44
Cal.Rptr. 217 (Cal. 1965); Washington v. People, 405 P.2d 735 (Colo. 1965). However, even
under the federal system the McNabb rule has been held inapplicable where at the time of the
admission the prisoner is in lawful custody. Rademacher v. United States, 285 F.2d 100 (5th
Cir. 1960). (Escapee from prison recaptured.)
[Headnotes 5-7]
Our statutes require arraignment after arrest without unnecessary delay. NRS 171.200,
171.300(1). One of the primary reasons for a speedy arraignment by a judicial officer is to
inform the accused of his privilege against self-incrimination. Greenwell v. United States,
336 F.2d 962, 966 (D.C. Cir. 1964). Also, the accused has a right to a speedy trial and due
process of law to assure that he is not left to languish in jail. State v. Maldonado, 373 P.2d
583 (Ariz. 1962); Randle v. State, 217 N.E.2d 48 (Ind. 1966). However, at this stage of the
proceedings the delay between arrest and arraignment has not been inimical to the interests of
the petitioners. We find no basis for asserting the other possible grounds listed above under
the circumstances of this case. Mere delay alone in this factual setting, without a further
showing of some prejudicial effect to constitutional rights, does not cause a loss of
jurisdiction to proceed with the case. See Lovelace v. United States, 357 F.2d 306 (5th Cir.
1966). The case of Ex parte Ah Kee, 22 Nev. 374, 40 P. 879 (1895), heavily relied upon by
the petitioners, is inapposite because Ah Kee was deprived of his freedom, which is not the
situation here.
As to the petitioners' confinement in the hole at the prison, that is an administrative
practice subject to legislative or executive curiosity, not ours, as presented at this time.
The writ of prohibition is denied.
____________
83 Nev. 277, 277 (1967) Lagrange Constr. v. Kent Corp.
LAGRANGE CONSTRUCTION, INC., a Corporation, Appellant, v.
KENT CORPORATION, a Corporation, Respondent.
No. 5109
June 12, 1967 429 P.2d 58
Appeal from judgment dismissing cross-claim pursuant to Rule 41(b); First Judicial
District Court, Douglas County, Richard L. Waters, Jr., Judge.
The Supreme Court, Thompson, C. J., held that subcontractor's claim that it had ceased
further performance on contract only after it had submitted monthly billings and had not been
paid could be established by secondary evidence in absence of appropriate objection.
Reversed.
Robert F. List, of Carson City, James J. Halley, of Reno, and Carl R. Martillaro, of
Carson City, for Appellant.
Vargas, Dillon, Bartlett and Dixon, and Robert Marshall, of Reno for Respondent.
1. Trial.
Subcontractor's claim that it had ceased further performance on contract only after it had submitted
monthly billings and had not been paid could be established by secondary evidence in absence of
appropriate objection. NRCP 41(b).
2. Contracts.
Nonpayment of an installment when due may constitute a breach of contract justifying suspension of
performance by the contractor.
OPINION
The sole appellate issue is whether Lagrange Construction put on sufficient trial evidence
to preclude a Rule 41(b) dismissal of its cross-claim against Kent Corporation.
1
We think it
clear that enough evidence was introduced to make out a prima facie case. Therefore, we
reverse the dismissal order and remand for further proceedings.
____________________

1
The main action was commenced by Taylor-Jett Corporation against Lagrange Construction and Kent
Corporation. Lagrange confessed judgment to Taylor-Jett. The court trial below was upon the cross-claim of
Lagrange against Kent.
83 Nev. 277, 278 (1967) Lagrange Constr. v. Kent Corp.
[Headnotes 1, 2]
For the purposes of this opinion we need only recite that on May 11, 1961 Lagrange, as
contractor, agreed to construct sub-division roads for Kent in the Kingsbury sub-division,
Douglas County, Nevada. Inter alia, the contract provided that Lagrange shall render
monthly billing estimates for the work performed in the preceding month, payable on the 10th
of the following month. The gravamen of the cross-claim is that Lagrange performed work,
submitted monthly billings and was not paid, whereupon he ceased further performance. At
the time work ceased, Lagrange claims that Kent owed $43,788.61. Secondary evidence (i.e.,
testimony, instead of the billings) was offered to prove this claim and no appropriate
objection interposed. Such evidence, if believed, made out a prima facie case, since
non-payment of an installment when due may constitute a breach of contract justifying
suspension of performance by the contractor. 3A Corbin, Contracts 692; Guerini Stone Co.
v. Carlin Construction Co., 248 U.S. 334 (1919); cf. Cladianos v. Friedhoff, 69 Nev. 41, 240
P.2d 208 (1952). It is error to grant a Rule 41(b) dismissal in these circumstances. Schmidt v.
Merriweather, 82 Nev. 372, 418 P.2d 991 (1966).
Reversed and remanded for further proceedings.
Mowbray, D. J., and Gabrielli, D. J., concur.
____________
83 Nev. 278, 278 (1967) No. Las Vegas v. Pub. Serv. Comm'n
THE CITY OF NORTH LAS VEGAS, NEVADA, a Municipal Corporation, Appellant, v.
THE PUBLIC SERVICE COMMISSION OF NEVADA; DESERT WATER DISTRICT, a
Quasi-Municipal Corporation in Clark County, Nevada; and SUBURBAN WATER
COMPANY, INC., a Nevada Corporation, Respondents.
No. 5232
June 13, 1967 429 P.2d 66
Appeal from the First Judicial District Court, Ormsby County; Frank B. Gregory, Judge.
Proceeding to review orders of Public Service Commission approving transfer certificate
of public convenience and necessity for water system and denying application for transfer of
same certificate to plaintiff city. The lower court upheld orders of Commission, and the city
appealed. The Supreme Court, Collins, J., held that statute governing transferability of
certificate of public convenience is not unconstitutional as being unlawful delegation of
legislative authority.
Collins, J., held that statute governing transferability of certificate of public convenience is
not unconstitutional as being unlawful delegation of legislative authority.
Affirmed.
John P. Fadgen, City Attorney, North Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, John J. Sheehan, Deputy Attorney General, for
Respondent Public Service Commission.
George E. Franklin, Jr., District Attorney, John A. Porter, Deputy District Attorney, for
Respondent Desert Water District.
Edward J. Dotson, of Las Vegas, for Respondent Suburban Water Company, Inc.
1. Administrative Law and Procedure.
District Court should not interfere with administrative body or review its determinations other than to
keep it within the law and protect constitutional rights of public service agencies over which it has been
given control, and function of Supreme Court is the same when reviewing action of district court in such
a matter. NRS 704.540.
2. Administrative law and Procedure.
Neither trial court nor Supreme Court should substitute its judgment for administrator's determination
and should not pass upon credibility of witnesses or weigh evidence but limit review to determination
whether board's decision is based upon substantial evidence. NRS 704.540.
3. Waters and Water Courses.
Evidence sustained decision of Public Service Commission approving transfer of certificate of public
convenience and necessity for water system and denying application for transfer of same certificate to
plaintiff city. NRS 704.340, 704.370, 704.410, 704.540.
4. Carriers: Constitutional Law.
Statute governing transfer ability of certificate of public convenience is not unconstitutional as being
unlawful delegation of legislative authority. Const. art. 3, 1; NRS 704.410.
OPINION
The Public Service Commission approved the transfer of a certificate of public
convenience and necessity for a water system from Suburban Water Company, Inc., to
Desert Water District and denied an application for transfer of the same certificate to the
City of North Las Vegas.
system from Suburban Water Company, Inc., to Desert Water District and denied an
application for transfer of the same certificate to the City of North Las Vegas. North Las
Vegas sought review in the district court, which upheld both orders of the Public Service
Commission, and this appeal ensued.
At the time of the argument we announced informally our decision from the bench because
of the onset of hot weather and the urgent need to assure water to the users affected. We
affirmed the ruling of the court below, holding there was substantial evidence to support the
finding of the Public Service Commission and rejecting the constitutional challenge to NRS
704.410. We now render our formal opinion in the matter.
Suburban Water Company, a small public utility, serves an area, adjacent to but outside
the limits of North Las Vegas. It has about 384 users and produces, as well as distributes,
water for domestic and community purposes. Suburban was ordered by the Public Service
Commission to make certain capital improvements in its system. Rather than comply, it
decided to dispose of its system. North Las Vegas sought to acquire the system and the
certificate but was met with many protests, principally from users within the system. North
Las Vegas contended the area could best be served by it, though outside its corporate limits,
because it had an adequate source of water, storage facilities and could extend its distribution
system into the area and serve the users with efficiency and dependability and would avoid
duplication. The monthly charge then in effect would be raised $1.50, making a new flat
monthly rate of approximately $7.34 for the average user.
During this time a committee of protesting users formed a water district pursuant to NRS
Chapter 311, known as Desert Water District. The District not only opposed the transfer to
North Las Vegas but sought to purchase the system and transfer of the certificate to itself. It
offered financial, improvement and operating plans to the Commission.
The main objections to North Las Vegas taking over the system seemed to center on future
arbitrary rate increases to users; inability of users to effectively complain about operation of
the system and rates because being outside the city they have no political voice or influence;
absence of any supervision or control by the Public Service Commission if operated by the
city (NRS 704.340), and that North Las Vegas was seeking the system and certificate as
means of ultimately extending its corporate boundaries into the area. The city's application
was opposed openly by Clark County.
The Commission, pursuant to NRS 704.370 and 704.410, denied acquisition of the
system and transfer of the certificate to North Las Vegas.
denied acquisition of the system and transfer of the certificate to North Las Vegas. The
Commission approved the purchase by Desert Water District and transfer of the certificate,
authorized borrowing of $100,000 for acquisition, repair and improvement of the system, and
ordered an interim flat-rate charge of $5.00 per month until a permanent rate could be
established based upon experience. The certificate transfer was made subject to completion of
repairs and improvements previously ordered by the Commission and reasonably continuous
and adequate service to the public.
North Las Vegas sought review of the Commission's two orders in the district court
pursuant to NRS 704.540. The court ruled against its contentions, held the action of the
Commission was not arbitrary or unreasonable, that its decision was founded upon conflicting
evidence, and that the court would not substitute its judgment for that of the Commission.
This appeal resulted.
[Headnotes 1-3]
This court long ago established the scope and basis of review by a lower court of an
administrative body's decision. In Garson v. Steamboat Canal Co., 43 Nev. 298, 317, 185 P.
801 (1919), it was held: It was not intended that the courts should interfere with the
commission, or review its determinations, further than to keep it within the law and protect
the constitutional rights of the public service agencies over which it has been given control.
Accord: Randono v. Nevada Real Estate Commission, 79 Nev. 132, 379 P.2d 537 (1963);
Nevada Tax Commission v. Hicks, 73 Nev. 115, 310 P.2d 852 (1957). The function of this
court is the same when reviewing the action of the district court in such a matter. McKenzie
v. Shelly, 77 Nev. 237, 362 P.2d 268 (1961). Thus neither the trial court, nor this court,
should substitute its judgment for the administrator's determination. We should not pass upon
the credibility of witnesses or weigh the evidence, but limit the review to a determination that
the board's decision is based upon substantial evidence. The record reveals no abuse of
discretion. City of Henderson v. Henderson Auto Wrecking, 77 Nev. 118, 359 P.2d 743
(1961). We go no further than to say there was substantial evidence before the Public Service
Commission in this case and its ruling and the trial court's decision should be upheld.
[Headnote 4]
We do not feel there is any basis for the attack of North Las Vegas upon NRS 704.410 as
being an unlawful delegation of legislative authority in violation of Nevada Constitution,
Art.
of legislative authority in violation of Nevada Constitution, Art. 3, 1. North Las Vegas
contends the legislature failed to establish any standards whatsoever to guide the Commission
in determining whether to approve or disapprove transfer of a certificate of public
convenience and necessity and relies upon State Board of Dry Cleaners v. Thrift-D-Lux
Cleaners, 254 P.2d 29 (Cal. 1953). A cursory reading of NRS Chapter 704 dealing with
regulation of public utilities generally, discloses the lack of persuasion of that contention, and
in the absence of any clear demonstration of unconstitutionality, we disregard it.
Judgment of the trial court is affirmed.
____________
83 Nev. 282, 282 (1967) Riley v. State
RICHARD RILEY, Appellant, v. THE STATE
No. 5253
June 13, 1967 429 P.2d 59
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County;
Clarence Sundean, Judge.
Defendant was convicted in the trial court of second-degree kidnapping, rape and assault
with intent to kill and he appealed. The Supreme Court, Thompson, C. J., held that where
rape victim lost composure while testifying and upon her request courtroom was cleared of
spectators except for two newspaper reporters and public was readmitted for balance of trial
and testimony given during exclusion was later repeated when public was present, there was
no denial of public trial.
Affirmed.
Harvey Dickerson, Attorney General, Carson City; George E. Franklin, Jr., District
Attorney, and Earl P. Gripentrog, Deputy District Attorney, of Las Vegas, for Respondent.
1. Criminal Law.
Assigned errors were not considered where appropriate record to allow review was not made.
83 Nev. 282, 283 (1967) Riley v. State
2. Criminal Law.
Right to speedy and public trial is legislatively granted and is not provided for by state Constitution.
NRS 169.160, subd. 1.
Guaranty of Federal Constitution of right to speedy and public trial was treated as applicable to state
criminal trial. U.S.C.A.Const. Amend. 6.
4. Criminal Law.
Trial court must be accorded discretion to handle emergency situations as they arise during trial.
5. Criminal Law.
Where rape victim lost composure while testifying and upon her request courtroom was cleared of
spectators except for two newspaper reporters and public was readmitted for balance of trial and testimony
given during exclusion was later repeated when public was present, there was no denial of public trial.
NRS 169.160, subd. 1; U.S.C.A.Const. Amend. 6.
6. Criminal Law.
Upon appropriate request accused may receive copy of grand jury transcript.
7. Criminal Law.
Where defendant made no request for grand jury transcript either before or during trial, reversal could not
be predicated upon defendant's not having received grand jury transcript for trial use.
8. Criminal Law.
Action of trial court in trial of Negro defendant charged with rape of white female in admonishing
defense counsel when he asked victim question containing assumption that she had engaged in sexual
intercourse with other Negroes, when there was no evidence in record to support assumed fact, and in
ruling that counsel must have proposed exhibit marked for identification before interrogating witness and in
stating to defense counsel that question was argumentative and in admonishing defense counsel to ask
proper questions was correct and did not disclose racial bias.
9. Criminal Law.
Where only one of prosecution's statements during summation in trial of Negro defendant charged with
rape of white female referred to defendant's race and defense counsel opened and closed summation by
dwelling upon subject of race and every objection of defense counsel was sustained and jury was instructed
to disregard prosecutor's remark, there was no showing of racial bias amounting to misconduct.
OPINION
[Headnote 1]
A jury convicted Riley, an adult Negro male, of three crimes upon the person of Monna
Mitchell, an adult, white female: second degree kidnaping, rape, and assault with intent to
kill.
83 Nev. 282, 284 (1967) Riley v. State
female: second degree kidnaping, rape, and assault with intent to kill. Riley's appeal does not
challenge the sufficiency of the evidence to support the convictions. He does contend,
however, that he was denied a public trial in violation of the Sixth Amendment to the Federal
Constitution; that he was seriously prejudiced by not having a grand jury transcript for trial
use; and that the trial judge and prosecutor each exhibited a racial bias in presiding over and
presenting the case thereby precluding any possibility of a fair trial.
1
We have concluded that
none of these claims has merit, and affirm.
1. Public trial. About 40 spectators were in the courtroom when the victim was called to
testify as a part of the State's case in chief. She had not yet described the act of intercourse but
the stage was set for that story. She was asked to identify the defendant whereupon she lost
her composure, and started to tremble and cry. The court recessed. The witness, attended by
the court reporter and clerk, both females, was taken to another room, administered a
tranquillizer, and made as comfortable as possible. She returned to the courtroom about ten
minutes later. Meanwhile she had advised the court of her desire to have the courtroom
cleared before proceeding with her testimony. Over the objection of defense counsel the
courtroom was cleared except for two newspaper reporters who were allowed to remain. The
victim then testified to the details of the rape and related circumstances. The public was
re-admitted for the balance of the trial. The same ground covered by the witness in her
testimony, was again related by her later during the trial when the public was present. She
was apparently able to recover her composure and repeat the lurid tale before all who were
then present and wished to listen.
[Headnotes 2, 3]
The Nevada Constitution does not contain a speedy and public trial provision. Oberle v.
Fogliani, 82 Nev. 428, 420 P.2d 251 (1966). That right is legislatively granted in this state.
NRS 169.160(1). Of course, the Sixth Amendment to the Federal Constitution provides that
In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial.
The speedy trial requirement was recently extended to state cases (Klopfer v. North Carolina,
386 U.S. 213, decided March 13, 1967, and holding that a state may not indefinitely postpone
prosecution of an indictment without stated justification over the objection of an accused who
has been discharged from custody), but the public trial provision has not yet been so
extended {Gaines v. Washington 277 U.S. S1 {192S)), and its vitality at the moment is
restricted to federal court trials. However, we share the view expressed in United States
v. Herold, 246 F.Supp. 363 {1965), that this protection will join other Sixth Amendment
safeguards {Gideon v. Wainwright, 372 U.S. 335 {1963), right to counsel; Pointer v.
Texas, 3S0 U.S. 400 {1965), right to confrontation; Klopfer v. North Carolina, supra, right
to a speedy trial) as a fundamental right applicable to state court cases.
____________________

1
Two additional errors are assigned but cannot be considered since an appropriate record to allow review
was not made.
83 Nev. 282, 285 (1967) Riley v. State
from custody), but the public trial provision has not yet been so extended (Gaines v.
Washington 277 U.S. 81 (1928)), and its vitality at the moment is restricted to federal court
trials. However, we share the view expressed in United States v. Herold, 246 F.Supp. 363
(1965), that this protection will join other Sixth Amendment safeguards (Gideon v.
Wainwright, 372 U.S. 335 (1963), right to counsel; Pointer v. Texas, 380 U.S. 400 (1965),
right to confrontation; Klopfer v. North Carolina, supra, right to a speedy trial) as a
fundamental right applicable to state court cases. Accordingly, we shall treat this claim of
error as one resting upon a federal right applicable to a state criminal trial.
The right to a public trial is deeply rooted in our history. We distrust secret inquisitions.
United States v. Consolidated Laundries Corp., 266 F.2d 941, 942 (2 Cir. 1959). The
presence of spectators guards against the possible abuse of judicial power, In re Oliver, 333
U.S. 257 (1948), and tends to assure trustworthy testimony, People v. Jelke, 123 N.E.2d 769
(N.Y. 1954). Indeed, a witness, unknown to either side, but possessing valuable information,
may be drawn to a public trial, and by his mere presence affect the testimony of a witness
against the accused. Tanksley v. United States, 145 F.2d 58 (9 Cir. 1944). These are the main
supportive reasons for the constitutional right to a public trial, and if these reasons for the
right are honored, the right itself is not violated.
[Headnotes 4, 5]
In the matter at hand we find no violation of the federal safeguard to a public trial. This
trial was not a secret inquisition. There is no suggestion of a abuse of judicial power. The
exclusionary order was not absolute. News reporters were allowed to remain. The victim's
testimony was repeated when the court was open to the public, and the reiteration was in
harmony with her prior story. Spectators were excluded temporarily until the victim regained
her composure, and were then re-admitted for the balance of the trial. Perhaps it would have
been the wiser course to have continued the trial for a longer period of time since excluding
the public is an extreme measure. Nonetheless, the trial court must be accorded discretion to
handle emergency situations as they arise during trial. The totality of circumstances here
present convince us that the intendment of the public trial proscription was not violated by the
exclusionary order.
2
[Headnotes 6, 7]
____________________

2
For worthwhile reading on the subject of public trial see: 42 Notre Dame Law. 499 (1967); 41
N.Y.U.L.Rev. 1138 (1966); 18 Stan.L.Rev. 945 (1966).
83 Nev. 282, 286 (1967) Riley v. State
[Headnotes 6, 7]
2. Grand Jury transcript. The appellant apparently first thought of this claim of error while
writing his brief on appeal. A request was not made for the transcript either before or during
trial. We suppose the explanation is that when this case was tried an accused was not entitled
to demand and receive such transcript. See dictum, Victoria v. Young, 80 Nev. 279, 392 P.2d
509 (1964). Since the trial of this case the dictum of Victoria, supra, has been expressly
overruled (Shelby v. District Court, 82 Nev. 204, 414 P.2d 942 (1966) and, upon appropriate
request, an accused may now receive a copy of the grand jury transcript. Ivey v. State, 82
Nev. 427, 420 P.2d 853 (1966). We are asked to apply the new doctrine retroactively. There
is no good reason to do so. The Shelby and Ivey cases are bottomed upon the principle that an
accused has the right to test probable cause to hold him for trial. The reason for the principle
vanishes after trial has occurred.
[Headnote 8]
3. Court and prosecutor misconduct. The appellate theme is that the judge and prosecutor
each exhibited a racial bias which precluded a fair trial. We have searched the record with
care to ascertain whether the charge has substance. We find none. To the contrary, the record
shows that the judge supervised a difficult case in commendable fashion. The charge of
misconduct rests upon the following occurrences: a ruling that counsel must have a
proposed exhibit marked for identification before interrogating the witness about it; a
statement to defense counsel that his question was argumentative; an admonition that defense
counsel should ask proper questions and refrain from commenting upon the witnesses'
response; and, finally, an admonition to defense counsel when he asked the victim a question
containing an assumption that she had engaged in sexual intercourse with other Negroes,
when there was no evidence in the record to support the assumed fact. It is apparent that in
each instance the court acted correctly.
[Headnote 9]
The charge that the prosecutor was guilty of improper statements during summation has
some merit. None of the statements, however, is sufficiently serious to suggest that the jury
was influenced or the defendant's rights affected. On every occasion when objection was
made, the judge sustained defense counsel and instructed the jury to disregard the prosecutor's
remark. No useful purpose is served by repeating the statements. Only one of them referred to
the defendant's race and cannot be deemed prejudicial in the context of this case, since the
victim was Caucasian and the accused, Negro.
83 Nev. 282, 287 (1967) Riley v. State
cannot be deemed prejudicial in the context of this case, since the victim was Caucasian and
the accused, Negro. Intercourse was admitted by eachthe former asserting that it was
against her will, and rapethe latter testifying that he paid $50 for her consent to the sex act.
In any event, as we read this record the subject of race was more in the thoughts of defense
counsel than in the mind of any other participant. He opened and closed his summation by
dwelling upon that subject.
Affirmed.
____________
EARL FAIRMAN, JR., Appellant, v. THE STATE
No. 5183
June 15, 1967 429 P.2d 63
Appeal from conviction for sale of narcotics. Eighth Judicial District Court, Clark County;
John Mowbray, Judge.
Prosecution for possession and sale of narcotics. The trial court entered a judgment of
conviction as to count charging sale of narcotics and the defendant appealed. The Supreme
Court, Zenoff, J., held that error committed in allowing defendant to be questioned about
prior felony conviction when state was unprepared to prove its existence in event of denial
because judgment had not been entered in prior case was harmless error in view of record in
case in which trial court granted defense counsel's motion to strike testimony about prior
conviction and instructed jury to disregard it.
Affirmed.
1. Witnesses.
Accused who offers himself as a witness may be examined on whether he has been previously convicted
of a felony, and proper evidence of the prior conviction, in event he denies such past history, is record of
judgment of conviction. NRS 48.130.
2. Witnesses.
Verdict of jury is not judgment of court nor is it the final determination for purpose of proving that an
accused, who has offered himself as a witness, had been previously convicted of a felony. NRS 48.130.
3. Witnesses.
Where no final judgment had been entered in previous case, defendant's denial of his prior conviction of
a felony was the truth since entry of judgment on verdict and sentencing had been postponed past his
present trial, and it was error for prosecution to ask question of defendant about his prior conviction of
felony since it was unable to prove its existence in event of defendant's denial. NRS 48.130.
4. Criminal Law.
Error committed in allowing defendant to be questioned about prior felony conviction when state was
unprepared to prove its existence in event of denial because judgment had not been entered in prior case
was harmless error in view of record in case in which trial court granted defense counsel's motion to strike
testimony about prior conviction and instructed jury to disregard it. NRS 48.130, 169.110.
5. Criminal Law.
When counsel has ground for asking question and timely objection is made and sustained, any error in
question is not prejudicial.
6. Criminal Law.
Verdicts finding defendant not guilty as to count of indictment charging possession of narcotics and
finding defendant guilty as to count charging sale of narcotics, returned in case in which jury was properly
instructed that if possession was incident to sale there could be only one conviction, were consistent.
OPINION
By the Court Zenoff, J.:
Earl Fairman, Jr., was indicted on March 16, 1966 for the sale of narcotics (Count I) and
for possession of narcotics (Count II), both arising out of the same transaction. He was
convicted for the sale and acquitted on the count of possession. He appeals from the denial of
his motion for new trial on the grounds that the prosecution committed reversible error by
questioning him about a prior conviction; and on the further ground that the jury's verdict,
finding him guilty of sale but not guilty of possession, was inconsistent and invalid.
1. The first ground of alleged error relates to a prior trial upon the same charges. The trial
occurred a week before in another department of the same court, and arose from a different
transaction than the one involved here. The jury trial returned a verdict of guilty which was
later reversed in Fairman v. State, S3 Nev. 137
returned a verdict of guilty which was later reversed in Fairman v. State, 83 Nev. 137, 425
P.2d 342 (1967).
During the cross-examination of Fairman in the present trial, he was asked if he had ever
been convicted of a felony. When Fairman answered in the negative, the prosecution in
rebuttal called the court clerk, who had been in attendance at the previous trial. She testified
to the fact of the jury verdict of guilty. The essence of the objection to this assignment of
error is that the final judgment had not yet been entered in the previous case.
[Headnote 1]
When an accused offers himself as a witness, he may be examined on whether he has been
previously convicted of a felony. NRS 48.130. Proper evidence of the prior conviction, in the
event he denies such past history, is the record of a judgment of conviction. 3 Wigmore,
Evidence 980 (3rd Ed. 1940).
[Headnotes 2, 3]
A verdict of the jury is not a judgment of the court, nor is it the final determination.
Allgood v. State, 78 Nev. 326, 328, 372 P.2d 466 (1962); People v. Marendi, 107 N.E. 1058,
1063 (N.Y. 1915). It follows that Fairman's answer of No to the question was the truth,
because the entry of judgment on the verdict and sentencing had been postponed past this
present trial. He contends now that the prosecution was unable, at the time the question was
propounded, to show by competent evidence that his answer was untrue, that no further
question on the subject should have been permitted, and, in fact, that the question should not
have been asked at all. People v. Marendi, supra.
It is true that without a properly authenticated copy of Fairman's conviction of the week
before, no proof could otherwise be made of it. It was error for the prosecution to ask the
question because it was unprepared to prove its existence in the event of Fairman's denial.
The error was compounded by attempting to introduce the verdict through the testimony of
the court clerk who was present when the verdict was returned. When the trial court realized
the incompetency of the testimony, it granted defense counsel's motion to strike the testimony
and instructed the jury to disregard itand properly so.
[Headnote 4]
Appellant cites State v. Stago, 312 P.2d 160, 161 (Ariz. 1957), as authority that, under
these circumstances, the error of allowing Fairman's past history before the jury was
inherently prejudicial, thus compelling reversal.
of allowing Fairman's past history before the jury was inherently prejudicial, thus compelling
reversal. In our view, however, State v. Polan, 278 P.2d 432, 437 (Ariz. 1954), softens that
conclusion considerably and belies the use of that holding as support for so far-reaching a
statement.
[Headnote 5]
A close review of the record reflects that even had the error not been committed, the
verdict would have been the same. We are satisfied beyond a reasonable doubt that the error
committed was harmless. NRS 169.110; Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705
(1967). Cf. Walker v. Fogliani, 83 Nev. 154, 425 P.2d 794 (1967). Moreover, where counsel
has grounds for asking a question, and timely objection is made and sustained, any error in
the question is not prejudicial. State v. Swiger, 214 N.E.2d 417, 427 (Ohio 1966).
[Headnote 6]
2. We now direct our attention to the assertion that the verdicts of the jury, not guilty as to
possession but guilty as to sale, were inconsistent and therefore invalid. The verdicts were
consistent and consonant with our holding in Fairman v. State, supra. In the first Fairman case
we held that if the possession was incident to the sale there could be only one
convictioneither for sale or possession, but not both. The court so instructed the jury in the
present case. The jury followed that instruction when it found the defendant guilty of one
crime and not guilty of the other. We perceive no error.
The judgment is affirmed.
I agree that the prosecutor erred when he asked the defendant whether he had been
convicted of a felony. However, I do not share the majority's view that the mistake was
harmless. The improper suggestion that the defendant is an ex-felon is per se damaging.
Prejudice inheres in that suggestion, and the defendant's right to a fair trial is not adequately
protected by the court's admonition to the jury to ignore the suggestion and forget it.
My view was first expressed on this subject in a dissenting opinion in Walker v. State, 78
Nev. 463, 376 P.2d 137 (1962). There, the suggestion was placed before the jury by the
prosecutor in his opening statement. Five years later the Walker case came before us once
more.
Walker case came before us once more. Walker v. Fogliani, 83 Nev. 154, 425 P.2d 794
(1967). On that occasion, Mr. Justice Zenoff, the writer of the majority opinion in today's
case, shared my view, stating: Reference to past criminal history is reversible error. The
same underlying theme was again expressed in my dissenting opinion in Pacheco v. State, 82
Nev. 172, 414 P.2d 100 (1966), where comment about the defendant's status as an ex-felon
came to the jurors attention during trial through the reading of newspapers. The cases of
Garner v. State, 78 Nev. 366, 374 P.2d 525 (1962), and Tucker v. State, 82 Nev. 127, 412
P.2d 970 (1966), bear generally upon the same subject. The convictions in Garner and Tucker
were reversed and a new trial ordered.
It is desirable to strive for a consistent treatment of this issue. Many errors do not carry
inherent prejudice and the appellate court may properly exercise the discretion given by the
doctrine of harmless error and decide whether to affirm or reverse. On the other hand, it is the
common experience of man that other kinds of error inevitably tend to divert the jurors
attention from the merits of the case and encourage a conviction on false assumptions or
irrelevant information. The false suggestion that the defendant is an ex-felon falls within this
category of error, and, in my opinion, leaves no room for resort to the rule of harmless error.
In this case the suggestion that the defendant had been found guilty of a crime the week
before in another case was forcefully placed before the jury. When the defendant testified, he
denied having been convicted of a felony. His denial was correct. The jury's guilty verdict of
the previous week was not a conviction. Allgood v. State, 78 Nev. 326, 372 P.2d 466 (1962).
That verdict could be set aside and a new trial granted before the time appointed for
pronouncement of judgment and sentence. NRS 175.540. Judgment had not been entered
upon that verdict. A conviction had not occurred. In an effort to impeach the defendant, the
prosecutor, on rebuttal, called the deputy county clerk, who testified, over vehement
objection, that she was present in court the week before when the jury returned a guilty
verdict against the defendant. Of course, her testimony was not proof. An authenticated
record of the conviction (had there been one) is required. A judicial record of this state is to
be proved by the original or a certified copy thereof. NRS 49.040. The judicial record of
another state, if to be accorded full faith and credit, shall be proved by an exemplified copy of
such record. 28 U.S.C. 1738. It is manifest that the court should have sustained defense
counsel's objection to the clerk's testimony for two reasons; the defendant had not, in
fact, been convicted of a felony; and, in any event, the method of proof was improper.
objection to the clerk's testimony for two reasons; the defendant had not, in fact, been
convicted of a felony; and, in any event, the method of proof was improper. The court's action
striking the testimony from the record came too late. The damage had been accomplished.
Each juror knew that the defendant had previously been found guilty of a crime. The court
admonition could not erase that knowledge, nor am I willing to assume that the admonition
was followed in deciding the merits of the present case.
____________
83 Nev. 292, 292 (1967) White v. State
ROBERT LEE WHITE, Appellant, v. THE STATE
No. 5102
June 19, 1967 429 P.2d 55
Burglary prosecution. The trial court found defendant guilty and adjudged him an habitual
criminal and defendant appealed. The Supreme Court, Compton, D. J., held that statute
imposing increased penalty for habitual offender was constitutional and statutory presumption
that unlawful entry in building was made with intent to commit felony was valid.
Affirmed.
Gary A. Sheerin, of Carson City, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and Gene
Barbagelata, Deputy District Attorney, Washoe County, for Respondent.
1. Constitutional Law; Criminal Law.
Statutes that increase punishment for habitual offenders do not deny equal protection and are
constitutional. NRS 207.010; U.S.C.A.Const. Amend. 14.
2. Criminal Law; Jury.
Habitual criminal proceeding does not charge separate offense nor deprive defendant of jury trial but is
held solely to determine facts, which if true, will increase punishment. NRS 207.010, subd. 6.
83 Nev. 292, 293 (1967) White v. State
3. Burglary; Constitutional Law; Criminal Law.
Statutory presumption that party who unlawfully enters building or vehicle shall be deemed to have
broken and entered the same with intent to commit grand or petty larceny or felony therein unless such
unlawful entry shall be shown to have been made without criminal intent does not compel defendant to be a
witness against himself and does not deny due process. NRS 205.065; U.S.C.A.Const. Amend. 14.
Legislature has power to establish inferences from facts proven provided there is rational connection.
5. Criminal Law.
Where record revealed no antagonism that warranted finding of prejudice and there was no showing that
evidence proposed to be introduced as to one defendant would be prejudicial as to other defendant, denial
of severance was not improper. NRS 205.065.
6. Jury.
It was not error to require both defendants to join in their peremptory challenges to jury. NRS 175.015.
7. Criminal Law.
Where state's witness testified that defendant had taken pen and pencil set from burglarized premises and
pen and pencil set was in defendant's property envelop, court did not err in allowing pen and pencil set in
evidence. NRS 205.065.
OPINION
By the Court, Compton D. J.:
Appellant and another were convicted by a jury of the crime of burglary, first degree. In a
separate hearing, proof of this conviction and of two previous felony convictions prompted
the court to adjudge appellant an habitual criminal pursuant to NRS 207.010, and he was
sentenced accordingly.
The following five issues are before the court on this appeal:
1. Does NRS 207.010 violate the equal protection clause of the Federal Constitution and
the right to trial by jury guaranteed by the Constitution of the State of Nevada?
2. Does NRS 205.065 violate due process of law?
3. Did the trial court commit prejudicial error in refusing to grant appellant's motion for a
separate trial?
4. Did the trial court commit prejudicial error in requiring that defendants join in their
peremptory challenges of individual jurors?
5. Did the trial court commit error in allowing a pen and pencil set to be introduced into
evidence as state's Exhibit "A"?
83 Nev. 292, 294 (1967) White v. State
pencil set to be introduced into evidence as state's Exhibit A?
We will consider these issues seriatim.
[Headnote 1]
1. Appellant's charge that NRS 207.010
1
violates the Fourteenth Amendment of the
United States Constitution which provides for equal protection of the laws is neither novel,
nor does it possess merit. The matter has long been settled in the United States Supreme
Court that such statutes that increase punishment for habitual offenders are constitutional. In
McDonald v. Massachusetts, 180 U.S. 311, 312-313 (1901), that court said:
* * * Statutes imposing aggravated penalties on one who commits a crime after having
already been twice subjected to discipline by imprisonment have long been in force in
Massachusetts; and effect was given to previous imprisonment, either in Massachusetts or
elsewhere in the United States, by the statute of 1827, c. 118, 19, and by the Revised
Statutes of 1836, c. 133, 13. It is within the discretion of the legislature of the State to treat
former imprisonment in another State, as having the like effect as imprisonment in
Massachusetts, to show that the man is an habitual criminal. The allegation of previous
convictions is not a distinct charge of crimes, but is necessary to bring the case within the
statute, and goes to the punishment only.
____________________

1
Habitual criminals: Definition; punishment; trial of primary offense.
petit larceny, or of any felony, who shall previously have been twice convicted, whether in this state or
or who shall previously have been three times convicted, whether in this state or elsewhere, of petit larceny, or of
any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, shall be adjudged to
be an habitual criminal and shall be punished by imprisonment in the state prison for not less than 10 years.
* * * * *
4. If a defendant charged under this section is found guilty of, or pleads guilty to, the primary offense, but
denies any previous conviction charged, the court shall determine the issue of such previous conviction after
hearing all relevant evidence presented on such issue by the prosecution and the defendant. The court shall
impose sentence pursuant to subsections 1 and 2 of this section upon finding that the defendant has suffered
previous convictions sufficient to support an adjudication of habitual criminality.
5. Nothing in this section limits the prosecution in introducing evidence of prior convictions for purposes of
impeachment.
6. Presentation of an exemplified copy of a felony conviction shall be prima facie evidence of conviction of
a prior felony.
83 Nev. 292, 295 (1967) White v. State
necessary to bring the case within the statute, and goes to the punishment only. The statute,
imposing a punishment on none but future crimes, is not ex post facto. It affects alike all
persons similarly situated, and therefore does not deprive any one of the equal protection of
the laws. (Citing cases.)
See also Graham v. West Virginia, 224 U.S. 616 (1912); Spencer v. Texas, 385 U.S. 554
(1967); also 132 A.L.R. 91, 116 A.L.R. 209, 82 A.L.R. 345.
[Headnote 2]
As to appellant's claim that this statute unlawfully deprives him of a trial by jury and is a
separate prosecution, this court has spoken many times. Most recently in Howard v. State,
83 Nev. 53, 422 P.2d 548, 550 (1967), this court said:
The authorities are in complete agreement that an habitual criminal proceeding does not
charge a separate offense, but is held solely to determine facts, which if true, will increase
punishment. [Citing cases.] It is not a separate offense to be an habitual criminal but a status.
[Citation] The hearing is procedural, is not a separate crime, and does not increase
punishment of the principal offense for which a defendant is on trial. The statute simply
allows enlarged punishment for one who cannot be rehabilitated, and who as a recidivist,
repeatedly violates the law. A reading of NRS 207.010(6), which makes presentation of an
exemplified copy of a felony conviction prima facie evidence of conviction of a prior felony,
renders this more evidence. Cf. State v. Morton, 338 S.W.2d 858 (Mo. 1960).
[Headnote 3]
2. Is the presumption contained in NRS 205.065
2
(Instruction No. 7) violative of due
process of law as appellant contends? We think not.
Appellant acknowledges that the precise question of constitutionality has been settled by
recent cases in this court. See McNeeley v. State, 81 Nev. 663, 409 P.2d 135 (1965) and
Schnepp v. State, 82 Nev. 257, 415 P.2d 619 (1966). The issue raised by appellant is nothing
more than a plaintive request that the court reconsider its prior holdings.
____________________

2
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.
83 Nev. 292, 296 (1967) White v. State
request that the court reconsider its prior holdings. We find no satisfactory argument to
warrant the same. We find the same type of presumption in Federal Dyer Act cases
involving the interstate transportation of stolen motor vehicles. See Garrison v. United States,
353 F.2d 94 (10th Cir. 1965), Travers v. United States, 335 F.2d 698 (D.C.Cir. 1964).
[Headnote 4]
Appellant's plea that the statute and the instruction compel the defendant to be a witness
against himself, and thus is unconstitutional, arises out of a misreading and misconception of
the statute. The presumption does not in any case become effective until such time as the state
has proven to the satisfaction of the jury that the entry was unlawful. It is true that the burden
of going forward then shifts to the defendant; however, this does not demand that the
defendant himself take the stand. The statute merely provides that the presumption arises
unless testimony satisfactory to the jury shows lack of criminal intent. Any evidence
satisfactory to the jury, whether from the lips of the defendant, or others (or physical
evidence), will destroy the presumption. There is clearly rational connection between the fact
proven i.e., unlawful entry and the presumption. It is clear that the legislature has the power
to establish inferences from facts proven, provided there is such rational connection. United
States v. Gainey, 380 U.S. 63 (1965). Cf. City of Reno v. District Court, 83 Nev. 201, 427
P.2d 4 (1967).
[Headnote 5]
3. Appellant's position that the trial court committed error in refusing to grant separate
trials is not supported by the record. Prior to trial, appellant moved for severance and the
same was denied. Appellant did not renew the motion. We find no abuse of discretion in the
court's denial of the motion. A careful reading of the record reveals no antagonism that would
warrant a finding of prejudice. The statements in appellant's motion were what might be
termed anticipatory conclusions. There was no showing that evidence proposed to be
introduced as to one would be prejudicial as to the other. See State v. Lewis, 50 Nev. 212,
255 P. 1002 (1927). This court has recently said that the defendants were not entitled to
separate trials without a sufficient showing of facts demonstrating that prejudice would result
from a joint trial. Anderson v. State, 81 Nev. 477, 406 P.2d 532 (1965). The fact alone that
both defendants did not join in any particular motion does not of itself show prejudice.
83 Nev. 292, 297 (1967) White v. State
[Headnote 6]
4. Appellant's charge that the trial court erred in requiring both defendants to join in their
peremptory challenges is without merit. NRS 175.015 reads as follows:
When several defendants are tried together, they cannot sever their challenges, but must
join therein. Appellant concedes that the statute has been upheld as being constitutional.
Anderson v. State, supra; Doyle v. State, 82 Nev. 242, 415 P.2d 323 (1966). However, he
contends that the court has misinterpreted the statute. His is the novel approach that NRS
175.015 merely demands that the defendants join and agree in their challenges and does not
affect the number afforded to each. One is faced with the query as to how his approach would
change the situation if each had a like number but are required to join in the challenge. It
appears to answer itself. The statute is clear and unequivocal, and as this court said in
Anderson v. State, supra:
Peremptory challenges arise from the exercise of a privilege granted by the legislative
authority. Our legislature has seen fit to treat several defendants, for this purpose, as one
party. If the defendants would avail themselves of this privilege, they must act accordingly. It
may be that all defendants may not wish to exercise the right of peremptory challenge as to
the same person or persons, and that some may wish to challenge those who are
unobjectionable to others. But this situation arises from the exercise of the privilege and does
not invalidate the law. The privilege must be taken with the limitations placed upon the
manner of its exercise. Stilson v. United States, supra; State v. McLane, supra; 136 A.L.R.
453. And this is still the law. Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13
L.Ed.2d 759 (1965).
5. Appellant's claim that the court erred in allowing the pen and pencil set in evidence is
without merit.
[Headnote 7]
It is clear from the record that the pen and pencil set was in appellant's property envelope
and the state's witness testified that White had taken them from the burglarized premises.
Their relevance and materiality is unquestioned.
Finding no error the judgment of the trial court is affirmed.
____________
83 Nev. 298, 298 (1967) Warden v. Peters
WARDEN NEVADA STATE PRISON, Appellant, v.
RONALD NICHOLAS PETERS, Respondent.
No. 5321
June 22, 1967 429 P.2d 549
Appeal from order granting habeas corpus. First Judicial District Court, Ormsby County;
Frank B. Gregory, Judge.
The trial court granted the application and state appealed. The Supreme Court, Zenoff, J.,
held that where consecutive sentences for grand larceny and burglary were imposed on
defendant and grand larceny conviction was subsequently set aside and new sentence of one
year for attempted grand larceny was imposed to run concurrently with burglary sentence and
defendant had served one year on burglary sentence, grant of habeas corpus was proper.
Affirmed.
Harvey Dickerson, Attorney General, and John Sheehan, Deputy Attorney General, for
Appellant.
Martillaro & Bucchianeri, of Carson City, for Respondent.
1. Criminal Law.
At common law, where all other remedies fail, mistake of fact which is discovered after judgment may be
asserted by use of writ of coram nobis.
2. Criminal Law.
Where defendant pleaded guilty to grand larceny and had commenced serving his sentence but in fact
there had been no asportation, such issue could be raised by motion to vacate judgment though technically
it should have been raised by petition for habeas corpus. NRS 205.220.
3. Criminal Law.
Trial court has inherent jurisdiction to vacate or modify its orders and judgments.
4. Criminal Law.
Trial court has discretion to permit withdrawal of plea in order to effectuate its efforts to modify
judgment.
5. Criminal Law.
Justice requires that when court errs in its adjudication of defendant, vacation of the adjudication result in
vacation of sentence.
6. Criminal Law.
If guilty plea is product of ignorance, fear, inadvertence or coercion, it must be vacated as void.
7. Criminal Law.
Passage of time does not close door to reconsideration of guilty plea that was product of ignorance, fear,
inadvertence or coercion.
8. Habeas Corpus.
Where defendant had obtained vacation of his sentence for grand larceny and was sentenced for
attempted grand larceny with sentence to run concurrent with sentence on burglary charge and defendant
had been paroled on burglary charge and brought habeas corpus proceeding to obtain his immediate
release, court had jurisdiction to consider error in judgment of conviction for grand larceny.
9. Habeas Corpus.
Defendant is entitled to habeas corpus if there is no material dispute as to mistake of fact relating to his
conviction and court acted in excess of its powers.
10. Criminal Law.
Where there was no dispute that defendant pleaded guilty without counsel to grand larceny when in fact
no asportation occurred, judgment should be corrected to eliminate defendant's conviction for crime he did
not commit. NRS 205.220.
11. Criminal Law.
It is unfair to allow guilty plea to stand when appellant was ignorant of lack of essential element of crime
of which be stood accused.
12. Criminal Law.
When improper sentence is sole basis of complaint, no vacation of conviction is necessary since justice
may be done by correction of sentence.
13. Criminal Law.
If judgment of conviction for grand larceny is void sentence for that crime automatically fails. NRS
205.220.
14. Criminal Law.
Where judgment of conviction for grand larceny was void because there had been no asportation,
sentence automatically failed and court was free to pass new sentence for crime of attempted larceny. NRS
205.220.
15. Criminal Law.
Where sentences for burglary and grand larceny were to run consecutively but conviction for grand
larceny was void and court imposed new sentence for attempted grand larceny, court could order that new
sentence run concurrently with sentence previously imposed for first-degree burglary. NRS 176.150,
205.220.
16. Larceny.
Attempted grand larceny is an offense separate and distinct from burglary.
17. Habeas Corpus.
Where consecutive sentences for grand larceny and burglary were imposed on defendant but grand
larceny conviction was subsequently set aside and new sentence of one year for attempted grand larceny
was imposed to run concurrently with burglary sentence and defendant had served one year on
burglary sentence, the attempted grand larceny sentence had been served and
defendant was entitled to immediate release.
sentence and defendant had served one year on burglary sentence, the attempted grand larceny sentence
had been served and defendant was entitled to immediate release.
OPINION
In 1965 Ronald Nicholas Peters pleaded guilty to a count of first degree burglary and a
count of grand larceny. He was not represented by counsel. He was sentenced to a term of
from 1 to 15 years on the burglary charge and from 2 to 14 years on the other, the sentences
were to run consecutively, and the burglary sentence was to be served first. No appeal from
either conviction was taken and the time for appeal has long since run.
Peters served one year on the burglary charge, was granted parole on that offense, and
began serving time on the grand larceny charge. After about a year, he moved through
counsel to have the trial court allow him to withdraw the pleas of guilty and to enter new
pleas on the grounds that as to the grand larceny charge there in fact had been no asportation.
1

Thus, the only crime of which he could be guilty was an attempt rather than the completed
crime.
The district attorney of the county in which the offenses occurredwho was not the same
district attorney in office at the time Peters first pleaded guiltyagreed with Peters' counsel
that the point urged was true and consented to the setting aside of the judgment of conviction
and the accepting of a guilty plea to the lesser crime. The two attorneys further stipulated that
the court could order the new sentence to run concurrently with the burglary sentence, rather
than consecutively as originally ordered, although they acknowledged that the court was not
bound by that portion of the stipulation.
The trial court accepted the stipulation of counsel, set aside the judgment of conviction for
grand larceny, allowed Peters to withdraw his plea of guilty, immediately accepted a plea of
guilty to attempted grand larceny, fixed a new determinate sentence of one year to run
concurrently with the burglary sentence, and returned Peters to the penitentiary. In the
meantime, however, Peters had been paroled on the burglary sentence.
____________________

1
NRS 205.220. Grand larceny: Definitions; punishment. Every person who shall feloniously steal, take and
carry away, lead or drive away the personal goods or property of another, of the value of $100 or more, except a
vehicle as defined in NRS 482.135, shall be deemed guilty of grand larceny * * *.
time, however, Peters had been paroled on the burglary sentence. When the trial court
imposed the concurrent sentence of one year for attempted grand larceny Peters contended
that he had served his time and was entitled to immediate release, for which he petitioned the
trial court. The trial court agreed with Peters and granted the application for habeas corpus,
giving the State ten days in which to appeal to this courtwhich it did.
Broadly stated, the issue is whether a trial court has the power to set aside a judgment of
conviction after a plea of guilty and commencement of sentence.
1. On the original motion the appellant successfully argued the existence of a mistake in
the judgment. His motion to vacate judgment was granted. The State now questions whether
this was the proper procedure.
[Headnote 1]
At common law, where all other remedies fail, a mistake of fact which is discovered after
judgment may be asserted by the use of the writ of coram nobis. People v. Sullivan, 165
N.Y.Supp.2d 6 (Ct.App. 1957); 13 Syracuse L.Rev. 116 (1961); 57 Nw.U.L.Rev. 467 (1962);
Eli Frank, Coram Nobis (1953). In some states, for example Illinois, the courts which had
previously abolished the writ of coram nobis allowed the same question to be raised by a
motion in the nature of a writ of coram nobis. People v. Crooks, 157 N.E. 218 (Ill. 1927).
[Headnote 2]
We deem the procedural label to be of little importance. The fact remains that courts
which make a mistake in rendering a judgment which works to the extreme detriment of the
defendant will not allow it to stand uncorrected. In a situation such as this, where, as
discussed below, the court has inherent power to reconsider a judgment for good cause
shown, we hold that such an issue may be raised by a motion to vacate judgment, though
technically in this state the matter probably should have been raised by a petition for habeas
corpus. See State ex rel. Orsborn v. Fogliani, 82 Nev. 300, 417 P.2d 148 (1966).
[Headnotes 3-7]
2. The trial court has inherent jurisdiction to vacate or modify its orders and judgments,
State v. Lopez, 393 P.2d 263 (Ariz. 1964), and discretion to permit withdrawal of a plea in
order to effectuate its efforts. Nagelberg v. United States, 377 U.S. 266 (1964). Justice
requires that when a court errs in its adjudication of a defendant, a vacation of the
adjudication result in a vacation of the sentence so that the defendant can be returned to
his prior status.
in its adjudication of a defendant, a vacation of the adjudication result in a vacation of the
sentence so that the defendant can be returned to his prior status. If a guilty plea is the product
of ignorance, fear, inadvertence or coercion, it must be vacated as void since it is violative of
constitutional safeguards, Kercheval v. United States, 274 U.S. 220 (1927), and the passage
of time does not close the door to its reconsideration. Ward v. Page, 238 F.Supp. 431 (D.
Okla. 1965).
[Headnotes 8-10]
For the purposes of this proceeding the term, jurisdiction, as usually applied to habeas
corpus, is not limited to its traditional meaning, and in such proceedings judicial acts may be
annulled if they are determined to be in excess of the court's powers. In accordance with this
principle a defendant is entitled to habeas corpus if there is no material dispute as to the
mistake of fact relating to his conviction. There being no dispute that Peters pleaded guilty
without counsel to grand larceny when in fact no asportation occurred, it follows that this is a
proper case for correction of the error in the judgment, because until then he stands convicted
of a crime he did not commit. In re Perez, 48 Cal.Rptr. 809 (1966); People v. Sullivan, 165
N.Y.Supp.2d 6 (1957).
[Headnote 11]
It is worthwhile to note that Rule 32(d) of the Federal Rules of Criminal Procedure
expressly incorporates this concept by providing for a motion to withdraw a plea of guilty and
set aside the judgment of conviction after sentence in order to correct manifest injustice. In
Gilinsky v. United States, 335 F.2d 914 (9th Cir. 1964), the court applied Rule 32(d) and held
it would clearly be unfair to hold appellant to his guilty plea if he was ignorant of the fact that
a multiple-count indictment stated only a single offense. It is no less unfair to allow a guilty
plea to stand when appellant was ignorant of the lack of an essential element of the crime of
which he stood accused.
[Headnotes 12-17]
When an improper sentence is the sole basis of the complaint no vacation of conviction or
adjudication is necessary since justice may be done by correction of the sentence, Lisby v.
State, 82 Nev. 183, 414 P.2d 592 (1966); Osborne v. State, 82 Nev. 342, 418 P.2d 812
(1966); Dixon v. State, 83 Nev. 120, 424 P.2d 100 (1967), but if the judgment of conviction
for grand larceny is void the sentence for that crime automatically fails. The court is then free
to pass a new sentence for the different crime of attempted larceny and, in its discretion,
order that it run concurrently with the sentence previously imposed for first degree
burglary.
for the different crime of attempted larceny and, in its discretion, order that it run
concurrently with the sentence previously imposed for first degree burglary. This is more than
a mere correction of sentence. The underlying purpose in this case is to redress an injury done
to a defendant who pleaded guilty to a crime he did not commit. The attempt here was an
offense separate and distinct from the burglary and was charged in the information as such. In
such a situation NRS 176.150 allows the court discretion to make the sentence concurrent or
consecutive.
2
See also Grieve v. Smith, 173 P.2d 168 (Wash. 1946); Sherman v. United
States, 241 F.2d 329 (9th Cir. 1957); Castano v. United States, 313 P.2d 857 (7th Cir. 1963);
McKee v. United States, 289 F.2d 557 (7th Cir. 1961) (even without the aid of a statute);
Papalardo v. United States, 260 F.2d 326 (6th Cir. 1958); People v. Graham, 18 Cal.Rptr. 134
(D.C.A. 1961); People v. Curtis, 47 Cal.Rptr. 123 (D.C.A. 1965); State v. McNally, 211 A.2d
162 (Conn. 1965).
Affirmed.
Collins, J., concurring in part but for a different reason; dissenting in part:
There appears to be no express statutory or case authority for a trial court in Nevada to
entertain a petition (or motion) to withdraw a plea of guilty after judgment has been entered
and imprisonment has commenced.
There is express authority permitting a trial court to set aside a plea of guilty before
judgment.
1
Likewise, where a motion for new trial has been made following conviction,
the court may modify the judgment if the evidence shows the defendant to be guilty of a
lesser degree of the crime of which he was convicted.2 But even this motion must be
made before judgment is entered.3
____________________

2
NRS 176.150. Conviction of two or more offenses: Concurrent and consecutive sentences.
1. Whenever a person shall be convicted of two or more offenses, and sentence has been pronounced for
one offense, the court in imposing any subsequent sentence may, in its discretion, provide that the sentences
subsequently pronounced shall run either concurrently or consecutively with the sentence first imposed.
2. If the court shall make no order with reference thereto, all sentences shall run concurrently; but whenever
a person under sentence of imprisonment shall commit another crime and be sentenced to another term of
imprisonment, such latter term shall not begin until the expiration of all prior terms.

1
174.340 Plea of guilty to be put in by defendant in person; plea by corporation; withdrawal.
* * * * *
2. The court may at any time before judgment, upon a plea of guilty, permit it to be withdrawn and a plea of
not guilty substituted.
motion for new trial has been made following conviction, the court may modify the judgment
if the evidence shows the defendant to be guilty of a lesser degree of the crime of which he
was convicted.
2
But even this motion must be made before judgment is entered.
3

Nevada's harmless error statute NRS 169.110
4
has generally been restricted to errors
raised on appeal or to habeas corpus where federal or state constitutional rights are involved.
Neither of these procedures were employed here when Peters filed his petition with the trial
court. I feel this court should base its decision on recognized authority where that authority is
available, and restrict its reliance on inherent power to those situations where no other
authority is available.
Peters' petition may then be construed as a writ of error, coram nobis. While this court has
seldom had occasion to consider that writ (see Bigness v. State, 71 Nev. 309, 289 P.2d 1051
(1955), there does appear to be jurisdiction in the district courts to entertain it. The Nevada
Constitution, Art. 6, 6, provides, The District Courts, and the Judges thereof shall have
power to issue writs of Mandamus, Injunction, Quo-Warranto, Certiorari, and all other writs
proper and necessary to the complete exercise of their jurisdiction; * * *. Coram nobis is an
ancient common-law writ, Central Franklin Process Co. v.
____________________

2
175.535 Grounds for new trial; modification of judgment without granting new trial; affidavits supporting
motion on ground of newly discovered evidence. The court in which a trial is had upon the issue of fact, has
power to grant a new trial where a verdict has been rendered against the defendant upon his application, in the
following cases only:
* * * * *
6. When the verdict is contrary to law or evidence, but if the evidence shows the defendant to be not guilty
of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime
included therein, the court may modify the judgment accordingly without granting or ordering a new trial, and
this power shall extend to any court to which the cause may be appealed.

3
175.540 Application must be made before judgment entered. The application for a new trial must be made
before the judgment is entered in the cause and shall be made upon motion orally or in writing, stating one or
more of the grounds specified in NRS 175.535.

4
169.110 No judgment to be set aside except for material error. No judgment shall be set aside, or new trial
granted, in any case on the ground of misdirection of the jury or the improper admission or rejection of evidence,
or for error as to any matter or pleading or procedure, unless in the opinion of the court to which application is
made, after an examination of the entire case, it shall appear that the error complained of has resulted in a
miscarriage of justice, or has actually prejudiced the defendant, in respect to a substantial right.
Co. v. Gann, 133 S.W.2d 503 (Tenn. 1939), and was certainly within the contemplation of the
framers of our Constitution at the time of its adoption. It is a writ seldom used and very
narrow in scope. Its object is, To relieve litigants, both civil and criminal, from judicial
wrongs for which there was no remedy. Writs of error coram nobis or coram vobis were
developed at common law as early as the 16th century, but originally these writs were used to
permit courts to correct only their own errors of fact in very limited situations. 18 Am.Jur.2d
1, p. 446.
Its purpose is to correct an alleged error of fact not appearing in the record where there is
no other remedy available. 18 Am.Jur.2d 3, p. 453. People v. Ayala, 291 P.2d 517
(Cal.D.C.A. 2, 1955). That is the situation here. Based upon the stipulation of counsel that
there was no asportation or carrying away of the personal property of another, it was a fact
which was not and could not be known to the trial court at the time of Peters' original plea of
guilty to grand larceny. Following judgment of conviction, and commencement of sentence,
Peters let his time for appeal run. He had no clear remedy of appeal or habeas corpus because
his plea of guilty admitted the facts well pleaded. The error is not one of constitutional
stature. Thus he had no other clear or adequate remedy by statute, writ or other proceeding.
It is true an applicant for the writ of error, coram nobis, must show that the facts upon
which he relies were not known to him and could not in the exercise of due diligence have
been discovered by him at any time substantially earlier than the time of his motion for the
writ. People v. Shorts, 197 P.2d 330, 336 (Cal. 1948). Here there was no contest upon that
issue. The stipulation of counsel in open court took care of such proof as Peters would
otherwise have had to offer. Nor do I have any reason to doubt the integrity of the district
attorney who entered into the stipulation. It is indeed a rare thing to exact such a stipulation as
that from any district attorney.
I would therefore construe the petition as a writ of error, coram nobis, and sustain the
action of the trial court in granting it.
The other action of the trial court, however, is without authority. No reason, other than the
stipulation of counsel, appears in the record to justify or explain why the trial judge changed
his mind and made the two sentences concurrent rather than consecutive as he first ordered.
That determination is not one of fact which could be reached by the writ of error coram
nobis, but one of law.
coram nobis, but one of law. No authority is cited justifying the procedure or action of the
lower court. I would therefore hold, under the circumstances disclosed by this record, that he
no longer had authority or jurisdiction to modify his earlier judgment and order the sentences
to be served concurrently.
The order of the trial court modifying the judgment from guilty of grand larceny to guilty
of attempted grand larceny should be upheld. The order changing the running of the sentences
from consecutive to concurrent should be reversed. Respondent Peters' sentence of 1 year on
his plea of guilty to attempted grand larceny should be served consecutively to his sentence
for first degree burglary.
____________
83 Nev. 306, 306 (1967) Eikelberger v. State ex rel. Dep't Hwys.
HERBERT L. EIKELBERGER and MARGARET H. EIKELBERGER, Husband and Wife as
Joint Tenants, Appellants, v. STATE OF NEVADA, on Relation of its Department of
Highways, Respondent.
No. 5275
June 23, 1967 429 P.2d 555
Bowen, Judge.
Condemnation case. The property owner appealed from final judgment rendered by the
trial court. The Supreme Court, Thompson, C. J., held that trial court did not abuse its
discretion by permitting jury, over property owner's objection, to view the condemned
property where property had not changed in general appearance, witnesses fully explained
change in appearance of area surrounding property and aerial photographs of property and
denuded surrounding area were later received in evidence without objection.
Judgment affirmed.
A. D. Jensen, of Reno, for Appellants.
Harvey Dickerson, Attorney General, William Raymond, Deputy Attorney General, and
John A. Flangas, Deputy Attorney General, Carson City, for Respondent.
1. Evidence.
Where foundation testimony was not offered in condemnation proceeding to establish certified public
accountant's expertise, trial court properly refused to let accountant express his opinion on
market value of property even though accountant was allowed to state what value of
an asset producing income such as property in question would be when capitalized at
various rates.
court properly refused to let accountant express his opinion on market value of property even though
accountant was allowed to state what value of an asset producing income such as property in question
would be when capitalized at various rates.
2. Eminent Domain.
Market value of condemned property is ascertained by income approach by mathematical process of
dividing the estimated annual income from highest use of the property by capitalization rate appropriate to
type of investment risk involved.
3. Evidence.
In absence of foundation information concerning relevant capitalization rate, witness in condemnation
proceeding should not be permitted to express an opinion on market value of condemned property by use
of income approach to value.
4. Evidence.
A certified public accountant may be a competent witness to express an expert opinion on market value
by use of income approach when he is shown to possess essential information about relevant capitalization
rate for investment risk involved.
5. Eminent Domain.
View by jury of condemned property is not evidence, but enables jury to more fully appreciate evidence
received during condemnation trial. NRS 16.100.
6. Eminent Domain.
Trial court did not abuse its discretion in condemnation proceeding by permitting jury, over property
owner's objection, to view the condemned property where property had not changed in general appearance,
witnesses fully explained change in appearance of area surrounding property and aerial photographs of
property and denuded surrounding area were later received in evidence without objection. NRS 16.100.
7. Eminent Domain.
Where record in condemnation proceeding showed that property owner presented his case in chief, state
presented its case, evidence was closed, and that dialogue between court and counsel occurred that possibly
touched on rebuttal, but no rebuttal witnesses were called nor offer of proof made, Supreme Court would
not review claim of error that trial court precluded rebuttal testimony. NRCP 43(c).
8. Eminent Domain.
Fact that refused instructions could have been given without committing error did not mean that failure to
give them was error in condemnation proceeding.
9. Trial.
When subject matter of requested instructions is adequately covered by given instruction, it is preferable
that trial court refuse additional instructions relating to same subject though expressed in different words.
10. Eminent Domain.
Where property owner's requested jury instructions pertaining to income approach in evaluating property
were embellishments on instruction given that jury could consider fair rental income in deciding fair
market value, refusal to give instructions requested was not error.
in deciding fair market value, refusal to give instructions requested was not error.
OPINION
The property owner appeals from a final judgment in a condemnation case contending that
any of four assigned errors requires remand for another trial. The claimed errors: first, a
ruling which precluded a certified public accountant from expressing his opinion on the
market value of property; second, allowing the jury to view the premises; third, forbidding
rebuttal testimony; fourth, the court's refusal to give certain instructions. In the context of this
case it is our judgment that none of the assigned errors has merit. Accordingly, we affirm. We
consider the assignments in sequence.
[Headnote 1]
1. The property involved embraces six lots in Block N, Sparks, Nevada, and is located
about three blocks west of the Nugget Motel. The state condemned it for highway purposes.
The owner had constructed a 12 unit trailer park on the property, and a cement block building
which housed an awning, blind and drapery business. The trailer park units were normally
filled and rented. A certified public accountant was called as an expert witness for the
property owner and asked to give his opinion on market value based solely upon a
capitalization of the net income realized from the property. He had estimated a net rental
income for the cement block building, and, as the certified public accountant for the owner,
knew the net rental income from the trailer park. He combined those figures, and in line with
our opinion in State v. Shaddock, 75 Nev. 392, 344 P.2d 191 (1959), was allowed to state
what the value of an asset producing such an income would be when capitalized at various
rates.
1
He was not, however, allowed to express his opinion on the market value of the
property, since foundation testimony was not offered to establish his expertise. The court
ruled correctly.
____________________

1
We have doubt about the propriety of the testimony allowed in State v. Shaddock, supra, since the
appropriate capitalization rate to be used in the income approach to market value depends upon the nature of the
investment risk. It seems to us that some evidence on that point may be necessary before a witness may
capitalize income. However, that question is not presented for decision here.
[Headnote 2]
Market value is ascertained by the income approach by the mathematical process of
dividing the estimated annual income from the highest use of the property by a capitalization
rate appropriate to the type of investment risk involved. A slight variation in the capitalization
rate profoundly affects the value to be attributed to the property.
2
Accordingly, unless the
components of the formula, the annual income and the capitalization rate, are determined
with reasonable certainty, the resulting value is speculative, and of little use to the trier of the
fact.
[Headnote 3]
In the case at hand, the witness knew the annual net rental income from the trailer park and
estimated the annual net rental income from the cement block building. However, the record
is silent as to his knowledge of the appropriate capitalization rate to be applied to this type of
investment risk. Instead, he was questioned about the average rate of return on investments
in Washoe County to which he replied, 6%. That rate of return may be considerably
different from the rate of return to be expected from the rental of trailer park spaces and a
cement block building.
3
Absent foundation information about the relevant capitalization rate
the witness should not be permitted to express an opinion on market value by use of the
income approach to value.
[Headnote 4]
The property owner suggests that his expert witness was shown to possess greater
testimonial qualifications than an owner, and that if the latter is a competent witness to
market value, so was his witness. The suggestion does not persuade us. The certified public
accountant was called as an expert witness to give his opinion on market value based solely
upon the capitalization of income technique. Essential foundation information was not
supplied for that opinion. No attempt was made to qualify him on any other basis. He was not
the owner. We do not hold that a certified public accountant may never be a competent
witness to express an expert opinion on market value by use of the income approach. We hold
only that here, the witness was not shown to possess essential information about the relevant
capitalization rate for the investment risk involved.4 He may have been competent, but
the questioning did not reveal the foundation to establish competency.
____________________

2
For example: $10,000 annual net income capitalized at 1 percent is $1,000,000; at 2 percent, $500,000; at 4
percent, $250,000; at 5 percent, $200,000; at 10 percent, $100,000.

3
E.g., investors may require a 12 percent return on buildings, though satisfied with 4 percent on stocks.
about the relevant capitalization rate for the investment risk involved.
4
He may have been
competent, but the questioning did not reveal the foundation to establish competency.
[Headnotes 5, 6]
2. The court in its discretion may allow the jury to view the condemned property. NRS
16.100. The view is not evidence, but may enable the jury to more fully appreciate the
evidence received during trial. Love v. Mt. Oddie United Min. Co.,43 Nev. 61, 181 P. 133,
184 P.921 (1919). A view was permitted in this case over the objection of the property owner.
He now contends that the court abused its discretion in allowing a view since the area
surrounding the condemned property had drastically changed by the removal of structures and
buildings which were there when this suit was started, and at the time of the view about one
half of the trailers in the park had been removed. We think that the court ruled within the
limits of proper discretion. The property in issue had not changed in general appearance.
Witnesses fully explained the change in the appearance of the surrounding area, and that the
park was normally occupied to capacity. Large aerial photographs of the property in issue and
the denuded surrounding area were later received in evidence without objection, and amply
explained.
5

[Headnote 7]
3. The record on appeal is deficient with regard to the claim that error was committed
when the trial court precluded rebuttal testimony. It shows only that the property owner
presented his case in chief, the state then presented its case, and the evidence was then closed.
Rebuttal witnesses were not called to the stand, nor did counsel make an offer of proof.
NRCP 43(c); Charleston Hill National Mines, Inc. v. Clough, 79 Nev. 182, 380 P.2d 458
(1963); Alamo Airways Inc. v. Benum, 78 Nev. 384, 374 P.2d 684 (1962). The state then
moved for a directed verdict which motion was denied. Thereafter, the transcript reveals a
dialogue between court and counsel from which one might infer that something previously
had occurred regarding rebuttal, but the record does not disclose what that something was.
In these circumstances we cannot review this claim of error.
____________________

4
For worthwhile reading see: 1 Orgel, Valuation Under Eminent Domain, p. 697 et seq. (2d ed. 1953);
Comment, 12 Stan.L.Rev. 766 (1960).

5
Cases concerning a jury view of the premises in a condemnation case are collected at 77 A.L.R.2d 548.
[Headnotes 8-10]
4. The property owner complains of the court's refusal to give four jury instructions. Each
pertains to the income approach in evaluating property. The court did instruct the jury that it
could consider fair rental income in deciding fair market value. Perhaps the refused
instructions could have been given without committing error. However, it does not follow
that the failure to give them was error. Indeed, if the subject matter is adequately covered by a
given instruction, it is preferable that the court refuse additional instructions relating to the
same subject though expressed in different words. Duran v. Mueller, 79 Nev. 453, 386 P.2d
733 (1963). We think that the refused instructions were merely embellishments which the
court could properly refuse.
Affirmed.
____________
83 Nev. 311, 311 (1967) Dredge Corp. v. Wells Cargo, Inc.
DREDGE CORPORATION, a Nevada Corporation, Appellant,
v. WELLS CARGO, INC., Respondent.
No. 5280
June 26, 1967 429 P.2d 548
Wines, Judge.
Action by gravel company against owner of unpatented mining claims for specific
performance of latter's contractual promise to convey undivided one-half interest in patented
claims and for partition. Owner counterclaimed for value of gravel removed, for damages for
breach of contract, and to quiet title in itself to all of the claims. The lower court found for
gravel company, but on appeal, 82 Nev. 69, 410 P.2d 751, the Supreme Court, Thompson, J.,
remanded case to District Court to determine whether gravel company performed its
contractual obligation as to unpatented claims. The District Court found gravel company had
fully performed and entered judgment in its favor, and an appeal was taken. The Supreme
Court, Thompson, C. J., held that substantial evidence supported finding that gravel company
had performed its obligations, and fact that on some of the claims gravel which had been
removed from pits was stock-piled and not removed off claim itself did not affect
performance where contract did not require removal of gravel from claim itself.
claim itself did not affect performance where contract did not require removal of gravel from
claim itself.
Judgment affirmed.
Deaner, Butler and Adamson, of Las Vegas, and Abraham Marcus, of Beverly Hills,
California, for Appellant.
Guild, Guild and Cunningham and David W. Hagen, of Reno, for Respondent.
1. Mines and Minerals.
Substantial evidence, including evidence that gravel company excavated at least 500 cubic yards of
gravel from unpatented mining claims, expended more than $500 in improving each claim, and
performed annual assessment work, supported finding that gravel company had performed its obligations
with respect to unpatented mining claims.
2. Mines and Minerals.
Fact that on some unpatented mining claims gravel which had been removed from pits was
stock-piled and not removed off claim itself did not affect performance of contract of gravel company to
remove gravel where contract did not require removal of gravel from claim itself.
OPINION
This appeal is the sequel to our partial remand in Dredge Corporation v. Wells Cargo, Inc.,
82 Nev. 69, 410 P.2d 751 (1966), wherein we directed the district court to find from the
record whether Wells had performed its contractual obligations with respect to the following
unpatented claims: Dredge claims 13, 14, 15, 16, 36, 37, 40, 41, 44, 45, 52, 53, 56, 57, and
the claims called Alpha, Beta, Gamma, Delta, and Epsilon. Reference is made to Dredge
Corporation v. Wells Cargo, Inc., supra, for the factual setting of this controversy.
The record of this case following remand shows that the district court, on July 1, 1966,
made findings which did not comply with our directive. Those findings of fact merely recite
the determination of the Bureau of Land Management as to the patentability of the claims,
and do not deal with the issue of performance by Wells, nor was judgment entered thereon.
The lower court apparently realized that it had not complied with our directive, and on
November 30, 1966 made additional findings of fact upon the issue of performance. It found
that Wells had fully performed its contractual obligations with respect to each claim.
Wells had fully performed its contractual obligations with respect to each claim. Judgment
was then duly entered, and this appeal by Dredge followed.
[Headnotes 1, 2]
The record discloses substantial evidence to support the finding of full performance by
Wells. Wells excavated at least 500 cubic yards of gravel from each claim and removed the
gravel from the pits; expended more than $500 in improving each claim; and performed the
annual assessment work. Dredge now asserts that the finding of full performance cannot be
allowed to stand since, on some of the claims, the gravel which had been removed from the
pits was stock-piled, and not removed off of the claim itself. We think this contention is
frivolous. The contract did not so require. Indeed, as indicated by our earlier opinion, the right
to remove the gravel and use it was granted by the contract to Wells, and was for its benefit,
not Dredge's.
Affirmed.
Collins, J., and Breen, D. J., concur.
____________
83 Nev. 313, 313 (1967) Pleger v. Pleger
NORMAN H. PLEGER Appellant, v.
BERNICE PLEGER, Respondent.
No. 5223
June 27, 1967 429 P.2d 554
Appeal from denial of motion to modify alimony provision of divorce decree. Eighth
Judicial District Court, Clark County; Clarence Sundean, Judge.
The lower court denied motion, and movant appealed. The Supreme Court held that,
although a decree of divorce may be annulled in an independent proceeding for extrinsic
fraud, motion under statute permitting court which granted divorce decree to modify alimony
payments where court has expressly retained jurisdiction for this purpose may be based on
change in circumstances but not on extrinsic fraud.
Affirmed.
Paul L. Larsen, of Las Vegas, for Respondent.
1. Divorce.
A decree of divorce may be annulled in an independent proceeding for extrinsic fraud.
2. Divorce.
Motion under statute permitting court which granted divorce decree to modify alimony payments where
court has expressly retained jurisdiction for this purpose may be based on change in circumstances but not
on extrinsic fraud. NRS 125.170, subd. 1.
OPINION
Per Curiam:
The main issue on this appeal is whether the lower court erred in denying appellant's
motion to modify the alimony provision of a divorce decree pursuant to NRS 125.170(1) on
the grounds of extrinsic fraud.
Appellant contends that extrinsic fraud occurred when respondent, prior to appellant's
agreeing to pay $125.00 per month alimony, failed to disclose her separate property holdings.
To the contrary, respondent denies such fraud on the ground that the record discloses
substantial evidence that appellant had sufficient knowledge of respondent's true financial
position prior to the agreement. We perceive no error.
[Headnotes 1, 2]
The lower court expressly retained jurisdiction to modify the alimony payments.
Subsequently, appellant took advantage of this retention of jurisdiction by making a motion
pursuant to NRS 125.170(1). The appellant's procedural difficulty arose when he based his
motion on the ground of extrinsic fraud. Such an allegation is incompatible with the remedy
provided for in NRS 125.170(1). This court has for many years recognized that a decree of
divorce may be annulled in an independent proceeding for extrinsic fraud. Colby v. Colby, 78
Nev. 150, 153, 369 P.2d 1019 (1962). However, we have also recognized that when a
judgment is sought to be affected by a NRS 125.170(1) motion, the court may modify it upon
a proper showing of changed circumstances, yet may not enter a different decree. Dechert v.
Dechert, 46 Nev. 140, 205 P. 593 (1922). Since appellant's motion to modify the alimony
decree is based upon extrinsic fraud and thus requires a different decree, we hold that it was
not error for the trial court to deny appellant's motion.
Had appellant adopted the proper procedure of attacking the decree for extrinsic fraud and
assuming, without ruling, that a nondisclosure of one's assets constitutes extrinsic fraud, we
find that the record amply supports a finding by the trial court that appellant had sufficient
knowledge of the respondent's separate property prior to his agreeing to the alimony
payments, thus vitiating the allegation of fraud.
court that appellant had sufficient knowledge of the respondent's separate property prior to his
agreeing to the alimony payments, thus vitiating the allegation of fraud.
Affirmed.
____________
83 Nev. 315, 315 (1967) City of Reno v. Saibini
THE CITY OF RENO, a Municipal Corporation,
Appellant, v. SAM SAIBINI, Respondent.
No. 5269
June 28, 1967 429 P.2d 559
Judge.
Fireman, whose request to be allowed to extend his employment past stated retirement age
had been denied by city manager, sought declaration that city ordinance establishing such
retirement age and granting to city manager power to grant yearly extensions was in direct
conflict with state statutes and in violation of state Constitution. The trial court granted
summary judgment for fireman, and city appealed. The Supreme Court, Collins, J., held that
where legislature gave city authority to require absolute retirement of fireman at 55 years, and
city extended that to 63 years when certain conditions were present, and city then delegated
by ordinance the duty to determine if those conditions were met to its city manager without
fixing any standards or criteria for him to follow, such subdelegation was void, and thus
retirement of fireman who had been employed for approximately 30 years and had obtained
rank of battalion chief and presented evidence of his physical fitness and satisfactory work
performance was tantamount to discharge which was not permissible except upon proof of
justifiable cause at a hearing.
Affirmed.
Richard Breitwieser, City Attorney, Samuel T. Bull, G. W. Belcher, Assistant City
Attorneys, and Samuel B. Francovich, of Reno, for Appellant.
James R. Brooke, of Reno, for Respondent.
Legislature may choose to preempt entire field of regulation of public employment, both as to tenure and
retirement.
Legislature may delegate part of its power to regulate public employment, both as to tenure and
retirement, to political subdivisions of state through the general law or through charter granted to an
incorporated city. NRS 2S6.010 et seq., 2S6.510, subd. 1.
granted to an incorporated city. NRS 286.010 et seq., 286.510, subd. 1.
A municipal corporation is ordinarily a creature of the legislature, and powers which it possesses and
exercises are only those which its charter, general laws, or the constitution bestow upon it.
Municipality does not possess only such powers as are expressly granted in its charter or state statutes,
but there are other powers necessarily or fairly implied in or incident to the powers expressly granted, and
also certain powers essential to the declared object and purpose of the corporation, not simply convenient,
but indispensable, which may be exercised by the municipality.
Where legislature gave city authority to require absolute retirement of firemen at 55 years, and city
extended that to 63 years when certain conditions were present, and city then delegated duty to determine if
those conditions were met to city manager without fixing any standards or criteria, such subdelegation was
void, and thus retirement of fireman who had been employed for approximately 30 years and had obtained
rank of battalion chief and presented evidence of his physical fitness and satisfactory work performance
was tantamount to discharge which was not permissible except upon proof of justifiable cause at a hearing.
NRS 284.378, 286.010 et seq., 286.040, 286.510, subd. 1, 286.550, subd. 3; Const. art. 1, 8.
6. Officers.
Tenure in public employment is a valuable right, and may not be dealt with arbitrarily.
City can lawfully delegate power to city manager to perform a ministerial function, in the delegation,
however, it must fix standards and criteria to guide and direct him in the performance of those duties.
8. Attorney General.
In suit attacking constitutionality of city ordinance, attorney general who was served but chose not to
appear and be heard was not required to be made party to the action. NRS 30.130.
OPINION
This appeal involves the validity of Section 4-23
1
of Reno City Ordinance No.
____________________

1
Section 4-23. Retirement. All regular employees of the City of Reno (except Fire and Police Department
employees as hereinafter provided) shall retire from City service at the end of the current month in
City Ordinance No. 1568. A subordinate question presented is whether, in this type of action,
the attorney general must be made a party. We believe that the trial court was correct in
deciding for the respondent and affirm.
Respondent Sam Saibini has been a fireman for the City of Reno for approximately 30
years. On July 1, 1966 he was 56 years, 11 months of age and had attained the rank of
battalion chief. He requested that he be allowed to extend his employment until June 30,
1967, and presented evidence of his physical fitness and satisfactory work performance. He
was notified by the city manager that the fire chief did not recommend his continued
employment and that there were no exceptional circumstances in the interest of the city
warranting his retention in the fire department. He was ordered to be retired as of July 1st,
1966.
Saibini commenced this action in the district court seeking a declaratory judgment that
Section 4-23 of the Reno City Ordinance No. 1568 was in direct conflict with NRS 286.510
{1)2 and 2S6.550{3)3 and therefore in violation of the Nevada Constitution, Art.
____________________
which the employee attains the age of sixty-five (65) years. In exceptional circumstances the City Manager may,
in the interest of the City, extend the retirement age at one-year intervals; PROVIDED, HOWEVER, that the
granting of the extension shall in no case extend the employee's employment beyond the end of the month in
which the employee attains age seventy (70). Employees of the Fire Department actively engaged in fire fighting
work shall retire at the end of the month upon attaining the age of fifty-five (55) years. In exceptional
circumstances, the City Manager may, in the interest of the City, extend this retirement age at one-year intervals;
PROVIDED, HOWEVER, that the granting of the extension shall in no case extend fire fighter's employment
beyond the end of the month in which such employee attains age sixty-three (63). Employees of the Police
Department actively engaged in police activities shall retire at the end of the month upon attaining the age of
fifty-five (55) years. In exceptional circumstances, the City Manager may, in the interest of the City, extend this
retirement age at one-year intervals; PROVIDED, HOWEVER, that the granting of the extension shall in no
case extend Police Department employee's employment beyond the end of the month in which such employee
attains age sixty-five (65) years. Such extensions may be granted only after written application therefor shall
have been submitted to the City Manager stating the reason for the requested extension and accompanied by a
written report from the department head and a written report of physical examination of the applicant by a
physician licensed in Nevada. No person in the employ of the City on July 1, 1963, shall be required to retire
under the provisions of this section who has less than ten (10) years pensionable service in the Nevada State
Retirement System.
(1)
2
and 286.550(3)
3
and therefore in violation of the Nevada Constitution, Art. 1, 8.
4
The district judge granted summary judgment in his favor ruling that Section 4-23 of the
quoted ordinance established no definite standards for retention of firemen over 55 years of
age and was thus capricious and arbitrary and required retirement of public employees for
reasons not dependent upon their fitness and qualification to perform their duties.
There is but one general system of retirement for public employees in Nevada and that is
found in Chapter 286 NRS. It covers all public officers and employees of the State of Nevada
or its political subdivisions. NRS 286.040. Compulsory retirement for state employees is
provided for in NRS 284.378, and directs they shall be retired at 65; may be rehired on a
year-to-year basis from 65 to 69 and are not eligible for state employment after reaching 70.
Retirement for employees of political subdivisions, police officers and firemen is provided
for in NRS 286.510. The part of that statute of concern in this case is subparagraph 1, quoted
above in footnote 2. There is nothing in the Reno City Charter specifically dealing with
retirement. There are two provisions of that charter dealing with suspension, demotion and
discharge of employees's,
5
but retirement and discharge of public employees have been
clearly distinguished from each other.
____________________

2
Circumstances authorizing retirement: Age and service of police officers, firemen and other employees.
1. After july 1, 1949, a police officer or a fireman who is a member of the system, who has attained the age
of 55 years, and who has completed a minimum of 10 years of credited service, may be retired from service; and
thereafter, except as otherwise provided in this chapter, the date of his retirement shall be the 1st day of the
calendar month in which application for retirement shall be filed with the board or the last day of compensation,
whichever is later.

3
3. In order to be eligible for allowances under this section, unless otherwise specifically provided in this
chapter:
(a) A police officer or a fireman must have attained the minimum service retirement age of 55 years, and
every other employee must have attained the minimum service retirement age of 60 years; or
(b) A policeman or fireman must have attained the age of 50 years, in which case the allowance payable at
normal retirement age based on the number of years of service completed at actual retirement.

4
* * * No person shall be * * * deprived of life, liberty, or property, without due process of law; * * *.

5
Reno Charter, Art. XX, 9No employee of the city within the provisions of this article shall be
suspended, demoted, or discharged except as provided in this article.
Reno Charter, Art. XX, 11The city manager may suspend for a period not exceeding 30 days or
discharge or demote any employee of the city within the provisions of this article for the betterment of the
service or for other justifiable cause, * * *.
have been clearly distinguished from each other. Tims v. Bingham, 166 N.Y.S. 28 (1906);
also see Bole v. Civil City of Ligonier, 161 N.E.2d 189 (Ind. 1959).
[Headnotes 1, 2]
While the legislature may choose to preempt the entire field of regulation of public
employment, both as to tenure and retirement, State v. City of Toledo, 50 N.E.2d 338 (Ohio
1943), it may also delegate part of that power to political subdivisions of the state through the
general law, such as the Public Employees Retirement Act (Chap. 286 NRS) or through a
charter granted to an incorporated city. Ward v. Camden, 208 A.2d 419 (App.Div.,
N.J.Sup.Ct. 1965).
[Headnotes 3, 4]
As stated by Rhyne, Municipal Law 4-7:
A municipal corporation being ordinarily a creature of the legislature, the powers which it
possesses and exercises are only those which its charter, the general laws, or the constitution
bestow upon it. But this does not mean that the municipality possesses only such powers as
are expressly granted in its charter or the statutes. There are other powers necessarily or fairly
implied in or incident to the powers expressly granted, and also certain powers essential to the
declared object and purpose of the corporation, not simply convenient, but indispensable,
which may be exercised by the municipality.
[Headnote 5]
The Reno City Council, under implied authority granted it by the legislature in NRS
286.510, adopted Ordinance 1568 and particularly Section 4-23 (see footnote 1 above)
dealing with retirement of city employees and particularly firemen. Ronnow v. City of Las
Vegas, 57 Nev. 332, 65 P.2d 133 (1937). The statute, under which the ordinance was adopted
was permissive rather than mandatory, and granted the right to political subdivisions to either
require or permit police officers and firemen to retire at age 55 if they had completed a
minimum of 10 years of credited service. Reno chose, through its ordinance, to make the final
mandatory retirement age of firemen at 63 years. The council then sub-delegated its authority
under the ordinance to the city manager to extend retirement of firemen after age 55 at
one-year intervals where there were exceptional circumstances and the city's interest would be
served. The ordinance required the employee to submit written application to the city
manager, stating the reason for the requested extension and accompanied by a written report
of a physical examination. It is this part of the ordinance which comes under attack and was
the basis for the trial court's ruling.
comes under attack and was the basis for the trial court's ruling. The council established no
criteria, standards or basis to guide the city manager in the exercise of his duties under the
ordinance in determining what are exceptional circumstances and what is meant by in the
interest of the city. Thus, Saibini argues that the city manager can for any privately held,
unknown and unknowable reason, subjectively satisfactory to himself, refuse to grant
extension of the retirement age. Indeed, this contention has substance because counsel for the
city urged in his brief to this court, Your Honors must certainly recognize the fact that there
might be many reasons for the Departmental Head to desire or not desire Respondent to
continue in the service for an additional year: Reasons not necessarily connected with
Respondent's health or service record. This Court must likewise realize that the City Manager
might have many reasons other than the health and service record of Respondent for granting
or not granting the additional tenure.
[Headnote 6]
Tenure in public employment is a valuable right, and may not be dealt with arbitrarily.
Saibini clearly had tenure under the Reno Charter and the Nevada Statutes based upon 30
years' satisfactory service. It is true he was not being discharged, but retired. His retirement,
however, would just as surely cause him to be out of a job as if he were discharged. His
compensation would be drastically reduced from that of battalion chief with 30 years'
seniority to retirement pay at a time when he was physically able to perform his duties and
was and had been rendering satisfactory performance of his work. The record indicates other
Reno firemen beyond 55 years enjoyed extension of their retirement age, but the record is just
as bare of the reasons why they were extended that privilege as it is bare of the reasons why
Saibini was not.
[Headnote 7]
The city could lawfully delegate power to the city manager to perform a ministerial
function. In the delegation, however, it must fix standards and criteria to guide and direct him
in the performance of those duties. Rhyne, in his work on Municipal Law 4-10, says:
Although it is generally conceded that the state legislature may delegate to its
municipalities any powers it deems wise and proper, as an historical exception to the rule
against delegation of legislative power, the extent to which a municipality may in turn
delegate power in the performance of its functions is controlled by the same principles
which usually govern the delegation of powers by the state.
is controlled by the same principles which usually govern the delegation of powers by the
state. Thus, it has been repeatedly held that a municipality may not delegate legislative or
judicial power unless expressly authorized by the legislature. On the other hand, it is equally
well recognized that a municipal governing body may delegate to subordinate officers or
boards powers and functions which are ministerial or administrative, where there is a fixed
and certain standard or rule which leaves nothing to the judgment or discretion of the
subordinate or at most invest him with some reasonable discretion in administering the
standard or rule. Here there were none. The entire determination of exceptional
circumstances and the best interest of the City in extending the retirement were within the
sole judgment and discretion of the city manager, unguided except for his personal
conscience and sense of duty. While the record reveals nothing to cause us to suspect the city
manager's performance, the law simply did not settle that authority upon him.
We hold therefore, that while the legislature gave Reno authority to require absolute
retirement of firemen at 55 years, Reno extended that to 63 years if certain conditions were
present. Reno then delegated by ordinance the duty to determine if those conditions were met
to its city manager but without fixing any standards or criteria for him to follow. That
sub-delegation under Section 4-23 of Reno Ordinance 1568 is void and without authority of
law. Thompson v. Alameda, 77 P. 951 (Cal. 1904). In these circumstances the retirement of
Saibini was tantamount to discharge which is not permissible except upon proof of justifiable
cause at a hearing. Reno City Charter, Art. XX.
Rhyne in his work on Municipal Law at 4-10 says: However, laws or ordinances
subjecting the rights of a citizen to the unlimited discretion of an officer, without any
standard, rule or provision of law to govern or control his action, are unconstitutional.
[Headnote 8]
NRS 30.130 requires the attorney general to be served with a copy of the proceedings and
to be given opportunity to be heard in a constitutional attack on any statute, ordinance or
franchise in any proceeding. He was served in this case and chose not to appear and be heard.
He need not be made a party to the action. The statute is clear and needs no construction.
The trial court's judgment is sustained, and we order that respondent be reinstated to his
position of battalion chief of the Reno Fire Department with full pay and allowances as of
July 1, 1966.
Reno Fire Department with full pay and allowances as of July 1, 1966.
Thompson, C. J., and Zenoff, J.
____________
83 Nev. 322, 322 (1967) Wehrheim v. Warden
ALAN EDWARD WEHRHEIM Appellant, v. WARDEN,
NEVADA STATE PRISON Respondent.
No. 5237
July 5, 1967 429 P.2d 834
Appeal from an order denying a writ of habeas corpus. Eighth Judicial District Court,
Clark County; Clarence Sundean, Judge.
The lower court denied petitioner's application for writ of habeas corpus and he appealed.
The Supreme Court held that evidence that defendant had same unusual name as party
booked into jail and not released and that defendant dressed in jail clothes was found on
catwalk which was out-of-bounds to all jail personnel and rope of sheets and hooked length
of pipe were nearby was sufficient to sustain magistrate's order directing that defendant be
held for trial on charge of escape.
Affirmed.
1. Criminal Law.
In reviewing order which bound defendant over for trial on charge of escape, reviewing court's duty was
to decide whether there was established at preliminary hearing reasonable inference that crime of escape
had been committed. NRS 171.455, 212.090.
2. Criminal Law.
Degree of evidence required to bind defendant over for trial is less than proof beyond reasonable doubt
which is necessary at trial.
3. Criminal Law.
Evidence that defendant had same unusual name as party booked into jail and not released and that
defendant dressed in jail clothes was found on catwalk which was out-of-bounds to all jail personnel
and that rope of sheets and hooked length of pipe were nearby was sufficient to
sustain magistrate's order directing that defendant be held for trial on charge of
escape.
jail personnel and that rope of sheets and hooked length of pipe were nearby was sufficient to sustain
magistrate's order directing that defendant be held for trial on charge of escape. NRS 212.090.
OPINION
Per Curiam:
This is an appeal from an order denying a writ of habeas corpus. The sole issue is whether
there was probable cause to hold appellant to answer to the criminal complaint alleging an
escape.
1

[Headnotes 1, 2]
NRS 171.455 requires the magistrate to bind the accused over for trial if it appears that a
public offense has been committed, and there is sufficient cause to believe the defendant
guilty thereof. Our duty on appeal is to decide whether there was established at the
preliminary hearing a reasonable inference that the crime of escape was committed. Beasley
v. Lamb, 79 Nev. 78, 378 P.2d 524 (1963). We have noted before that the degree of evidence
required is less than the proof beyond a reasonable doubt which is necessary at trial, Beasley
v. Lamb, supra, and the evident proof or great presumption demanded by the Constitution
before bail may be denied one accused of a capital offense. Howard v. Sheriff, 83 Nev. 150,
425 P.2d 596 (1967). With the above in mind, we turn to review the evidence presented at the
preliminary hearing.
On March 18, 1966 one Alan Edward Wehrheim was booked into the Clark County jail for
possession of narcotics. There was no record of his having been released subsequent to that
time, up to the date of June 9, 1966. During the evening of that day, appellant and a
companion, both dressed in jail dungarees, were apprehended on a third story catwalk of the
Clark County jail. This location was out-of-bounds for all jail personnel. A make-shift rope of
sheets and a hooked length of pipe were located nearby.
____________________

1
NRS 212.090. Prisoner escaping. Every prisoner confined in a prison, or being in the lawful custody of
an officer or other person, who shall escape or attempt to escape from such prison or custody, if he is held on a
charge, conviction or sentence of:
1. A felony, shall be guilty of a felony.
2. A gross misdemeanor or misdemeanor, shall be guilty of a misdemeanor.
[Headnote 3]
This evidence, coupled with the unusual name of appellant which was identical to the one
on the booking sheet,
2
clearly satisfies the sufficient cause test of NRS 171.455.
Reasonable inferences were established that at least the crime of attempted escape was
committed. Beasley v. Lamb, supra; Johnson v. State, 82 Nev. 338, 418 P.2d 495 (1966);
Farrell v. State, 83 Nev. 1, 421 P.2d 948 (1967). See also Howard v. Sheriff, 83 Nev. 48, 422
P.2d 538 (1967).
Order affirmed.
____________________

2
Cf. Hollander v. State, 82 Nev. 345, 418 P.2d 802 (1966).
____________
83 Nev. 324, 324 (1967) Serrano v. State
THOMAS SERRANO, Appellant, v. THE STATE
Nos. 5314, 5347
July 7, 1967 429 P.2d 831
Appeal from the Second Judicial District Court, Washoe County; John B. Gabrielli, Judge.
Habeas corpus proceeding testing probable cause to indict and right to bail. The trial court
found that probable cause existed and refused release on bail and petitioner appealed. The
Supreme Court, Collins, J., held that trial court's denial of bail which was based on its
examination of transcript of grand jury proceedings leading to indictment for murder would
not be disturbed in view of discretion vested in trial court.
Affirmed.
Robert E. Rose and F. DeArmond Sharp, of Reno, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, Virgil D. Dutt,
Deputy District Attorney, Washoe County, for Respondent.
1. Indictment and Information.
Where grand jury considered matter on more than one occasion but based its indictment on testimony
taken at one particular hearing, determination of probable cause for indictment must stand or fall on that
evidence alone.
2. Habeas Corpus.
Power of grand jury to continue investigation of defendant's case after return of indictment could not
be questioned in habeas corpus proceeding where state had not attempted to use
testimony so obtained and applicant had not sought to suppress such evidence.
corpus proceeding where state had not attempted to use testimony so obtained and applicant had not sought
to suppress such evidence.
3. Criminal Law.
Confrontation of witnesses with accompanying right of cross-examination is federal constitutional right
to be accorded at trial.
4. Bail.
Transcript of grand jury proceedings leading to indictment for murder may be offered in support of
requirement that only where proof is evident or presumption great may bail be denied in capital case.
Const. art. 1, 7; NRS 178.025.
5. Bail.
Burden is upon state to show that right to bail is limited rather than absolute. Const. art. 1, 7;
NRS 178.025.
6. Bail.
Trial court has broad discretion in evaluating amount of proof needed to defeat right to bail.
7. Bail.
Once constitutional mandate of evident proof or great presumption to defeat bail is satisfied, trial
court may receive information unrelated to guilt of accused to aid court in resolving question of bail.
Const. art. 1, 7; NRS 178.025.
8. Criminal Law.
Trial court's denial of bail which was based upon its examination of transcript of grand jury proceedings
leading to indictment for murder would not be disturbed in view of discretion vested in trial court. Const.
art. 1, 7; NRS 178.025, 171.405, subd. 9.
OPINION
Thomas Serrano was indicted by the grand jury of Washoe County for the murder of Barry
Forget. Following return of the indictment, the grand jury subpoenaed additional witnesses in
its investigation of the case, but returned no other indictments. The district court refused to
admit Serrano to bail.
He sought habeas corpus, contending there was no probable cause to indict him. He
demanded copies of the transcripts of the evidence before the grand jury. The trial court
granted him a copy of the transcript of the hearing which resulted in his indictment and found
there was probable cause to try him for murder. It refused his request for a copy of the
transcript of the second hearing into the case conducted by the grand jury which produced no
indictments.
Serrano also sought a writ of habeas corpus demanding release on bail. At this hearing, the
trial court, over Serrano's objection, considered only the transcript of evidence presented at
the first grand jury hearing which resulted in his indictment, found there was evident
proof or great presumption that appellant committed first degree murder and refused his
release on bail.
at the first grand jury hearing which resulted in his indictment, found there was evident proof
or great presumption that appellant committed first degree murder and refused his release on
bail.
Serrano appeals from both adverse rulings of the trial court on his application for habeas
corpus. We find no merit to either appeal and sustain the orders of the trial judge.
On September 3, 1966 Barry Forget received a gunshot wound in a bar in Reno. The same
day appellant was arrested, charged with the shooting and released on bail. Tracy E. Vincent
was also arrested, charged as an accessory to the fact and released on bail. On September 14
Forget died and appellant was re-arrested, charged with murder and held without bail.
On September 30 the grand jury heard three witnesses and returned an indictment that day,
charging Serrano with Forget's murder. Two other witnesses were subpoenaed but did not
testify. On October 3 the grand jury resubpoenaed the latter two witnesses in the same case,
heard their testimony, but returned no further indictments.
Serrano in testing probable cause by habeas corpus contended that he was entitled to
copies of the grand jury transcripts for both September 30 and October 3. The trial judge
ruled that the indictment was founded upon the September 30 transcript and gave appellant a
copy. A dispute developed whether the grand jury hearing of October 3 was directed to other
charges arising out of the same case or simply a device employed by the district attorney to
discover testimony of other witnesses who might be favorable to appellant. The trial judge
after an in camera inspection of the October 3 transcript denied appellant's request for a copy
of it. The trial judge in his discretion also refused appellant's request for the transcript by way
of discovery.
Serrano also sought to be admitted to bail. At that habeas corpus hearing the state offered
only the grand jury transcript of September 30 and rested. Serrano objected to that evidence,
contending he had a right to be confronted by the state's witnesses to cross-examine them and
that the transcript was hearsay evidence. The trial court denied his objections, considered the
transcript, found there was evident proof or great presumption that appellant committed first
degree murder and denied his application for bail.
On the writ of habeas corpus testing probable cause:
We said in Ivey v. State, 82 Nev. 448, 420 P.2d 853-854 (1966), One has a right to be
free from harassment and restraint if probable cause for trial is not shown to exist. That right
necessarily carries with it the right to know what evidence was formally received by the
grand jury and supplied the basis for its indictment."
right necessarily carries with it the right to know what evidence was formally received by the
grand jury and supplied the basis for its indictment.
[Headnote 1]
The record in this case irrefutably shows the grand jury found and returned its indictment
on the basis of the testimony taken September 30, 1966. Appellant received a copy of that
transcript. The determination of probable cause for the indictment must stand or fall on that
evidence alone. The trial court found that there was probable cause based upon the evidence
in that transcript.
[Headnote 2]
Appellant does not attack the probable cause sufficiency of the September 30 transcript,
but contends the grand jury had no power to continue its investigation of appellant's case after
returning its indictment or to lend its investigatory powers to the district attorney for
discovery purposes. There is authority for such a contention, State v. Weagley, 228 S.W. 817
(Mo. 1921); In re National Window Glass Workers, 287 F. 219 (D.C.N.D. Ohio 1922);
United States v. Pack, 150 F.Supp. 262 (D.C. Del. 1957); United States v. Dardi, 330 F.2d
316 (2 Cir., 1964), but the question is not properly before us in this appeal. The state has not
yet attempted to use the testimony, and may not for all we know. Appellant has not sought to
suppress the evidence, objected to it or prohibit its use. When that question is properly before
us, we will then consider it.
On the writ of habeas corpus seeking admission to bail:
[Headnotes 3-7]
Confrontation of witnesses, with the accompanying right of cross-examination, is a federal
constitutional right to be accorded at trial, Pointer v. Texas, 380 U.S. 400 (1965); Messmore
v. Fogliani, 82 Nev. 153, 413 P.2d 306 (1966). We said in Ex parte Wheeler, 81 Nev. 495,
406 P.2d 713 (1965), Some competent evidence tending to prove the commission of a
capital offense must be offered before the accused's right to bail may be limited. We think
the transcript of the testimony of witnesses given before the grand jury upon which the
indictment was founded, may be offered for that purpose. By itself, it may or may not be
sufficient to meet the constitutional (Nev. Const. Art. 1, 7) and statutory (NRS 178.025)
requirement that only where the proof is evident or the presumption great may bail be
denied in a capital case.
case. Howard v. Sheriff, 83 Nev. 48, 422 P.2d 538 (1967). The burden is still on the state to
show that the right to bail is limited rather than absolute. Ex parte Wheeler, supra, at page
499. The trial court has broad discretion in evaluating the amount of proof needed to defeat
bail, and once the constitutional mandate of evident proof or great presumption is satisfied,
may even receive other information unrelated to the guilt of the accused to aid the court in
resolving the question of bail. Ex parte Wheeler, supra, at pages 500 and 501.
[Headnote 8]
Nor do we feel the requirement of State v. Teeter, 65 Nev. 584, 609, 200 P.2d 657 (1948),
that in passing on bail, the right, or the absence of the right, to bail * * * 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 is violated. The grand jury in returning an indictment, can receive
none but legal evidence, and the best evidence in degree, to the exclusion of hearsay or
secondary evidence. NRS 172.260(2). In reviewing the grand jury transcript on the bail
question, who is better able than the trial court to subject the testimony in the transcript to the
rule of evidence? Trial judges are called upon daily to perform that duty. In Teeter, the trial
judge erroneously admitted and relied upon hearsay, privileged testimony which would not
have been lawful evidence before either a grand jury or a court. Moreover, in a habeas corpus
attack on probable cause directed to a preliminary examination before a magistrate, the statute
specifically authorizes a district judge to make his determination from the transcript of the
evidence. NRS 171.405(9).
1
The analogy is pertinent.
Judgment affirmed.
Thompson, C. J., concurring:
While I agree with the opinion of Mr. Justice Collins I wish to add a further comment with
respect to the October 3 grand jury hearing. The witnesses examined at that time were
subpoenaed to testify in the case of State v. Serrano. The prosecution apparently wished to
discover evidence material to the Serrano litigation.
____________________

1
9. Testimony reduced to writing and authenticated according to the provisions of this section must be filed
by the examining magistrate with the clerk of the district court of his county, and in case the prisoner is
subsequently examined upon a writ of habeas corpus, such testimony must be considered as given before such
judge or court.
Serrano litigation. The procedure is not authorized. The case of State v. Serrano was then
pending before the district court and was no longer grand jury business. The grand jury
investigation of the Serrano case was terminated when it returned an indictment. Thereafter,
proceedings in that case are to be conducted under court processes.
Though the grand jury has broad investigatory power [NRS 172.300; Dickerson v. Grand
Jury, 82 Nev. 113, 412 P.2d 441 (1966)], that power vanishes when an indictment is returned.
The entire statutory scheme points to this fact. For example, NRS 172.260 dealing with
evidence receivable before the grand jury speaks in terms of the investigation of a charge for
the purpose of indictment. This suggests that once an indictment is returned the grand jury's
function in that case ceases. Of greater significance is NRS 178.250, which authorizes the
issuance of subpoenas for witnesses to testify before the grand jury upon any investigation
pending before them; and subsection 2 declares directly that if the subpoenas are issued in
support of an indictment the witnesses are to appear before the court in which the case is to
be tried. Indeed, once a criminal case is before the court, all statutory provisions for the
attendance of witnesses require the witnesses to appear before the court and not before some
other body. See: NRS 178.250 (2); 178.275; 178.245; 178.290-320. Accordingly, the grand
jury hearing of October 3 was not statutorily authorized, and the transcript of testimony of the
witnesses who appeared on that date pursuant to invalid subpoenas is subject to a motion to
suppress.
____________
83 Nev. 329, 329 (1967) Jeppeson & Co. v. District Court
JEPPESON & COMPANY, a Colorada Corporation, Petitioner, v. THE EIGHTH JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA in and for the County of Clark, and
GEORGE R. MILLER, Administrator of the Estate of WILLIAM TED RILEY, Respondents.
No. 5355
September 7, 1967 431 P.2d 260
Petition for writ of prohibition.
Foreign corporation sought to prohibit further prosecution of wrongful death action against
it as a codefendant, contending state district court lacked jurisdiction against it. The Supreme
Court, Thompson, C. J., held that long-arm statute providing for service of process on
foreign manufacturer for "damages for injury to person or property" resulting from
distribution of a product within state applies to an action to recover damages for wrongful
death.
Supreme Court, Thompson, C. J., held that long-arm statute providing for service of process
on foreign manufacturer for damages for injury to person or property resulting from
distribution of a product within state applies to an action to recover damages for wrongful
death.
Petition denied.
Dickerson & Miles, of Las Vegas, for Petitioner.
Keith C. Hayes, of Las Vegas, for Respondents.
Corporations.
Long-arm statute providing for service of process on foreign manufacturer for damages for injury to
person or property resulting from distribution of a product within state applies to an action to recover
damages for wrongful death. NRS 14.080.
OPINION
Jeppeson & Company, a foreign corporation, seeks to prohibit the further prosecution of a
wrongful death action against it as a co-defendant. The petitioner contends that the district
court does not have jurisdiction since the Nevada long-arm statute [NRS 14.080],
1
under
which process was served, applies only to an action to recover damages for injury to person
or property," and does not embrace an action for wrongful death.
____________________

1
NRS 14.080 provides: Products liability: Service of process on foreign manufacturers, producers,
suppliers.
1. Any company, firm, partnership, corporation or association created and existing under the laws of any
other state, territory, foreign government or the Government of the United States, which manufactures, produces,
makes, markets or otherwise supplies directly or indirectly any product for distribution, sale or use in this state
may be lawfully served with any legal process in any action to recover damages for injury to person or property
resulting from such distribution, sale or use in this state in the manner prescribed in this section.
2. Service of process as authorized under the provisions of subsection 1 shall be accomplished:
(a) By delivering a copy of such process to the secretary of state; and
(b) By mailing to the last-known address of the company, firm, partnership, corporation or association, by
registered mail return receipt requested, a copy of the summons and a certified copy of the complaint.
3. In all cases of such service the defendant shall have 40 days, exclusive of the day of service, within
which to answer or plead.
4. This section provides an additional manner of serving process and does not invalidate any other service.
person or property, and does not embrace an action for wrongful death. The district court
denied Jeppeson's motion to quash process made upon that ground and this proceeding
ensued. We agree with the district court and, therefore, deny this application for a writ of
prohibition.
In the underlying tort action the personal representative of William Riley, deceased,
alleged that Jeppeson designed, sold, and delivered to the co-defendant, Bonanza Airlines,
Inc., a defective instrument approach plate VOR DME No. 3, thereby causing a Bonanza
aircraft to crash in Nevada, killing passenger Riley.
In Metal-Matic, Inc. v. District Court, 82 Nev. 263, 415 P.2d 617 (1966), we held that the
long-arm statute lawfully authorized service of process upon a foreign manufacturer of a
product put into the stream of commerce with reasonable anticipation of its use in the state
where injury occurred; that the cause of action in such instance arises out of a fairly
expectable contact with the forum state and does not offend the due process concept of fair
play and substantial justice.
Although Metal-Matic was a wrongful death case, the point of statutory construction now
presented (whether NRS 14.080 was intended to embrace a wrongful death action as well as
an action to recover damages for injury to person or property) was not there raised.
Consequently, that opinion did not deal with the issue, although the court had it in mind when
it ruled. We now hold that NRS 14.080 applies to an action to recover damages for wrongful
death. The effectiveness of NRS 14.080 is not governed by whether the injured person lives
or dies. The aim of the statute is process and jurisdiction; not the extent of injury. The phrase,
to recover damages for injury to person includes an injury resulting in death.
The petition for a writ of prohibition is dismissed.
____________
83 Nev. 332, 332 (1967) Fairman v. Warden
EARL FAIRMAN, Jr., Appellant, v. WARDEN, NEVADA
STATE PRISON, Respondent.
No. 5235
DOROTHY MAE JOHNSON, Also Known as DOROTHY MAE BENSON, Appellant, v.
SHERIFF OF CLARK COUNTY, State of Nevada, Respondent.
No. 5264
September 19, 1967 431 P.2d 660
Appeals from the Eighth Judicial District Court, Clark County; Clarence Sundean, Judge.
The lower court denied habeas corpus petitions following preliminary examination, and
petitioners appealed contending that evidence of possession of narcotics was erroneously
admitted because it came by unconstitutional search and seizure and that there was
insufficient showing of possession of narcotics to hold petitioners for trial. The Supreme
Court, Collins, J., held that officers who placed petitioners under arrest for robbery after
obtaining information regarding circumstances of robbery and identification and description
of participants from victim, and after they had observed one petitioner, who fit description
given, acting suspiciously, had probable cause to make arrests without warrant. It further held
that search made incident to that arrest which disclosed illegal possession of narcotics was
proper. The court also held that evidence sustained finding that both petitioners had necessary
dominion and control over substance and knowledge of its narcotic character to be held for
trial for crime of illegal possession of narcotics.
Affirmed.
Babcock & Sutton, of Las Vegas, for Appellant Earl Fairman, Jr.
Foley, Garner & Shoemaker, of Las Vegas, for Appellant Dorothy Mae Johnson.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, James D.
Santini, Deputy District Attorney, Clark County, for Respondent Warden, Nevada State
Prison, and Respondent Sheriff of Clark County, State of Nevada.
1. Arrest.
Officer may make an arrest without warrant when he has reasonable cause to believe felony has been
committed and that suspect committed it. NRS 171.235.
2. Arrest.
Probable cause to make an arrest without warrant exists if facts and circumstances known to officers at
moment of arrest would warrant prudent man in believing that felony had been committed by person
arrested. NRS 171.235.
3. Arrest.
Officers who placed petitioners under arrest for robbery after obtaining information regarding
circumstances of robbery and identification and description of participants from victim, and after observing
one petitioner, who fit description given, enter room where suspected robbery took place, then shortly
thereafter emerge from room, look furtively up and down street, go to some bushes, pick up brown paper
sack and re-enter room, had probable cause to make arrest without warrant. NRS 171.235.
4. Arrest.
Incident to arrest for robbery, officer had constitutional right to search not only persons arrested but
premises where they were arrested in order to seize weapons, instruments of crime, and contraband.
5. Arrest.
Police search of motel room for pistol used in perpetration of crime of robbery which yielded discovery
of illegally possessed narcotics was lawful since it was incident to lawful arrest for robbery.
6. Poisons.
Possession of narcotics is illegal per se and a continuing felony.
7. Arrest.
Officers who knew that petitioner was present in motel room, and that an armed robbery had been
committed with gun initially located in that room, had right, for protection of their own persons, to deviate
from statute permitting officers to break into dwelling place to make arrest after demanding admittance and
explaining their purpose, and to enter room unannounced. NRS 171.275.
8. Poisons.
In order to hold one for narcotics possession, it is necessary to show dominion and control over substance
and knowledge that it is of a narcotic character, and these elements may be shown by direct evidence or by
circumstantial evidence and reasonably drawn inferences.
9. Criminal Law.
Evidence that petitioner had prior attachment to room in which narcotics were found, that he was seen
coming out of room, that he was seen taking brown paper sack from bushes whereupon he returned to
room, and that he was in room when narcotics were found in similar brown paper sack, satisfied requisite
elements necessary to show petitioner's possession of narcotics, and supported
finding that he should be held for trial on charge of illegal possession of narcotics.
requisite elements necessary to show petitioner's possession of narcotics, and supported finding that he
should be held for trial on charge of illegal possession of narcotics.
10. Criminal Law.
Evidence that petitioner sat on brown paper sack containing 19 packets of marijuana was sufficient to
show that she had dominion and control over narcotics and knowledge of their presence, and her effort to
keep packets concealed from officers during their search of room strongly suggested her knowledge that
package contained contraband and that she intended to conceal package, and therefore she was properly
held for trial on charge of illegal possession of narcotics.
OPINION
These cases were consolidated for argument and disposition since they arose out of the
same incident. Each appeal is from a district court denial of habeas corpus following
preliminary examination.
Fairman contends that evidence of possession of narcotics was erroneously admitted,
because secured by an unconstitutional search and seizure. Fairman and Johnson each urge
that there was an insufficient showing of possession to hold either for trial. We find no merit
to these contentions and affirm.
A summary of the facts shows that William Harrison arranged to have sexual intercourse
for compensation with Dorothy Mae Johnson. They proceeded from a bar to room 516 of the
West Motel in Las Vegas, Nevada. When they arrived, the room, registered to one Lionel
Winder, was occupied by appellant Fairman, stepson of Winder. Fairman immediately
departed. When Harrison and Johnson had completed intercourse, Johnson responded to a rap
on the door and admitted Thelma Dupree and another woman to the room. All three women
retired to the bathroom, after which Dupree came out, obtained a gun from a dresser drawer
in the room and robbed Harrison of approximately $60. Harrison, clad only in his trousers,
left the room, went to the manager's office, and called the police.
Harrison returned to the area of his automobile, observed the three women leave room 516
and proceed upstairs where, from the balcony, Thelma Dupree pointed the gun at the victim
in a threatening manner and then, along with the other women, disappeared into another
room. Harrison took a knife from his glove compartment and proceeded upstairs to recover
his stolen money. When one of the girls appeared he started to chase her.
chase her. At this moment Fairman appeared, and using the lid of a garbage can as a weapon,
prevented Harrison from pursuing her and chased him off. Harrison went back downstairs and
waited for the police.
Officers Mouliot and Chappell responded to the call and were met by Harrison at the
motel. He related the foregoing circumstances to them. The officers obtained a key from the
manager to room 516. They entered the unoccupied room to retrieve the remainder of
Harrison's clothes. His clothing was later found in the bushes outside the motel. While in the
room they neither searched for nor removed anything. Harrison, noticing a photograph of
Dupree in the room, identified her as the one who had held the gun on him and taken his
money. He described the appearance and dress of Fairman and the three women to the
policemen.
The officers then commenced a stake-out of the room. They observed Fairman and Willie
Corbin enter the room. Shortly thereafter, they saw Fairman emerge from the room, look
furtively up and down the street, go to some bushes, pick up a brown paper sack and re-enter
the room. Being satisfied that Fairman was the person identified by Harrison as the man who
had prevented him from pursuing the women following the robbery, the officers again
secured a key to the room and entered it unannounced. They had no arrest or search warrants.
Upon entering the room they found Fairman, Corbin and the three women. After
identifying themselves as police officers, they placed Fairman and the women under arrest for
robbery. The officers then commenced a search of the room for the gun.
Fairman, who was standing in the room, became combative and resistful during the search.
Dorothy Mae Johnson was sitting on the bed upon entry of the officers and remained there
during commencement of the search. She arose once to put on some slippers but immediately
sat down on the same place on the bed. When asked by the officers to move, she refused to do
so and asked, Why? They told her that it was to enable them to search the bed. She then
complied. Under the covers of the bed, in the exact place she had been sitting, the officers
found a brown paper sack containing 19 packets of marijuana and a roach (a half-smoked
marijuana cigarette). The suspects were then advised they were under arrest for possession of
narcotics.
[Headnotes 1-3]
Under Nevada law an officer may make an arrest without a warrant when he has
reasonable cause to believe a felony has been committed, and that the suspect committed it.
NRS 171.235. Probable cause exists if the facts and circumstances known to the officers at
the moment of the arrest would warrant a prudent man in believing that a felony had
been committed by the person arrested.
known to the officers at the moment of the arrest would warrant a prudent man in believing
that a felony had been committed by the person arrested. Gordon v. State, 83 Nev. 177, 426
P.2d 424 (1967); Nootenboom v. State, 82 Nev. 329, 418 P.2d 490 (1966). Here the officers
testified to facts known to them from Harrison's account and their own observations about
Fairman's identity and participation in the robbery. There was probable cause to arrest.
[Headnotes 4-6]
Incident to the arrest for robbery, the officers had the constitutional right to search not only
the persons arrested but the premises where they were arrested and to seize weapons,
instruments of the crime, and contraband. Abel v. United States, 362 U.S. 217 (1960);
Preston v. United States, 376 U.S. 364 (1964). Here, the search was for the pistol, an
instrument used in the perpetration of the crime. Their lawful search disclosed narcotics, the
possession of which was illegal per se and a continuing felony. Arabia v. State, 82 Nev. 453,
421 P.2d 952 (1966).
[Headnote 7]
The method of intrusion may sometimes invalidate an arrest. Nevada, by statute, permits
officers to break into a dwelling place to make an arrest after demanding admittance and
explaining their purpose. NRS 171.275. However, it has been recognized that circumstances
may exist where an entrance which does not strictly follow this standard is still permissible.
Ker v. California, 374 U.S. 23 (1962). The officers in this case, knowing that Fairman was
present in the room, and that an armed robbery had been committed with a gun initially
located in that room, had the right, for protection of their own persons, to deviate from the
statute and enter the room unannounced. Any demand for admission they made could well
have been answered by a bullet. They were not obligated to take that risk.
[Headnotes 8, 9]
In order to hold one for narcotics possession, it is necessary to show dominion and control
over the substance (Doyle v. State, 82 Nev. 242, 415 P.2d 323 (1966)) and knowledge that it
is of a narcotic character (Overton v. State, 78 Nev. 198, 370 P.2d 677 (1962), citing Wallace
v. State, 77 Nev. 123, 359 P.2d 749 (1961)). These elements may be shown by direct
evidence or by circumstantial evidence and reasonably drawn inferences. People v. Lunbeck,
303 P.2d 1082 (Cal. 1956). The requisite elements to show Fairman's possession of narcotics
may be inferred from the evidence.
narcotics may be inferred from the evidence. He had prior attachment to the room. He was
seen to come out of the room, take a brown paper sack from the bushes, and return to the
room. He was arrested there and objected strenuously to a search of the room by the officers.
He was in the room when the narcotics were found in a similar brown paper sack.
[Headnote 10]
Dorothy Mae Johnson also contends the state has failed to show (1) dominion and control;
(2) knowledge of the presence of the narcotic substance; and (3) knowledge of the narcotic
nature of the substance by her. Each of these elements of proof can be shown by
circumstantial evidence from which inferences can be drawn. To say, as she sat on the brown
paper sack containing 19 packets of marijuana, that she had no dominion or control, or
knowledge of the presence of the substance, strains credulity. Her effort to keep the packet
concealed from the officers during their search of the room strongly suggests her knowledge
that the package contained contraband and that she intended to conceal the package. Cf.
People v. Martinez, 336 P.2d 988 (Cal. 1959).
Affirmed.
Thompson, C. J. and Zenoff, J. concur.
____________
83 Nev. 337, 337 (1967) Robinson v. Durston
W. SCOTT ROBINSON, Appellant, v. WES DURSTON and THUNDER-
BIRD FIELD, INC., a Nevada Corporation, Respondents.
No. 5044
September 25, 1967 432 P.2d 75
Appeal from the Eighth Judicial District Court, Clark County; David Zenoff, Judge.
Action to have deed absolute on its face declared to be mortgage. The trial court found in
favor of plaintiffs and defendant appealed. The Supreme Court, Gabrielli, D. J., held that
where party gave deed to 15.45 acres of 61-acre tract involved in transaction found to be loan
and not sale and option to repurchase and party had repaid all monies received, party was
entitled to return of said 15.45 acres upon payment of interest for money actually received.
Judgment affirmed.
Jones and Holt, of Las Vegas, for Appellant.
Harry E. Claiborne, of Las Vegas, for Respondents.
1. Mortgages.
Deed absolute on its face may be shown to be mortgage in equity and particularly so where claim of
usury is made or indicated.
2. Mortgages.
In determining whether deed absolute on its face was in fact mortgage, form of transaction will be
disregarded and its substance and intention of parties at time will control.
3. Evidence; Mortgages.
In determining whether deed absolute on its face was in fact mortgage, either party has right to testify as
to what intention was and weight to be given their testimony is for trier of fact.
4. Mortgages.
Party claiming that deed absolute on its face was in fact mortgage has burden of proof to establish such
claim by cogent, clear and convincing evidence.
It is not function of reviewing court to weigh testimony but only to determine whether there was sufficient
evidence to support trial court's findings and judgment.
6. Mortgages.
A promise to repay a debt may be implied under particular circumstances of any case, where it is clear
that lender relies on property for security being satisfied that he is protected by its high value in relation to
loan.
7. Mortgages.
Circumstances to be considered in determining whether or not transaction was mortgage or sale and
option to repurchase are: what documents say; who pays taxes on property; were documentary stamps
affixed to deed; was price disproportionate; right to repurchase; absence of common procedures employed
in real estate sales; relationship between parties; computation of buy back rights; bonus to be paid in
repurchase; financial embarrassment of grantor; continued possession, management and improvement of
property by grantor; and nonpayment of rent.
8. Mortgages.
Since determination of whether transaction was mortgage or deed depends on intent of parties, and since
intent must be determined from all facts and circumstances, there is no restriction as to number or kind of
relevant circumstances which may be considered as bearing on issue of intent and presence or absence of
any particular circumstances is not conclusive.
9. Mortgages.
Evidence sustained finding that deed to 15.45 acres of 61-acre tract was part of loan transaction and not
deed absolute.
10. Mortgages.
Right to redeem will not be taken away except upon strict compliance with steps necessary to divest it.
11. Mortgages.
Where party gave deed to 15.45 acres of 61-acre tract involved in transaction found to be loan and not
sale and option to repurchase and party had repaid all monies received, party was entitled to return of said
15.45 acres upon payment of interest for money actually received.
OPINION
By the Court, Gabrielli, D. J.:
This appeal is from judgment of trial court in favor of respondents (plaintiffs below) Wes
Durston and Thunderbird Field, Inc., a Nevada corporation (hereinafter, unless otherwise
indicated, the Court will use the name Durston to refer to both plaintiffssince it was an
exclusively Durston owned corporationand he was not personally a party in interest but
acted only for the corporate plaintiff) and against appellant (defendant below) W. Scott
Robinson.
Durston commenced this action to have a grant deed absolute on its face, executed and
delivered simultaneously with an option to repurchase declared to be a mortgage as security
for a loan.
After trial, the Court held the transaction to be a loan with grant deed duly executed to
secure same and Durston was ordered to pay Robinson 7 percent interest per annum on the
actual sums, i.e., $95,000 ($70,000 December 29, 1961 $25,000 April 3, 1962), used from
date they were made available to plaintiff until actual date paid and further ordered the 15.45
acres of unimproved land here involved returned to plaintiff.
Appellant assigns error in that the findings and judgment of the trial court are contrary to
and unsupported by the law and evidence, and for its refusal to strike certain findings and to
grant ones requested by appellant.
[Headnotes 1-3]
The question presented is whether the transaction was a loan and security or an absolute
sale with option to repurchase. The applicable principles of law are not greatly in dispute. A
deed absolute on its face may be shown to be a mortgage in equity and particularly so where
the claim of usury is made or indicated. In such cases the form of the transaction will be
disregarded and its substance and the intention of the parties at the time will control. The only
question we need consider is: Did the parties intend that the transaction should be a
mortgage? Either party has the right to testify as to what that intention wasweight is for
trier of fact.
intention wasweight is for trier of fact. Pomeroy's Equity Jurisprudence, Vol. 4,
1192-1196 (5th ed. 1941); Annotations 79 A.L.R. 937; 155 A.L.R. 1104; 111 A.L.R. 448;
and cases hereinafter cited. For convenience and clarity, Pomeroy's classic statement of the
equitable principles here involved is quoted from his Section 1193:
In general, all persons able to contract are permitted to determine and control their own
legal relations by any agreements which are not illegal, or opposed to good morals or to
public policy; but the mortgage forms a marked exception to this principle. The doctrine has
been firmly established from an early day that when the character of a mortgage has attached
at the commencement of the transaction, so that the instrument, whatever be its form, is
regarded in equity as a mortgage, that character of mortgage must and will always continue. If
the instrument is in its essence a mortgage, the parties cannot by any stipulations, however
express and positive, render it anything but a mortgage, or deprive it of the essential attributes
belonging to a mortgage in equity. The debtor or mortgagor cannot, in the inception of the
instrument, as a part of or collateral to its execution, in any manner deprive himself of his
equitable right to come in after a default in paying the money at the stipulated time, and to
pay the debt and interest, and thereby to redeem the land from the lien and encumbrance of
the mortgage; the equitable right of redemption, after a default is preserved, remains in full
force, and will be protected and enforced by a court of equity, no matter what stipulations the
parties may have made in the original transaction purporting to cut off this right.
This doctrine is based upon the relative situation of the debtor and the creditor; it
recognizes the fact that the creditor necessarily has a power over his debtor which may be
exercised inequitably; that the debtor is liable to yield to the exertion of such power; and it
protects the debtor absolutely from the consequences of his inferiority, and of his own acts
done through infirmity of will. The doctrine is universal in its application, and underlies many
special rules of equity. * * *
This Court recently, in Kline v. Robinson, 83 Nev. 244, 428 P.2d 190 (1967) (incidentally
the same Mr. Robinson here involved in a similar type transaction), stated in connection with
the factual situation there presented:
The trial judge in concluding there was no disputed factual issues to be presented to the
jury, ruled that the evidence clearly and convincingly disclosed a sale with right of
repurchase, and not a loan. Hence there was no question of usury.
In light of the evidence reviewed above, he was not entitled to withdraw from the jury's
consideration the nature of the transaction, as either a loan or a sale. The distinction between
a sale and a loan has been succinctly defined in Milana v. Credit Discount Co., 163 P.2d 869
(Cal. 1945); A sale is a transfer of the property in a thing for a price in money. The transfer
of the property in the thing sold for a price is the essence of the transaction. The transfer is
that of the general or absolute interest in property as distinguished from a special property
interest. A loan, on the other hand, is the delivery of a sum of money to another under a
contract to return at some future time an equivalent amount with or without an additional sum
agreed upon for its use; and if such be the intent of the parties the transaction will be deemed
a loan regardless of its form.
[Citations.]
consummate the transaction. In a loan the initial transaction creates a debit and credit
relationship which is not terminated until replacement of the sum borrowed with agreed
interest.' Whether a transaction in the form of a sale with option to repurchase is in fact a sale,
or a loan disguised as a sale to cover up a scheme to collect usurious interest is an issue for
the jury. Cannon v. Seattle Title Trust Co., 252 P. 699 (Wash. 1927); Rosemead Co. v.
Shipley Company, 278 P. 1038 (Cal. 1929); Britz v. Kinsvater, 351 P.2d 986 (Ariz. 1960);
Kawauchi v. Tabata, 413 P.2d 221 (Hawaii 1966).
There is a wealth of evidence in this case from which a jury might find there was a loan
rather than a sale, especially when instructed they can disregard form and look to the
substance of the transaction and intent of the parties. Fiedler v. Darrin, 50 N.Y. 437 (1872),
Annot., 154 A.L.R. 1065.
[Headnotes 4, 5]
The burden of proof is upon the one asserting it was a loan and he must establish that fact
by evidence which is cogent, clear, and convincing and leaves no doubt upon the mind.
Bingham v. Thompson, 4 Nev. 224 (1868); Pierce v. Traver, 13 Nev. 526 (1878). Durston is
entitled to have it enforced as a mortgage if he can carry his burden of proof. It is not our
function to weigh the testimony, but only to determine whether there is sufficient evidence to
support the trial court's findings and judgment. This Court stated in McCall v. Carlson, 63
Nev. 390, 413, 172 P.2d 171 (1946), Having the witnesses before him, and the opportunity
of observing their demeanor and manner of giving their testimony, he was in a better
position than we are to evaluate such testimony and determine its proper weight.
and manner of giving their testimony, he was in a better position than we are to evaluate such
testimony and determine its proper weight. There being a conflict in the evidence as to the
question of adequacy or inadequacy of consideration, we shall follow the well established
rule and not disturb the findings in that respect, of the trial court, there being substantial
evidence to support them. Citing cases. The facts and circumstances of each case are always
carefully examined.
We have concluded, giving due deference to the findings of the learned trial court upon the
facts presented as to the intention and purpose of the parties at that time (December 29, 1961)
that there is substantial evidence to support the conclusion and judgment reached.
The facts fairly and substantially established by this record are as follows:
That prior to December 29, 1961, Durston and Robinson were personal friends and at the
time were members of Board of Trustees of the First Methodist Church in Las Vegas. Prior to
May, 1961, Durston had acquired an option to purchase from one Hickson approximately 61
acres of unimproved land (the 15.45 acres here involved being a portion thereof) fronting on
Highway 95, approximately four and one-half miles northwest of Las Vegas in the vicinity of
what was then the Thunderbird Airport owned and operated by Durston. The purchase price
was $1,000 per acre, option was to expire on January 1, 1962. Durston opened an escrow for
the purpose of exercising his option but was in dire need of money (Robinson's words) at
the time he was seeking a loan and at all other times material hereto. He was compelled to
obtain extensions of time on the option from Hickson. Some time before the close of this
escrow on December 29, 1961, Durston had sought out his good friend Robinson who was
interested in investing money privately, resulting in Robinson's $70,000 deposit in escrow on
December 29, 1961, two days before expiration date. The escrow was then closed with deeds
being recorded from Hickson to Durston and Durston to Robinson and option to repurchase
from Robinson to Durston for $85,000 to be exercised not sooner than July 15, 1962, or later
than January 1, 1963. Seventy-seven dollars in Internal Revenue Stamps were affixed.
Attached to the deed was the necessary corporate certificate authorizing the conveyance to
Robinson. Of the $70,000 put in escrow by Robinson, $8,189.48 went to Durstonthe
balance was used to pay Hickson for the land and for expenses of escrow. It was at
Robinson's insistence that the transaction take the form of absolute sale with option to
repurchase so that he could take advantage of long-term capital tax under Federal tax
law and that was the reason why repurchase could not occur before six months had
elapsed.
absolute sale with option to repurchase so that he could take advantage of long-term capital
tax under Federal tax law and that was the reason why repurchase could not occur before six
months had elapsed. Robinson denied this but Durston and Merle Adams of Nevada Title and
Insurance Company of Las Vegas who handled the transaction so testified. The record is
silent as to what efforts Durston made to obtain loan elsewherebut this is not of any
significance here. Neither party had legal counsel at this time, the entire transaction being
handled by the aforesaid Merle Adams. Adams, the single disinterested witness who testified
in this case stated that the reason Robinson wanted to take a deed and give option back was to
avoid payment of taxes on interest bearing notes. Durston remained in full and complete
possession, control, and management of all the lands at the airfield including the 61 acre tract.
No lease of any kind or nature was executed, intended, or contemplated between parties
(Robinson to Durston) and no rental paid. Durston continued active in managing the property,
in improving it, and making plans for further construction as hereinafter set forth. After
December 29, 1961, the friendly relation and discussions continued, culminating in a meeting
in Defendant's counsel Robert E. Jones' office on or about April 2, 1962, wherein an
additional overall construction loan was discussed totaling in all $168,000 or $178,000 (some
dispute on amount [which will be explained hereinafter] which in either event included the
original $70,000 already advanced) and an understanding sufficient for said attorney to
prepare and carefully draft an extensive document defining the conditions for the additional
loan. According to Durston the entire package was to be consummated at one time. However,
on April 3, 1962, the day after the attorney's office meeting, said attorney had prepared only a
new partial agreement (which, according to Durston's testimony, was to be part and parcel of
an overall loan commitment) of said date whereby Durston released his December 29, 1961
option to repurchase in consideration of $25,000 (of which he was in dire need for the express
purpose of asphalting the runways of his airport) in hand paid to him, and at the same time
and place Durston secured second option to repurchase the 61 acres less 15.45 acres. The
second option could not be exercised prior to August 1, 1962 and not later than July 5, 1963,
for the total sum of $95,000the exact amount advanced to date. The 15.45 acres according
to Durston were to be Robinson's entire bonus for the overall contemplated loan of the
$178,000 or $168,000. According to Robinson the 15.45 acres were released to him solely on
the $25,000 advance, maintaining this transaction was separate from prior and
subsequent negotiations between the parties.
$25,000 advance, maintaining this transaction was separate from prior and subsequent
negotiations between the parties. This is incredible on its face. The total agreement was to
have been prepared and ready at this time to cover the entire loan. Said counsel represented it
would be ready in a few days awaiting specific legal descriptions of land involved in the
particular contemplated improvements that were to be made by Durston. Said proposed
agreement was eventually prepared on or about April 20, 1962 (and still within the original
six months option period) and given to Durston to sign. He refused to sign for reasons
hereinafter set forth. It recited what had transpired before generally as related hereinabove. It
further recited that since Thunderbird desires to have constructed upon the land subject to
the April 3, 1962 option, certain additional improvement and Robinson is willing to assist in
financing said improvements, and went on, inter alia to provide for an additional Robinson
loan for the following purposes, to-wit: (a) construction of a warehouse, the sum of $23,000;
which construction at this time had already been commenced by Durston to the extent of
$4,442 undisputed and for which Durston had an executed long-term lease with a special
service supply company; (b) construction of a 20-unit motel the sum of $50,000 ($2,500 per
unit). Robinson reserving the right to control disbursements of these funds for the purpose of
making certain that said funds were expended only for the purposes intended. It was to be
mutually acknowledged that the funds made available may not be sufficient to complete the
improvements mentioned and that Robinson would not be required to advance any additional
funds, which if any needed, were to be obtained by Durston. Durston was to have possession
and authorized to lease and sublease improvements to June 30, 1963, pay all taxes and
assessments against the real and personal property here involved. A third option was
proposed here for a total repurchase cash price of $202,900 at any time between August 1,
1962 and July 1, 1963, and all expenses in connection therewith to be paid by Durston. As
consideration for the option to repurchase, Durston was to pay, under the proposed
unexecuted agreement, $2,075 per month for 12 months (totaling $24,900) which would be
credited to the purchase price if option was duly exercised. It will be noted that the repurchase
price recited is $34,900 or $24,900 more than he was willing to advance ($168,000 or
$178,000) under the proposed unexecuted agreement. This is for 46 acres only, not the
original 61 acres from which Robinson kept 15.45 acres under the aforesaid April 3, 1962
option to repurchase. It is this 15.45 acres only which is the subject of this action, the balance
having been returned to Durston by his exercise of option to repurchase on October,
1962, and payment of $95,000 from funds borrowed elsewhere.
having been returned to Durston by his exercise of option to repurchase on October, 1962,
and payment of $95,000 from funds borrowed elsewhere. The terms of the proposed
agreement are so clearly usurious as to admit of no question if intended as a loanbut not so,
if it is a true sale and option to repurchase. Said proposed agreement was prepared by attorney
Jones, who at the time was acting on behalf of both parties (all were mutual friends)in fact
Durston testified he always believed that Jones was his attorney until this unexecuted
agreement was prepared. The proposed unexecuted agreement prepared by said counsel is
significant only to the extent that it may indicate the intention of the parties at the time.
Durston testified that said counsel admitted (counsel did not testify) to him that the proposed
agreement was not in accordance with aforesaid oral discussions held in his office on April 2,
1962 between the parties and that the same was prepared in accordance with Robinson's strict
instructions and that he would make further attempts to get it to conform to the original
discussions. Durston's reasons for refusal to execute the agreement as prepared were: (a)
Robinson was to advance an additional $10,000 for construction of a trailer park on the
premises, thus bringing the total loan to $178,000 instead of $168,000 proposed. Incidentally,
counsel in all his carefulness did not include this specific $10,000 trailer court improvement
item in the loan portion of the agreement, yet in the body of the agreement (paragraph 7) he
slipped as follows: Thunderbird agrees to employ an architect at Thunderbird's expense to
produce plans and specifications for the said warehouse, motel, and trailer park * * *.
Which lends credence to Durston's contention that the agreement was not prepared in
accordance with the discussion of the parties that the trailer park was to be included. (b)
Agreementcalled for release of approximately 17 acres instead of the approximate 15.45
acres bonusalready released by the April 2, 1962 option. (c) There was to be no interest on
the moneys advanced, the 15.45 acres to be Robinson's entire reward, yet the agreement as
prepared required $34,900 (or $24,900 if the trailer park is included) bonus to be paid for a
one-year option period plus approximately 17 acres for a loan of $168,000 or $178,000. (d)
The recitalsstated that the December 29, 1961 option had expired which was not true and
that Durston had persuaded Robinson to purchase the lands from Hickson, which Durston
denies. It is interesting to note that Robinson under oath in his testimony attempted to deny
knowledge that any particular understanding or any real discussion even was held in Jones'
office on April 2, 1962 regarding additional loans for a warehouse, motel, and trailer park.
regarding additional loans for a warehouse, motel, and trailer park. However, his memory was
subsequently refreshed and admitted they were at least discussed but claims no meeting of the
minds. Although the record is clear as to Durston's objections to the proposed agreement it is
silent as to Robinson's objectionsthe contention is made that neither party approved it, so
that it is of no real value here. The valiant efforts of learned counsel to keep the transaction
disguised as a bona fide sale suffered a lapse in his July 25, 1962 letter in evidence to Durston
in a final effort to consummate the loan substantially along the terms outlined in my written
agreement of April 20th. He states further with minor changes of little significance Mr.
Robinson is still willing to grant you construction loans for your purposes, but cannot make
these funds available indefinitely, and gave him until August 1, 1962 to accept. The lapse
occurred as follows in said letter: Since it was understood that he would assist you in
financing a motel and warehouse on your property, at his request I drew a rather extensive
document defining the conditions of these loans. Inconsistently, said counsel later in said
letter states: Regarding the warehouse you have constructed on Mr. Robinson's property, he
feels for your own protection he should sell you this site. Therefore until close of business
July 31, 1962, he offers to sell you at $3,000 per acre (not to exceed one and one-half acres)
the site upon which the warehouse exists. In one breath learned counsel acknowledged your
property to Durston and in the next breath offers to sell him one and one-half acres at $3,000
an acre. This is an indication of value of land from Robinson's lips. He places $3,000 value
per acre on land he claimed he purchased less than six months earlier for about $1,000 per
acre.
In summary it can be fairly stated said proposed agreement is incompatible with any idea
of sale and is consistent with idea of a loan.
It is to be observed that foregoing recital of facts does not reflect any discussions between
the parties of a sale (entire reliance for this being placed on the deed) nor was value of the
property ever discussed between the parties. Additional evidence indicating value is in the
record, however, as hereinafter set forth. The fact that words negativing a mortgage were so
forcefully used in all the documents, and resolution of the corporation in each instance clearly
and unequivocally emphasizing the sale aspects of the transactions and demonstrating
Robinson as owner every time the occasion called for itall lend credence to the security
theory for tax advantage purpose to Robinson.
lend credence to the security theory for tax advantage purpose to Robinson. Robinson
emphasizes that various documents expressly provided that there were no verbal or
unwritten agreements between the parties. Why the great care and stressif the deed was
truly a deedall this extra was not necessary. As diligent as all tried to be here, the papers
somewhere could very easily have contained the express proviso that this transaction shall
not be construed as a mortgage. That does not appear anywhere nor was it intended to appear
anywhere.
Robinson strongly urges that personal liability on the part of the grantor must exist
independent of the conveyance and the contract of reconveyance, before a deed can be held to
be a mortgage. In support of this contention he cites in his brief a quotation from Pomeroy's
Equity Jurisprudence 1195 taken from McCall v. Carlson, 63 Nev. 390, 172 P.2d 171
(1946), regarding the requirement of the continued existence of a debt as a general criterion in
determining these cases. For convenience and clarity it is quoted here.
Sec. 1195. The General Criterion: The Continued Existence of a DebtWhether any
particular transaction does thus amount to a mortgage or to a sale with a contract of
repurchase must, to a large extent, depend upon its own special circumstances; for the
question finally turns, in all cases, upon the real intention of the parties as shown upon the
face of the writings, or as disclosed by extrinsic evidence. A general criterion, however, has
been established by an overwhelming consensus of authorities, which furnishes a sufficient
test in the great majority of cases; and whenever the application of this test still leaves a
doubt, the American courts, from obvious motives of policy, have generally leaned in favor of
the mortgage. This criterion is the continued existence of a debt or liability between the
parties, so that the conveyance is in reality intended as a security for the debt or indemnity
against the liability. If there is an indebtedness or liability between the parties, either a debt
existing prior to the conveyance, or a debt arising from a loan made at the time of the
conveyance, or from any other cause, and this debt is still left subsisting, not being discharged
or satisfied by the conveyance, but the grantor is regarded as still owing and bound to pay it at
some future time, so that the payment stipulated for in the agreement to reconvey is in reality
the payment of this existing debt, then the whole transaction amounts to a mortgage, whatever
language the parties may have used, and whatever stipulations they may have inserted in the
instruments. On the contrary, if no such relation whatsoever of debtor and creditor is left
subsisting, then the transaction is not a mortgage, but a mere sale and contract of
repurchase.
no such relation whatsoever of debtor and creditor is left subsisting, then the transaction is
not a mortgage, but a mere sale and contract of repurchase.
The practical test is whether there is a liability, notwithstanding or independent of the
conveyance and contract of reconveyance, which the grantee can enforce against the grantor.
If a loan is made to the grantor at the time of executing the conveyance, and the continued
existence of his indebtedness therefor is evidenced by some collateral engagement given by
the grantor, such as a note or bond, the case is simple and the transaction is clearly a
mortgage. In the second place, if the conveyance is given in consideration of an antecedent
debt due from the grantor, and this debt yet remains, so that the grantee may enforce his claim
at some time or another against the grantor, the transaction is also a mortgage. But if this
antecedent debt is wholly satisfied and extinguished by the conveyance, so that no liability
remains under any circumstances against the grantor, then there is no mortgage, since there is
no debt to be secured thereby. In such a case the surrender up by the grantee of the written
evidences of original indebtedness, or his cancellation thereof, would be very material
circumstances. Thirdly, there may be neither a present loan nor an antecedent debt, but the
grantee may undertake to assume some outstanding liability of the grantor, or to pay off some
claim against the grantor, so that an obligation to reimburse him would rest upon the grantor,
and the conveyance may be intended to indemnify the grantee and to secure the performance
of the grantor's future continuing obligation, in which case it would clearly be a mortgage.'
Id. at 410.
In this connection, Durston in his brief has referred the Court to Sec. 45, Mortgages, 33
Cal.Jur.2d at 458-459 as follows:
To show that a deed is really a mortgage, it is ordinarily essential that there be an
agreement, either express or implied, on the part of the mortgagor or someone in whose
behalf he executes the mortgage, to pay the mortgagee a sum of money. A deed absolute in
form may be given as security without any accompanying obligation in writing on the part of
the person giving it, however, for the debt may be founded in parol. Moreover, where money
is loaned to the grantor by the grantee, the law implies a promise to repay, particularly where
the instrument providing for reconveyance speaks of payment of the sum at the time it
becomes due and provides for credits on the indebtedness.
The fact that there is no promise to pay is one circumstance which, with others, may rebut
a presumption that either party supposed that the deed was held as security.
party supposed that the deed was held as security. However, since the parties may create a
mortgage to secure payment of a specified sum without personal liability on the part of the
grantor, the want of a covenant to repay the money is not conclusive.
Also, a thorough analysis of this contention is made in Kawauchi v. Tabata, 413 P.2d 221
(Hawaii 1966). It was there also contended that the plaintiffs were not personally liable for a
repayment of the money, that there could, therefore, be no debt, and hence no mortgage. The
Hawaii Supreme Court stated:
Defendants contend that there can be no debthence no mortgageunless the plaintiff
was personally liable for repayment of the money. Under this reasoning plaintiff must fail
unless defendants could have obtained a personal judgment against him. Some of the writers
on the subject afford qualified support for defendants' contention, while others state that the
weight of authority is contrary thereto. The court below did not rule that the absence of
personal liability was conclusive, but put considerable stress on the fact that: There is
nothing before this court which indicates any right on the part of the defendants to compel the
payment of any sums of money.'
In Hess v. Paulo, supra, 38 Haw. 279, 286-287, it is stated, by quoting from
Guilford-Chester Water Co. v. Town of Guilford, 107 Conn. 519, 141 A. 880, that a test
generally accepted as decisive is the mutuality and reciprocity of the remedies of the parties;
that is to say, if the grantee enjoys a right, reciprocal to that of the grantor to demand a
reconveyance, to compel the latter to pay the consideration named in the stipulation for
reconveyance, the transaction is a mortgage, while if he has no such right to compel payment,
the transaction is a conditional sale. * * *' However, the conclusiveness of this test where
personal liability is lacking was not before the court, as there was an outstanding promissory
note. The quotation in the opinion continues with recognition of the fact that personal liability
is not always regarded as the sine qua non' of a mortgage. It may be regarded simply as a
factor whose existence or nonexistence points strongly to the fact that a conveyance is or is
not a mortgage.' The source of the quotation is 19 Ruling Case Law 266, where the following
appears, following the text quoted:
* * * Accordingly, in those jurisdictions wherein personal liability is an essential
element of a mortgage, want of mutuality is, of course, conclusive that the transaction is a
conditional sale. Where a contrary rule prevails, want of mutuality is strongly indicative of a
sale, but is not conclusive.' "In 36 Am.Jur.,
In 36 Am.Jur., Mortgages, 58-59 and 151, which has replaced Ruling Case Law, it is
stated that while the existence of an obligation to be secured is essential to a mortgage, and
under some authority there must be a personal liability of the mortgagor on such obligation,
under other authority personal liability, express or implied, is not necessarily incident to a
mortgage * * *.' The latter is stated to be the general view, though the existence or
nonexistence of personal liability of the grantor is strongly indicative either that the
transaction was or was not a mortgage. See Annot., 17 A.L.R. 714, 717; 129 A.L.R. 1435,
1499.
[Citing cases.]
Neither in Hess, nor in the Guilford-Chester Water Co. case there cited, was there any
question of usury or of inadequacy of the price figuring in the supposed sale. Where the
transaction, if it is a loan, is usurious, the personal liability of the borrower is of no real
significance. Under the usury law, R.H.L. 1955, 191-4, a suit against the borrower
personally could produce only the sum advanced, without interest or profit. In this type of
case the lender relies on the property for his security, being satisfied that he is protected by its
high value in relation to the amount advanced. Thus in Campbell v. Dearborn, supra, 109
Mass. 130, 144, it is stated:
A mortgage may exist without any debt or other personal liability of the mortgagor. If
there is a large margin between the debt or sum advanced and the value of the land conveyed,
that of itself is an assurance of payment stronger than any promise or bond of a necessitous
borrower or debtor. * * *' Id. at 228-230.
[Headnote 6]
Durston's and Adams' testimony was that the reason Robinson wanted to take a deed and
give an option back was to avoid the payment of taxes in interest bearing note. It was against
Robinson's express interest to have any formal evidence of the indebtedness. Robinson could
well look to the land alone for the return of his investment for he stood to gain a great deal if
the debt was not repaid and land forfeited to him. An analysis of the value of the land follows
hereinafter. To the extent that the foregoing explains, expands, or enlarges upon the holding
of McCall v. Carlson, supra, it is so intended on this point. In other words, the law may imply
a promise to repay a debt under particular circumstances of any case, where it is clear that the
lender relies on the property for his security being satisfied that he is protected by its high
value in relation to amount loaned. As the Hawaii Court stated, where * * *
there is a large margin between the debt or sum advanced and the value of the land conveyed,
that of itself is an assurance of payment stronger than any promise or bond of a necessitous
borrower or debtor. * * *'
Through the years, a number of circumstances have been so often associated with
transactions which are intended to be loans of money secured by real estate mortgages, but
which are effected under the guise of a sale and purchase of real estate, that they have come
to be accepted as indicia of a secured loan transaction. Such circumstances which are
pertinent here are:
[Headnote 7]
(1) What do the documents say? (2) Who was to pay the taxes on the property? (3) Were
documentary stamps affixed to the deed? (4) Was the price disproportionate? (5) Right to
repurchase. (6) Absence of common formal procedures employed in real estate sales. (7)
Relationship between the parties. (8) Computation of buy back rights. (9) Bonus to be paid in
repurchase. (10) Financial embarrassment of the grantor. (11) Continued possession,
management, and improvement of the property by the grantor. (12) Non-payment of rent.
The significance accorded these various circumstances is illustrated in the following cases:
Beeler v. American Trust Co., 147 P.2d 583 (Cal. 1944); Umpqua Forest Industries v.
Neenah-Oregon Land Co., 217 P.2d 219 (Ore. 1950); Kohler v. Gilbert, 339 P.2d 1102 (Ore.
1959); Phillips v. Blaser, 125 P.2d 291 (Wash. 1942); Kawauchi v. Tabata, 413 P.2d 221
(Haw. 1966); Gem-Valley Ranches, Inc. v. Small, 411 P.2d 943 (Idaho 1966); Orlando v.
Berns, 316 P.2d 705 (Cal.App. 1957).
[Headnote 8]
Since the ultimate matter to be determined is the intent of the parties, and since that intent
must be determined from all of the facts and circumstances before the Court, there is no
restriction as to the number or kind of relevant circumstances which may be considered as
bearing on the issue of intent, and the opinions and texts abound with statements to the effect
that ordinarily the presence or the absence of any particular circumstance is not conclusive as
to the intention of the partiesall of the relevant facts and circumstances are to be
considered.
Taking the circumstances in the above order, as nearly as possible, it is evident that most
of the well recognized indicia of a secured loan transaction were present in the instant case.
(1) What do the documents say? Here the defendant urges that the strongest evidence of
the intention of the parties is to be derived from the documents in evidence. He points to the
fact that in two instances corporate resolutions were passed by the board of directors of the
plaintiff corporation speaking in terms of conveyances and sales. He further points to the
deed of December 29, 1961, the documents signed on April 3, 1962, and the unexecuted draft
dated April 20, 1962.
Now, if it were true that the documents themselves were the strongest evidence of the
intention of the parties, there would be no such thing as an action to establish an equitable
mortgage. See Beeler v. American Trust Co., 147 P.2d 583 (Cal. 1944), the borrower
executed and delivered to the lending bank an affidavit accompanying an absolute deed to the
ranch. This affidavit stated in the strongest terms that the absolute deed was an absolute deed
and was not intended as a mortgage, trust conveyance or security of any kind; that possession
of the property was to be delivered to the grantee; that the consideration for the deed was the
cancellation of all debts, obligations, costs, and charges secured by a certain deed of trust
theretofore existing on the property and the reconveyance of the property to the grantor under
the deed of trust. Finally the affidavit recited that it was made for the benefit of the grantee
bank and its successors and assigns, and a title company which intended to insure the
property in reliance on the affidavit. Relying upon the case of People ex rel. Ford v. Irwin, 18
Cal. 117 (1861), it was argued that parol evidence could not be received to vary or dispute the
terms of a written instrument explaining the purpose for the execution of a deed. This early
decision in People ex rel. Ford v. Irwin antedated the California Code provision (Section
2924 Civil Code) of 1872 like our NRS 40.050, in effect, that every transfer of an interest in
property, made only as a security for the performance of another is to be deemed a mortgage.
The Court adverted to the decision in Vance v. Anderson, 45 P. 816 (Cal. 1896), holding it is
the settled law of California that such a writing is not a conclusive criterion of the character
of the transaction. To the extent that the earlier case of People ex rel. Ford v. Irwin could be
said to limit the court to considering merely the documents to the exclusion of the other
circumstances, it was disapproved as in conflict with the code provision. The Court said:
If by a separate writing the parties expressly agree, at the same time an absolute deed is
executed, that it is what it purports to be, that is, an absolute sale, that would be no more than
what the deed itself says. Therefore, if they could thus avoid its real effect as a mortgage,
the true nature of such a transaction could never be shown, and the policy of the law
never to permit a security to be converted by any contemporaneous agreement into a sale
could be constantly evaded.
avoid its real effect as a mortgage, the true nature of such a transaction could never be shown,
and the policy of the law never to permit a security to be converted by any contemporaneous
agreement into a sale could be constantly evaded. [Citing code provisions and cases.] The
right of a mortgagee to become the purchaser of the equity is unquestioned, but the relations
of the parties are such that the transaction will be carefully scrutinized to prevent the
effectuation of some device whereby the debtor under the force of necessitous circumstances
is deprived of his right of redemption. * * * 147 P.2d 583, 595. See also Phillips v. Blaser,
125 P.2d 291 (Wash. 1942), to the same effect.
(2) Who was to pay the taxes on the property?
(3) Were documentary stamps affixed to the deed?
As has been seen in the foregoing summary of evidence, the purpose of Robinson in taking
a deed absolute and giving plaintiffs an option back was to enable himself to pay taxes only
on the money receipted back as a capital gain, rather than pay tax on interest-bearing notes.
Having gone to this length to masque the transaction as one within the structure of capital
investment for tax purposes, it is not surprising that revenue stamps were affixed to the deed
by somebody. Robinson testified he paid the taxes on the property, which if so, it was for one
quarter since all dealings between the parties terminated in a period of about four months.
In the case of Umpqua Forest Industries v. Neenah-Oregon Land Co., 217 P.2d 219, 235
(Ore. 1950), it is held the fact that revenue stamps were affixed on a deed absolute in form,
accompanied by an option to repurchase, was a circumstance adverse to the claim that the
deed was intended as a mortgage, but it was not conclusive, and as in the earlier case of
Conley v. Henderson, 75 P.2d 746 (Ore. 1938), the conduct of the grantor in affixing the
revenue stamps was explained by other circumstances and consequently no inference adverse
to his claim was drawn.
(5) Right to repurchase. Where a deed absolute in form is accompanied by an option to
repurchase, the instruments must be considered together. The option does not of itself convert
the transaction into a mortgage, but it is a circumstance to be considered in favor of the
existence of a mortgage. Parol evidence is admissible to connect the two writings and to show
that they were parts of the same transaction, and that the whole amounted to and was intended
to be a mortgage. Among other cases so holding are: Kohler v. Gilbert, 339 P.2d 1102 (Ore.
1959); Kawauchi v. Tabata, 413 P.2d 221 (Haw. 1966); Umpqua Forest Industries v.
Neenah-Oregon Land Co., 217 P.2d 219 (Ore. 1950).
(6) Absence of common formal procedures employed in real estate sales. (4) Was the price
disproportionate? (8) Computation of buy-back rights. (9) Bonus to be paid on repurchase.
The foregoing circumstances for inquiry are interrelated in the present case. The evidence
does not show that the parties ever determined the value of the 61 acre tract by their own
calculations, by formal appraisal, or otherwise, or that the value of the land was in any way a
factor entering into the purported consideration for the deed or the fixing of the price for
repurchase under the contemporaneous option.
Robinson charges that there is no evidence of disparity between the value of the land and
the consideration. The record reveals: that, initially Durston paid the sum of $1,000 an acre
for the 61 acre tract; that on the strength of the deed as security, Robinson loaned Durston
$70,000; that about three or four months later, Robinson again entered into negotiations with
Durston for further advances of money, actually advanced the sum of $25,000 more for
paving the airport runway and agreed to advance altogether a total sum of $178,000 or at least
$168,000, all on the security of the same 61 acre tract, except that in consideration of the
advance of this entire sum, Robinson was to be given outright the 15.45 acre tract; that an
improved tract of land across the highway from the airfield sold for $5,000 an acre; that
Robinson, through his attorney of record herein, after failing and refusing to document the
agreement for $178,000 did offer to advance another $73,000 for warehouse and motel on the
security of the deed to the 61 acre tract; that Robinson through his attorney offered to sell
Durston one and one-half acres at $3,000 per acre as aforesaid. In the first instance a sum of
money was advanced which was a little more than sufficient to enable the plaintiffs to
exercise their option to purchase the 61 acre tract from Hickson. The option back did not have
a repurchase price in any way related to the value of the landit was $85,000for all that
appears a simply arbitrary figure, but one representing a much higher return on a $70,000
investment than the defendant could have obtained under orthodox lending procedures, with
lawful rates of interest. We think it conclusively established that there was no bargaining
between the parties on the basis of value of property and throughout the entire transactions,
the controlling consideration on both sides was to allow Robinson to achieve whatever tax
benefits he could derive by his investment.
was to allow Robinson to achieve whatever tax benefits he could derive by his investment.
There is no evidence that Robinson was in the market for the purchase of real estate,
particularly real estate adjoining a commercial airport. He did not seek out the plaintiffs.
Durston, having become acquainted with him in church sought him out and approached him
for a loan of $70,000. In short, none of the circumstances indicate that Robinson wanted to
buy land outright for its fair value. They indicate that robinson made a loan of money and
took a deed as security giving a repurchase option back.
(7) Relationship between the parties. Evidence stated is clear on this. The business, social
or other relationship is a circumstance relevant to issue here. See Umpqua Forest Industries v.
Neenah-Oregon Land Co., supra.
(10) Financial embarrassment of the grantor in the deed. The record is undisputed on
thisreference is simply made to the recital of facts hereinabove.
(11) Continued possession, management and improvement of the property by the grantor.
(12) Nonpayment of rent. The evidence is uncontradicted on the presence of these factors
as hereinabove related. It is established that continued possession of property by the grantor is
some evidence that the conveyance was intended as a mortgage. See cases cited supra.
[Headnotes 9-11]
Having established that a loan was intended here, and the right to redeem being favored by
courts of equity, it will not be taken away except upon strict compliance with steps necessary
to divest it. Durston in effect is exercising his right to redeem the 15.45 acres here involved.
In concluding as we have, this court is mindful of the fundamental principles of law
contracts regarding arbitrarily forcing upon parties contractual obligations, terms or
conditions which they have not voluntarily assumed. We deny that the necessary certainty,
stability, and integrity of contractual rights and obligations and titles are in any way
prejudiced by this decision under the particular factual situation established by substantial
evidence.
The court wishes to make it abundantly clear that no reflection is intended, expressed or
implied, regarding attorney Jones' actions as recited hereinabove (which was essential to the
opinion). His competence, integrity or ability is not in any way in question. He simply
became involved, as has happened to other professional men, with friends, he being
included, and endeavored to make the best of a bad situation when negotiations broke
down.
to other professional men, with friends, he being included, and endeavored to make the best
of a bad situation when negotiations broke down. The intricacy and care with which the April
20, 1962 unexecuted agreement was drawn is evidence itself of the great difficulty counsel
encountered in attempting to comply with the conflicting instructions and interest of his
clients. If the parties had originally made a true sale, many of these problems would not have
occurred. The attempt to make the transaction conform to Robinson's strict unilateral
instructions is what caused the difficulty.
Judgment affirmed.
Thompson C. J., and Collins, J., concur.
____________
83 Nev. 356, 356 (1967) Lofton v. Warden
CHARLES LOFTON, Appellant, v. WARDEN, NEVADA
STATE PRISON, Respondent.
No. 5236
September 25, 1967 431 P.2d 981
Appeal from the Eighth Judicial District Court, Clark County; Clarence Sundean, Judge.
Petitioner was arrested for possession of narcotics and after a preliminary examination the
trial court denied habeas corpus and he appealed. The Supreme Court, Collins, J., held that
where police officers observed petitioner in a bar and petitioner appeared to have a blank
look, and subsequently while exiting from bar with police officers he appeared to need
officers' assistance to keep from falling, and petitioner's breath smelled heavily of alcohol,
police officers had sufficient personal knowledge and observation to arrest petitioner without
warrant for violation of city ordinance as person in public place in disorderly condition. The
court also held that where the search of petitioner, lawfully arrested as person in public place
in disorderly condition, produced contraband marijuana, possession of which was illegal per
se and a continuing felony, evidence was properly admitted in the preliminary examination.
Affirmed.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney and James
D. Santini and James L.
Buchanan, II, Deputy District Attorneys Clark County, for Respondent.
1. Arrest.
Where police officers observed petitioner in a bar and petitioner appeared to have blank look, and
subsequently while exiting from bar with police officers he appeared to need officers' assistance to keep
from falling, and petitioner's breath smelled heavily of alcohol, police officers had sufficient personal
knowledge and observation to arrest petitioner without warrant for violation of city ordinance making it a
misdemeanor for person to appear in public place in disorderly condition. NRS 171.235.
2. Arrest.
Where arrest of petitioner as person in public place in disorderly condition was lawful, police officers had
contemporaneous, constitutional right to search his person for weapons, instruments of crime or
contraband.
3. Criminal Law.
Where search of petitioner, lawfully arrested as person in public place in disorderly condition, produced
contraband marijuana, possession of which was illegal per se and a continuing felony, evidence was
properly admitted in the preliminary examination.
OPINION
Charles Lofton appeals from a denial of habeas corpus following a preliminary
examination and contends there was not probable cause to require him to stand trial. The only
issue presented is whether his initial arrest was lawful, constitutionally justifying a search of
his person which produced marijuana. The trial court found the search was preceded by a
lawful arrest, and denied his discharge. We affirm.
Two Las Vegas police officers, Maddock and Schultz, while on regular patrol entered the
Louisiana Club. They observed lofton seated next to a woman, with his back to the bar facing
the entrance. They described him as having a blank look; his eyes were very glassy; he
continued to stare at the door; and he didn't seem to know what was going on about him. He
was not engaged in any loud or boisterous conduct. The officers conferred about his condition
and then asked Lofton to come outside to speak with them. He agreed. While exiting from the
bar the officers held him by both arms because he appeared to need their assistance to keep
from falling and was unsure on his feet.
Outside the bar one officer attempted to speak to Lofton while the other continued to
support him. When asked, among other things, how much he had drunk, he either would
not or could not answer the question.
other things, how much he had drunk, he either would not or could not answer the question.
His speech was very incoherent and he appeared not to understand the questions. His breath
smelled heavily of alcohol. The officers gave him no specific tests for intoxication nor
permitted him to walk alone. According to the officers he appeared to be under the influence
of alcohol to the point he could not care for himself. Officer Schultz placed him under arrest
as a person in a disorderly condition, a municipal misdemeanor.
Lofton, during this entire period had kept his left hand in his pocket. After the arrest was
made, his left hand in his pocket became very stiff. The officers testified they believed him to
have a weapon and asked him to remove his hand. He refused and increased his resistance.
The officers forced removal of his hand from the pocket, out of which fell a small foil ball. It
was retrieved from the ground and was determined to contain eleven marijuana cigarettes.
Lofton was charged with possession of narcotics and the cigarettes were later admitted in
evidence against him.
He complains the officer had no just cause to arrest him without a warrant; there being no
valid arrest, they had no constitutional right to search him; and that the court could not
lawfully admit evidence of his possession of narcotics in the preliminary examination.
Ordinance No. 6-1-2 of the City of Las Vegas makes it a misdemeanor for a person to
appear in a public place in a disorderly condition.
1
The word disorderly is defined in
Black's Law Dictionary, Fourth Edition, as contrary to the rules of good order and behavior;
violative of the public peace or good order; turbulent, riotous, or indecent. Cf. State v.
Myrick, 164 S.E. 328 (N.C. 1932).
[Headnote 1]
A peace officer may arrest a person for a misdemeanor committed in his presence without
a warrant. NRS 171.235. We believe that the officers had sufficient personal knowledge and
observation to arrest Lofton without a warrant as a person in a public place in a disorderly
condition. The officers effected the arrest following their initial observation of Lofton only
after they had taken further steps to satisfy themselves that their first impression of his
disorderly condition was correct.
____________________

1
Any person who appears in any public place in the City in a disorderly condition or lies or sleeps on any
street, sidewalk, alley or other public place in the City in a drunken or disorderly condition shall be guilty of a
misdemeanor. This ordinance has since been repealed.
His arrest in the bar without further fact finding or investigation by them would have been
doubtful. However, the officers followed a reasonable course in asking Lofton to accompany
them outside. He complied willingly. This additional observation of the officers through their
various senses confirmed the condition they suspected inside the bar.
[Headnotes 2, 3]
The arrest being lawful, the officers had contemporaneous, constitutional right to search
his person for weapons, instruments of the crime or contraband. Abel v. United States, 362
U.S. 217 (1960); Preston v. United States, 376 U.S. 364 (1964); Fairman v. Warden, 83 Nev.
332, 431 P.2d 660 (1967). They found contraband marijuana, possession of which was illegal
per se and a continuing felony. Arabia v. State, 82 Nev. 453, 421 P.2d 952 (1966); Fairman v.
Warden, supra. The evidence was properly admitted. The denial of habeas corpus was correct.
We affirm.
____________
83 Nev. 359, 359 (1967) State v. Eddington
THE STATE OF NEVADA, Appellant, v. W. MARK EDDING-
TON and J. MacARTHUR WRIGHT, Respondents.
Nos. 5363 and 5364
September 25, 1967 432 P.2d 87
Appeal from orders of the Second Judicial District Court, Washoe County, granting writs
of habeas corpus; John W. Barrett, Judge.
Petitions by two officers of corporations for writs of habeas corpus to challenge
sufficiency of evidence upon which grand jury returned indictments charging them with
embezzlement from insurance company and corporation organized to conduct sale of shares
of insurance company's stock. The lower court granted the writs, and the state appealed. The
Supreme Court, Thompson, C. J., held that evidence, including testimony that defendants,
officers of insurance company, expended company's funds in excess of authorized
percentages in commissions to corporation in which also they were officers, was sufficient for
grand jury to return indictment charging defendants with embezzlement but that evidence of
substantial expenditures by officers, without explanation, of funds of corporation
organized to conduct sale of shares of stock in life insurance company was insufficient to
warrant indictment of officers for embezzlement, absent showing that expenditures were
unauthorized.
expenditures by officers, without explanation, of funds of corporation organized to conduct
sale of shares of stock in life insurance company was insufficient to warrant indictment of
officers for embezzlement, absent showing that expenditures were unauthorized.
The order in Case No. 5363 is affirmed, and the order in Case No. 5364 is reversed.
[Rehearing as to Wright denied October 11, 1967; denied as to Eddington October 13,
1967]
Harvey Dickerson, Attorney General; Daniel R. Walsh, Chief Deputy Attorney General;
Carl F. Martillaro, Special Deputy Attorney General, of Carson City, for Appellant.
Morse and Graves, of Las Vegas, and Robert W. Hughes, of Salt Lake City, Utah, for
Respondent W. Mark Eddington.
Vargas, Dillon, Bartlett and Dixon, of Reno, for Respondent J. MacArthur Wright.
Evidence, including testimony that defendants, officers of insurance company, expended company's funds
in excess of authorized percentages in commissions to corporation in which also they were officers, was
sufficient for grand jury to return indictment charging defendants with embezzlement. NRS 172.260,
subd. 2, 172.280, 205.300.
2. Insurance.
A fiduciary relationship existed between stock life insurance corporation and its vice president and
director, as well as between the corporation and its secretary-treasurer, resident agent, director, and
counsel.
3. Embezzlement.
Use of corporation's money by corporation's officers, with whom it had a fiduciary relationship for
purposes other than those for which corporation had entrusted them with money, permitted an inference of
fraudulent intent and established prima facie case of embezzlement. NRS 205.300.
4. Grand Jury.
Grand jury may return indictment against one without hearing from him. NRS 172.270.
5. Grand Jury.
Grand Jury may indict one to whom it has granted an audience notwithstanding his exculpatory
explanation received in evidence. NRS 172.270.
Evidence of substantial expenditures by officers, without explanation, of funds of corporation organized
to conduct sale of shares of stock in life insurance company was insufficient to warrant
indictment of officers for embezzlement, absent showing that expenditures were
unauthorized.
shares of stock in life insurance company was insufficient to warrant indictment of officers for
embezzlement, absent showing that expenditures were unauthorized. NRS 172.260, subd. 2, 172.280.
OPINION
The issue presented by this consolidated appeal is the legal sufficiency of the evidence
upon which a grand jury acted in returning two indictments charging embezzlement. One
(Case No. 5363) alleged that Eddington and Frisby embezzled $100,000 from the People's
Investment Company. The other (Case No. 5364) charges that Eddington, Wright, and Frisby
embezzled $200,000 from the Mark Twain Life Insurance Company. Eddington and Wright
challenged the sufficiency of the evidence through petitions for habeas corpus. Shelby v.
District Court, 82 Nev. 204, 414 P.2d 942 (1966). Frisby did not interpose a challenge. The
district court ruled that the evidence was not sufficient to warrant holding either defendant for
trial and discharged each pursuant to his application for habeas corpus. We affirm that ruling
in Case No. 5363, but reverse in Case No. 5364.
The quality and persuasive force of evidence needed to support an indictment are
expressed by NRS 172.260(2) and NRS 172.280. The first commands that none but legal
evidence, * * * to the exclusion of hearsay or secondary evidence, shall be received. The
second suggests that grand jurors should indict when all the evidence before them, taken
together, is such as, in their judgment, would, if unexplained and uncontradicted, warrant a
conviction by the trial jury.
It is not useful to relate the mass of legal evidence presented to the grand jury. In the Mark
Twain case there was ample to justify a belief that, absent explanation or contradiction, a trial
jury could lawfully convict the defendants. Accordingly, we shall recite only an abbreviated
version of the record simply to show that statutory standards were met. As to the People's
investment matter we shall briefly note wherein the showing was deficient.
People's and Mark Twain are domestic corporations. Each was chartered in 1963. The aim
of Mark Twain was to qualify and do business as a stock life insurance company. People's
was organized to conduct the sale of shares of stock in Mark Twain. In October, 1963 the two
companies made an agreement giving People's authority to manage Mark Twain during the
sale of the common stock to be offered by Mark Twain.
the sale of the common stock to be offered by Mark Twain. Eddington was the vice-president
and a director of Mark Twain, and the president and a director of People's. Wright was the
secretary-treasurer, resident agent, director, and counsel for Mark Twain, and counsel for
People's. Frisby was the president and a director of Mark Twain, and the secretary-treasurer
and director of People's. Eddington and Frisby were a majority of the Board of Directors of
People's and, with Wright, composed the executive committee of Mark Twain.
Enough of the common stock of Mark Twain was sold by October, 1964 to cause the State
to issue Mark Twain a license to do business as a stock life insurance company. The function
of People's under the stock sales agreement had been discharged. A majority of the Board of
Mark Twain believed that People's had ceased all operations.
Mark Twain commenced selling insurance in January, 1965. From then through
September, 1965, more than $200,000 left its treasury without authority from the Board of
Directors. Most of that amount was paid out as insurance commissions to People's
($107,000), and to Eddington ($34,421.22) and Frisby ($32,000), individually. The charter of
People's did not grant it authority to solicit or sell insurance, nor was an agent's license issued
to it for that purpose. Although the minutes of Mark Twain ambiguously reflect that its
executive committee (Eddington, Wright, and Frisby) had approved an arrangement with
People's, and with Eddington and Frisby individually, to sell Mark Twain insurance on a
commission basis, the majority of the Board of Directors of Mark Twain assert that such
arrangement was never presented to them for consideration and approval, and that the
minutes prepared by Wright so indicating, are false. In any event, the record shows that the
sums expended by Mark Twain for insurance commissions substantially exceeded the
percentages authorized by the executive committee, assuming its authority to act for Mark
Twain. The record also shows payments totalling $15,000 to wright as counsel fees, and
almost $43,000 in travel expense, each without approval of the Board. Indeed, the majority
of the Board was kept in the dark about these expenditures. when they inquired, the members
of the executive committee would engage in a filibuster and refuse to respond candidly. Even
physical violence was threatened. The stability of Mark Twain deteriorated and the company
was placed in receivership.
[Headnotes 1-3]
These facts justify the belief held by the grand jury that substantial funds of Mark Twain
were fraudulently appropriated by Eddington, Frisby, and Wright.
by Eddington, Frisby, and Wright. The elements of embezzlement [NRS 205.300] are
present. A fiduciary relationship existed between Mark Twain and those charged with
defalcations. Cf. Carter v. State, 79 Nev. 89, 378 P.2d 876 (1963). Money was used for
purposes other than those for which entrusted, thus permitting an inference of fraudulent
intent. State v. Trolson, 21 Nev. 419, 32 P. 930 (1893). A prima facie case was made.
Whether it will persuade at trial where the defendants will be present with counsel, and
afforded an opportunity to explain their conduct, is another matter, wholly irrelevant to the
issue at hand.
[Headnotes 4, 5]
Although Eddington and Wright suggest that the grand jury should have heard from them
before returning indictments, the grand jury was not required to do so. NRS 172.270. Indeed,
had they been granted an audience, the grand jury would not have been required to accept
their explanations, but could indict notwithstanding them. In this respect the grand jury
function is not unlike that of the justice of the peace upon a preliminary examination. [See
State v. Fuchs, 78 Nev. 63, 368 P.2d 869 (1962), where we held that the evidence at the
preliminary hearing was sufficient to justify holding the accused to answer in the district
court, notwithstanding her written exculpatory statement received in evidence.]
[Headnote 6]
The indictment charging embezzlement from People's Investment is not supported by
sufficient evidence to warrant trial. Although the record reflects substantial expenditures
without explanation, there is nothing to show that the expenditures were unauthorized. Of
course, the money flow from Mark Twain to People's and out, may well be competent
evidence at the trial of the Mark Twain case.
Other contentions respecting the two indictments have been considered and are without
substance. The order of the district court granting habeas corpus in the Mark Twain Case No.
5364 is reversed, and the cause remanded to the district court for trial. The order granting
habeas corpus in the People's Investment Case No. 5363 is affirmed.
____________
83 Nev. 364, 364 (1967) Tab Constr. Co. v. District Court
TAB CONSTRUCTION COMPANY, a Nevada Corporation, Petitioner, v. THE EIGHTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, Respondent.
No. 5285
September 26, 1967 432 P.2d 90
Original proceedings in prohibition in an action where common-law remedy is sought in
forum state in contravention of Nevada Workmen's Compensation Act.
The Supreme Court, Zenoff, J., held that Nevada law providing that rights and remedies
under Workmen's Compensation Act are exclusive and conclusive on both employer and
employee and not Arizona law allowing common-law action against general contractor in
workmen's compensation case was applicable, and Arizona resident who was employee of
Arizona subcontractor could not sue Nevada general contractor in Nevada for his injuries on a
job in Nevada.
Petition granted.
Singleton, DeLanoy & Jemison, of Las Vegas, for Petitioner.
Wiener, Goldwater & Galatz, of Las Vegas, for Respondent.
1. Workmen's Compensation.
Under Nevada Industrial Insurance Act providing that employer, who accepts terms of act which provides
compensation for employees, is relieved from further liability and employee is only allowed to bring action
at law if employer fails to provide and secure compensation under the Act. NRS 616.270, 616.375.
Under Nevada Industrial Insurance Act, exclusive remedy provision is exclusive in that no other
common-law or statutory remedy under local law may be sought by employee against his employer. NRS
616.370.
State has legitimate constitutional interest in application of its own domestic law and policy to work
injury occurring within its borders.
4. Action.
If forum state is concerned, it will not favor application of rule repugnant to its own policies, and law of
forum will presumptively apply, unless it becomes clear that nonforum incidents are of greater significance.
Nevada law providing that rights and remedies under Workmen's Compensation Act are exclusive and
conclusive on both employer and employee and not Arizona law allowing common-law action against
general contractor in workmen's compensation case was applicable, and Arizona resident who
was employee of Arizona subcontractor could not sue Nevada general contractor in
Nevada for his injuries on a job in Nevada.
case was applicable, and Arizona resident who was employee of Arizona subcontractor could not sue
Nevada general contractor in Nevada for his injuries on a job in Nevada. NRS 616.085, 616.270,
616.295, 616.375.
OPINION
Petitioner seeks a writ of prohibition to prevent the respondent court from proceeding with
a civil action on the ground that the Nevada Industrial Insurance Act provides full and
exclusive remedy, and thus, the respondent is without jurisdiction. Respondent does not
dispute that Nevada law prohibits this civil suit, but urges that the lower court has jurisdiction
to proceed because the action is based on Arizona law, that Arizona law is applicable and
does not prohibit the suit.
On April 26, 1967 the petitioner, Tab Construction Company, a Nevada corporation, was
the general contractor engaged in construction on the Bonanza Underpass in Las Vegas,
Nevada. The Horizontal Boring and Tunnel, Inc., an Arizona corporation, was a subcontractor
performing work for the petitioner on the Bonanza Underpass. Christopher J. Giacona, a
resident of Arizona, and an employee of Horizontal Boring and Tunnel, Inc., while acting in
the course and scope of his employment was injured, and incurred damages therefrom. He
brought an action against Tab Construction alleging that negligent conduct on the part of
certain employees of Tab Construction while acting in the course and scope of their
employment caused the injury to him. Giacona also named as codefendants certain individual
employees of the petitioner, Tab Construction.
At the date of the accident Tab Construction carried Nevada Industrial Insurance on behalf
of all the employees of the subcontractor, Horizontal Boring and Tunnel, Inc., and they were
eligible to receive any benefits therefrom. Tab filed a motion for summary judgment which
was denied apparently on the ground that the law of Arizona applies. Arizona allows a
common-law action against the general contractor in a workmen's compensation case. This,
of course, is contrary to Nevada's statutory workmen's compensation scheme which prohibits
common-law relief in this situation.
1. The Nevada Industrial Insurance Act provides that subcontractors and their employees
shall be deemed employees of the principal contractor. NRS 616.085; Simon Service v.
Mitchell, 73 Nev. 9
Mitchell, 73 Nev. 9, 307 P.2d 110 (1957); Titanium Metals v. District Court, 76 Nev. 72, 349
P.2d 444 (1960). The petitioner therefore was subject to the provisions of the N.I.I.A., as was
the non-objecting plaintiff employee, Giacona. NRS 616.285 and 616.295.
[Headnote 1]
The N.I.I.A. provides that an employer, who accepts the terms of this act which provides
compensation for employees, is relieved from further liability. NRS 616.270. Only if the
employer fails to provide and secure compensation under this act is the employee allowed to
bring an action at law. NRS 616.375.
[Headnote 2]
Under NRS 616.370 the rights and remedies under the act are exclusive and conclusive on
both the employer and the employee. Thus, under Nevada law the exclusive remedy provision
in the N.I.I.A. is exclusive in the sense that no other common-law or statutory remedy under
local law may be sought by the employee against his employer. Simon Service v. Mitchell,
supra; Titanium Metals v. District Court, supra; Nevada Ind. Comm'n v. Underwood, 79 Nev.
496, 387 P.2d 663 (1963).
[Headnote 3]
We observe that the State of Nevada has a legitimate constitutional interest in the
application of its own domestic law and policy to a work injury occurring within its borders.
Pacific Employers Ins. Co. v. Industrial Acc. Comm'n, 306 U.S. 493 (1939); Carroll v. Lanza,
349 U.S. 408 (1955).
[Headnote 4]
The interest of Nevada in the instant case does not derive solely from the occurrence of the
injury within its borders. Significant is the fact that it is the state of the forum. If the forum
state is concerned, it will not favor the application of a rule repugnant to its own policies, and
the law of the forum will presumptively apply, unless it becomes clear that nonforum
incidents are of greater significance. Alaska Packers Ass'n v. Industrial Acc. Comm'n, 294
U.S. 532 (1935); Wilcox v. Wilcox, 133 N.W.2d 408 (Wis. 1965).
[Headnote 5]
There are no compelling reasons to displace the domestic law and policies of Nevada.
Nevada is the forum state, the place of residence of the general contractor, the place of the
work injury, the place where employment exists and is carried out, the place where the
general contractor's business is localized, and the place the employees work.
out, the place where the general contractor's business is localized, and the place the
employees work. All of Nevada's relevant policies of workmen's compensation are vitally
involved. We therefore must pay heed and give effect to this interest.
Under the confines of these facts we grant the petition for a writ of prohibition.
Thompson, C. J., and Collins, J., Concur.
____________
83 Nev. 367, 367 (1967) Mt. Zion Bapt. Ch. v. Second Bapt. Ch.
MOUNT ZION BAPTIST CHURCH, et al., Appellants, v. SECOND BAPTIST CHURCH
OF RENO, NEVADA, a Nevada Corporation, Respondent.
No. 5246
October 5, 1967 432 P.2d 328
Petition for writ of prohibition to prevent judicial intervention in a church controversy.
Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Original proceedings to prevent the lower court from entertaining declaratory judgment
action and preliminary injunction motion involving property dispute between two discordant
factions within church. The Supreme Court, Zenoff, J., held that where notice of meeting at
which vote was taken to resolve questions of church merger and property ownership was not
given in accordance with bylaws, meeting was invalid, and absent valid meeting, vote to
merge was invalid and no rights flowed from it. It also held that question of which of two
discordant factions within church owned property and church funds on deposit in bank
concerned temporalities only and court had judicial power with respect to property rights
involved.
Writ denied.
Robert R. Herz, of Reno, for Respondent.
1. Constitutional Law; Religious Societies.
Decision of church members whether to merge or cooperate with other congregations is religious
question which, in itself, is not the concern of the court but only the concern of those involved, and they
make that choice in exercise of their religious beliefs which choice is guaranteed by First Amendment
against federal or state interference. U.S.C.A.Const. Amend. 1.
2. Religious Societies.
Courts have no power to decide religious questions, but can assume jurisdiction of religious institutions.
U.S.C.A.Const. Amend. 1.
Religious organizations have temporal rights and duties with respect to properties and contracts which
courts will recognize and enforce because exercise of religion depends in large measure upon properties
and temporalities held by religious group, but courts should exercise jurisdiction over religious institutions
only with respect to these temporalities and should recognize legal rights and duties and enforcement as
limited to non-religious policies. U.S.C.A.Const. Amend. 1.
Courts have judicial power to determine and protect property rights involved in disputes within religious
associations. U.S.C.A.Const. Amend. 1.
Question of which of two discordant factions within church owned property and church funds on deposit
in bank, concerned temporalities only and judicial power could be exercised with respect to those property
rights involved. U.S.C.A.Const. Amend. 1.
Where notice of meeting at which vote was taken which determined existence of church name and its
properties was not given in accordance with bylaws, meeting was invalid, and absent valid meeting, vote to
merge with another congregation was invalid and no rights flowed from it.
OPINION
This action involves a property dispute between two discordant factions within the Second
Baptist Church of Reno.
A division within the church developed over a proposed purchase of a new church edifice,
a merger with the Mt. Zion Baptist Church, and conflicting claims to $20,521.87 of church
funds on deposit with the First National Bank of Nevada.
A special meeting of the congregation was called to discuss the proposed merger. Instead
of complying with the by-laws of the association which prescribed written notice for meetings
after a required time, an announcement was made at church services for a meeting to be held
immediately. As a result, a scarce few of the entire membership participated in the meeting.
The vote on the merger gave rise to the division within the church and directly concerned the
ownership of the $20,521.87.
Respondent filed a declaratory judgment action together with a motion for a preliminary
injunction in the court below. The appellants filed a motion to dismiss which was denied. The
appellants now seek a writ of prohibition asserting that the lower court had no jurisdiction to
entertain this action contending this is a purely ecclesiastical matter involving the internal
affairs of the Second Baptist Church and its members.
[Headnotes 1-3]
1. The decision whether to merge or cooperate with other congregations is a religious
question which, in itself, should be of concern to no one except those involved. The choice is
one to be made by the parties in the exercise of their own religious beliefs. Their freedom to
make this choice is guaranteed by the 1st Amendment of the U.S. Constitution against federal
or state interference. Indeed, courts frequently declare that they have no power to decide
religious questions, but that does not mean that courts will not assume jurisdiction over
religious institutions. Religious organizations do have temporal rights and duties with respect
to properties and contracts which courts will recognize and enforce, because the exercise of
religion depends in large measure upon properties and temporalities held by a religious group,
e.g., an edifice as a place of worship, chattels of numerous forms and purposes, and money to
discharge legal obligations and to expend for charitable uses. In truth, the institution can
hardly practice its religion without these temporal necessities. Only with respect to these
temporalities should court recognize legal rights and duties and enforcement as limited to
nonreligious policies.
[Headnotes 4, 5]
2. Being mindful of the view that religious associations should be afforded certain
prerogatives of sovereignty (Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952); Kreshik
v. St. Nicholas Cathedral, 363 U.S. 190 (1960)), yet the state does have an interest in
affording the disputants some judicial recourse for resolving their arguments. Although we
express reluctance to become embroiled in such controversy, we recognize the judicial power
to determine and protect property rights. Watson v. Jones, 80 U.S. 679 (1872). The questions
presented by this case concern temporalities only, and our judicial power can be exercised
with respect to those property rights involved. Bouldin v. Alexander, 82 U.S. 131 (1873).
[Headnote 6]
Notice of a meeting was not given in accordance with the by-laws. Significance of this
failure is evident by the sparsity of the attendance at the meeting where the vote taken
determined the existence of the church name and its properties.
1
Absent a valid meeting, the
vote to merge was invalid and no rights flowed from it.
When relief was sought, the trial court ordered a meeting be called after proper notice. A
merger vote under such direction will decide ownership of the money involved and other
church property interests. Those considerations are properly within the jurisdiction of the
courts.
Writ denied.
____________________

1
At the invalidly called meeting, those persons present voted to dispense with the rules which, it is now
claimed, included a waiver for written notice of the meeting. Obviously, such contention is without merit.
____________
83 Nev. 370, 370 (1967) Hummel v. Sheriff
CLYDE C. HUMMEL, Appellant, v. SHERIFF,
MINERAL COUNTY, Respondent.
No. 5291
October 5, 1967 432 P.2d 330
Appeal from an order of the Fifth Judicial District Court, Mineral County, denying a
petition for habeas corpus; Peter Breen, Judge.
The lower court denied habeas corpus petition of defendant who contended that he was
bound over for trial on unconstitutional evidence offered at preliminary hearing, and
defendant appealed. The Supreme Court, Thompson, C. J., held that identification testimony
of prosecution witness based, in part, upon prior lineup conducted in the absence of
defendant's counsel was not inadmissible at preliminary hearing, where lineup in question
occurred before June 12, 1967, date of United States Supreme Court decision announcing
that, thereafter, evidence of courtroom identification of an accused, if accused was exhibited
to witness at prior lineup conducted for identification purposes in the absence of accused's
counsel, would be inadmissible unless courtroom identification was shown to have
independent origin.
would be inadmissible unless courtroom identification was shown to have independent origin.
Affirmed.
Bradley and Drendel, of Reno, for Appellant.
Harvey Dickerson, Attorney General, of Carson City, and Leonard P. Root, District
Attorney, Mineral County, for Respondent.
Courts.
Identification testimony of prosecution witness based, in part, upon prior lineup conducted in the
absence of defendant's counsel was not inadmissible at preliminary hearing, where lineup in question
occurred before June 12, 1967, date of United States Supreme Court decision announcing that, thereafter,
evidence of courtroom identification of an accused, if accused was exhibited to witness at prior lineup
conducted for identification purposes in the absence of accused's counsel, would be inadmissible unless
courtroom identification was shown to have independent origin. U.S.C.A. Const. Amend. 6.
OPINION
After a preliminary hearing, Hummel was held to answer a murder charge in the district
court. He there sought release by habeas corpus, contending that he was bound over for trial
on unconstitutional evidence offered at the preliminary hearing. The district court denied his
petition. This appeal followed. We affirm.
The evidence to which his contention is addressed is the identification testimony of a
prosecution witness based, in part, upon a prior lineup conducted in the absence of his
counsel. The constitutional doctrine upon which his contention rests is expressed in the
trilogy of United States v. Wade, 388 U.S. 218, Gilbert v. California, 388 U.S. 263, and
Stovall v. Denno, 388 U.S. 293, decided June 12, 1967. Wade and Gilbert hold that the Sixth
Amendment right to counsel compels the exclusion from evidence of a courtroom
identification of an accused, if the accused was exhibited to the witness at a prior lineup
conducted for identification purposes without notice to and in the absence of the accused's
counsel, unless the courtroom identification is shown to have an independent origin. Stovall
declared that the Wade doctrine applies only to confrontations for identification purposes
conducted in the absence of counsel after June 12, 1967.
for identification purposes conducted in the absence of counsel after June 12, 1967. Since the
lineup here in question occurred before that date, the new procedural safeguard announced in
Wade does not embrace this case.
Affirmed.
____________
83 Nev. 372, 372 (1967) Schaumberg v. State
DONALD SCHAUMBERG and WILLIAM R. COX, Appellants,
No. 5065
October 11, 1967 432 P.2d 500
Appeal from conviction of conspiracy to cheat and defraud by manipulation of slot
machine, in violation of NRS 199.480. First Judicial District Court, Douglas County; Frank
B. Gregory, Judge.
The Supreme Court, Zenoff, J., held that substance of Escobedo and admonitions of
Miranda decisions do not apply when confessions or admissions otherwise admissible are
given to persons who are not officers of the law nor their agents. The court further held that
admissions of defendant slot machine repairman made to supervisors of gambling
establishment were properly admitted where there was no cause for fear since detention was
not accomplished by threat, compulsion or force, and where, until sheriff's officers arrived,
repairman and codefendant were not under arrest and could have remained silent.
Affirmed.
Carl F. Martillaro, of Carson City, for Appellants.
Harvey Dickerson, Attorney General, John Chrislaw, District Attorney, Douglas County,
for Respondent.
1. Criminal Law.
Substance of Escobedo and admonitions of Miranda decisions do not apply when confessions or
admissions otherwise admissible are given to persons who are not officers of the law nor their agents.
2. Criminal Law.
Purport of Escobedo and Miranda decisions is to prevent oppressive police tactics which violate
individual rights and produce involuntary confessions.
3. Criminal Law.
Although miranda decision said that there can be no doubt that Fifth Amendment privilege is available
to protect persons from being compelled to incriminate themselves in all settings in which their freedom of
action is curtailed, thrust of decision was aimed against potentiality for compulsion found in custodial
interrogation initiated by police officers. U.S.C.A.Const. Amend. 5.
4. Criminal Law.
To be admissible as evidence, a confession or admission must be made freely, voluntarily and without
compulsion or inducement, whether made to police officers or to private persons.
5. Criminal Law.
Admissions of defendant slot machine repairman made to supervisors of gambling establishment were
properly admitted in prosecution for conspiracy to cheat and defraud gambling establishment by placing a
false jackpot on a slot machine, where there was no cause for fear since detention was not accomplished by
threat, compulsion or force, and where, until sheriff's officers arrived, repairman and codefendant were not
under arrest and could have remained silent. NRS 199.480.
6. Criminal Law.
Supreme Court would not consider defendants' contention that information filed was not proper and
conviction based thereon could not stand where defendants did not choose any of the procedures outlined
in statutes to raise question in proceedings below and where it was apparent that defense was conducted
with full understanding of charge, without prejudice to any substantive rights of defendants. NRS
174.230, 174.310.
7. Criminal Law.
Refusal to give requested cautionary instruction relating to oral confessions did not constitute error
where subject matter was properly and fully treated by other instructions.
OPINION
This is an appeal from the conviction of defendants Donald Schaumberg and William Cox
for the crime of conspiracy to cheat and defraud Harrah's Club at Lake Tahoe in the sum of
$5,000 by placing a false jackpot on a slot machine, in violation of NRS 199.480. They were
tried jointly.
Schaumberg was a slot machine repairman employed at Harrah's. Cox, his brother-in-law,
was visiting at Schaumberg's home. Shortly after 6:00 a.m. on September 21, 1964,
Schaumberg was observed working on a dollar slot machine by a pit boss of Harrah's, Ovlan
Fritz. After performing some mechanics within the machine, he adjusted it so that it was
turned partially on the base plate and then left the area. Immediately thereafter, Cox went to
the machine, moved it squarely onto the base plate, whereupon it registered a $5,000
jackpot.
squarely onto the base plate, whereupon it registered a $5,000 jackpot. Fritz reported what he
saw to two other supervisors. Together with a security guard employed by Harrah's, they
asked Cox to accompany them to the security office. Leaving him in the office, they
proceeded to locate Schaumberg whom they found in a washroom. Schaumberg accompanied
them to the manager's office. The security guard remained outside the office while two of the
supervisors, Howland and Curry, questioned Schaumberg. In all, four supervisors testified
Schaumberg admitted that he had rigged the slot machine because Cox needed money.
[Headnote 1]
Three assignments of error are propounded in this appeal, but our attention is focused on
whether the substance of Escobedo v. Illinois, 378 U.S. 478 (1964), and the admonitions of
Miranda v. Arizona, 384 U.S. 436 (1966), apply when confessions or admissions otherwise
admissible are given to persons who are not officers of the law nor their agents. We think not.
[Headnotes 2, 3]
1. The purport of Escobedo and mIranda is to prevent oppressive police tactics which
violate individual rights and produce involuntary confessions. Though Miranda said there can
be no doubt that the Fifth Amendment privilege is available to protect persons from being
compelled to incriminate themselves in all settings in which their freedom of action is
curtailed, it is clear that the thrust of the decision was aimed against the potentiality for
compulsion (Miranda v. Arizona, supra, at 457) found in custodial interrogation initiated by
police officers. People v. Frank, 275 N.Y.S.2d 570 (1966); People v. Santiago, 278 N.Y.S.2d
260 (1967); People v. Crabtree, 49 Cal.Rptr. 285 (1966); People v. Wright, 57 Cal.Rptr. 781
(1967); People v. Hays, 58 Cal.Rptr. 241 (1967); State v. O'Kelly, 150 N.W.2d 117 (Neb.
1967); Ibsen v. State, 83 Nev. 42, 422 P.2d 543 (1967).
[Headnote 4]
2. Though the requirements of the Miranda admonitions and the substance of Escobedo
are obviated in the present setting, we must nevertheless be concerned that the statements
made by the defendant were voluntary and not the product of coercion. To be admissible as
evidence, a confession (or admission) must be made freely, voluntarily and without
compulsion or inducement, whether made to police officers or to private persons. People v.
Frank, supra; People v. Berve, 332 P.2d 97 {Cal.
P.2d 97 (Cal. 1958). NRS 199.460 affords this protection, but that statute is limited to
persons whose confessions are forced while they are under arrest.
[Headnote 5]
However, in our consideration of the record in this case, we find no evidence that the
admissions made by the defendant Schaumberg were not voluntarily given. Under all of the
tests as we know them, there was no cause for fear since the detention was not accomplished
by threat, compulsion or force. Until the sheriff's officers arrived, Schaumberg and Cox were
not under arrest. They could have remained silent. The admissions made by Schaumberg were
properly admitted into evidence.
[Headnote 6]
3. The appellants contend that the information filed was not proper and a conviction based
thereon cannot stand. We note that the appellants did not choose any of the procedures
outlined in the statutes to raise the question in the proceedings below and now present the
issue for the first time.
1
Since it is apparent the defense was conducted with full
understanding of the charge, without prejudice to any substantive rights of the defendants, we
reject this assignment of error for failure to properly raise objection in the trial court. O'Briant
v. State, 72 Nev. 100, 295 P.2d 396 (1956); Garner v. State, 78 Nev. 366, 374 P.2d 525
(1962).
[Headnote 7]
4. The appellants further contend the trial court committed error in failing to give a
requested cautionary instruction relating to oral confessions.
2

After examining all of the instruction given by the trial court regarding oral confessions, it
is our opinion that the subject matter was properly and fully treated. Hence, the refusal was
not error. Cranford v. State, 76 Nev. 113, 349 P.2d 1051 (1960); Cook v. State, 77 Nev. 83,
359 P.2d 483 (1961); Kuk v. State, 80 Nev. 291, 392 P.2d 630 (1964); Beasley v. State, 81
Nev. 431, 404 P.2d 911 (1965).
Affirmed.
____________________

1
See NRS 174.230, 174.310.

2
You are admonished that you are to view with caution the testimony of any witnesses which purports to
relate an oral admission of the defendant or an oral confession by him.
____________
83 Nev. 376, 376 (1967) Rogers v. State
WALTER L. ROGERS, Appellant, v. THE STATE
No. 5267
October 11, 1967 432 P.2d 331
Appeal from the Second Judicial District Court, Washoe County; John B. Gabrielli, Judge.
The trial court found defendant guilty of first-degree murder, and he appealed. The
Supreme Court, Mowbray, J., held that felony and homicide committed together constitute
crime of murder and may be charged as such and in same manner as other murders are
charged, and it was not necessary to allege that homicide was committed in perpetrating
another felony.
Affirmed.
Richard C. Minor, of Reno, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and Virgil D.
Dutt, Deputy District Attorney, Washoe County, for Respondent.
1. Homicide.
Felony and homicide committed together constitute crime of murder and may be charged as such and
in same manner as other murders are charged, and it was not necessary to allege that homicide was
committed in perpetrating another felony. NRS 173.310.
2. Homicide.
Instruction on involuntary manslaughter was properly refused under statute, in view of fact that
defendant entered bar carrying loaded shotgun, shot innocent bystander, and then removed cash from
register. NRS 200.070.
3. Homicide.
Felony-murder instructions were not confusing or contradictory.
4. Criminal Law.
Although trial judge, in hearing out of jury's presence, ruled that defendant's statements were
admissible, the statements were never offered in evidence, and accordingly, defendant-s exclusion
argument on appeal was moot.
OPINION
By the Court, Mowbray, J.:
A jury found the appellant, Walter L. Rogers, guilty of first degree murder, and he was
sentenced to life imprisonment without possibility of parole.
On February 12, 1965, the appellant, Rogers, commenced drinking heavily in the early
morning and continued to do so throughout the day. In the company of Thomas Phillips, he
purchased a 12-gauge shotgun, sawed off the barrel, and proceeded to visit local business
establishments in the Reno area.
He first visited Red's Variety Store in Sparks, robbed the proprietor, and fired his shotgun
into the ceiling.
Next he proceeded, with his companion, Phillips, to the Eagle Bar at Sierra and California
Streets in Reno. Here the appellant entered the bar in a boisterous manner and fired his
shotgun at Newton S. Smalley, a patron, who was seated quietly at the bar. Mr. Smalley was
killed instantly. The appellant then went to the back of the bar and removed the cash from the
register.
Later that same evening, the appellant robbed the Modern Drug Store at 302 South Wells
Avenue, Reno. Here again he fired his shotgun, but this time the shot struck a clock above a
doorway through which a clerk on duty had fled.
It is the killing of Newton S. Smalley which led to the indictment and conviction of
murder.
Appellant, in his appeal, asserts error committed during the trial, as follows:
1. That the indictment in a felony murder case must set forth that the killing was
perpetrated during the commission of a felony.
2. That the trial court committed error in refusing to charge the jury on involuntary
manslaughter.
3. That it was error to give instructions numbered 21 and 22.
4. That the trial court committed reversible error in admitting appellant's confession into
evidence.
For the reasons hereinafter expressed, we hold the assignments of error are without merit
and that the judgment and sentence below must be affirmed.
Each of the assignments of error will be discussed separately.
1. The indictment alleges:
INDICTMENT
That the said defendant, Walter Lester Rogers, on or about the 12th day of February,
1965, at Reno TownshiP, in the County of Washoe, State of Nevada, did then and there
wilfully, unlawfully and feloniously, with malice aforethought, kill one Newton S. Smalley, a
human being, by firing a gun into the body of said Newton S. Smalley, from which said
mortal wound the said NEWTON S.
from which said mortal wound the said NEWTON S. SMALLEY died within a year and a
day after the infliction of said mortal wound, to wit: on the 12th day of February, 1965. (Vol.
1, Record on Appeal, p. 1.)
NRS 173.310 provides:
Sufficiency of indictment or information. The indictment or information shall be
sufficient if it can be understood therefrom:
* * *.
6. That the act or omission charged as the offense is clearly and distinctly set forth in
ordinary and concise language, without repetition and in such a manner as to enable a person
of common understanding to know what is intended.
In State v. Mangana, 33 Nev. 511, 518, 112 P. 693, 696 (1910), this court held:
It has often been held that a felony and a homicide committed in perpetrating or
attempting to perpetrate it, together, constitute the one crime of murder and may be charged
as such and in the same manner as ordinary murders are alleged, and that it is not necessary to
charge in the indictment that the murder was committed in the perpetration of another crime
in order to introduce testimony showing that a felony was committed in addition to it, and
that, under an indictment charging murder in the ordinary form and proof that it was
committed in the perpetration of a felony, malice, deliberation, and premeditation are implied.
(State v. Meyers, 99 Mo. 107, 12 S.W. 516; People v. Giblin, 115 N.Y. 196, 21 N.E. 1062, 4
L.R.A. 757; State v. Covington, 117 N.C. 834, 23 S.E. 337; People v. Sullivan, 173 N.Y. 122,
65 N.E. 989, 63 L.R.A. 353, 93 Am.St.Rep. 582; State v. Johnson, 72 Iowa 393, 34 N.W.
177; Wall v. State, 18 Tex. 682, 70 Am.Dec. 302; Titus v. State, 49 N.J. Law 36, 7 Atl.
621.)
See also State v. Ceja, 53 Nev. 272, 298 P. 658 (1931).
[Headnote 1]
The law is well settled in this state that a felony and homicide committed together
constitute the crime of murder and may be charged as such and in the same manner as other
murders are charged, and it is not necessary to allege that it was committed in perpetrating
another felony.
2. Did the trial court commit error in refusing to instruct the jury on involuntary
manslaughter?
NRS 200.070 provides:
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; 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."
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. (Emphasis added.)
[Headnote 2]
In the instant case, where the appellant entered a bar carrying a loaded shotgun, shot an
innocent bystander, and then removed the cash from the register, NRS 200.070 precluded the
giving of an instruction on involuntary manslaughter, since that statute deems such conduct to
be murder.
3. Instructions numbered 21 and 22 read as follows:
[Headnote 3]
21. Murder which is committed in the perpetration or attempt to perpetrate robbery is
murder of the first degree, whether the killing was intentional, unintentional or accidental.
22. Where the killing is not wilful, deliberate and premeditated but is committed in the
perpetration or attempt to perpetrate robbery, the defendant is not guilty of first degree
murder unless he had the specific intent to commit robbery.
The appellant urges that these instructions are, first, confusing, and, second, contradictory.
It is not contended that the instructions contain a misstatement of the law.
In Instruction 21 it is clear that it is the killing which may be committed either
intentional, unintentional or accidental. Instruction 22 does not contradict Instruction 21,
but merely sets forth that the alleged robbery must have been committed with the specific
intent to commit robbery.
[Headnote 4]
4. Finally, we turn to appellant's fourth assignment of errorthat appellant's statements
should not have been received in evidence. A review of the record shows that, although the
trial judge, in a hearing without the presence of the jury, ruled that the said statements were
admissible, they were never offered in evidence, and therefore appellant's argument for
exclusion is moot.
Appellant's counsel was appointed to prosecute this appeal. We direct the lower court to
give him the certificate specified in subsection 4 of NRS 7.260, to enable him to receive
Affirmed.
Thompson, C. J., Collins, J., Zenoff, J., and Batjer, J., concur.
____________
83 Nev. 380, 380 (1967) Skinner v. State
CHARLES EDWARD SKINNER, Appellant, v. THE
No. 5290
October 16, 1967 432 P.2d 675
Appeal from conviction and denial of habeas corpus. Eighth Judicial District Court, Clark
Accused was convicted by jury of second-degree murder in the trial court and he appealed
from the conviction and from denial of writ of habeas corpus. The Supreme Court, Collins, J.,
held that after grand jury indictment charging accused with murder was dismissed through
habeas corpus on ground that no reporter's transcript of those proceedings was made, which
dismissal in no way affected merits of case, state could re-arrest him and then proceed against
him by way of complaint and information.
Affirmed.
Harvey Dickerson, Attorney General, Carson City; George E. Franklin, Jr., District
Attorney, and James D. Santini, Deputy District Attorney, Clark County, for Respondent.
1. Habeas Corpus.
Where accused was indicted by grand jury for murder, and indictment was dismissed through habeas
corpus because no reporter's transcript of those proceedings was made, and he was later arrested under new
complaint charging murder and was held without bail, appeal after trial and conviction from denial of
second writ of habeas corpus, which urged several statutory deficiencies, came too late.
After grand jury indictment charging accused with murder was dismissed through habeas corpus on
ground that no reporter's transcript of those proceedings had been made, which dismissal in no way
affected merits of case, state could re-arrest accused and then proceed against him by way of complaint and
information without court's permission. NRS 173.030.
3. Criminal Law.
Failure to instruct jury that they could individually take notes until state's second witness was testifying
was not prejudicial error where neither party made timely request of trial judge and where accused's
counsel waited until state's second witness was testifying to make objection. NRS 175.166.
4. Criminal Law.
Statute relating to judge's duty to inform jury of its right to take notes is directory only and failure to
invoke it in timely manner constitutes waiver by objecting party. NRS 175.166.
5. Criminal Law.
Procedure of jurors taking notes may be helpful to them, but lack of notes will not destroy inherent
fairness of trial, at least without cogent showing of prejudice. NRS 175.166.
6. Criminal Law.
Statute relating to judge's duty to inform jury of its right to take notes does not deal with a substantive
right of accused, but a procedural directive incident to trial and available to either party.
7. Criminal Law.
Reviewing court could have ignored point in appellate brief where appellant's counsel did not refer in his
brief to page and line, or folio, in record where evidence objected to could have been found. SCR 23, subd.
1.
8. Criminal Law.
Where incriminating statements made by accused shortly after the homicide took place were voluntarily
made, they were admissible as extrajudicial admissions.
9. Criminal Law.
Incriminating statements voluntarily made by accused immediately following shooting were not
objectionable under the Miranda decision in murder prosecution.
10. Criminal Law.
The mandate of Miranda applies only to custodial interrogation initiated by police officers.
OPINION
Appellant Charles Edward Skinner was convicted by a jury of second degree murder for
the unlawful killing of Roosevelt Wright in Las Vegas, Nevada. He appeals from the
conviction and from denial of a writ of habeas corpus. We find no merit to either appeal and
sustain the conviction.
On April 29, 1966, Skinner and Wright entered Bruce's Liquor Store in Las Vegas,
Nevada, with three other men. Skinner and Wright there engaged in intermittent argument.
The two men departed from the store. Two shots were heard and Wright stumbled back into
the store, followed by Skinner who shot Wright again with a .22-caliber rifle as he lay on the
floor. Wright stood up and lurched toward Skinner who shot him again. Wright staggered
from the store holding his stomach. Skinner followed and shot him again. Skinner tried to
shoot Wright several more times but the gun misfired. Skinner stepped away from Wright but
returned and attempted several times to shoot him. Wright died from the wounds.
Skinner fled from the scene and went to the residence of Cornelius Lee approximately one
block from the liquor store.
Cornelius Lee approximately one block from the liquor store. He attempted to gain entrance
but when denied access, threatened to break down the door. He finally gained admission to
the house by breaking a window. Skinner, after gaining entrance to the house, told Johnny
Williams and others that he had just killed Roosevelt Wright by shooting him five times. A
few minutes later Skinner was arrested in Doolittle Park, one-half block from the scene of the
killing, still carrying a .22-caliber rifle.
Skinner was indicted by the grand jury of Clark County for the murder of Wright. No
reporter's transcript of those proceedings was made. The indictment was dismissed through
habeas corpus on the authority of Shelby v. District Court, 82 Nev. 204, 414 P.2d 942 (1966).
[Headnote 1]
The same day Skinner was re-arrested under a new complaint charging murder, and was
held without bail. He sought another writ of habeas corpus urging several statutory
deficiencies. The second writ was also denied, from which Skinner appeals. His appeal from
that denial following trial and conviction comes too late. Oberle v. Fogliani, 82 Nev. 428, 420
P.2d 251 (1966); Ex parte Merton, 80 Nev. 435, 395 P.2d 766 (1964). He was thereafter
bound over to the district court following a preliminary hearing, convicted by a jury of second
degree murder and sentenced to imprisonment of not less than 10 years nor more than life. He
appeals additionally from the conviction and sentence.
Twelve assignments of error are urged by appellant. We shall consider but three, the others
being either abandoned by appellant or patently not supported by the record.
[Headnote 2]
Appellant contends that the state was powerless to proceed against him by way of
complaint and information following dismissal of the grand jury indictment. He contends that
the requirements of NRS 173.030
1
were not followed in that: (1) there was no order by the
court to resubmit the matter; and (2) the state did not resubmit the matter to the grand jury
but instead chose to proceed against the appellant by complaint and information.
____________________

1
Dismissal of charge does not bar further indictment. The dismissal of the charge shall not, however,
prevent the same charge from being again submitted to a grand jury or as often as the court shall so direct. But,
without such direction, it shall not be again submitted.
but instead chose to proceed against the appellant by complaint and information. Respondent,
on the other hand, contends that NRS 174.200
2
authorizes the state to proceed in such a
manner. Although that statute is not directly in point, because this was not a dismissal under
this chapter, we agree with the principle set forth therein. The procedure used in this case
was collaterally upheld in In re Hironymous, 38 Nev. 194, 147 P. 453 (1915), where the court
stated that since * * * power existed to proceed further against the petitioner after the
dismissal of the first indictment, such proceeding might * * * be by information. Id. at 203.
Such procedure is not inherently prejudicial to the appellant. Alderman v. State, 38 N.W. 36
(Neb. 1888). The California court, in an analogous case, approved of an indictment following
proper dismissal of an information for the same crime. The court held that following
dismissal of the information, it was as though no information had been filed. People v. Grace,
263 P. 306 (Cal. 1928). The dismissal under Shelby, required because of a failure to report
the proceedings, in no way affected the merits of the case. The lower court simply
acknowledged it had no way to test the sufficiency of the evidence by which Skinner was
charged by the grand jury. We hold that under these circumstances, the state could proceed
against appellant by way of complaint and information, and that the court's permission was
not required.
[Headnotes 3-6]
Appellant next urges it was error for the trial court to fail to instruct the jury, prior to any
evidence being taken, that they could take notes as NRS 175.166 provides.
3
Neither the state
nor appellant made timely request of the trial judge. Not until the state's second witness was
testifying did appellant's counsel object to the failure of the court to give the instruction. We
hold the statute is directory only and failure to invoke it in a timely manner constitutes a
waiver by the objecting party. The procedure of jurors taking notes may be helpful to them,
but the lack of notes will not destroy the inherent fairness of the trial, at least without a cogent
showing of prejudice. None was shown here.
____________________

2
Order setting aside indictment or information no bar to future prosecution. An order to set aside an
indictment or information, as provided in this chapter, is no bar to a future prosecution for the same offense.

3
Judge to inform jury of right to take notes. Before any evidence has been introduced the judge shall inform
the jury they may individually take notes during the trial.
was shown here. We are not dealing with a substantive right of appellant, but a procedural
directive incident to trial and available to either party.
[Headnote 7]
Appellant says it was error for the trial court to admit testimony by state's witnesses of
incriminating statements made to them immediately following the shooting. Appellant's
counsel did not refer in his brief to the page and line, or the folio, in the record where the
evidence objected to could be found as required by SCR 23(1),
4
and we could ignore the
point. We prefer not to however, because it concerns important rights of appellant, not
counsel.
[Headnotes 8-10]
Apparently the incriminating statements referred to are those of Cornelius Lee, Lee
Edward Toston and John B. Williams. Appellant told these various witnesses, within one-half
hour of the shooting of Roosevelt Wright at the liquor store, I killed this boy; Open the
door or I'll shoot it down; I just shot Roosevelt Wright five times; that he (Skinner) had
just killed Roosevelt Wright at Bruce's Liquor. Appellant's counsel objected on the grounds
the statements were prejudicial, improper, not part of the res gestae, they were ex post facto,
embarrassing to the defendant, and beclouded the issue. The objection is not sound. The
statements were voluntarily made and were admissible as extrajudicial admissions by the
accused. See State v. Johnson, 16 Nev. 36 (1881); Beasley v. State, 81 Nev. 431, 404 P.2d
911 (1965). Furthermore, they were not objectionable under Miranda v. Arizona, 384 U.S.
436 (1966). The mandate of Miranda applies only to custodian interrogation initiated by
police officers. Id. 457. See Schaumberg v. State, 83 Nev. 372, 432 P.2d 500 (1967).
The conviction is sustained.
Appellant's counsel was appointed to take this appeal. We direct the lower court to give
him the certificate specified in subsections 3 and 4 of NRS 7.260, to enable him to receive
____________________

4
1. A brief must designate the page and line, or the folio, in the record where the evidence or matter
referred to may be found, and in case of failure to do so the court may ignore the point made.
____________
83 Nev. 385, 385 (1967) Bd. of Chiropractic Exam'rs v. Babtkis
NEVADA STATE BOARD OF CHIROPRACTIC EXAMINERS, Appellant,
v. MORTON M. BABTKIS, D.C., Respondent.
No. 5195
October 17, 1967 432 P.2d 498
Appeal from a judgment of the Eighth Judicial District Court, Clark County, William P.
Compton, Judge, modifying an order of the Board of Chiropractic Examiners permanently
revoking a license to practice.
The Supreme Court, Thompson, C. J., held that chiropractor who knowingly allowed his
female employees to perform acts of hand masturbation on male customers engaged in
unprofessional conduct and was not possessed of good moral character, and state board of
chiropractic examiners did not abuse its discretion when it ordered permanent revocation of
his license rather than temporary suspension to be followed by probationary period.
Reversed, and the order of the Board reinstated.
Harvey Dickerson, Attorney General, George G. Holden, George H. Hawes, and Peter
Breen, Deputy Attorneys General, of Carson City, for Appellant.
Ross, Snyder & Goodman, of Las Vegas, for Respondent.
1. Physicians and Surgeons.
Chiropractor who knowingly allowed his female employees to perform acts of hand masturbation on
male customers engaged in unprofessional conduct and was not possessed of good moral character, and
state board of chiropractic examiners did not abuse its discretion when it ordered permanent revocation
of his license rather than temporary suspension to be followed by probationary period. NRS 634.010,
subd. 3(j), 634.140, subd. 1(b), 634.150.
When determination of administrative board is challenged the function of the Supreme Court,
identical to that of the district court, is to review the evidence presented to the board and ascertain
whether that body acted arbitrarily or capriciously and therefore, abused its discretion.
OPINION
This appeal is from a district court review of an order of the Nevada State Board of
Chiropractic Examiners permanently revoking the license of Morton M. Babtkis to practice
chiropractic.
chiropractic. The district court modified the Board's order by substituting for revocation, a six
months suspension to be followed by two years probation. The Board contends that the court
modification should not be allowed to stand, since substantial evidence was presented at the
hearing before the Board to support its order of revocation. We agree with the Board and
reinstate the order which it entered.
[Headnote 1]
The revocation order rests upon evidence that a major part of the healing art of
chiropractic conducted in the office of Babtkis at Henderson, Nevada, was a local
massagean act of hand masturbation performed by female employees upon male customers.
The fee was ten dollars. Customers were lured to his office by advertisements in the Las
Vegas newspapers. An example: Relaxing massage, 567-7301, Joanne, Henderson. The
number was the telephone number of Babtkis' officeJoanne was a masseuse employed by
him. There were others.
The Board found that such activity was unprofessional conduct within the meaning of
NRS 634.010(3)(j),
1
and evidence that Babtkis no longer possesses good moral character
within the intendment of NRS 634.140(1)(b).
2
Either finding allows the penalty of
revocation or the discipline of suspension. NRS 634.140; 634.150.
3
The Board chose
revocation. We cannot fault the Board for its view.
Chiropractic is a healing art. Hand masturbation is not. One in the practice of chiropractic
must be dedicated to the ideal of serving those who are ailing and in need of professional
attention. Hand masturbation bears no relationship to that ideal and, in the present context, is
a vulgar, base act, reflecting adversely upon the moral character of Babtkis, who knowingly
allowed such to regularly occur in his office.
The district court approved the Board's finding of unprofessional conduct, but believed
that the practice of hand masturbation by his female employees did not show the absence
of the good moral character required of a professional man.
____________________

1
NRS 634.010(3): Unprofessional conduct means: * * * (j) Conduct unbecoming a person licensed to
practice chiropractic or detrimental to the best interests of the public.

2
NRS 634.140(1): Upon complaint of the board, * * * his license shall be revoked if it is found: * * * (b)
That he no longer possesses good moral character.

3
NRS 634.150: The board shall have additional power: * * * 2. To revoke any license, either permanently
or temporarily, and suspend the person found guilty of unprofessional conduct from the practice of chiropractic,
either permanently or for a time determined by the board.
masturbation by his female employees did not show the absence of the good moral character
required of a professional man. It was for this reason that the court modified the Board's
revocation order to suspension of license and probation. Although there may be instances of
unprofessional conduct which do not reflect adversely upon a practitioner's moral character,
the condoning of hand masturbation by female employees is not one of them. We do not
accept the distinction drawn by the district court.
[Headnote 2]
When the determination of an administrative board is challenged, the function of this court
is identical to that of the district court. Urban Renewal Agency v. Iacometti, 79 Nev. 113, 379
P.2d 466 (1963); McKenzie v. Shelly, 77 Nev. 237, 362 P.2d 268 (1961). It is to review the
evidence presented to the board and ascertain whether that body acted arbitrarily or
capriciously and, therefore, abused its discretion. As already indicated, our review discloses
that the Chiropractic Board acted within the permissible limits of its discretion.
Counsel for Babtkis suggests that we honor the district court modification on the authority
of In re Reno, 57 Nev. 314, 64 P.2d 1036 (1937). In that case the Medical Board permanently
revoked a doctor's license to practice medicine. The district court affirmed, and the Supreme
Court modified the penalty to a temporary revocation of license, since it found no clear
evidence that the conduct in issue was willful and intentional. The case at hand presents a
different picture. The record sustains the Chiropractic Board's view that Babtkis knowingly
allowed the conduct for which his license was revoked.
The district court order modifying the Board penalty of permanent revocation is reversed,
and the order of the Chiropractic Board is reinstated.
Zenoff, J., Batjer, J., Mowbray, J., and Craven, D. J., concur.
____________
83 Nev. 388, 388 (1967) Gardner Hotel Sup. v. Estate of Clark
GARDNER HOTEL SUPPLY OF HOUSTON, Appellant, v. ESTATE
OF WILBUR I. CLARK, Deceased, Respondent.
No. 5292
SOUTHERN NATIONAL BANK OF HOUSTON, Appellant, v. ESTATE
OF WILBUR I. CLARK, Deceased, Respondent.
No. 5293
October 18, 1967 432 P.2d 495
Appeals from orders denying motions for leave to file late creditor's claims in probate
proceedings. Eighth Judicial District Court, Clark County; George E. Marshall Judge.
The trial court denied motions and appeal was taken. The Supreme Court, Zenoff, J., held
that where both claimants against estate of decedent knew of decedent's demise, several
conversations were held with executors and other interested persons and both claimants were
sophisticated in business world and experienced in significance of filing claims in such
situations, fact that filing period in Nevada was different from that of their own state was
insufficient to excuse their failure to file on time and trial court properly denied motion for
leave to file late claims against estate.
Affirmed.
Singleton, DeLanoy & Jemison, of Las Vegas, for Appellants.
Foley Brothers, of Las Vegas, for Respondents.
It is policy of laws that efficient and expedient administration of estates is essential. NRS 147.040.
Nonclaim statute with respect to claims against estates is plainly written and should be enforced as
designed. NRS 147.040.
All claims against estate, whether contingent or noncontingent, must be filed within three months; Pruett
v. Caddigan, 42 Nev. 329, 176 P. 737, overruled to extent that it suggests the contrary. NRS 147.040.
Nonclaim statute makes no distinction due to residence and applies equally to resident claimants against
estate as well as nonresident claimants. NRS 147.040.
Purpose of nonclaim statute is to bar those who are indifferent, careless or dilatory in their attitude toward
filing claims against estate. NRS 147.040.
Nonclaim statute permits trial court discretion, upon good cause shown, to either allow filing of claim
against estate after it is barred or, upon failure to show good cause for not having filed, to refuse
permission to file late claim. NRS 147.040.
Knowledge of death is sufficient to put claimant against estate on notice that probate proceedings will
follow and charges him with responsibility of further inquiry. NRS 147.040.
Knowledge of death, or any knowledge of estate proceedings, coupled with failure to act after receipt of
information are enough to support exercise of lower court's discretion either to grant permission to file
claim against estate, or to deny it. NRS 147.040.
Where both claimants against estate of decedent knew of decedent's demise, several conversations were
held with executors and other interested persons, and both claimants were sophisticated in business world
and experienced in significance of filing claims in such situations, fact that filing period in Nevada was
different from that of their own state was insufficient to excuse their failure to file on time and trial court
properly denied motion for leave to file late claims against estate. NRS 147.010.
OPINION
These appeals arise from orders denying motions for leave to file late creditor's claims.
Both cases involve similar fact situations and present the same legal issue, and are therefore
joined for appellate consideration.
On July 22, 1965 Wilbur Clark and William Ward executed an agreement with General
Electric Credit Corporation guaranteeing the conditional sales contract entered into on that
date by Wilbur Clark's Crest Hotel and the appellant, Gardner Hotel Supply of Houston. On
that date also, Gardner assigned the conditional sales contract to General Electric Credit
Corporation. The guaranty agreement provided that the death of the guarantor should not
discharge or affect the agreement.
On August 28, 1965 Wilbur Clark died. Alton Lipkin, a Vice-President of the appellant
corporation, noted the death as published in the Houston newspaper, August 29, 1965.
On October 18, 1965 General Electric reassigned the conditional sales contract to the
appellant. On October 19, 1965 the appellant assigned the same to C.I.T. Corporation of
Houston. No further assignment back to the appellant appears from the record, but since no
issue is raised as to the status of Gardner as a claimant, and we affirm the trial court, that
question becomes moot.
On September 17, 1965 notice was published pursuant to NRS 147.010.
1
On December
17, 1965 the period for filing claims against the estate had run.
On April 12, 1966 Gardner filed a motion for leave to file a creditor's claim in the amount
of $13,157.26. In support of said motion, Gardner presented the affidavit of Lipkin, copies of
the conditional sales agreement, the guaranty contract and various assignments and
reassignments. In his affidavit, Lipkin stated that he first became aware of the notice to
creditors on March 25, 1966 through his attorney, who had been sent to Las Vegas sometime
in March. The motion to file the claim was denied.
As to the appeal of Southern National Bank of Houston, the record discloses that
sometime prior to his death, Wilbur Clark and William Ward secured a loan from the bank in
the amount of $300,000 for two hotel projects. They both signed a note and personally
guaranteed repayment of the loan. Neither the note, nor the guaranty agreement, nor any other
writing concerning this transaction were made a part of the record.
____________________

1
NRS 147.010: Notice to creditors: Publication, posting and form.
1. Immediately after his appointment, every executor or administrator shall:
(a) Cause to be published a notice of his appointment as executor or administrator in some newspaper
published in the county, if there be one; if not, then in such newspaper as may be designated by the court or
judge.
(b) Post a copy of the notice at the courthouse of the county. The notice shall be published at least once a
week for 4 weeks.
2. If any executor or administrator shall neglect, for 15 days after his appointment, to give notice of his
appointment as prescribed in subsection 1, the court shall revoke his letters.
3. The notice shall be substantially in the following form:
NOTICE TO CREDITORS
Notice is hereby given that the undersigned has been duly appointed and qualified by the (giving the title of
the court and the date of appointment), as executor or administrator, as the case may be, of the estate of..............,
deceased. All creditors having claims against the estate are required to file the same, with proper vouchers
attached, with the clerk of the court, within 3 months after the first publication of this notice.
Dated...............
On August 29, 1965 Mr. H. H. Kuhlmann, a Vice-President of the bank, noted Clark's
death in the Houston newspaper. On November 12 he was advised by Ward that J. L.
Donnelly, whom Kuhlmann knew to be Clark's attorney in the past, had been named executor
and, in truth, he was so advised several times subsequent.
Donnelly stated in his affidavit that he had conversed with Kuhlmann concerning the bank
loan and the estate's financial status. The record further shows that Kuhlmann had been
advised by others of the estate proceedings, and that Donnelly and Herbert Clark were
coexecutors. The bank moved, after the time for filing claims had expired, to file its claim,
which was denied.
The sole issue is directed to the refusal of the trial court to allow the appellants to file late
claims against the decedent's estate pursuant to NRS 147.040.
Nevada's nonclaim statute, NRS 147.040, provides:
1. All persons having claims against the deceased must, within 3 months after the first
publication of the notice specified in NRS 147.010, file the same, with the necessary
vouchers, with the clerk of the court, who shall file and register each claim.
2. If a claim be not filed with the clerk within 3 months after the first publication of the
notice, it shall be forever barred; but when it shall be made to appear by the affidavit of the
claimant, or by other proof, that he had no notice as provided in this chapter, to the
satisfaction of the court or judge, it may be filed at any time before the filing of the final
account.
Notice as provided in NRS 147.040 was duly published and posted on September 17,
1965. The statute provides for publication in some newspaper in the county or as designated
by the court. It informs the creditors of the identity of the executor and the court which made
the appointment, that the claims are to be filed with the clerk of the court, and that all claims
must be filed within three months. There is no dispute that the notice filed, posted, and
published complied with the statute. Appellants contend that the mere posting and publishing
of the notice was not enough to bind them if they did not have actual knowledge of the
existence of the estate proceedings, and that absent such knowledge, the trial court was bound
to allow them to file their claims.
[Headnotes 1-5]
1. The spirit and letter of the Nevada statutes relating to the filing of claims and the
administration of estates, speak to the policy of our laws that efficient and expedient
administration is essential.
the policy of our laws that efficient and expedient administration is essential. In re Delaney's
Estate, 41 Nev. 384, 171 P. 383 (1918). Our nonclaim statute, NRS 147.040, is plainly
written and should be enforced as designed. Pacific States S. L. & B. v. Fox, 25 Nev. 229, 59
P. 4 (1899). The statute contemplates all claims, whether contingent or noncontingent, to be
filed within three months. The holding of Pruett v. Caddigan, 42 Nev. 329, 176 P. 787
(1918), to the extent that it suggests the contrary, is hereby overruled. Further, the statute
makes no distinction due to residence and applies equally to resident claimants as well as
nonresident claimants. Messenger v. Rutherford, 225 N.E.2d 94 (Ill. 1967). Such construction
in no way causes claimants to suffer injustice where the purpose of the statute is to bar those
who are indifferent, careless or dilatory in their attitude toward filing claims. See In re
McCracken, 224 N.E.2d 181 (Ohio 1967).
[Headnote 6]
2. Our reading of NRS 147.040 warrants the conclusion that Nevada's nonclaim statute
permits trial court discretion, upon good cause shown, to either allow the filing of a claim
after it is barred; or upon failure to show good cause for not having filed, to refuse permission
to file a late claim.
[Headnotes 7, 8]
3. Knowledge of death is sufficient to put the claimant on notice that probate proceedings
will follow, and charges him with the responsibility of further inquiry. Knowledge of death,
or any knowledge of the estate proceedings, coupled with the failure to act after receipt of the
information are enough to support the exercise of the lower court's discretion either to grant
permission to file the claim, or to deny it. Cf. Pacific States S. L. & B. v. FOX, supra (where
permission to file a late claim was granted). See also: Chalaby v. Driskell, 390 P.2d 632 (Ore.
1964); In re Marrs' Estate, 107 N.E.2d 148, 159 (Ohio 1952); In re Wyckoff Estate, 152
N.E.2d 141 (Ohio 1958); In re Rathe's Estate, 59 N.W.2d 164 (Neb. 1953); Federal Land
Bank of Omaha v. Bonnett, 284 N.w. 97 (Iowa 1939).
[Headnote 9]
The claimants knew of Clark's demise and several conversations were held with the
executors and other interested persons. Both claimants are sophisticated in the business
world, experienced in the significance of filing claims in the given situations. That the filing
period in this state is shorter than that of their own state is insufficient reason to excuse their
failure to file on time.
to file on time. The trial court properly denied the motions for leave to file late claims.
Affirmed.
Thompson, C. J., Collins, J., Batjer, J., and Mowbray, J., concur.
____________
83 Nev. 393, 393 (1967) Stabile v. Justice's Court
NICHOLAS ANTHONY STABILE, Petitioner, v. JUSTICE'S COURT
OF LAS VEGAS TOWNSHIP, NEVADA, Respondent.
No. 5262
October 19, 1967 432 P.2d 670
Original petition for writ of prohibition.
Original proceeding to prohibit Justice's Court from conducting preliminary hearing on
criminal complaint charging defendant with murder. The Supreme Court, Thompson, C. J.,
held that where defendant challenged every charge filed against him, where he waived 60-day
rule when he was finally arraigned upon indictment, and where, after dismissal of the
indictment and state's filing of new complaint, he commenced proceeding in prohibition,
defendant himself frustrated trial and his Sixth Amendment right to a speedy trial was not
violated.
Petition denied.
Charles L. Kellar, of Las Vegas, for Petitioner.
Harvey Dickerson, Attorney General, Carson City; George E. Franklin, Jr., Clark County
District Attorney, and James D. Santini, Deputy District Attorney, of Las Vegas, for
Respondent.
1. Criminal Law.
Sixth Amendment speedy trial provision applies to state criminal cases. U.S.C.A.Const. Amend. 6.
2. Criminal Law.
Where defendant challenged every charge filed against him, where he waived 60-day rule when he was
finally arraigned upon indictment, and where, after dismissal of the indictment and state's filing of new
complaint, he commenced proceeding in prohibition, defendant himself frustrated trial and his Sixth
Amendment right to speedy trial was not violated. U.S.C.A.Const.Amend. 6; NRS 178.495.
Although once an indictment is dismissed, the charge may not again be submitted to a grand jury without
express direction of the court, state may proceed by criminal complaint after dismissal of a prior
indictment. NRS 173.030.
OPINION
We are requested to forever prohibit the Justice's Court from conducting a preliminary
hearing on a criminal complaint charging Stabile with the murder of Arnold Duarte. His
petition for prohibition rests mainly on the contention that his Sixth Amendment right to a
speedy trial was violated and, subordinately, upon the premise that it is not lawful for the
State to proceed by criminal complaint, since he was previously charged by indictment which
was later dismissed. It is our judgment that these contentions are not sound. Therefore, we
deny prohibition.
On three separate occasions the State charged the petitioner with the murder of Duarte.
First, by criminal complaint which the State apparently abandoned; next, by grand jury
indictment which was later dismissed; and finally, again by criminal complaint which is the
subject of this proceeding. More than 18 months have elapsed since the original charge.
The first complaint was met by a petition for a writ of habeas corpus. The complaint was
abandoned and the petition withdrawn. The grand jury indictment was challenged by
demurrer. However, that demurrer was withdrawn pursuant to a compromise arrangement of
some kind resulting in the accused's release on bail. At arraignment, the accused entered a not
guilty plea, and requested a discovery order which the court granted. That order was to be
complied with by a date certain. Trial was set beyond 60 days, the defendant expressly
waiving the time requirement of NRS 178.495.
1
The record is not clear whether the
defendant's waiver of the 60-day rule was given in order to allow the State sufficient time to
comply with the discovery order, and we will not speculate.
After the matter was set for trial, but before the trial date, this court handed down Shelby v.
District Court, 82 Nev. 204, 414 P.2d 942 {1966).
____________________

1
NRS 178.495 provides: 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 * * * the court shall order the indictment * * *
dismissed, unless good cause to the contrary is shown.
414 P.2d 942 (1966). Shelby held, among other things, that an accused is entitled to a
transcript of the testimony of witnesses who appeared before the grand jury. A transcript was
not made in the case at hand. The record may be read to suggest that because of the Shelby
pronouncement, the district court directed defense counsel to file a petition for a writ of
habeas corpus. This was done, the writ granted, and the indictment dismissed without
prejudice to the state to file another charge. The State immediately filed a new criminal
complaint, the prosecution of which this proceeding seeks to stop.
[Headnotes 1, 2]
Since our decision in Oberle v. Fogliani, 82 Nev. 428, 420 P.2d 251 (1966), the United
States Supreme Court has extended the Sixth Amendment speedy trial provision to state
criminal cases. Klopfer v. North Carolina, 386 U.S. 213 (1967). That right no longer rests
upon mere statutory command, but is now of constitutional significance in this state.
However, our statutory law specifying times to govern the progress of a criminal case remains
as an appropriate guide to be used in resolving a speedy trial issue, and our case law
interpreting the statutory directives remains untouched by the Klopfer pronouncement. The
record of this case does not support the petitioner since the responsibility for delay is largely
attributable to him. Cf. Oberle v. Fogliani, supra. He has challenged every charge filed
against him. When finally arraigned upon the indictment he waived the 60-day rule. After
dismissal of the indictment and the State's filing of a new complaint, he commenced this
proceeding in prohibition. He has frustrated trial and may not look to the Sixth Amendment
to free him.
[Headnote 3]
Equally unsound is the subordinate contention. Although statute provides that once an
indictment is dismissed, the charge may not again be submitted to a grand jury without
express direction of the court [NRS 173.030], it does not follow that the alternate procedure
by criminal complaint is also barred. Skinner v. State, 83 Nev. 380, 432 P.2d 675 (1967); In
re Hironymous, 38 Nev. 194, 147 P. 453 (1915). The alternate procedure is permissible.
This petition for prohibition is denied.
Collins, J., Zenoff, J., Batjer, J., and Mowbray, J., concur.
____________
83 Nev. 396, 396 (1967) McCulloch Corp. v. District Court
McCULLOCH CORPORATION, a Wisconsin Corporation, Petitioner, v. THE
HONORABLE JUDGE THOMAS J. O'DONNELL, Judge of the Eighth Judicial District
Court of the State of Nevada, in and for the County of Clark, and MORRIS FOX and
MOLLIE FOX, Respondents.
No. 5324
October 19, 1967 433 P.2d 839
Petition for a writ of prohibition to prevent jurisdiction over nonresident corporation not
doing business within the state.
The Supreme Court, Zenoff, J., held that foreign corporation's former ownership of real
estate upon which plaintiff suffered fall-down accident was not sufficient to impose
continuing answerability to jurisdiction absent other circumstances. The court also held that
mere fact of stock ownership by foreign corporation in domestic corporation was not
sufficient to authorize jurisdiction over the foreign corporation.
Writ granted.
Morse & Graves, and Lee R. Rose, of Las Vegas, for Petitioner.
Foley Brothers, of Las Vegas, for Respondents.
1. Corporations.
There must be some affiliating circumstance without which courts of the state may not entertain
jurisdiction over nonresident corporations not amenable to service within borders of state; while court
adheres to the generalities of minimal contact, that contact must be of significance and it must amount to
owning property or doing business within the state. NRS 14.020, 14.030.
2. Corporations.
Foreign corporation's former ownership of real estate upon which plaintiff suffered fall-down accident
was not sufficient to impose continuing answerability to jurisdiction on the foreign corporation absent other
circumstances. NRS 14.020, 14.030.
3. Corporations.
Mere fact of stock ownership by foreign corporation in another corporation does not authorize
jurisdiction over the stockholder corporation, for to hold otherwise would be to disregard principles of
stockholder immunity. NRS 14.020, 14.030.
4. Corporations.
Where Arizona Corporation which was authorized to do business in Nevada filed certificate of fictitious
name in county clerk's office and index mistakenly listed Wisconsin corporation as owner
of property on which plaintiff fell and sustained injuries although in fact Wisconsin
corporation was merely stockholder of Arizona corporation, statute providing that
certified copy of certificate of fictitious name is prima facie evidence of facts stated
therein did not permit plaintiff to serve summons on Wisconsin corporation so listed
as owner of premises.
office and index mistakenly listed Wisconsin corporation as owner of property on which plaintiff fell and
sustained injuries although in fact Wisconsin corporation was merely stockholder of Arizona corporation,
statute providing that certified copy of certificate of fictitious name is prima facie evidence of facts stated
therein did not permit plaintiff to serve summons on Wisconsin corporation so listed as owner of premises.
NRS 14.020, 14.030, 602.050, 602.060.
5. Corporations.
Statutory provisions relating to filing of certificate of doing business under fictitious name do not apply
to corporations. NRS 602.050.
6. Evidence.
When a fact is established prima facie, it is only so established until contradicted.
OPINION
On September 23, 1962 Mollie Fox fell and sustained injuries while upon the premises of
the restaurant at Lake Mead Marina in Clark County, Nevada. She filed suit, together with her
husband who claimed loss of services and companionship. C. V. Wood, Jr., James J. Corey,
Frederic Leopold, and the petitioner, McCulloch Corporation, were named as defendants.
Service of process on McCulloch Corporation was made pursuant to NRS 14.030.
1

Petitioner moved to quash service of summons contending that the trial court had no
jurisdiction over McCulloch Corporation since that corporation does not do business in
Nevada, is not authorized or licensed to do so, and did not own property within the state at
the time of the injuries to Mollie Fox. The trial court denied the motion. Petitioner seeks a
writ of prohibition from this court to prevent the lower court from exercising further
jurisdiction.
The sole question presented by this petition is whether the McCulloch Corporation owns
property or does business in the State of Nevada within the purview of NRS 14.020,2
thereby being subject to the jurisdiction of this state and amenable to process under NRS
14.030.
____________________

1
NRS 14.030. Service of process upon foreign associations, private and municipal corporations when
failure to appoint resident agents.
1. If any such company, association or municipal corporation shall fail to appoint such agent, * * * it shall
be lawful to serve such company, association or municipal corporation with any and all legal process by
delivering a copy to the secretary of state, or, in his absence, to any duly appointed and acting deputy secretary
of state, and such service shall be valid to all intents and purposes. * * *
the State of Nevada within the purview of NRS 14.020,
2
thereby being subject to the
jurisdiction of this state and amenable to process under NRS 14.030. We think not and grant
the petition for a writ of prohibition.
[Headnote 1]
1. We acknowledged in Metal-Matic, Inc. v. District Court, 82 Nev. 263, 415 P.2d 617
(1966), citing therein International Shoe Co. v. Washington, 326 U.S. 310 (1945); McGee v.
International Life, 355 U.S. 220 (1957); and Hansen v. Denckla, 357 U.S. 235 (1958), that
since Pennoyer v. Neff, 95 U.S. 714 (1877), a jurisdictional evolution has been taking place
to such extent that the old jurisdictional landmarks have been left far behind so that in many
instances states may now properly exercise jurisdiction over nonresidents not amenable to
service within their borders. The point has not been reached, however, where state boundaries
are not without significance. There must still be some affiliating circumstances without
which the courts of the state may not entertain jurisdiction. Hansen v. Denckla, supra. Each
case depends upon its own circumstances, but while we adhere to the generalities of minimal
contact, that contact must be of significance. In this case it must amount to owning property
or doing business within this state.
[Headnote 2]
The petitioner once owned the Lake Mead Marina but divested complete ownership
several months before Mollie Fox's accident. At the time the petitioner owned the Marina the
restaurant was not in existence. Former ownership is not sufficient to impose continuing
answerability to jurisdiction absent other circumstances. (Cf. Gambs v. Morgenthaler, 83
Nev. 90, 423 P.2d 670 (1967), where the injury occurred during the period of ownership,
thereafter the property was sold and the defendant then departed this state's boundaries.)
[Headnote 3]
2. Respondents further contend that petitioner is subject to the jurisdiction of the courts of
this state because it is a stockholder of one of the other defendants, McCulloch Properties,
Inc., an Arizona corporation authorized to do business in Nevada.
____________________

2
NRS 14.620. Foreign associations, private and municipal corporations owning property, doing business
in state, to appoint resident agents.
Every incorporated company or association and every municipal corporation created and existing under the
laws of any other state, territory, or foreign government, or the Government of the United States, owning
property or doing business in this state, shall appoint and keep in this state an agent, who may be either an
individual or a domestic corporation, upon whom all legal process may be served for such corporation,
association or municipal corporation. * * *
stockholder of one of the other defendants, McCulloch Properties, Inc., an Arizona
corporation authorized to do business in Nevada. The mere fact of stock ownership by one
corporation in another does not authorize jurisdiction over the stockholder corporation. To
hold otherwise would be to disregard the principles of stockholder immunity and would
further lead to the impractical result of holding all stockholders of any corporation
responsible in the event of an injury on corporate property. Cannon Manufacturing Co. v.
Cudahy Packing Co., 267 U.S. 333 (1925); Consolidated Textile Corp. v. Gregory, 289 U.S.
85 (1933); Ludwig v. General Binding Corp., 21 F.R.D. 178, 181 (Wis. 1957).
[Headnotes 4-6]
3. According to the affidavits supporting petitioner's motion to quash, on March 30, 1962
McCulloch Properties, Inc. filed a certificate of fictitious name in the office of the County
Clerk of Clark County, Nevada, in compliance with NRS 602.050.
3
The index mistakenly
listed McCulloch Corporation as owner of Lake Mead Marina. Apparently respondent relied
upon the index when the suit was commenced without referring to the certificate. McCulloch
Corporation, though listed as an owner, was in truth only a stockholder.
Respondents contend that the provision of NRS 602.060 which provides that a certified
copy of the certificate of fictitious name is prima facie evidence of the facts stated therein is
conclusive, but it is well recognized that when a fact is established prima facie, it is only so
established until contradicted. The contradictions in this case presented by the supporting
affidavits and other information in the record, i.e., interrogatories, copies of certificates of
fictitious name, overcome the statutory implication.
The petition for a writ of prohibition is granted.
Thompson, C. J., Collins, J., Batjer, J., and Mowbray, J., concur.
____________________

3
NRS 602.050. County clerk's registration book and fees.
1. Every county clerk must keep, in alphabetical order, in a book or other suitable index provided for that
purpose:
(a) A register of all the names of such businesses, or fanciful or fictitious designations, as shown in the
certificates.
(b) The name of each person shown to be interested in or a partner in such business.
2. Every county clerk shall charge for each firm name entered a fee of $1, which shall be full compensation
for filing and registration.
____________
83 Nev. 400, 400 (1967) Briggs v. Zamalloa
IAN A. BRIGGS, Appellant, v. ARNOLD
ZAMALLOA, Respondent.
No. 5311
October 24, 1967 432 P.2d 672
Appeal from the Eighth Judicial District Court, Clark County; George E. Marshall, Judge.
Action brought against house construction financier by house builder, who was not a
licensed contractor, for payment for his labor in constructing the house. Financier raised
affirmative defense of builder's lack of a contractor's license, and also filed counterclaim
based on note executed in his favor by the builder. Trial court rendered judgment in favor of
both claimant and counterclaimant on their respective claims, and offset the judgments with
the net effect that builder recovered judgment in the amount of $2,539.39. Financier appealed
and builder cross-appealed. The Supreme Court, Collins, J., held that substantial conflicting
evidence supported findings of trial court that contract between builder of house and financier
was one for labor, thus obviating necessity of builder being a licensed contractor, and that the
financier, payee of promissory note executed by builder, but did waive 10 percent per annum
interest provision of the note.
Affirmed.
Alvin N. Wartman, of Las Vegas, for Appellant.
Hawkins & Cannon, of Las Vegas, for Respondent.
1. Interest; Licences.
Substantial conflicting evidence supported findings of trial court that contract between builder of house
and financier was one for labor, thus obviating necessity of builder being a licensed contractor, and that the
financier, payee of promissory note executed by builder, did not waive 10 percent per annum interest
provision of the note. NRS 624.320.
Initial determination of status of person is question of fact, depending upon all circumstances of parties'
relations, and when those circumstances disclose mixed relationship of employment, finding of trial court
based on substantial and competent evidence cannot be disturbed on review.
Function of Supreme Court is not to readjust factual findings specifically determined by lower court.
Factual findings of trial court will be sustained at appellate level if there is any substantial evidence
supporting them.
OPINION
Appellant (defendant below) appeals from a judgment of the trial court on a construction
contract awarding respondent (plaintiff below) $10,740. Respondent cross appeals from a
judgment for appellant, through his counterclaim below based upon a promissory note, in the
amount of $8,200.61. These judgments were offset by the trial court and respondent
recovered a net judgment against appellant in the amount of $2,539.39. We sustain the action
of the trial court and affirm the net judgment for respondent.
In 1958 the parties entered into a written contract, prepared by appellant, which provided:
(1) Briggs would obtain a lease for a certain piece of real property; (2) Zamolloa would build
a house on the land, using his labor as much as possible, and for his labor and supervision
would be compensated at $4 per hour; (3) Briggs would pay all bills for materials and labor as
they became due, with the exception of zamalloa's labor; (4) Briggs would receive payment
for all furniture and carpets supplied and sold with the house; (5) Briggs would receive 10
percent interest on all moneys advanced by him; and (6) any profit remaining from the sale of
the house, after deducting the foregoing items, would be divided between the parties equally.
Zamalloa had no contractor's license. Nothing was said by either party about that matter, nor
was it included as a requirement in the contract.
The land was acquired, apparently in fee, and Zamalloa commenced work upon the house.
He kept time cards and evidence of expenses incurred. He bought supplies on the account of
Briggs and a third party. He worked upon the house and supervised others in the actual
construction. He consulted with briggs on substantial decisions. Briggs paid most of the labor
and material bills.
The parties contemplated that it would require one and one-half years to build the house. It
actually required four and one-half years to complete. It was then listed with a real estate
broker for sale, who had difficulty locating a buyer. The house, valued at $28,000, was finally
sold for $12,000 and the equity in the buyer's home. Zamalloa objected to the value assigned
the buyer's home in the trade, but accepted it when told by briggs the transaction was
consummated.
value assigned the buyer's home in the trade, but accepted it when told by briggs the
transaction was consummated. Briggs, who handled the entire sales transaction offered the
equity in the traded home to Zamalloa as his compensation. Zamalloa refused the offer.
Briggs then received the $12,000 and took title to the traded home in his own name, paying
Zamalloa $500.
Prior to these events, and in an entirely separate transaction in 1955, Zamalloa borrowed
$5,875 from Briggs and gave him a note payable at $75 per month, bearing 10 percent interest
per annum. It was secured by a deed of trust on zamalloa's home. Regular payments were
made on the note until 1959 when Zamalloa informed Briggs he could no longer meet the
monthly amounts. Briggs orally agreed to credit Zamalloa's payments from the house under
construction, when sold, and treat that payment as if made in accordance with the terms of the
note.
In 1962 Zamalloa commenced a suit against briggs seeking payment for his labor in
constructing the house. Briggs denied owing zamalloa anything and affirmatively raised the
defense of Zamalloa's lack of a contractor's license as provided in Chapter 624 NRS. Briggs
also sought by counterclaim to recover $4,546.20 principal and interest at 10 percent per
annum from December 1959 to date of the judgment on Zamalloa's note. The trial was held in
1963, but the judgment was not entered until 1966.
The trial court found for Zamalloa in his action against Briggs and ruled the 1958 contract
was one for hiring of labor, thereby freeing Zamalloa of the necessity of alleging and proving
a contractor's license (NRS 624.320); found Briggs owed him $10,740 ($11,240 less $500
previously paid), and entered judgment in that amount. The court also found against a theory
advanced by Briggs that they were joint adventurers.
On Brigg's counterclaim, the court rejected Zamalloa's contention of forgiveness of interest
on Zamalloa's note, rejected setoffs of the amount owed prior to liquidation of the sums, and
awarded Briggs judgment against Zamalloa for $4,546.20 principal, plus interest at 10 percent
per annum from 1959 to the date of judgment in 1966 of $3,654.41, or a total of $8,200.61.
The court then offset these respective judgments and entered judgment in favor of
Zamalloa against briggs for $2,539.39 and ordered reconveyance to Zamalloa under the
Briggs deed of trust. The parties appeal from the respective judgments in favor of the other.
The issues thus presented for our determination are:
(1) Was the finding by the trial court that the contract was one for labor incorrect as a
matter of law?
(2) Was the trial court's judgment awarding interest on Zamalloa's note to briggs from
1959 to date of judgment correct as a matter of law?
[Headnotes 1-4]
Appellant contends vigorously we should rule from the record before us that Zamalloa was
either a contractor, requiring a license, or a joint adventurer with Briggs which would alter
substantially the judgments entered. Appellant asks us to distinguish the leading California
case of Norwood v. Judd, 209 P.2d 24 (Cal. 1949), followed by our court in Magill v. Lewis,
74 Nev. 381, 333 P.2d 717 (1958), and a later California case of Denton v. Wiese, 300 P.2d
746 (Cal. D.C.A. 1956), from the issue presented in this appeal. That point is not reached in
this case. We conclude, as held in Denton v. Wiese, supra, the initial determination of the
status of a person is a question of fact, depending upon all the circumstances of the parties'
relations. In Denton the California court quoted from Frugoli v. Conway, 213 P.2d 76, 78
(Cal. D.C.A. 1950), which held, When those circumstances disclose a mixed relationship of
employment, the finding of the trial court based on substantial and competent evidence
cannot be disturbed. We said in Bartsas Realty, Inc. v. Leverton, 83 Nev. 87, 423 P.2d 397
(1967), It is not the function of this court to readjust factual findings specifically determined
by the court below. Utter v. Casey, 81 Nev. 268, 401 P.2d 684 (1965). We also held in
Lawry v. Devine, 82 Nev. 65, 67, 410 P.2d 761 (1966), It is well established that the factual
findings of the trial court will be sustained at the appellate level if there is any substantial
evidence supporting them. Friendly v. Larsen, 62 Nev. 135, 144 P.2d 747 (1944); Close v.
Redelius, 67 Nev. 158, 215 P.2d 659 (1950). If we were to conclude as a matter of law the
contract was not one for labor hire as found by the trial court, we could not thereafter resolve
the facts ourselves and say it was either a contractor relationship or a joint adventure. We
would be obligated to remand the matter for a new trial.
For the same reason cited above, we sustain the trial court's judgment on Briggs'
counterclaim on the note. There was substantial conflicting evidence to support the trial
court's determination that there was no waiver of the interest by Briggs.
We are unable to say, as a matter of law, the trial court committed any error in the
manner in which it resolved the issues.
committed any error in the manner in which it resolved the issues.
Judgments affirmed.
____________
83 Nev. 404, 404 (1967) Harris v. State
EDWARD MARK HARRIS, Appellant, v. THE
No. 5303
October 25, 1967 432 P.2d 929
Appeal from conviction for possession of a tear gas weapon in violation of NRS 202.380.
Second Judicial District Court, Washoe County; John W. Barrett, Judge.
Defendant was convicted by lower court of possession of a tear gas weapon in violation of
statute, and he appealed. The Supreme Court, Zenoff, J., held that statute making it unlawful
to be in possession of tear gas pen is not unconstitutional. The Court further held that
defendant had no standing to challenge constitutionality of another statute allowing director
of highway patrol to issue permit for possession of tear gas weapon upon a showing of good
cause.
Affirmed.
Melvin Schaengold, of Reno, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and Virgil D.
Dutt, Deputy District Attorney, Washoe County, for respondent.
1. Weapons.
Second amendment of United States Constitution applies only to federal government and does not restrict
state action. U.S.C.A.Const. Amend. 2.
2. Weapons.
Right to bear arms does not apply to private citizens as an individual right. U.S.C.A.Const. Amend. 2.
3. Weapons.
Absent state or federal constitutional restrains, authority of states to regulate weapons comes from their
police powers.
4. Weapons.
Tear gas pens are a proper subject for state regulation. NRS 202.400 5.
5. Weapons.
Statute making it a crime to be in possession of tear gas pen is not unconstitutional as an infringement of
Second Amendment. NRS 202.380; U.S.C.A.Const. Amend. 2.
6. Weapons.
Violation of statute prohibiting possession of tear gas pen is distinct from violation of statute allowing
director of highway patrol to issue permit for possession of tear gas pen upon a showing of good cause.
NRS 202.380, 202.400.
Defendant convicted of possession of tear gas weapon in violation of statute had no standing to challenge
constitutionality of another statute allowing director of highway patrol to issue permit for possession of tear
gas weapon upon a showing of good cause. NRS 202.380, 202.400.
8. Criminal Law.
Requested instruction must properly state the law.
9. Weapons.
Possession statutes require no particular scienter, only knowledge of presence and character of object,
and it is not necessary that there be knowledge on defendant's part that possession was in violation of a
statute.
10. Weapons.
Refusal to give instructions in prosecution for possession of tear gas weapon did not constitute error
where instructions erroneously recited that before defendant could be found guilty it must be found that
defendant had a knowledge and a purpose to do wrong and that the act was done with a bad purpose or
without justifiable excuse. NRS 202.380.
OPINION
This is an appeal from the conviction of Edward Mark Harris for the possession of a tear
gas weapon in violation of NRS 202.380.
On July 27, 1966 Harris entered a super market in Reno and was observed by store
personnel to be shoplifting several cartons of cigarettes. A police officer was summoned. The
officer placed him under arrest and searched him. The search produced a tear gas pen. He was
convicted for possession of a tear gas device in violation of the statute. This appeal followed.
We affirm.
1. As his first assignment of error Harris challenges the constitutionality of NRS 202.380
1
as an infringement of the Second Amendment of the U. S. Constitution.
____________________

1
NRS 202.380. Sale, possession of tear gas bombs, weapons without permit unlawful; exceptions.
1. After March 26, 1955, every person, firm or corporation who
Second Amendment of the U. S. Constitution. The amendment reads: A well-regulated
militia, being necessary to the security of a free state, the right of the people to keep and bear
arms, shall not be infringed.
[Headnotes 1, 2]
That amendment applies only to the Federal Government and does not restrict state action.
United States v. Cruikshank, 92 U.S. 542 (1875); Presser v. Illinois, 116 U.S. 252 (1886).
The right to bear arms does not apply to private citizens as an individual right. United States
v. Miller, 307 U.S. 174 (1938); Cases v. United States, 131 F.2d 916 (1st Cir.) cert. denied
319 U.S. 770 (1942), rehearing denied 324 U.S. 889 (1945); United States v. Tot, 131 F.2d
261 (3rd Cir. 1942), reversed on other grounds 319 U.S. 463 (1943); United States v. Adams,
11 F.Supp. 216 (S.D.Fla. 1935).
[Headnotes 3-5]
2. In the absence of state or federal constitutional restraints authority of the states to
regulate weapons comes from their police powers. Biffer v. City of Chicago, 116 N.E. 182
(Ill. 1917); People v. Brown, 235 N.W. 245 (Mich. 1931). Tear gas pens are a proper subject
for state regulation. People v. Anderson, 260 N.Y.S. 329 (1932); Village of Barboursville ex
rel. Bates v. Taylor, 174 S.E. 485 (W.Va. 1934).
3. Further, the appellant seeks to declare NRS 202.400
2
an unconstitutional delegation of
authority because it enables the Director of the Nevada Highway Patrol to issue permits for
these devices "upon proof that good cause exists for issuance thereof," urging this statute
affects the validity of NRS 202.3S0.
____________________
within the State of Nevada knowingly sells or offers for sale, possesses or transports any form of shell, cartridge
or bomb containing or capable of emitting tear gas, or any weapon designed for the use of such shell, cartridge
or bomb, except as permitted under the provisions of NRS 202.370 to 202.440, inclusive, shall be guilty of a
felony, and upon conviction thereof shall be punished by imprisonment in the state prison for a term not to
exceed 2 years or by a fine not to exceed $2,000, or by both fine and imprisonment. * * *

2
NRS 202.400. Permit for possession, transportation, protective system, to be issued by director of Nevada
Highway Patrol.
1. It shall be lawful for the director of the Nevada Highway Patrol to issue a permit for the possession and
transportation of such shells, cartridges, bombs or weapons upon proof to the director that good cause exists for
the issuance thereof to the applicant for such permit.
2. The permit may also allow the applicant to install, maintain and operate a protective system involving
the use of such shells, cartridges, bombs or weapons in any place which is accurately and completely described
in the application for the permit.
for these devices upon proof that good cause exists for issuance thereof, urging this statute
affects the validity of NRS 202.380. However, Harris was not charged under that statute. He
was charged and convicted of violating NRS 202.380, having the tear gas pen in his
possession.
[Headnotes 6, 7]
A violation of the possession statute is distinct from violation of the permit statute.
Castellano v. United States, 350 F.2d 852 (10th Cir. 1965); certiorari denied, 383 U.S. 949
(1966); see also Haynes v. United States, 372 F.Supp. 651 (5th Cir. 1967), now before the
U.S. Supreme Court. Harris never made application for a permit. Thus, it is not necessary to
determine the validity of NRS 202.400 since the appellant's rights are not affected. He is
without standing to challenge the constitutionality of that statute. Ex parte Zwissig, 42 Nev.
360, 178 P.2d (1919).
4. The appellant contends the lower court committed reversible error in refusing to give
two requested instructions, to wit:
1. You are instructed that the word, knowingly,' as used in NRS 202.380, implies on the
part of the defendant a knowledge and a purpose to do wrong and unless you find in the
evidence that the defendant had no reasonable grounds for believing his possession of a tear
gas pen to be lawful he is entitled to be acquitted.
2. You are instructed that the word, wilful,' as used in these instructions means an act
done with a bad purpose or without justifiable excuse or without ground for believing that the
conduct for which the defendant is charged was lawful.
[Headnote 8]
Citations are unnecessary for the proposition that requested instructions must properly
state the law. The appellant can claim no right to have requested instructions given when they
do not correctly state the law. Without such right a refusal is not error.
[Headnotes 9, 10]
The requested instructions do not correctly state the law regarding the possession of
weapons. Possession statutes require no particular scienter, only knowledge of the presence
and character of the object. It is not necessary that there be knowledge on the defendant's part
that possession was in violation of a statute. United States v. DePugh, 266 F.Supp. 417
(W.D.Mo. 1967); People v. Prochnau, 59 Cal.Rptr. 265 {Dist.Ct.App.
(Dist.Ct.App. 1967); People v. Weisman 229 N.Y.S.2d 171 (1962); People v. Taylor, 40 P.2d
895 (Cal. 1935).
Affirmed.
Thompson, C. J., Collins, J., Batjer, J., and Mowbray J., concur.
____________
83 Nev. 408, 408 (1967) Ferguson v. Krepper
JANE ANN FERGUSON, Appellant, v. CARL
PHILLIP KREPPER, Respondent.
No. 5299
October 27, 1967 432 P.2d 668
Appeal from an order of the Eighth Judicial District Court, Clark County; Clarence
Sundean, Judge.
Habeas corpus proceeding by father of minor children to obtain their custody. The lower
court entered an order giving full faith and credit to earlier Oklahoma court order transferring
custody to the father and the mother appealed. The Supreme Court, Mowbray, J., held that
order of Oklahoma court modifying original divorce decree provision to give custody of
minor children to their father did not have to be given full faith and credit by Nevada court,
since Oklahoma court had summarily issued order without any showing of a change of
circumstances which would justify modification of original provision which gave custody to
the mother.
Reversed.
Galane & Wines, of Las Vegas, for Appellant.
Babcock & Sutton, of Las Vegas, for Respondent.
1. Divorce.
Under Oklahoma law, provisions for care, custody, and control of minor children may not be modified
unless there is a showing of change in circumstances which would support a modification order.
2. Divorce.
Order of Oklahoma court, modifying its original divorce decree provision to give custody of minor
children to their father did not have to be given full faith and credit by Nevada court, since Oklahoma court
had summarily issued order without any showing of a change of circumstances which would justify
modification of original provision which gave custody to the mother.
3. Infants.
Welfare and interest of minor children should be given paramount consideration by court before change
in custody is made, and evaluation of physical, material, and educational needs of
children must be made by court having maximum access to relevant evidence.
and evaluation of physical, material, and educational needs of children must be made by court having
maximum access to relevant evidence.
4. Divorce.
Nevada court was not precluded from hearing issue of change of custody of children domiciled with their
mother in Nevada after Oklahoma court divorce decree had given their custody to their mother.
OPINION
Appellant Jane Ann Ferguson seeks to reverse an order entered in a habeas corpus
proceeding which gave full faith and credit to an earlier Oklahoma order transferring custody
of the parties' minor daughters from appellant to respondent.
On September 21, 1962, an Oklahoma court granted Jane Ann Krepper (now Ferguson) a
divorce from her husband, Carl Phillip Krepper, and custody of her two minor daughters,
Marie Ann, age 4 years, and Michelle Ann, age 1 1/2 years.
In August 1965, appellant, with the children, moved to Nevada where she established and
still maintains a permanent residence.
Shortly thereafter respondent moved to Texas where he resided for a brief period and then
to Arizona where he established and presently maintains his residence.
On June 29, 1966, respondent filed in the original divorce proceeding in Oklahoma a
Motion to Modify the Divorce Decree, seeking the temporary custody of the children from
the 27th or 28th of July 1966 until the last week of August 1966 and for further visiting
privileges during Christmas vacations and summer months.
The hearing on the motion was set for July 22, 1966. Appellant was given notice of the
hearing by mail directed to her Nevada address and she appeared through Oklahoma counsel,
Messrs. Garrett and Pierson, although she personally did not attend the hearing.
The Oklahoma court filed its order on July 29, 1966, providing that, Order heretofore
entered in this cause be modified insofar as it pertains to the right of the defendant
[respondent herein] to visit his minor children and the defendant is granted visiting privileges
each weekend, commencing July 23, 1966, from 9:00 a.m. until 5:00 p.m. of the following
Sunday, and each Wednesday thereafter from 9:00 a.m. until 5:00 p.m. The Oklahoma order
then concluded: It is further ordered that said cause be continued for further hearing on
application of the defendant for visiting privileges with his said children.
of the defendant for visiting privileges with his said children. The date of the trial to be
agreed upon by the parties, or if no agreement can be reached, the date will be set by this
court.
The Oklahoma court did, on October 14, 1966, order the hearing on defendant's motion for
visiting privileges set for 10:00 a.m., November 4, 1966. Appellant's counsel was given
notice of the hearing but failed to appear. The hearing was continued without further notice
for 3 days until November 7, 1966.
Neither appellant nor her counsel was present for the November 7 hearing. Nevertheless,
the Oklahoma court proceeded to hear the matter on November 7, and at the conclusion of the
hearing entered its order transferring total custody of the two minor daughters to respondent
and ordering appellant in Nevada to deliver the children to respondent and providing further:
That he [respondent herein] be permitted to and [is] authorized by order of this court to
remove said children to Phoenix, Arizona, where he is now residing.
The Oklahoma record is completely void of any showing that there had been a change of
circumstances which would sustain a finding that such a custodial change was in the best
interest of the children.
Respondent then proceeded to Nevada where he sought to enforce his custodial rights as
set forth in the Oklahoma order of November 7, by a habeas corpus proceeding filed
December 9, 1966, in Nevada.
The hearing on the habeas corpus proceeding occurred on December 20, 1966. Both
parties, the children, and counsel were present.
The sole evidence received was an exemplified copy of the Oklahoma order of November
7, 1966. The court below granted respondent's petition and ordered the minor daughters
forthwith delivered to respondent for removal to Arizona. The lower court was of the opinion
that Nevada was bound to give full faith and credit to the Oklahoma order.
For the reasons hereinafter set forth we hold that Nevada was not bound to give full faith
and credit to the Oklahoma order and further that the Nevada court was not precluded from
hearing the issue of custody.
The record shows that there may be a question as to whether procedural due process
requirements were met in notifying the appellant or her counsel of the desire to change
custody.
We choose not to discuss this issue, since it is our opinion that the Oklahoma court was
without power to change custody in the absence of a change of circumstances.
[Headnote 1]
The law in Oklahoma is well established that provisions for the care, custody, and control
of minor children may not be modified unless there is a showing of a change in circumstances
which would support a modification order. See Eby v. Eby, 347 P.2d 1036 (Okl. 1959).
In Ness v. Ness, 357 P.2d 973, 975 (1960) the Oklahoma court said:
The provisions for care and custody of minor children may not be modified unless it be
shown that the circumstances of the parties have changed or unless material facts are
disclosed, which were either unknown or could not have been ascertained with reasonable
diligence at the time when the last prior determination was made. See Duffy v. King, Okl.,
350 P.2d 280 and cases cited therein. Also, Sinclair v. Sinclair, 392 P.2d 750 (Okl. 1964);
Davis v. Davis, 424 P.2d 76 (Okl. 1967).
[Headnote 2]
The Oklahoma court without any showing whatsoever of any change of circumstances did
on November 7, 1966 and without the presence of the appellant or her counsel summarily
enter its order transferring the custody of the minor daughters from their mother to the
respondent.
In Kovacs v. Brewer, 356 U.S. 604, 607 (1958), the Supreme Court of the United States
held:
Whatever effect the Full Faith and Credit Clause may have with respect to custody
decrees, it is clear, as the Court stated in Halvey, that the State of the forum has at least as
much leeway to disregard the judgment, to qualify it, or to depart from it as does the State
where it was rendered.' 330 U.S., at 615. Petitioner concedes that a custody decree is not res
judicata in New York if changed circumstances call for a different arrangement to protect the
child's health and welfare. * * *.
[Headnotes 3, 4]
It is, after all, the welfare and interest of the minor children which should be given
paramount consideration by the court before a change in custody is made, and in doing so it is
necessary that evaluation of the physical, material, and educational needs of the children must
be made by the court having maximum access to relevant evidence. See Lyerla v. Ramsay, 82
Nev. 250, 415 P.2d 623 (1966).
Reversed and remanded for a custody hearing on the merits.
____________
83 Nev. 412, 412 (1967) Morris v. Morris
BETTY ELIZABETH MORRIS, Appellant, v. JAMES
WILLIAM MORRIS, Respondent.
No. 5294
November 1, 1967 432 P.2d 1022
Appeal from the Eighth Judicial District Court, Clark County; Merwyn H. Brown, Judge.
Action for divorce. The trial court entered a judgment granting a divorce to the husband
without an award of alimony to his wife and the wife appealed. The Supreme Court, Collins,
J., held that refusal to consider issue of alimony or grant appropriate relief for alimony to wife
did not constitute error where record indicated absolutely no effort, directly or indirectly, to
place issue of alimony before court in meaningful, understandable way.
Affirmed.
C. R. Tice and Michael L. Hines, of Las Vegas, for Appellant.
McNamee, McNamee & Rittenhouse, of Las Vegas, for Respondent.
1. Pleading.
Import of Rules of Civil Procedure is to enable litigants to try fully their issues before the court whether
raised expressly by pleadings or not.
2. Divorce.
Refusal to consider issue of alimony or grant appropriate relief for alimony to wife in divorce action did
not constitute error where record indicated absolutely no effort, directly or indirectly, to place issue of
alimony before court in meaningful, understandable way. NRCP 15(a-d), 54(c).
3. Appeal and Error; Trial.
Rule abolishing necessity for formal exceptions and rule against general objections relates not to ability
of trial court to sustain objection but to preservation of issue for appeal if objection is overruled. NRCP
46.
4. Trial.
When evidence is clearly objectionable and there is no theory under which it may properly be admitted,
general objection is proper. NRCP 46.
5. Divorce.
Where during cross-examination of husband in divorce action, wife's counsel asked him questions about
money he had formerly sent his wife, general objection was sustained by court to line of questioning, with a
comment by judge that questions were irrelevant because alimony had not been requested and wife's
counsel accepted ruling and indicated he was not aware alimony had not been sought,
wife's counsel, by his inaction and acquiescence in ruling failed to preserve alimony
issue for consideration on appeal.
accepted ruling and indicated he was not aware alimony had not been sought, wife's counsel, by his
inaction and acquiescence in ruling failed to preserve alimony issue for consideration on appeal. NRCP
46.
OPINION
This is an appeal from a judgment granting divorce to a husband without an award of
alimony to his long-time wife, when she neither pleaded facts showing her need, the
husband's ability to pay alimony, nor prayed for such relief. A subordinate question involves
the correctness of a ruling on a general objection under NRCP 46. We find no error and
sustain the judgment.
Appellant wife (defendant below) and respondent husband (plaintiff below) were married
in 1937. In 1965, after a separation of some 10 years, the husband commenced this action for
divorce. His complaint alleged residency in Nevada, the marriage, the absence of minor
children, the lack of community property and the mental cruelty of the wife. The wife was
personally served with substitute process in another jurisdiction. She appeared personally
through counsel and, without making any preliminary motions, answered the husband's
complaint. She denied his Nevada residence upon information and belief, denied the lack of
community property and the existence of mental cruelty toward the husband and alleged she
was without funds and entitled to an award of $500 attorney's fee. Her sole prayer was that
the husband take nothing by his complaint and that it be dismissed. There were no allegations
of fact in her answer that she needed support from the husband or that he had the ability to
pay. She filed no counterclaim.
A trial was had. The husband appeared in person and with his counsel. The wife appeared
only through counsel. During cross-examination of the husband, the wife's counsel asked him
questions about money he had formerly sent his wife. A general objection to that line of
questioning by the husband's counsel was sustained by the court, with a comment by the
judge that the questions were irrelevant because alimony had not been requested. The wife's
counsel accepted the ruling and indicated he was not aware alimony had not been sought. He
asked one other question and ended his cross-examination. At no time during the trial did the
wife's counsel ask to amend his pleadings or prayer to include the necessary allegations for
alimony, offer to make proof of facts which would either support an amendment to the
pleadings seeking alimony or support an award of alimony or take any other action
directly or indirectly to put that issue before the court.
alimony, offer to make proof of facts which would either support an amendment to the
pleadings seeking alimony or support an award of alimony or take any other action directly or
indirectly to put that issue before the court. No testimony or evidence was offered on behalf
of the wife.
The court thereupon granted judgment of divorce to the husband in accordance with his
prayer. No relief was accorded the wife.
The main issue presented by this appeal is the correctness of the trial court's ruling in
sustaining the objection to testimony directed to the issue of alimony. A lesser issue deals
with the legal propriety of an objection in general form.
[Headnote 1]
The clear import of the Nevada Rules of Civil Procedure is to enable litigants to try fully
their issues before the court, whether raised expressly by the pleadings or not. NRCP 15(a),
(b), (c) and (d) indicate the great liberality with which pleadings can be amended and issues
raised before, during or after trial. Furthermore, NRCP 54(c) directs that, 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. This court discussed the liberality of NRCP 54(c) in
Magill v. Lewis, 74 Nev. 381, 387, 333 P.2d 717 (1958), and pointed out the great elasticity
of the rule. But even these rules are not without some limitations.
[Headnote 2]
This record indicates absolutely no effort, directly or indirectly, to place the issue of
alimony before the court in a meaningful, understandable way. We cannot expect or require
our trial court to be clairvoyant about issues which may lurk in the minds of counsel or his
client. Under rules of pleading and practice more must be done than is shown by this record
before we can say the trial court erred in failing to consider an issue, or grant appropriate
relief.
[Headnotes 3-5]
Appellant also urges that the trial court erred under NRCP 46 in sustaining the general
objection of the husband's counsel to the questions on cross-examination recited above. This
contention is without merit. NRCP 46 and the rule against general objections relate not to the
ability of the trial court to sustain the objection, but to the preservation of the issue for appeal
if the objection is overruled.
if the objection is overruled. When evidence is clearly objectionable and there is no theory
under which it may properly be admitted (as it was here without further action or effort by the
wife's counsel), such objections are proper. If it was the purpose and object of the wife's
counsel to inject alimony as an issue in the trial, his inaction and acquiescence in the ruling
failed to preserve the point for our consideration on appeal.
Thompson C. J., Zenoff, J., Batjer, J., and Mowbray, J., concur.
____________
83 Nev. 415, 415 (1967) Cobb v. Osman
HARRY COBB and SONIA LUBIN COBB, Appellants,
v. VERA OSMAN, Respondent.
No. 5278
November 3, 1967 433 P.2d 259
Wines, Judge.
Grantor brought action to recover damages from grantee for breach of agreement to
purchase apartment building. The lower court held that grantor's action for damages was not
maintainable and entered judgment for grantee. Grantor appealed. The Supreme Court,
Wright, D. J., held that grantor of apartment buildings, as promisee of grantee's promises in
escrow instructions and agreement and in deed to pay as part of the purchase price for the
apartment buildings second deed of trust covering both the apartment buildings grated and
other unimproved land and lots retained by grantor was entitled to enforce that contract to pay
the second deed of trust.
Reversed with directions to enter judgment for plaintiffs-appellants.
[Rehearing denied February 5, 1968; lower court directed to further modify its judgment
granting interest to appellants at the rate of 7 percent per annum from the date of the
commencement of their action.]
Lionel and Sawyer, of Las Vegas, for Appellants.
Johnson and Steffen, of Las Vegas, for Respondent.
83 Nev. 415, 416 (1967) Cobb v. Osman
1. Mortgages.
Agreement, contained in deed, to pay mortgage or mortgages is binding upon grantee who accepts the
deed.
2. Mortgages.
Grantee's assumption of mortgage may be contained in written instrument separate from deed.
3. Mortgages.
Grantor of apartment buildings, as promisee of grantee's promises in escrow instructions and agreement
and in deed to pay, as part of the purchase price for the apartment buildings, second deed of trust covering
both the apartment buildings granted and other unimproved land and lots retained by grantor, was entitled
to enforce that contract to pay the second deed of trust and breach of the promise subjected grantee to suit
for damages, even though grantor was not personally liable for principal.
4. Mortgages.
Measure of damages for grantee's breach of promise to pay a second deed of trust covering both
apartment buildings granted and other land retained by grantor was the amount paid by grantor to preclude
foreclosure of the second deed of trust on lands retained by him but not exceeding the value of that land.
5. Interest.
Statutory interest of 7 percent per annum is allowed where claim is a liquidated claim and there is an
obligation to pay or amount due can be ascertained by computation. NRS 99.040.
6. Interest.
Interest cannot be allowed where claim is unliquidated. NRS 99.040.
7. Interest.
Where the amount grantor would have to pay to preclude foreclosure of second security deed on his land,
after grantee's breach of promise to pay the indebtedness, could not have been known at time grantee
agreed to pay the second security deed and the liability of grantee did not become known until final
judgment and agreement between grantor and grantee did not provide for interest, grantor was not entitled
to recover from grantee interest grantor actually paid to prevent foreclosure or to recover legal rate of
interest from time grantor agreed to pay mortgagee but he was entitled to interest at the legal rate from
entry of judgment. NRS 99.040.
8. Mortgages.
Where grantor agreed to pay mortgagees to preclude foreclosure of second security deed which also
encumbered land retained by grantor and which grantee promised to pay, grantor was not a mere volunteer
of the payment, though grantor was not personally liable to mortgagees, and he was entitled to collect from
grantee the amount he had paid to prevent the foreclosure.
9. Payment.
One who pays amount to save his interest in property is not a volunteer of that payment.
10. Damages.
In actions for damages arising out of breach of contract or tort, burden is upon party whose wrongful act
caused damages complained of to prove anything in diminution of damages or that the
damages might have been lessened by reasonable diligence on the part of the
aggrieved party.
83 Nev. 415, 417 (1967) Cobb v. Osman
complained of to prove anything in diminution of damages or that the damages might have been lessened
by reasonable diligence on the part of the aggrieved party.
11. Mortgages.
There was no showing that grantor acted imprudently or without due care in paying an amount to prevent
mortgagee from foreclosing a second security deed on property retained by grantor so as to prove a
diminution of damages grantor could recover from grantee who had promised to pay the indebtedness.
Supreme Court has power to modify or reverse judgment and order judgment to be entered by trial court.
OPINION
By the Court, Wright, D. J.:
Cobb brought an action to recover damages from Osman for breach of an agreement to
purchase the Esquire Apartment building in Las Vegas. The issue is whether an action for
damages is maintainable. The district court ruled that it was not, and entered judgment for
Osman. This appeal followed. We reverse with directions.
On June 4, 1956, the date of the sale to Osman, Cobb, the appellants, owned the Esquire
Apartments in Las Vegas, Nevada, subject to the following encumbrances:
(1) A first deed of trust, dated December 1, 1955, in favor of Silver State Savings and
Loan Association, securing a promissory note for $135,000, and which, at the time of the
sale, was reduced to $132,279.69, principal.
(2) A second deed of trust and chattel mortgage dated May 23, 1956 to Phil Shanedling
and Philip Dworsky (hereinafter called second mortgagees, S & D) securing a promissory
note for $35,000. This deed of trust covered the Esquire Apartments (Parcel 1) and also two
other parcels of property owned by Cobb.
The promissory note to S & D provided: The payee of this note will look only to the
security contained in the deed of trust and chattel mortgage for payment thereof and the
undersigned payor (Cobb) shall not be personally responsible for the payment of said
principal or interest.
On June 4, 1956, Cobb and Osman entered into an escrow agreement wherein Cobb sold
to Osman the Esquire Apartments, including the furniture, furnishings and fixtures therein for
the sum of $187,538.38. There was no cash down payment, but Osman conveyed the equity
in her two houses in Las Vegas valued at $20,25S.69, thus leaving a balance of
$167,279.69, the same amount as the unpaid balance on the first and second deeds of
trust.
83 Nev. 415, 418 (1967) Cobb v. Osman
Las Vegas valued at $20,258.69, thus leaving a balance of $167,279.69, the same amount as
the unpaid balance on the first and second deeds of trust.
In accordance with the escrow agreement, Cobb executed and delivered a deed and bill of
sale to Osman for the Esquire Apartments and personal property and Osman took possession
about June 15, 1956.
The deed provided that the property was subject to:
(1) Deed of Trust of record executed by Harry Cobb, given to secure his note in the
original sum of $135,000 in favor of Silver State Savings and Loan Association; the unpaid
portion of principal and interest of which the Grantee herein assumes and agrees to pay as
part of the purchase price for the above described property.
(2) Deed of Trust of record executed by Grantors herein, given to secure their note in the
original sum of $35,000 in favor of Phil Shanedling, as to an undivided sixty percent (60
percent) interest; and Philip Dworsky, as to an undivided forty per cent (40 percent) interest;
the unpaid portion of principal and interest of which the Grantee herein assumes and agrees
to pay as part of the purchase price for the above described property.
Before the close of escrow, Osman was furnished with a copy of the amounts due on the
first and second deeds of trust and notes secured, list of tenants, and the amount of rent
therefrom.
She collected rents but did not make any payments on either of the deeds of trust.
About August 1, 1956, the second mortgagees, S & D, bought the first mortgage and note
for $152,139.11, which included the balance owing them on the second mortgage.
On August 31, 1956, the second mortgagees, S & D, recorded with the Clark County
Recorder's office a Notice of Default and sent a copy to Cobb, who immediately contacted S
& D, and on December 12, 1956, a written agreement was made between them, wherein S &
D agreed to convey said parcels 2 and 3 (owned by Cobb but subject to the note and the
second deed of trust) to Cobb for $12,500, payable in full on or before January 25, 1959.
Pursuant to the agreement, S & D quitclaimed their interest in said parcels 2 and 3 to
Cobb, who in turn executed a promissory note and deed of trust on said parcels to S & D. S &
D caused the trustee to reconvey said parcels 2 and 3 to Cobb. S & D became the purchasers
of the Esquire Apartments at the trustee's sale and a deed was executed and delivered by
the trustee to S & D for said apartments.
83 Nev. 415, 419 (1967) Cobb v. Osman
at the trustee's sale and a deed was executed and delivered by the trustee to S & D for said
apartments.
Cobb paid the promissory note in full on January 8, 1959. The total amount paid to S & D
was $12,500 principal plus interest in the sum of $1,257.26.
The record shows that Cobb contacted S & D, after receiving the notice of default to save
parcels 2 and 3 from the foreclosure.
The issues presented by this appeal are whether Cobb is entitled to judgment for the
$12,500, together with interest paid by him to S & D in the sum of $1,257.26, or interest at 7
percent per annum on the principal from December 12, 1956 until paid.
Osman did assume and agree to pay the unpaid balance of the notes secured by the first
and second deeds of trust. If she had performed, then Cobb would have received parcels 2 and
3 free and clear of the second deed of trust to S & D.
It is true that the promissory note to S & D provided S & D would look only to the security
in the deed of trust and chattel mortgage for the payment and that cobb would not be
personally responsible for the payment of the principal and interest. If only the apartments
were subject to the first and second deeds of trust, then Osman could only be held to the
liability of Cobb. Small v. Rogers Productions, Inc., 53 P.2d 774 (Cal. 1936). Since Cobb was
not personally liable, Osman would not be personally liable to cobb upon default.
But in the case at bar, Cobb owned three parcels, i.e., (1) the Esquire Apartments and
furniture, (2) unimproved land in Section 10, Clark County, Nevada, and (3) 16 unimproved
lots in Block 11 of Vegas Manor, Las Vegas, Clark County, Nevada.
Parcel 1 was subject to two deeds of trust, one of which was to S & D, which deed of trust
also included parcels 2 and 3. Cobb, at the time of making the sale agreement with osman,
owned the parcels and was interested in having the second deed of trust and note paid, so that
parcels 2 and 3 would be clear of the lien of the second deed of trust. The agreement with
Osman was for the benefit of Cobb, as well as the beneficiaries of the deeds of trust.
The escrow instructions and agreement required that Osman assume and pay, as part of the
purchase price for the Esquire Apartments, the unpaid balance of the first deed of trust and
the second deed of trust and chattel mortgage.
83 Nev. 415, 420 (1967) Cobb v. Osman
[Headnotes 1-3]
The deed required Osman to assume and pay, as part of the purchase price, both the first
and second deeds of trust.
1
If Osman had performed and paid the second deed of trust and
note, parcels 2 and 3 would have been free of the lien of the second deed of trust. Cobb, as
the promisee of this promise to pay the second deed of trust, is entitled to enforce that
contract. A breach of this promise subjects the promisor to a suit for damages. Wilcox v.
Campbell, 12 N.E. 823 (N.Y. 1887); Costa v. Sardinha, 163 N.E. 887 (Mass. 1928); Fleming
v. Reed, 49 N.E. 1087 (Ind.App. 1898).
The distinction between selling all the land encumbered by a mortgage and selling only
part of the land and the grantee assuming, as a part of the purchase price, the entire mortgage
on all the land, is discussed in 59 C.J.S. 429:
As between the mortgagor and his grantee, the latter's assumption of the entire mortgage
debt creates a liability for the entire debt, even though the consideration therefor is a transfer
of only part of the mortgaged premises, and if the grantee fails to pay the entire mortgage as
agreed and the land retained by the mortgagor is lost by foreclosure, the mortgagor may
recover against such grantee in an action for damages on the assumption agreement, the
measure of damages being the value of the land lost. Also, where the mortgagor pays the
mortgage debt, which the grantee agreed to pay, in order to prevent foreclosure, he is entitled
to recover from the grantee the amount of the mortgage debt that the grantee should have
paid.
It is the court's opinion that Cobb had the right to bring this action for damages.
[Headnote 4]
The measure of damages is the amount paid by Cobb but not exceeding the value of
parcels 2 and 3. There are sufficient facts in the record to show that the value of the two
parcels did exceed $12,500, the amount of the principal paid by Cobb to save the lands from
foreclosure. Cobb is entitled to recover this sum.
Cobb also claims that he is entitled to interest, either in the amount of interest actually paid
mortgagees, S & D, or interest at the legal rate under the Nevada Statutes, which is 7
percent per annum.
____________________

1
An assumption and agreement to pay a mortgage or mortgages contained in the deed is binding upon the
grantee who accepts the deed. 37 Am.Jur., Mortgages 994, p. 323, n. 4 and cases; 59 C.J.S. 407, p. 578-579,
n. 2 and cases.
The assumption may be contained in a separate written instrument. 59 C.J.S., p. 574, n. 55.
83 Nev. 415, 421 (1967) Cobb v. Osman
at the legal rate under the Nevada Statutes, which is 7 percent per annum.
Interest is to be allowed only where the agreement so provides, or where allowed by
statute. NRS 99.040. The agreement did not provide for interest in this situation.
[Headnotes 5, 6]
Can Cobb recover the legal rate? It is our opinion that he cannot. Interest under the statute
is allowed where the claim is a liquidated claim and there is an obligation to pay or the
amount due can be ascertained by computation. Dollar Investment v. Modern Market, 77
Nev. 393, 365 P.2d 311 (1961). Interest cannot be allowed where the claim is unliquidated.
Agricultural Ins. Co. v. Biltz, 57 Nev. 370, 64 P.2d 1042 (1937); Dudrey v. Milner, 80 Nev.
447, 396 P.2d 30 (1964).
[Headnote 7]
He amount Cobb had to pay to preclude foreclosure could not be known at the time Osman
made the assumption agreement and the liability of Osman did not become known until final
judgment. Cobb's claim is, therefore, unliquidated. Cobb is entitled to interest at the rate of 7
percent per annum from entry of judgment.
[Headnote 8]
The trial court held that Cobb was a volunteer and could not recover. The trial court took
the view that since Cobb was not personally liable to S & D, the negotiated payment to S & D
made him a mere volunteer.
In doing so the court overlooked the fact that Osman had assumed and agreed to pay the
entire second deed of trust which would relieve Cobb's land, parcels 2 and 3, from that lien.
Since Cobb made the agreement to pay S & D $12,500 to preclude foreclosure, he is entitled
to collect that amount from Osman on her agreement. McRae v. Pope, 42 N.E.2d 261 (Mass.
1942).
[Headnote 9]
It is well settled that one is not a volunteer or stranger when he pays to save his interest in
his property. Katschor v. Ley, 113 P.2d 127 (Kan. 1941); Garland v. Federal Land Bank of
Springfield, 140 A.2d 568 (N.H. 1958); Ricketts v. Alliance Life Insurance Company, 135
S.W.2d 725, 734 (Tex.App. 1939); Sever v. Yetter, 16 A.2d 461 (N.J.Chan. 1940).
At the trial, Osman contended that Cobb did not make the best bargain with S & D to save
his property. Of course, Cobb could have permitted the foreclosure and then sued Osman
for the full value of parcels 2 and 3.
83 Nev. 415, 422 (1967) Cobb v. Osman
could have permitted the foreclosure and then sued Osman for the full value of parcels 2 and
3. Costa v. Sardinha, supra.
Cobb, in order to prevent the loss of his lands through foreclosure, before the completion
of the foreclosure, made an agreement with S & D to have the property released from the
mortgage upon payment of $12,500 to S & D.
[Headnotes 10, 11]
The overwhelming weight of authority is to the effect that in actions for damages arising
out of breach of contract or tort, the burden is upon the party whose wrongful act caused the
damages complained of to prove anything in diminution of the damages, or in other words,
that the damages might have been lessened by reasonable diligence on the part of the
aggrieved party. Montgomery Ward & Company v. Stevens, 60 Nev. 358, 365, 109 P.2d 895
(1941).
There is no showing in the record that Cobb acted imprudently or without due care under
the circumstances.
[Headnote 12]
This court has the power to modify or reverse the judgment and order judgment to be
entered by the trial court. Lockett v. Lockett, 75 Nev. 229, 338 P.2d 77 (1959); Violin v.
Fireman's Insurance Co., 81 Nev. 456, 406 P.2d 287 (1965).
The judgment below is reversed, with directions to enter judgment in favor of the
plaintiffs, Harry Cobb and Sonia Lubin Cobb, and against the defendant, Vera Osman, for the
sum of $12,500, together with interest at the rate of 7 percent per annum from the date of
entry of the judgment with their costs of suit and their costs in this court.
____________
VEGAS FRANCHISES, LTD., a Limited Partnership, dba STEAK CORRAL, Appellant, v.
CULINARY WORKERS UNION, LOCAL NO. 226, et al., Respondents.
No. 5234
November 9, 1967 433 P.2d 263
On rehearing.
Restaurant owners brought suit to enjoin peaceful picketing by unions. The lower court
denied preliminary injunction, and the owners appealed.
the owners appealed. The Supreme Court, Thompson, C. J., 83 Nev. 236, 427 P.2d 959,
affirmed in part and reversed in part, and the unions filed a petition for rehearing. On
rehearing, Thompson, C. J., held that the legislative purpose is clear that employees shall be
free to select their bargaining representative, and when employees reject union representation,
attempted coercion by peaceful picketing of employer is hostile to the legislative purpose and
may be enjoined.
Original opinion reaffirmed.
John Peter Lee, of Las Vegas, for Appellant.
Joseph C. Crawford, of Las Vegas, and Philip Paul Bowe of Carroll, Davis, Burdick and
McDonough, of San Francisco, California, for Respondents.
Bissett, Logar and Groves, of Reno, and Neyhart and Grodin, of San Francisco,
California, Amicus Curiae.
1. Labor Relations.
The legislative purpose is clear that employees shall be free to select their bargaining representative,
and when employees reject union representation attempted coercion by peaceful picketing of employer is
hostile to the legislative purpose and may be enjoined. NRS 614.090.
2. Courts.
Where language of Supreme Court decision rested upon a false premise and was mere dictum, the
Court in subsequent case fell into error when it accorded that language the force of precedent.
3. Courts.
Seldom is stare decisis appropriately applied to dictum; it is never appropriately utilized when the
dictum rests upon a false assumption, since its effect in such instance is the perpetration of error.
OPINION ON REHEARING
On the appeal of this case we ruled that the unions' peaceful picketing of the employer's
place of business to coerce the employees' choice of bargaining representative against their
will, violated the public policy of Nevada as expressed by NRS 614.090, and could be
enjoined. Vegas Franchises, Ltd. v. Culinary Workers Union, 83 Nev. 236, 427 P.2d 959
(1967). We expressly overruled the dictum of Culinary Workers v. Court, 66 Nev. 166, 207
P.2d 990 (1949), commonly known as the White Cross case, suggesting to the contrary, but
failed to mention a 1951 decision of this court, Jensen v. Labor Council, 6S Nev. 269
White Cross case, suggesting to the contrary, but failed to mention a 1951 decision of this
court, Jensen v. Labor Council, 68 Nev. 269, 229 P.2d 908, which accorded the dictum of
White Cross the force of precedent and followed it. We granted rehearing to reconsider our
opinion in the light of Jensen. For the reasons hereafter expressed we conclude that our
opinion on appeal was correct and we reaffirm it.
NRS 614.090 was enacted in 1937. Its title: An Act relating to employers, employees,
workers and laborers and associations and combinations thereof; providing the right of
adversary parties in labor disputes and negotiations to representation by representatives of
such parties' choosing; providing a penalty for the violation hereof.
[Headnote 1]
The body of the act declares the public policy of Nevada. The following words of Section
One deal with the issue of this case: Therefore, it is necessary that the individual workman
have full freedom of association, self-organization, and designation of representatives of his
own choosing to negotiate the terms and conditions of his employment * * *. The legislative
purpose is clear. Employees shall be free to select their bargaining representative. When the
employees reject union representation, attempted coercion by the peaceful picketing of the
employer is hostile to the legislative purpose and may be enjoined.
In the White Cross case the court alluded to this statute, although it was not in issue, and
indicated that injunctive relief would not be constitutionally permissible. Culinary Workers v.
Court, 66 Nev. 166, 182, 207 P.2d 990, 998. The obiter of White Cross was given
precedential effect in Jensen, notwithstanding an intervening pronouncement by the United
States Supreme Court, allowing a state to declare its own policy in this area and ruling that
injunctive relief was constitutionally permissible to preclude peaceful picketing in violation
of declared state policy. Building Service Employees v. Gazzam, 339 U.S. 532 (1950).
[Headnotes 2, 3]
Since the language of White Cross with which we are here concerned rested upon a false
premise and was mere dictum, it is our view that the court in Jensen fell into error when it
accorded that language the force of precedent. Stanley v. Levy & Zentner Co., 60 Nev. 432,
448, 112 P.2d 1047, 1054 (1941). Seldom is stare decisis appropriately applied to dictum.
Fletcher v. Scott, 277 N.W. 270, 272 (Minn. 1938); Louisville & N. R. Co. v.
Louisville & N. R. Co. v. Hutton, 295 S.W. 175, 179 (Ky. 1927). It is never appropriately
utilized when the dictum rests upon a false assumption, since its effect in such instance is the
perpetuation of error. Accordingly, we once more overrule the dictum of White Cross,
disapprove the Jensen reliance upon it, and reaffirm our opinion in this case.
Collins, J., Zenoff, J., Batjer J. and Mowbray, J., concur.
____________
83 Nev. 425, 425 (1967) Lamb v. Lamb
WILLIAM L. LAMB, Jr. Appellant v.
ARLENE LAMB, Respondent.
No. 5307
November 13, 1967 433 P.2d 265
Appeal from an order holding the appellant in contempt and denying his motion to modify
the judgment and decree of divorce. First Judicial District Court, Churchill County; Frank B.
Gregory, Judge.
Contempt proceedings against divorced husband for arrearages in child support payments,
and motion by husband for reduction in support payments and for specific visitation
privileges. The trial court adjudged husband in contempt and denied his motion. Husband
appealed. The Supreme Court, Batjer, J., held that evidence, including testimony by both
divorced husband and divorced wife that husband had paid the wife only $125 from July until
December while he was earning a gross income of approximately $540 per month sustained
finding that he had the ability to pay $200 per month in child support ordered by divorce
decree, and that where he was $2,820 in arrears for two years of payments, denial of his
motion to reduce his child support payment and to grant him specific visitation privileges was
not abuse of court's statutory discretionary powers.
Affirmed.
[Rehearing denied December 14, 1967]
Singleton, DeLanoy & Jemison, of Las Vegas, for Appellant.
Diehl, Recanzone & Evans, of Fallon, for Respondent.
83 Nev. 425, 426 (1967) Lamb v. Lamb
1. Constitutional Law; Divorce.
Proceeding wherein divorced husband was required to show cause why he should not be held in contempt
for being in arrears in child support payments ordered by divorce decree was not criminal or quasi-criminal
contempt proceeding, and resulting imprisonment was not constitutionally proscribed imprisonment for
debt. NRS 22.110; Const. art. 1, 14.
Moneys ordered to be paid as alimony or child support do not constitute a debt for which state
Constitution forbids imprisonment. Const. art. 1, 14.
3. Divorce.
Evidence, including testimony by both divorced husband and divorced wife that husband had paid wife
only $125 from July until December while he was earning a gross income of approximately $540 per
month sustained findings in civil contempt proceeding that husband had ability to pay child support of
$200 per month as ordered by divorce decree and that he was in contempt for his failure to comply with
lawful order of the court.
4. Divorce.
Where divorced husband who had been ordered by divorce decree to pay $200 per month in child
support was $2,820 in arrears for two years of payments and was earning a gross income of $542 per
month, denial of his motion to reduce his child support payment and to grant him specific visitation
privileges was not abuse of court's statutory discretionary powers. NRS 125.140, subd. 2.
5. Divorce.
Divorced husband in contempt of court for arrearages in child support payments could not seek
modification of divorce decree to reduce support payments and obtain specific visitation privileges.
OPINION
By the Court, Batjer, J.:
This is an appeal from an order adjudging the appellant to be in contempt of court and
denying his motion to modify the judgment and decree of divorce upon the ground that he
was then in contempt of court.
On November 23, 1963 the appellant and the respondent entered into a property settlement
agreement whereby the appellant promised to make child support payments of $200 per
month.
On September 22, 1964 the respondent was granted a divorce, and the property settlement
agreement was adopted by the court and incorporated as a part of the judgment and decree.
On May 13, 1966 in support of a motion for an order to show cause why the appellant
should not be held in contempt, the respondent filed an affidavit stating that from
November 26, 1963 to March 26, 1966 the appellant was $2,S16 in arrears in child
support payments.
83 Nev. 425, 427 (1967) Lamb v. Lamb
show cause why the appellant should not be held in contempt, the respondent filed an
affidavit stating that from November 26, 1963 to March 26, 1966 the appellant was $2,816 in
arrears in child support payments.
An order to show cause was issued, the appellant failed to appear, and on July 8, 1966 he
was held to be in contempt.
Later, in July 1966, the appellant, after making an arrangement with respondent's counsel
to keep the monthly support payments current and to pay the arrearages, paid $450 to the
respondent. On August 3, 1966, the court, satisfied with the arrangements, purged the
appellant of contempt.
On November 14, 1966 the respondent filed another affidavit in support of a motion, for
an order to show cause why the appellant should not be held in contempt, and stated that the
appellant was then $2,820 in arrears from September 22, 1964 to September 22, 1966. The
court issued another order to show cause.
In an effort to purge the contempt, the appellant filed an affidavit setting forth his debts,
and telling his story of remarriage and financial reverses. At the same time the appellant filed
a motion to modify the judgment and decree of divorce asking for a reduction in child support
payments and for specific visitation privileges, upon the ground of change in circumstances.
At the hearing held December 13, 1966 both the appellant and the respondent testified, and
the evidence revealed that the appellant had paid the respondent only $125 from July 1966
until December 1966 while the appellant was earning a gross income of approximately $540
per month.
The court found that the appellant had the ability to comply with the judgment and decree
of divorce and adjudged him to be in contempt, but continued the proceedings for thirty (30)
days, during which time the appellant could purge himself of contempt by making the
monthly support payments and by paying, or by making a firm arrangement for the payment
of the arrearages. If the appellant failed to comply he would be jailed.
1
This appeal was
taken from that order.
The appellant assigns as error, insufficient evidence to support a finding of contempt, and
an abuse of discretion by the trial court, in denying his motion to modify the judgment and
decree of divorce.
____________________

1
NRS 22.110. When the contempt consists in the omission to perform an act which is yet in the power of the
person to perform, he may be imprisoned until he shall have performed it, and in that case the act shall be
specified in the warrant of commitment.
83 Nev. 425, 428 (1967) Lamb v. Lamb
The appellant urges that the hearing in the lower court was a criminal or quasi-criminal
contempt proceeding resulting in imprisonment for debt in contravention of the Constitution
of Nevada, Article I, Section 14.
[Headnotes 1, 2]
Following Phillips v. Welch, 11 Nev. 187 (1876), we find that the proceeding below was
for civil contempt, and that there was no imprisonment for debt. Moneys ordered to be paid as
alimony or child support do not constitute a debt within the meaning of our constitution. Ex
parte Phillips, 43 Nev. 368, 187 P. 311 (1920) and In re McCabe, 53 Nev. 463, 5 P.2d 538
(1931).
[Headnote 3]
There was sufficient evidence for the trial court to find that the appellant had not paid
child support as required, that he had the ability to pay and that he was in contempt for his
failure to comply with a lawful order of the court.
In the case of In re Chartz, 29 Nev. 110, 85 P. 352 (1907), this court said: The power of
courts to punish for contempt and to maintain decency and dignity in their proceedings is
inherent, and is as old as courts are old.
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.
[Headnote 4]
We also find that pursuant to NRS 125.140(2)
2
there was a proper exercise of discretionary
powers in denying the appellant's motion to modify. Goodman v. Goodman, 68 Nev. 484, 236
P.2d 305 (1951); Schmutzer v. Schmutzer, 76 Nev. 123, 350 P.2d 142 (1960); Adler v. Adler,
80 Nev. 364, P.2d 350 {1964); Edwards v. Edwards, S2 Nev. 392
____________________

2
NRS 125.140(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.
83 Nev. 425, 429 (1967) Lamb v. Lamb
P.2d 350 (1964); Edwards v. Edwards, 82 Nev. 392, 419 P.2d 637 (1966).
[Headnote 5]
An additional reason for sustaining the lower court's denial of the motion to modify is
found in the case of MacDonald v. Superior Court in and for San Mateo County, 104 P.2d
1071 (Cal.App. 1940). There the court said: No party to an action can with right or reason,
ask the aid and assistance of a court in hearing his demands while he stands in an attitude of
contempt to the court's legal orders and processes.
See also Weeks v. Superior Court, 203 P. 93 (Cal. 1921); Knackstedt v. Superior Court,
180 P.2d 375 (Cal.App. 1947); Kubon v. Kubon, 331 P.2d 636 (Cal. 1958); Robinson v.
Superior Court, 9 Cal.Rptr. 130 (1960).
No prejudicial error appearing, the Order Denying Motion to Modify Decree of Divorce
and the Order Adjudging Defendant in contempt are affirmed.
Thompson, C. J., Collins, J., Zenoff, J., and Mowbray, J., concur.
____________
83 Nev. 429, 429 (1967) Volpert v. Papagna
DONALD VOLPERT and DONALD MURRAY, Appellants, v. WILLIAM T. PAPAGNA,
BETTY JO PAPAGNA, and ELEANOR ROTT, Respondents.
No. 5263
November 17, 1967 433 P.2d 533
Appeal from summary judgment of the Eighth Judicial District Court, Clark County;
William P. Compton, Judge.
Action by landlords against subtenants for unlawful detainer for nonpayment of rent. the
lower court entered a summary judgment for landlords and the subtenants appealed. The
Supreme Court, Thompson, C. J., held, inter alia, where lease specifically provided for
reentry and possession by landlords on breach of condition and for termination at landlord's
election, such election was made when landlords commenced action for unlawful detainer for
nonpayment of rent, and thereafter it was too late for tenants to pay delinquent rent and
preclude forfeiture under statute giving a five-day redemption period when lease is silent on
subject of termination for breach of condition.
Affirmed.
[Rehearing denied December 19, 1967]
Gunderson, Sorenson & Jeffers, and David C. Polley, of Las Vegas, for Appellants.
Rudiak & Publow, of Las Vegas, for Respondents.
1. Landlord and Tenant.
Statute regarding notice to pay or quit does not require that amount of rent due be specified in notice and
a notice which simply demands payment of rent or surrender of possession satisfies statute. NRS 40.250,
subd. 3.
Notice by landlords to subtenant to pay rent or quit, a notice which demanded payment of rent of
specified amount due as of a certain date and which also reserved the right to claim additional rent was
sufficient under statute, notwithstanding claim of subtenants that reservation voided notice on ground that
they could not know amount of rent to be paid to preclude forfeiture. NRS 40.250, subd. 3.
Only tenant in possession, and subtenant if there be one, need be made a party defendant in unlawful
detainer action. NRS 40.390.
Obligation of assignee of lease to pay rent is not excused, justified, or avoided by fact that assignor may
remain obligated for rent as a surety. NRS 40.390.
Unlawful detainer action by landlords against subtenant in possession was not defective for failure to join
the assignor of subtenants' lease as a party.
Where landlords' first unlawful detainer was voluntarily dismissed by them and they paid filing fees of
tenants who had not answered nor filed motion for summary judgment, such dismissal was not a
judgment in tenants' favor entitling them to costs under statute. NRCP 41(a)(1).
7. Dismissal and Nonsuit.
Landlords had a right to voluntarily dismiss unlawful detainer suit.
8. Costs.
Rule empowering district court in proper case to order plaintiff to pay costs in previously dismissed
action as precondition to further entertainment of pending matter was not applicable where initial unlawful
detainer action, voluntarily dismissed by landlords, was based on tenants' breach of covenant against
subletting without landlords' consent while subsequent unlawful detainer action was based on nonpayment
of rent, an entirely different claim. NRS 18.040, 40.250, subds. 3, 4; NRCP 41 and (d).
9. Costs.
Since depositions procured by tenants had never been used in initial unlawful detainer action which had
been voluntarily dismissed by landlords, expense of securing them could not be taxable as costs.
10. Abatement and Revival.
Cause of action must be same before a pending suit may abate one subsequently commenced.
11. Abatement and Revival.
Pending damage suit by tenants for conspiracy against the landlords and 33 other defendants to obliterate
leasehold interest of tenants did not abate landlords' unlawful detainer action since judgment in favor of
tenants in conspiracy suit would not operate as bar to unlawful detainer action.
Where lease specifically provided for re-entry and possession by landlords on breach of condition and for
termination at landlords' election, such election was made when landlords commenced action for unlawful
detainer for nonpayment of rent, and thereafter it was too late for tenants to pay delinquent rent and
preclude forfeiture under statute giving a five-day redemption when lease is silent on subject of termination
for breach of condition. NRS 40.360, subds. 1, 3.
OPINION
This is an appeal by lessees [Volpert and Murray] from a summary judgment for lessors
[Papagna and Rott] in an unlawful detainer case. The predicate for suit was the lessees' failure
to pay rent. A three-day notice to pay or quit was served upon them before suit was
commenced. The lessees answered, pleading affirmative defenses which were later stricken
by the court. The lessors were restored to possession by temporary writ, and subsequently
moved for summary judgment which was granted. The judgment awarded rent, damages,
costs, attorney's fee, and cancelled the lease.
The main issues are the legal sufficiency of the notice to pay rent or quit; the propriety of
striking the affirmative defenses; and the validity of the judgment forfeiting the lease without
allowing the lessees five days within which to cure their default. Subordinate claims of error
also are advanced. Two other lawsuits involving these parties are alleged to bear upon the
case at hand. For the reasons hereafter expressed it is our opinion that summary judgment was
properly entered.
This case concerns improved property in downtown Las Vegas known as the Cinnabar
Cocktail Lounge.
Vegas known as the Cinnabar Cocktail Lounge. It is owned by Papagna and Rott and is near
the Mint Hotel. In 1962 the owners leased a portion of the building to Mazzucca for a
restaurant. The maximum monthly rent specified was $400. In January, 1964 the owners sold
their bar business to Atol and, in connection with that sale, leased to him the entire premises
reserving monthly rent of $1,400. The premises provided parking for the customers of
Mazzucca and Atol. The Atol lease acknowledged the prior Mazzucca lease and granted Atol
all rents therefrom. It also provided that should the Mazzucca lease terminate, Atol's rent
obligation would be reduced pro tanto until another tenant was procured for the restaurant.
In June, 1965 Atol sold his business and assigned his lease to Volpert and Murray. The
new lessees took possession in August. They paid rent for two months. They have not paid
rent since. In September they sublet the parking lot to the Mint Hotel without the lessors'
consent and in violation of the lease. This prompted the lessors to commence an unlawful
detainer action which they later voluntarily dismissed before answer, since the Mint had, by
then, terminated its sublease. In that case the lessees filed a cost bill for $2,162.34. Mazzucca
closed his restaurant about this time, apparently because the parking sublease to the mint had
impaired his business.
Soon after the first unlawful detainer case was voluntarily dismissed by the lessors, the
lessees filed suit against the lessors and 33 other defendants, claiming huge damages
($300,000 actual and $15,000,000 punitive) for a conspiracy to obliterate their leasehold
interest. That suit remains pending. Issue has not been joined.
Once in February and twice in March, 1966, the lessors caused to be served upon the
lessees a notice to pay rent or quit. Since these notices were not honored this action for
unlawful detainer was instituted. We turn to discuss the main issues presented.
1. Notice to pay or quit: Notice was given pursuant to NRS 40.250(3) which reads in
relevant part: When he continues in possession * * * after default in the payment of any rent
and after a notice in writing, requiring in the alternative the payment of the rent or the
surrender of the detained premises, shall have remained uncomplied with for a period of 3
days after service thereof. * * * here, the notice demanded payment of rent in the sum of
$6,400 due as of March 1, 1966, (i.e., $1,400 due October 1, 1965, and $1,000 due on the
first of each month thereafterthe reduction caused by Mazzucca's surrender of his lease in
October, 1966), or possession. The notice also reserved the right to claim an additional $400
per month rent from November 1, 1965 through March 1, 1966 on the premise that
Mazzucca's surrender was occasioned by the lessees' breach in subletting the parking lot
to the Mint.
additional $400 per month rent from November 1, 1965 through March 1, 1966 on the
premise that Mazzucca's surrender was occasioned by the lessees' breach in subletting the
parking lot to the Mint. The lessees contend that this reservation voids the notice since they
cannot know the amount of rent to be paid to preclude forfeiture. This contention is not
sound.
[Headnotes 1, 2]
Unlike California [C.C.P. 1161; Johnson v. Sanches, 132 P.2d 853 (Cal.App. 1942);
Dertiman v. Almey, 207 P.2d 615 (Cal.App. 1949); Werner v. Sargeant, 264 P.2d 217
(Cal.App. 1954)], our statute does not require that the amount of rent due be specified in the
notice. Indeed, a notice which simply demands the payment of rent or surrender of possession
would seem to satisfy our law. Another statute, nrs 40.390,
1
bears on the issue, since its
admonition is that substantial compliance with the statutory scheme will suffice. Tested by
these standards the present notice is more than adequate.
The Nevada cases of Paul v. Armstrong, 1 Nev. 82 (1865) and Roberts v. District Court,
43 Nev. 332, 185 P. 1067 (1920) do not support the lessees' contention on the notice issue.
Paul merely held that a notice in writing must be given before the landlord has a cause of
action for holding over after default in the payment of rent. That notice was given here.
Roberts was concerned with a different part of the unlawful detainer statute and, in speaking
of the notice requirement for that part, stated that the notice must be specific and
peremptory, and not conditioned or uncertain. In any event, the notice before us is specific
and peremptory, and it is not conditioned or uncertain. After specifying $6,400 as the rent due
the notice continues: and the undersigned hereby demand that you pay said sum to the
undersigned within three (3) days after the date of service upon you of this Notice, or
alternatively, that within the like period of three (3) days, you surrender possession of the
above-described premises to the undersigned. We find it quite impossible to conclude that
the lessees were not clearly apprised of their alternatives.
2. The affirmative defenses: Five affirmative defenses of the lessees were stricken before
the court ruled upon the lessors' motion for summary judgment. By specific statutory
provision "all matters of excuse, justification or avoidance of the allegations in the
complaint may be given in evidence under the answer."
____________________

1
NRS 40.390 reads: In all cases of appeal under NRS 40.220 to 40.420, inclusive, the appellate court shall
not dismiss or quash the proceedings for want of form, provided the proceedings have been conducted
substantially according to the provisions of NRS 40.220 to 40.420, inclusive * * *.
all matters of excuse, justification or avoidance of the allegations in the complaint may be
given in evidence under the answer. NRS 40.390; see also, Yori v. Phenix, 38 Nev. 277, 149
P. 180 (1915); West v. Edwards, 62 Nev. 1, 134 P.2d 932 (1943). Our task, therefore, is to
ascertain whether any of the stricken defenses could establish an excuse, justification, or
avoidance of the lessees' obligation to pay rent.
[Headnotes 3-5]
a. The lessees assert that the lessors failed to join an indispensable partythe assignor of
their lease. Only the tenant in possession, and subtenant if there be one, need be made a party
defendant. NRS 40.290. Indeed, the obligation of the assignees of the lease to pay rent is not
excused, justified, or avoided by the fact that the assignor may remain obligated for rent as a
surety. Cf. Gholson v. Savin, 31 N.E.2d 858, 861-62 (Ohio 194l).
[Headnotes 6, 7]
b. The lessees contend that costs of $2,162.34 incurred by them in the previously
dismissed unlawful detainer action is a valid setoff against the lessors' claim for rent in this
case. The first unlawful detainer suit was voluntarily dismissed by the lessors pursuant to
NRCP 41(a)(1). They paid the defendants' filing fees. The defendants had not answered, nor
filed a motion for summary judgment. Such a dismissal is not a judgment in the defendants'
favor entitling them to costs under NRS 18.040. The plaintiffs had the right to dismiss.
American Cyanamid Company v. McGhee, 317 F.2d 295, 297 (5 Cir. 1963).
[Headnote 8]
Although not a judgment for costs, the district court is empowered, in a proper case, to
order the plaintiff to pay costs in a previously dismissed action as a precondition to the further
entertainment of a pending matter. NRCP 41(d).
2
However, this part of Rule 41 does not
apply to the case at hand since the first suit was based upon a different claim from this one.
The initial litigation was premised upon the lessees, breach of covenant against subletting
without the lessors, consent. NRS 40.250(4). The present action is based upon nonpayment of
rent, NRS 40.250(3), an entirely different claim.
____________________

2
NRCP 41(d) reads: If a plaintiff who has once dismissed an action in any court commences an action based
upon or including the same claim against the same defendant, the court may make such order for the payment of
costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until
the plaintiff has complied with the order.
[Headnote 9]
Finally, were we to assume the applicability of Rule 41(d), we would not fault the trial
court for exercising its discretion against allowing the claimed costs as a setoff, since
$1,837.74 of the amount claimed was deposition expense. As the depositions were never used
in the first case the expense of securing them is not taxable as costs. Maxwell v. Amaral, 79
Nev. 323, 328, 383 P.2d 365 (1963).
[Headnotes 10, 11]
c. The lessees next assert that their pending damage suit for conspiracy against the lessors
and 33 other defendants constitutes the defense of abatement. This assertion is not valid. The
cause of action must be the same before a pending suit may abate one subsequently
commenced. A judgment in favor of the lessees in the conspiracy case would not operate as a
bar to this litigation. Cf. Service Parking Corp. v. Trans-Lux Radio City Corp., 47 A.2d 400
(D.C. 1946).
d. The two additional affirmative defenses concern the Mazzucca lease and do not supply a
basis for error, since the money judgment entered below gave the lessees full credit for rent
due under that lease.
Accordingly, we conclude that none of the affirmative defenses asserted is a defense in
excuse, justification, or avoidance of the lessees' obligation to pay rent. The court did not err
in striking them.
[Headnote 12]
3. Immediate forfeiture: The summary judgment declared an immediate forfeiture. NRS
40.360(1) states that: * * * if the proceeding be for unlawful detainer * * * after default in
the payment of rent, the judgment shall also declare the forfeiture of such lease or
agreement. However, subsection 3 of that statute provides that: When the proceeding is for
an unlawful detainer after default in the payment of the rent, and the lease or agreement under
which the rent is payable has not by its terms expired, execution upon the judgment shall not
be issued until the expiration of 5 days after the entry of the judgment, within which time the
tenant * * * may pay into court for the landlord the amount of the judgment and costs, and
thereupon the judgment shall be satisfied and the tenant restored to his estate; but, if payment,
as herein provided, be not made within the 5 days, the judgment may be enforced for its full
amount and for the possession of the premises. In all other cases the judgment may be
enforced immediately. We must, therefore, look to the lease to learn whether it had expired
by "its terms" when judgment was entered.
whether it had expired by its terms when judgment was entered.
The lease specifically provides for re-entry and possession by lessors upon breach of
condition and for termination at the lessors' election. That election was made when this action
was commenced. Cambridge v. Webb, 244 P.2d 505 (Cal.App. 1952). Therefore, it was too
late for the lessees to pay the delinquent rent and preclude forfeiture. Upon finding the lessees
in default the court shall declare forfeiture. NRS 40.360(1). Only when the lease is silent
upon the subject of termination for breach of condition does the five-day redemption period
of subsection 3 become operative. The judgment for immediate forfeiture was correct.
Additional errors are assigned. Some concern interlocutory orders. Others are directed to
items that are controlled by explicit language of the lease. None has merit.
Summary judgment affirmed.
Collins J., Zenoff, J., Batjer, J., and Mowbray, J., concur.
____________
83 Nev. 436, 436 (1967) Adelman v. Arthur
RAY ADELMAN and KAY ADELMAN, Husband and Wife, Appellants, v. FORREST
ARTHUR, a married man, and JOSEPH J. McCAFFERY, Jr., as Trustee of PRUDENTIAL
DIVERSIFIED SERVICES, a Montana Corporation, Respondents.
No. 5138
November 20, 1967 433 P.2d 841
Appeal from an order granting defendant and third party defendants' motion for
involuntary dismissal under Rule 41(b) NRCP. Eighth Judicial District Court, Clark County;
John F. Sexton, Judge.
Action against purchaser to recover deficiency under purchase money trust deed in which
action purchaser's grantee was made additional defendant. The lower court granted defendant
and additional defendants' motion for involuntary dismissal and plaintiffs appealed. The
Supreme Court, Batjer, J., held that evidence that holder of purchase money trust deed
accepted additional security and new note and trust deed from grantee of grantee of purchaser
did not establish accord and satisfaction between holder and purchaser or purchaser's grantee.
[Rehearing denied November 29, 1967]
John A. Porter, of Las Vegas, for Appellants.
Jones, Wiener & Jones, of Las Vegas, for Respondent, Forrest Arthur.
Foley Brothers, of Las Vegas, for Respondent, Joseph J. McCaffery, Jr., as Trustee of
Prudential Diversified Services.
1. Trial.
Upon considering a defendant's motion for involuntary dismissal at close of plaintiff's case, all
evidence must be regarded in light most favorable to plaintiff. NRCP 41(b).
2. Accord and Satisfaction.
Where fact of accord and satisfaction is disclosed by evidence offered in behalf of plaintiff, defendant
is entitled to take advantage of such disclosure notwithstanding fact that he made no plea of accord and
satisfaction. NRCP 8(c).
Evidence that holder of purchase money trust deed accepted additional security and new note and
trust deed from grantee of grantee of purchaser did not establish accord and satisfaction for benefit of
purchaser or purchaser's grantee.
To successfully maintain fact of accord and satisfaction there must be meeting of minds of parties.
OPINION
This is an appeal taken by the plaintiffs below from an order of involuntary dismissal of
the action entered by the trial judge. The case was tried to the court below without a jury.
Under NRCP 41(b) the order was entered after plaintiffs had completed presentation of their
evidence on the ground that plaintiffs' evidence proved an accord and satisfaction to the
benefit of the defendants and third-party defendants.
Upon this appeal the plaintiffs contend that a sufficient case had been proved, that there
was no accord and satisfaction and that the court was in error in ordering involuntary
dismissal.
On August 12, 1960, Ray Adelman and Kay H. Adelman, appellants {plaintiffs below),
hereinafter referred to as "Adelman," sold lots 5 and 6 in block 1 of Judy Rich tract, Clark
County, Nevada, to Forrest Arthur, respondent {defendant below), hereinafter referred to
as "Arthur," taking back from Arthur a deed of trust, junior to four other deeds of trust
securing the amount of $59,433.67, evidenced by two promissory notes, one for
$24,433.67, the other for $35,000.
appellants (plaintiffs below), hereinafter referred to as Adelman, sold lots 5 and 6 in block
1 of Judy Rich tract, Clark County, Nevada, to Forrest Arthur, respondent (defendant below),
hereinafter referred to as Arthur, taking back from Arthur a deed of trust, junior to four
other deeds of trust securing the amount of $59,433.67, evidenced by two promissory notes,
one for $24,433.67, the other for $35,000. The $35,000 note was paid in full and cancelled.
The deed of trust remained in force to the extent of the original debt.
On October 1, 1961, Arthur conveyed all his interest in the above-specified property to
Prudential Diversified Services, a Montana corporation (third-party defendant below),
hereinafter referred to as Prudential. That conveyance was recorded on December 14, 1961.
On April 23, 1962, Prudential sold all its interest in lots 5 and 6 of the Judy Rich tract to
Benjamin F. Dreher and Donna L. Dreher, hereinafter referred to as Dreher.
On August 2, 1963, Adelman, pursuant to NRS 107.100
1
, brought action No. A3218 in
the Eighth Judicial District Court of the State of Nevada, in and for the County of Clark,
against Dreher as successors in interest to Arthur. That action was settled on October 22,
1963, when Dreher executed a new promissory note in the amount of $24,433.67 payable to
Adelman. Dreher also executed a new deed of trust covering lots 5 and 6 in block 1, Judy
Rich tract, and on the same date executed another deed of trust covering lot 7 in block 1. Judy
Rich tract, also securing the newly executed promissory note.
On October 22, 1963, Dreher paid to Adelman as further consideration for the settlement
of case No. A3218, the sums of $1,882.76 and $162.89.
Pioneer Title Insurance Company, as collection agent, thereafter using the same collection
number, continued to collect payments from Dreher, and on its collection ledgers
substituted, under the heading "payor," prudential for Arthur, then Dreher for Prudential.
____________________

1
NRS 167.100. Receiver: Appointment after filing notice of breach and election to sell.
1. At any time after the filing of a notice of breach and election to sell real property under a power of sale
contained in a deed of trust, the trustee or beneficiary of the deed of trust may apply to the district court for the
county in which the property or any part of the property is located for the appointment of a receiver of such
property.
2. A receiver shall be appointed where it appears that personal property subject to the deed of trust is in
danger of being lost, removed, materially injured or destroyed, that real property subject to the deed of trust is in
danger of substantial waste or that the income therefrom is in danger of being lost, or that the property is or may
become insufficient to discharge the debt which it secures.
substituted, under the heading payor, prudential for Arthur, then Dreher for Prudential.
On June 9, 1964, lot 7 in block 1 of the Judy Rich tract was sold by the trustee under the
provision of a senior deed of trust and is of no further consequence in this case.
On June 12, 1964, after Dreher had again defaulted, a holder of one of the senior deeds of
trust foreclosed and lots 5 and 6 in block 1 of the Judy Rich tract were sold. After costs were
paid, Adelman received $1,039.58. On September 18, 1964, Adelman brought suit against
Arthur and Dreher for the deficiency. Arthur brought Prudential into the action as a
third-party defendant.
Benjamin F. Dreher was not served with process. Donna L. Dreher was served but did not
appear, and a default was entered against her. At the trial, the attorneys for Arthur and
Prudential moved, upon the affirmative defense of accord and satisfaction, for an involuntary
dismissal under NRCP 41(b)
2
, which motion was granted, and Adelman appeals.
As assignments of error Adelman alleged:
1. The district court erred in excluding parol evidence to show Adelmans' intent in dealing
with Dreher.
2. (a) That Arthur and Prudential failed to prove novation.
(b) The district court erred in dismissing the action pursuant to NRCP 41(b) in the absence
of a clear showing that Adelmans' acceptance of Drehers' written obligation was intended to
release Arthur from his obligation to Adelman.
The trial court never ruled on the admissibility of parol evidence because the question was
never directly before that court. Adelman's first assignment of error is without merit.
Although the theory of novation was raised by Arthur as an affirmative defense, it was
specifically abandoned by both Arthur and Prudential, and the question of whether or not
novation was proved is not before this court.
____________________

2
NRCP 41(b). Involuntary Dismissal: Effect thereof.
For failure of the plaintiff to comply with these rules or any order of court, a defendant may move for
dismissal of an action or of any claim against him. After the plaintiff has completed the presentation of his
evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may
move for a dismissal on the ground that upon the facts and the law the plaintiff has failed to prove a sufficient
case for the court or jury. Unless the court in its order for dismissal otherwise specifies, a dismissal under this
subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, or for
lack of an indispensable party, operates as an adjudication upon the merits.
In support of their motion for dismissal pursuant to NRCP 41(b), Arthur and Prudential
rely on the affirmative defense of accord and satisfaction, which they claim was proved by
Adelman.
[Headnote 1]
Upon considering a defendant's motion for an involuntary dismissal of an action at the
close of a plaintiff's case under NRCP 41(b), all evidence must be regarded in the light most
favorable to the plaintiff.
This court, in the case of Gordon v. Cal-Neva Lodge, Inc., 71 Nev. 336, 291 P.2d 1054
(1955), said:
Upon this issue plaintiff's evidence and all inferences that reasonably can be drawn from
it must be deemed admitted and the evidence must be interpreted in the light most favorable
to plaintiff. Corn v. French, 71 Nev. 280, 289 P.2d 173. It is conceded that this well
recognized rule applies whether the trier of fact be judge or jury. McCafferty v. Flinn, 32
Nev. 269, 107 P. 225. See also Kilb v. Porter, 72 Nev. 118, 295 P.2d 856 (1956); Gunlock v.
New Frontier Hotel, 78 Nev. 182, 370 P.2d 682 (1962).
[Headnote 2]
In the case under consideration neither Arthur nor Prudential especially pleaded accord
and satisfaction as required by NRCP 8(c)
3
, however, there occurs an exception to the
requirement that accord and satisfaction be especially pleaded when the fact of accord and
satisfaction is disclosed by the evidence offered in behalf of the plaintiff. In such a case a
defendant is entitled to take advantage of such a disclosure, notwithstanding the fact that he
has made no plea of accord and satisfaction.
In Riskas v. DelaMontanya, 302 P.2d 821, (Cal.App. 1956), the court said: While the
general rule is that he who relies on an accord and satisfaction must plead both (Berger v.
Lane, 190 Cal. 443, 447, 213 P. 45) there is an exception to the rule. 'This rule, however, we
take it is subject to the exception that if a plaintiff, as a part of his case, proves a
payment, and the circumstances under which it was made tend to show an accord and
satisfaction, the defendant may rely upon the facts thus shown as constituting an accord
and satisfaction though not pleaded as such in the answer.' B.
____________________

3
NRCP 8(c). Affirmative Defenses.
In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration
and award, assumption of risk, contributory negligence discharge in bankruptcy, duress, estoppel, failure of
consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of
frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.
When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on
terms, if justice so requires, shall treat the pleading as if there had been a proper designation.
to the rule. This rule, however, we take it is subject to the exception that if a plaintiff, as a
part of his case, proves a payment, and the circumstances under which it was made tend to
show an accord and satisfaction, the defendant may rely upon the facts thus shown as
constituting an accord and satisfaction though not pleaded as such in the answer.' B. & W.
Engineering Co. v. Beam, 23 Cal.App. 164, 177, 137 P. 624, 629.
[Headnote 3]
Reviewing the record we find that Adelman did prove a sufficient case but that the
above-noted exception does not apply here because Adelman did not prove accord and
satisfaction for the benefit of Arthur and Prudential.
[Headnote 4]
To successfully maintain the fact of an accord and satisfaction there must be a meeting of
the minds of the parties. No such meeting of the minds ever occurred between Adelman and
Arthur or Adelman and Prudential. At the time Dreher gave Adelman the additional security,
there was no communication whatsoever between Adelman and Arthur or Adelman and
Prudential concerning the Dreher transactions.
In the case of Walden v. Backus, 81 Nev. 634, 408 P.2d 712 (1965), this court said:
The law of Nevada requires that the party availing himself of a plea of accord and
satisfaction must bear the burden of proof and must establish clearly that there was a meeting
of the minds of the parties, accompanied by a sufficient consideration, Wolf v. Humboldt
County, 36 Nev. 26, 131 P. 964 (1913); Western Nat'l Ins. Co. v. Trent, 69 Nev. 239, 247
P.2d 208 (1952).
The lower court was in error in granting the motion to dismiss.
Reversed with costs to appellant and remanded with the direction that the order granting
the motion for dismissal under NRCP 41(b) be set aside and for further proceedings.
____________
83 Nev. 442, 442 (1967) Marshall v. Warden
RICHARD MARSHALL, RICHARD COUSINEAU, WENDELL JENSEN, ROGER
BOUSACK, ROBBIE OLAN CRAIG, DANNY ERLE McLEMORE, WILLIAM E.
BARNHILL, and HAROLD G. GORDON, Appellants, v. WARDEN, NEVADA STATE
PRISON, Respondent.
No. 5449
November 28, 1967 434 P.2d 437
Appeal from denial of habeas corpus of the Eighth Judicial District Court, Clark County;
John F. Mendoza, Judge.
Petitioners brought post-conviction petitions in district court in which they were convicted.
The lower court ruled that it did not have jurisdiction to entertain the petitions and petitioners
appealed. The Supreme Court, Thompson, C. J., held that constitutional provision granting
power to district court to issue all writs proper and necessary to complete exercise of its
jurisdiction empowered the court to hear petitions for writs challenging proceedings leading
to conviction in that court so that provision in post-conviction collateral remedy act vesting
jurisdiction to hear post-conviction proceeding in district court in which the conviction took
place was constitutional, but provision in post-conviction collateral remedy act that new
post-conviction remedy of filing petition in district court in which petitioner was convicted
should be used exclusively in place of other remedies for challenging validity of conviction or
sentence was unconstitutional.
Reversed.
Richard H. Bryan, Public Defender, and Anthony M. Earl, Deputy Public Defender, Clark
County, for Appellants.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, James D.
Santini, Deputy District Attorney, Clark County, for Respondent.
Russell W. McDonald and Frank W. Daykin, Legislative Counsel, amicus curiae.
Robert F. List, President, Nevada District Attorneys Association, amicus curiae.
1. Criminal Law.
Constitutional provision granting power to district court to issue all writs proper and necessary to
complete exercise of its jurisdiction empowered the court to hear petitions for writs
challenging proceedings leading to conviction in that court so that provision in
post-conviction collateral remedy act vesting jurisdiction to hear post-conviction
proceeding in district court in which the conviction took place was constitutional.
jurisdiction empowered the court to hear petitions for writs challenging proceedings leading to conviction
in that court so that provision in post-conviction collateral remedy act vesting jurisdiction to hear
post-conviction proceeding in district court in which the conviction took place was constitutional. Stats.
1967, ch. 523, 318; Const. art. 6, 6.
2. Habeas Corpus.
Prior to conviction, one in actual custody within judicial district may file habeas petition with district
court of that district if appropriate grounds therefor exist.
3. Habeas Corpus.
Actual custody so as to permit individual prior to conviction to file habeas petition with the district
court of that district includes individual on probation.
4. Habeas Corpus.
Constitutional writ of habeas corpus used as post-conviction procedure to challenge in district court of
district in which petitioner is held in actual custody validity of his conviction could not be abolished by
legislative fiat and provision in post-conviction collateral remedy act that new post-conviction remedy of
filing petition in district court in which petitioner was convicted should be used exclusively in place of
other remedies for challenging validity of conviction or sentence was unconstitutional. Stats. 1967, ch. 523,
317; Const. art. 6, 6.
5. Statutes.
Provision in post-conviction collateral remedy act that new post-conviction remedy of filing petition in
district court in which petitioner was convicted should be used exclusively in place of other remedies for
challenging validity of conviction was severable from other provisions of that act, and unconstitutionality
of that provision did not void other provisions of the act. Stats. 1967, ch. 523, 317-324.
OPINION
This appeal aims to sustain the constitutionality of Section 318
1
of the 1967
post-conviction collateral remedy act [67 Stats. Nev., ch. 523, 317-324] in so far as it
purports to vest jurisdiction to hear a post-conviction proceeding in the district court in which
the conviction took place.
Each petitioner-appellant was convicted in the Eighth Judicial District Court, Clark
County, Nevada, and is now an inmate of the Nevada State Prison, Ormsby County, Nevada,
located within the First Judicial District.
____________________

1
Section 318 provides: Unless otherwise ordered by the supreme court or a justice thereof, the proceeding is
commenced by filing a petition verified by the petitioner with the clerk of the court in which the conviction took
place. * * *
located within the First Judicial District. The Eighth Judicial District Court ruled that it did
not have jurisdiction to entertain the post-conviction petitions since the Nevada Constitution
only grants power to issue writs of habeas corpus to the district court of the district in which
the petitioner is held in actual custody.
2
For this reason the lower court declared Section 318
of the new act unconstitutional. We reverse.
In recent years the United States Supreme Court has extended many federal protections to
state criminal cases.
3
These pronouncements carry with them the need for an appropriate
state post-conviction collateral remedy to review claimed violations of federally protected
rights. Case v. Nebraska, 381 U.S. 336 (1965). Nevada responded in 1967. The court below
held that the legislative response countermands jurisdictional limitations placed upon district
courts by our state constitution and cannot stand.
[Headnote 1]
We think that there is ample provision in our state constitution for the new remedy since it
expressly grants to the district courts, among other powers, the power to issue all other writs
proper and necessary to the complete exercise of their jurisdiction. Nev. Const. art. 6, 6.
The district court wherein the conviction took place is the court empowered by this specific
provision to hear petitions for writs challenging proceedings leading to that conviction, and
that is the court to which the new remedy is addressed.
The ruling below rested upon the habeas corpus provision of art. 6, 6. That court
reasoned that since the petitioners were in the actual custody of the Nevada State Prison, their
post-conviction applications could only be presented to the First Judicial District Court. This
was error. The habeas provision does not derogate from the grant of power to issue all other
writs proper and necessary to the complete exercise of their jurisdiction."
____________________

2
Nev. Const. art. 6, 6 reads in part: * * * and also shall have power to issue writs of Habeas Corpus on
petition by, or on behalf of any person held in actual custody in their respective districts.

3
Fourth Amendment: Mapp v. Ohio, 367 U.S. 643 (1961); Ker v. California, 374 U.S. 23 (1963).
Fifth Amendment: Malloy v. Hogan, 378 U.S. 1 (1964); Griffin v. California, 380 U.S. 609 (1965); Miranda
v. Arizona, 384 U.S. 436 (1966).
Sixth Amendment: Gideon v. Wainwright, 372 U.S. 335 (1963); White v. Maryland, 373 U.S. 59 (1963);
Escobedo v. Illinois, 378 U.S. 478 (1964); Pointer v. Texas, 380 U.S. 400 (1965); Washington v. Texas, 388
U.S. 14 (1967).
Eighth Amendment: Robinson v. California, 370 U.S. 660 (1962).
their jurisdiction. The two provisions are each to be given full effect.
[Headnotes 2, 3]
Prior to conviction, one in actual custody within the judicial district may file a habeas
petition with the district court of that district if appropriate grounds therefor exist.
4
Following conviction, he is given a choice of remedies. He may file the traditional habeas
petition, with its limitations in scope, in the district court of the district having his custody, or
utilize the broader remedy of the 1967 act and request relief from the court in which his
conviction occurred. The latter will undoubtedly prove to be the preferred course since it is
designed to reach some issues which are beyond the scope of habeas. For example, the new
remedy is available to collaterally challenge a conviction upon any ground of alleged error
heretofore available under any common law, statutory or other writ, motion, petition,
proceeding or remedy * * *. Section 317. Although we have judicially extended the scope of
habeas in recent years [Morford v. Fogliani, 82 Nev. 79, 411 P.2d 122 (1966); Messmore v.
Fogliani, 82 Nev. 153, 413 p.2d 306 (1966); Bundrant v. Fogliani, 82 Nev. 388, 419 P.2d 293
(1966); Orsborn v. Fogliani, 82 Nev. 300, 417 p.2d 148 (1966); Krause v. Fogliani, 82 Nev.
459, 421 P.2d 949 (1966)], that remedy is obviously not coextensive with the sweep of the
new post-conviction remedy as expressed in section 317. We conclude that section 318
vesting jurisdiction to hear the new post-conviction application in the district court where the
conviction took place is compatible with Nev. Const. art. 6, 6.
5

[Headnotes 4, 5]
Although we find no constitutional infirmity in Section 318, we believe that the legislature
stepped out of bounds when it provided in Section 317 that the new post-conviction remedy
shall be used exclusively in place of other remedies heretofore available for challenging the
validity of a conviction or sentence.6 The constitutional writ of habeas corpus heretofore
used, within defined limits, as a post-conviction procedure to challenge the validity of a
conviction, may not be abolished as a post-conviction remedy by legislative fiat.
____________________

4
The words actual custody are sufficiently, broad to encompass one on probation [Garnick v. Miller, 81
Nev. 372, 403 P.2d 850 (1965)] and one on bail [Ex parte Philipie, 82 Nev. 215, 414 P.2d 949 (1966)].

5
An unfortunate labelhabeas corpuswas selected for the new remedy, and may have caused the present
controversy. As explained, the breadth of the new remedy exceeds that of habeas. Had a different label been
chosen for the new remedy this litigation would probably have been avoided. In any event, the choice of a name
cannot control since the two remedieshabeas corpus and the new Section 317 proceedingbear differences in
substance.
sentence.
6
The constitutional writ of habeas corpus heretofore used, within defined limits, as
a post-conviction procedure to challenge the validity of a conviction, may not be abolished as
a post-conviction remedy by legislative fiat. To this extent, Section 317 is unconstitutional.
This infirmity, however, does not void the entire post-conviction remedy act, since the other
parts are severable. West Indies, Inc. v. First NationaL Bank, 67 Nev. 13, 214 P.2d 144
(1950).
Reversed and remanded for post-conviction hearings in accordance with the 1967
post-conviction remedy act.
Collins, J., Zenoff, J., Batjer. J., and Mowbray, J., concur.
____________________

6
Section 317(2) provides: The remedy herein provided * * * comprehends and takes the place of all other
common law, statutory, or other remedies which have heretofore been available for challenging the validity of
the conviction or sentence, and shall be used exclusively in place of them. * * *
____________
83 Nev. 446, 446 (1967) Hall v. Warden
FRANKLIN L. HALL, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 5302
November 29, 1967 434 P.2d 425
Appeal from an order of the First Judicial District Court, Ormsby County, denying a
petition for habeas corpus; Frank B. Gregory, Judge.
Habeas corpus proceeding brought by prisoner who had been convicted of murder in the
second degree. The lower court denied petition, and petitioner appealed. The Supreme Court,
Collins, J., held that petitioner's Sixth Amendment right to counsel before arraignment as
pronounced in Escobedo decision did not apply where petitioner was informed of that right
but made no request for counsel prior to arraignment.
Affirmed.
Lester H. Berkson, of Zephyr Cove, for Appellant.
Harvey Dickerson, Attorney General, Peter I. Breen, Deputy Attorney General, Carson
City, for Respondent.
83 Nev. 446, 447 (1967) Hall v. Warden
1. Courts.
Miranda decision was not applicable to case which was initiated prior to rendering of that decision.
2. Courts.
Decision holding that preliminary hearing is not a critical stage in proceeding was not superseded as to
petitioner by subsequent decision which was predicated upon statutory revision permitting magistrate to
appoint counsel for indigent where revision did not go into effect until after preliminary proceedings as to
petitioner were concluded. NRS 171.370.
3. Criminal Law.
Petitioner's Sixth Amendment right to counsel before arraignment as pronounced in Escobedo decision
did not apply where petitioner was informed of that right but made no request for counsel prior to
arraignment.
4. Criminal Law.
Where guilty plea is not coerced and petitioner was competently represented by counsel the guilty plea,
being the basis of conviction, is not open to collateral attack, and any errors are superseded by the plea of
guilty.
5. Criminal Law.
Defendant who was represented by counsel who avoided risk of trial in which capital punishment or
imprisonment for life without parole might have been affixed and arranged with prosecution for dropping
pending robbery charge and trial on second-degree murder charge which resulted in a 10-to 50-year
sentence was accorded effective representation.
6. Criminal Law.
Although police may not induce guilty pleas by threats, they may tell the accused what evidence they
have against him.
7. Criminal Law.
Any error in district attorney's manner of interrogating accused after accused, while held on robbery
charge, had voluntarily confessed to previously unsolved homicide precluded only the admission of later
statements by accused and not those made in his initial confession.
8. Criminal Law, Habeas Corpus.
A plea of guilty taken by coercion is not a proper basis for holding a person convicted under that plea,
and it makes a conviction based on the plea subject to collateral attack by way of habeas corpus.
A conviction based on plea of guilty taken by coercion is no more consistent with due process than a
conviction obtained by use of a coerced confession.
10. Criminal Law.
A coerced plea of guilty is not the same as one induced by police procedure of making known to
defendant their evidence, and telling him of such evidence is not itself coercion.
11. Habeas Corpus.
Petitioner who sought habeas corpus failed to establish that his change of plea from not guilty to guilty
was not voluntary in view of record.
83 Nev. 446, 448 (1967) Hall v. Warden
12. Habeas Corpus.
An applicant for habeas corpus who has plead guilty in open court while competently represented by
counsel may not relitigate the question of his guilt or innocence in a collateral proceeding.
13. Habeas Corpus.
Refusing to allow habeas corpus petitioner to offer evidence on question of his guilt or innocence at
post-conviction hearing was not error where he had plead guilty in open court while competently
represented by counsel.
OPINION
This is an appeal from a denial of habeas corpus. Appellant was convicted in the Eighth
Judicial District Court of the crime of murder in the second degree upon his plea of guilty to
that charge and was sentenced to the state penitentiary where he has served over one year. His
application for a post-conviction writ of habeas corpus to the First Judicial District Court was
denied, and he appeals to this court. He specifies error of the First Judicial District Court as
follows:
1. That he was denied counsel before his arraignment in the Eighth Judicial District Court.
2. That his court-appointed counsel were ineffective and he was thus denied his right to
counsel.
3. That his plea of guilty was not voluntary in nature.
4. That at the post-conviction hearing he was denied the right or opportunity to put in
evidence pertaining to his innocence.
We conclude the denial of habeas corpus by the First Judicial District Court was correct
and deny petitioner any relief from his conviction in the Eighth Judicial District Court.
On February 14, 1965, appellant was incarcerated in the Clark County jail on robbery
charges. He had been in that jail approximately two and one-half months and although bail
had been fixed and reduced to $500, he was unable to make bail. On that date appellant wrote
and gave the following letter to a guard:
Franz, sir:
I wish to copout' to a murder. Come and take me upstairs quietly and quickly.
Of all people
Franklin Hall (Francis) Appellant was taken
to a separate room removed from the jail.
83 Nev. 446, 449 (1967) Hall v. Warden
Appellant was taken to a separate room removed from the jail. He had in his possession a
letter of confession which he then turned over to the authorities. The letter
1
confessed to a
previously unsolved homicide. Appellant was next driven in a car to the scene of the
homicide and was informed by the authorities that this was the location where the victim's
body had been found. Following this, he was taken to the Las Vegas city jail where additional
statements were taken from the appellant by the officers. Later that evening appellant wrote
another full confession.
On February 17, 1965 appellant was visited by the Clark County district attorney in the
jail.
____________________

1
Mr. District Attorney.:
On or about Dec 27th 1964 I approached a cab at the Riviera Hotel and instructed him to take me to the 500
block So 2nd St.
Prior to entering the cab I had picked up a length of iron pipe about 11 long with intentions of beating the
Driver and robbing him.
Upon entering the darkest section of the block on So 2nd I ordered him to pull over to the curb as we were
in front of my house. He did and I immediately began to beat him about the head.
He tried to stop me and jumped in the rear seat with me during the struggle.
He begged me to stop because he said he had a bad heart. But he tried to trick me by pretending to reach for
his money then attempting to leap out of the cab.
He was bleeding badly from several places on the back of his head.
I then hit him another couple of times and proceeded to reach into his pocket and get the money myself. I
told him I intended to kill him because he had tried to trick me and then he didn't stop me any more so I took all
the money he had on him except what might have been in his wallet for I didn't think of it at the moment.
He kept begging me to please not hit him again but he was stupid because after I had the money and was
going to dump him out he tried to grab me and we struggled for about 2 or 3 minutes.
I told him that now I was going to kill him for sure and I beat him another couple of blows and then he sat
there and closed his eyes and fell over like he was out. I then pushed him out the door.
Before I could get into the front seat to drive away he got up and started to get away.
I jumped out of the cab and pushed him hitting him once more. This time he fell on the side walk. I stood
over him a moment and then walked to the cab and drove away.
I parked the cab a few blocks away. I think it was on South 3rd St. then I proceeded to a service station
where I washed off his blood and counted the money. It was $32.00.
I believe I hit him 8 or 10 times altogether. I hid the pipe in some grass in the alley between 2nd and 3rd St
in about the 800 block So. I think it may still be there unless found by playing kids.
Franklin L. Hall
7 man tank
County Jail
83 Nev. 446, 450 (1967) Hall v. Warden
County district attorney in the jail. Appellant states he was advised by the district attorney:
They had the confessions, would use them if I was going to trial, they definitely would get a
conviction, and he would call for life without possibility of parole.
Appellant was arrested and charged with murder on February 19, 1965. He was arraigned
in justice court that same day. He advised the court he was without funds to obtain counsel.
Nevada law at that time did not provide for appointment of counsel at the justice court level,
and none was appointed. He was advised by the justice of the peace that he had a
constitutional right to counsel but that the court had no authority to appoint counsel for him at
that time. Appellant waived counsel and a preliminary hearing. He was bound over to the
district court on the charge of murder. On his arraignment in the district court co-counsel
were appointed for him because of his indigency. The court designated Wayne Clark, Esq.,
and Alfred Becker, Esq. Later Mr. Becker was allowed to withdraw and Douglas Shoemaker,
Esq., was appointed as co-counsel.
At arraignment appellant entered a plea of not guilty to the murder charge. On April 30,
1965 appellant in the presence of his counsel in open court withdrew his plea of not guilty
and entered a plea of guilty to second degree murder.
Defendant requested probation and the court ordered the matter continued pending receipt
of a report and recommendation from the Department of Parole and Probation. Following
receipt of that report appellant appeared in open court with his co-counsel and the deputy
district attorney for the purpose of sentencing. A lengthy hearing was held at the insistence of
the trial judge. The transcript of that hearing was not a part of the record before the First
Judicial District Court on the hearing of the petition for habeas corpus, nor was it a part of the
record before this court. We consider it to be of major importance, and have ordered it made a
part of the record on appeal.
The transcript of the May 21st hearing conducted by the trial judge in the Eighth Judicial
District Court is extensive and demonstrates a genuine concern by the trial judge, by the
deputy district attorney and particularly by co-defense counsel in exploring the entire matter
in depth. We attach a verbatim copy of that transcript to this opinion as an addendum.
The testimony before the First Judicial District Court shows that in handling the case both
Clark and Shoemaker not only conferred with each other but also researched the law on the
subject, conferred with other attorneys and investigated the facts surrounding the first written
confession. They asked for a psychiatric examination of the petitioner, which was granted
by the court.
83 Nev. 446, 451 (1967) Hall v. Warden
psychiatric examination of the petitioner, which was granted by the court. In their opinion the
biggest hurdle facing them was the first written confession of the petitioner. They felt that
confession was admissible and greatly increased the chances of a conviction.
The record further shows that they conferred with the district attorney and were told that
the state would, in exchange for plea of guilty to second degree murder, drop the open charge
of murder and the robbery charge as well. The record then shows petitioner and his attorneys
met to discuss this matter. His counsel related to him their opinions with regard to certain
facts and situations they thought would possibly influence the court. They told him that it
would be advantageous for him to accept the offer of the district attorney but they left the
final decision in his hands. Five minutes before his arraignment he decided to change his plea
to that of guilty to second degree murder. The court accepted his change of plea and
sentenced him to not less than 10 nor more than 50 years in the state penitentiary. He could
have been given a maximum sentence of life imprisonment.
[Headnote 1]
We first turn to appellant's contention that he was denied his constitutional rights before
arraignment. Since this case was initiated prior to June 13, 1966, the federal constitutional
rights as pronounced in the case of Miranda v. Arizona, 384 U.S. 436 (1966), do not apply.
Johnson v. New Jersey, 384 U.S. 719 (1966). We must therefore look to the pre-Miranda
standards.
[Headnote 2]
The federal constitutional standards with regard to a defendant's right to counsel at critical
stages of the proceedings against him which were applicable at the time appellant appeared
before the justice of the peace were those announced in Gideon v. Wainwright, 372 U.S. 335
(1963) (trial); Hamilton v. Alabama, 368 U.S. 52 (1961) (a proceeding at which a certain
defense must be raised or be forever waived); White v. Maryland, 373 U.S. 59 (1963) (a
proceeding where one must enter his plea); and Massiah v. United States, 377 U.S. 201
(1964) (where incriminating evidence was elicited by prosecuting officials). Under that
authority we held in Victoria v. Young, 80 Nev. 279, 392 P.2d 509 (1964), that a preliminary
hearing in Nevada was not a critical stage in the proceeding. Appellant's contention that the
doctrine of Victoria v. Young has been superseded by Ibsen v. State, 83 Nev. 42, 422 P.2d
543 {1967), is not correct.
83 Nev. 446, 452 (1967) Hall v. Warden
422 P.2d 543 (1967), is not correct. Ibsen was predicated upon the statutory revision of NRS
171.370
2
which did not go into effect until April 3, 1965, a time after these preliminary
proceedings were concluded.
[Headnote 3]
The record shows that the justice of the peace advised petitioner of his constitutional right
to counsel and his right to a preliminary hearing. He waived both of those rights at that time.
3
This was all the court was then required by law to do. Nor does petitioner's federal
constitutional Sixth Amendment right to counsel as pronounced in Escobedo v. Illinois, 378
U.S. 478 (1964), apply. We said in Bean v. State, 81 Nev. 25, 398 P.2d 251 (1965), that a
request for counsel was necessary before the Escobedo doctrine would be invoked. The
record here is devoid of any demand by petitioner for appointment of counsel prior to
arraignment in the district court.
An additional factor in this case is that the conviction came as a result of appellant's plea
of guilty. We said in Rainsberger v. State, 81 Nev. 92, 399 P.2d 129 (1965): A different
complexion is cast upon claimed constitutional violations and other claims of error when, as
here, a defendant charged with murder, has voluntarily and with the assistance of competent
court-appointed counsel, entered a plea of guilty in open court. * * *
____________________

2
1. When the defendant is brought before the magistrate upon an arrest, either with or without a warrant, on
a charge of having committed a public offense, the magistrate must immediately inform him of the charge
against him, and of his right to the aid of counsel at every stage of the proceedings, and before any further
proceedings are had.
2. Any defendant charged with a felony or a gross misdemeanor who is an indigent may, by written
application addressed to the district court and delivered to the magistrate, request the appointment of an attorney
to represent him.
3. The application shall be accompanied by the defendant's affidavit, which shall state:
(a) That he is without means of employing an attorney; and
(b) Facts with some particularity, definiteness and certainty concerning his financial disability.
4. The magistrate shall forthwith transmit the application and affidavit to the appropriate judge of the
district court. If, after reading the application and affidavit and conducting such further inquiry as he may deem
necessary, the judge finds that the defendant is without means of employing an attorney the judge shall appoint
an attorney or designate the public defender to represent him.

3
The practice with regard to indigent defendants was for them to waive their right before the magistrate,
consent to be bound over and when arraigned before a district judge, counsel would be appointed who would
then move to remand the case to the magistrate for a preliminary hearing.
83 Nev. 446, 453 (1967) Hall v. Warden
The constitutional safeguards pointing to a fair trial are greatly diluted in significance, for a
trial to determine the ultimate issue of innocence or guilt has been waived by the plea of
guilty. The presumption of innocence has ceased to exist, and the defendant stands before the
court an admitted murderer, asking mercy and understanding with respect to degree and
penalty. If the plea of guilty is not itself constitutionally infirm, it would appear that one who
has so confessed may not rely upon the constitution to free him. * * * Id. 95, 96.
* * * * *
We hold that where, as here, one accused of murder voluntarily pleads guilty upon
arraignment in open court, with the advice of competent counsel, the federal constitutional
right to counsel is not violated, notwithstanding the fact that the accused, before entering his
guilty plea, was without counsel when he confessed the crime and at the preliminary hearing.
Id. 100. Here there is no evidence that the plea was obtained in derogation of his
[Headnote 4]
Thus it can be said that so long as the plea itself was not coerced and petitioner was
competently represented by counsel, the guilty plea, being the basis of the conviction, will not
be open to collateral attack, and the errors, if there were any, would be superseded by the plea
of guilty.
Accordingly, we must turn to examine the contention that appellant's court-appointed
counsel were not competent and further that the action of counsel did not amount to effective
representation.
It is true that the First Judicial District Court did not allow any great exploration of the
competency of counsel based upon previous criminal experience and sustained an objection
to that inquiry. However, as shown by the transcript of the sentencing attached hereto as an
addendum, very little substance can be accorded to either charge that counsel were not
competent or that their representation was not effective.
The case of People v. Ibarra, 386 P.2d 487 (Cal. 1963), squarely holds that inadequate
representation by appointed counsel is the denial of a right of the defendant to counsel. Here
appellant contends the ineffective representation stemmed from: (1) his counsel's failure to
remand the case for preliminary hearing; (2) that counsel did nothing to try to suppress the
confession before letting the petitioner change his plea to guilty; and (3) that counsel talked
petitioner into changing his plea to that of guilty even though there were some questions as to
the voluntary nature of the confessions and the criminal means of the victim's death.
83 Nev. 446, 454 (1967) Hall v. Warden
to the voluntary nature of the confessions and the criminal means of the victim's death.
The cases seem to hold that to sustain a charge that counsel was incompetent, the
assistance rendered must have been so ineffective as to be considered useless. Soulia v.
O'Brien, 94 F.Supp. 764 (1950). The California case of People v. Logan, 290 P.2d 11
(Cal.App. 1955), summarizes the law on the subject. That court stated: When it is claimed *
* * that the defendant was inadequately represented by counsel * * * the question is whether
he was substantially denied his constitutional right to be represented by counsel. * * * [citing
among others, People v. Avilez, 194 P.2d 829 (Cal.App. 1948)]. But where an accused is
represented by counsel and the basis of his claim is that he received poor advice, indicative of
poor judgment on the part of his attorney, and acted thereon to his detriment, those facts, even
if substantiated, do not amount to a denial of the right of representation. [citing cases].
The court in People v. Wein, 326 P.2d 457 (Cal. 1958), similarity stated: The handling of
the defense by counsel * * * will not be declared inadequate except in those rare cases where
his counsel displays such a lack of diligence and competence as to reduce the trial to a farce
or a sham.' (which involved retained counsel). But see In re Atchley, 310 P.2d 15 (Cal.
1957) (where appointed counsel has the same obligations as retained counsel).
The United States Circuit Court of Appeals in Ex rel. Weber v. Ragen, 176 F.2d 579 (7th
Cir. 1949), in commenting upon the nature of the services given by counsel in meeting the
due process requirement said, the services of counsel meet the requirements of the due
process clause when he is a member in good standing at the bar, gives his client his complete
loyalty, serves him in good faith to the best of his ability, and his service is of such character
as to preserve the essential integrity of the proceedings as a trial in a court of justice. He is not
required to be infallible.
[Headnotes 5-7]
We conclude from the record before the court, as supplemented by the sentencing
transcript, that appellant's representation by co-counsel was effective. Counsel were faced
with a client who had made a completely voluntary admission and confession of a possible
capital offense before he had been under suspicion. The first written confession which
appears purely voluntary was admissible even under the Miranda doctrine. The latter
admissions, although there may have been some question about them, may also have been
ruled admissible.
83 Nev. 446, 455 (1967) Hall v. Warden
some question about them, may also have been ruled admissible. The doctrine of Escobedo
would not apply because petitioner had never requested an attorney. The proceeding in the
justice's court at that time was not considered a critical stage in the proceeding under the
Victoria rule. The one area where error possibly may have been committed was that of the
district attorney's interrogating the appellant. Although police may not induce guilty pleas by
threats, they may tell the accused what evidence they do have against him. Watts v. United
States, 278 F.2d 247 (D.C. Cir. 1960). However, that possible error would preclude the
admission only of the later statements of the appellant and not those made in the first written
confession. White v. State, 82 Nev. 304, 417 P.2d 592 (1966).
Court-appointed co-counsel achieved a result for their client which seems more admirable
than inadequate. Petitioner avoided the risk of a trial in which capital punishment or
imprisonment for life without parole might have been affixed. Instead he was given a 10 to
50-year sentence for second degree murder. Furthermore, the pending robbery charges for
which he was initially held in jail were dismissed.
[Headnotes 8-11]
The next assignment of error concerns the voluntariness of his change of plea from not
guilty to guilty. A plea of guilty taken by coercion is not a proper basis for holding a person
convicted under that plea. It makes the conviction based on the plea subject to collateral
attack by way of habeas corpus. Herman v. Claudy, 350 U.S. 116 (1956). Such a conviction is
no more consistent with due process than a conviction obtained by the use of a coerced
confession. Waley v. Johnston, 316 U.S. 101 (1942). A coerced plea, however, is not the
same as one induced by the police procedure of making known to the defendant their
evidence. Telling him of such evidence is not itself coercion. Watts v. United States, supra.
The record indicates that appellant's co-counsel advised him of the good and bad points of the
case and what they thought would be elements and factors provable in court. After telling
appellant their interpretation of the situation and evidence, they urged him to accept the state's
offer to plead guilty to a reduced charge. However, they left that decision up to him. There is
nothing in the record to indicate that the decision was made by hall as a result of anything
other than intelligent application of his own will to the problem. Explanations of evidence,
possible results to be expected at trial and analysis or the over-all situation by dedicated
counsel cannot be correlated with compulsion.
83 Nev. 446, 456 (1967) Hall v. Warden
or the over-all situation by dedicated counsel cannot be correlated with compulsion. The
record fails to support appellant's contention that his change of plea was not voluntarily made.
[Headnotes 12, 13]
The next assignment concerns the refusal of the First Judicial District Court to allow
appellant to offer evidence upon the question of guilt or innocence. Following a plea of guilty
in open court while competently represented by counsel an applicant for habeas corpus in a
collateral proceeding may not re-litigate the question of his guilt or innocence. Fisher v.
Fraser, 233 P.2d 1066 (Kan. 1951); Rainsberger v. State, 81 Nev. 92, 399 P.2d 129 (1965).
Other assignments of errors were made by appellant but being of little significance we
disregard them.
The denial of habeas corpus by the First Judicial District Court is sustained.
Thompson, C. J., Zenoff, J., Batjer, J., and Mowbray, J., concur.
ADDENDUM
REPORTER'S TRANSCRIPT OF CONSIDERATION OF PROBATION AND RENDITION
OF SENTENCE HELD MAY 21, 1965 IN THE EIGHTH JUDICIAL DISTRICT COURT:
By the Court: This is the time set for the sentencing in this case, this defendant having
entered a plea of guilty to the charge of second degree murder. Do you wish to make any
remarks, Mr. Shoemaker?
By Mr. Shoemaker: Your honor, I would like to indicate to the Court that although we
fully realize the seriousness of this charge that there are some mitigating circumstances that I
will request the court to take into consideration, number one, that this death was not caused
by means which are shocking to the mind, that is by rape, poison or gun or something like
that. In actuality the death was probably by accidental means, although we do not indicate or
intend to indicate to the court that there was not the crime committed here but we would
indicate that if the victim had good health or even normal health the death would not have
occurred. We would further indicate to the court that some of the background of this
particular individual, the defendant herein, should be taken into consideration and that is that
as a youth he was somewhat broken up by the early death of his father. There has been, as a
result of that death some psychological problems which I am sure have contributed to his
problems in which he now finds himself.
83 Nev. 446, 457 (1967) Hall v. Warden
as a result of that death some psychological problems which I am sure have contributed to his
problems in which he now finds himself. I realize the nature of the crime is such that the
court, of course, could not grant leniency as to any minimum sentence but I would indicate to
the Court that the defendant has actually cooperated, he would never have been caught had
his conscience not brought him before the Court. The District Attorney has so indicated and I
would request that the Court take these factors into consideration when he sets the maximum
term herein.
By the Court: What is the age of the defendant at this time?
By Mr. Shoemaker: I believe he is 23, Your Honor.
By the Court: Mr. Clark, do you wish to make a statement?
By Mr. Clark: Your Honor, I hope that I will not make a repetition of the very excellent
remarks made by co-counsel; at the same time I would like to re-emphasize the fact that the
defendant came from a religious family and he lost his father at a very early age. His mother
had to go out to work and it was not proper supervision and as a consequence he was left
mostly on his own. I would like to also comment on the facts that surround the circumstances
of the incident and the deceased or of the victim and his disease and the fact that this came
about through a struggle and there is a possibility that there is a question arises that the death
ensued possibly not from any action upon the defendant other than a struggle, however, since
the crime was committed at the same time and it appears evident that there was, the
conclusion can be drawn that the victim meet his death through the means of the defendant.
However, the defendant, of course, did not have any knowledge that the victim had a heart
condition which was probably brought on by the struggle. The autopsy report has a neutral
attitude on that as to whether he did actually die as a result of the struggle or by the efforts of
the defendant.
Now, we do have a letter from the District Attorney indicating that he has not shown any
history of any violent crimes before and we would like very much if Your Honor would
respectfully consider the statement made by both counsel on behalf of the defendant and we
would like to reiterate that the defendant has fully cooperated with the authorities, explained
each and every detail and I think that he has even overemphasized his participation in the
incident and he more or less took the attitude that he wanted to be punished and he feels that
he owes a debt to society but we would like, if Your Honor please, that these facts and
matters would be taken into consideration in fixing the maximum sentence.
83 Nev. 446, 458 (1967) Hall v. Warden
Honor please, that these facts and matters would be taken into consideration in fixing the
maximum sentence.
By the Court: Thank you, Mr. Clark. Do you have anything that you would like to add to
the comments of counsel, Mr. Bryan or Mr. Johns?
By Mr. Bryan: Well, Your Honor, the only thing I would like to do is point out that the
criminal law is that the defendant takes the victim under the condition that he finds him. The
report of the probation department rather adequately covers the offense report and the State,
of course, stands upon the facts embodied in that particular report, Your Honor.
By the Court: Do you have anything further to add, Mr. Shoemaker or Mr. Clark?
By Mr. Shoemaker: No, Your Honor.
By the Court: Dr. O'Gorman has examined this defendant to determine his mental
condition and Dr. O'Gorman has submitted a letter dated May 9, 1965 and in his report it is
interesting to note in the second grammatical paragraph under the heading of Purpose of
Examination is as follows: This patient was seen in the County Jail. His initial comments
were: I turned myself in for murder; I wanted to bring attention of my mother, my sister and
my friend, Rick, to make them wish they had gotten me out'. This was in relationship to a
purse-snatching charge, which he claims he did not do. It is no wonder I have killed.'
Now, under Family History it states: He was born in King City, Missouri, June 4, 1939,
and lived there six months. The family moved to St. Joseph, Missouri, for one year, Pittsfield,
Illinois for two years, Whitehall, Illinois one year, Highland, Illinois five years, Verdon,
Illinois one year and then settled in Springfield, Illinois, where he remained until the year
1959 when he left for California with a friend of his. He has spent the remaining years of his
life in Pasadena, California. His father died at the age of 73. The patient was 13 at the time
and his father was a Baptist minister. I loved my father more than anything in the world. He
took me fishing, go to the woods and walk, go to the park; I got more things from my father.'
Mother is 63 years of age, alive and well, lives in Illinois. She was age 37 when the patient
was born. There is one sister, age 23, single.
I have read the statement that the defendant gave after he returned to the City of Las Vegas
and apparently he returned several times after this attack had occurred to determine what had
happened to his victim. I journeyed to the City Library and read the newspapers there and
learned that the victim had died."
83 Nev. 446, 459 (1967) Hall v. Warden
had died. Remorse set in and he proceeded to go to the authorities and discuss this case with
them.
Certainly it is to his credit that he has made a full and complete confession. The court is
not unmindful of that. You are to be commended for your change of heart, so to speak, on
your part, and your confession in coming forward and making your statement and be willing
to take your punishment, as you say.
I notice in the probation report there is a letter From the District Attorney, Mr. Marshall, to
Mr. Gerow in which he says in part as follows:
As you know Hall voluntarily confessed this crime and was not considered a suspect in
the matter prior thereto. I have discussed the case with Hall personally on one occasion and
have reviewed both the file and the facts of his confession. I have also received what I
consider sound and reliable information concerning him from sources inside the jail. My
impression is frankly that this boy is a most unlikely murderer, having come from a good
home environment. I think there is a tinge of mental or social instability in his personality and
I strongly recommend that he be given the benefit of all psychiatric services that may be
available at the State Prison.
Now, I will certainly agree with that, I think that you certainly do need psychiatric help.
Now, as to the observation that this victim, the cab driver, who I understand was a family
man, suffered a heart condition. Mr. Bryan, I believe, has correctly stated the law, not only in
tort but also in criminal law. (Citing cases.)
By Mr. Shoemaker: But with the court's permission we did not mean to indicate that the
crime was not committed, all we indicated was that the circumstances should be taken into
consideration by the court in mitigation of the punishment.
By the Court: Well, I appreciate that, counsel. The one fact that impressed this Court
when the Court was reading the statement of the defendant was that this was not a single
blow. The beating took place in a relatively short period of time and this victim was struck
several times on the head and then he asked the assailant to stop and he got in the back seat to
try to stop him and the beating continued, apparently the assailant demanded money from the
victim and the victim was trying to get out the door. The victim said he would give him his
money and apparently tried to get out the door and the pounding and beating apparently kept
up for some period of time. The victim then sort of rolled out the door and then staggered
over and fell on the pavement.
83 Nev. 446, 460 (1967) Hall v. Warden
and fell on the pavement. It is my impression that this beating took place over some period of
time.
By Mr. Clark: Well, in the statement it seems that the defendant has somewhat
exaggerated the number of blows that were struck and later stated that he just wanted to
punish himself to the fullest extent and he said that he had struck more blows than he actually
had.
By Mr. Shoemaker: If the court has read the autopsy report---
By the Court: I have read everything that was submitted to me, the doctor's report, the
statement, the District Attorney's letter and the report from the Department of Parole and
Probation.
By Mr. Shoemaker: I don't believe the autopsy report was available to the court. I have a
copy with me if you would like to see it. May I approach the bench?
By the Court: Yes. Now, I have read the doctor's report. Do you have anything further?
By Mr. Shoemaker: Nothing further, Your Honor.
By the Court: You see, actually the defendant was engaged in the commission of a felony
at the time this occurred and there have been other cases where the defendants have been
convicted of first degree murder even though the Court has said that the fact that the victim of
the assault was in a weakened condition, or was suffering from a disease, and death comes as
a result of the blow which might not have been fatal under ordinary circumstances,
nonetheless, they caused the death. I know of no duty imposed upon the victim to supply a
guarantee of good health to a robber, and that is a true statement of the law, I believe. NRS
200.030 provides in part, in paragraph 4, as follows: Every person convicted of murder in
the second degree shall suffer imprisonment in the State Prison for a term of not less than 10
years, which makes 10 to life. In other words, he is subject to sentencing of the minimum 10
years which the Court may extend to life.
An information having been filed against you, Franklin Leslie Hall, charging you with the
crime of second degree murder, and you having entered your plea of guilty thereto and no
good reason having been shown why sentence should not be pronounced, at this time the
Court finds you guilty as charged in the Information.
Now, therefore, it is the judgment and order of this Court that you be sentenced to and
confined in the State Prison at or near Carson City, Ormsby County, State of Nevada, for a
period of not less than 10 years nor more than 50 years.
83 Nev. 446, 461 (1967) Hall v. Warden
near Carson City, Ormsby County, State of Nevada, for a period of not less than 10 years nor
more than 50 years.
The defendant is remanded to the custody of the sheriff.
____________
83 Nev. 461, 461 (1967) Hanley v. State
GRAMBY ANDREW HANLEY, Appellant, v. THE
Nos. 4910 and 5150
December 4, 1967 434 P.2d 440
Appeals from the Eighth Judicial District Court, Clark County; David Zenoff, Judge.
Defendant was convicted in the lower court and he appealed from an order denying his
application for change of venue, as well as from the conviction and the denial of his motion
for a new trial. The Supreme Court, Collins, J., held that where the only prospective juror
challenged by defendant for cause was excused, denial of defendant's motion for change of
venue was proper and that the voluntary and intentional absence of defendant after trial had
begun in his presence did not preclude the court from proceeding with trial and receiving the
verdict.
Affirmed.
[Rehearing denied January 9, 1968]
Harvey Dickerson, Attorney General, Carson City, George E. Franklin, Jr., District
Attorney, Clark County, for Respondent.
1. Criminal Law.
To support motion for change of venue the court must find either that it is impossible to get an impartial
jury or that there is such public excitement about the case that even an impartial jury would be swayed by
the considerable pressure of public opinion.
2. Criminal Law.
Where only prospective juror challenged by defendant for cause was excused, denial of defendant's
motion for change of venue was proper.
3. Criminal Law.
Jeopardy attaches when an accused is at trial before a sworn jury.
4. Criminal Law.
Where previously impaneled jury was discharged on motion of defendant, he could not plead that
jeopardy in bar to another suit on the same matter.
5. Criminal Law.
Where defendant's counsel had undertaken all procedures required by the Attendance of Witnesses Act
and obtained an out-of-state summons for service, but out-of-state witness had not been served, denial of
motion for continuance one month after obtaining of summons was not abuse of discretion where, even if
continuance had been granted, presence of witness could not be guaranteed. NRS 178.310.
6. Criminal Law.
Defendant in a criminal case has the right to be present throughout the various stages of his trial. NRS
174.490.
7. Criminal Law.
Under statute requiring that in a prosecution for a felony the defendant be present at trial, the voluntary
and intentional absence of defendant after trial in his noncapital case had begun in his presence did not
prohibit the court from proceeding with trial and receiving the verdict. NRS 174.490.
8. Criminal Law.
Mandatory wording of statute providing that in a prosecution for felony the defendant must be present
at the trial simply requires that the state not do or undertake any action which precludes the defendant from
being present at the trial. NRS 174.490.
9. Criminal Law.
Defendant's voluntary absence, after trial in a noncapital case has begun in his presence, waives his right
to be present, and he cannot thereafter complain of situation which he created. NRS 174.490.
OPINION
The above two cases were consolidated for hearing on appeal because they both arose out
of the same trial in the lower court.
Case No. 4910 involves an appeal from an order of the trial court denying appellant's
application for change of the place of trial. Case No. 5150 is an appeal from the judgment of
conviction and denial of a motion for a new trial entered following conviction by the jury in
the court below.
We conclude there is no merit to either appeal and sustain the various rulings of the lower
court.
Appellant Gramby Andrew Hanley was arrested in March 1962 on a burglary charge.
1962 on a burglary charge. Before commencement of that trial he moved for a change of
venue on the ground that he could not get a fair trial in Clark County, Nevada, due to the
unfavorable publicity given him by the Las vegas press. His motion was denied and he
appealed to this court. This court upheld the ruling of the trial court in Hanley v. State, 80
Nev. 248, 391 P.2d 865 (1964), on the ground that the motion for change of venue was
premature.
Following that action he was brought to trial in October 1964 on an amended information
charging him with burglary. A jury was selected and after a number of continuances the trial
was continued without date on December 28, 1964. A second amended information was filed
in January 1965, to which appellant pleaded not guilty. At that time appellant's counsel
moved to discharge the previously selected jury. The state entered no objection and the order
was entered.
On February 22, 1965 a second jury was impaneled and thereafter appellant requested the
court to allow him to change his plea from not guilty to that of once in jeopardy. The court
refused. The trial resumed on February 24, 1965, at which time appellant's counsel moved a
second time for a change of venue on the ground that appellant could not get a fair trial
because some of the jurors had read about his case or about the activities of appellant's father.
The trial court denied the motion from which order the defendant appeals the ruling in Case
No. 4910.
The trial of the second amended information commenced on March 8, 1965. The
prosecution presented its case in chief, and rested. On the day when appellant was to
commence the presentation of his case he failed to appear. He had been free on bail. After
granting two continuances due to the absence of appellant the court ordered appellant's
counsel to proceed with his defense. Appellant's counsel presented one witness who testified
to facts indicating the alleged entrapment of appellant. Appellant rested. The prosecution then
called one rebuttal witness, the officer who allegedly entrapped appellant. This testimony was
received in the absence of appellant. Appellant's counsel moved for a mistrial which the trial
court denied. The case was given to the jury who returned a verdict of guilty against
appellant. The verdict was received in the absence of appellant.
It was not until April 29, 1966, over one year later, that appellant was apprehended
somewhere in the State of Colorado and returned to Nevada. He then appeared before the trial
court for sentencing. Appellant was pronounced guilty of the crime of first degree burglary
and sentenced to a term of imprisonment of not less than one nor more than fifteen years.
the crime of first degree burglary and sentenced to a term of imprisonment of not less than
one nor more than fifteen years.
Appellant's specifications of error are as follows:
1. Denial of the motion for change of venue.
2. Denial of the change of plea to that of former jeopardy.
3. Denial of continuance for obtaining an out-of-state witness.
4. Trial of appellant in absentia.
5. Receiving of the jury's verdict out of the presence of appellant.
Appellant's Application for Removal of Place of Trial:
During the selection of the jury to try appellant 27 persons were summoned by the clerk.
Twelve of the 27 jurors stated that they had read about the case in the local newspapers.
Appellant exercised all of his peremptory challenges. Of the 13 jurors who were chosen
(including one alternate juror) five remained who had read about the case. All 13 jurors
selected to try the case were passed by appellant for cause. The only prospective juror who
was challenged by appellant for cause was excused. This court said in State v. Pritchard, 16
Nev. 101, 113 (1881): Whenever it appears from the examination, upon his voir dire, that a
juror is disqualified by reason of the existence of any fact which is made a ground of
challenge, the juror must be challenged as specified in the statute, otherwise the party,
whether the state or the defendant, will be considered as having waived the right of challenge.
* * *. In State v. Anderson, 4 Nev. 265, 279 (1868), the court said: If he [the defendant]
wilfully takes his chance with such a juror, he must abide the result. Quoted with approval,
State v. Hartley, 22 Nev. 342, 356, 40 P. 372 (1895). State v. Alsup, 69 Nev. 121, 243 P.2d
256 (1952).
[Headnotes 1, 2]
To support a motion for a change of venue it is necessary that the court find either that it is
impossible to get an impartial jury or that there is such public excitement about the case that
even an impartial jury would be swayed by the considerable pressure of public opinion. State
v. Alsup, supra; State v. Casey, 34 Nev. 154, 117 P.5 (1911). The record does not reflect such
a situation. The denial of the motion was proper.
Appellant's Request to Enter a Plea of Former Jeopardy:
[Headnotes 3, 4]
Both the Nevada and the United States Constitutions prohibit placing a person in jeopardy
more than once for the same offense. Jeopardy attaches when an accused is at trial before a
sworn jury. State v. Helm, 66 Nev. 286, 209 P. 187 (1949); Ex parte Maxwell, 11 Nev. 428
(1876). Here, however, motion to discharge the previously impaneled jury was made by
appellant. When a defendant consents to the discharge of the first jury, he may not plead that
jeopardy in bar to another suit on the same matter. People v. Nash, 114 P. 784 (Cal.App.
1911); People v. White, 37 N.W. 34 (Mich. 1888). To allow him to do so, by a literal reading
of the constitution, would surely disrupt criminal practice where there is no hint of the
oppressiveness at which the prohibition is aimed. Wade v. Hunter, 336 U.S. 684 (1949); State
v. Wolak, 165 A.2d 174 (N.J. 1960); State v. Miller, 164 A.2d 690 (Del. 1959).
Denial of Continuance for Obtaining an Out-of-State Witness:
[Headnote 5]
The record indicates that when appellant's counsel was required to go forward with
appellant's case after he absented himself, his counsel called John Wesley Barger who,
together with appellant, had been apprehended on the night of March 18, 1962 in Al's Cycle
Shop in Las Vegas, Nevada. Appellant also intended to call Bonita Barger, the wife of John
Wesley Barger, as a witness. Bonita Barger apparently lived in the Los Angeles, California,
area. Appellant's counsel, who had undertaken all procedures required by the Attendance of
Witnesses Act (NRS 178.310) moved on March 25, 1965, one month after he had obtained
the out-of-state summons, for continuance because the witness had not been served. It was
admitted that even if the continuance was granted, the presence of Bonita Barger as a witness
could not be guaranteed. Under these circumstances, the court's discretion in denying the
continuance is not abused. State v. Nelson, 36 Nev. 403, 136 P. 377 (1913); State v.
Rosemurgey, 9 Nev. 308 (1874).
Requiring Completion of the Trial and Receipt of the Verdict in Appellant's Absence:
NRS 174.490 reads in part: If the prosecution be for a felony, the defendant must be
personally present at the trial.
* * *. Appellant contends that the statute makes it mandatory for a defendant to be present
during trial, and that the trial court erred in requiring the trial to proceed in his absence over
objection of his counsel. Appellant cites State v. Merritt, 66 Nev. 380, 212 P.2d 706 (1949),
which construed a former statute NCL 1929, Vol. 5, 10921, identical to NRS 174.490
where this court stated: Under the statute, the presence of the defendant, in a felony case,
cannot be dispensed with, and by reason of the requirements of due process, both the
defendant's presence and that of his counsel, throughout such a trial, must be had. Appellant
was present throughout the presentation of the state's case in chief. He absented himself when
the trial was reconvened to hear appellant's evidence and testimony. The trial court granted
several continuances for that reason but when it became apparent that appellant's counsel
could not produce him, the court ordered the trial to continue. Appellant's counsel called one
witness, John Wesley Barger, who testified on behalf of appellant, indicating the defense of
entrapment. Appellant's counsel also desired to call Bonita Barger, wife of John Wesley
Barger, but she was never served with summons compelling her to be present at the trial.
Following the testimony of that one witness, appellant rested. In rebuttal the state called one
witness, Officer Goldberg, to rebut the testimony of appellant's witness Barger. Thereafter the
respondent rested, the case was argued, submitted to the jury and the court allowed the jury to
return its verdict against appellant during his continued absence. The record indicates that his
absence from the trial was voluntary. The court continued the rendition of sentence until
appellant was finally returned by legal process to Nevada.
[Headnotes 6-9]
The defendant in a criminal case clearly has the right to be present throughout the various
stages of his trial. The issue presented to this court is whether, under the statute quoted above
requiring that the accused must be present, his voluntary and intentional absence prohibits
the court from proceeding with the trial and receiving the jury's verdict. The majority rule in
the United States is that if after the trial has begun in a defendant's presence, he voluntarily
absents himself and the offense is not a capital case, such absence does not nullify what has
been done or prevent the completion of the trial. On the contrary, it operates as a waiver of
his right to be present and leaves the court free to proceed with the trial in a manner and with
like effect as if he were present. Diaz v. United States, 223 U.S. 442 (1911). It is true that the
statute construed in Diaz was permissive in nature while the Nevada statute appears to
have a mandatory wording.
Diaz was permissive in nature while the Nevada statute appears to have a mandatory wording.
We hold, however, that the mandatory wording of the Nevada statute simply requires that the
state not do or undertake any action which precludes the defendant from being present at the
trial. The defendant's voluntary absence waives his right to be present and he cannot
thereafter complain of a situation which he created. Accord: United States v. Vassalo, 52 F.2d
699 (E.D.Mich. 1931). People v. Steenbergen, 203 N.E.2d 404 (Ill. 1964); People v. Welsh,
248 N.Y.S.2d 14 (S.Ct.Tri.Div. 1964); State v. Aikers, 51 P.2d 1052 (Utah 1935); Prey v.
Calhoun, Circuit Judge, 64 N.W. 1047 (Mich. 1895); Commonwealth v. McCarthy, 40 N.E.
766 (Mass. 1895); Falk v. United States, 15 App.D.C. 446 (1899); Cox v. Hand, 347 P.2d
265 (Kan. 1959); State ex rel. Shetsky v. Utecht, 36 N.W.2d 126 (Minn. 1949).
There is some authority to the contrary but we are not persuaded by those cases. Hopt v.
Utah, 110 U.S. 574 (1884); State v. Reed, 210 P. 756 (Mont. 1922); State v. McCausland, 96
S.E. 938 (W.Va. 1918); Noell v. Commonwealth, 115 S.E. 679 (Va. 1923). California's Penal
Code, 1043, as amended in 1951
1
is more stringent than the Nevada statute but
notwithstanding the California courts have held that in a proper case a defendant may waive
the rights given by the statute. People v. Teitelbaum, 329 P.2d 157 (Cal.App. 1958), (a
defendant free on bail who chose not to appear by his own volition); People v. Rogers, 309
P.2d 949 (Cal.App. 1957), (a defendant who voluntarily induced a state of insulin shock was
held to have waived the benefit of the statute). Therefore, both by virtue of impressive
authority and by reason we adopt the majority rule. A contrary holding would allow an
accused to frustrate judicial proceedings by voluntary departure. Defendants would hold
within their hands the ability to block trial, perhaps forever. As was said in Falk v. United
States, supra, it would not seem consonant with the dictates of common sense that an
accused person, being at large upon bail, should be at liberty, whenever he pleased, to
withdraw himself from the courts of his country and break up a trial already commenced."
____________________

1
The defendant must be personally present at the trial; provided, that in case of a misdemeanor charge, if he
absents himself with full knowledge that a trial is to be or is being had, the trial may proceed in his absence. If
the defendant in a felony case fails to appear at any time during the course of the trial and before the jury has
retired for its deliberations or the case has been finally submitted to the judge, and after the exercise of
reasonable diligence his presence cannot be procured, the court shall declare a mistrial and the cause may be
again tried.
from the courts of his country and break up a trial already commenced. While we have no
Nevada case directly in point, this court did state in State v. Clark, 36 Nev. 472, 135 P. 1083
(1913), that rights given are guaranteed to every accused person so that he cannot be
punished by any unjust and clandestine trial in his absence, according to ancient tyrannical
methods. Nothing in this decision violates that rule. Furthermore, while not an issue in this
case, the recent amendment to the Nevada statutes, Assembly Bill 81, approved April 26,
1967, section 331.2, which in effect adopts the Federal Rule of Criminal Procedure No. 43,
reads as follows: In prosecution for offenses not punishable by death, the defendant's
voluntary absence after the trial has been commenced in his presence shall not prevent
continuing the trial to and including the return of the verdict. That conforms exactly with the
action of the trial court in this case.
Other points urged by appellant are without merit.
The orders refusing new trial, and in arrest of judgment are approved. The conviction is
affirmed.
Thompson, C. J., Batjer, J., Mowbray, J., and Young, D. J., concur.
____________
83 Nev. 468, 468 (1967) Scott v. State
SYLVESTER SCOTT, Appellant. v. THE STATE
No. 5164
December 5, 1967 434 P.2d 435
Appeal from conviction for second degree burglary and grand larceny. Eighth Judicial
District Court, Clark County; John Mowbray, Judge.
The Supreme Court held, inter alia, that under the record there was probable cause for
defendant's arrest, and that there was no error in admitting fingerprint evidence.
Affirmed.
George Spizzirri, Deputy District Attorney, Clark County, for Respondent.
1. Arrest.
Where a home was burglarized between 2:40 and 4:00 p.m., about 3:00 p.m. a police officer cruising in
vicinity of burglarized residence observed defendant driving an automobile, and since
defendant appeared to fit description of a suspect wanted in relation to another
incident, officer pursued the automobile which went out of control and crashed and
defendant jumped from the automobile and ran away, and on back seat of abandoned
automobile police discovered items identified by owner as those taken from his home,
and fingerprint obtained from one of items matched a fingerprint of defendant, there
was probable cause for defendant's arrest.
83 Nev. 468, 469 (1967) Scott v. State
residence observed defendant driving an automobile, and since defendant appeared to fit description of a
suspect wanted in relation to another incident, officer pursued the automobile which went out of control
and crashed and defendant jumped from the automobile and ran away, and on back seat of abandoned
automobile police discovered items identified by owner as those taken from his home, and fingerprint
obtained from one of items matched a fingerprint of defendant, there was probable cause for defendant's
arrest.
2. Criminal Law; Habeas Corpus.
The proper procedure for challenging probable cause for indictment is by writ of habeas corpus, and
failing to make such challenge prior to trial, a post-conviction appeal comes too late.
3. Criminal Law.
In prosecution for second-degree burglary and grand larceny, testimony of police officer who took
fingerprints from stolen articles was not inadmissible on ground that officer was not qualified as an expert,
where primary testimony of officer related fact that he was technician who removed fingerprints from
articles, and since he was only involved in the mechanical aspects of removing fingerprints and gave no
opinion evidence which would require a consideration of whether he was an expert, the officer was
competent to testify to facts acquired by first-hand knowledge.
4. Criminal Law.
Record showed that defendant consented and authorized the taking of fingerprint and hence testimony
that fingerprint obtained from one of stolen items matched fingerprint of defendant was not improperly
admitted because of fact that recovered items were immediately dusted for fingerprints while defendant was
not fingerprinted until a few days before trial.
5. Criminal Law.
Fingerprinting does not offend any sense of justice; fingerprints are physical not testimonial evidence,
and thus are not within scope of the Fifth Amendment privilege. U.S.C.A.Const. Amend. 5.
6. Criminal Law.
The right to counsel under Sixth Amendment is not applicable to instances wherein fingerprints are taken
since this is not a critical stage where absence of counsel would derogate the right to a fair trial.
U.S.C.A.Const. Amend. 6.
It is reasonable within terms of the Fourth Amendment to conduct otherwise permissible searches for
purpose of obtaining evidence which would aid in apprehending and convicting criminals. U.S.C.A.Const.
Amend. 4.
8. Constitutional Law; Searches and Seizures.
Fingerprinting does not violate Fourth Amendment rights or the due process clause of the Fourteenth
Amendment. U.S.C.A. Const. Amends. 4, 14.
OPINION
Per Curiam:
This is an appeal from the conviction of the appellant Sylvester Scott for second degree
burglary and grand larceny.
83 Nev. 468, 470 (1967) Scott v. State
On August 13, 1965, the home of Frank Walker was burglarized sometime between 2:40
and 4:00 p.m. About 3:00 p.m. a police officer, cruising in the vicinity of Walker's residence,
observed the appellant driving a 1956 Buick. Since the appellant appeared to fit the
description of a suspect wanted in relation to another incident, the officer pursued the vehicle.
In the course of the pursuit, the Buick went out of control and crashed. The appellant jumped
from the auto and ran away, but was later arrested. On the back seat of the abandoned vehicle
the police discovered items identified by Walker as those taken from his home. A fingerprint
obtained from one of the items matched a fingerprint of the appellant.
Following indictment and trial, a jury found the appellant guilty of second degree burglary
and grand larceny. On appeal, we affirm the conviction.
[Headnotes 1, 2]
1. The appellant contends there was no probable cause for his arrest or his indictment.
Probable cause for arrest is clearly shown by the record evidence. Further, since 1912 it has
been recognized that the proper procedure for challenging probable cause for the indictment
is by writ of habeas corpus. Shelby v. District Court, 82 Nev. 204, 414 P.2d 942, rehearing
denied 82 Nev. 213, 418 P.2d 132 (1966). Failing to make such challenge prior to trial, a
post-conviction appeal comes too late. Skinner v. State, 83 Nev. 380, 432 P.2d 675 (1967),
and cases cited therein.
[Headnote 3]
2. Next, the appellant contends the police officer, who took the fingerprints from the
stolen articles, was not qualified as an expert and it was error to admit his testimony. The
primary testimony of the officer related the fact that he was the technician who removed the
fingerprints from the articles. Since he was only involved in the mechanical aspects of
removing the fingerprints and gave no opinion evidence which would require a consideration
of whether he was an expert, such as the classification and identification of the fingerprints,
the officer was competent to testify to facts acquired by first-hand knowledge. The evidence
was properly admitted.
[Headnotes 4-8]
3. The appellant further contends the fingerprint records used as exemplars were
unlawfully obtained. Complaint is made of the fact that, though the recovered items were
immediately dusted for fingerprints, the appellant was not fingerprinted until a few days
before the trial.
83 Nev. 468, 471 (1967) Scott v. State
until a few days before the trial. It is urged that the prosecution cannot seek to obtain
evidence in this manner so late in the proceedings, that the appellant should have been
advised of rights, that counsel should have been present and that the authorization for the
fingerprinting was not a voluntary, intelligent waiver of the appellant's rights. We disagree.
First, only the comments of counsel suggest that fingerprints were obtained without the
appellant's volition. The record evidence indicates the appellant consented and authorized the
taking of fingerprints.
Second, fingerprinting does not offend any sense of justice. Fingerprints are physical not
testimonial evidence, and thus are not within the scope of the Fifth Amendment privilege.
The right to counsel under the Sixth Amendment is not applicable to instances wherein
fingerprints are taken since this is not a critical stage where the absence of counsel would
derogate the right to a fair trial. Schmerber v. California, 384 U.S. 757 (1966); U.S. v. Wade,
388 U.S. 218 (1967); GIlbert v. California, 388 U.S. 263 (1967). Further, it is reasonable,
within the terms of the Fourth Amendment, to conduct otherwise permissible searches for the
purpose of obtaining evidence which would aid in apprehending and convicting criminals.
Fingerprinting does not violate Fourth Amendment rights or the due process clause of the
Fourteenth Amendment. Schmerber v. California, supra; Warden v. Hayden, 387 U.S. 294
(1967). See also Graef v. State, 228 A.2d 480 (Md.App. 1967). There was no error in
admitting the fingerprint evidence.
Affirmed.
Mowbray, J., being disqualified, the Governor commissioned Honorable Emile J. Gezelin
of the Second Judicial District to sit in his place.
____________
83 Nev. 471, 471 (1967) Southern Pacific Co. v. Watkins
SOUTHERN PACIFIC COMPANY, Appellant, v.
ROBERT L. WATKINS, Respondent.
No. 5272
December 7, 1967 435 P.2d 498
Appeal from judgment of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Action by truck driver to recover for injuries sustained when truck was struck by engine at
railroad crossing. The trial court found for plaintiff and railroad appealed. The Supreme
Court, Collins, J., held that where dangerous or hazardous continuing condition is in issue
as proximate or concurring cause of accident and there has been other evidence admitted
of that condition, evidence of prior accidents at that place, though not exactly similar,
may be admitted to show notice to person responsible for that condition.
court found for plaintiff and railroad appealed. The Supreme Court, Collins, J., held that
where dangerous or hazardous continuing condition is in issue as proximate or concurring
cause of accident and there has been other evidence admitted of that condition, evidence of
prior accidents at that place, though not exactly similar, may be admitted to show notice to
person responsible for that condition. The court also held that it was not error to admit
expert's opinion that crossing was very dangerous, and that there was no error in instructions
as to punitive damages and violation of criminal statute. The court further held that fact that
jury found against railroad but did not find against railroad's employees who operated engine
which struck plaintiff's truck did not exonerate railroad from liability.
Affirmed.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Appellant.
Breen and Young and Jerry Carr Whitehead, of Reno, for Respondent.
Where jury found for respondent, reviewing court must consider facts in accordance with those findings.
2. Railroads.
Evidence of prior accidents at railroad crossing was properly admitted to show notice of dangerous
permanent condition where physical condition of crossing as proximate or concurring cause of accident
was issue and there was prior admissible evidence tending to show dangerous condition.
3. Railroads.
Railroad owes duty of care to general public to maintain reasonably safe crossing for those persons using
crossing and in operation of its equipment so as not to injure negligently any person who has occasion to
use it.
4. Railroads.
Evidence was sufficient to indicate that physical condition of railroad crossing which contained largest
group of tracks in railroad's division and which had no warning devices was proximate or concurring cause
of collision between engine and truck so as to permit introduction of evidence of prior accidents at
crossing.
5. Courts.
Courts are not bound by dictum which rejected holding of earlier case.
Where trial court's ruling, which limited admissibility of evidence of prior accidents at railroad crossing,
was made outside of presence of jury and such limitation was not made known to jury, railroad which did
not request limiting instruction could not complain about any error in failing to advise jury of limitation.
7. Negligence.
Where dangerous or hazardous continuing condition is in issue as proximate or concurring cause of
accident and there has been other evidence admitted of that condition, evidence of prior accidents at that
place, though not exactly similar, may be admitted to show notice to person responsible for that condition.
Even if court erred in admitting evidence as to prior similar accidents at railroad crossing, error was not
prejudicial where other evidence as to crossing's high accident rate was admitted without objection.
9. Evidence.
Court did not err in admitting opinion of expert that railroad crossing was very dangerous.
10. Evidence.
Evidentiary facts furnish evidence of existence of other facts and are directly established by testimony
or other evidence.
11. Evidence.
Ultimate facts are logical conclusions deduced from primary evidentiary facts.
12. Evidence.
Expert witness may testify to matters which embrace ultimate issues to be decided by triers of fact.
Where defendant railroad introduced exhibit which referred to hazardous condition of crossing, it could
not complain that court erred in permitting plaintiff's expert witness to testify as to dangerous condition of
crossing.
Railroad could not complain that court erred in admitting councilman's testimony as to dangerous
condition of railroad crossing where such testimony was elicited by railroad on cross-examination of
councilman.
15. Railroads.
In action to recover damages for injury sustained when plaintiff's truck was struck by engine at railroad
crossing, evidence warranted giving of instruction on wanton misconduct of railroad in maintaining
crossing which was its largest crossing and which had no signals.
16. Railroads.
In action to recover for injuries sustained when plaintiff's truck was struck by engine at railroad crossing,
court did not err in giving instruction that travelers using public highway have same right to use of grade
crossing as railroad company.
17. Railroads.
If jury found that violation of criminal statute which requires locomotive engineer to sound whistle at
crossing was proximate cause of accident, violation would amount to negligence as matter of law. NRS
705.430.
18. Negligence.
Violation of criminal statute may be basis for common-law negligence.
19. Trial.
Instruction as to railroad's conduct in moving engine over crossing without giving proper warning being
circumstance tending to rebut charge of contributory negligence of truck driver whose
truck was struck by engine, while not clear, was not improper when read together
with other instructions.
to rebut charge of contributory negligence of truck driver whose truck was struck by engine, while not
clear, was not improper when read together with other instructions.
20. Trial.
It is not error to refuse instruction where its substance is adequately covered in other instructions.
21. Discovery.
Trial court did not abuse its discretion in excluding witness whose name had not been given in response
to interrogatories.
22. Depositions.
Trial court did not err in, on its own motion, making deponent its witness after party had read into
evidence part of witness' deposition. NRCP 26(d)(4).
23. Damages.
Where evidence supports theory of punitive damages, court may allow introduction of financial position
of defendant.
24. Trial.
Where court's instructions limited jury's consideration of net worth evidence to award of punitive
damages, court did not err in admitting net worth evidence notwithstanding fact that jury made no award of
punitive damages.
Jury is presumed to give effect to each of the instructions.
Reviewing court is reluctant to substitute its judgment for wisdom of trier of fact on amount of damages.
27. Damages.
Award of $134,737.45 to 42-year-old bartender who sustained compound, comminuted, segmented
fracture of left tibia and fibula as well as dislocation of left hip, accompanied by breaking off of portion of
head of femur and lacerations and contusions of both legs which resulted in severing of nerves and tendons
and caused 75 percent loss of motion of ankle and loss of flection of knee in excess of 60 percent was not
excessive.
28. Release.
When verdict is sought against defendant corporation on dual theories of liability, release of
employees-defendant does not release corporation.
29. Trial.
Fact that jury found against railroad but did not find against railroad's employees who operated engine
which struck plaintiff's truck did not exonerate railroad from liability.
OPINION
This is an action by Robert L. Watkins against the Southern Pacific Railroad for personal
injuries and property damage suffered by him as a result of a train-car collision at a railroad
crossing.
crossing. This appeal is from an order of the trial court denying a new trial, and from a
judgment of the trial court based upon the verdict of a jury in favor of respondent Watkins
and against appellant Southern Pacific Company for the sum of $134,737.45. The award by
the jury was for compensatory damage. The jury refused a request for punitive damage
against appellant.
Appellant assigns as error the following legal issues:
1. Admission of evidence of prior accidents at the same railroad crossing.
2. Reception of the testimony of witness Capshaw giving his opinion of the degree of
danger at the crossing involved.
3. Reception of testimony of witness Demers calling for his opinion as to the degree of
danger at the crossing.
4. Giving of instructions Nos. 22, 23, 26 and 31.
5. Refusal to give appellant's offered instruction No. 3.
6. Refusal to permit appellant to call a witness located during the trial and not listed as
one of his witnesses before trial.
7. Making the depondent, Gary Hansen, the court's witness in part.
8. Refusal to grant a new trial on the ground of excessive damages.
9. Refusal to grant a new trial on the ground that the verdict resulted from the jury's
manifest disregard of the court's instructions.
[Headnote 1]
The jury having found for respondent and against appellant requires that we state the facts
in accordance with those findings. Robert L. Watkins of Reno was injured November 4, 1964
when his pickup truck was rammed by a locomotive at a Southern Pacific grade crossing at
Sparks, Nevada, known as Stanford Way. Stanford Way is a two-lane, north-south highway.
At this particular crossing, twelve sets of railroad tracks traverse Stanford Way in an
east-west direction. These dozen tracks form the eastern portion of the Sparks switching yard
and amount to the largest group of tracks to cross a roadway within the entire division of the
Southern Pacific Co. One-half second is the normal time to traverse a railroad crossing. To
cross Stanford Way it requires approximately fourteen times as long. The surface of the
crossing is very rough and tends to create a noise that is distracting to drivers. The crossing is
very active. It had an estimated auto traffic of 4,300 motor vehicles on the day of the accident.
Its train traffic, on the average, consisted of S,500 trains per year, in addition to some 10
to 55 switching operations which crossed the roadway daily.
average, consisted of 8,500 trains per year, in addition to some 10 to 55 switching operations
which crossed the roadway daily. The crossing has no electronic gates, gongs, or other
devices to warn motorists of the approach of locomotives or trains.
There was conflicting evidence as to the light level required and maintained at the crossing
by Southern Pacific Co. Testimony indicated that the American Standards Association
recommendations call for at least one foot-candle of light on railroad crossings, and for as
much as 5 foot-candles if the crossing is of an industrial nature. One expert testified that he
found, through photometer tests, the level of light to vary between 1.35 and .35 foot-candles.
Another stated it was as low as .35 on the road, .13 only 30 feet from the roadway, and only
.015 at a point on the road 100 feet south of the tracks. The experts further related that the
lighting should not be spotty because such lighting causes a substantial impairment of vision.
Minimum standards were said to require a variance of less than 3 to 1, whereas evidence
indicated the ratio of variance at this crossing to be as great as 12 to 1. One expert said that it
would be safer to remove all lighting rather than to maintain it in such an irregular state.
Evidence indicated that the Southern Pacific Co. was placed on notice of the increasing
traffic conditions and dangerous defect of the crossing. It included the following:
1. That at the request of the City of Sparks, a meeting was held between city and railroad
officials to discuss the accident rate at the crossing wherein the city officials asked the
railroad to post flagmen at the crossing or to otherwise protect the public. The railroad took
no action.
2. That the railroad had taken no action upon a promise to the Sparks city council by a
railroad executive to recommend the provision of more light at the crossing.
3. That the railroad secured an injunction against the Sparks city council's attempted
remedy of the situation, by enactment of an ordinance requiring flagmen at the crossing.
4. That during the 10 months preceding this particular accident, seven other accidents
under somewhat similar conditions had occurred at the Stanford Way Crossing and the
railroad had yet to have the crossing examined by lighting or safety engineers.
5. That the Southern Pacific Co. was informed by an engineer for Sierra Pacific Power
Co. that the lighting at the Stanford Way Crossing for the roadway and the 200 feet of
adjoining track could be increased to 5 foot-candles for the cost of $2,500 and that the
railroad company indicated it did not intend to improve the lighting.
The locomotive involved in the accident is a roadswitcher, larger, more powerful and of a
different design than a normal switch engine. It is over 55 feet in length, weighs
approximately 250,000 pounds and is black in color. When the engine is moving in a reverse
motion, the length of the engine precedes the cab containing the engineer and fireman. While
in reverse the engineer's field of vision from the cab is limited to his side of the engine. The
fireman's vision is equally limited on the opposite side. The function of the fireman is to be
the eyes of the engineer as to things on his side of the engine and either to relay a warning or
in an emergency to actuate a brake available to him. A few months before the Watkins' injury,
the Southern Pacific Railroad removed firemen from the engines in the Sparks yard. Since
they were not replaced by other available employees who would serve as lookouts, the result
was that every time such an engine crossed Stanford Way, the engineer drove blind as to one
direction of the vehicular traffic, a condition which was aggravated even further when
travelling in reverse. The Southern Pacific Co. had been notified that the removal of the
firemen hampered the effective visibility of the engineer and thus constituted a hazard.
Witnesses testified that, on the night of the injury, two or more boxcars were located on
the middle tracks east of the crossing. Due to the switching operations at this crossing it was
admittedly common practice to park boxcars in proximity to the roadway, both east and west
of the road on the 12 tracks and in ever-changing positions. This not only tended to hide
on-coming trains from the view of the passing motorists but was also a violation of the
railroad rules.
A few minutes before 2:00 a.m., on the night in question, the crew of No. 5628 had
completed its work and were temporarily idle. The foreman of the crew then directed his
engineer to proceed, along with one of his two switchmen, from his position 2,000 feet west
of the crossing, forward across Stanford Way, to switch on to a different track, and to return,
necessarily in a backward motion, across the roadway to the middle of the switchyard in order
to await further work assignments. Both the foreman and the switchmen were equipped with
lanterns. None of these employees were told to or did position themselves at the Stanford
Way Crossing to warn motorists of the approaching engine.
At approximately 2:05 a.m., Robert Watkins, returning home from work, drove to the edge
of the Stanford Way Crossing. At that time the night was dark, the moon had set, the skies
were overcast and the temperature had dropped to 19 degrees. He stopped his pickup truck
just north of the crossing and was facing south.
and was facing south. He looked both right (west) and left (east). He observed boxcars parked
on various tracks, on both sides of the crossing. After neither seeing nor hearing any evidence
of an approaching train, he proceeded across the tracks in low gear. He cleared the boxcars
located on the east side of the crossing and was then struck on the seventh track by
locomotive 5628.
Watkins testified that he heard no warning sounds nor saw any lights, either headlights or
warning lights, on the train. Although he had drunk two bottles of beer, there was no evidence
of intoxication offered by the police officer who lifted him from the truck or the physician
who treated him at the hospital. A witness called by respondent who was stopped on the south
side of the crossing some 50 feet from the collision, testified that the window of her car was
out and that while she listened, she heard no warning signals, whistles or bells but only the
sound of the motor. She testified that she saw no warning lights. Another witness for
respondent, who was also approximately 50 feet from the collision, testified that although he
heard the sound of the engine's motor, he did not hear any audible warnings. He observed no
light on the engine as he saw it strike the truck. He further testified that when he reached the
engine immediately after the collision, the engine was very dark and without lights. In order
to see, he stated that it was necessary for him to return to his car to get a flashlight.
On the other hand, the railroad crew testified that they heard the two longs and short and a
long whistle required by law to be given at all crossings. A railroad foreman approximately
2,000 feet from the collision testified he heard each whistle distinctly. The crew admitted that
the oscillating light on the rear of the engine was not used, but contended that a fixed-beam
spotlight was on at the time of the accident.
The engineer, operating engine No. 5628, told investigating officers immediately after the
accident that he was unable to see the truck. He repeated several times that the injury would
not have occurred if he had a fireman to warn him that the truck was on the road.
The speed limit for switch engines at the Stanford Way Crossing is 8 miles per hour. In
addition, the engine was traveling on caution, which meant that it must be able to stop short
of anything located on the tracks. By police measurements the engine drove Robert Watkins'
truck sideways 125 feet before it came to a halt. The truck, however, did not stop until it
became lodged against boxcars on an adjacent track. An experienced former railroad engineer
testified that an engine without boxcars under conditions testified to would have been
traveling in excess of 15 miles per hour to take that distance to stop.
without boxcars under conditions testified to would have been traveling in excess of 15 miles
per hour to take that distance to stop. One witness, who observed the accident, estimated the
speed of the engine at 20 to 25 miles an hour and another estimated that the engine was going
in excess of 20 miles per hour. The engineer of the locomotive testified he was unable to say
what his speed was and refused to estimate. He did admit that he had, since the accident,
traveled over the crossing at speeds of 15 miles per hour and that the company had never
informed him of the speed limit at the crossing, which he believed to be 20 miles per hour.
The railroad company stated that is was impossible for it to estimate the speed of the engine
by utilizing stopping distances, although it did admit that the engine could obtain a speed of
20 to 25 miles per hour in the distance involved.
The testimony and evidence on behalf of robert watkins as to his injuries were unrefuted
by appellant. An ambulance driver described Mr. Watkins' injuries as ugly wounds with the
flesh laid open. A police officer testified that when he arrived, Mr. Watkins was going in to
shock and had suffered a compound fracture of the left leg. The diagnosis was a compound,
comminuted, segmented fracture of the left tibia and fibula, as well as a dislocation of the left
hip, accompanied by the breaking off of a portion of the head of the femur, the
weight-bearing bone. There were also numerous lacerations and contusions of both legs
resulting in the severing of nerves and tendons. The damage and tearing of the flesh were
extensive, not only at the fracture site but also at the location of the nerve and tendon damage.
Evidence of Mr. Watkins' medical treatment indicates that he was given a spinal
anaesthetic in the emergency room. It was not successful and was required to be repeated
twice before it dulled the pain. In surgery the left hip was forced back into proper alignment
in the socket. In order to maintain this position, a large, metal nail was inserted directly
through the flesh and bone of the upper leg. The surgeon then cut away dead bone and tissue
and sewed together the tendons and nerves. The fracture was extremely unstable and required
four screws to stabilize it. The entire leg was then encased in a cast and Watkins was placed
in skeletal traction with weights suspended from both ends of his body. He was hospitalized
in a horizontal position until December 24 of that year. At that time he was released from the
hospital in a full-length, non-weight-bearing cast.
Post-operative difficulties developed shortly after his discharge. They began with loss of
skin around the fracture and developed into a large defect of the bone.
developed into a large defect of the bone. The patient developed five large draining holes
(sinuses) in the flesh leading directly to the bone in the lower leg. In January 1965 he was
again returned to the hospital. The wounds were reopened and pieces of dead bone,
devitalized by lack of circulation, were removed, and an attempt was made to cut out the
infected area.
When the cast was finally removed on May 13, 1965, the left leg was placed in a Delbay
brace, which is constructed of heavy steel and leather, and covers the skin to the knee. He was
required to wear that brace for an additional seven months.
The evidence at the time of the trial indicated the character of the skin surrounding the
original fracture site was still very thin, reddened, inflamed and adhering to the bone. The
multiple draining holes (sinuses) over the site of the fracture were still present. There
remained in the bone a chronic infection which is a Streptococcus type of osteomyelitis.
Repeated episodes or flareups of redness and pain will require further surgical, multiple
procedure, and will require transferring flaps of skin from the good leg to cover the bone
because the bad skin with poor nutrition breaks down and repeatedly drains. An additional
operation, a sequestrectomy, will be necessary to remove the dead bone from Watkins' leg.
The doctor testified also that Watkins had to be careful of falling because a fall of a lesser
magnitude than would harm a normal person would cause his leg bone to break, and if
broken, the patient would have to face possible amputation. There is atrophy of the left leg so
that the left thigh is now 2 inches smaller than the right, and the left calf has become slightly
smaller. The injuries have resulted in a 75 percent loss of motion of the ankle and a further
loss of flection of the knee in excess of 60 percent.
The respondent Watkins is a 42-year-old former professional athlete whose regular
recreation included golf, hunting, fishing, working out with weights, dancing, and both snow
and water skiing. He also was an instructor in scuba diving. Since the accident he has been
unable to participate in violent sports such as skiing because of the danger of refracturing the
leg. He is unable to dance, cannot walk any substantial distance, and is precluded from
hunting.
The osteomyelitis requires a bandage over the leg at all times because of the constant
drainage. It must be changed daily. The drainage soils sheets, pajamas and clothes and causes
an offensive odor. It requires that an aerosol can be maintained at hand to reduce the odor so
that others are not offended.
He is now unable to move up and down the bar at work as he did in the past because of the
difficulty with his leg. He has to pull his leg to move back and forth.
to pull his leg to move back and forth. When he works three or four hours he is quite fatigued.
His ankle hurts, his knee is painful, and the use of his leg causes postural difficulties with his
back. He is unable to work except as a relief bartender when one is needed.
As to the issue of monetary loss, the following evidence was presented:
1. Medical expenses and property loss (respondent's truck) to the date of the trial of
$6,173.45.
2. Lost wages due to unemployment for 8 months of $3,936; loss due to a wage increase
while unemployed of $6,912; wages earned during the following year from working part time
of $3,911; the wages lost amounting to $7,037 as of the date of trial.
3. Future medical expenses of $5,000 for an operation on the fracture site, plus additional
costs for removal of the kneecap, the possible amputation of the left leg, treatment of the head
of the femur, treatment of any traumatic arthritis of the hip which develops, treatment for
cancerous developments in the open sinuses of the leg, and routine examination of the
injuries in the future.
4. Future lost wages of $75,000, a figure based upon the stipulated 30-year life expectancy
of the respondent.
Respondent, in his case in chief, offered evidence without objection that there had been a
number of prior accidents at Stanford Way; that the Mayor and City Council of Sparks were
concerned about the accident rate at that crossing, and had conferred with railroad officials
about their concern and possible solutions; that more accidents were happening at that
railroad crossing than the rest of Sparks combined; that an accident had happened just two
weeks prior to the instant case at the same time of the morning in the same crossing. On the
fourth day of the trial respondent offered into evidence from answers to interrogatories some
55 lines of information. Interspersed among this information were the dates of several
nighttime collisions which had occurred at Stanford Way in the 10 months preceding the
case. Appellant objected to such evidence for the first time, contending it was error to allow
evidence of prior accidents and cited as his principal authority Southern Pacific Co. v. Harris,
80 Nev. 426, 395 P.2d 767 (1964). The objection was overruled by the court which
announced it would admit the evidence for the purpose of notice of showing the alleged
dangerous situation * * * in regard to the Stanford Way Crossing, the similarity, the cold
winter months, the alleged inadequacy of lighting which is a similarity that existed with the
others [accidents] * * *."
with the others [accidents] * * *. Thereafter additional evidence was allowed to go before
the jury as to the time when the prior accidents occurred.
Appellant contends that prejudice accrues in admitting such type of evidence in that it
places before the jury evidence which has no foundation to show that it has probative value;
that respondent and the court failed to tell the jury that it was admitted only for the purpose of
showing notice to appellant of a dangerous condition; that there were no similarities between
the present accident and the previous accidents; that no foundation was laid for proof of the
prior accidents; that in each instance the collision was between two moving objects, that is, a
train and a motor vehicle and did not involve the dangerous condition of a permanent or
stationary object; that it injected into the trial of the cause many collateral issues which would
require proof, thereby unduly delaying and extending the time and scope of the trial at hand;
that such evidence tends to draw away the minds of the jury from the point in issue and excite
prejudice and mislead them: that the adverse party having no prior notice of such evidence is
not prepared to rebut it; that the evidence was wholly inadmissible and to admit it constituted
prejudice of the worst sort.
Respondent, on the other hand, contends that the issue raised by appellant as to prior
accidents is not properly before the appeal court; that testimony of the prior accidents was
previously admitted into evidence without objection by either party; that prior accidents are
properly admitted to show notice of a dangerous permanent condition; that the holding in
Southern Pacific Co. v. Harris, supra, is limited to accidents where the condition of the
crossing was not a proximate or concurring cause of the accident; that the admission of prior
accidents to show notice of a permanent dangerous condition is committed to the sound
discretion of the trial judge; that inadmissible evidence is not prejudicial when like evidence
was admitted without objection.
We have serious doubt that the issue raised by appellant concerning the introduction of
evidence as to prior accidents is properly before this court. The 1960 case of Barra v. Dumais,
76 Nev. 409, 414, 356 P.2d 124 (1960), holds: Under these circumstances we find no error
on the part of the trial court in overruling petitioner's objection to the testimony or denying
petitioner's motion to strike the same as hearsay, for the reason that neither the objection nor
motion was timely made. * * *
Moreover, the case of Wagon Wheel v. Mavrogan, 78 Nev. 126, 369 P.2d 688 (1962),
states: It is clear from the record that the objection was not timely made.
that the objection was not timely made. The same evidence had been previously received
without objection. Accordingly, there is no substance to this claim of error. Also see 1
Wigmore on Evidence, Evidence in Trials in Common Law, 1964 Supplement, 18, p. 86;
and McCormick on Evidence, 1954, 52, p. 115.
[Headnote 2]
Notwithstanding such doubt, however, we feel that evidence of prior accidents is properly
admitted to show notice of a dangerous permanent condition where the physical condition of
the crossing as a proximate or concurring cause of the accident is in issue and there is prior
admissible evidence tending to shown the dangerous condition. Respondent in his pleadings
stated his cause of action on two different theories: (1) against the railroad for allowing the
maintenance of a dangerous crossing which was a proximate and concurring cause of the
accident after having been notified thereof, and (2) that the railroad through its agents, the
engineer, foreman and signalman, was negligent.
[Headnote 3]
A railroad owes a duty of care to the general public to maintain a reasonably safe crossing
for those persons using the crossing and in the operation of its equipment so as not to injure
negligently any person who has occasion to use it. The judicial function is to decide whether
the crossing, as it existed, was maintained with reasonable care in the light of the conditions
there present. Lowry v. Seaboard Airline R. Co., 171 F.2d 625. * * * What is ordinary care at
one crossing may be quite different from ordinary care at another. Absent legislative demand
or the requirements of custom and usage, the issue of ordinary care must be decided in the
light of conditions existing at the place of the crossing accident. Southern Pacific Co. v.
Harris, supra, 432, 433.
[Headnote 4]
The prohibition of Harris, supra, against evidence of prior accidents at the same location
does not apply in this case. Harris held, There is no evidence to indicate that the physical
condition of the crossing itself was either the proximate or a concurring cause of the
collision. Id. 431; and * * * that evidence of the occurrence of prior collisions at the same
railroad crossing was not probative of any issue in this case, and should have been excluded.
Id. 432. Here there is evidence to indicate that the physical condition of the crossing was the
proximate or concurring cause of the collision.
proximate or concurring cause of the collision. That evidence includes: a crossing over the
largest group of tracks in the railroad's division; the time required to transverse those tracks;
the roughness of the crossing; the activity at the crossing, both of rail and motor vehicles; the
absence of warning devices at the crossing; the light level required and maintained at the
crossing; the construction and operation of the switching engine; the changing positions of
railroad vehicles at and near the crossing; the conduct of railroad employees at the crossing.
The early Nevada case of Powell v. N.C.& O. Railway, 28 Nev. 40, 78 P. 978 (1904),
holds as general law that prior accidents are admissible to show notice, if there is a condition
of permanency. The condition of permanency there was the sounding of a whistle at railroad
shops, which caused a horse to take fright and run with a buggy. The Powell case cites with
approval Dist. of Columbia v. Armes, 107 U.S. 519 (1883), where in a suit to recover
damages from a fall caused by a defective sidewalk, it was held competent to show other
accidents while it was in the same condition. The United States Supreme Court said in that
case, The frequency of accidents at a particular place would seem to be good evidence of its
dangerous character,at least, it is some evidence to that effect. * * *
A recent A.L.R.2d annotation on Admissibility on issue of defendant's negligence in
respect of condition of place where plaintiff was injured, of evidence of prior accidents or
injuries at same place has this to say in its summary (70 A.L.R.2d 171, 172):
While a few courts still tend to look with general disfavor upon proffers of evidence of
similar accidents occurring at the same place where plaintiff was injured, it now seems to be
generally recognized that such evidence has some logical tendency to establish various
matters pertinent to the plaintiff's case, particularly that the condition complained of was in
fact dangerous to frequenters of the place in question and that defendant was informed of that
potential danger.
The pertinence of such evidence is, of course, drawn from the facts that the various
accidents occurred at the same place and under conditions which were at least substantially
similar, and the courts have frequently emphasized the necessity of showing such similarity of
conditions as a predicate for the admission of the evidence. However, it has usually been held
that only substantial similarity of conditions is required, and there is perhaps evident a
trendprobably part of a general trend toward the more liberal admission of
evidencetoward treating the question of sufficiency of similarity of conditions as
primarily a matter for the trial court's discretion, and to freely admit the evidence of the
prior accident together with evidence of variations in conditions, which is treated as going
to weight rather than admissibility.
treating the question of sufficiency of similarity of conditions as primarily a matter for the
trial court's discretion, and to freely admit the evidence of the prior accident together with
evidence of variations in conditions, which is treated as going to weight rather than
admissibility.
The strongest attack on evidence of the type here considered has been based upon
grounds of trial convenience rather than upon its lack of relevance. Especially in the earlier
cases, the courts have expressed the fear that if the evidence were received the trial would be
disrupted by the necessity of investigating all the circumstances of the various incidents in
question, and have concluded that the simplest and most desirable solution was to exclude all
such evidence. However, in the more recent decisions in most jurisdictions there is apparent a
tendency to treat this question ad hoc, leaving it to the trial judge in each case to determine
whether the evidence should be excluded on this ground and, if the evidence is admitted, to
determine the extent to which the circumstances of the earlier accident can be investigated.
[Headnote 5]
A well-reasoned case supporting the admissibility of evidence of prior accidents not
exactly similar is Evans v. Pennsylvania R. Co., 255 F.2d 205 (3 Cir. 1958
1
), where the
court said: Nor do we feel that the Court below erred in admitting evidence of these prior
accidents at the same intersection under circumstances not exactly similar to those in the
instant case. All these accidents happened at this particular crossing, took place at night and
occurred between one of the defendant's trains and an automobile. Under such circumstances
as these, and where the offer of evidence is to prove, not negligence, but notice of the
dangerous character of the crossing, the strictness of the requirement of similarity of
conditions has frequently been relaxed. Accord: Atlantic Coast Line R. Co. v. Hadlock, 180
F.2d 105 (5 Cir. 1950); Magnuson v. City of Stockton, 3 P.2d 30 (Cal.App. 1931).
[Headnote 6]
The trial court, in ruling upon admissibility of evidence of prior accidents outside the
presence of the jury, limited it to the question of notice to the railroad and to those prior
accidents which bore a similarity to the accident on trial and which occurred during the cold
winter months and under inadequate lighting.
____________________

1
We are aware that this court in the Harris opinion rejected the holding of Evans v. Pennsylvania R. Co., but
because the holding of harris on that point was dictum we are not bound.
lighting. The jury was never informed at the time the evidence was admitted before them or
during their instruction on law, of the limited purpose for which the evidence was received.
However, appellant cannot complain. There is nothing in the record to show that appellant
ever requested such a limiting instruction. Southern Pacific Co. v. Barnes, 415 P.2d 579
(Ariz.App. 1966).
[Headnote 7]
Accordingly, we hold that where a dangerous or hazardous, continuing condition is in
issue as the proximate or concurring cause of an accident, and there has been other evidence
admitted of that condition, evidence of prior accidents at that place, though not exactly
similar, may be admitted to show notice to the person responsible for that condition. This
pronouncement leaves open the question of admissibility of prior accidents to establish the
dangerous condition itself. We shall deal with that question when presented to us.
[Headnote 8]
In the case before us, even if the admission of the evidence in question had constituted
error, which we expressly hold was not the case, it would not, it seems, have been of a
prejudicial nature. The record, as previously discussed, clearly discloses that other evidence,
not of the same accident, but of other accidents and the crossing's high accident rate, was
admitted without objection. Louisville & N. R. Co. v. Bean, 174 S.E. 209 (Ga.App.1934).
[Headnote 9]
The next assignment of error urged by appellant is the admission by the trial court of the
opinion of Frank Capshaw, an expert witness, that the crossing was very dangerous. We
feel that the expert testimony was properly admitted.
[Headnotes 10, 11]
Appellant contends that it was error to permit Mr. Capshaw, who qualified as an expert in
traffic control, to testify to the degree of danger at Stanford Way Crossing on the ground that
such testimony invaded the province of the jury in determining an ultimate fact. There is a
distinction between evidentiary facts and ultimate facts. Evidentiary facts furnish evidence of
the existence of other facts and are directly established by the testimony or other evidence.
Ultimate facts are the logical conclusions deduced from primary evidentiary facts.
The ultimate issue in this case was whether the Southern Pacific Company was negligent
toward respondent which proximately resulted in his injury and damage. The predicate of that
negligence could be either the maintenance of a dangerous condition at the crossing after
being notified of that condition, or operation of the switch engine through its agents.
[Headnote 12]
The clear trend in the law of evidence is, however, that an expert witness, in his field of
expertise may testify to matters which embrace the ultimate issues to be decided by the triers
of fact. We are of the opinion that traffic control, safety planning and evaluation of data is a
growing and complex field recognized as a specialty. The witness, Mr. Capshaw, was
accepted by the court as an expert. The evidence showed he received a degree from the
University of Texas specializing in the field and has worked full time for seven years in the
occupation. At the time of the trial he was a traffic safety engineer for the City of Reno and
had previously held similar positions in New Mexico and Texas. The evidence also showed
that Mr. Capshaw had exercised professional responsibility over 35 mainline railroad
crossings, had personally studied the Stanford Way Crossing, and had been across it many
times. There was a great mass of facts and data for the jury to digest and evaluate concerning
the Stanford Way Crossing. This included the volume of motor vehicle traffic; the percentage
of it that was commercial; the volume of passenger train traffic and freight train traffic; the
daily switching operations; the number of tracks and their grade of descent; the rate of train
speed; the rate of motor vehicle speed; the accident ratio; the calculations as to exposure time
on the Stanford Way tracks; the roughness of the crossing surface; the exposure time on
average tracks; the noise level at the crossing; extensive material on light readings maintained
by the railroad on the road and on adjacent areas; the reflectance value of the luminaries; ratio
of light levels; the glare factor; and existence of hazards to visibility. It appears doubtful to us
that an average juror is so well equipped and knowledgeable to be able to evaluate all those
many factors and arrive at his own unaided opinion, according to each his proper weight and
value as to the dangerous condition of the crossing. While Nevada has yet to adopt the
Uniform Rules of Evidence, nevertheless the trend is disclosed by subsection 4 and Rule 56
which provides as follows: Testimony in the form of opinions or inferences otherwise
admissible under these rules is not objectionable because it embraces the ultimate issue or
issues to be decided by the trier of the fact."
the ultimate issue or issues to be decided by the trier of the fact.
In the case of Wells Truckways v. Cebrian, 265 p.2d 557 (Cal.App. 1954), the court
quoted from 20 American Jurisprudence, p. 654, as follows:
It is certainly contrary to the unmistakable trend of authority to exclude expert opinion
testimony merely upon the ground that it amounts to an opinion upon ultimate facts. The
modern tendency is to make no distinction between evidential and ultimate facts subject to
the expert opinion.
The United States Supreme Court held in the case of Transportation Line v. Hope, 95 U.S.
297 (1887): The witness was an expert, and was called and testified as such. His knowledge
and experience fairly entitled him to that position. It is permitted to ask questions of a witness
of this class which cannot be put to ordinary witnesses. It is not an objection, as is assumed,
that he was asked a question involving the point to be decided by the jury. As an expert, he
could properly aid the jury by such evidence, although it would not be competent to be given
by an ordinary witness.
Another federal case, Jones v. Goodlove, 334 F.2d 90 (8 Cir. 1964), states, Once again
we reiterate that this court is committed to the view that expert testimony is not vulnerable to
an objection that it invades the province of the jury; that the qualification of the expert and
the question of whether expert opinion upon the subject matter should be permitted are
questions which should be determined by the trial court in the exercise of sound discretion.
The trial court's ruling upon the admissibility of expert testimony will not be disturbed upon
appeal in the absence of a clear showing of abuse of discretion.'
Our own court said in McLeod v. Miller & Lux, 40 Nev. 447, 478, 153 P. 566 (1917),
Where, because they are unknown, it is impossible to apply fixed natural laws to a solution
of the problem, courts must resort to the best means available of determining, if possible, the
truth of the case. Hence expert testimony may be considered, as well as facts established by
the testimony of other witnesses; but, as before pointed out, non-expert witnesses may not be
permitted to invade the province of the jury and testify directly to the ultimate fact in the
case. Also see State v. Kuhl, 42 Nev. 185, 175 P. 190 (1918); and Mikulich v. Carner, 69
Nev. 50, 240 P.2d 873 (1952).
A good summary of the rule in the several state and federal jurisdictions can be found in
Opinions on Ultimate Facts: Status, Trends, and a Note of Caution, William B. Stoebuck,
41 Denver Law Center Journal 226 (1964). See also The Role and Rights of the Expert
Witness, Charles M. Cook, 9 Journal of Forensic Sciences 456 (1964); Expert Opinion and
the Ultimate Issue Doctrine, 22 Md.L.Rev. 32 (1962); EvidenceMotor Vehicle
CollisionAdmissibility of Safety Expert's Opinion Testimony, 46 Ia.L.Rev. 909 (1961);
Some Observations upon the Opinion Rule and Expert Testimony, Charles T. McCormick,
23 Tex.L.Rev. 109 (1945); EvidenceExpert WitnessesOpinion on the Ultimate Fact,
17 Wash.L.Rev. 226 (1942).
[Headnote 13]
Moreover, the appellant itself introduced an exhibit which stated that a hazardous
condition to motor vehicles exists at Stanford Way. This was defendant's exhibit 1 admitted
in evidence which consisted of an ordinance of the City of Sparks to which were attached
several suggestions from the Sierra Pacific Power Company as to the installation of lights to
increase the illumination upon the Stanford Way Crossing and the publication of that
ordinance in the Sparks Tribune. Under those circumstances appellant cannot complain.
[Headnote 14]
Appellant next assigns as error that Dr. DeMers, a councilman from the City of Sparks,
was permitted to testify at length with respect to meetings, both formal and informal, with
representatives of the Southern Pacific Company with regard to the conditions of hazard at
the Stanford Way Crossing. Appellant may not, however, complain about Dr. DeMers'
testimony because the only testimony elicited from him concerning the dangerous or
hazardous condition at the Stanford Way Crossing was elicited by appellant on
cross-examination. Counsel for appellant during the cross-examination of Dr. DeMers
inquired about conversations with the Sparks city engineer and asked, Q. You don't have any
specific recollection of what he said to you? A. My specific recollection is that almost every
one agreed that this was a very dangerous crossing and something should be done about it.
[Headnote 15]
Next, appellant complains about the giving of instructions Nos.
Nos. 22
2
and 23
3
by the court whereby it submitted to the jury the issues of wanton
misconduct on the part of the appellant.
Appellant says, The evidence taken most favorably to the respondent does not show
anything in the nature of wanton and reckless misconduct as defined by our court. We have
been unable to find any case in America which holds imperfect illumination of an area to
amount to anything more than simple negligence. Appellant complains that in submitting to
the jury the issue of wantonness on the record here, counsel were permitted to argue the
appellant's claimed bad conduct which infected the proceedings below and prejudiced
appellant's substantial rights as regards compensatory damages.
Respondent, on the other hand, contends that it is proper for the court to instruct upon
wanton misconduct when there is evidence that the railroad at a very busy location maintains
a crossing with more than twice the number of tracks at any other crossing at which the
lighting was grossly inadequate, where it maintained no electronic gates or signals or flagmen
to warn motorists of approaching trains, and then to drive blind a locomotive at night into the
intersection, at a speed three times the speed limit, from behind an obstruction running
without lights or giving any audible warning to the motorist.
In Rocky Mountain Produce v. Johnson, 78 Nev. 44, 369 P.2d 198 (1962), this court
defined wanton misconduct as * * * an intention to perform an act that the actor knows, or
should know, will very probably cause harm. The holding further states that if reasonable
minds might differ in drawing a conclusion from the facts presented, the jury should be
permitted to decide the issue as an issue of fact.
From a review of the evidence in the record in this case, set forth before in this opinion,
we are of the opinion that there were adequate facts presented to warrant the giving of the
instruction.
____________________

2
22 Plaintiff claims that defendants, Elmer Dinan and Southern Pacific Company, were guilty of wanton
misconduct. Contributory negligence is not a defense to a cause of action for wanton misconduct. If either
defendant is found guilty of wanton misconduct, then you need not consider at all the claim of said defendants
that the plaintiff was guilty of contributory negligence, but should you find that plaintiff's conduct constituted
reckless disregard for his own safety, then he cannot recover from either defendant.

3
23 Wanton or reckless misconduct occurs when a person with no intent to cause harm, intentionally
performs an act or intentionally fails to perform an act so unreasonable and dangerous that he knows or should
know it is highly probable that harm will result.
[Headnote 16]
Appellant also complains of the giving of instruction No. 26.
4
The instruction contains
language approved by this court in L.A. & S.L.R. Co. v. Umbaugh, 61 Nev. 214, 123 P.2d
224 (1942). We also held in Rocky Mountain Produce v. Johnson, 78 Nev. 44, 369 P.2D 198
(1962), Each party to a law suit is entitled to have the jury instructed on all of his theories of
the case that are supported by the pleadings and the evidence. We find no error.
[Headnote 17]
Appellant next complains that in giving instruction No. 29
5
the court was not supported
by evidence in the record because the engine never was 1,320 feet from the crossing. The fact
that the locomotive in question never was 1,320 feet from the crossing seems to beg the
question because the implication of the statute is that it must be blown from that point
toward, into and across the crossing. The instruction is a recital of a criminal statute (NRS
705.430)
6
and if the jury found a violation thereof by appellant or its agents which would
constitute the proximate cause of an accident, it would amount to negligence as a matter of
law.
[Headnote 18]
The use of a violation of a criminal statute as the basis for common-law negligence has
been upheld in this state, as well as in many others.
____________________

4
26 Travelers using a public highway have the same right to the use of a grade crossing as the railroad
company has; their rights are mutual and reciprocal.

5
29 Every engineer driving a locomotive on any railway who shall fail to ring the bell or sound the whistle
upon such locomotive, or cause the same to be rung or sounded, at least 80 rods (1,320 feet) from any place
where such railway crosses a traveled road or street, where such road or street is customarily used by the public
for the purpose of travel (except in cities where other regulations are required), or to continue the ringing of such
bell or sounding of such whistle until such locomotive shall have crossed such road or street, shall be guilty of a
misdemeanor.
A violation of this statute which is a proximate cause of an accident constitutes negligence as a matter of
law.

6
705.430 Every engineer driving a locomotive on any railway who shall fail to ring the bell or sound the
whistle upon such locomotive, or cause the same to be rung or sounded, at least 80 rods from any place where
such railway crosses a traveled road or street, where such road or street is customarily used by the public for the
purpose of travel (except in cities where other regulations are required), or to continue the ringing of such bell or
sounding of such whistle until such locomotive shall have crossed such road or street, shall be guilty of a
misdemeanor.
as in many others. In Ryan v. Manhattan Big Four Mining Co., 38 Nev. 92, 145 P. 907
(1914), this court stated that it has been held, as a general proposition, that whenever an act
is enjoined or prohibited by law, and the violation of the statute is made a misdemeanor, any
injury to the person of another, caused by such violation, is the subject of an action, and that
the violation of the law is the basis of the right to recover, and constitutes negligence per se.
Id. p. 100.
Prosser on Torts, 35 (3d Ed. 1964), states: The standard of conduct required of a
reasonable man may be prescribed by legislative enactment. When a statute provides that
under certain circumstances particular acts shall or shall not be done, it may be interpreted as
fixing a standard for all members of the community, from which it is negligence to deviate.
Within the limits of municipal authority, the same may be true of ordinances. The fact that
such legislation is usually penal in character, and carries with it a criminal penalty, will not
prevent its use in imposing civil liability, except in the comparatively rare case where the
penalty is made payable to the person injured, and clearly is intended to be in lieu of all other
compensation. See also Morris, The Relation of Criminal Statutes to Tort Liability, 1933, 46
Harv.L.Rev. 453: Morris, The Role of Criminal Statutes and Negligence Action, 1949, 49
Colo.L. Rev. 21.
[Headnote 19]
Appellant also complains of the giving of instruction No. 31
7
which it contends
constitutes a commentary upon the evidence. We do not so find. The instruction must be read
with other instructions given by the trial judge, namely, instruction No. 1, It is your
exclusive province to determine the facts, and instruction No. 2, I have not expressed, nor
intended to express, nor have I intended to intimate, any opinion as to which witnesses are or
are not worthy of belief, what facts are or are not established; or what inference should be
drawn from the evidence. If any expression of mine has seemed to indicate an opinion
relating to any of these matters, I instruct you to disregard it," and instruction No.
____________________

7
31 Although the fact that a railroad backed or pushed a train or engine over a crossing, with or without
giving a proper warning, does not generally relieve the traveler, approaching or attempting to cross the track, of
his obligation to exercise ordinary care for his own safety, the fact of the backing or pushing movement of a train
or engine, particularly where such movement is made without an adequate warning to indicate the direction of
the movement or other proper warning to protect travelers, can be a circumstance tending to rebut the charge of
contributory negligence in an action for a collision with the train or engine.
disregard it, and instruction No. 3, * * * You are not to single out any certain sentence * * *
you are to consider all the instructions as a whole and to regard each in light of all the others,
and instruction No. 10, * * * You must decide the case upon the evidence offered and
admitted in open court.
While instruction No. 31 is not a masterpiece of clarity, it nevertheless can be read to
contain conditional language, especially when considered by the jury along with the other
general instructions quoted above.
[Headnote 20]
Appellant contends it was error for the trial court to fail to give its offered instruction No.
3. The proposed instruction of appellant was 82 lines in length. The instruction purported to
set forth all the issues in the case. The court instead covered this area by other instructions,
among them, instructions 11, 22, 36, 37, 41 and 43. In all, the court gave 47 instructions. A
reading of these instructions shows that the jury was adequately instructed in this case. It is
not error to refuse instruction where its substance is adequately covered in other instructions.
Burch v. Southern Pacific, 32 Nev. 75, 104 P. 225 (1909); Thompson v. Thompson, 49 Nev.
375, 247 P. 545 (1926); Close v. Flanary, 77 Nev. 87, 360 P.2d 259 (1961).
[Headnote 21]
Next appellant complains that the court refused to allow it to call a witness. The name and
address of the witness had not been supplied to respondent in answer to interrogatories or
during the pretrial hearing, as ordered by the court. We feel the trial court had discretion in
this area and see no particular abuse of its discretion in excluding a witness whose name is
not given in response to proper discovery requests. Evtush v. Hudson Bus Transportation Co.,
81 A.2d 6 (N.J. 1951); Battershell v. Bowman Dairy Co., 185 N.E.2d 340 (Ill.App. 1961).
[Headnote 22]
Appellant also complains the trial court committed error when, after appellant had read
into evidence part of a deposition, the trial court made the deponent its witness as to the rest
of the deposition and thereby allegedly relieved respondent of being bound by that portion of
the testimony.
We perceive no error in this action of the trial court. NRCP 26(d)(4) provides: If only part
of a deposition is offered in evidence by a party, an adverse party may require him to
introduce all of it which is relevant to the part introduced * * *."
introduce all of it which is relevant to the part introduced * * *. The ruling by the court was
of its own motion. Neither side objected to it. In an earlier case of Sharon v. Minnock, 6 Nev.
377, 384 (1871), this court said: This presumption of a waiver of a right, or assent to an
irregularity, from a failure to interpose objection at the proper time, is universally recognized
by the courts, and applied to every step taken in an action, from the beginning to the end.
See also Ramsey v. Mading, 217 P.2d 1041 (Wash. 1950).
[Headnotes 23-25]
Appellant next contends that it was error for the trial court to allow respondent to put in
evidence the book net worth of appellant of $1,679,214,312.40. Although punitive damages
were sought, the jury did not return an award for that type of damages. It is proper, where
evidence supports the theory of punitive damages, to allow the introduction of the financial
position of the defendant. Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962); Porter v.
Funkhouser, 79 Nev. 273, 382 P.2D 216 (1963). Furthermore, the court in instruction No. 42
instructed the jury as to the purpose for which the book net worth of appellant was admitted
in evidence. That instruction reads: The net worth evidence that has been presented to you
may be considered only on the question of assessing punitive damages and must not be
considered in the question of assessing compensatory damages. The jury is presumed to give
effect to each of the instructions. Parker v. De Bernardi, 40 Nev. 361, 164 P. 645 (1917). We
see no error.
Next the appellant claims that the award of compensatory damages in the sum of
$134,737.45 was so excessive as to be shocking. It appears that in only five cases has this
court reversed a compensatory verdict in a personal injury case on the basis that the verdict
was excessive, the last reversal being in 1914.
In the following cases this court has held that verdicts in this type of case are not
excessive: Solen v. V.&T. R.R. Co., 13 Nev. 106 (1878); Schafer v. Gilmer, 13 Nev. 330
(1878); Wedekind v. Southern Pacific, 20 Nev. 292, 21 P. 682 (1889); Strozzi v. Wines, 24
Nev. 389, 55 P. 828, 57 P. 832 (1899); Powell v. N. C. & O. Ry., 28 Nev. 40, 78 P. 978
(1904); Murphy v. Southern Pacific, 31 Nev. 120, 101 P. 322 (1909); Burch v. Southern
Pacific, 32 Nev. 75, 104 P. 225 (1909); Forrester v. Southern Pacific, 36 Nev. 247, 134 P.
753 (1913); Bawden v. Kuklinski, 48 Nev. 181, 228 P. 588 (1924); Nicora v. Cerveri, 49
Nev. 261, 244 P. 897 (1926); Anderson v. Snell, 57 Nev. 78, 83, 62 P.2d 703 {1936);
Babcock and Wilcox Co. v.
(1936); Babcock and Wilcox Co. v. Nolton, 58 Nev. 133, 71 P.2d 1051 (1937); J. C. Penney
Co. v. Gravelle, 62 Nev. 434, 144 P.2d 487 (1945); Slack v. Schwartz, 63 Nev. 47, 161 P.2d
345 (1945); Wells, Inc. v. Shoemake, 64 Nev. 57, 177 P.2d 451 (1947); Hospital Assn. v.
Gaffney, 64 Nev. 225, 180 P.2d 594 (1947); Campbell v. Baskin, 69 Nev. 108, 242 P.2d 290
(1952); Schatz v. Devitte, 75 Nev. 124, 335 P.2d 783 (1959); Novack v. Hoppin, 77 Nev. 33,
359 P.2d 390 (1961); Sierra Pacific v. Anderson, 77 Nev. 68, 358 P.2d 892 (1961); Miller v.
Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962); Porter v. Funkhouser, 79 Nev. 273, 382 P.2d
216 (1963); Meagher v. Garvin, 80 Nev. 211, 391 P.2d 507 (1964).
[Headnotes 26, 27]
This court has from time to time stated reasons why it was reluctant to substitute its
judgment for the wisdom of the trier of fact on the amount of damages. In Burch v. Southern
Pacific, 32 Nev. 75, 104 P. 225 (1909), it is stated, This court, recognizing the solemnity of
the verdict of twelve jurors, to whom under our system of jurisprudence, is awarded the
special province of determining the amount of compensation which should be given a
plaintiff, has, very succinctly we believe, laid down the proper rule for appellate courts to
follow in consideration of verdicts, in the following language: There being no absolute fixed
legal rule of compensation, appellate courts ought not to interfere with a verdict, unless it
clearly appears that there has been such a mistake of the principles on which the damages
were estimated, or some improper motive or bias indicating passion or prejudice upon the
part of the jury.' Also in Forrester v. Southern Pacific, 36 Nev. 247, 134 P. 753 (1913), this
court said: The amount awarded by the jury is large, and we have considered carefully
whether it ought to be set aside or reduced. In actions for damages in which the law provides
no legal rule of measurement it is the special province of the jury to determine the amount
that ought to be allowed, and the court is not justified in reversing the case or granting a new
trial on the ground that the verdict is excessive, unless it is so flagrantly improper as to
indicate passion, prejudice or corruption in the jury. In Brownfield v. Woolworth Co., 69
Nev. 294, 248 P.2d 1078 (1952), it was held, This is not a case where the monetary extent of
damage can be calculated by reference to some objective standard and thus ascertained as
matter of law. The elements of pain and suffering are wholly subjective. It can hardly be
denied that, because of their very nature, a determination of their monetary compensation
falls peculiarly within the province of the jury.
province of the jury. * * * We may not invade the province of the fact-finder by arbitrarily
substituting a monetary judgment in a specific sum felt to be more suitable. * * *
We also said in Sierra Pacific Power Co. v. Anderson, 77 Nev. 68, 358 P.2d 892 (1961),
* * * This point necessarily falls within the foregoing rulings. This clearly is a case where
substantial evidence of a conflicting nature was before the jury, no prejudicial errors of law
were made; and the verdict of the jury must and should be upheld. In Miller v. Schnitzer,
supra, we further said: * * * The monetary extent of damage cannot be calculated by
reference to an objective standard. The extent of such damage, by its very nature, falls
peculiarly within the province of the trier of fact, in this case a jury. * * * The core of the
matter seems to be that an appellate court will disallow or reduce the award if its judicial
conscience is shocked; otherwise it will not. * * *
Appellant next contends that nowhere in Nevada law is there a case with comparable
injuries resulting in a similar verdict. While not precisely in point, we feel the case of
Meagher v. Garvin, 80 Nev. 211, 391 P.2d 507 (1964), is in a reasonable sense comparable in
fact and in damages awarded.
Finally, appellant complains that the verdict must be set aside because it awarded
compensatory damages against the Southern Pacific Railroad Company and against no others.
Appellant contends that the circumstances must be regarded as a favorable finding with
respect to the engineer, the foreman and the switchmen. It cites the case of Wright v. Safeway
Stores, 109 P.2d 542 (Wash. 1941), which says: We are of the opinion that, by returning a
verdict against Safeway Stores only, the jury indicated that they did not find for the plaintiff
and against the defendant Weiuman just as plainly as though they had made an affirmative
finding to that effect.
Appellant then argues that since the jury did not find against the engineer, the foreman and
the switchmen, it in substance found them free from negligence which in turn would
exonerate the railroad because thereupon respondent was, as a matter of law, guilty of
contributory negligence. However, the law does not support that position. In Brokaw v.
Black-Foxe Military Institute, 231 P.2d 816 (Cal. 1951), quoting from Irelan-Yuba etc. Min.
Co. v. Pacific Gas & Electric, 116 P.2d 611, 619 (Cal. 1941), it is written: It is well settled
that a verdict against one of two defendants but which is silent as to the other defendant is not
a verdict in favor of the latter but is merely a failure on the part of the jury to find upon all of
the issues.
[Headnotes 28, 29]
Furthermore, when a verdict is sought against a defendant corporation on dual theories of
liability, the release of employees-defendant does not release the corporation. We said in
Novack v. Hoppin, 77 Nev. 33, 359 P.2d 390 (1961): The issues formed by the pleadings,
and the evidence at the trial, together with the instructions given, were such as to permit the
entry of a judgment in favor of Hoppin and against Novack, independent of any application of
the doctrine of respondent superior. * * * [T]he jury had before it evidence pertaining to the
issue of negligence on the part of Novack * * *. As we conclude that there was substantial
evidence that Novack's independent negligence was a proximate cause of the accident, the
verdict for compensatory damages in favor of Hoppin and against Novack must be sustained.
* * * The same circumstance is true here. The jury could well have fixed liability upon the
railroad because of its maintenance, after notice to it, of a dangerous condition of the crossing
proximately resulting in injury to respondent.
Finally appellant contends that the combination of errors noted above prejudice the
substantial rights of appellant. It contends that some, standing alone, require a reversal of the
judgment. It further contends that taken together they explain the enormous size of the verdict
against appellant and demonstrate that appellant was in effect denied a fair trial. We feel there
is no merit to the assigned errors, individually or collectively.
Zenoff, J., and Mendoza, D. J., concur.
Thompson, C. J., being disqualified, the Governor commissioned Honorable John F.
Mendoza of the Eighth Judicial District to sit in his place.
____________
83 Nev. 497, 497 (1967) Nevada Industrial Commission v. Holt
NEVADA INDUSTRIAL COMMISSION, Appellant, v.
WALLACE HOLT, Respondent.
No. 5353
December 8, 1967 434 P.2d 423
Appeal from judgment of the Eighth Judicial District Court, Clark County; John Mowbray,
Judge.
Appeal by Industrial Commission from a decision of the lower court which ruled that
employee was entitled to compensation under the Industrial Insurance Act. The Supreme
Court, Thompson, C. J., held that accidental injury to employee, who was struck on head by
golf club while at driving range provided by his employer on his day off, did not arise out of
and in the course of his employment where it was not a regular incident of his employment
to enjoy recreation on his day off, employer did not require his presence there, and employer
did not receive a direct benefit from that off-duty activity beyond the intangible value of
employee health and morale common to all kinds of recreation.
Reversed.
William J. Crowell, of Carson City, for Appellant.
John E. Kelly, of Las Vegas, for Respondent.
Recreational activities should not be deemed within the course of employment unless a regular
incident of employment, or required by the employee, or of direct benefit to the employer beyond the
intangible value of employee health and morale common to all kinds of recreation and social life.
Accidental injury to employee, who was struck on head by golf club while at driving range provided
by his employer on his day off, did not arise out of and in the course of his employment where it was
not a regular incident of his employment to enjoy recreation on his day off, employer did not require his
presence there, and employer did not receive a direct benefit from that off-duty activity beyond the
intangible value of employee health and morale common to all kinds of recreation. NRS 616.270,
subd. 1.
Legislature did not intend to allow compensation in circumstances that would penalize an employer
for providing recreational facilities. NRS 616.010 et seq.
OPINION
The Nevada Industrial Commission appeals from a district court ruling that an employee,
who was injured on his day off while engaged in recreation at a golf driving range provided
by his employer, is entitled to compensation under the Nevada Industrial Insurance Act.1 It
was the district court's view that the rationale of the "island cases" [O'Leary v.
Brown-Pacific-Maxon, 340 U.S. 504 {1951); Roher v. Cherry Grove Hotel, 245 N.Y.S.2d
173 {1963); Dow v. Collins, 254 N.Y.S.2d 554 {1964)] controlled this case, and concluded
that the injury arose out of and in the course of employment.
Industrial Insurance Act.
1
It was the district court's view that the rationale of the island
cases [O'Leary v. Brown-Pacific-Maxon, 340 U.S. 504 (1951); Roher v. Cherry Grove
Hotel, 245 N.Y.S.2d 173 (1963); Dow v. Collins, 254 N.Y.S.2d 554 (1964)] controlled this
case, and concluded that the injury arose out of and in the course of employment. We do not
agree, and reverse.
The island cases concern employees who were living and working in areas remote from
their homes and sustained injuries from activities which, in other circumstances, would not be
deemed to have been incurred within the scope and course of their employment. The leading
case is O'Leary v. Brown-Pacific-Maxon, supra, decided by the United States Supreme Court
under the Longshoremen's and Harbor Workers' Act, and involving an accidental death claim
by the mother of an employee of a government contractor operating on the Island of Guam.
The contractor maintained a recreation center near a shoreline along which ran a channel so
dangerous for swimmers that its use was forbidden and signs to that effect erected. The
employee plunged into the channel to rescue others and drowned. The death claim was
allowed by the Commissioner, his ruling set aside by the Court of Appeals, and reinstated by
the Supreme Court. The High Court believed that the record could be read to support the
Commissioner's view that the employee's death could fairly be attributable to the risks of
employment. The Court noted, however, that had the Commissioner made an opposite finding
his view might well have been sustained.
In reaching its conclusion the Court mentioned that, in the circumstances presented, the
test of recovery is not a causal relation between the nature of employment and the accident.
Nor is it necessary that at the time of injury the employee be engaged in an activity of benefit
to his employer. The Court stated that all that is required is that the obligations or
conditions of employment create the zone of special danger out of which the injury arose.
In the context of that case we presume that such language had reference mainly to the fact
that employment on the remote Island of Guam demanded the employee's residence there. If
he wished to work on Guam he had to live there, and any injury sustained, whether during
recreation or otherwise, could be considered to have occurred in the course of his
employment.
____________________

1
Holt, the employee, was a rotary driller at the Nevada Test Site near Mercury. He was injured while
observing another demonstrate a golf swing. The demonstrator's golf club, during backswing, struck Holt on the
left side of his head.
recreation or otherwise, could be considered to have occurred in the course of his
employment.
The circumstances of O'Leary are not the circumstances of this case. Here, the employee
was not required to live at the test site. He chose to live there in a trailer furnished by the
employer. Many of his fellow employees preferred to live in Las Vegas and commute to and
from work.
2
The conditions of employment did not create a zone of special danger during
the days and hours he was not performing specified work duties.
We believe that the cases decided by the intermediate appellate court of New York [Roher
v. Cherry Grove Hotel, supra; Dow v. Collins, supra; Rizzo v. Syracuse University, 151
N.Y.S.2d 724 (1956); Leonard v. Peoples Camp Corp., 194 N.Y.S.2d 863 (1959)] are also
distinguishable on their facts from the case before us. In any event we are not persuaded that
those cases were correctly decided.
[Headnote 1]
It seems to us that, as a minimum, recreational activity should not be deemed within the
course of employment unless a regular incident of employment, or required by the employer,
or of direct benefit to the employer beyond the intangible value of employee health and
morale common to all kinds of recreation and social life. 1 Larson, Workmen's Compensation
Law 22.00. Even when one of the conditions just mentioned is present the case may be
borderline, with divergent results in different jurisdictions.
[Headnotes 2, 3]
We are not here faced with a borderline case. It was not a regular incident of Holt's
employment to enjoy recreation on his day off at the golf driving range. The employer did not
require his presence there, nor did the employer receive a direct benefit from that off-duty
activity beyond the intangible value of employee health and morale common to all kinds of
recreation. The employee was pursuing a private interest on his own time wholly unconnected
with the work for which he was hired. Wilson v. General Motors, 84 N.E.2d 781 (N.Y. 1949).
To allow compensation in these circumstances is to penalize the employer for providing a
recreational facility. Congdon v. Klett, 120 N.E.2d 796 {N.Y. 1954).
____________________

2
See Nevada Industrial Commission v. Dixon, 77 Nev. 296, 362 P.2d 577 (1961), where this court ruled that
an employee, who was not receiving travel time pay for commuting from Las Vegas to the test site, and was
injured en route, did not sustain a compensable loss under the Act.
Klett, 120 N.E.2d 796 (N.Y. 1954). The legislature did not intend that result. We conclude
that the accidental injury to Holt did not arise out of and in the course of his employment
within the intendment of NRS 616.270(1).
Reversed.
Collins, J., Zenoff, J., Batjer, J., and Wilkes, D. J., concur.
____________
83 Nev. 501, 501 (1967) Nevada Land & Mtge. v. Hidden Wells
NEVADA LAND AND MORTGAGE COMPANY, a Nevada Corporation, Appellant, v.
HIDDEN WELLS RANCH, INC., a Nevada Corporation, Respondent.
No. 5318
December 13, 1967 435 P.2d 198
Appeal from an order granting plaintiff's motion for summary judgment under Rule 56(a)
NRCP. Eighth Judicial District Court, Clark County; George E. Marshall, Judge.
Action by creditor against debtor for deficiency judgment after sale under deed of trust.
The trial court granted summary judgment for creditor, and debtor appealed. The Supreme
Court, Batjer, J., held that, after default, creditor was entitled to select judicial process for
foreclosure pursuant to statute relating to recovery of debt or enforcement of rights secured by
mortgage or procedure under statute relating to foreclosure by trustee's sale and could then
sue on promissory note, secured by deed of trust, for any deficiency, and that, where
deficiency judgment was based on price paid by creditor at trustee sale in accordance with
deed of trust and Nevada case law, and no affidavits were filed in opposition to those setting
forth amounts due on behalf of creditor, debtor was not entitled to credit in amount equal to
fair market value of the security as established by judicial supervision.
Affirmed.
Foley Brothers, of Las Vegas, for Appellant.
Wiener, Goldwater & Galatz, of Las Vegas, for Respondent.
1. Election of Remedies.
Doctrine of election of remedies applies only to inconsistent remedies, and judicial foreclosure pursuant
to mortgage foreclosure statute and foreclosure procedure relating to trustee sales are not
inconsistent remedies.
statute and foreclosure procedure relating to trustee sales are not inconsistent remedies. NRS 40.430,
107.010 et seq.
2. Mortgages.
Statute relating to the recovery of debt or enforcement of right secured by mortgage combines into one
action procedure relating to foreclosure and to deficiency judgment and is not a restrictive or preclusive
statute but is a vehicle for efficient litigation and prevention of multiplicity of suits. NRS 40.430.
3. Mortgages.
After default, beneficiary under trust deed was entitled to select judicial process for foreclosure pursuant
to statute relating to recovery of debt or enforcement of rights secured by mortgage or procedure under
statute relating to foreclosure by trustee's sale and could then sue on promissory note, secured by deed of
trust, for any deficiency. NRS 40.430, 107.010 et seq.
4. Mortgages.
Trial court may set aside a trustee's sale, under deed of trust, upon grounds of fraud or unfairness. NRS
40.430, 107.010 et seq.
5. Mortgages.
Where deficiency judgment was based on price paid by creditor at trustee sale in accordance with deed of
trust and Nevada case law, and no affidavits were filed in opposition to those setting forth amounts due on
behalf of creditor, debtor was not entitled to credit in amount equal to fair market value of the security as
established by judicial supervision. NRS 40.430, 107.010 et seq.
OPINION
This is an appeal taken by the appellant from an order granting summary judgment.
Appellant (defendant below) assigns as error the trial court's refusal to properly apply NRS
40.430, its misinterpretation and misapplication of the ruling in McMillan v. United
Mortgage Company, 82 Nev. 117, 412 P.2d 604 (1966), and its failure to recognize the
essential difference in consequence between a sale under a deed of trust and a sale upon
judicial foreclosure.
In January 1964 the appellant and the respondent (plaintiff below) entered into an
agreement whereby the appellant promised to purchase from the respondent certain real
property located in Clark County, Nevada.
As part of the total purchase price of $400,000, the appellant assumed an obligation of
$193,500 secured by a first deed of trust on the property. The balance of $206,500 was
evidenced by an installment promissory note from the appellant to the respondent, secured by
a second deed of trust on the subject property.
The appellant defaulted and the respondent caused the real property to be sold pursuant to
ch. 107, NRS, and the specific provisions of the second deed of trust. At the trustee's sale the
respondent purchased the property, subject to the first deed of trust, for the sum of $50,000.
The respondent then commenced this action in the trial court to recover a deficiency
judgment. The appellant moved to dismiss and the trial court denied the motion. The
appellant's motion for summary judgment was also denied. The respondent moved for
summary judgment, which was granted. Judgment was entered in the respondent's favor and
against the appellant for $226,655.75.
[Headnote 1]
The appellant denominates NRS 40.430
1
as the one-action rule, and argues, upon the
theory of an election of remedies, that the statute limits the recovery of a deficiency judgment
to a judicial foreclosure and denies the right of an action for a deficiency if the beneficiary of
a deed of trust proceeds to foreclose by a trustee sale under NRS ch. 107. The doctrine of
election of remedies has application only to inconsistent remedies. See Barringer v. Ray, 72
Nev. 172, 298 P.2d 933 (1956); McColl v. Scherer, 73 Nev. 226, 315 P.2d 807 (1957).
The judicial foreclosure pursuant to NRS 40.430, and the foreclosure procedure under
NRS ch. 107
____________________

1
NRS 40.430. Recovery of debt or enforcement of right secured by mortgage; foreclosure suit proceedings.
There shall be but one action for the recovery of any debt, or for the enforcement of any right secured by
mortgage or lien upon real estate, or personal property, which action shall be in accordance with the provisions
of this section, and NRS 40.440 and 40.450. In such action, the judgment shall be rendered for the amount 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.
foreclosure procedure under NRS ch. 107, are not inconsistent remedies.
McMillan v. United Mortgage Company, supra, points out that, although the remedies of a
trustee's sale and a deficiency judgment cannot be pursued simultaneously, they are not
inconsistent, and a party can bring an action on the note for a deficiency judgment after the
trustee sale.
In many jurisdictions a mortgage foreclosure must first be commenced by a suit in the
equity division of the courts, then, after foreclosure and sale, an action for a deficiency may
be commenced in the law division.
[Headnote 2]
NRS 40.430 combines the procedure into one action. It is not a restrictive or preclusive
statute, but a vehicle for efficient litigation and the prevention of a multiplicity of suits.
[Headnote 3]
This court in McMillan v. United Mortgage Company, supra, has held that deeds of trust
fall within the meaning of NRS 40.430. Where a default has occurred, a beneficiary, under a
deed of trust, can select the judicial process for foreclosure pursuant to NRS 40.430, or the
procedure under NRS ch. 107, of foreclosure by a trustee's sale and then bring an action on
the promissory note for any deficiency which may occur.
In the case of McMillan v. United Mortgage Company, supra, this court citing Sims v.
Grubb, 75 Nev. 173, 336 P.2d 759 (1959), said: Once the security has been sold and the debt
not satisfied, an action on the note with ancillary attachment is permissible. Also see Finley
v. Friedman, 159 A.2d 668 (D.C. 1960); Tarrant Savings Association v. Lucky Homes, Inc.,
390 S.W.2d 473 (Tex. 1965).
There is no contention, in this case, that the foreclosure was not made strictly in
accordance with the trustee's power of sale as provided for in the second deed of trust and in
the applicable law. There is no charge of fraud. Nothing is alleged which would render the
trustee's sale void at law.
Nevertheless, the appellant contends that it is entitled to a credit against the effect of the
summary judgment in an amount equal to the fair market value of the security as established
by judicial supervision, rather than the price bid by the creditor at the trustee sale.
[Headnote 4]
In the proper case, the trial court may set aside a trustee's sale upon the grounds of fraud or
unfairness. See Woolley v. Tougas, 1 A.2d 92 (R.I. 1938); Handy v. Rogers, 351 P.2d S19
{Colo.
819 (Colo. 1960). However, the procedure followed, in this case, to ascertain the value of the
security, not only falls within the standard set in McMillan v. United Mortgage Company,
supra, where this court held that the mode for determining the value of the security is to
exhaust the security by sale pursuant to the terms of the deed of trust, but is in accordance
with the provisions of section 10(c)
2
of the deed of trust recorded in book 578 of Official
Records as document No. 465016 in the office of the County Recorder of Clark County,
Nevada, which provisions were adopted and incorporated and made a part of the second deed
of trust.
We find that this case fits within the holdings of McMillan v. United Mortgage Company,
supra, and that the holdings in that case were correctly interpreted and applied to this case by
the trial court.
We further find that the trial court fully recognized the differences between a foreclosure
sale under a deed of trust pursuant to NRS ch. 107 and a foreclosure sale under NRS 40.430,
found those procedures to be mutually exclusive and properly interpreted and applied the law
as found.
The record reveals that the answer to the complaint and the answer to the amended
supplemental complaint admit the promissory note secured by the second deed of trust.
An affidavit by Ike P. LaRue, Jr., setting forth the amounts due from appellant to
respondent was filed on behalf of the respondent. No opposing affidavit being filed, the trial
judge found the affidavit to be conclusive.
It was held, in the case of Tarrant Savings Association v. Lucky Homes, Inc., supra, that
the holder of a note secured by a trust deed maintained its burden to establish its case for a
deficiency judgment by introducing its note from the trust deed grantors and that the burden
shifted to the trust deed grantors to show some reason for denying recovery to the holder of
the note.
[Headnote 5]
In the case of Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979, this court, citing
Sartor v. Arkansas Gas Corp., 321 U.S. 620, said: "Rule 56 authorizes summary judgment
only where the moving party is entitled to judgment as a matter of law, where it is quite
clear what the truth is, that no genuine issue remains for trial, and that the purpose of the
rule is not to cut litigants off from their right of trial by jury if they really have issues to
try."
____________________

2
10(c). At the time of sale so fixed, trustee may sell the property so advertised or any part thereof, either as
a whole or in separate parcels at its sole discretion, at public auction, to the highest bidder for cash in lawful
money of the United States, payable at the time of sale, and shall deliver to such purchaser a deed conveying the
property so sold, but without covenant or warranty, express or implied, Grantor hereby agrees to surrender,
immediately and without demand, possession of said property to such purchaser.
321 U.S. 620, said: Rule 56 authorizes summary judgment only where the moving party is
entitled to judgment as a matter of law, where it is quite clear what the truth is, that no
genuine issue remains for trial, and that the purpose of the rule is not to cut litigants off from
their right of trial by jury if they really have issues to try.
In the present case no material issues of fact remained to be tried. Summary judgment was
properly rendered in favor of the respondent.
The appellant, as trustor of the second deed of trust, could have protected its position, by
having inserted in the deed of trust instrument, a clause barring an action on the note for a
deficiency judgment after a trustee's sale of the security.
The order and judgment denying the appellant's motion for summary judgment and
granting the respondent's motion for summary judgment are hereby affirmed with costs.
____________
83 Nev. 506, 506 (1967) Zunino v. Paramore
LOUIS ZUNINO and THERESA ZUNINO, Appellants, v. JOSEPH T.
PARAMORE and MARGARET T. PARAMORE, Respondents.
No. 5287
December 14, 1967 435 P.2d 196
Appeal from judgment for damages for failure of property owners to comply with oral
promise to give a lease. Second Judicial District Court, Washoe County; Merwyn H. Brown,
Judge.
Action by lessees against tenant-sublessees for unlawful detainer of premises and damages
for holding over. Tenant-sublessees filed third-party complaint against landlords. The trial
court rendered judgment for lessees against tenant-sublessees and judgment for latter against
landlords. Landlords appealed. The Supreme Court, Zenoff, J., held that evidence that
landlords complimented tenant-sublessees on how they had improved the premises and had
represented that there were legal grounds to cancel lessees' lease was not sufficient to
establish tenant-sublessees' reliance on a prior promise so as to take oral agreement by
landlords to give tenant-sublessees lease for three years and one month out of statute of
frauds.
Reversed.
Belford & Anglim, of Reno, for Appellants.
Gordon W. Rice and Leo P. Bergin, of Reno, for Respondents.
1. Frauds, Statute of.
Commitment by landlord to give a lease for three years and one month was within statute of frauds
and, thus, required to be in writing. NRS 111.205, 111.210, 111.220.
An agreement within statute of frauds is required to be in writing unless elements are found to exist
which amount to part performance to take the oral agreement out of the statute or to estop a party to raise
the statute as a defense. NRS 111.205, 111.210, 111.220.
To constitute estoppel sufficient to preclude a party from raising the statute of frauds as a defense,
the party relying on it must be influenced by the acts or silence of the other and it must appear that the
acts or conduct of the party estopped caused the party relying to act as he would not have acted. NRS
111.205, 111.210, 111.220.
Estoppel or part performance sufficient to take oral agreement out of statute of frauds must be proved
by some extraordinary measure or quantum of evidence. NRS 111.205, 111.210, 111.220.
Evidence that landlords complimented tenant-sublessees on how they had improved the premises and
had represented that there were legal grounds to cancel lessees' lease was not sufficient to establish
tenant-sublessees' reliance on a prior premise so as to take oral agreement by landlords to give
tenant-sublessees lease for three years and one month out of statute of frauds. NRS 111.205,
111.210, 111.220.
OPINION
This is an appeal from a judgment favoring respondents Paramores who are tenants under
a sublease against appellants, land owners. The lessee of the master lease, Mylans (sublessor
to Paramores), also had judgment for restitution of the premises and damages against the
Paramores, but no appeal is taken therefrom and no issue is presented as to that part of the
judgment.
The Zuninos owned certain real property in Reno used primarily as a wedding chapel.
They executed a master lease to the property to the Mylans for a period of five years.
Subsequently the Mylans subleased this property to the Paramores for two years.
for two years. After the expiration of the sublease Paramore refused to give up possession of
the property to the Mylans. Thereupon, the Mylans initiated an action against the Paramores
for unlawful detainer and for damages for the holding over. The defendants, Paramores,
brought the Zuninos into the lawsuit as third-party defendants, alleging that the Zuninos had
orally promised to evict the Mylans and to give the master lease to the Paramores, that in
reliance on that promise, the Paramores substantially improved the property. The Zuninos set
up the statute of frauds as an affirmative defense to the third-party complaint.
The trial court found in favor of the Paramores holding that the Paramores, having relied
upon the oral representations of the Zuninos, made substantial improvements to the property
which took the issue out of the statute of frauds, and that the Zuninos, thus, were estopped
from asserting the statute of frauds as a defense. Other determinations, such as damages, are
found in the trial court's final judgment. But because we now rule that the trial court erred in
its conclusion, we need not consider those problems.
[Headnotes 1-4]
1. The commitment by the Zuninos to give the Paramores a lease for three years and one
month was within the statute of frauds, and, thus, is required to be in writing. NRS 111.205,
111.210, 111.220.
1
Williston, Contracts (Students Edition 1933), Chap.
____________________

1
NRS 111.205. No estate created in land unless by operation of law or written conveyance; leases for
terms not exceeding 1 year.
1. No estate or interest in lands, other than for leases for a term not exceeding 1 year, nor any trust or
power over or concerning lands, or in any manner relating thereto, shall be created, granted, assigned,
surrendered or declared after December 2, 1861, unless by act or operation of law, or by deed or conveyance, in
writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his
lawful agent thereunto authorized in writing.
NRS 111.210. Contracts for sale or lease of land for periods in excess of 1 year void unless in writing.
1. Every contract for the leasing for a longer period than 1 year, or for the sale of any lands, or any interest
in lands, shall be void unless the contract, or some note or memorandum thereof, expressing the consideration,
be in writing, and be subscribed by the party by whom the lease or sale is to be made.
NRS 111.220. Agreements not in writing: When void. In the following cases every agreement shall be void,
unless such agreement, or some note or memorandum thereof expressing the consideration, be in writing and
subscribed by the party charged therewith:
1. Every agreement that, by the terms, is not to be performed within 1 year from the making thereof.
1933), Chap. 17, Secs. 491, 495; 58 A.L.R. 1015. This is the rule unless elements are found
to exist which amount to part performance to take the oral agreement out of the statute of
frauds or which estop a party to raise the statute as a defense. To constitute estoppel the party
relying on it must be influenced by the acts or silence of the other and it must appear that the
acts or conduct of the party estopped caused the party relying to act as he would not have
acted or he cannot complain that he was deceived to his prejudice. Sharon v. Minnock, 6 Nev.
377 (1871); Beck v. Curti, 56 Nev. 72, 45 P.2d 601 (1935); Ford v. Brown, 45 Nev. 202, 200
P. 522 (1921); State ex rel. Thatcher v. Justice Court, 46 Nev. 133, 207 P. 1105 (1922); In re
MacDonnell's Estate, 56 Nev. 504, 55 P.2d 834 (1936); Woods v. Bromley, 69 Nev. 96, 241
P.2d 1103 (1952); Gardner v. Pierce, 22 Nev. 146, 36 P. 782 (1894). See also Harmon v.
Tanner Motor Tours, 79 Nev. 4, 16, 377 P.2d 622 (1963). Estoppel or part performance must
be proved by some extraordinary measure or quantum of evidence. 4 A.L.R.3rd 361; Gardner
v. Pierce, supra; Evans v. Lee, 12 Nev. 393 (1877).
[Headnote 5]
The record is not clear as to how many conversations were had between the Paramores and
Zuninos, but there were very few. Although we paraphrase to some extent, all that we can
perceive is that Zuninos once complimented the Paramores on how they had improved the
place (remodeled the basement downstairs and carpeted the floor) and said, You have made
so many improvements here you have just got yourselves set up so that maybe you can make
some money by the improvements. He added, You have improved the situation and I don't
see any need in the world about you ever having to leave.
Furthermore, Zunino represented to the Paramores that he had legal grounds to cancel the
Mylans' lease, but the Paramores made no effort to determine the strength of those grounds,
such as consulting legal counsel, nor to determine from Mylans the extent of his so-called
defaults. Gardner v. Pierce, supra. Suffice it to say, had they done so, it is probable they
would have learned that the purported defaults were not of such nature as to give Zunino a
basis to cancel Mylans' lease nor did the Zuninos seriously intend to cancel the master lease.
We do not find in this case the quantum of evidence necessary to sustain the Paramores'
burden of proof as a matter of law. Since here there was a total failure of proof to establish
reliance upon a prior promise the decision of the trial court must be reversed.
reliance upon a prior promise the decision of the trial court must be reversed.
Thompson, C. J., Batjer, J., Mowbray, J., and Compton, D. J., concur.
Collins, J., being disqualified, the Governor appointed Honorable William P. Compton of
the Eighth Judicial District to sit in his place.
____________
83 Nev. 510, 510 (1967) Ames v. City of North Las Vegas
JOHN P. AMES and DOROTHA AMES, Husband and Wife, Appellants, v. CITY OF
NORTH LAS VEGAS, a Municipal Corporation, et al., Respondents.
No. 5366
December 14, 1967 435 P.2d 202
Appeal from an order of the Eighth Judicial District Court, Clark County, denying
preliminary injunction; John F. Sexton, Judge.
Declaratory relief action in which resident taxpayers sought judgment invalidating city
ordinance which created projects to be financed by public investment bonds and which had
been passed as an emergency measure. The lower court entered an interlocutory order
denying a preliminary injunction, and the taxpayers appealed. The Supreme Court,
Thompson, C. J., held that the ordinance was not validly enacted as an emergency measure
but that the Public Securities Validating Act cured the defect.
Affirmed.
Harry J. Mangrum, Jr., of Las Vegas, for Appellants.
John P. Fadgen, City Attorney, North Las Vegas, for Respondents.
Appeal from interlocutory order denying a preliminary injunction incident to action for declaratory relief
is permissible.
City ordinance creating special assessment district for street, sidewalk, and storm sewer projects to be
financed by public improvement bonds was violative of city charter provision requiring preamble to state
reasons for passage as emergency measure, where preamble stated that reasons for passage
as emergency measure were "the necessity for immediately undertaking such
improvements."
where preamble stated that reasons for passage as emergency measure were the necessity for immediately
undertaking such improvements.
In taxpayers' injunction proceeding to determine validity of city ordinance passed as an emergency
measure, evidence which revealed that improvement project authorized by ordinance was undertaken to
correct flood and traffic problems, but which did not reveal that problems suddenly developed, were
unexpected, or greatly out of the ordinary, failed to establish an emergency in fact.
Subject to constitutional limitations, curative statutes validate municipal corporations' acts and
proceedings. Stats. 1967, ch. 27.
Subsequent legislative sanction by way of curative statutes validating municipal corporations' acts and
proceedings is equivalent of original authority. Stats. 1967, ch. 27.
Fact that defective enactment of city ordinance as emergency measure was cured by enactment of a
validating act did not deny due process as to protestants, where public hearing preceded enactment by one
month, protestants objected orally and in writing to improvement district created by ordinance, and city
council was aware of protestants' disapproval and heard their protests.
Public Securities Validating Act passed to cure defects existing in enactment of laws providing for
financing public improvements through sale and issuance of public securities cured defective enactment, as
an emergency measure, of ordinance creating project to be financed by public improvement bonds, where
bonds had not been sold prior to enactment of validating act. Stats. 1967, ch. 27.
OPINION
[Headnote 1]
This appeal is from an interlocutory order denying a preliminary injunction incident to an
action for declaratory relief. The appeal is permissible. Vegas Franchises, Ltd. v. Culinary
Workers, 83 Nev. 236, 427 P.2d 959 (1967).
[Headnotes 2, 3]
John and Dorotha Ames, resident taxpayers, sought a judgment invalidating Ordinance
No. 322 of the City of North Las Vegas. That ordinance creates a special assessment district
for street, sidewalk, and storm sewer projects within the city and will be financed by the sale
and issuance of public improvement bonds.
and will be financed by the sale and issuance of public improvement bonds. Their claim for
declaratory relief rests upon the premise that Ordinance No. 322 was invalidly enacted as an
emergency measure, since the preamble of that ordinance does not adequately express the
reasons for the emergency, and an emergency in fact did not exist. The same contention was
presented to the district court when Ames sought a preliminary injunction to halt construction
which was under way. The district court apparently thought that the ordinance was validly
enacted as an emergency measure and denied the application for a preliminary injunction.
Although we do not share this view, we are forced to sustain the validity of the ordinance by
reason of subsequent validating legislation [Public Securities Validation Act--67 Stats. Nev.
ch. 27, p. 56] which corrected defects existing in the enactment of Ordinance 322. For this
reason we affirm.
1. The Charter of the City of North Las Vegas provides that No ordinance shall be passed
as an emergency measure unless reasons for passing it as such are expressed in its preamble.
The preamble to Ordinance 322, in pertinent part reads: * * * said Council desires now to
authorize such improvements and work by this emergency measure, the reasons for passage
as an emergency measure being the necessity for immediately undertaking such
improvements. That statement is nothing more than a mere declaration that an emergency
exists. Cf. Joplin v. Ten Brook, 263 P. 893, 895 (Ore. 1928). The reasons therefor are not
expressed. The taxpayers of the city were not advised why emergency action was needed.
Three Nevada cases bear on the issuePenrose v. Whitacre, 61 Nev. 440, 132 P.2d 609
(1942); Carville v. McBride, 45 Nev. 305, 202 P. 802 (1922); Chartz v. Carson City, 39 Nev.
285, 156 P. 925 (1916). Penrose suggests that if the condition sought to be collected had
existed for years and was not sudden or unexpected, it is not an emergency. Id. at 457. Chartz
characterizes an emergency as something greatly out of the ordinary; something which could
not be adequately met by the usual machinery of government. Id. at 294. Indeed, Chartz
stands for the proposition that a street improvement program is a matter more of comfort and
convenience than of immediate, indispensable emergency. Id. at 296. And Carville indicates
that it may be permissible for a court to go behind the council's declaration of emergency
(whether faulty or otherwise) and ascertain if an emergency in fact existed when the
ordinance was passed. One must note, however, that Carville did not resolve this question
since it was not an issue on appeal.
Carville did not resolve this question since it was not an issue on appeal.
Assuming, without deciding, that it may sometimes be permissible for a court to go behind
the legislative declaration of emergency and examine the facts, the testimony received by the
court below in this case does not show a condition of emergency within the standards
established by Penrose and Chartz. The City Manager testified that the improvement project
was undertaken to correct flood and traffic problems. There was nothing presented to suggest
to the trial court that those problems suddenly developed, were unexpected, or greatly out of
the ordinary. To the contrary, the problems had existed for years. We conclude that Ordinance
No. 322 was not validly enacted as an emergency measure since the preamble of that
ordinance does not adequately express the reasons for the emergency as required by charter,
nor did an emergency in fact exist.
[Headnotes 4-6]
2. In 1967 the legislature enacted the Public Securities Validating Act to cure defects
existing in the enactment of laws providing for financing public improvements through the
issuance and sale of public securities. Subject to constitutional limitations, such curative
statute validates the acts and proceedings of municipal corporations. The subsequent
legislative sanction is the equivalent of original authority. Harris v. City of Reno, 81 Nev.
256, 401 P.2d 678 (1965). We find no constitutional barrier in this case. Ordinance 322 was
passed on August 29, 1966. A public hearing on the proposed special assessment district
preceded enactment by more than a month. John and Dorotha Ames were notified of that
public hearing by registered mail. They objected orally and in writing to the creation of such
district. The city council was aware of their disapproval and heard their protests. The
ordinance was not secretly enacted. Due process was accorded the protestants.
[Headnote 7]
The special assessment district bonds have not yet been sold. The curative statute
effectively covers this situation.
1
City of Venice v. Lawrence, 141 P. 406, 408 (Cal.App.
1914).
____________________

1
Sec. 3 of the Act reads: All outstanding public securities of the state and of all public bodies thereof, and
all acts and proceedings heretofore had or taken, or purportedly had or taken, by or on behalf of the state or any
public body thereof under law or under color of law preliminary to and in the authorization, execution, sale,
issuance and payment (or any combination thereof) of all such public securities are
We must, therefore, rule that the 1967 Public Securities Validating Act cured the defective
enactment of Ordinance No. 322 as an emergency measure.
Affirmed.
Collins, J., Zenoff, J., Batjer, J., and Mowbray, J., concur.
____________________
hereby validated, ratified, approved and confirmed, including but not necessarily limited to the terms provisions,
conditions and covenants of any resolution or ordinance appertaining thereto, the redemption of public securities
before maturity and provisions therefor, the levy and collection of rates, tolls and charges, special assessments,
and general and other taxes, and the acquisition and application of other revenues, the pledge and use of the
proceeds thereof, and the establishment of liens thereon and funds therefor, appertaining to such public
securities, except as hereinafter provided, notwithstanding any lack of power, authority or otherwise, other than
constitutional, and notwithstanding any defects and irregularities, other than constitutional, in the creation of
such public body and in such public securities, acts and proceedings, and in such authorization, execution, sale,
issuance and payment, including, without limiting the generality of the foregoing, such acts and proceedings
appertaining to such public securities all or any part of which have heretofore not been issued nor purportedly
issued. Such outstanding public securities are and shall be, and such public securities heretofore not issued nor
purportedly issued shall be, after their issuance, binding, legal, valid and enforcible obligations of the state or the
public body issuing them in accordance with their terms and their authorizing proceedings, subject to the taking
or adoption of acts and proceedings heretofore not had nor taken, nor purportedly had nor taken, but required by
and in substantial and due compliance with laws appertaining to any such public securities heretofore not issued
nor purportedly issued.
Sec. 4 of the Act reads: This act shall operate to supply such legislative authority as may be necessary to
validate any public securities heretofore issued and any such acts and proceedings heretofore taken which the
legislature could have supplied or provided for in the law under which such public securities were issued and
such acts or proceedings were taken. This act, however, shall be limited to the validation of public securities,
acts and proceedings to the extent to which the same can be effectuated under the state and federal constitutions.
Also this act shall not operate to validate, ratify, approve, confirm or legalize any public security, act,
proceeding or other matter the legality of which is being contested or inquired into in any legal proceeding now
pending and undetermined, and shall not operate to confirm, validate or legalize any public security, act,
proceedings or other matter which has heretofore been determined in any legal proceeding to be illegal, void or
ineffective.
____________
83 Nev. 515, 515 (1967) Elson v. District Court
DEAN ELSON, ROBERT LEE, M. B. PARKER, JAMES MORELAND and ARTHUR
BARRETT, Petitioners, v. GRANT L. BOWEN, District Judge, EIGHTH JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, in and for the County of Clark,
Respondent.
No. 5438
December 20, 1967 436 P.2d 12
Original petition for writ of prohibition contesting jurisdiction of trial court to order
federal agents to give depositions as defendants in civil case.
Petitioners brought original petition for writ of prohibition contesting jurisdiction of trial
court to order federal agents to give depositions as defendants in case brought to recover
damages arising out of allegedly illegal electronic surveillance of conversations at hotels. The
Supreme Court, Zenoff, J., with one judge concurring and three judges concurring in the
result, held that where agents at trial submitted to trial judge the logs and summaries of the
conversations illegally monitored and the court reviewed all the considerations and decided
that government security was not involved, and that the information solicited from agents was
not privileged, and that the agents should testify, agents could not refuse to testify though
agents' executive head had commanded them not to testify.
Petition denied.
Edwin L. Weisl, Jr., Assistant Attorney General, Carl Eardley, Acting Assistant Attorney
General, Joseph L. Ward, United States Attorney for the District of Nevada, Julien G.
Sourwine, Assistant United States Attorney for the District of Nevada, Alan S. Rosenthal, and
Robert V. Zener, Department of Justice, Washington, D.C., for Petitioners.
Jones & Jones, of Las Vegas, Peter R. Taft, Thomas A. Wadden, Jr., of Washington, D.C.,
Bryant R. Burton, and Adrian P. Marshall, of Beverly Hills, California, for Respondent.
1. Witnesses.
Government secrets are subject to privilege authorizing withholding of pertinent facts in judicial
proceeding but the privilege is subject to requirement that government has duty in seeing that justice is
done. (Per Zenoff, J., with one judge concurring, and three judges concurring in the result.)
Judicial review is appropriate when the claim of executive privilege or the right under departmental
orders to not testify is exercised. {Per Zenoff, J., with one judge concurring and three
judges concurring in the result.)
exercised. (Per Zenoff, J., with one judge concurring and three judges concurring in the result.)
Without lawful sanction eavesdropping is an intrusion into constitutionally protected area, the right of
privacy. (Per Zenoff, J., with one judge concurring, and three judges concurring in the result.) NRS
200.650; U.S.C.A.Const. Amends. 4, 14.
4. Criminal Law.
Government cannot break the law to enforce the law. (Per Zenoff, J., with one judge concurring and three
judges concurring in the result.)
5. States; Witnesses.
Where federal agents at trial for damages arising out of allegedly illegal electronic surveillance of
conversations at hotels submitted to trial judge the logs and summaries of conversations illegally monitored
and court reviewed all considerations and decided that government security was not involved, and that
information solicited from agents was not privileged, and that the agents should testify, agents could not
refuse to testify though agents' executive head had commanded them not to testify. (Per Zenoff, J., with one
judge concurring and three judges concurring in the result.) NRS 200.650, 200.660; U.S.C.A.Const.
Amends. 4, 14.
6. Witnesses.
Trial court, in which executive privilege is claimed, has right to pass upon claim of privilege and the
extent to which it will be allowed in protecting the secrets, security and interest of the United States.
U.S.C.A.Const. Amends. 4, 14.
7. Prohibition.
On petition for writ of prohibition Supreme Court was not concerned with depth of trial court's inquiry in
deciding that solicited information from federal agents was not privilege at civil trial for damages but only
with whether or not trial judge's decision was within the realm of his jurisdiction.
OPINION
Three lawsuits were brought to recover damages arising out of allegedly illegal electronic
surveillance of conversations at hotels in Las Vegas constituting invasion of privacy and
violation of Sec. 6, Chapter 242, Stats. of Nevada 1957. (Cf. Fowler v. So. Bell Tel. & Tel.
Co., 343 F.2d 150 (5th Cir. 1965).) That statute, NRS 200.650, provides:
Unauthorized, surreptitious intrusion of privacy by listening device prohibited. Except as
otherwise provided in NRS 200.660 to 200.690, inclusive, no person shall intrude upon the
privacy of other persons by surreptitiously listening to, monitoring or recording, or attempting
to listen to, monitor or record, by means of any mechanical, electronic or other listening
device, any private conversation engaged in by such other persons, or disclose the
existence, contents, substance, purport, effect or meaning of any such conversation so
listened to, monitored or recorded, unless authorized to do so by one of the persons
engaging in conversation."
record, by means of any mechanical, electronic or other listening device, any private
conversation engaged in by such other persons, or disclose the existence, contents, substance,
purport, effect or meaning of any such conversation so listened to, monitored or recorded,
unless authorized to do so by one of the persons engaging in conversation.
There is a provision in the statute which allows the obtaining of a court order for
monitoring which in these cases was not done. NRS 200.660.
In two of the actions, A-28155 and A-28157, the defendants are the Central Telephone
Company and/or certain employees of that company. In the third action, A-28156, the
defendants are F.B.I. agents Elson, Lee, Barker, Moreland and Barrett, who are alleged to
have performed with others the actual bugging. Edward Levinson and Fremont Hotel, Inc.,
are the plaintiffs in this and Case No. A-28155. Case No. A-28157 is a class action brought
by John Grandi on behalf of all telephone company subscribers. The issue presented before
this court applies to all of the actions and is solely confined to the plaintiffs' efforts to secure
information from agent Elson at the taking of his deposition. Elson and the other agents were
instructed by the Attorney General of the United States not to answer the material allegations
of the complaints because the answers would reveal privileged information. They were also
instructed by the Attorney General not to give certain information in depositions for the same
reason. These orders were in accordance with the exercise of executive privilege and
Department of Justice Order No. 324-64 (now 385-67 (12 C.F.R., Sec. 16.11 through 16.14)).
1
We direct our attention to the order of the trial court which granted plaintiffs' motions
to compel Elson to testify, struck the incomplete answer of the defendants, and required
production of certain material sought by plaintiffs' subpoena duces tecum for in camera
inspection.
____________________

1
28 C.F.R. 16.1. Production or disclosure of official information or material in response to a subpoena,
order, or other demand prohibited unless approved by the Attorney General.
No officer or employee of the Department of Justice shall produce or disclose, in response to a subpoena,
order, or other demand (hereinafter in this part referred to as a demand') of a court or other authority any
information or material contained in the files of the Department of Justice or any other information or material
acquired as a part of the performance of his official duties or because of his official status, without the prior
approval of the Attorney General. For the purposes of this part, the term officer or employee of the Department
of Justice' includes all officers and employees of the United States appointed by, or subject to the supervision,
jurisdiction, or control of, the Attorney General of the United States, including United States Attorneys, United
States Marshals, and members of the staffs of those officials.
16.2 Procedure in the event of a demand for production or disclosure.
(a)(1) Except as provided in paragraph (b) of this section, whenever a demand is made upon an officer or
employee of the Department
We direct our attention to the order of the trial court which granted plaintiffs' motions to
compel Elson to testify, struck the incomplete answer of the defendants, and required
production of certain material sought by plaintiffs' subpoena duces tecum for in camera
inspection.
____________________
of Justice for the production or disclosure of information or material contained in the files of the Department of
Justice or for the production or disclosure of any other information or material acquired as a part of the
performance of his official duties or because of his official status he shall immediately notify the Attorney
General of such demand. If possible, the Attorney General shall be notified before the officer or employee
concerned replies to, or appears before, the court or other authority.
(2) The appropriate United States Attorney, or such other attorney as may be designated for the purpose,
shall appear with the officer or employee upon whom the demand shall have been made, and inform the court or
other authority (i) that 16.1 of this part prohibits the officer or employee from producing or disclosing the
information or material demanded without the prior approval of the Attorney General. And (ii) that the demand
has been, or is being, as the case may be, referred for the prompt consideration of the Attorney General. the
United States Attorney, or the attorney designated, shall provide the court or other authority to stay the demand
pending the receipt of instructions or directions from the Attorney General concerning the demand.
(b) Whenever a demand of the type described in paragraph (a) of this section is made upon an officer or
employee of the Department of Justice by a court or other authority while he is appearing before, or is otherwise
in the presence of the court or other authority, the officer or employee, or the United States Attorney or other
appropriate Government attorney, acting on behalf of the officer or employee, shall (i) immediately inform the
court or other authority that 16.1 prohibits the officer or employee from producing or disclosing the
information or material demanded without the prior approval of the Attorney General, and (2) offer to refer the
demand for the prompt consideration of the Attorney General. Unless the court or other authority withdraws the
demand, the United States Attorney, or other appropriate Government attorney, shall provide the court or other
authority with a copy of the regulations prescribed by this part and shall respectfully request the court or other
authority to stay the demand pending the receipt of instructions or directions from the Attorney General
concerning the demand.
16.3. Procedure in the event of adverse ruling.
If the court or other authority declines to stay the effect of the demand in response to a request made in
accordance with either 16.2(a)(2) or (b) pending the receipt of instructions or directions from the Attorney
General, or if the court or other authority rules adversely on any claim of privilege that may be asserted in
conformity with the provisions of this part or with instructions or directions issued by the Attorney General
pursuant thereto, the officer or employee upon whom the demand shall have been made shall, pursuant to the
regulations prescribed in this part, respectfully decline to produce or disclose the material or information
demanded (United States ex rel. Touhy v. Ragen, 340 U.S. 462).
tecum for in camera inspection. The F.B.I. agents petitioned this court for a writ of
prohibition to prevent the court below from compelling them to produce official documents,
to give depositions, and to file pleadings concerning them in violation of the instructions of
the U.S. Attorney General and regulations of the U.S. Justice Department and the Attorney
General's exercise of executive privilege.
[Headnote 1]
The common law of evidence has long recognized certain rules of privilege which
authorize the withholding of pertinent facts in a judicial proceeding. United States v.
Reynolds, 345 U.S. 1 (1953). One of these is said to apply to government secrets, but that one
is subject to the requirement that the government has the duty in seeing that justice is done.
Roviaro v. United States, 353 U.S. 53 (1957); Carrow, Governmental Nondisclosure in
Judicial Proceedings, 107 U.Pa.L.Rev. 166 (1958).
Of the numerous authorities relating to the question of discovery from governmental
agents and agencies none directly involve the seeking of information from the agents who are
parties in the litigation and whose alleged illegal activities are the subject of the lawsuit. That
is our situation here. Elson, the F.B.I. agent, had refused to testify at his deposition on the
grounds that the Attorney General forbade him to answer the questions and ordered that he
refuse to produce the documents and to file an answer pursuant to departmental order and the
claim of executive privilege. He and the other agents are defendants in the lawsuit. By
stipulation, whatever in the proceedings relate to Elson applies to the other agents since he
was the agent in charge.
At a first deposition, the Attorney General of the United States, as head of the Department
of Justice, by affidavit instructed Elson not to answer certain selected questions basing his
instruction on executive privilege and Departmental Order No. 324-64. At a later deposition,
after the Attorney General had read the first, Elson was permitted to answer some of the
questions, but not all.
Elson's attorneys, who are attorneys in the Department of Justice, seek to prevent Elson
from being compelled to testify after he recited the Attorney General's exercise of executive
privilege and the departmental order. At the trial court hearing they submitted to the trial
judge the logs and summaries of the conversations illegally monitored. The respondent
plaintiffs acknowledged they had no right to examine the intra-departmental files and
memoranda of the Department of Justice. In fact, they specifically excluded these from their
subpoena duces tecum.
fact, they specifically excluded these from their subpoena duces tecum.
Because some information was known about the electronic surveillance of the F.B.I.
agents, Levinson wanted depositions concerning all of it as it pertained to these cases. He
hoped to learn from Elson, who was the agent in charge, the identities, methods, locations,
and other relevant information toward that end, and this is what Elson refused to tell.
Elson acknowledges the right of judicial examination of the executive privilege, but
contends that he need not testify in spite of a court order to the contrary if his executive head
commands him not to do so. See Ex parte Sackett, 74 F.2d 922 (9th Cir. 1935); North
Carolina v. Carr, 264 F.Supp. 75 (W.D.N.C. 1967). (In Carr, proceedings were started in a
state court and removed by motion to the federal court. Title 28 U.S.C., 1442-1449, so
provides when a federal agent is held in contempt by a state court.)
[Headnote 2]
1. Judicial review is appropriate when the claim of executive privilege or the right under
departmental orders are exercised. United States v. Reynolds, supra; Campbell v. Eastland,
307 F.2d 478 (5th Cir. 1962); Appeal of U.S. Securities & Exchange Com'n, 226 F.2d 501
(6th Cir. 1955); N.L.R.B. v. Capitol Fish Co., 294 F.2d 868 (5th Cir. 1961).
We cannot perceive the reason for the Attorney General's order silencing the agent. The
massive eavesdropping program became a matter of public knowledge after a former agent of
the F.B.I. admitted that he gave an interview to the New York Times detailing the
department's eavesdropping program, news articles to the same effect appeared in Life
Magazine and in leading newspapers with wide circulation, and in Kolod v. United States,
371 F.2d 983 (10th Cir. 1967), and United States v. Baker, 262 F.Supp. 657 (D.D.C. 1966),
F.B.I. agents testified extensively of their eavesdropping tactics which included the subject
matter that led to this lawsuit. The Solicitor General of the United States also advised the
U.S. Supreme Court of the F.B.I. use of listening devices. Black v. United States, 385 U.S. 26
(1966).
Nevertheless, petitioners urge that Boske v. Comingore, 177 U.S. 459 (1900), and Touhy
v. Ragen, 340 U.S. (1951), prevent trial courts from compelling government agents to reveal
by testimony or production of documents agency information when forbidden to do so by
executive order. We are not in accord with their broad construction of those two cases.
in accord with their broad construction of those two cases. Boske is confined to the
declaration that departmental regulations which centralize the authority of department records
upon the department head and not his subordinates are valid. Touhy extends the claim of
executive privilege and department centralized responsibility to come within the discretion of
the department head, such as the Attorney General who is the department head of the
Department of Justice. The case refers to production of papers--makes no reference to oral
testimony. Particularly as expressed by Justice Frankfurter in his concurring opinion, Touhy
also stands as a forerunner for the proposition that the exercise of the executive's discretion
can be judicially reviewed. The right of that judicial review is conclusively established in
United States v. Reynolds, supra. (See also Roberts v. United States, 389 U.S. 18 (Case No.
330, decided October 16, 1967, where the Solicitor General acknowledged that F.B.I. logs
pertaining to monitored conversations are available for judicial review.)
[Headnote 3]
Without lawful sanction (NRS 200.660, supra), eavesdropping is an intrusion into a
constitutionally protected area, the right of privacy, a violation of the 4th and 14th
amendments. Berger v. New York, 388 U.S. 41 (1967). By its very nature its practice places
an invisible policeman in every bedroom. Douglas, J., concurring opinion, Berger v. New
York, supra, page 64. If, though legally forbidden, eavesdropping can be concealed under the
guise of official protection via executive privilege and departmental order (absent any
concern of national security), its use would continue. No one would be secure in the privacy
of his home or in his pursuit of daily life.
2. We find in Reynolds the key to the roomful of obscurity in this difficult area where an
agent of the government is held to answer to the court on the one hand and by so doing must
defy the orders of his superior on the other. The U.S. Supreme Court said in Reynolds,
Judicial control over the evidence in a case cannot be abdicated to the caprice of executive
officers. Although the privilege was upheld in Reynolds because military secrets were
directly involved, were they not present (that the information did not concern the national
security), the ruling of the court would nevertheless apply. The withholding of evidence at the
caprice of executive officers would not be permitted.
The Justice Department contends that the information would reveal F.B.I. tactical secrets
and that unverified and hearsay conversations that were monitored would harm innocent
persons.
reveal F.B.I. tactical secrets and that unverified and hearsay conversations that were
monitored would harm innocent persons. Laudable as the purpose may be and justifiably
respected as the F.B.I. agents are, the principle applies to one and all in government alike.
Where the information sought exists only in the mind and memory of the agents, collateral
deposition proceedings against the Attorney General may be totally ineffectual.
The Attorney General is not personally entered into the action but his agents who acted at
his directions are.
[Headnotes 4, 5]
Government cannot break the law to enforce the law, People v. Cahan, 282 P.2d 905 (Cal.
1955), and it follows that government should not be allowed to use the claims of executive
privilege and departmental regulations as a shield of immunity for the unlawful conduct of its
representatives. (See Rosee v. Bd. of Trade of Chicago, 36 F.R.D. 684 (N.D. Ill. 1965); also
Giancana v. Johnson, 335 F.2d 372 (7th Cir. 1964).) The trial court reviewed all of the
considerations and decided that government security was not involved, that the information
solicited was not privileged, and that the agents should testify, presumably to all relevant
matters. We agree.
The application for writ is denied.
Collins, J., Batjer, J., and Babcock, D. J., concurring:
We concur in the result announced, but would limit the holding.
We must keep clearly in mind the issue before us in this application for prohibition.
Petitioners' sole contention is the lack of jurisdiction of the trial court to require Elson to
testify upon deposition, to answer fully plaintiffs' complaint, and to require production of
certain material sought by plaintiffs for an in camera inspection by the court. We are not
asked to review the discretion of the lower court as to the scope or extent of its orders.
[Headnote 6]
With that limitation in mind, certain conclusions emerge with great clarity. There is no
doubt the Nevada trial court has personal jurisdiction over Elson, Parker, Lee, and Moreland.
They are parties to the action. Even though the action seeks damages against them personally
for what they apparently did as members of the F.B.I., they neither have sought to remove the
entire action to the Federal court nor end Nevada's jurisdiction over them as individuals
for what they did as Federal agents.
entire action to the Federal court nor end Nevada's jurisdiction over them as individuals for
what they did as Federal agents. Because of their hybrid role the Attorney General of the
United States seeks to exercise control of their personal actions in the lawsuit. Yet he declines
or has failed to appear in the action himself and litigate in a meaningful manner the nature
and extent of the executive privilege he insists the agents claim. He stands outside the
periphery of our Nevada courts' jurisdiction and pulls the strings which he hopes will control
the effective exercise of that jurisdiction. The trial court, in which the executive privilege is
claimed, has the right to pass upon the claim of the privilege and the extent to which it will be
allowed in protecting the secrets, security and interest of the United States. United States v.
Reynolds, 345 U.S. 1 (1953); N.L.R.B. v. Capitol Fish Co., 294 F.2d 868 (5 Cir. 1961).
Anything less would absolutely and surely frustrate the full exercise of a court's power (the
same rule should apply to both state and federal courts). A clearer example of frustration of a
court's process cannot be suggested where, as here, it has the necessary parties before it.
In this case we need not and, in fact should not, be concerned with the question of why the
Attorney General silenced the agents, or whether or not eavesdropping by F.B.I. agents has
become a matter of public knowledge, or whether there was or was not illegal electronic
surveillance, nor even whether or not, without lawful sanction, eavesdropping is an intrusion
into a constitutionally protected area of the right of privacy, and a violation of constitutional
guarantees.
[Headnote 7]
The writer of the principal opinion discusses matters well outside the question of whether
or not the trial judge had the right to look behind the claim of executive privilege. An
examination of the extent of the trial court's action is beyond the scope of this review. We are
not here concerned with the depth of the trial court's inquiry, but only with whether or not the
decision of the trial judge was within the realm of his jurisdiction. His decision was clearly
within his jurisdiction and the application for a writ of prohibition is properly denied.
Mowbray, J., being disqualified, the Governor designated Honorable Howard W. Babcock,
of the Eighth Judicial District Court, to sit in his place.
____________
83 Nev. 524, 524 (1967) Lagrange Construction v. Del Webb Corp.
LAGRANGE CONSTRUCTION, INC., a Nevada Corporation, Appellant, v. DEL E. WEBB
CORPORATION, an Arizona Corporation, and PARK CATTLE CO., a Nevada Corporation,
Respondents.
No. 5300
December 22, 1967 435 P.2d 515
Appeal from a judgment of the First Judicial District Court, Douglas County; Taylor H.
Wines, Judge.
Action to recover for labor and materials furnished and for rental of certain equipment,
wherein a counterclaim was filed for breach of contract. The lower court entered judgment for
defendant on its cross complaint, and plaintiff appealed. The Supreme Court, Mowbray, J.,
held that purported judgment of district court could not be considered valid where decision of
district judge was not in fact filed with clerk of court before date of judge's retirement.
Carl F. Martillaro and Daniel R. Walsh, of Carson City, for Appellant.
Sidney W. Robinson, of Reno, for Respondents.
1. Judges.
Statute providing that district judges shall possess equal coextensive and concurrent jurisdiction and
power, was not applicable in determining validity of a district judge's decision not filed with a clerk until
after retirement of the judge, but validity of such decision was governed by statute providing that decisions
by a district judge about to retire from office shall be filed with clerk of court before retirement. NRS
3.180, subd. 2, 3.220.
2. Judges.
A trial judge's decision could not be considered filed when he deposited it in the mail addressed to clerk
of the court, for purposes of determining compliance with statute providing that decision of a judge about
to retire, if in writing, shall be filed with the clerk of the court before retirement. NRS 3.130, subd. 2.
3. Judges.
Filing of a district judge's written decision with clerk of court is jurisdictional, obligatory, and an integral
part of the judicial act, and in order for such decision to be validly entered, such decision, in accordance
with statutory provision, if in writing, must be filed with the clerk of court before date of judge's retirement,
although entry of the decision by the clerk is ministerial. NRS 3.180, subd. 2.
4. Judges.
Purported judgment of district court could not be considered valid where decision of district judge was
not in fact filed with clerk of court before date of judge's retirement. NRS 3.180, subd. 2.
5. Trial.
Upon trial of an action trial court was required to make specific findings on major issues contested by the
parties. NRCP 52(a).
OPINION
Appellant brought an action against the respondents to recover $213,561.88 for labor and
materials furnished respondents and for the rental of certain equipment in the construction of
the Sahara Tahoe Hotel and Casino at Stateline. Respondents by way of counterclaim asserted
breach of contract by appellant, causing damages to respondents in the sum of $119,517.
The case was tried before the court sitting without a jury on October 10, 11, 12 and 13 and
on December 1, 2 and 5, 1966.
On January 6, 1967, the written decision of the trial judge was filed with the Clerk of
Douglas County. The decision was dated December 29, 1966. The term of the trial judge
expired on January 1, 1967.
The decision follows:
DECISION
Having decided that as a matter of fact the delay and extraordinary expense incurred by
the Plaintiff were due to the mismanagement of the Plaintiff's agents,
IT IS ORDERED that the Plaintiff take nothing by reason of its Complaint and that
judgment be entered for the Defendant.
IT IS FURTHER ORDERED that the Defendant have Judgment against the Plaintiff on
its Cross-complaint for the sum of $69,520.00. The Defendant shall have its costs incurred in
this action.
The Court also finds, as a matter of law, there was a binding contract between these
parties.
DATED and SIGNED at Elko, Nevada this 29th day of December, 1966.
/s/ Taylor H.
Wines

____________________________

DISTRICT JUDGE PRESIDING Appellant asserts the following
specifications of error:
Appellant asserts the following specifications of error:
1. The district court erred by not filing his decision and judgment prior to leaving office.
2. The district court erred by not making adequate findings.
3. The district court erred by not awarding the damages in quantum meruit.
4. The district court erred in awarding judgment on defendants' counterclaim.
For the reasons hereinafter expressed we find the first and second assignments of error
meritorious and therefore the case must be reversed and remanded for a new trial.
NRS 3.180(2) provides in part as follows:
District judge may perform certain acts in civil actions after term expires or cessation of
exercise of duties.
* * *.
2. All judges about to retire from office by reason of resignation or the expiration of their
term shall, before such retirement, decide all cases and matters submitted to them and
remaining undetermined. The decision or decisions shall be entered in the minutes of the
court and, if in writing, shall be filed with the clerk of the court before retirement. * * *.
In the instant case the trial judge did not enter a minute order but chose to write a decision.
The decision was dated December 29, 1966. It was not filed with the clerk until January 6,
1967.
Respondents urge that the provision of NRS 3.180(2) providing that the court's written
decision shall be filed with the clerk before the judge's retirement is not part of the judicial
function but a ministerial act on the part of the clerk of the court and that a tardy filing will
not vitiate or render void a decision signed by the trial judge before leaving office.
[Headnotes 1, 2]
Respondents also urge that NRS 3.220
1
applies in the instant case and that the trial
judge's decision became final when he deposited it in the mail addressed to the clerk of the
court.
____________________

1
3.220 Equal coextensive and concurrent jurisdiction of district judges. The district judges shall possess
equal coextensive 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
We do not agree with respondents' contention that NRS 3.220 is applicable in the instant
case. It is a general statute covering the equal coextensive and concurrent jurisdiction of
district judges and does not in any way supersede the provisions of NRS 3.180(2).
In Klundt v. Hemenway, 244 N.W. 377, 378 (S.D. 1932), in a similar case where the trial
judge signed his written decision on January 5 but did not file it until January 7, his term of
office having expired on January 6, the court said:
Under this statute [requiring the court's decision be in writing and filed with the clerk] we
are compelled to the conclusion that the trial of a court case * * * is not completed until the
judge gives his decision in writing and files the same with the clerk. We think the deposit of
the decision * * * with the clerk for filing is an integral and necessary part of the judicial
function of decision, notwithstanding the fact that it may be, and frequently is, delegated to
counsel. Such decision is of no value or effect for any purpose until it is filed. On
Wednesday, January 7, 1931, Judge Gardner had no power or authority to perform any
judicial function. He had no power or authority to file this decision himself as a judge on that
date, nor to authorize any one else to do so for him. It is so held in other states under cognate
statutes fundamentally upon the ground that the unfiled decision (even though signed) is
subject to revocation by the judge at any time and does not become a final decision until
deposited with the clerk for filing. * * *. Broder v. Conklin (1893) 98 Cal. 360, 33 P. 211. To
the same effect, see, Crane v. First Nat. Bk. (1913) 26 N.D. 268, 144 N.W. 96. See also, Cain
v. Libby (1884) 32 Minn. 491, 21 N.W. 739; Brave Bull v. Ordway (1928) 57 N.D. 344, 221
N.W. 780; Mace v. O'Reilley (1886) 70 Cal. 231, 11 P. 721; Estudillo v. Sec., etc., Co.
(1910) 158 Cal. 66, 109 P. 884; Scholle v. Finnell (1916) 173 Cal. 372, 159 P. 1179.
____________________
acted on the trial and may be forwarded to and filed by the clerk, who shall thereupon enter a 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.
[Headnote 3]
The clear weight of authority is to the effect that the filing of the written decision with the
clerk is jurisdictional, obligatory and an integral part of the judicial act and that it shall be
filed prior to retirement from office, while its entry by the clerk is ministerial. See Crane v.
First Nat'l Bank of McHenry, 144 N.W. 96 (N.D. 1913); Gossman v. Gossman, 126 P.2d 178
(Cal. 1942).
Indeed, NRCP 58(c)
2
provides that the filing with the clerk of the judgment signed by the
judge constitutes the entry of such judgment, and the judgment is ineffective for any purpose
until the entry thereof.
To hold, in light of NRS 3.180(2) and NRCP 58(c), supra, that the filing of the judge's
written decision in the instant case was timely made and not jurisdictional would not only
abnegate the above statute and rule of civil procedure but disavow the better reasoned and
weight of authority applicable in the instant case.
We conclude, therefore, that the provision of NRS 3.180(2), requiring written decisions to
be filed with the clerk of the court before the judge's term expires, is essential and
jurisdictional, for until this is done the decision rests within the breast of the court and can be
changed.
[Headnote 4]
It follows that the trial of this case was incomplete upon the expiration of the judge's term,
and therefore that the first assignment of error is meritorious.
[Headnote 5]
Although our ruling on the first assignment of error is controlling and the case must be
reversed and remanded for a new trial, it is clear that the second assignment of error is well
taken in that the district court erred by not making adequate findings.
NRCP 52(a)
3
requires the trial court to find the facts specially and state its conclusions
of law thereon and direct the entry of the appropriate judgment.
____________________

2
NRCP 58(c). When Judgment Entered. The filing with the clerk of a judgment, signed by the judge, or by
the clerk, as the case may be, constitutes the entry of such judgment, and no judgment shall be effective for any
purpose until the entry of the same, as hereinbefore provided. The entry of the judgment shall not be delayed for
the taxing of costs.

3
NRCP 52(a). Effect. In all actions tried upon the facts without a jury * * * the court shall find the facts
specially and state separately its conclusion of law thereon and direct the entry of the appropriate judgment; * *
*. Requests for findings are not necessary for purposes of review. * * *. 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. * * *.
specially and state its conclusions of law thereon and direct the entry of the appropriate
judgment. See Robison v. Bate, 78 Nev. 501, 376 P.2d 763; Garibaldi Bros. v. Waldren, 74
Nev. 42, 321 P.2d 248; Timney v. Timney, 76 Nev. 230, 351 P.2d 611; Poe v. La
Metropolitana Co., 76 Nev. 306, 353 P.2d 454; United Tungsten Corp. v. Corp. Service, Inc.,
76 Nev. 329, 353 P.2d 452; Heidtman v. Nevada Ind. Comm'n, 78 Nev. 25, 368 P.2d 763;
Kweskin v. Finkelstein, 223 F.2d 677 (7th Cir., 1955); Maher v. Hendrickson, 188 F.2d 700
(7th Cir., 1951).
In Kelley v. Everglades Dist., 319 U.S. 415 (1942), the United States Supreme Court in
construing FRCP 52(a) stated:
It may be that adequate evidence as to these matters is in the present record. On that we
do not pass, for it is not the function of this court to search the record and analyze the
evidence in order to supply findings which the court failed to make. Nor do we intimate that
findings must be made on all of the enumerated matters or need be made on no others; the
nature of the evidentiary findings sufficient and appropriate to support the court's decision as
to fairness or unfairness is for the trial court to determine in the first instance in light of the
particular case. We hold only that there must be findings, stated either in the court's opinion
or separately, which are sufficient to indicate the factual basis for the ultimate conclusion.
(Emphasis added.) Id., pp. 421-422.
The Rule provides that it is sufficient if the findings of fact and conclusions of law appear
in the decision. An examination of the decision filed on January 6 makes it abundantly clear
that the requirements of the rule have not been met. The parties are entitled to more specific
findings and conclusions of law than appear therein, particularly where such substantial
interests are involved and determined. One of the major issues before the court was whether
there was a contract between the parties; and, if so, what were its terms. The court made no
findings of fact on this issue but found, as a matter of law, there was a binding contract
between the parties. The factual basis for this conclusion is not revealed. Who made the
offer? Was it accepted? What were the terms of the contract? Which terms, if any, were
breached, and by whom? These issues were seriously contested by the parties.
The decision filed on January 6, wherein the substantial rights of the parties were affected
and indeed resolved, falls far short of meeting the requisites of NRCP 52(a). To hold
otherwise would emasculate the necessity for the rule.
Parenthetically, we appreciate the heavy burden attendant upon the learned trial judge in
concluding his judicial business, particularly under the circumstances as disclosed by the
record on this appeal, but we are not permitted to abnegate our statute and the clear
weight of authority applicable in the instant case.
upon the learned trial judge in concluding his judicial business, particularly under the
circumstances as disclosed by the record on this appeal, but we are not permitted to abnegate
our statute and the clear weight of authority applicable in the instant case.
For the reasons stated herein, the third and fourth assignments of error need not be
discussed.
Collins, J., and Batjer, J., concur.
Thompson, C. J., and Zenoff, J., dissenting:
1. The majority opinion rests upon a false premisethat the failure to timely file the
judgment somehow affected the substantial rights of the parties. Indeed, not one word is
written to suggest that the omission caused prejudice or infected the fairness of the trial. In
the context of this case it cannot seriously be urged that the late filing bears jurisdictional
significance. This is not an Osman v. Cobb, 77 Nev. 133, 360 P.2d 258 (1961), situation
where the judge attempted to decide a case when he was no longer judge. Here, the case was
tried, submitted, studied, and decision prepared and signed by the judge during his term of
office. Filing of the judgment did not occur until a few days after his term expired. The delay
in filing may have been due to the fact that the judge lived and worked outside of the judicial
district in which the case was tried. He was forced to send his judgment from Elko to Minden
for filing during the busy holiday season. In any event, he had fully completed his judicial
work before the end of his term. All that remained was the ministerial act of filing the
judgment. Babcock v. Wolf, 28 N.W. 490 (Iowa 1886).
The rule of harmless error commands that we are not to pay attention to this kind of
non-jurisdictional omission unless the substantial rights of the parties are affected. NRCP 61.
1
We are not to exalt form over substance. This case is particularly suited to the rule since the
so-called error is not traceable to conduct by the court or counsel, but is, instead, a
fortuitous occurrence.
2. Formal findings of fact were not made in this case.
____________________

1
NRCP 61 reads: 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.
Here, as in Heidtman v. Nevada Ind. Comm'n, 78 Nev. 25, 368 P.2d 763 (1962), and Poe v.
La Metropolitana Co., 76 Nev. 306, 353 P.2d 454 (1960), the court prepared a short
memorandum of decision expressing its views. Rule 52(a) allows this to be done. Although
the decision is not as complete as we would like to have it, we are not thereby given license to
condemn it and declare prejudice, without first reviewing the entire record to ascertain
whether the judgment finds support in the evidence. The record in this case may be read to
support the judgment. Therefore, the failure to write a detailed decision must be deemed
harmless. Indeed, the majority opinion does not suggest how, or in what manner the short
decision affected the result of this case or the substantial rights of the parties. To order the
parties to start over again for omissions of the kind presented in this case harms the judicial
process. We would affirm the judgment.
____________
83 Nev. 531, 531 (1967) Hatten v. State
THEODORE MANUEL HATTEN and DONALD COOK, Appellants,
No. 5340
December 22, 1967 435 P.2d 495
Appeal from the Seventh Judicial District Court, White Pine County; Roscoe H. Wilkes,
Judge.
Defendants were convicted on verdict in the trial court of robbery and they appealed. The
Supreme Court, Mowbray, J., held, inter alia, that defendants who requested and were granted
permission to act as their own counsel and who during trial had access to attorney who had
been directed by court to assist defendants if so permitted by them were not denied
representation.
Affirmed.
George G. Holden, of Reno, for Appellants.
Harvey Dickerson, Attorney General, and Merlyn H. Hoyt, District Attorney, White Pine
1. Criminal Law.
Defendants who requested and were granted permission to act as their own counsel and who during trial
had access to attorney who had been directed by court to assist defendants if so permitted by them were not
denied representation. Const. art. 1, 8.
2. Criminal Law.
Defendants who requested permission to represent themselves had clear right to represent themselves,
unless some unusual circumstances appeared, e.g., in competence or coerced waiver. Const. art. 1, 8;
NRS 169.160.
3. Criminal Law.
Filing plea of not guilty did not place upon state burden of establishing mental capacity to commit crime
charged; defense of insanity is affirmative one, resting with defense.
4. Robbery.
Evidence, including evidence of threats and beatings, sustained convictions for robbery.
5. Witnesses.
Match book upon which barmaid had expressed in writing her fear of defendants, which corroborated her
testimony that she was fearful of defendants, was admissible in robbery prosecution.
6. Criminal Law.
Appearance of newspaper article after defendants filed motion for new trial wherein mention was made of
defendants' request to discharge their attorney and wherein it was reported that sheriff had said that he had
not seen any signs of withdrawal by one defendant from narcotics or alcoholism did not entitle defendants
to new trial. NRS 175.535.
OPINION
On October 13, 1966, the appellants were drinking in the Silver Dollar Bar in Ely.
As the evening wore on, they decided to rob the barmaid, Mrs. Sophie Zamora.
In the course of the robbery the appellants seized approximately $75 and assaulted Mrs.
Zamora and an older patron, Mr. Tony Saldena, using their fists, a sharp knife-like
instrument and sacks filled with sand. After the robbery the appellants fled the state and were
apprehended on October 18 in South Dakota. Both victims, Mrs. Zamora and Mr. Saldena,
were immediately hospitalized as the result of their beatings.
The appellants were extradited to the State of Nevada to face the charge of robbery. Both
were convicted by a jury and sentenced by the trial judge to serve not less than 5 years nor
more than 15 years in the State Penitentiary. They now appeal and assert the following
specifications of error:
1. That they were denied representation during their trial.
2. That their plea of not guilty placed upon the state the burden of showing they had the
mental capacity to commit the crime charged.
3. That there was insufficient evidence presented during their trial to support the verdict
of the jury.
4. That they were denied a fair trial.
5. That it was error to deny their motion for a new trial.
For the reasons hereinafter stated, we find that the specifications of error are entirely
without merit and that the appellants' convictions must be affirmed.
[Headnote 1]
1. On December 1, 1966, the appellants petitioned the district court to appoint counsel to
represent them during their preliminary hearing. After a hearing before the district judge,
Harry M. Watson, Esq., was appointed by the district court and represented the defendants
throughout their preliminary hearing. At the conclusion of the hearing, they were bound over
to the district court to stand trial on the charge of robbery. The day following their
preliminary hearing the appellants requested the district judge to relieve Mr. Watson and
appoint new counsel, as they asserted they were not completely satisfied with their present
court-appointed counsel. The district judge, upon appellants' request, conducted another
hearing and in accordance with appellants' request relieved Mr. Watson and appointed
Gregory J. Chachas, Esq., to represent the defendants. The day prior to trial appellants once
again requested the district judge to relieve Mr. Chachas, as they wished to represent
themselves during the trial. Again the district judge conducted a hearing at appellants' request
and at the conclusion of the hearing granted appellants' request that they be permitted to act as
their own counsel as provided in the Nevada State Constitution.
1
However, the district
judge directed Mr.
____________________

1
Article 1, Section 8. Rights of accused in criminal prosecutions; jeopardy; due process of law: eminent
domain. No person shall be tried for a capital or other infamous crime (except in cases of impeachment, and in
cases of the militia when in actual service and the land and naval forces in time of war, or which this state may
keep, with the consent of congress, in time of peace, and in cases of petit larceny, under the regulation of the
legislature) except on presentment or indictment of the grand jury, or upon information duly filed by a district
attorney, or attorney-general of the state, and in any trial, in any court whatever, the party accused shall be
allowed to appear and defend in person, and with counsel, as in civil actions. No person shall be subject to be
twice put in jeopardy for the same offense; nor shall he be compelled, in any criminal case, to be a witness
against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private
property be taken for public use without just compensation having been first made, or secured, except in cases of
war, riot, fire, or great public peril, in which case compensation shall be afterward made.
NRS 169.160. Rights of defendant. In a criminal action the defendant is entitled:
* * *.
2. To be allowed counsel, as in civil actions, or he may appear and defend in person or with counsel.
However, the district judge directed Mr. Chachas to remain throughout the trial and to
assist the appellants if so permitted by them, which Mr. Chachas did. His representation
continued through the hearings on the post-conviction motions.
[Headnote 2]
We commend the action of the district judge, for while the appellants had a clear right to
represent themselves, unless some unusual circumstances appeared, i.e., incompetence,
coerced waiver, the assistance of counsel was ever present throughout the trial and during the
post-conviction hearings. See Hollander v. State, 82 Nev. 345, 418 P.2d 802.
[Headnote 3]
2. Appellants next contend that their plea of not guilty placed upon the state the burden of
establishing their mental capacity to commit the crime charged. This contention is wholly
without merit, as the defense of insanity is an affirmative one, resting with the defense. See
State v. Lewis, 20 Nev. 333, 22 P. 241 (1889); Kuk v. State, 80 Nev. 291, 392 P.2d 630
(1964).
[Headnote 4]
3. Appellants assert that there was insufficient evidence adduced during the trial to
establish their guilt. They urge primarily that the evidence fails to disclose that the taking of
the money was against the victim's will and by means of force or violence or fear of injury to
the victim or of anyone in the victim's company during the robbery.
This contention, too, is without merit. The record reveals that the appellants not only took
the money by threats of injury to the victim but that the appellants proceeded to beat the
victim and Mr. Saldena, who was present, to the extent that they were hospitalized.
Additional comment is unnecessary, for this element of the charge, as well as the others, was
well established by the evidence presented during the trial.
[Headnote 5]
4. Appellants argue that they were denied a fair trial and that a match book upon which
Mrs. Zamora had expressed in writing her fear of the appellants was received in evidence
over the objection of the appellants. There was no error in receiving the match book, which
corroborated Mrs. Zamora's testimony that she was fearful of the appellants, as later events
proved she had every right to be so.
[Headnote 6]
5. Appellants urged that it was error to deny their motion for a new trial. The grounds for
a new trial are set forth in NRS 175.535.
2
The appellants urge as grounds for their motion
for a new trial that a certain news article appearing in the local press on February 28, entitled
ACCUSED MEN FILE MOTION FOR NEW TRIAL, prejudiced the jury. The article
covers appellants' request to discharge their attorney. In the article, the following appears:
In response to a question from District Attorney Merlyn Hoyt, Sheriff Robison said he
had not, to his knowledge, seen any signs of a withdrawal by Cook from narcotics or
alcoholism, and his only medication is for ulcers' prescribed by local doctors.
It is difficult to fathom how such an article could affect defendants' rights, and certainly
it is not one of the grounds for granting a new trial as set forth in NRS 175.535.
____________________

2
NRS 175.535 Grounds for new trial; modification of judgment without granting new trial; affidavits
supporting motion on ground of newly discovered evidence. The court in which a trial is had upon the issue of
fact, has power to grant a new trial where a verdict has been rendered against the defendant upon his application,
in the following cases only:
1. When the trial has been had in his absence, if the indictment be for a felony.
2. When the jury has received any evidence out of court other than that resulting from a view, as provided
in NRS 175.315.
3. When the jury has separated without leave of the court, after retiring to deliberate upon their verdict, or
have been guilty of any misconduct tending to prevent a fair and due consideration of the case.
4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the
part of all of the jurors.
5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of
law arising during the course of the trial.
6. When the verdict is contrary to law or evidence, but if the evidence shows the defendant to be not guilty
of the degree of the crime of which he was convicted, but guilty of a lesser crime included therein, the court may
modify the judgment accordingly without granting or ordering a new trial, and this power shall extend to any
court to which the cause may be appealed.
7. When new evidence shall have been discovered material to the defendant and which he could not, with
reasonable diligence, have discovered and procured at the trial. When a motion for a new trial is made upon the
grounds of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the
affidavits of the witnesses by whom such evidence is expected to be given, and, if time is required by the
defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as,
under all the circumstances of the case, may seem reasonable.
defendants' rights, and certainly it is not one of the grounds for granting a new trial as set
forth in NRS 175.535.
Appellants' counsel was appointed to prosecute this appeal. We direct the lower court to
give him the certificate specified in subsection 3 of NRS 7.260 to enable him to receive
Affirmed.
____________
83 Nev. 537, 537 (1967) Special Session
A SPECIAL SESSION
of the
SUPREME COURT
of the
STATE OF NEVADA
Monday, October 2, 1967
SPECIAL SESSION OF SUPREME COURT
Monday, October 2, 1967
A special session of the Supreme Court of the State of Nevada, commencing at 10 a.m.,
Monday, October 2, 1967.
Present: Chief Justice Thompson (presiding), Justices Collins, Zenoff, Batjer, and
Mowbray; Governor Paul Laxalt; Officers of the Court; Members of the State Bar of Nevada;
Relatives and Friends of Justices Batjer and Mowbray.
____________
Thompson, J.:
Good morning, Ladies and Gentlemen.
Today is a memorable, happy day for the Supreme Court of Nevada. Memorable because it
marks the enlargement of this Court from three justices to five and happy because of the
identity of the distinguished gentlemen who are about to become the new justices of this
Court.
We are especially honored this morning by the presence of His Excellency The governor
of Nevada. Governor Laxalt, will you please extend to Mr. Justice Batjer and to Mr. Justice
Mowbray the fond wishes of the people of Nevada.
Governor Paul Laxalt:
Chief Justice Thompson, Honorable Justices, friends of these justices all: We are
assembled together today as officials, as attorneys, as friends, in this very august chamber for
many reasons. Perhaps the real significance of this gathering today is for each of us, once
again, for a few moments to dwell upon the increasing importance of our judicial system in
preserving our cherished American way of life and the freedoms upon which it is based. I
have always believed, as do you, the efficient administration of justice is the bulwark of those
freedoms and, indeed, the keystone of the arch of the many liberties upon which our free
society rests. Let us then always be keenly mindful that the effective administration of our
judicial system in turn depends upon the judges, particularly those of you who sit at the apex
of the system. Those judges who must dispense justice and in doing so must make the
machinery of the judicial system operate not only smoothly, tirelessly, and continuously, but
of even more importance fairly, promptly, and justly.
tirelessly, and continuously, but of even more importance fairly, promptly, and justly. We
cannot possibly have justice fairly administered between man and man unless we have judges
whose integrity is beyond question, whose abilities are of the highest, whose dedication for
public good motivates them always, and whose every action instills in the public respect for
our courts and our system of laws and complete confidence that these laws are being
administered by our judges and our courts with complete impartiality and without fear or
favor. These thoughts, these concerns weighed heavily in my considerations for the criteria
that be applied to the two new appointments to this Court. That consideration, that
application lead rather easily to the conclusion and result which all of us observe today. A
result actually that was almost inevitable, not by legislative act, not by executive order, but
rather by the day-to-day, year-to-year dedication to their professions, their communities, and
their families by these tow men.
As Governor, may I thank each of you, Justices Batjer and Mowbray, for making this
task a pleasurable, satisfying one. I am certain that you will grace this Court in a manner
which will bring continued prestige and honor to this chamber where so many Nevadans have
served over a century with such distinction.
In a less serious vein, as one of your host of friends, and I am certain that I echo the
sentiments of all here today, we don't view your elevation today to be a severance in any
manner of our personal and social relationships. After all, I certainly would never have it on
my executive conscience that through any order or act of mine I removed Danny Boy and Red
Socks from the Nevada social scene. Justices Batjer and Mowbray, the people of Nevada
wish you all that is well this day, and we congratulate you and your families, and as John's
Irish kin would so beautifully say, May the wind be always at your back. Thank you.
[Governor Paul Laxalt concludes.]
Thompson, C. J.:
Thank you, Governor Laxalt.
Also present this morning is the distinguished President of the State Bar of Nevada
and one of Nevada's most esteemed attorneys, beloved by all in the legal profession, a man
who enjoys not only the respect of the Bar as exemplified by his presidency of the
Association, but the respect of the courts as well. Mr. John W.
presidency of the Association, but the respect of the courts as well. Mr. John W. Diehl.
Mr. John W. Diehl:
Thank you, Mr. Justice Thompson, Justices, honored guests and ladies and gentlemen:
As a representative of the State Bar of Nevada I am, indeed, proud and privileged to be here
today on this historic occasion, and it is, indeed, an historic occasion because it represents the
first time in one hundred and three years in the history of this state that there has been any
change in the structure of the Supreme Court of the State of Nevada.
As some of you possibly know, there has been a rather extensive study in the matter of
judicial reform, and recently I had the pleasure of reading an article in the Christian Science
Monitor covering this subject. But I was concerned with one paragraph that appeared in this
article in which it was said rather generally that courts are complex institutionstoo many
citizens see them as the private property of the professionalsspeaking of the judges, of the
attorneys, of the police officers, of the prosecutors, and, of course, others who work there.
This is entirely false. Our court system, as we all know, was created for the purpose of
administering justice and thus protecting the rights, the property, the liberties, and the life of
the individual. How this justice is administered on the other hand depends entirely upon those
men who are elected or selected, as the case may be, for this purpose. Such men must be
fearless, honest, high-minded, knowledgeable in the law, men of integrity and men who are
not swayed by public opinion and who have the courage of their convictions. As with the
other members of this Court, I feel very strongly that Justice Batjer and Justice Mowbray
meet these requirements. Being aware of this, we, as members of the State Bar of Nevada,
welcome you Justice Cameron Batjer and you Justice John Mowbray to our state's highest
court, The Supreme Court of the State of Nevada, and I wish to personally extend my
congratulations to both of you. Thank you.
[Mr. Diehl concludes.]
Thompson, C. J.:
Thank you, Mr. Diehl.
Until recently, the Bar Association of the First Judicial District was known as the
Disorganized Bar Association. It has since become organized and its president, Peter
Laxalt, has kindly consented to be present this morning to welcome particularly Mr.
has since become organized and its president, Peter Laxalt, has kindly consented to be present
this morning to welcome particularly Mr. Justice Batjer who has practiced for so many years
in the First Judicial District. All members of the bar and all courts think highly of Peter
Laxalt. Mr. Laxalt.
Mr. Peter D. Laxalt:
Chief Justice Thompson, Honorable Justices, distinguished guests and friends: The
members of the First Judicial District Bar Association take great and justifiable pride in the
appointment of Justice Batjer to the bench. He represents the first from the ranks of our newly
formed association to attain such a standing. But really, this is a very insignificant reason for
our pride because, as your colleagues, Justice Batjer, and as your friends, we are proud of
you.
We believe that you bring to this, the highest court in our state, a background which
assures us as attorneys and assures all the people of the State of Nevada a justice who is not
only learned in the law, but a man who is learned in the human problems of life. When we
reflect on your background, we know this to be true, and we know that you are an exceptional
man. When you take an individual like Cameron Batjer, who was born and raised in a
farming community, attended a small elementary school and high school, who goes on to the
University of Nevada with great success, compiles a very distinguished war record and is still
in the Reserve of the United States Navy, actively on duty; when you take a man who has
been a school teacher for years and a coach who has worked with the youth and then becomes
an attorney, and first a district attorney on the prosecution side of cases, and later a defense
attorney representing many, many indigents and giving them a degree of representation which
couldn't be paid for, literally and figuratively; when we reflect on you as a fine general
practitioner, a community leader, and a very unashamed leader in your churchwhen we
reflect upon all of this, we know how fortunate this state is to have your presence on the
highest of our courts.
You have earned and you command the respect of each one of us as an attorney for
your legal knowledge and your legal skills, but more importantly, you have earned and you
command the highest respect of each of us as a man, for your friendliness, your fairness, your
sense of humor, your loyalty, and your untiring and unselfish efforts over years and years for
your fellow man, for your clients, for your profession, and for your community.
for your fellow man, for your clients, for your profession, and for your community.
Mr. Batjer, on behalf of the members of our Association, I would like to present you a
gavel which is inscribed Justice Cameron M. Batjer, Supreme Court of the State of Nevada,
October 2, 1967, Congratulations from the First Judicial District Bar Association. Batch, and
this will be the last time I will ever get away with calling you that in open court, may this
symbolize to you our admiration and respect our sincere hopes for your happiness. Thank
you.
[Mr. Laxalt concludes.]
Thompson, C. J.:
Thank you, Mr. Laxalt.
One of the most distinguished practitioners from Southern Nevada, one of the leading
citizens of our state, representing the Clark County Bar Association, the Board of Governors,
and the attorneys from the Eighth Judicial Districtit is my pleasure to call upon Mr. George
Dickerson to make some remarks on behalf of that bar expressing their joy over the
appointment of Mr. Justice Mowbray.
Mr. George M. Dickerson:
May it please this Honorable Court, Governor Laxalt, distinguished guests, and, with
particularity, those near and ear to our new Justices who share with them at this time this
moment of glory.
It is a particularly delightful experience for one to speak at a ceremony of this nature
when a contemporary is so honored and, particularly, if he be one with whom you have
shared so very much. I can only reflect upon our Justice who shared with me the cruel and
unusual punishment of the same Bar Association examination. Who with me, shortly
thereafter, comprised the entire complement of then District Attorney Roger Foley's staff of
the District Attorney's Office in Clark County, Nevada, where a camaraderie and esprit de
corps developed that none of us has ever forgotten. And as I stand here and reflect upon the
fact that one now serves as Chief Judge of our United States District Court, one is now a
Justice of our Supreme Court, the subtle message comes through loud and clear to me, you
either have itor you don't, and I can only rationalize that two out of three, after all, isn't too
bad an average.
bad an average. We both saw our families expanded when our wives, at or about the same
time, bore our children, until I became somewhat concerned as to whether or not it may be a
potent ingredient in the water in the courthouse. So I stopped drinking it, he didn't, and this
may account for his having one more child that I do.
You cannot have shared these experiences and not have an insight into the character
of that individual. As a person, he is a devout man, a humanitarian of compassionate
understanding; as a lawyer, he was a voracious reader with an insatiable appetite for
knowledge; as a Judge, he evidenced an enlightened, incisive and well-disciplines mind that
grasps and applies controlling legal principle. He is a man who has a prodigious capacity for
work that was probably best demonstrated when a moratorium was necessary in civil
litigation to accommodate a backlog of criminal trials to the point where, today, a defendant
on plea of not guilty in our county, can go to trial before a jury within a period of seven days,
and civil litigation at issue can go to trial before a jury within a period of sixty days.
He is a visionary, a man who foresaw the possibility for the development of expertise
in the handling of the case of the indigent charged with crime and sought out and secured a
Ford Foundation grant that secured to us the inauguration of the public defender system that
has proven so successful in our county.
He now joins our new Justice, Cameron Batjer, who I don't know as well, but with
whom I shared the experience of being privileged to serve our respective counties at the same
time as District Attorney, and with whom I shared the experience on the Board of Governors
of the State Bar for the same period of time, and from both experiences I know of his incisive
and enlightened mind, and his ability, too, to grasp and apply the controlling legal principle.
This is the calibre of the men who today we honor. So to you, Governor Laxalt, for a
very grateful citizenry, may we commend you for setting aside partisan political
considerations to seek out from the Bench and from the Bar the very, very best talent that was
available to fill these noble positions.
And to you, Mr. Justice Batjer, and to you, Mr. Justice Mowbray, we are confident
that yours shall be a noble contribution to the development of our body of case law and we
hail your elevation to the pinnacle of our profession.
Thank you.
[Mr. Dickerson concludes.] Thompson, C. J.:
Thank you, Mr.
Thompson, C. J.:
Thank you, Mr. Dickerson.
It has sometimes been said that Supreme Court justices and district court judges do
not speak to one another, but really it is not true; we are very, very good friends and each of
our new justices particularly asked that a district court judge speak on his behalf. It is my
pleasure at this time to call upon the Honorable Frank Gregory, District Judge of this district,
to address the Court with reference to Mr. Justice Batjer.
Gregory, D. J.
Thank you, Justice Thompson.
Governor Laxalt, Chief Justice Thompson, Honorable Justices, distinguished guests,
and ladies and gentlemen: The growth of the Supreme Court of our state from three judges to
five is, of course, commensurate with the growth of the State of Nevada itself. As we gather
here for these ceremonies which commemorate that growth, it is fitting that we should
welcome as one of those added justices a man who is a native Nevadan, which is a rarity
among the history of the justices of this CourtI am not speaking of the present panel
certainly. Very few native-born citizens have ever filled to high office of this Bench.
Cameron Batjer is such a man. He was born in the fertile agriculture area of Smith Valley,
Lyon County; he is a Nevadan to the core. He grew to manhood in this state, he attended the
University of Nevada, and then, as all of us lawyers do, he attended law school in another
state, at the University of Utah. As our former Justice, Miles Pike, once said, if we were to be
lawyers we have to go to law school somewhere and that somewhere is always outside of this
state. No Howard Hughes has, as yet, come forward to grant a law school to the University of
Nevada. Justice Batjer served his country well for three and a half years in the Navy and for
some years in government service in Washington.
Early in 1952, he made a decision that affected both my life and his, for he came into
my law office in Carson City to help me with the practice of the law. For better or for worse,
we have been part of the career of each other ever since that time. We are friends, as close
friends as the divergencies of practicing lawyer and district judge will allow. We are
neighbors, living as we do on the same block, on the same street. We are both devoted to the
advocacy of the law as representing the rules of society and of humanity. For the past fourteen
years, it has been my pleasure to have him appear in my court as a practicing lawyer as, I
think, he has appeared before the court of every district judge in the state.
years, it has been my pleasure to have him appear in my court as a practicing lawyer as, I
think, he has appeared before the court of every district judge in the state. He has earned and
merited our respect as a devoted and careful advocate, tireless in preparation, precise in
presentation, courteous, and ethical to an unusual degree.
In the legal profession he has been honored by his fellows by being selected to serve
on the Board of Governors of the State Bar for the past three years, and his civic services
have recently culminated with his recognition last year as President of the Rotary Club of
Carson City. He is a man who is interested in community affairs and in the welfare of people.
He is known and respected throughout the state for his ability and sincerity, and so Justice
Batjer brings to this Court a man of much practical experience in the law, well-studied, yet
also possessing the humanitarian understanding which makes the law a practical working tool
for the management of the affairs of government and of the people. This court will gain from
having him as a member. I am sure that the other district judges of the state join with me in
welcoming him to this high Bench.
[Judge Gregory concludes.]
Thompson, C. J.:
Thank you, Judge Gregory.
It is now the Court's pleasure to recognize the Honorable Thomas O. Craven, District
Judge of the Second Judicial District. a member of the Board of Directors of the National
College of State Trial Judges and who, through the years, has done significant work with Mr.
Justice Mowbray in promoting judicial education in this state. Judge Craven.
Craven, D. J.:
Mr. Chief Justice Thompson, may it please the Court and Judge Mowbray: I say this
with a bit of nostalgiayou are not yet Justice Mowbrayyou won't leave our ranks until a
few minutes hence.
I am very pleased and honored to be invited to participate in your induction ceremony,
Judge Mowbray. The warm personal friendship we have enjoyed since 1961 makes this
occasion very important to me. The long and distinguished list of accomplishments by John
Mowbray, that leads to this ceremony today, perhaps begins with his educational
background.
ceremony today, perhaps begins with his educational background. He graduated from Illinois
University, the Civil Affairs School at Northwestern University, and the School of Military
Government at the University of Virginia. This background was climaxed by receiving his
law degree from the University of Notre Dame. From that time forward, his legal career has
been notable and distinguished by accomplishments. his honors and awards have been in
superabundance. I don't intend to dwell on his accomplishments and honorsI shall leave
that to others.
To me it is more important what his accomplishments and honors reveal about the
man, the judge, his fitness to take the oath of office today as a justice of the Supreme Court of
Nevada. Throughout his entire legal career he has shown a constant and unwavering devotion
and commitment to high moral values, and that commitment to moral values has been
skillfully expressed by superior abilities through his chosen profession as a lawyer and as a
judge. His record of achievements and the honors bestowed upon him are merely the proof of
that statement.
We are living in a time of tremendous social unrest and upheaval. It is revolutionary
in character. The moral, social, and institutional values that have made this country great are
being impinged upon and even destroyed. It is the loss of values that is the cause of the social
upheaval. People so affected are like ships without rudders and they are frightened. They need
the comforting assurance of something in which to believethey need values. Our courts and
our system of judicial administration can make a great contribution to this social problem by
giving to people assurances and a sense of security. In short, something in which they can
believe and upon which they can depend. Judge Mowbray has exemplified outstanding
qualities during his service as a district judge in Clark County and he brings those qualities to
this high court. Above all, he brings an innate sense of moral, social and institutional values. I
congratulate you, Judge Mowbray, on your elevation to the Supreme Court of Nevada and in
joining a distinguished group of men.
[Judge Craven concludes.]
Thompson, C. J.:
Thank you, Judge Craven.
The Court next would like to call upon a distinguished son of a distinguished father.
Clark J. Guild, Sr., is present in the courtroom as he always is whenever there is a
ceremony of this kind.
courtroom as he always is whenever there is a ceremony of this kind. He served this state for
thirty years as one of its great district judges and continues to serve in various capacities. His
son, Clark J. Guild, Jr., I believe will be equally distinguished. He is one of the state's finest
lawyers and a true community leader in every sense of the word. It is our pleasure to
recognize Clark J. Guild, Jr.
Mr. Clark J. Guild, Jr.:
If the Court please, distinguished friends, and John Mowbray, and Cameron Batjer
particularly: Those were five tough acts to follow.
I would like to say that by virtue of Governor Laxalt's message to the 1967 Legislature
and the enlightened action of the Legislature in following his request for legislation, history is
made today with the appointment of these two esteemed gentlemen to this Court. It is an
honor that I find of singular importance to be able to speak on their behalf and present to the
Court these two gentlemen for elevation.
Much has been said and probably will be said about their qualifications and their
contributions to the society of the communities from which they come. I am here because of
my sincere personal affection and respect for both of them. I am personally aware of their
constant devotion to the principles that they exhibit and will exhibit as the years go by in the
positions they will occupy.
I would first like to indicate a word of advice, and to do so I call your attention to that
which occurred many, many years ago When Sir Francis Bacon and Sir Edward Coke were
having their controversy. Coke said, and I advise you gentlemen, Honorable and reverend
judges and justices fear not to do right to all and to deliver your opinions justly according to
the law, and if you sincerely execute justice be assured that though hereby you may offend
great men and favorites yet you shall have the favorable kindness of the Almighty and be his
favorites and God will defend you with his shield.
It is through the judicial process that the rights of the individual which our system of
government emphasizes and guards are made effective. Courts exist for the purpose. It is the
courts that the individual goes to to seek and secure justice, not as a matter of privilege but as
a matter of right.
To you both I close with an admonition. In doing so I would paraphrase Samuel
Johnson in his prayer before the study of law: Almighty God, the giver of wisdom without
whose help resolutions are vain, without whose blessing study is ineffectual, enable John
Mowbray and Cameron Batjer, if it be Thy will, to attain knowledge as will qualify them to
direct the doubtful and instruct the ignorant, to prevent wrongs, and to terminate
contentions and grant that John Mowbray and Cameron Batjer may use that knowledge
which they shall attain to the glory of God."
whose help resolutions are vain, without whose blessing study is ineffectual, enable John
Mowbray and Cameron Batjer, if it be Thy will, to attain knowledge as will qualify them to
direct the doubtful and instruct the ignorant, to prevent wrongs, and to terminate contentions
and grant that John Mowbray and Cameron Batjer may use that knowledge which they shall
attain to the glory of God.
[Mr. Guild concludes.]
Thompson, C. J.:
Thank you, Mr. Guild. The members of the Court appreciate your advice and will
heed your admonition.
Next, it is our pleasure to recognize another distinguished Nevadan, a member of the
Foley familythe father a Federal Judge, his brother a Federal Judge, and other brothers
practicing lawyers of our bar. Tom Foley is a lawyer everyone loves and respects, and we are
so delighted that he is here this morning from Las Vegas to welcome the new justices. Mr.
Thomas Foley.
Mr. Thomas Foley:
Thank you. May it please the Court, Mrs. Batjer, Mrs. Mowbray: I am delighted that
you charming ladies and your families are here because seventeen years ago I had one of the
greatest honors to stand before this Bench and move the admission of Cameron Batjer to this
Bar.
Cameron and John, I feel highly honored that I have been permitted to be here today
in this great chamber. Both of you mean so much to us. Your character, your personality, your
integrity, came hard; you acquired it through years of hard work and devotion to your
profession. We should be mindful at all times that the universe is so vast and so ageless that
the life of one man can be justified only by the degree or measure of his sacrifice. We are sent
into this world to create a personality and character to take with us that can never be taken
from us. You gentlemen have acquired great character, great personality that you have earned,
and its only the beginning. Those who eat, sleep, prosper, and procreate are no better than
animals if all their lives they live at peace.
Go forward, gentlemen, to the greatness that awaits you, and may God's guiding light
be forever with you. Thank you very much.
[Mr. Foley concludes.] Thompson, C. J.:
Thank you, Mr.
Thompson, C. J.:
Thank you, Mr. Foley.
An occasion such as this is always particularly heartwarming and enjoyable. Mr.
Justice Mowbray and Michael Hines have been close and dear friends through the years, and
when I asked John Mowbray who he would like to say a few words on this occasion, he
immediately said, I would like to have my friend Mike Hines present and say something.
Mr. Hines.
Mr. Michael Hines:
Your Excellency, Governor Laxalt, Members of the Supreme Court, friends of the
Justices, and leading citizens of the State of Nevada: I suppose that there is nobody here that
knows any more about John Mowbray than I do, and I am not going to tell you everything. I
suppose you want to know what kind of a fellow he is. I am not going to tell you some of the
things I know. Justice-soon-to-be Cameron Batjer, like myself and John, are all from the
farming country. I don't know him as well, except that Cameron and I were in the South
Pacific together. He was on one island and I was on another island. He was with the Navy and
I was with Marines.
Judge Mowbray and I met a good many years ago, and I never forget seeing him in the
law library with his Army uniform on, wings of the Air Force. I walked up to him and I said,
Say, what are you doing here, Major? Better take that uniform off; the war is over. He said,
Who are you? I told him who I was. He said, Maybe you've got a good point there. So the
next day he came back and he had the uniform off. He has had it off ever since, and we have
been good friends ever since. Fact of the matter, we were such good friends that we decided
to come out West. And I want to tell you whyeverybody asks, Why?. Well, back in the
country where we came from they learned there to get along without lawyers. They don't need
them. They settle many of their own problems. The Supreme Court justices have time to write
books. They aren't as busy as they are out here. So, we decided we had better go out West.
We crossed the Continental Divide and, so help me, we made every Western state. Talked to
lawyers in every town we stopped in and they would say, It's good here, but just go on down
the road; it's a little better! Over there in Iowa it was fair; it was fair in South Dakota, North
Dakota, and there were places where we could have stopped and stayed, and I am sure that
John would have been perhaps just as successful as he was here. But one thing about it, we
enjoyed ourselves, and John is one that does enjoy himself.
We had the fine pleasure of meeting, and one of the influential things that probably
brought us to Nevada was, Governor Laxalt here. We took a law course in San Francisco and
he said, Now, if you boys don't make it down there in Las Vegas, come up, and Jackie [now
the first lady] and I will see that you get by. We'll see that you get enough to eat. I don't think
at that time he had enough to eat.
Nevertheless, we did go to Las VegasI like Las Vegas. I saw that sign up there the
first time we hit town, Direct wire to all tracks, and I love horses, and I said, This is for
me. On the other hand, Judge Mowbray said, Where's the courthouse? Let's see what it
looks like, and that's where he has beenthat's where he spends most of his time. As I have
always said about John, he is not a great bridge player. I never saw him play poker. He doesn't
know a full house from a royal flush. Law has been his hobby, along with his boys and the
Boy Scouts. I am going to kind of miss him down there because he used to bring the boys and
his Boy Scouts out to my ranch. Nevertheless, he is still here in Nevada.
As I have told him many times, good layers make good judges; fast horses make good
jockeys. If we have good lawyers and if the lawyers would practice and be better, our judges
would be better today. You hear a lot of criticism of the courts, but you don't hear good
lawyers criticize the courts. They go back and try to reconcile the loss if they had one. We
need courts.
I'll tell you one thing about Las Vegas. We stopped over in Elko. We saw a district
attorney over there by the name of Grant Sawyer and a judge by the name of Taylor Wines,
and they said, I want to tell you boys Las Vegas is a good place to practice law. It sure must
be, because both of them have offices down there right now.
Certainly enjoyed being here and speaking to everybody before these impressive
speakers. Time is going by, and the Governor has got to get back to work. I want to say one
thing: Judge Mowbray didn't come here to buy Nevada, but he will never sell it short, or you
people, either.
[Mr. Hines concludes.]
Thompson, C. J.:
Thank you, Mr. Hines. We appreciate your comments very much. We are delighted to
know about our new associate.
Finally, we would like to call upon a dear friend of Mr. Justice Mowbray. a friend
through the years, a schoolmate, and a distinguished member of the California Bar. It is
highly unusual really, Mr.
unusual really, Mr. Giannini, that someone from another state should have been particularly
requested to be present on this occasion. Mr. Justice Mowbray wanted you here, and this
court is delighted to welcome you. Mr. Peter Giannini of the California Bar.
Mr. Peter E. Giannini:
Thank you very much, Chief Justice Thompson. Your Excellency Governor Paul
Laxalt, first lady, members of the bar, ladies and gentlemen: More than any other state in the
nation, the State of Nevada symbolizes in the eyes of America the courage, the idealism, and
the unselfish devotion of the pioneer spirit. It has no parallel in this respect in any other state.
This image was not created in a vacuum. It was forged through the lives of the
pioneers of this statethe lives of the men and women who molded its rich history and
tradition.
It is indeed in keeping with the spirit and tradition of Nevada that John C. Mowbray
be selected to occupy a position on its highest tribunal. His devotion to God, to his family,
and to his community has been unwavering. True to the pioneering spirit of this state, he is a
man of the highest ideals. His courage has repeatedly been demonstrated in his insistence
upon uncompromising compliance with those ideals, both in his personal life and in his
professional life.
It is a great honor to be elevated to the supreme bench in this state. But in the final
analysis this honor can be no greater than the man who occupies that position. The true
measure of a man and of his life is not its duration, but in its dedication to others.
In the Honorable Justice John C. Mowbray the State of Nevada has discovered a man
who has given and will continue to give the state its full measure of his dedication.
[Mr. Giannini concludes.]
Thompson, C. J.:
Thank you, Mr. Giannini.
It shall now be my pleasure to administer the Oath of Office to the new justices.
Mr. Batjer will you rise, please. [Whereupon Mr. Cameron Batjer rises and Chief
Justice Thompson administers the Oath of Office.] Judge Mowbray will you rise, please.
Judge Mowbray will you rise, please. [Whereupon Judge John Mowbray rises and
Chief Justice Thompson administers the Oath of Office.]
Mr. Justice Batjer and Mr. Justice Mowbray, speaking for the Court, I congratulate
each of you and extend a warm welcome. We are honored and delighted to be associated with
you. The Court's work is difficult and important and the responsibility is great. Together it
shall be our purpose to make this Court one of which Nevada can be proud.
Mr. Clerk [addressing the Clerk of the Court, Mr. C. R. Davenport], it is the order of
this Court that this proceeding be transcribed, spread upon the minutes of the Court,
published in the 1967 volume of the Nevada Reports, and certified copies delivered to the
families of Mr. Justice Batjer and Mr. Justice Mowbray.
There being no further business this morning, the court is adjourned.
[Whereupon the Special Session of the Supreme Court was adjourned, at 11:15 a.m.]
Joan
Mariani,
Court
Reporter.
____________

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