Nevada Reports 1977 (93 Nev.) PDF

93 Nev.
1, 1 (1977)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
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Volume 93
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93 Nev. 1, 1 (1977) Benetti v. Kishner
ANTHONY BENETTI, Appellant, v. IRWIN KISHNER, Trustee; JERRY ENGEL, Trustee;
VALLEY BANK OF NEVADA, a Nevada Corporation, Trustee; all as Trustees of the
Herman Kishner Trust, Respondents.
No. 8410
January 3, 1977 558 P.2d 537
Appeal from summary judgment; Eighth Judicial District Court, Clark County; Merlyn H.
Hoyt, Judge.
In action for declaratory relief to resolve landlord-tenant dispute, the district court granted
summary judgment for landlord concluding that lease had expired and tenant appealed. The
Supreme Court, Thompson, J., held that issue of material fact existed as to whether equity
should intervene for tenant and thus preclude forfeiture of his option to renew by reason of
failure to give timely notice of intent to exercise the right.
Reversed and remanded for trial.
John Peter Lee and James C. Mahan, of Las Vegas, for Appellant.
Dickerson, Miles & Pico, and Bert O. Mitchell, of Las Vegas, for Respondents.
1. Landlord and Tenant.
Generally, where lessee has right to renew provided that he gives the lessor notice by a specified time that
he intends to exercise such right, the giving of notice is a condition precedent which must be done within
the stipulated time.
Fact that lease expressly makes time of the essence in lessee's exercise of right to renew does not preclude
equitable relief from default and declaration of forfeiture if performance later is tendered without
unreasonable delay and no circumstances have intervened to make it inequitable to give such relief.
3. Judgment.
Issue of fact existed in action for declaratory relief to resolve landlord-tenant dispute as to whether equity
should intervene for the tenant and thus preclude forfeiture of option to renew because of failure to timely
exercise the option, rendering summary judgment inappropriate.
OPINION
By the Court, Thompson, J.:
This action for declaratory relief was commenced to resolve a landlord-tenant dispute. The
district court, on motion for summary judgment, ruled for the landlord concluding that the
lease in issue had expired since the tenant had not timely exercised his option to renew the
lease and had failed to show a valid reason for his tardy effort to exercise his option to renew.
Although it is clear that the lessee did not timely exercise his option right, other
circumstances suggest the existence of an issue of material fact with regard to whether
equitable relief may be warranted to preclude forfeiture of tenancy rights. Consequently, we
reverse and remand for trial.
The appellant, Anthony Benetti, operates a package liquor store, slot machines and
cocktail lounge called Tommy B's Casino in a Las Vegas building which he leased in 1968
from Agnes Grist.
1
That lease was for a term of five years to expire July 9, 1973, and
contained an option to renew for an additional five-year term.
____________________

1
On December 30, 1969, Herman Kishner succeeded to the interest of Agnes Grist as lessor. Herman Kishner
died January 2, 1972, and the respondents, as trustees of the Herman Kishner Trust, became the owners of the
leased premises.
July 9, 1973, and contained an option to renew for an additional five-year term. The terms of
the option, among other things, required Benetti to transmit notice of intention to exercise
option to lessor by certified or registered mail not later than six months prior to the
expiration of the lease, that is, before January 9, 1973. Time was made of the essence with
regard to the lessee's exercise of his option to renew. Benetti, the lessee, did not give notice
until March 16, 1973. His excuse for his tardy exercise of his option to renew was that an
addendum to the lease, executed in April 1971 by Kishner and himself, and the circumstances
attendant upon the execution of that instrument, resulted in his honest belief that the term of
the original lease was changed and that it was not necessary to exercise his option in order to
retain possession beyond July 9, 1973.
[Headnote 1]
1. The parties to this appeal do not dispute the general rule that where a lessee has a right
to renew provided that he gives the lessor notice by a specified time that he intends to
exercise such right, the giving of notice is a condition precedent which must be done within
the stipulated time. The right to renew is lost if notice is not given as required by the lease.
Cases collected Annot. 44 A.L.R.2d 1359 (1955); Jay Gee Commerce, Inc. v. Havas, 89 Nev.
157, 508 P.2d 1015 (1973). However, special circumstances may warrant equitable relief and
thus preclude forfeiture of the tenant's right to renew. Jones v. Gianferante, 111 N.E.2d 419
(N.Y. 1953); American Houses v. Schneider, 211 F.2d 881 (3d Cir. 1954); Dugan v. Haige,
54 So.2d 201 (Fla. 1951).
[Headnote 2]
Moreover, the fact that the lease expressly makes time of the essence is not necessarily
controlling. That provision coupled with a provision for forfeiture does not preclude equitable
relief from default and declaration of forfeiture if performance later is tendered without
unreasonable delay and no circumstances have intervened to make it inequitable to give such
relief. McCann v. Paul, 90 Nev. 102, 520 P.2d 610 (1974); Slobe v. Kirby Stone, Inc., 84
Nev. 700, 447 P.2d 491 (1968); Mosso v. Lee, 53 Nev. 176, 295 P. 776 (1931).
[Headnote 3]
As already noted, this case comes to us on appeal from summary judgment. Consequently,
we must accept as true all evidence favorable to the tenant Benetti against whom summary
judgment was entered.
judgment was entered. Davidson & Company v. Allen, 89 Nev. 126, 508 P.2d 6 (1973);
Catrone v. 105 Casino Corp., 82 Nev. 166, 414 P.2d 106 (1966); Franktown v. Marlette, 77
Nev. 348, 364 P.2d 1069 (1961). Within this context we believe that the record discloses an
issue of material fact as to whether equity should intervene for the tenant Benetti and thus
preclude forfeiture of his option to renew. We turn to relate relevant circumstances which, in
our view, compel this conclusion.
2. The April 1971 addendum to lease agreement between Kishner and Benetti was
prepared by a non-lawyer and is in two parts. The first part amends the original lease to allow
lessee additional slot machines and to provide for an increased rental. The second part
entitled agreement to execute new lease is, perhaps, the central cause of this litigation. It is
not necessary to set forth its wording in full. It is sufficient to note the following. The lessor
and lessee each acknowledged that the lessor intended to demolish the leased premises and
construct a shopping center complex at a different location, and that a new lease would be
made between them for space in the new shopping center to commence on the day of
occupancy by the lessee, to expire December 31, 1981, and granting to the lessee an option to
extend the term for an additional ten years until December 31, 1991. Moreover, it was agreed
that as soon as the new premises are ready for occupancy the lessee shall vacate his present
store space without delay and relocate in the space as previously agreed to.
Benetti thought that the original lease was superseded by the April 1971 document.
Moreover, it is reasonable to draw the inference from the record before us that he believed the
new shopping center would be completed before July 9, 1973, when his original lease would
expire. The Lessor Kishner died January 2, 1972. Thereafter, Benetti inquired of a
representative of the Kishner Trustees about their plans to proceed with construction of the
shopping center but was not given definite information. After the time to exercise his option
had passed he again inquired and was advised that he might have a problem since he had not
timely exercised his option. Benetti then immediately notified the trustees of his intention to
renew the original lease.
The record does not reflect prejudice to the lessor flowing from the lessee's late exercise of
his option. It seems to us that these circumstances present an issue of material fact as to
whether equity should intervene to preclude forfeiture of the tenant's right to renew. After a
full and fair trial it may appear that equitable relief is not warranted, or it may develop that
such relief should be ordered.
that equitable relief is not warranted, or it may develop that such relief should be ordered. At
this junction one cannot properly decide that issue.
Accordingly, we reverse the summary judgment below and remand for trial to determine
whether equitable principles should be invoked to excuse the tenant's tardy exercise of his
option to renew the original lease for an additional five-year term. We agree with the district
court that the April 1971 addendum to lease agreement cannot, as a matter of law, be
construed to grant the tenant a new lease on the existing premises extending to 1981 with an
option for ten years thereafter.
Batjer, Zenoff, and Mowbray, JJ., concur.
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93 Nev. 5, 5 (1977) Warden v. Mercado
WARDEN, NEVADA STATE PRISON, Appellant, v.
ERNEST M. MERCADO, Respondent.
No. 9402
January 19, 1977 558 P.2d 1143
Appeal from order granting petition for writ of habeas corpus, First Judicial District Court,
Carson City; Frank B. Gregory, Judge.
Reversed.
Robert List, Attorney General, and David B. Small, Deputy Attorney General, Carson City,
for Appellant.
Horace R. Goff, State Public Defender, and David Mathews, Deputy Public Defender,
Carson City, for Respondent.
OPINION
Per Curiam:
On the authority of, and for the same reasons stated in, State v. Wright, 92 Nev. 734, 558
P.2d 1139 (1976), we, sua sponte, reverse the district court's order which granted respondent's
petition for a writ of habeas corpus.
____________
93 Nev. 6, 6 (1977) Koza v. Sheriff
JOSEPH E. KOZA, Appellant, v. SHERIFF, CLARK
COUNTY, NEVADA, Respondent.
No. 9373
January 19, 1977 559 P.2d 394
Appeal from order denying pretrial petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; Carl J. Christensen, Judge.
The Supreme Court held that if magistrate's failure to include count three in his order was
mere inadvertence, prosecutor's remedy was to request magistrate to correct the mistake; and
that in the absence of a finding by the magistrate that the accused probably committed the
crime charged in count three and that he should be tried therefor, prosecuting attorney was
not authorized to lodge an information charging such a crime, notwithstanding prosecutor's
claim of mere inadvertence, since record was barren of any statement, or misstatement, of
prosecutor that could be construed to sustain a claim of inadvertence or mistake.
Reversed and remanded, with instructions.
Swanson & Momot, Ltd., Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and J.
Michael McGroarty, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Supreme Court would not presume that magistrate's failure to include count three in his order was mere
inadvertence.
2. Criminal Law.
If magistrate's failure to include count three in his order was mere inadvertence, prosecutor's remedy was
to request magistrate to correct the mistake. NRS 176.565.
3. Indictment and Information.
In the absence of a finding by the magistrate that the accused probably committed the crime charged in
count three and that he should be tried therefor, prosecuting attorney was not authorized to lodge an
information charging such a crime, notwithstanding prosecutor's claim of mere inadvertence, since record
was barren of any statement, or misstatement of prosecutor that could be construed to sustain a
claim of inadvertence or mistake.
construed to sustain a claim of inadvertence or mistake. NRS 173.035, subds. 1(a), 2.
OPINION
Per Curiam:
Joseph E. Koza was charged, by criminal complaint, with three separate counts of robbery
(Nev. Rev. Stat. 200.380) and the use of a deadly weapon in commission of a crime (Nev.
Rev. Stat. 193.165). At the conclusion of a preliminary examination the magistrate ordered
that Koza stand trial on count number one and count number two of the criminal complaint.
The information filed by the prosecuting attorney charged Koza with the three (3) counts
that had been set forth in the criminal complaint. Koza challenged count three with a timely
filed petition for a writ of habeas corpus; however, for reasons unexplained in the record, the
district judge denied the habeas challenge and in this appeal Koza argues we are compelled to
reverse. We agree.
The prosecutor suggests that it is permissible to include count three in the charge
because the magistrate's failure to order that Koza be tried on that count must have been
mere inadvertence like that found in Singleton v. Sheriff, 86 Nev. 590, 471 P.2d 247
(1970). Singleton is inapposite and the prosecutor's reliance on the case is therefore
misplaced. There, the prosecutor had moved to dismiss counts charging felony murder and
robbery; however, he misstated the numerical designation of those two counts and, in
affirming the order denying a habeas challenge, we ruled that [s]uch a mistake is analogous
to a clerical error. Id. at 592, 471 P.2d at 249. In the instant case, the record is barren of any
statementor misstatementof the prosecutor that might be construed to sustain a claim of
inadvertence or mistake.
[Headnotes 1, 2]
We will not presume the magistrate's failure to include count three in his order was mere
inadvertence. If, in fact, such was the case, the prosecutor's remedy is delineated in Nev.
Rev. Stat. 176.565, which provides, in part: Clerical mistakes . . . and errors in the record
arising from oversight or omission may be corrected by the court at any time and after such
notice, if any, as the court orders. Here, there was no request to the magistrate to correct
the mistake if, indeed, there was a mistake.
magistrate to correct the mistake if, indeed, there was a mistake.
[Headnote 3]
In this factual context, and in the absence of a findingby the magistratethat the
accused probably committed the crime charged in count three and that he should be tried
therefor, the prosecuting attorney was not authorized to lodge an information charging such
crime. Nev. Rev. Stat. 173.035(1)(a).
1
Accordingly, we reverse and remand this case to the
district court with instructions to grant the writ of habeas corpus.
2

____________________

1
The statute provides, in pertinent part: An information may be filed against any person for any offense
when the person . . . [h]as had a preliminary examination . . . and has been bound over. . . . (Emphasis added.)

2
In the procedural posture presented we make no observation regarding the prosecutor's right, if any there
may be, to again charge the accused with the crime delineated in count three. Cf. Tellis v. Sheriff, 85 Nev.
557, 459 P.2d 364 (1969); McGee v. Sheriff, 86 Nev. 421, 470 P.2d 132 (1970); Nev. Rev. Stat. 173.035(2).
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93 Nev. 8, 8 (1977) Bolden v. Sheriff
BRENDA FAYE BOLDEN, Appellant, v. SHERIFF,
CLARK COUNTY, NEVADA, Respondent.
No. 9384
January 19, 1977 558 P.2d 628
The Supreme Court held that accused's representation to police officer that substance
accused sold him was good coke was sufficient to establish probable cause for binding
accused over for trial.
Affirmed.
Morgan D. Harris, Public Defender, and Terrence M. Jackson, Deputy Public Defender,
Clark County, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and
Rimantas A. Rukstele, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Proof beyond reasonable doubt that substance sold by accused was in fact contraband must be
offered at trial; however, for purpose of meeting standard of probable cause required
to bind accused over for trial, it is sufficient if accused either directly or by necessary
implication represented that the substance sold was, in fact, contraband.
was in fact contraband must be offered at trial; however, for purpose of meeting standard of probable cause
required to bind accused over for trial, it is sufficient if accused either directly or by necessary implication
represented that the substance sold was, in fact, contraband.
2. Criminal Law.
Accused's representation to police officer that substance accused sold him was good coke was
sufficient to establish probable cause for binding accused over for trial; expert's testimony establishing that
substance sold was cocaine was not necessary. NRS 171.206, 453.171, 453.321.
OPINION
Per Curiam:
Brenda Faye Bolden was charged with, and, at the conclusion of a preliminary
examination, ordered to stand trial for, selling a controlled substance in violation of Nev.
Rev. Stat. 453.321 and 453.171. She then filed a petition for a writ of habeas corpus in
which her central contention was that there was insufficient evidence produced at the
preliminary examination to establish probable cause that she committed the charged offense.
The district judge considered and rejected the petition and Bolden has appealed, reasserting
the same contention.
The record establishes that a Las Vegas police officer arrived at Bolden's apartment and
told her he wanted to buy some coke. Bolden produced a white powdery substance, and
stated to the police officer that it was good coke and the price was $25. The officer paid for
the substance and departed. He subsequently testified that the coke appeared to him to be
cocaine. Bolden asserts that, in the absence of an expert's testimony establishing that the
substance was cocaine, the charge cannot stand. We disagree.
[Headnote 1]
Proof beyond a reasonable doubt that the substance sold was in fact contraband must be
offered at trial; and, generally, such proof is supplied through an expert witness who has
tested the substance. However, for the purpose of meeting the standard of probable cause
required to bind an accused over for trial, it is sufficient if the accused either directly, or by
necessary implication, represents that the substance is, in fact, contraband. See: Glosen v.
Sheriff, 85 Nev. 145, 148, 451 P.2d 841, 842 (1969), and its progeny.
[Headnote 2]
Here, Bolden's representation that the substance was good "coke" clearly meets the
probable cause test delineated in Nev. Rev. Stat. 171.206; therefore, we need not, and
do not, reach her subordinate claim, i.e.,
coke clearly meets the probable cause test delineated in Nev. Rev. Stat. 171.206;
therefore, we need not, and do not, reach her subordinate claim, i.e., that it was error to refuse
her request to call the state's chemist as a witness. DuFrane v. Sheriff, 88 Nev. 52, 495 P.2d
611 (1972); Waid v. Sheriff, 88 Nev. 664, 504 P.2d 9 (1972); Zampanti v. Sheriff, 86 Nev.
651, 473 P.2d 386 (1970).
Affirmed.
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93 Nev. 10, 10 (1977) Wallin v. State
JESSE DELBERT WALLIN, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 8917
January 19, 1977 558 P.2d 1143
Appeal from judgment and conviction for battery. First Judicial District Court, Carson
City; Frank B. Gregory, Judge.
The Supreme Court held that evidence sustained conviction; and that evidence of previous
similar experiences between defendant and victim was properly admitted.
Affirmed.
Lohse and Lohse, Chartered, of Reno, for Appellant.
Robert List, Attorney General, Michael E. Fondi, District Attorney, and Louis R.
Doescher, Deputy District Attorney, of Carson City, for Respondent.
1. Assault and Battery.
Evidence in prosecution for battery sustained conviction. NRS 200.481, subd. 2(b).
2. Criminal Law.
In prosecution for battery, in which defense placed defendant's intent in issue, evidence of previous
similar experiences between defendant and victim was properly admitted. NRS 200.481, subd. 2(b).
OPINION
Per Curiam:
After they engaged in sexual intercourse Jesse Wallin, appellant, forcibly raised his wife's
legs and inserted his clenched fist into her rectum. Despite her extreme pain and pleading he
kept it there for several minutes until he finally released her.
93 Nev. 10, 11 (1977) Wallin v. State
it there for several minutes until he finally released her. With the assistance of her children,
she was taken to a hospital where she was treated for extensive injuries in the rectal area.
She charged him with battery and testified to previous episodes of a like nature with him.
In defense he produced evidence that he was an epileptic, that he had suffered severe injuries
while serving in Vietnam, that he had been hit on the head by a falling garage door earlier in
the day and that he had undergone an epileptic seizure at the time of the battery. The jury
found him guilty under NRS 200.481(2)(b), to wit, [i]f the battery is not committed with a
deadly weapon, and substantial bodily injury to the victim does result.
[Headnote 1]
There is adequate and substantial evidence to support the verdict. Moser v. State, 91 Nev.
809, 544 P.2d 424 (1975); Nix v. State, 91 Nev. 613, 541 P.2d 1 (1975); Sanders v. State, 90
Nev. 433, 529 P.2d 206 (1974); Azbill v. State, 88 Nev. 240, 495 P.2d 1064 (1972).
[Headnote 2]
Counter to appellant's contention that his wife's testimony of previous similar experiences
with him was inadmissible, NRS 48.045 allows evidence of prior conduct where it is relevant
to intent or absence of mistake or accident. See Nester v. State, 75 Nev. 41, 334 P.2d 524
(1959); State v. McFarlin, 41 Nev. 486, 172 P. 371 (1918). Defense counsel acknowledged
that Wallin's defense placed his intent in issue. The admission of such evidence was therefore
proper.
Other purported errors are without merit.
Affirmed.
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93 Nev. 11, 11 (1977) Baker v. Sheriff
PATRICK BAKER, Appellant, v. SHERIFF,
No. 9374
January 19, 1977 558 P.2d 629
District Court, Clark County; J. Charles Thompson, Judge.
After he was held to answer a charge of possession of stolen property, petitioner sought
habeas corpus, contending that the evidence adduced by the prosecuting attorney was
insufficient to establish probable cause that he committed the charged offense.
to establish probable cause that he committed the charged offense. The district court denied
the writ, and petitioner appealed. The Supreme Court held that probable cause had been
shown.
Affirmed.
Morgan D. Harris, Public Defender, and Thomas F. Pitaro, Deputy Public Defender,
1. Criminal Law.
Although mere presence cannot support inference that one is party to offense, presence, together with
other circumstances, may do so.
2. Criminal Law.
Probable cause to hold suspect to answer charge of possession of stolen property was shown by evidence
that suspect and two others were arrested after they had been observed driving up and down the streets in
suspicious manner, attempting to sell chain saws from vehicle; suspect's mere presence under such
circumstances was sufficient to support inference that he possessed chain saws and knew they were stolen.
NRS 171.206.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Patrick Baker was held to answer a charge
of possession of stolen property, a felony under Nev. Rev. Stat. 205.275. Baker then filed a
pretrial petition for a writ of habeas corpus contending the evidence adduced by the
prosecuting attorney was insufficient to establish probable cause that he committed the
charged offense. The district court denied habeas and in this appeal Baker reasserts the same
contention.
The record establishes that Baker and two other suspects were arrested after they had been
observed driving up and down a Las Vegas street in a suspicious manner, attempting to sell
chain saws from the vehicle. The vehicle contained four stolen chain saws, one in the back
seat (with Baker) and three in the trunk.
Baker argues that his mere presence, under the circumstances described, is insufficient
to support an inference that he possessed the chain saws and knew they were stolen. We
disagree.
[Headnotes 1, 2]
We have recently held that, although mere presence cannot support an inference that one is
a party to an offense, presence together with other circumstances may do so. Winston v.
Sheriff, 92 Nev. 616, 555 P.2d 1234 (1976). Here, as in Winston, the circumstances
surrounding the mere presence of Baker support a reasonable inference that he probably
committed the charged offense. Nev. Rev. Stat. 171.206.
Affirmed.
____________
93 Nev. 13, 13 (1977) Edwards v. Sheriff
JIMMIE EDWARDS, Appellant, v. SHERIFF,
No. 9347
January 19, 1977 558 P.2d 1144
District Court, Clark County; Michael J. Wendell, Judge.
Accused was ordered to stand trial for unlawfully taking vehicle without consent of owner,
a gross misdemeanor. Accused then filed pretrial petition for writ of habeas corpus. The
district court denied petition, and accused appealed. The Supreme Court held that statutory
presumption whereby every person in possession of vehicle without consent of owner is
presumed to have taken and carried or driven away vehicle is valid; that there was rational
connection between facts proved and facts presumed and thus requirements of due process
were not offended; and that evidence, based upon application of statutory presumption, was
sufficient to establish probable cause to hold accused for trial on charged offense.
Affirmed.
Morgan D. Harris, Public Defender, and James Porter, Deputy Public Defender, Clark
County, for Appellant.
1. Automobiles.
Statutory presumption whereby every person in possession of vehicle without consent of owner is
presumed to have taken and carried or driven away vehicle is valid because there is substantial
assurance that presumed fact, i.e., taking of vehicle, is more likely than not to flow
from proved fact, i.e.,
assurance that presumed fact, i.e., taking of vehicle, is more likely than not to flow from proved fact, i.e.,
possession without owner's consent, on which it is made to depend. NRS 205.2715.
2. Automobiles; Constitutional Law.
Under statutory presumption whereby every person in possession of vehicle without consent of owner is
presumed to have taken and carried or driven away vehicle, there was rational connection between facts
proved and facts presumed; conclusion that accused took motorcycle, the presumed fact, flowed with
substantial assurance from his possession of it without owner's consent, the proved fact, and thus
requirements of due process were not offended. NRS 47.250, 205.2715.
3. Criminal Law.
Evidence, based upon application of statutory presumption whereby every person in possession of vehicle
without consent of owner is presumed to have taken and carried or driven away vehicle, was sufficient to
establish probable cause to hold accused for trial on charge of unlawfully taking vehicle without consent of
owner. NRS 205.2715.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Jimmie Edwards was ordered to stand
trial for unlawfully taking a vehicle without the consent of the owner, a gross misdemeanor
under Nev. Rev. Stat. 205.2715. Edwards then filed a petition for a writ of habeas corpus
contending there was insufficient evidence adduced by the prosecution to establish probable
cause that he committed the charged offense. The district judge considered and denied the
petition and in this appeal Edwards advances the same contention.
The record establishes that, on September 30, 1976, Edwards and another individual were
transporting a motorcycle through Las Vegas in the open trunk of an unlicensed automobile.
A police officer stopped the vehicle and, while checking the registration of the motorcycle,
learned that it (the motorcycle) had been reported stolen the previous day. Edwards and his
companion were then arrested.
The thrust of Edwards's contention below, and here, is directed to the presumption created
by the statute under which he is charged.
1
He offers the conclusion that there is no rational
connection between the presumed fact {taking of the vehicle) and the proved fact
{possession without the owner's consent); hence, he argues, the statutory presumption is
unconstitutional and cannot support the magistrate's belief that he {Edwards) committed
the charged offense.
____________________

1
Nev. Rev. Stat. 205.2715 provides, in part:
1. Every person who takes and carries away or drives away the vehicle of another without the intent to
permanently deprive the owner thereof but without the consent of the owner of such vehicle is guilty of a gross
misdemeanor.
2. Every person who is in possession of a vehicle without the consent of the owner of such vehicle is
presumed to have taken and carried away or driven away the vehicle. (Emphasis added.)
connection between the presumed fact (taking of the vehicle) and the proved fact (possession
without the owner's consent); hence, he argues, the statutory presumption is unconstitutional
and cannot support the magistrate's belief that he (Edwards) committed the charged offense.
We disagree.
[Headnote 1]
We believe the statutory presumption valid because there is substantial assurance that the
presumed fact is more likely than not to flow from the proved fact on which it is made to
depend. Cf. Leary v. United States, 395 U.S. 6 (1969).
[Headnotes 2, 3]
There is a rational connection between the facts proved and the facts presumed (the
conclusion that Edwards took the motorcycle (the presumed fact) flows with substantial
assurance from his possession of it without the owner's consent (the proved fact)). Carter v.
State, 82 Nev. 246, 415 P.2d 325 (1966). Thus, the requirements of due process are not
offended. Cf. Mitchell v. State, 92 Nev. 458, 552 P.2d 1378 (1976), and cases cited therein;
Nev. Rev. Stat. 47.250. We therefore perceive no error in the district judge's determination
that there was probable cause to hold Edwards for trial on the charged offense.
Affirmed.
____________
93 Nev. 15, 15 (1977) Coby v. Miller
VERA COBY, Guardian ad Litem of TRAVIS COBY, Jr., a minor child, LOLA DEAN,
ELIZABETH MYERS, ANNIE DAVISON, JEANNIE CARPENTER, MADELYN WARE,
Individually and on Behalf of All Others Similarly Situated, Appellants, v. GEORGE E.
MILLER, State Welfare Administrator, THE NEVADA STATE WELFARE BOARD, and
THE STATE OF NEVADA, Respondents.
No. 8869
January 19, 1977 559 P.2d 395
Appeal from denial of motion for preliminary injunction. Eighth Judicial District Court,
Clark County; Carl J. Christensen, Judge.
Upon refusal of Welfare Division to rescind proposed limitations on benefits for all
recipients of State Aid to the Medically Indigent, petitioners commenced litigation to stop
imposition of restrictions. The district court denied request for preliminary injunctive relief,
and petitioners appealed.
93 Nev. 15, 16 (1977) Coby v. Miller
injunctive relief, and petitioners appealed. The Supreme Court held that it would not
intervene in dispute; that dispute was legislative funding matter and Division, which had no
alternative but to provide only for emergency cases or run out of funds, did not act arbitrarily,
capriciously or contrary to law in refusing to rescind limitations.
Affirmed.
Anthony M. Earl, President, James O. Porter, Director, Michelle Murphy, Sean R. Bleck,
and Charles Windon, Clark County Legal Services, Las Vegas, for Appellants.
Robert List, Attorney General, Carson City, and Marilyn V. Romanelli, Deputy Attorney
General, Las Vegas, for Respondents.
Constitutional Law; Social Security and Public Welfare.
Supreme Court would not intervene in dispute involving proposed benefit cuts for all recipients of State
Aid to the Medically Indigent due to lack of funds; such was legislative funding matter and Welfare
Division, which had no alternative but to provide only for emergency cases or run out of funds, did not act
arbitrarily, capriciously or contrary to law in refusing to rescind limitations. NRS 428.260, subd. 4(a),
(b), 428.300, subds. 1, 3.
OPINION
Per Curiam:
The Nevada State Welfare Administrator distributed a statement of proposed benefit cuts
and an attendant explanation, specifically, lack of funds, to all recipients of State Aid to the
Medically Indigent (identified as SAMI). Protests were lodged with the Welfare Division,
that division of the Department of Human Resources of the State of Nevada charged with the
responsibility of dispensing such medical aid under NRS 428.150 et seq. Upon the refusal of
the Division to rescind the limitations petitioners commenced litigation to stop the imposition
of the restrictions. Their request for preliminary injunctive relief was denied and they appeal.
1
The power to set reasonable standards for determination of eligibility for medical
services and the determination of the nature and extent of such assistance is vested in
the Welfare Division under NRS 42S.260{4){a) and 42S.260{4){b).

____________________

1
This appeal originally consisted of two claims, one based on the denial of a preliminary injunction and
another founded upon the dismissal of the initial complaint for failure to state a cause of action. Pursuant to
respondents' unopposed motion to dismiss the second claim on appeal, that portion of this appeal was dismissed
by order of this court on June 23, 1976. Only the appeal from the preliminary injunction remains to be resolved.
93 Nev. 15, 17 (1977) Coby v. Miller
The power to set reasonable standards for determination of eligibility for medical services
and the determination of the nature and extent of such assistance is vested in the Welfare
Division under NRS 428.260(4)(a) and 428.260(4)(b). NRS 428.300(1) provides for review
of any action taken by the Welfare Division and NRS 428.300(3) expressly allows the district
court to reverse a decision of the Division if it is arbitrary, capricious or otherwise contrary
to law. Case law provides the same system of relief for almost all such administrative
determinations. Miller v. West, 88 Nev. 105, 493 P.2d 1332 (1972).
In this case the SAMI recipients protested cutbacks in their medical aid which the Division
by written notice had advised were impending. Explanation was given in various
administrative hearings that because of the depletion of funds medical aid had to be placed on
an emergency-only basis or money for the entire program would run out. Petitioners
suggested that the money be taken from other Welfare Department programs so that the
regular medical aid could continue.
We refuse to intervene. This is a legislative funding matter and we perceive no action or
conduct on the part of the Welfare Division that was arbitrary, capricious or contrary to law.
The Division had no alternative but to provide only for emergency cases or run out of funds.
Petitioners' prayer for relief is denied.
Affirmed.
____________
93 Nev. 17, 17 (1977) Ornatek v. Nevada State Bank
JERRY A. ORNATEK, Appellant, v. NEVADA STATE BANK, a State of Nevada Banking
Corporation, and VERNON G. McDANIEL, Respondents.
No. 8406
January 19, 1977 558 P.2d 1145
Appeal from partial summary judgment; Eighth Judicial District Court, Clark County; J.
Charles Thompson, Judge.
Borrower brought action against lending bank and its vice-president for slander. The
district court granted partial summary judgment and plaintiff appealed. The Supreme Court,
Thompson, J., held that statements made by vice-president of lending bank to officers of bank
by which plaintiff was employed expressing concern about a note which plaintiff had with
lending bank and inquiring whether plaintiff had applied for or had any loans with
employer bank were not libelous per se or per quod.
with lending bank and inquiring whether plaintiff had applied for or had any loans with
employer bank were not libelous per se or per quod.
Affirmed.
Roy L. Nelson II, of Las Vegas, for Appellant.
Lionel Sawyer & Collins, and Andrew S. Brignone, of Las Vegas, for Respondents.
1. Libel and Slander.
Statements made by vice-president of lending bank to officers of bank by which plaintiff was employed
expressing concern about a note which plaintiff had with lending bank and inquiring whether plaintiff had
applied for or had any loans with employer bank were not libelous per se or per quod.
2. Libel and Slander.
Words may be slanderous per quod when the defamation does not appear from the words themselves, but
arises from extrinsic circumstances.
OPINION
This appeal, pursuant to a NRCP 54(b) certification, is from a partial summary judgment
for Nevada State Bank and Vernon G. McDaniel, its vice-president, in a slander action
commenced by Jerry Ornatek. There remains pending in the court below Ornatek's claim for
damages flowing from an alleged breach of an implied contract not to release confidential
information. We agree with the district court that the record does not present an issue of
material fact with regard to the cause of action alleging slander and affirm the partial
summary judgment.
The charge of slander levelled by Ornatek against the Nevada State Bank and its
vice-president, Vernon McDaniel, rests solely upon three statements made by McDaniel in
conversations with officers of the First National Bank. It is claimed that such statements
attack the credit worthiness of Ornatek or impute his insolvency. We turn to examine those
statements and the circumstances within which they were uttered.
Before moving to Las Vegas, Ornatek was employed in banking in Arizona for several
years. In Las Vegas, he worked in the loan department of Nevada National Bank before
transferring to First National Bank as a loan officer in October 1974.
in the loan department of Nevada National Bank before transferring to First National Bank as
a loan officer in October 1974.
In his first eight months after moving to Nevada, Ornatek borrowed money from Nevada
State Bank. In addition to a credit reserve account with a $2,400 limit, he borrowed $2,000 on
two separate occasions which he repaid before maturity. The second of these loans originally
had been denied by McDaniel but was granted by another loan officer after McDaniel went on
vacation.
His largest loan, $4,700 on November 12, 1974, to mature May 12, 1975, was obtained at
a branch bank of Nevada State Bank. This occurred after Ornatek had transferred to the First
National Bank as a loan officer.
On November 25, 1974, McDaniel called Mr. Fruzza, manager of the main office of First
National Bank to ask where Jerry Ornatek was working at that time for FNB and said that
he was concerned about a $4,700 note which Jerry Ornatek had with NSB.
On the same day, McDaniel called Mr. Busch at First National about another customer,
and during the course of that conversation inquired whether Ornatek had applied for or had
any loans with FNB.
Finally, Mr. Siefert, regional vice-president of FNB telephoned McDaniel to clarify
information regarding Ornatek's indebtedness to Nevada State Bank. He was advised by
McDaniel that NSB had made some loans to Ornatek, that he had a ready reserve account,
and that all loans had been paid in a satisfactory manner.
As a result of the information given by McDaniel, FNB conducted an investigation of
Ornatek and learned that he had misrepresented his indebtedness on his employment
application and fidelity bond application forms. Moreover, he had failed to comply with FNB
policy requiring officers to disclose all loans from other banks within ten days to the board of
directors of FNB. Consequently, Siefert met with Ornatek to ascertain whether Ornatek could
reduce his debt load to a level acceptable to FNB and thereby continue his employment as a
loan officer. Ornatek could not do so and, at Siefert's suggestion, resigned his position with
FNB on December 6, 1974.
The record discloses a settled practice in Las Vegas for banks to exchange limited loan
information and, with regard to bank employees, to determine their indebtedness.
[Headnote 1]
1. The statements of McDaniel in the context within which they were made do not, as a
matter of law, constitute either slander per se or per quod. Words, charged to be either
libelous or slanderous per se are to be taken in their plain and natural import according to the
ideas they convey to those to whom they are addressed; reference being had not only to the
words themselves but also to the circumstances under which they were used. Talbot v.
Mack, 41 Nev. 245, 262, 169 P. 25 (1917); Las Vegas Sun v. Franklin, 74 Nev. 282, 329 P.2d
867 (1958).
McDaniel said nothing to officers of the First National Bank which carried a defamatory
meaning. His concern about Ornatek's debt to the Nevada State Bank is simply an expression
of concern. It did not impugn the integrity of Ornatek nor reflect upon his ability as a loan
officer. Indeed, McDaniel told Siefert of the First National Bank that Ornatek's prior loans
had been paid in satisfactory manner. It is clear that the ensuing problems of Ornatek with
First National Bank were caused by his own misrepresentations to that bank concerning his
indebtedness, and not by the communications which McDaniel had with officers of First
National Bank.
[Headnote 2]
Words may be slanderous per quod when the defamation does not appear from the words
themselves, but arises from extrinsic circumstances, when viewed with the statement,
conveys a defamatory meaning. W. Prosser, Handbook of the Law of Torts 111 (4th ed.
1971). Such extrinsic facts are not here present. Indeed, it is apparent that Nevada State Bank
had no problems with Ornatek regarding the payment of debts or with his work.
2. Other defenses to the charge of slander submitted by Nevada State Bank and McDaniel
(truth, privilege, lack of damage) need not be discussed in view of our disposition of this
appeal.
Affirmed.
Batjer, C. J., and Zenoff, Mowbray, and Gunderson, JJ., concur.
____________
93 Nev. 21, 21 (1977) Fitzpatrick v. State
MICHAEL ARIDIOUS FITZPATRICK, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 8798
January 19, 1977 558 P.2d 630
Appeal from conviction of extortion and rape. Eighth Judicial District Court, Clark
County; James A. Brennan, Judge.
The Supreme Court, Zenoff, J., held that the jury could find that defendant exerted force,
though prosecutrix could have left him at any time, in view of her testimony that he
threatened that her fiance would be killed unless she met his wishes.
Affirmed.
Morgan D. Harris, Clark County Public Defender, and Michael A. Cherry, Deputy Public
Defender, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and H.
Leon Simon, Deputy District Attorney, Clark County, for Respondent.
1. Rape.
Jury in rape prosecution could find that defendant exerted force, though prosecutrix could have left
him at any time, in view of her testimony that he threatened that her fiance would be killed unless she met
his wishes.
2. Rape.
Threats to third person can induce rape victim's submission.
OPINION
By the Court, Zenoff, J.:
Michael Aridious Fitzpatrick was charged with forcible rape and also extorting $1,000
from the rape victim. He was convicted on both counts. He contends principally on appeal
that although he denies having had intercourse with the prosecutrix, the circumstances she
outlined did not constitute forcible rape assuming the act occurred.
[Headnotes 1, 2]
The prosecutrix testified that she submitted to Fitzpatrick because of his representations
that her fiance would be killed unless she met Fitzpatrick's three wishes, to wit, (1) that she
give him $1,000 in pennies, (2) she give him ten pounds of salt, and {3) that she give him
"you," in other words, availability of her body.
93 Nev. 21, 22 (1977) Fitzpatrick v. State
salt, and (3) that she give him you, in other words, availability of her body.
Fitzpatrick met the victim's fiance, Allen London, while both were confined in the Clark
County jail. Evidently they exchanged confidences. When Fitzpatrick was released from
custody he made contact with the prosecutrix and told her that he was sent to Las Vegas from
Florida by the organization to decide what to do about Allen London. He told her that it
was his decision to let London die unless she give him $1,000 in pennies, ten pounds of salt
and you. Apparently believing him and unable to verify his story because London was still
in jail, she went from place to place with Fitzpatrick gathering money. He continuously
repeated the warnings that he would let London die. Eventually at his insistence they went to
a motel room. She had given him whatever money she could gather. He compelled her to take
her clothes off, poured salt over her and committed the act of intercourse. It is significant that
she exhibited reluctance even while believing his story and that he used force to compel her
to submit.
It is apparent that the jury believed her testimony that Fitzpatrick was capable of taking
London's life and that certain force was also exerted upon her. While she could have left him
at any time, her fear was real. Under the circumstances, it was reasonable for the jury to
accept her belief that Fitzpatrick could carry out his threat and that her resistance was
lessened because of it. Even State v. Lung, 21 Nev. 209, 28 P. 235 (1891), recognizes that the
force used in rape can be constructive and in this instance we accept the doctrine that threats
to a third person can induce the victim's submission. Crenshaw v. State, 283 A.2d 423 (Md.
1971). The jury viewed the evidence as ample to support the verdict of forcible rape and we
do not disagree. Dinkens v. State, 92 Nev. 74, 546 P.2d 228 (1976).
Fitzpatrick does not deny the extortion. He contends instead that trial errors occurred
which prejudicially affected the verdict. No prejudice took place.
Affirmed.
Batjer, C. J., and Mowbray, Thompson, and Gunderson, JJ., concur.
____________
93 Nev. 23, 23 (1977) Ziglinski v. Farmers Insurance Group
JOAN ZIGLINSKI, Appellant, v. FARMERS
INSURANCE GROUP, Respondent.
No. 9061
January 19, 1977 558 P.2d 1147
Appeal from summary judgment, Second Judicial District Court, Washoe County, Roy L.
Torvinen, Judge.
Insurer brought action seeking declaratory judgment to enforce interspousal liability
exclusion contained in automobile policy issued to motorist who had been sued by his wife
for injuries suffered in automobile accident. The district court declared the exclusion to be
valid and granted summary judgment and wife appealed. The Supreme Court held that
decision in Rupert v. Stienne, 90 Nev. 397, 528 P.2d 1013 (1974), abrogating doctrine of
interspousal immunity regarding claims arising out of motor vehicle accidents did not apply
retrospectively to time of accident involved in instant case.
Affirmed.
Stephen C. Mollath, Reno, for Appellant.
Hawkins, Rhodes, Sharp & Barbagelata, Reno, for Respondent.
Courts.
Decision in Rupert v. Stienne, 90 Nev. 397, 528 P.2d 1013 (1974), abrogating doctrine of interspousal
immunity regarding claims arising out of motor vehicle accidents does not apply retrospectively; thus
interspousal liability exclusion in policy did not contravene public policy of state and was not void with
respect to liability arising out of accident occurring prior to the decision.
OPINION
Per Curiam:
On March 17, 1973, Stephen Ziglinski was involved in an automobile accident which
resulted in injuries to his wife Joan, a passenger. In an effort to recover damages Joan sued
Stephen and the driver of the other vehicle.
1

Respondent instituted a separate action seeking declaratory judgment to enforce an
interspousal liability exclusion contained in the automobile insurance policy it had issued to
Stephen Ziglinski.2 The policy was sold to Ziglinski in Oregon, where Joan and Stephen
resided.
____________________

1
By this time, Joan and Stephen had been divorced.
93 Nev. 23, 24 (1977) Ziglinski v. Farmers Insurance Group
Stephen Ziglinski.
2
The policy was sold to Ziglinski in Oregon, where Joan and Stephen
resided.
The district judge, declaring the liability exclusion to be valid, granted summary judgment
absolving respondent of any obligation to pay or indemnify Stephen Ziglinski for any
damages which he may become legally obligated to pay Joan. This appeal follows.
This court, in Rupert v. Stienne, 90 Nev. 397, 528 P.2d 1013 (1974), abrogated the
doctrine of interspousal immunity regarding claims arising out of motor vehicle accidents.
Prior to Rupert, interspousal immunity barred a tort action by one spouse against the other.
Morrissett v. Morrissett, 80 Nev. 566, 397 P.2d 184 (1964). Here, Joan contends Rupert
should apply retrospectively to the time of her accident; thus, the argument goes, the
interspousal liability exclusion in the insurance policy would contravene the public policy of
this state and therefore be void. We disagree.
Because there has been justifiable reliance on earlier decisions upholding interspousal
immunity; and, since prospectivity fosters stability, only prospective effect from the date it
was rendered will be given to Rupert. Accord, Fountain v. Fountain, 200 S.E.2d 513 (Va.
1973); and, Darrow v. Hanover Township, 278 A.2d 200 (N.J. 1971), and cases cited in both
opinions.
Other contentions raised by appellant are without merit and we need not consider them.
Affirmed.
____________________

2
The exclusion provides that the policy does not apply to the liability of [the] insured for bodily injury to (a)
any member of the same household of such insured except a servant, or (b) the named insured.
____________
93 Nev. 24, 24 (1977) Langson v. Nevada Savings & Loan
DON R. LANGSON, Appellant, v. NEVADA SAVINGS AND LOAN
ASSOCIATION, a Corporation, Respondent.
No. 8122
January 31, 1977 559 P.2d 396
Appeal from judgment, Eighth Judicial District Court, Clark County; Michael J. Wendell,
Judge.
Action was brought by savings and loan association on promissory notes. The district court
entered judgment in favor of plaintiff, and defendants appealed.
of plaintiff, and defendants appealed. The Supreme Court, 89 Nev. 531, 516 P.2d 105 (1973),
reversed and remanded. On remand, the district court ruled that individual defendant could
not assert usury as defense to loan transaction, and such defendant appealed. The Supreme
Court held that where individual defendant was neither party to loan transaction nor party's
privy, he was proscribed from asserting usury as a defense.
Affirmed.
[Rehearing denied March 9, 1977]
Raymond E. Sutton and Foley Brothers, Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy, Jemison & Reid, Las Vegas, for Respondent.
1. Usury.
Usury is personal defense and may be asserted only by party to usurious transaction or his privy.
2. Usury.
Where individual defendant was neither party to loan transaction between defendant construction
company and savings and loan association nor a party's privy, individual defendant, who had been
personally substituted for construction company's obligation, was proscribed from asserting usury as
defense in action by savings and loan association for deficiency judgments on promissory notes.
OPINION
Per Curiam:
The factual setting of this appeal is set forth in Langson Constr. Co. v. Nevada Sav. &
Loan, 89 Nev. 531, 516 P.2d 105 (1973), wherein we reversed and remanded for further
consideration on the issue of usury. At the subsequent hearing, the trial court ruled that
appellant could not assert usury as a defense to the loan transaction of March, 1963. Here,
appellant contends that ruling was erroneous. We do not agree.
[Headnotes 1, 2]
Usury is a personal defense and may be asserted only by a party to the usurious transaction
or his privy. See: Palmer v. Stevens-Norton, Inc., 449 P.2d 689 (Wash. 1969); Leno v.
Northwest Credit Corporation, 372 P.2d 765 (Idaho 1962). Here, appellant was neither a party
to the loan transaction of March, 1963, nor a party's privy; therefore, we perceive no error in
the trial court's ruling that Langson was proscribed from asserting usury as a defense.
error in the trial court's ruling that Langson was proscribed from asserting usury as a defense.
Affirmed.
1

____________________

1
Mr. Justice Gunderson voluntarily disqualified himself and took no part in this decision. The Governor,
pursuant to Art. VI, 4 of the Constitution, designated District Judge Stanley A. Smart to sit in his stead.
____________
93 Nev. 26, 26 (1977) American Fence, Inc. v. Wham
AMERICAN FENCE, INC., Appellant, v. HARRY
P. WHAM, et al., Respondents.
Nos. 8484 and 8951
February 3, 1977 559 P.2d 824
Consolidated appeals from orders for restitution of premises in unlawful detainer action;
Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
The appeals were consolidated and the Supreme Court held that where notice to quit and
terminate lease was signed by one of co-owners, colessors, on behalf of all co-owners,
colessors, but record did not affirmatively show that signer was authorized to act for his
colessors, court was without jurisdiction to enter restitution order.
Reversed.
Darrell L. Clark, of Las Vegas, for Appellant.
Edwin J. Dotson, of Las Vegas, for Respondents.
1. Appeal and Error.
Trial court was without jurisdiction to act on supplemental complaint filed after the taking of an appeal
from first order of restitution and could not enter second order of restitution in same unlawful detainer
action.
2. Forcible Entry and Unlawful Detainer.
Proper notice is jurisdictional precondition to action for unlawful detainer.
Where notice to quit and terminate lease was signed by one of co-owners, colessors, on behalf of all
co-owners, colessors, but record did not affirmatively show that signer was authorized to act for his
colessors, court was without jurisdiction to enter order for restitution of premises in
unlawful detainer action.
93 Nev. 26, 27 (1977) American Fence, Inc. v. Wham
act for his colessors, court was without jurisdiction to enter order for restitution of premises in unlawful
detainer action.
OPINION
Per Curiam:
[Headnote 1]
Harry Wham, Antionette Wham and Edwin J. Dotson, co-owners of real property known
as Whamco Divers, 2490 Boulder Highway, leased the same to American Fence, Inc., for
one year commencing February 1, 1975. Notice to quit and terminate lease was received by
lessee September 12, 1975. An unlawful detainer action was commenced October 2, 1975,
and the district court thereafter ordered restitution of the premises to lessors. Effectuation of
that order was stayed pending decision on appeal therefrom in case No. 8484.
1

[Headnote 2]
The validity of the notice to quit and terminate lease is the point in issue. Proper notice is a
jurisdictional precondition to an action for unlawful detainer. Gasser v. Jet Craft Ltd., 87 Nev.
376, 487 P.2d 346 (1971); Aikins v. Andrews, 91 Nev. 746, 542 P.2d 734 (1975).
[Headnote 3]
Here, the notice was signed by one of the co-owners, colessors on behalf of all co-owners,
colessors. The record does not affirmatively show that Edwin J. Dotson, the signatory, was
authorized to act for his colessors. Consequently, there is a defect in proof regarding
jurisdiction, McNally v. Leach, 205 S.W. 82 (Mo.Ct.App. 1918), and the order for restitution
must be set aside.
2

Reversed.
____________________

1
Case No. 8951 is an appeal from a second order of restitution entered in the same unlawful detainer action.
A supplemental complaint was filed after appeal was taken from the first order of restitution, case No. 8484.
The district court entertained the supplemental complaint, and once more ordered restitution. That court was
without jurisdiction to act since the case was on appeal to this court. We, therefore, peremptorily annul the
second order of restitution.

2
Lessee has commenced an action against lessors for specific performance of the option to purchase
contained in the lease. All issues concerning enforceability of that option, counterclaims for damages, etc., will
there be decided, and we express no opinion, although the parties to this appeal alluded to some of the problems.
____________
93 Nev. 28, 28 (1977) Jackson v. State
SYLVANIS JACKSON, Appellant, v. THE
No. 8942
February 3, 1977 559 P.2d 825
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
Defendant was convicted in the district court of rape and first degree kidnapping, and he
appealed. The Supreme Court held that a knife, a shirt and a button had been properly
admitted in evidence; that even if the prosecutor committed error in his closing argument, the
error was harmless in view of overwhelming evidence of defendant's guilt; and that evidence
was sufficient to support the kidnapping conviction.
Affirmed.
Richard D. Weisbart, Las Vegas, for Appellant.
1. Criminal Law.
Items offered in evidence are relevant if they are connected with the perpetrator, the victim or the crime.
2. Criminal Law.
Knife was properly admitted in evidence, in rape prosecution, where victim testified that the knife, which
had been discovered near the scene of the crime, was similar to the knife wielded by her assailant.
3. Criminal Law.
In rape prosecution, a shirt and a button were properly admitted in evidence where, inter alia, the
relevancy of the shirt was established by the victim's description of the shirt her assailant had worn and
where the button, which had been torn from the shirt, was discovered in the room where the rape occurred.
4. Criminal Law.
In view of overwhelming evidence that defendant was guilty of rape and first degree kidnapping, any
error which may have been committed by prosecutor in closing argument was harmless.
5. Kidnapping.
Evidence which included victim's testimony that defendant, who was wielding a knife, seized victim's
child and told victim that she would not see the child again if she failed to return from her friend's
apartment sufficiently supported conviction of first degree kidnapping.
her friend's apartment sufficiently supported conviction of first degree kidnapping.
OPINION
Per Curiam:
After Sylvanis Jackson was convicted, by jury verdict, of rape and first degree kidnapping,
he was sentenced to a term of years in the Nevada State Prison. In this appeal, Jackson
contends: (1) the trial court erred in admitting certain items into evidence; (2) some of the
prosecutor's comments during closing argument were prejudicial; and, (3) there was
insufficient evidence produced at the trial to support the conviction of first degree
kidnapping.
On November 11, 1974, Valerie Joiner was raped in her apartment by a man she later
identified as Sylvanis Jackson. She and her baby were then requested, at knifepoint, to leave
the apartment with Jackson. When Valerie resisted, stating she had to leave her keys with a
friend, Jackson seized the child and told Valerie that she would not see the baby again if she
failed to return. Valerie went to the friend's apartment and remained there; the child,
subsequently released in the parking lot, was retrieved a short time later.
At trial, a knife, a shirt, and a button were admitted into evidence. Jackson challenges the
relevancy of these items, asserting their admission constituted prejudicial error.
[Headnotes 1, 2]
1. Items offered in evidence are relevant if they are connected with the perpetrator, the
victim, or the crime. Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975). Here, the victim
testified that the knife, discovered by a neighbor near the scene of the crime, was similar to
the one wielded by Jackson. This identification is analogous to that made, and held to be
sufficient, in Stalley v. State, 91 Nev. 671 at 676, 541 P.2d 658 at 661 (1975). Therefore, we
perceive no error in the admission of the knife into evidence.
[Headnote 3]
Similarly, the victim's testimony established the relevancy of the shirt, which matched the
description of the one Jackson wore when he committed the rape; and, of the button.
1
Accordingly, these items were also properly admitted.

____________________

1
The button was torn from the shirt while Jackson and the victim struggled, and was discovered later in the
bedroom where the rape occurred.
Accordingly, these items were also properly admitted. Geary, 91 Nev. at 791, 544 P.2d at
422.
[Headnote 4]
2. Jackson's contention that the prosecutor committed prejudicial error in his closing
argument is also rejected. The now challenged comment was not considered sufficiently
prejudicial to invoke an objection at the time it was made. Furthermore, the record discloses
overwhelming evidence of guilt; thus, even if we assume there was error, in the context of
this appeal any error that may have occurred would be harmless. Harris v. State, 90 Nev. 172,
521 P.2d 367 (1974).
[Headnote 5]
3. Jackson also asserts there was insufficient evidence produced at the trial to support his
conviction of first degree kidnapping. The record contains substantial evidence to support the
verdict on this charge; therefore, we reject the contention. Nix v. State, 91 Nev. 613, 541 P.2d
1 (1975). Cf. Eckert v. Sheriff, 92 Nev. 719, 557 P.2d 1150 (1976).
Affirmed.
____________
93 Nev. 30, 30 (1977) Howard v. Sheriff
EDWARD HOWARD, Appellant, v. SHERIFF,
No. 9371
February 3, 1977 559 P.2d 827
Accused filed pretrial petition for writ of habeas corpus seeking to avoid trial on charge of
mayhem. The district court denied relief and accused appealed. The Supreme Court held that
even if statements made by the three-year-old victim were excluded, the remaining portion of
the record was sufficient to establish probable cause that defendant committed mayhem.
Affirmed.
Morgan D. Harris, Public Defender, and Robert D. Larsen, Deputy Public Defender,
93 Nev. 30, 31 (1977) Howard v. Sheriff
1. Criminal Law.
Record was sufficient to establish probable cause that defendant committed mayhem, even if statements
made by three-year-old victim were excluded. NRS 171.206, 200.280.
2. Criminal Law.
Circumstantial evidence will support finding of probable cause to hold accused for trial. NRS 171.206.
OPINION
Per Curiam:
Edward Howard was baby-sitting a three year old child while its mother (Howard's
mistress) worked. The child was severely burned on the scrotum, buttocks, both legs and
feetapparently as a result of being submerged in scalding water. A doctor testified that the
burns required amputation of the distal tips of nine out of ten toes. There were also burns in
the region of his navel and of his scalp. Howard was charged with, and ordered to stand
trial for, mayhem, a felony under Nev. Rev. Stat. 200.280.
Seeking to avoid trial, Howard filed a pretrial petition for a writ of habeas corpus wherein
the thrust of his argument was directed to the admissibilityand the truth and veracityof
statements made by the maimed child. Additionally, he argued that circumstantial evidence is
insufficient to support the charge. The district court considered and rejected the contentions
which are reurged in this appeal.
In our view, Howard has not demonstrated that the district judge committed reversible
error in denying the habeas petition.
[Headnote 1]
1. Even if we exclude the statements made by the child, the remaining portion of the
record is sufficient to meet the probable cause test delineated in Nev. Rev. Stat. 171.206.
See: State v. von Brincken, 86 Nev. 769, 476 P.2d 733 (1970). Cf. Tertrou v. Sheriff, 89 Nev.
166, 509 P.2d 970 (1973).
[Headnote 2]
2. This court has previously, and consistently, upheld convictions based solely on
circumstantial evidence. See, for example, O'Brien v. State, 88 Nev. 488, 500 P.2d 693
(1972), and cases cited therein. A fortiori, such evidence will support a finding of probable
cause to hold an accused for trial.
Affirmed.
____________
93 Nev. 32, 32 (1977) Coffman v. State
MONTE GLENN COFFMAN, Appellant, v. THE
No. 8227
February 3, 1977 559 P.2d 828
Appeal from judgment of conviction, Second Judicial District Court, Washoe County;
James J. Guinan, Judge.
Defendant was convicted in the district court of swindling and he appealed. The Supreme
Court held that evidence was sufficient to sustain the conviction; and that any error in
admitting evidence that defendant had previously walked a slot machine was harmless in
view of the overwhelming evidence of guilt.
Affirmed.
Harry E. Claiborne, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; Larry R. Hicks, District Attorney, and
Kathleen M. Wall, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Reviewing court will not disturb judgment of conviction if supported by substantial evidence.
2. False Pretenses.
Evidence that defendant was playing a slot machine, that he would pull the handle about two thirds of the
way down, then up, and then down, that such action can damage the mechanism which prevents a player
from having control over the machine's reel, that the machine in question had a sheared pin which
permitted a player to cheat the machine by walking the reels to line up payoffs, and that defendant
walked the machine's reel and lined up three plums on the pay line, whereupon the machine paid off, was
sufficient to sustain defendant's conviction for swindling. NRS 465.070.
3. Criminal Law.
In view of overwhelming evidence of defendant's guilt of swindling, any error in admission of evidence
that defendant had on previous occasions walked the reels of a slot machine was harmless. NRS
465.070.
4. Criminal Law.
Where photograph which was admitted into evidence was not included in the record on appeal,
reviewing court would not consider contention that admission of the photograph was
prejudicial.
included in the record on appeal, reviewing court would not consider contention that admission of the
photograph was prejudicial.
OPINION
Per Curiam:
Convicted by jury of swindling in violation of NRS 465.070, appellant contends (1) his
conduct did not violate the statute, (2) the trial court erred by admitting evidence of a prior
offense, and (3) the trial court erred by admitting a photograph into evidence.
1
We disagree.
A Harrah's game observer saw appellant playing a $5 token slot machine by inserting the
token, pulling the handle about two-thirds of the way down then up, and then coming down
on the handle with all his weight with both hands. Because such action can damage the
ratchet dog pin, the mechanism which prevents a player from having control over the
machine's reels, the game observer reported this conduct to his supervisor. Harrah's security
personnel detained and questioned appellant at which time he gave a false name and address.
A slot machine mechanic checked the machine and found the ratchet dog pin sheared thereby
permitting a player to cheat the machine by walking the reels to line up pay-offs.
[Headnotes 1, 2]
1. Appellant contends his conduct does not fall within the purview of NRS 465.070
because the evidence "wholly" failed to establish that he won any money.
____________________

1
NRS 465.070 provides:
1. Every person who, by color, or aid of any trick of sleight-of-hand performance, or by any fraud or
fraudulent scheme, cards, dice or device, shall win for himself or for another any money or property, or
representative of either, shall be punished by imprisonment in the state prison for not less than 1 year nor more
than 10 years, or by a fine of not more than $5,000, or by both fine and imprisonment.
2. Every person who shall entice or induce another, upon any pretense, to go to any place where any
gambling game, scheme or device, or any trick, sleight-of-hand performance, fraud or fraudulent scheme, cards,
dice or device is being conducted or operated; or while in such place shall entice or induce another to bet, wager
or hazard any money or property, or representative of either, upon any such game, scheme, device, trick,
sleight-of-hand performance, fraud or fraudulent scheme, cards, dice or device, or to execute any obligation for
the payment of money, or delivery of property, or to lose, advance, or loan any money or property, or
representative of either, shall be punished by imprisonment in the state prison for not less than 1 year nor more
than 10 years, or by a fine of not more than $5,000, or by both fine and imprisonment.
purview of NRS 465.070 because the evidence wholly failed to establish that he won any
money. As appellant acknowledges, we will not disturb a judgment of conviction if supported
by substantial evidence. Mitchell v. State, 92 Nev. 458, 552 P.2d 1378 (1976); Crawford v.
State, 92 Nev. 456, 552 P.2d 1378 (1976). Here, the state's principal witness testified he
observed appellant walk the machine's reels and line up three plums on the pay line
whereupon the machine paid off. This clearly brings appellant within the ambit of NRS
465.070.
[Headnote 3]
2. To rebut appellant's testimony that he had never walked a slot machine, two
witnesses were permitted to testify they had observed appellant walking the reels of a
machine on a previous occasion. The trial court allowed the testimony to show . . . proof of
notice, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or
accident pursuant to NRS 48.045(2).
2
Even assuming the trial court erred in admitting the
testimony, we find no reversible error because the evidence of appellant's guilt is
overwhelming. Hendee v. State, 92 Nev. 669, 557 P.2d 275 (1976); Jacobs v. State, 91 Nev.
155, 532 P.2d 1034 (1975).
[Headnote 4]
3. Finally, appellant contends he was somehow prejudiced by the admission of his wife's
photograph into evidence. However, the photograph is not included in the record, and thus,
we will not consider appellant's contention. Powers v. Johnson, 92 Nev. 609, 555 P.2d 1235
(1976).
____________________

2
NRS 48.045(2) provides:
2. Evidence or other crimes, wrongs or acts is not admissible to prove the character of a person in order to
show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
____________
93 Nev. 35, 35 (1977) M & R Inv. Co. v. Nevada Gaming Comm'n
M & R INVESTMENT COMPANY, dba DUNES HOTEL, Appellant, v.
NEVADA GAMING COMMISSION, Respondent.
No. 8767
February 3, 1977 559 P.2d 829
Appeal from findings of fact and judgment. Eighth Judicial District Court, Clark County;
Carl J. Christensen, Judge.
From an order of the district court affirming decision of Gaming Commission, appeal was
taken. The Supreme Court held that there was evidence to support Commission's decision.
Affirmed.
Jones, Jones, Bell, LeBaron, Close & Brown, and Joseph W. Brown, of Las Vegas, for
Appellant.
Robert List, Attorney General, and A. J. Hicks, Deputy Attorney General, of Carson City,
for Respondent.
1. Gaming.
Function of Supreme Court and district court, in reviewing decision of Gaming Commission, is to review
the evidence presented to the Commission and to determine if there is any evidence to support
Commission's decision. NRS 463.315, 463.315, subd. 11(d).
2. Gaming.
Gaming Commission's decision was supported by the evidence. NRS 463.315, 463.315, subd. 11(d).
OPINION
Per Curiam:
In this appeal from a district court order, which affirmed a decision of the Nevada Gaming
Commission, appellant's only cognizable argument is that we must reverse because the
Commission's decision was not supported by substantial evidence.
Apparently, in referring to and relying upon Nevada Tax Commission v. Hicks, 73 Nev.
115, 310 P.2d 852 (1957), appellant neglected to note that since Hicks, supra, NRS 463.315
has been supplemented by Subsection 11(d) which provides that the decision of the
Commission must be upheld if supported by any evidence.
[Headnotes 1, 2]
In reviewing the decision of the Gaming Commission this court is limited to the same
scope of review as the district court.
93 Nev. 35, 36 (1977) M & R Inv. Co. v. Nevada Gaming Comm'n
court is limited to the same scope of review as the district court. NRS 463.315. Our function
and that of the district court is to review the evidence presented to the Commission and to
determine if there is any evidence to support the decision of the Commission. We have
reviewed the evidence and do determine that there is evidence to support the decision.
Affirmed.
____________
93 Nev. 36, 36 (1977) State of Nevada v. Rosenthal
STATE OF NEVADA and STATE OF NEVADA GAMING COMMISSION,
Appellants, v. FRANK ROSENTHAL, Respondent.
No. 9301
February 3, 1977 559 P.2d 830
Appeal from judgment; Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Applicant sought gaming license and the State Gaming Commission found applicant was a
person whose licensing would reflect or tend to reflect discredit upon State and denied
application, and applicant sought review. The district court declared certain licensing
provisions of Gaming Control Act unconstitutional for want of standards and nullified
decision of Commission that refused application, and State and State Gaming Commission
appealed. The Supreme Court, Thompson, J., held that gaming is matter of privilege rather
than matter of right; that standards were sufficient; that applicant was not denied due process
in licensing proceedings; but that statutes and regulations which could be construed to
automatically revoke applicant's valid work permit issued for his employment at hotel-casino
upon refusal of application for gaming license were unconstitutional; and that applicant could
continue to enjoy work permit as gaming employee.
Reversed and decision of Gaming Commission reinstated.
Robert List, Attorney General, and A. J. Hicks and Marcus H. Sloan, III, Deputy Attorneys
General, for Appellants.
Oscar B. Goodman, of Las Vegas, and Erwin N. Griswold and Linda K. Smith, of
Washington, D.C., for Respondent.
Amicus Curiae: Frank W. Daykin, Legislative Counsel; Beckley, Singleton, DeLanoy,
Jemison and Reid, for Scott Corporation; Vargas, Bartlett and Dixon, for First National
Bank; and McDonald, Carano, Wilson, Bergin and Bible, for M.G.M.
1. Gaming.
Gaming is a matter of privilege conferred by State rather than a matter of right. NRS 463.130, subd. 2.
2. Gaming.
Licensing and control of gaming requires special knowledge and experience. NRS 463.010 et seq.
3. Gaming.
Members of the State Gaming Control Board and Gaming Commission must have special qualifications
suited to important duties with which they are charged. NRS 463.023, 463.040.
4. Gaming.
Powers of members of the State Gaming Control Board and Gaming Commission are comprehensive.
NRS 463.130-463.144.
5. Gaming.
Judicial review of decisions of the State Gaming Control Board and Gaming Commission is limited and
is confined to final decision or order of the Commission and then only in specified instances. NRS
463.010 et seq.
6. Constitutional Law.
Courts are charged with duty to decide constitutional questions.
7. Gaming.
Responsibility for gaming licensing is vested exclusively in the State Gaming Commission. NRS
463.220, subd. 6.
8. Gaming.
It is not the province of the courts to decide what shall constitute suitability to engage in gambling in the
State. NRS 463.010 et seq.
9. Gaming.
Gaming statutes provide for judicial review of disciplinary action imposed on persons who have been
licensed and do not provide for judicial review of refusal to license; and this decision is reasonable since
licensees possess property interests which those who have never been licensed do not have. NRS
463.010 et seq.
10. Gaming.
Statutory standards for issuance of gaming licenses are sufficient and constitutional as reasonable
action by the State Gaming Commission is required in light of public interest involved. NRS 463.140,
463.220.
11. Gaming.
Even assuming that standards announced in gaming statutes were inadequate legislative expressions for
control of licensing in privileged industry, administrative regulations setting forth qualifications for
licensing applicants would serve to cure the defect. NRS 463.140, 463.220.
12. Administrative Law and Procedure.
Gaps in standards provided by state statute for issuance of a license may be filled in administratively.
13. Gaming.
Court lacked jurisdiction to rule that applicant for gaming license was denied procedural due process at
hearing before the State Gaming Board and Commission wherein Commission denied application. NRS
463.010 et seq.
Where proceedings were not criminal but merely administrative proceedings wherein applicant for
gaming license had burden of proving his qualifications to receive a license, applicant's due process rights
were not violated because he had not been notified of charges against him which precluded his receipt of
license. NRS 463.170.
15. Gaming.
On application for gaming license, applicant was not denied his right to cross-examine due to State
Gaming Control Board's and Gaming Commission's consideration of certain hearsay evidence consisting
of Senate subcommittee transcript which was taken under oath, judicial papers from North Carolina and
investigative reports by the North Carolina State Bureau of Investigation. NRS 463.312, subd. 13(f).
16. Gaming.
Hearings on application for gaming license need not technically comport with strict rules of evidence and
hearsay can be accepted and considered by the agencies. NRS 463.312, subd. 13(f).
17. Gaming.
Gaming is a privilege conferred by State and does not carry with it rights inherent in useful trades and
occupations. NRS 463.010 et seq.
18. States.
Gaming is a matter reserved to the states within the meaning of the Tenth Amendment to the United
States Constitution and, thus, is a distinctively state problem to be governed, controlled and regulated by
state legislature and, to extent legislature decrees, by the Nevada Constitution. NRS 463.010 et seq.;
U.S.C.A.Const. Amend. 10.
19. Statutes.
Court's obligation is to construe statutory provisions in such manner as to render them compatible with
each other.
20. Statutes.
Statute providing that decision of the State Gaming Commission may violate constitutional provisions,
when construed with statute providing that any license is a revocable privilege without vested rights, would
be interpreted to mean that proceedings of Commission must comply with procedural due process. NRS
463.130, subd. 2, 463.315, subd. 11(a).
License which is declared to be revocable privilege may not be revoked without procedural due process
first being afforded licensee.
Regulation which could be construed to require automatic revocation of employee's valid work permit
upon denial of his application for gaming license was inconsistent with statutes
providing for administrative and judicial review of revocation of work permit and
would fail for lack of due process.
application for gaming license was inconsistent with statutes providing for administrative and judicial
review of revocation of work permit and would fail for lack of due process. NRS 463.337, subd. 4,
463.595.
23. Gaming.
Portion of statute which could be read to require automatic revocation of work permit held by one found
unsuitable to be licensed by reason of oft repeated phrase in statute or any other involvement with, the
gaming activities of a corporate licensee, did not square with statutes providing for administrative and
judicial review of revocation of work permit and, thus, could not stand. NRS 463.595.
24. Gaming.
Fact that employee of corporation which owned three major hotel-casinos was denied application for
gaming license would not automatically invalidate his work permit. NRS 463.010 et seq., 463.335,
463.595.
OPINION
This matter comes to us on direct appeal from a judgment of the Eighth Judicial District
Court. That judgment declared certain licensing provisions of the Nevada Gaming Control
Act unconstitutional for want of standards. It also found that the hearings before the Gaming
Control Board and the Gaming Commission on Frank Rosenthal's application for a gaming
license were conducted in such fashion as to violate federal constitutional proscriptions.
Finally, the district court nullified the decision of the Gaming Commission that Frank
Rosenthal is a person whose licensing would reflect or tend to reflect discredit upon the State
of Nevada. For reasons hereafter stated we reverse that judgment in all respects and reinstate
the decision of the Gaming Commission.
On January 23 and 24, 1975, the Gaming Commission held an investigative hearing to
determine whether Frank Rosenthal was a key employee exercising significant influence over
decisions of Argent Corporation, a holding company, which then owned three major
hotel-casinos in Clark County. Rosenthal was executive consultant to the Chairman of the
Board of Argent Corporation. It is clear that he significantly influenced policy decisions
concerning the conduct of gaming in the three hotel-casinos. Consequently, the Commission
directed him to submit an application for a gaming license as a key employee. The application
submitted by him described his duties to consult with and to recommend to the Chairman; to
advise, to administrate, delegate and supervise Corporate standards, procedures and
policies."
administrate, delegate and supervise Corporate standards, procedures and policies.
The application first was considered by the Gaming Control Board at a hearing on January
14, 1976. The members of that Board voted unanimously to recommend to the Nevada
Gaming Commission denial of the application.
On January 22, 1976, the Gaming Commission heard the matter and voted unanimously to
deny the application for license. The Commission found: The applicant is a person whose
licensing by the State would reflect or tend to reflect discredit upon the State of Nevada by
reason of: A) A North Carolina court finding of guilt for conspiracy to bribe an amateur
athlete; B) Testimony of Mickey Bruce in Senate subcommittee hearings that applicant
attempted to bribe him to throw outcome of 1960 Oregon-Michigan football game; C)
Statements by police officers Dardis and Clode to Senate subcommittee and to Florida Racing
Commission that applicant admitted he was corrupting public officials in return for
protection; D) The applicant's being barred from race tracks and pari-mutuel operations in the
State of Florida.
On February 17, 1976, Rosenthal filed a petition for judicial review of the decision of the
Commission. He premised his petition upon NRS 463.315, alleging that the decision of the
Commission violated constitutional provisions, was in excess of its jurisdiction, made upon
unlawful procedures, was unsupported by any evidence, and was arbitrary and capricious and
otherwise not in accordance with law. The petition did not assert that the licensing provisions
of the Gaming Control Act were unconstitutional for want of standards. The district court, sua
sponte, declared NRS 463.140 and 463.220 unconstitutional, and nullified the decision of the
Gaming Commission.
[Headnote 1]
1. It is established beyond question that gaming is a matter of privilege conferred by the
State rather than a matter of right. The legislature has so declared. Any license issued
pursuant to this chapter shall be deemed to be a revocable privilege and no holder thereof
shall be deemed to have acquired any vested rights therein or thereunder. NRS 463.130(2).
In 1931 this court wrote: We think the distinction drawn between a business of the latter
character (liquor) and useful trades, occupations, or businesses, is substantial and necessary
for the proper exercise of the police power of the state. Gaming as a calling or business is in
the same class as the selling of intoxicating liquors in respect to deleterious tendency. The
state may regulate or suppress it without interfering with any of those inherent rights of
citizenship which it is the object of government to protect and secure."
suppress it without interfering with any of those inherent rights of citizenship which it is the
object of government to protect and secure. State Ex Rel. Grimes v. Board, 53 Nev. 364,
372, 373, 1 P.2d 570 (1931). Accord: Dunn v. Tax Commission, 67 Nev. 173, 187, 216 P.2d
985 (1950).
[Headnote 2]
The licensing and control of gaming requires special knowledge and experience. Nev. Tax
Com. v. Hicks, 73 Nev. 115, 119, 310 P.2d 852 (1957); Dunn v. Tax Commission, supra. In
Hicks, this court observed the risks to which the public is subjected by the legalizing of this
otherwise unlawful activity are met solely by the manner in which licensing and control are
carried out. The administrative responsibility is great. Id. at 120.
[Headnotes 3-5]
The legislature has been sensitive to these basic concepts. Members of the Gaming Control
Board and Gaming Commission must have special qualifications suited to the important
duties with which they are charged. NRS 463.023; 463.040. Their powers are comprehensive.
NRS 463.130-144. Court intrusion is limited. As we noted in Gaming Control Bd. v. Dist.
Ct., 82 Nev. 38, 409 P.2d 974 (1966): Any effort to obstruct the orderly administrative
process provided by the Gaming Control Act casts serious doubt upon the ability of Nevada
to control the privileged enterprise of gaming. Control does not exist if regulatory procedures
are not allowed to operate. Courts owe fidelity to the legislative purpose. . . . Id. at 40.
Indeed, judicial review is confined to a final decision or order of the Commission and then
only in specified instances.
With these basic principles in mind we turn to consider the issues of this appeal.
[Headnote 6]
2. In the district court the State and the Gaming Commission moved to dismiss the
petition for review for want of jurisdiction. We particularly note that the petition did not
challenge the constitutionality of the licensing statutes. Had such challenge been made, a
court would have to resolve it. Jurisdiction to decide that issue would exist since the courts
are charged with the duty to decide such a question.
[Headnotes 7, 8]
The petition for review was presented pursuant to NRS 463.315. That statute provides that
Any person aggrieved by a final decision or order of the commission made after hearing
or rehearing by the commission pursuant to NRS 463.312 . . . may obtain a judicial review
thereof in the district court. . . ."
final decision or order of the commission made after hearing or rehearing by the commission
pursuant to NRS 463.312 . . . may obtain a judicial review thereof in the district court. . . .
An examination of NRS 463.312 reveals its application only to disciplinary or other action
against a licensee. It does not contemplate court review of the denial of a gaming license
application. The sole responsibility for licensing is vested exclusively in the commission.
NRS 463.220(6) so provides. The Commission shall have full and absolute power and
authority to deny any application (for a license) for any cause deemed reasonable by such
Commission.
. . . In Nev. Tax Com. v. Hicks, 73 Nev. 115, 121, 310 P.2d 852 (1957), the court wrote: It
is not the province of the courts to decide what shall constitute suitability to engage in
gambling in this state. In this regard the law has not changed since Hicks.
[Headnote 9]
The legislature carefully has distinguished between persons who have been licensed and
those who never have been licensed. In the former case judicial review of disciplinary action
is provided; in the latter instance, it is not. This is a reasonable distinction since licensees
possess property interests which those who have never been licensed do not have. The district
court should have granted the motion to dismiss filed by the State and the Commission.
Instead, that court declared the licensing provisions of the Gaming Control Act
unconstitutional for want of standards, notwithstanding the absence of an allegation in the
petition placing that question in issue. We proceed, therefore, to resolve that question.
3. The sections declared unconstitutional are NRS 463.140 and 463.220. In discussing this
issue we do not decide whether licensing standards for the privileged enterprise of gaming
must be expressed legislatively.
1
However, the legislature has expressed standards which
have been implemented administratively. When one considers the interrelationship of the
statutory standards, United States v. Polizzi, 500 F.2d 856 (9th Cir. 1974), and the regulations
adopted administratively, any contention that there is an absence of appropriate standards
must fail.
[Headnote 10]
The basic standard is stated in NRS 463.130. Gaming shall be licensed and controlled "so
as to protect the public health, safety, morals, good order and general welfare of the
inhabitants of the State of Nevada, and to preserve the competitive economy and the
policies of free competition of the State of Nevada."
____________________

1
State ex rel. Grimes v. Board, 53 Nev. 364, 1 P.2d 570 (1931), may be read to mean that uniform rules and
standards are not essential to state control of gaming since it is a privileged enterprise subject to total state
regulation and suppression.
be licensed and controlled so as to protect the public health, safety, morals, good order and
general welfare of the inhabitants of the State of Nevada, and to preserve the competitive
economy and the policies of free competition of the State of Nevada. The statutes which
were ruled unconstitutional by the court below simply state that gaming licenses shall be
administered for the protection of the public and in the public interest in accordance with the
policy of this state, NRS 463.140, and that the Gaming Commission has full power to deny
any application for any cause deemed reasonable, NRS 463.220.
[Headnotes 11, 12]
Administrative regulations have been adopted by the Commission pursuant to legislative
authorization. NRS 463.150(1). Relevant to this case is Regulation 3.090. There, it is stated:
1. No license, registration, finding of suitability, or approval shall be granted unless and until
the applicant has satisfied the Commission that the applicant: a) Is a person of good character,
honesty, and integrity; b) Is a person whose background, reputation and associations will not
result in adverse publicity for the State of Nevada and its gaming industry; and c) Has
adequate business competence and experience for the role or position for which application is
made. If we were to assume that the standards announced in NRS 463.140 and 463.220 are
inadequate legislative expressions for the control of licensing in a privileged industry, the
implementing regulation would serve to cure the defect since the gaps may be filled in
administratively. Dunn v. Tax Commission, 67 Nev. 173, 216 P.2d 985 (1950).
Persons of ordinary intelligence surely can understand the intent and purpose of the
standards expressed in the quoted regulation.
We wish, however, explicitly to state that the statutory standards alone are sufficient since
reasonable action by the Commission is required in the light of the public interest involved.
It is entirely appropriate to lodge such wide discretion in the controlling administrative
agency when a privileged enterprise is the subject of the legislative scheme. State ex rel.
Grimes v. Board, 53 Nev. 364, 1 P.2d 570 (1931); Gragson v. Toco, 90 Nev. 131, 520 P.2d
616 (1974). We, therefore, find no basis for the ruling below that NRS 463.140 and NRS
463.220 are unconstitutional.
[Headnote 13]
4. The district court also found that the applicant was denied procedural due process at
the hearings before the Board and Commission.
denied procedural due process at the hearings before the Board and Commission. For reasons
already stated, the court lacked jurisdiction to so rule. Notwithstanding this fact, the record
refutes the court finding. The applicant and his two attorneys were present at each hearing.
The applicant testified at each hearing and was given the opportunity to explain certain past
alleged criminal activities and argue his position. Seventeen witnesses testified on his behalf,
and seven letters attesting his good character and reputation were read into the record.
[Headnotes 14-16]
The district court, by ruling Rosenthal's due process had been violated because he had not
been notified of the charges against him, misconceived the purpose of the hearings. They
were not criminal proceedings in which Rosenthal had charges against him, but merely
administrative proceedings wherein Rosenthal had the burden of proving his qualifications to
receive a license. NRS 463.170. Further, the court mistakenly held that Rosenthal was denied
his right to cross-examine apparently because the Board and Commission considered certain
hearsay evidence consisting of the McClellan subcommittee transcript which was taken
under oath, judicial papers from North Carolina, and investigative reports by the North
Carolina State Bureau of Investigation. However, these hearings need not technically comport
with strict rules of evidence, and hearsay can be accepted and considered by the agencies.
NRS 463.312(13)(f); Citizens Bk. of Nev. v. Robison, 74 Nev. 91, 323 P.2d 705 (1958).
The district court ruling was premised upon the federal constitution. Although due process
was not denied the applicant, it is worthwhile briefly to consider whether federal
constitutional proscriptions are involved at all.
[Headnote 17]
As before noted, gaming is a privilege conferred by the state and does not carry with it the
rights inherent in useful trades and occupations. State ex rel. Grimes v. Board, 53. Nev. 364,
1 P.2d 570 (1931); Dunn v. Tax Commission, 67 Nev. 173, 216 P.2d 985 (1950); NRS
463.130(2).
[Headnote 18]
We view gaming as a matter reserved to the states within the meaning of the Tenth
Amendment to the United States Constitution.
2
Within this context we find no room for
federally protected constitutional rights. This distinctively state problem is to be governed,
controlled and regulated by the state legislature and, to the extent the legislature
decrees, by the Nevada Constitution.
____________________

2
U.S. Const. amend. X: The powers not delegated to the United
to be governed, controlled and regulated by the state legislature and, to the extent the
legislature decrees, by the Nevada Constitution. It is apparent that if we were to recognize
federal protections of this wholly privileged state enterprise, necessary state control would be
substantially diminished and federal intrusion invited.
In this opinion we heretofore have noted the distinction drawn by the legislature between
persons who have been licensed and those who never have been licensed. Judicial review is
provided for disciplinary action against licensees. It is not provided for one who has not been
licensed.
With regard to licensees the legislature, in vague fashion, has recognized that a decision of
the gaming commission may violate constitutional provisions. NRS 463.315(11)(a). We
use the term vague advisedly. The constitutional provisions which the legislature had in
mind are not designated. This, along with the mandate of NRS 463.130(2) that any license is
a revocable privilege without vested rights, makes it difficult to fathom legislative intent.
[Headnotes 19-21]
Our obligation is to construe the mentioned statutory provisions in such manner as to
render them compatible with each other. Bodine v. Stinson, 85 Nev. 657, 461 P.2d 868
(1969). With this principle in mind we interpret NRS 463.315(11)(a) to refer only to the
concept of procedural due process which is embraced within Nev. Const. art. 1, 8, no
person shall be deprived of life, liberty, or property without due process of law. Thus
construed, the two statutes are compatible. The license which is declared to be a revocable
privilege, may not be revoked without procedural due process first being afforded the
licensee.
5. As a gaming employee, Frank Rosenthal was required to hold a valid work permit. NRS
463.335(3). The denial of his application for a gaming license as a key employee may have
caused an automatic revocation of his work permit if NRS 463.595 and Regulation 5.011(6)
are to be literally applied,
3
thus precluding his right to work in a gaming establishment in
any capacity.

____________________
States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.

3
NRS 463.595 1. Each officer, employee, director, partner, principal, trustee or direct or beneficial owner of
any interest in any holding company or intermediary company, who the commission determines is, or is to
become, engaged in the administration or supervision of, or any other involvement with, the gaming activities of
a corporate licensee, must be found suitable therefor and may be required to be licensed by the commission,
prior to such engagement.
If any officer, employee, director, partner, principal, trustee or
thus precluding his right to work in a gaming establishment in any capacity. Revocation of a
work permit is subject to judicial review, NRS 463.337(4), although the denial of his
application to be licensed is not for reasons already stated.
[Headnote 22]
The hearings before the Board and Commission were focused entirely upon the suitability
of Rosenthal to be licensed as a key employee since he did significantly influence policy. His
right to work in a capacity other than that of a key employee was not in issue at all. His
suitability to work as a gaming employee has never been questioned by the gaming authorities
of this state. To this extent, O'Callaghan v. District Court, 89 Nev. 33, 505 P.2d 1215 (1973),
is in point. There, an employee's right to work as a gaming employee was revoked without
prior notice and an opportunity to be heard. We ruled such action improper.
4
It follows that
an automatic revocation of an employee's work permit also must fail for want of fairness.
We, therefore, find Regulation 5.011(6) to be inconsistent with the statutes providing for
administrative and judicial review of the revocation of a work permit. The regulation cannot
stand. Cashman v. Nevada Gaming Comm'n, 91 Nev. 424, 538 P.2d 158 (1975).
[Headnote 23]
A portion of NRS 463.595 likewise may be read to require automatic revocation of a
work permit held by one found unsuitable to be licensed by reason of the oft repeated
phrase in the statute "or any other involvement with the gaming activities of a corporate
licensee."
____________________
direct or beneficial owner required to be found suitable pursuant to subsection 1 fails to apply for a gaming
license within 30 days after being requested so to do by the commission, or is not found suitable by the
commission, or his suitability or license is rescinded after such finding by the commission, the holding company
or intermediary company, or both, shall immediately remove such officer, employee, director, partner, principal,
trustee or owner from any position wherein he is engaged in the administration or supervision of, or any other
involvement with, the gaming activities of a corporate licensee. If the commission suspends the suitability or
license of any such officer, employee, director, partner, principal, trustee or owner, the holding company or
intermediary company, or both, shall, immediately and for the duration of such suspension, suspend such person
from performing any duties wherein he is engaged in administration or supervision of the gaming activities of the
corporate licensee and from any other involvement therewith.
Regulation 5.011(6): Employing in any capacity in or about any licensed establishment (including hotel,
restaurant or bar facilities, as well as the gaming casino) any person who has been denied a state gaming license
on the grounds of unsuitability or who has refused to submit an application for licensing as a key employee when
so requested by the commission, or whose past activities and reputation would tend to bring discredit on the
industry or the State of Nevada.

4
Since the O'Callaghan decision NRS 463.335 was amended to provide for judicial review. See: 1975 Stats.,
p. 686.
automatic revocation of a work permit held by one found unsuitable to be licensed by reason
of the oft repeated phrase in the statute or any other involvement with the gaming activities
of a corporate licensee. An employee with a work permit is involved with the gaming
activities of a corporate licensee. This portion of the statute does not square with the statutes
providing for administrative and judicial review of the revocation of a work permit and
cannot stand.
[Headnote 24]
A reasonable distinction exists between the status of one who seeks to acquire a license,
and the status of one who possesses a work permit as a gaming employee. The former does
not have existing privileges, but is attempting to acquire them. The latter does have an
existing privilege, and is entitled to receive notice and a hearing before his privilege to work
as a gaming employee can be nullified.
Therefore, we conclude that Frank Rosenthal may continue to enjoy a work permit as a
gaming employee. Our conclusion, however, shall not be construed to preclude further action
by the gaming authorities to revoke his work permit should they deem such action advisable.
The judgment of the district court is reversed, and the decision of the Nevada Gaming
Commission is reinstated. We particularly point to the fact that this opinion rests solely upon
the State Gaming Control Act and Nevada case precedent. As we view this case, a federal
question is not present.
____________
93 Nev. 47, 47 (1977) Wolzok v. Sheriff
JOSEPH WOLZOK, Appellant, v. SHERIFF, CLARK
No. 9439
February 3, 1977 559 P.2d 820
Defendant who was ordered to stand trial for possession of controlled substance sought
habeas corpus. The district court denied relief and accused appealed. The Supreme Court held
that evidence was sufficient to create probable cause to believe that accused had been in
possession of a controlled substance.
that evidence was sufficient to create probable cause to believe that accused had been in
possession of a controlled substance.
Affirmed.
Jeffrey D. Sobel, Las Vegas, for Appellant.
Rimantas A. Rukstele, Deputy, Clark County, for Respondent.
Drugs and Narcotics.
Evidence that police officer observed defendant and three others sitting in a baseball park, heating an
object over a small fire, that two members of the group extracted a substance from the object in the fire and
injected it into their arms, that the group then left, taking with them the paraphernalia which they had just
used, and that, pursuant to their subsequent arrest, two hypodermic syringes and a homemade cooker
which contained heroin residue were seized was sufficient to create probable cause to believe that
defendant had been in possession of a controlled substance. NRS 453.161, 453.336.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Joseph Wolzok was ordered to stand trial
for possession of a controlled substance (heroin), a felony under Nev. Rev. Stat. 453.336
and 453.161. Wolzok then filed a pretrial petition for a writ of habeas corpus challenging the
existence of probable cause to support the charged offense.
The district judge considered and denied the habeas petition and, in this appeal, the same
contention is reasserted.
The record establishes that on June 3, 1976, a Las Vegas police officer, with the aid of
binoculars, observed Wolzok and three other individuals sitting in a baseball park, heating an
object over a small fire. Using hypodermic syringes, two members of the group extracted a
substance from the object in the fire and injected it into their arms. The procedure was then
repeated. A short time later the group drove away together, taking with them the
paraphernalia they had just used. They were subsequently stopped and arrested; pursuant to
the arrest, two hypodermic syringes and a homemade cooker were seized. A chemical
analysis showed that the cooker contained heroin residue.
The facts here are similar to those in Sheriff v. Benson, 89 Nev. 160, 509 P.2d 554
{1973), where this court held analogous circumstances sufficient "to establish the
necessary intent to support the order of the magistrate to hold [the defendant] for trial."
Benson, S9 Nev. at 163, 509 P.2d at 556.
Nev. 160, 509 P.2d 554 (1973), where this court held analogous circumstances sufficient to
establish the necessary intent to support the order of the magistrate to hold [the defendant] for
trial. Benson, 89 Nev. at 163, 509 P.2d at 556. Perceiving no error in the district judge's
order denying the habeas petition, we affirm. Nev. Rev. Stat. 453.570. Abbott v. Sheriff, 87
Nev. 397, 487 P.2d 1067 (1971); Sharkey v. State, 85 Nev. 574, 459 P.2d 769 (1969); Doyle
v. State, 82 Nev. 242, 415 P.2d 323 (1966).
____________
93 Nev. 49, 49 (1977) State v. Maes
THE STATE OF NEVADA, Appellant, v. LOUIE
CARREA MAES, Respondent.
No. 8898
February 3, 1977 559 P.2d 1184
Appeal From dismissal of indictment. Eighth Judicial District Court, Clark County;
Thomas J. O'Donnell, Judge.
The State appealed from an order of the district court which quashed and dismissed an
indictment. The Supreme Court held that the fact that a criminal complaint had been filed in
connection with the same alleged offense did not preclude the District Attorney from
thereafter proceeding by indictment; and that the fact that the District Attorney may have
initiated the indictment process only after learning of infirmities in the case which might
prevent a finding of probable cause at a preliminary hearing was not such an abuse of
prosecutorial power as to warrant dismissing the indictment.
Reversed and remanded with direction to reinstate the indictment.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and Frank
J. Cremen, Deputy District Attorney, Clark County, for Appellant.
Morgan D. Harris, Public Defender, and Stephen L. Huffaker, Deputy Public Defender,
Clark County, for Respondent.
1. Criminal Law.
Fact that defendant had been accused of rape by a pending criminal complaint, with respect to which no
preliminary hearing had been held, did not preclude District Attorney from seeking to
indict defendant for the same crime. NRS 173.015 et seq.; Const. art. 1, S
93 Nev. 49, 50 (1977) State v. Maes
had been held, did not preclude District Attorney from seeking to indict defendant for the same crime.
NRS 173.015 et seq.; Const. art. 1, 8.
Indictment which was returned by county grand jury was valid, subject to allegations of prosecutorial
abuse, despite fact that indictment had been returned before preliminary hearing was held on a pending
criminal complaint which charged the same offense. NRS 173.015 et seq.; Const. art. 1, 8.
Fact that District Attorney may have initiated indictment process after learning of various infirmities in
the case which threatened to prevent a finding that probable cause existed to support pending criminal
complaint or after hearing certain representations by defense counsel concerning defense strategy was
neither an abuse of prosecutorial power nor such conscious indifference to or willful neglect of procedural
rules affecting a defendant's rights as to require that indictment be quashed.
OPINION
Per Curiam:
Respondent Louie Carrea Maes was accused of the crime of rape by criminal complaint
dated December 12, 1975. On January 8, 1976, prior to a preliminary hearing scheduled for
January 14, an indictment was returned by the Clark County Grand Jury intended to supplant
the complaint but charging the exact offense described therein. Pursuant to this
superimposition of the indictment, the complaint was dismissed. The defendant, maintaining
that he had a right to the preliminary hearing, appealed the dismissal and later filed a motion
to dismiss the indictment in the District Court.
In previous proceedings before the Justice Court, defense counsel had made specific
mention of various inadequacies which he considered to be sufficiently present in the
prosecution's case to prevent a finding of probable cause at a preliminary hearing. The
institution of the indictment process after these representations was considered by the District
Court judge to be a contemptible procedure on the part of the District Attorney.
Consequently in the oral argument of the State's motion to dismiss the appeal, that motion
was denied and the case was remanded to the Justice Court for the purpose of holding a
preliminary hearing. The indictment was quashed and the action dismissed, all as clarified by
written order filed April 21. The State has appealed asking this court to reinstate the
indictment.
93 Nev. 49, 51 (1977) State v. Maes
[Headnotes 1, 2]
Under Article I, Section 8, of the Nevada Constitution, and NRS 173.015 et seq., the State
may proceed against a defendant either by indictment or information. This court has upheld
the right of the prosecutor to elect to proceed by indictment even though proceedings by
information may be pending. Moore v. Sheriff, 89 Nev. 288, 511 P.2d 1046 (1973); Tertrou
v. Sheriff, 89 Nev. 166, 509 P.2d 970 (1973); Hall v. Sheriff, 86 Nev. 456, 470 P.2d 422
(1970); Tellis v. Sheriff, 85 Nev. 557, 459 P.2d 364 (1969). We have previously ruled that
there is no vested right to a preliminary hearing. Moore v. Sheriff, 89 Nev. at 289, 511 P.2d at
1046-47, citing Cairns v. Sheriff, 89 Nev. 113, 508 P.2d 1015 (1973). In Tertrou the
indictment was allowed to replace the criminal complaint even though a portion of the
preliminary hearing had in fact been conducted. There can be no exclusivity of one process
over the other simply because it was instituted first. We therefore uphold the validity of this
indictment subject only to claims of prosecutorial abuse.
[Headnote 3]
The judge below founded his order quashing the indictment on the contemptible
procedure of the District Attorney in seeking an indictment after purportedly learning for the
first time of various infirmities in the case which may have precluded a finding of probable
cause sufficient to support the criminal complaint. Defense counsel chose to make in open
court and within the hearing of the prosecution certain representations concerning defense
strategy which it is contended prompted the indictment. However, the initiation of the
indictment process with that knowledge cannot be categorized as an abuse of the power
vested in the prosecution. It can neither be categorized as conscious indifference to rules of
procedure affecting a defendant's rights. State v. Austin, 87 Nev. 81, 83, 482 P.2d 284, 285
(1971), or the willful neglect thereof. Maes v. Sheriff, 86 Nev. 317, 468 P.2d 332 (1970); Hill
v. Sheriff, 85 Nev. 234, 452 P.2d 918 (1969). The quashing and dismissal of the indictment
on this ground was therefore improper and the indictment should be reinstated.
Accordingly, this court reverses the order of the trial court and remands this case for the
reinstatement of the indictment.
Reversed and remanded with directions to reinstate the indictment.
____________
93 Nev. 52, 52 (1977) State v. Havas
THE STATE OF NEVADA, Appellant, v.
TYRONE HAVAS, Respondent.
No. 8950
February 3, 1977 559 P.2d 1185
Appeal from order dismissing indictment, Eighth Judicial District Court, Clark County;
Reversed and remanded, with directions.
Rimantas A. Rukstele, Deputy District Attorney, Clark County, for Appellant.
Earl Gripentrog, Las Vegas, for Respondent.
OPINION
Per Curiam:
On the authority of, and for the same reasons stated in, State v. Maes, 93 Nev. 49, 559
P.2d 1184 (1977), we, sua sponte, reverse the order of the district court which dismissed the
indictment against Tyrone Havas. The district court is directed to reinstate the indictment,
forthwith.
____________
93 Nev. 52, 52 (1977) Goldberg v. State of Nevada
DAVID LOUIS GOLDBERG, Appellant, v. STATE OF NEVADA and
STATE OF NEVADA GAMING COMMISSION, Respondent.
No. 8983
February 3, 1977 559 P.2d 821
Appeal from judgment of the Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Permittee appealed from a decision of the Gaming Commission revoking his work permit.
The district court affirmed the Commission's ruling and permittee appealed. The Supreme
Court held that a conviction in the United States District Court for the District of Nevada of
an offense involved or related to gambling warranted revocation of a work permit; that the
statute providing for revocation of the work permit of persons convicted of gambling-related
offenses was not penal in nature and was not subject to the bar on ex post facto laws; and that
where the work permit was issued before the permittee's conviction, a revalidation of the
permit subsequent to the conviction was not a reissuance of the work permit so as to
render the statute inapplicable.
that where the work permit was issued before the permittee's conviction, a revalidation of the
permit subsequent to the conviction was not a reissuance of the work permit so as to render
the statute inapplicable.
Affirmed.
Goodman & Snyder, Las Vegas, for Appellant.
Robert List, Attorney General, and A. J. Hicks and Marcus H. Sloan, Deputy Attorneys
General, Carson City, for Respondent.
1. Gaming.
Conviction in United States District Court for District of Nevada of offense involved or related to
gambling was sufficient to warrant Gaming Commission's revocation of work permit. NRS 463.337,
subd. 2(e).
2. Constitutional Law; Gaming.
Statute providing for revocation of work permit by Gaming Commission upon permittee's being
convicted of gambling-related offense was not penal in nature and not subject to bar on ex post facto laws.
NRS 463.337.
3. Gaming.
Where work permit was issued prior to permittee's conviction of gambling-related offense, his work
permit could be revoked by Gaming Commission on basis of that conviction and revalidation of work
permit subsequent to conviction did not constitute reissuance of work permit, so as to render statute
inapplicable. NRS 463.337.
OPINION
Per Curiam:
The Nevada Gaming Commission, after a hearing, revoked David Louis Goldberg's work
permit. Goldberg had been convicted of a gambling-related offense in the United States
District Court for the District of Nevada.
1
Goldberg appealed the Commission's ruling to
the state district court, claiming that {1) a conviction in a federal court is not a conviction
"in any jurisdiction other than Nevada"; {2) NRS 463.337 is unconstitutional as applied to
Goldberg because in his case it operates as an ex post facto law; and {3) the statute is not
applicable, because Goldberg's conviction was prior, rather than subsequent, to the
issuance of the work permit.

____________________

1
NRS 463.337(2) provides in pertinent part:
2. The commission may revoke a work permit issued by the board or, if issued by a county or city licensing
authority, notify such authority to revoke such permit, if the commission finds after a hearing as provided in
NRS 463.310 and 463.312 that the gaming employee has failed to disclose, misstated or otherwise misled the
board in respect to any fact contained within any application for a work permit or, subsequent to being issued
such work permit:
(a) Committed, attempted or conspired to do any of the acts prohibited by NRS 465.070 to 465.085,
inclusive;
. . .
(e) Been convicted in any jurisdiction other than Nevada of any offense involving or relating to gambling.
Goldberg appealed the Commission's ruling to the state district court, claiming that (1) a
conviction in a federal court is not a conviction in any jurisdiction other than Nevada; (2)
NRS 463.337 is unconstitutional as applied to Goldberg because in his case it operates as an
ex post facto law; and (3) the statute is not applicable, because Goldberg's conviction was
prior, rather than subsequent, to the issuance of the work permit. The district judge rejected
Goldberg's contentions and affirmed the ruling of the Commission. Goldberg has appealed,
asserting the contentions presented below, which we, too, find meritless. We therefore affirm.
[Headnote 1]
1. Jurisdiction in NRS 463.337(2)(e) is used in the legal, not the territorial, sense. A
conviction in the United States District Court for the District of Nevada of any offense
involving or related to gambling, even though such offense was committed within the
boundaries of the State of Nevada, falls squarely within the proscription of NRS
463.337(2)(e).
[Headnote 2]
2. NRS 463.337 is primarily a regulatory statute, not a penal one. The statute is part of a
comprehensive legislative act to regulate gambling within Nevada. Its purpose is to keep the
gaming industry free of those unfit persons who by their conduct have violated laws
pertaining to gaming. That Goldberg's work permit was revoked, as an incident to effecting
this purpose, does not render the statute penal in nature and consequently subject to the ex
post facto doctrine. See De Veau v. Braisted, 363 U.S. 144 (1960).
[Headnote 3]
3. Goldberg's third argument is also without merit. His work permit was issued on
November 10, 1970, and his conviction was not entered until the fall of 1974. Prior to that
conviction, he had voluntarily terminated his employment with the Dunes Hotel and Casino.
On August 4, 1975, seeking to regain that employment, he had his permit revalidated by the
Clark County Sheriff's office. Goldberg now contends that this revalidation constitutes the
issuance of a new permit. Similar contentions were rejected in O'Callaghan v. District Court,
89 Nev. 33, 505 P.2d 1215 (1973). In that case, the employee's work permit had been seized
when he was arrested by federal agents. Four months later he applied to the sheriff's office for
a new work permit, receiving a temporary permit, which was later repossessed when the
Gaming Control Board was notified of its issuance.
of its issuance. This court held that repossession of that temporary permit constituted
revocation of the employee's original work permit and, therefore, that no new work permit
had been issued. The same conclusion is necessary here, a fortiori, where Goldberg's permit
had not even been seized, but was merely stamped by the sheriff's office.
Affirmed.
____________
93 Nev. 55, 55 (1977) Rezin v. State
DANIEL R. REZIN, Appellant, v. THE
No. 8325
February 3, 1977 559 P.2d 822
Appeal from judgment of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Defendant was convicted, on his guilty plea, in the district court of robbery and forcible
rape and he appealed. The Supreme Court held that where defendant's affidavit stated that he
had carnal knowledge of the prosecutrix and defendant's attorney stated that he had explained
elements of charge to defendant and that defendant understood nature of charge against him
and consequences of guilty plea, defendant's assertion that he did not understand that he was
pleading guilty to performing actual act of intercourse, but only that he was pleading guilty as
aider and abettor, was not grounds for finding plea involuntary; and that where prosecutor
represented to defendant that he would seek maximum sentence of life imprisonment for
forcible rape and that if such penalty were in fact obtained, there would be no objection to
concurrent sentences, prosecutor had not agreed to ask for concurrent sentences where life
sentence was not imposed for rape.
Affirmed.
David H. Hamilton, of Reno, for Appellant.
Robert List, Attorney General, Carson City; Larry R. Hicks, District Attorney, and
Kathleen M. Wall, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Where defendant's affidavit stated that he did have carnal knowledge of prosecutrix and
affidavit was witnessed by defendant's attorney who acknowledged that he had
explained elements of charge to defendant and stated that defendant understood
nature of charge against him and consequences of guilty plea, defendant's contention
that he did not understand that he was pleading guilty to performing actual act of
intercourse, but only that he was pleading guilty as aider and abettor, was not
grounds for vacating guilty plea to rape, notwithstanding contention that, because of
plea, defendant was precluded at sentencing from denying that he actually performed
act of rape upon prosecutrix and consequently received stiffer sentence than co-felon
who could make that denial.
93 Nev. 55, 56 (1977) Rezin v. State
knowledge of prosecutrix and affidavit was witnessed by defendant's attorney who acknowledged that he
had explained elements of charge to defendant and stated that defendant understood nature of charge
against him and consequences of guilty plea, defendant's contention that he did not understand that he was
pleading guilty to performing actual act of intercourse, but only that he was pleading guilty as aider and
abettor, was not grounds for vacating guilty plea to rape, notwithstanding contention that, because of plea,
defendant was precluded at sentencing from denying that he actually performed act of rape upon
prosecutrix and consequently received stiffer sentence than co-felon who could make that denial.
2. Criminal Law.
Where prosecutor represented to defendant pleading guilty to robbery and forcible rape that he would
seek maximum life sentence for forcible rape and that, if such penalty were in fact obtained, there would be
no objection to concurrent sentences, prosecutor was not barred from arguing for consecutive sentences
where life sentence was not imposed for rape.
3. Criminal Law.
In absence of express or implied promise concerning sentence to be sought on guilty plea, prosecution is
not foreclosed from arguing for consecutive sentences.
4. Criminal Law.
Failure of subjective expectation on part of defendant to occur subsequent to entry of guilty plea is not
sufficient grounds upon which to rescind it.
OPINION
Per Curiam:
Defendant Daniel R. Rezin pleaded guilty to the crimes of robbery and forcible rape and
was sentenced to 15 and 28 years respectively. He now appeals contending that the plea was
involuntary, first, because he did not understand the nature and consequences of the plea
when it was entered, and second, because the District Attorney allegedly failed to keep to one
of the conditions upon which the defendant based his plea of guilty.
[Headnote 1]
While this court is entirely mindful of those standards governing the entry of guilty pleas
(Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959 (1970); Heffley v. Warden, 89 Nev. 573, 516
P.2d 1403 (1973)), we do not find a transgression sufficient to require the vitiation of the
guilty plea. Appellant now claims that he did not understand that he was pleading guilty to
performing the actual act of intercourse, only that he was pleading guilty as an aider and
abettor, acknowledging that the criminal liability was the same. His only quarrel with the plea
of guilty is that because of it he was precluded at sentencing from denying that he
actually performed the act of rape upon the prosecutrix and consequently received a
stiffer sentence than a co-felon who could make that denial.
93 Nev. 55, 57 (1977) Rezin v. State
is that because of it he was precluded at sentencing from denying that he actually performed
the act of rape upon the prosecutrix and consequently received a stiffer sentence than a
co-felon who could make that denial. The record evinces a sufficient canvassing of the
defendant by not only the judge, but counsel as well. The affidavit of the defendant states that
he did (1) have carnal knowledge. The affidavit was witnessed by defendant's attorney who
acknowledged that he had explained the nature of the charge against him, i.e., the elements
of the charge. He further adds, In my opinion, my client understands the nature of the
charge against him and the consequences of a guilty plea. Accordingly, this claim is without
merit.
[Headnotes 2-4]
Appellant also contends that the prosecution breached the agreement upon which the
defendant based his plea of guilty by initially promising to ask for concurrent sentences for
the two crimes and later arguing for consecutive sentences before the judge. The record does
not support such a promise on the part of the prosecution. The District Attorney represented
to the defendant that it was the maximum sentence for forcible rape, imprisonment for life,
which would be sought. Appellant bases his argument on the representation of the District
Attorney that if such a penalty were in fact obtained, then there would be no objection to
concurrent sentences. In the absence of an express or implied promise concerning the
sentence to be sought, the prosecution is not foreclosed from arguing for consecutive
sentences. The failure of the subjective expectation on the part of the defendant to occur
subsequent to the entry of such a plea is not sufficient grounds upon which to rescind it.
Rouse v. State, 91 Nev. 677, 541 P.2d 643 (1975). Thus, appellant's second claim must also
fail. Accordingly, the judgment of the court below based upon the plea of guilty will not be
disturbed.
Affirmed.
____________
93 Nev. 57, 57 (1977) Mirin v. State
WILLIAM MIRIN, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 8653
February 8, 1977 560 P.2d 145
Goldman, Judge.
93 Nev. 57, 58 (1977) Mirin v. State
Defendant was convicted before the district court of murder in second degree and he
appealed. The Supreme Court held that trial judge did not err in permitting allegedly
intoxicated prosecution witness to testify, in not instructing jury on defense of self-defense
and instructing jury that self-defense was not available to defendant, and in excluding
evidence of victim's character.
Affirmed.
Goodman & Snyder and Oscar B. Goodman, Las Vegas, for Appellant.
Leon Simon and Elliott A. Sattler, Deputy District Attorneys, Clark County, for Respondent.
1. Witnesses.
Intoxication does not necessarily disqualify witness from testifying.
2. Witnesses.
In second-degree murder prosecution, trial judge, who held hearings outside jury's presence concerning
competency of allegedly intoxicated prosecution witness, who concluded that witness was capable of
comprehending questions and responding in lucid manner, which determination was supported by record,
and who gave special cautionary instructions to jury, did not err in allowing witness to testify.
3. Homicide.
Trial judge did not err in not instructing jury on defense of self-defense in second-degree murder
prosecution, where there was no evidence to support such instruction and, in fact, record established that
defendant was pursuer and aggressor; furthermore, in that factual context, it was not error to instruct that
self-defense was not available to defendant.
4. Homicide.
Because defendant could not avail himself of defense of self-defense, trial court did not err in
second-degree murder prosecution by excluding evidence of victim's character.
OPINION
Per Curiam:
After being convicted, by jury verdict, of murder in the second degree, William Mirin was
sentenced to a term of years in the Nevada State Prison. In this appeal his only contentions
that warrant comment are that he was denied a fair trial because the trial judge
erroneously: {1) ruled the testimony of Ray Kinga prosecution witnesswas competent;
{2) refused to instruct on the defense of self-defense and, instead, instructed that such
defense was not available to appellant; and, {3) refused to admit evidence of the victim's
character.
93 Nev. 57, 59 (1977) Mirin v. State
that warrant comment are that he was denied a fair trial because the trial judge erroneously:
(1) ruled the testimony of Ray Kinga prosecution witnesswas competent; (2) refused to
instruct on the defense of self-defense and, instead, instructed that such defense was not
available to appellant; and, (3) refused to admit evidence of the victim's character.
[Headnotes 1, 2]
1. In support of his first assignment of error, Mirin contends that Ray King was
intoxicated at the time he testified; therefore, he concludes that King was an incompetent
witness. Intoxication does not necessarily disqualify a witness from testifying. Cf. Fox v.
State, 87 Nev. 567, 491 P.2d 35 (1971). When the competency of any witness has been
questioned, it is within the discretion of the trial court to consider factors relative to
qualification and to determine if such person is competent to testify. Shuff v. State, 86 Nev.
736, 738, 476 P.2d 22, 24 (1970). Here, the trial judge held hearings outside the jury's
presence concerning King's competency, and concluded that King was capable of
comprehending questions and responding in a lucid manner. The record supports that
determination. Additionally, the judge gave special cautionary instructions to the jury. Under
such circumstances, we perceive no error. Fox, supra.
[Headnote 3]
2. Mirin next argues the trial judge erred by not instructing the jury on the defense of
self-defense. However, [a]n instruction must be given only if there is evidence to support it.
Krueger v. State, 92 Nev. 749, 557 P.2d 717 (1976). In this case there is no such evidence
and, in fact, the record establishes that Mirin was the pursuer and aggressor; thus, the court
properly refused to instruct on self-defense. Williams v. State, 91 Nev. 533, 539 P.2d 461
(1975). In this factual context, it was not error to instruct that self-defense was not available
to appellant. Johnson v. State, 92 Nev. 405, 551 P.2d 241 (1976).
[Headnote 4]
3. Because he could not avail himself of the defense of self-defense, Mirin's contention
that the trial court erred by excluding evidence of the victim's character is misplaced and,
therefore, without merit. Coombs v. State, 91 Nev. 489, 538 P.2d 162 (1975); State v. Helm,
66 Nev. 286, 209 P.2d 187 (1949).
93 Nev. 57, 60 (1977) Mirin v. State
Mirin's subordinate contentions are also without merit; accordingly, they are summarily
rejected.
Affirmed.
1

____________________

1
The Governor, pursuant to Article VI, 4 of the Constitution, designated District Judge William P. Beko to
sit for Mr. Justice Gunderson, who voluntarily disqualified himself and took no part in this decision.
____________
93 Nev. 60, 60 (1977) Rupley v. State
RICHARD E. RUPLEY, Appellant and Cross-Respondent, v. THE
STATE OF NEVADA, Respondent and Cross-Appellant.
No. 8876
February 16, 1977 560 P.2d 146
Appeal and cross-appeal from order granting, in part, and denying, in part, motion to
suppress, Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Defendant was charged with possession and sale of cocaine. The district court entered
order denying, in part, defendant's motion to suppress recorded telephone conversations and
granting such motion in part, and defendant appealed and state cross-appealed. The Supreme
Court held that defendant was not authorized to appeal but state was authorized to
cross-appeal; and that testimony regarding telephone conversations, which were intercepted
without the authorization required by wiretap statutes, would be inadmissible.
Appeal dismissed, cross-appeal dismissed.
David Hamilton, Reno, for Appellant and Cross-Respondent.
Robert List, Attorney General, Carson City; and Larry R. Hicks, District Attorney, Washoe
County, for Respondent and Cross-Appellant.
1. Criminal Law.
Accused, who was charged with possession and sale of cocaine, was not authorized to appeal from
portion of order denying, in part, his motion to suppress recorded telephone conversations, but state was
authorized to cross-appeal from portion of order granting such motion in part. NRS 177.015, subd. 2,
179.510, 453.321, 453.336.
2. Criminal Law.
Testimony regarding telephone conversations, which were intercepted through use of suction cup device
on informant's telephone and which were intercepted without the authorization required by wiretap
statutes, would be inadmissible in prosecution for possession and sale of cocaine, contrary to contention
that such testimony should be admissible because witnesses would be testifying from their personal recall
of their conversations with accused and not from the illegally obtained tapes. NRS 179.410 et seq.,
179.420, 179.430, 179.500, 179.505, 453.321, 453.336.
OPINION*
Per Curiam:
[Headnote 1]
Richard E. Rupley was ordered to stand trial for possession and sale of a controlled
substance (cocaine), felonies under NRS 453.336 and 453.321. The charges were based on
several incriminating telephone conversations which had been tape-recorded. A timely filed
motion to suppress the recorded conversations was granted in part and denied in part. Rupley
here attempts to appeal from the portion of the order which denied, in part, his motion.
Rupley is not authorized to appeal at this time. NRS 177.015(2); NRS 179.510. However, the
state's cross-appeal, from that part of the order which granted Rupley's motion to suppress,
although lacking merit, is permissible at this time. NRS 179.510.
[Headnote 2]
The district judge determined the telephone conversations in question were intercepted
without the authorization required by the wiretap statutes, NRS 179.410 et seq., and they
were, therefore, inadmissible.
1

NRS 179.430, which is patterned on the federal act, defines intercept as the aural
acquisition of the contents of any wire or oral communication through the use of any
electronic, mechanical or other device or of any sending or receiving equipment.
____________________

*
This opinion was filed, as an unpublished order, January 11, 1977. Because of the paucity of published
authority on the issues we have been requested to publish the order, as an opinion.

1
These statutes, patterned on the federal wiretap statutes, 18 U.S.C. 2510 et seq., were adopted by
Nevada in 1973, and require, inter alia, an application to, and order from, a supreme court justice or district
court judge, authorizing the interception of oral or wire communications, prior to the interception.
equipment.
2
Here, a police officer acquired the contents of the wire communications
between Rupley and an informant by attaching a suction-cup device to the receiver of the
informant's telephone.
3
Our statute clearly makes such a device proscribed receiving
equipment, and NRS 179.500 requires that court authorization be obtained prior to its use.
See United States v. Turk, 526 F.2d 654 (5th Cir. 1976), which so holds, even under the
limited language of the federal act.
The state also advances the novel argument that testimony regarding the intercepted
telephone conversations is admissible because the witnesses were testifying from their
personal recall of the conversations with the defendant, and not from the illegally obtained
tapes. NRS 179.505 provides for a motion to suppress the contents of any [illegally]
intercepted wire or oral communications. (Emphasis added.) NRS 179.420 defines contents
as any information concerning the identity of the parties to such communication or the
existence, substance, purport or meaning of that communication. (Emphasis added.)
Perceiving no error in the district judge's ruling, we ORDER the appeal and the
cross-appeal dismissed.
____________________

2
The italicized portion of the statute, which is not included in the federal act, was added by the Nevada
Legislature.

3
Nevada's wiretap statutes, unlike the federal statutes, do not permit interception in situations where one
person, acting under color of law, is a party to the communication or has given prior consent to the interception.
See 18 U.S.C. 2511(2)(c).
____________
93 Nev. 62, 62 (1977) Warden v. Powell
DANNY POWELL, Respondent.
No. 9464
February 16, 1977 559 P.2d 837
Reversed.
Robert List, Attorney General, and Patrick J. Mullen, Deputy Attorney General, Carson
City, for Appellant.
93 Nev. 62, 63 (1977) Warden v. Powell
Horace R. Goff, State Public Defender, and David Mathews, Deputy Public Defender,
OPINION
Per Curiam:
P.2d 1139 (1976), we, sua sponte, reverse the district court's order which granted Danny
Powell's petition for a writ of habeas corpus.
____________
93 Nev. 63, 63 (1977) Armour v. Armour
MOMENT LEA ARMOUR, Appellant, v.
THOMAS D. ARMOUR, Respondent.
No. 8502
February 16, 1977 560 P.2d 148
Appeal from decree of divorce, Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Affirmed.
[Rehearing denied June 9, 1977]
Beckley, Singleton, DeLanoy, Jemison & Reid, Las Vegas, for Appellant.
Peter L. Flangas, Las Vegas, for Respondent.
OPINION
Per Curiam:
After the district court entered judgment dissolving the parties' marriage and distributing
the community property, Moment Lea Armour appealed complaining of her share of the
property distribution.
After reviewing the record, we believe the distribution was equitable and perceive no
abuse of discretion. NRS 125.150; Benavidez v. Benavidez, 92 Nev. 539, 554 P.2d 256
(1976); Jolley v. Jolley, 92 Nev. 298, 549 P.2d 1407 (1976); Todkill v. Todkill, 88 Nev. 231,
495 P.2d 629 (1972).
Affirmed.
____________
93 Nev. 64, 64 (1977) Hardison v. Sheriff
WILLIE HARDISON, Appellant, v. SHERIFF,
No. 9470
February 16, 1977 560 P.2d 148
Accused appealed from an order of the district court denying his petition for writ of habeas
corpus to bar trial on a charge of felonious possession of stolen property. The Supreme Court
held that unsupported allegations of improper methods utilized in selecting grand jurors were
not grounds for quashing the indictment; and that the evidence was sufficient to support the
return of the indictment.
Affirmed.
Morgan D. Harris, Public Defender, and James O. Porter, Deputy Public Defender, Clark
William T. Koot, Deputy District Attorney, Clark County, for Respondent.
Unsupported allegations of improper methods utilized in selecting grand jurors could not serve as basis
for quashing indictment.
Evidence was sufficient to support return of indictment on charge of felonious possession of stolen
property. NRS 205.275.
OPINION
Per Curiam:
Pursuant to a True Bill by the Clark County Grand Jury, an indictment was filed charging
Willie Hardison with the felonious possession of stolen property, in violation of Nev. Rev.
Stat. 205.275.
A pretrial petition for a writ of habeas corpus was denied and in this appeal Hardison
contends the selection and composition of the grand jury violated his constitutional rights.
He also suggests that the prosecutor failed to present sufficient evidence to establish that
Hardison had committed the charged crime.
93 Nev. 64, 65 (1977) Hardison v. Sheriff
[Headnote 1]
1. Hardison levels multiple naked allegations and numerous assertions of improper
methods utilized in selecting the grand jurors; however, none are supported by demonstrated
facts, a requirement for consideration below, and for appellate review. See Alexander v.
Louisiana, 405 U.S. 625 (1972). Cf. Marquez v. State, 91 Nev. 471, 538 P.2d 156 (1975), and
cases cited therein.
[Headnote 2]
2. A mere glance at the transcript of the grand jury proceedings clearly establishes that
Hardison's challenge to the sufficiency of the evidence is patently frivolous. Burks v. State,
92 Nev. 670, 557 P.2d 711 (1976). See Franklin v. State, 89 Nev. 382, 513 P.2d 1252 (1973).
Affirmed.
____________
93 Nev. 65, 65 (1977) Norris v. Norris
JOAN NORRIS, Appellant, v. JOSEPH
P. NORRIS, Respondent.
No. 8967
February 16, 1977 560 P.2d 149
Appeal from order denying motion requesting modification of and compelling compliance
with divorce decree, Second Judicial District Court, Washoe County; John W. Barrett, Judge.
Divorced wife moved for order requiring, inter alia, that divorced husband continue
support payments or provide funds for college education of son, and sought award of
attorney's fees and costs. The district court ruled that son was not entitled to continued
support payments and that court was without jurisdiction to provide relief sought, and denied
request for attorney's fees. Plaintiff appealed. The Supreme Court, Thompson, J., held that
court's power to order child support was limited to minority of child, that statute changing age
of majority to 18 years did not affect son's vested rights, and that court did not err in declining
to award attorney's fees.
Affirmed.
Richard W. Young, Reno, for Appellant.
Raggio, Walker & Wooster, Reno, for Respondent.
1. Divorce.
Where husband's obligation to support son derived solely from divorce decree provision ordering him to
pay support until son reached age of majority or was otherwise emancipated, and where husband and wife
did not enter into agreement fixing support obligation, such obligation derived solely from divorce decree
itself, and thus court's power to order child support was limited to the minority of the child. NRS
125.140, subd. 2.
2. Divorce.
Child's right to decreed support does not vest until time for each payment has accrued, and thus payments
which have not accrued are subject to modification by court or to termination by subsequent legislative
enactment. NRS 125.140, subd. 2, 129.010.
Statute which changed age of majority to 18 years effective July 1, 1973, and which was applied by trial
court in determining that father, who had been ordered in divorce decree to pay support for son until he
reached the age of majority or was otherwise emancipated, was not required to pay support after son
reached his 18th birthday in 1975, did not affect son's vested rights. NRS 125.140, subd. 2, 129.010.
4. Divorce.
District court did not err in declining to award attorney's fee to divorced wife who unsuccessfully sought
order requiring divorced husband to continue support payments or provide sufficient funds for college
education of son. NRS 125.140, subd. 2.
OPINION
When Joseph and Joan Norris were divorced in 1972, the district court ordered Joseph to
pay $200 per month for the support, education, and maintenance of each of the parties' two
children until said children respectively reach the age of majority or are otherwise
emancipated. At that time, Nev. Rev. Stat. 129.010 declared twenty-one to be the age of
majority for males. The legislature amended the statute in 1973, reducing to eighteen the age
of majority for all persons.
1

In 1975, when the Norris' son turned eighteen, Joseph stopped making support payments
for that child. Joan then moved for an order requiring, among other things, that Joseph
continue the support payments or provide sufficient funds for the college education of the
son. She also sought an award of attorney's fees and costs.
____________________

1
The statute provides: All persons of the age of 18 years who are under no legal disability, shall be capable
of entering into any contract, and shall be, to all intents and purposes, held and considered to be of lawful age.
attorney's fees and costs. The district judge, in ruling that the son was not entitled to
continued support payments since he had attained the reduced age of majority, determined
that, pursuant to Nev. Rev. Stat. 125.140(2), he was without jurisdiction to provide the
relief sought.
2
He also denied Joan's request for attorney's fees. This appeal followed.
It is contended that the decision of this court in Bingham v. Bingham, 91 Nev. 539, 539
P.2d 118 (1975), compelled the district court to rule for Joan. Additionally, she argues that
the district court decision resulted in an impermissible retrospective application of the
reduced age of majority statute. We reject each contention and affirm the district court.
1. In Bingham we held that the intervening amendment reducing to 18 the age of
majority from 21 did not affect the father's obligation to pay child support until age 21 or
until the child was emancipated. However, in that case the father's obligation initially was
fixed by agreement which thereafter was merged in the decree. Because of the agreement we
concluded that the parties intended the father's obligation to continue during his son's
minority which, at that time, terminated at age 21. We so concluded notwithstanding merger
of the agreement into the decree.
[Headnote 1]
The case before us differs from Bingham in a material respect. Here, the parties did not
enter into an agreement fixing the father's obligation to support. That obligation derives solely
from the decree itself. The intention of the parties is not disclosed since an agreement was not
made. The court's power to order child support is limited to the minority of the child. Nev.
Rev. Stat. 125.140(2); Cavell v. Cavell, 90 Nev. 334, 526 P.2d 330 (1974).
[Headnote 2]
A child's right to decreed support does not vest until the time for each payment has
accrued. As we noted in Day v. Day, 82 Nev. 317, 417 P.2d 914 (1966), accrued payments
for child support become vested rights, and are not thereafter subject to modification. It
follows that payments which have not accrued are subject to modification by the court, or
indeed, to termination by subsequent legislative enactment.
____________________

2
Nev. Rev. Stat. 125.140(2) provides in part: 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. . . .
not accrued are subject to modification by the court, or indeed, to termination by subsequent
legislative enactment.
[Headnote 3]
2. The statute changing the age of majority to 18 years became effective July 1, 1973. The
trial court's application of the amended statute to this case was prospective since the son did
not reach his eighteenth birthday until 1975. It is evident that the statutory change did not
affect vested rights.
[Headnote 4]
3. The district court did not err in declining to award Joan an attorney's fee. Fletcher v.
Fletcher, 89 Nev. 540, 516 P.2d 103 (1973).
Affirmed.
____________
93 Nev. 68, 68 (1977) Moll v. Nevada Young Am. Homes, Inc.
FREDERIC H. MOLL, Appellant, v. NEVADA YOUNG AMERICAN
HOMES, INC., a Nevada Corporation,Respondent.
No. 8530
February 16, 1977 560 P.2d 152
Appeal from judgment, Eighth Judicial District, Clark County; J. Charles Thompson,
Judge.
Action was brought to recover compensation for architectural services provided a
corporation. The district court ground that $8,750 was due the architect, but reduced that
amount by $6,000 owed by the architect to the corporation. Architect appealed. The Supreme
Court held that where the trial court improperly denied the corporation's motion to amend its
complaint to assert a compulsory counterclaim and the record supported the trial court's
conclusion that the corporation was entitled to the $6,000 setoff, the judgment would not be
disturbed, even though a counterclaim was not before the judge and evidence in support of
the corporation's claim should thus not have been received.
Affirmed.
Johns & Johns and Larry C. Johns, Las Vegas, for Appellant.
James L. Buchanan, II, Las Vegas, for Respondent.
1. Pleading.
Defendant's motion to amend answer should have been granted where counterclaim sought to be
interposed was compulsory in nature, in that justice contemplates that claims and counterclaims arising out
of same transaction shall be litigated in one action. DCR 20(4), 27.
Where evidence was received on defendant's claim against plaintiff despite fact that counterclaim had
been improperly denied and was not before judge, and record supported trial court's finding that defendant
was entitled to setoff against judgment for plaintiff, judgment granting defendant setoff would not be
disturbed on appeal, even though evidence in support of defendant's claim should not have been received.
DCR 20(4), 27.
OPINION
Per Curiam:
[Headnote 1]
Plaintiff-appellant sought to recover compensation for architectural services provided
defendant-respondent. Before trial the respondent twice unsuccessfully moved to amend its
answer and file a compulsory counterclaim. The initial motion to amend should have been
granted since the counterclaim sought to be interposed was compulsory in nature, and justice
contemplates that claims and counterclaims arising out of the same transaction shall be
litigated in one action. Cf. Nevada Bank of Commerce v. Edgewater, Inc., 84 Nev. 651, 446
P.2d 990 (1968). For some reason, unclear on this record, the motion was denied. When the
motion was again presented, this time before a different judge, it was once more denied,
presumably because of DCR 27 and DCR 20(4) quoted below.
1

Subsequently, trial of the action occurred before a third judge who, over objection,
received evidence supporting respondent's compulsory counterclaim which it had not been
allowed to file.
____________________

1
DCR 27 provides:
When an application or petition for any writ or order shall have been made to a district judge and is pending
or has been denied by such judge, the same application or motion shall not again be made to the same or another
district judge, except upon the consent in writing of the judge to whom the application or motion was first
made.
DCR 20(4) provides:
No motion once heard and disposed of shall be renewed in the same cause, nor shall the same matters
therein embraced be reheard, unless by leave of the court granted upon motion therefor, after notice of such
motion to the adverse parties.
allowed to file. At the conclusion of trial the judge found that $8,750 was due
plaintiff-appellant, but reduced that amount by $6,000 because of the proof offered by
defendant-respondent.
[Headnote 2]
This appeal complains of the $6,000 reduction since a counterclaim was not before the
judge and evidence in support should not have been received. The contention is not without
merit. However, the evidence was received, and the court determination that $2,750 is due
and owing appellant rather than $8,750 is amply supported. In these peculiar circumstances
we choose not to disturb the judgment. To do otherwise would deprive the respondent of
$6,000 which the record establishes is rightfully his, or, perhaps foster further repetitive and
time-consuming litigation.
Affirmed.
____________
93 Nev. 70, 70 (1977) McKinney v. Sheriff
WILLIAM McKINNEY, Appellant, v. SHERIFF,
No. 9448
February 16, 1977 560 P.2d 151
The Supreme Court held that there was sufficient evidence presented to grand jury to
support indictment for murder, and fact that petitioner's cohorts may have deviated from
agreed-upon scheme by committing homicide in direct contravention to petitioner's orders did
not absolve petitioner of liability.
Affirmed.
Ronald L. Warren, Las Vegas, for Appellant.
Lawrence R. Leavitt, Deputy District Attorney, Clark County, for Respondent.
1. Habeas Corpus.
Claims made by petitioner, namely, that grand jury was not properly instructed on the law and that
prosecutorial misconduct occurred during the elicitation of testimony before the grand jury, were
summarily rejected by the Supreme Court on appeal from denial of pretrial petition for writ of
habeas corpus where petitioner totally failed to either document his claims or cite
authority in support thereof.
denial of pretrial petition for writ of habeas corpus where petitioner totally failed to either document his
claims or cite authority in support thereof.
There was sufficient evidence presented to grand jury to support indictment for murder where there was
probable cause in record to believe that petitioner and three other individuals pursued a common scheme to
steal victim's car and, if success of plan so required, to kidnap him. NRS 200.010, 200.030.
Fact that petitioner's cohorts may have deviated from agreed-upon scheme to steal victim's car by killing
the victim in direct contravention to petitioner's orders did not operate to absolve petitioner of liability so
as to preclude a grand jury indictment for murder. NRS 200.010, 200.030.
4. Homicide.
Where purpose of conspiracy is to commit a dangerous felony, each member runs risk of having the
venture end in homicide, even if he has forbidden others to make use of deadly force, and each is guilty of
murder if one of them commits homicide in perpetration of an agreed-upon robbery.
OPINION
Per Curiam:
Pursuant to a True Bill returned by the Clark County Grand Jury, William McKinney,
among others, was indicted for murder, a felony under NRS 200.010 and 200.030. He then
challenged the indictment with a pretrial petition for a writ of habeas corpus contending (1)
the grand jury was not properly instructed on the law; (2) prosecutorial misconduct occurred
during the elicitation of testimony before the grand jury; and, (3) there was insufficient
evidence presented to the grand jury to support the indictment. The district judge considered
and rejected McKinney's habeas challenge and, in this appeal, he again advances the same
contentions.
[Headnote 1]
1. McKinney has totally failed to either document his conclusions, or to cite authority in
support thereof, that there was a failure to properly instruct the grand jury, or that there was
prosecutorial misconduct. Accordingly, they are summarily rejected. See Barcus v. State, 92
Nev. 289, 550 P.2d 411 (1976); and Krueger v. State, 92 Nev. 749, 557 P.2d 717 (1976).
[Headnotes 2-4]
2. The thrust of McKinney's challenge to the sufficiency of the evidence asserts,
subjectively, that the record conclusively establishes that he was unaware of, and did not
participate in, the homicide.
of the evidence asserts, subjectively, that the record conclusively establishes that he was
unaware of, and did not participate in, the homicide. Objectively, the record supports the
district judge's determination that there was probable cause to believe that McKinney and
three other individuals pursued a common scheme to steal the victim's car and, if the success
of the plan so required, to kidnap him. The fact that McKinney's cohorts may have deviated
from the agreed-upon scheme by committing the homicide in direct contravention to
McKinney's orders does not absolve him of liability. Where the purpose of the conspiracy is
to commit a dangerous felony each member runs the risk of having the venture end in
homicide, even if he has forbidden the others to make use of deadly force. Hence each is
guilty of murder if one of them commits homicide in the perpetration . . . of an agreed-upon
robbery. . . . R. Perkins, Criminal Law 633 (2d ed. 1969). (Emphasis added, citations
omitted.) See also, State v. Cushing, Et Al., 61 Nev. 132, 120 P.2d 208 (1941); State v.
Jensen, 296 P.2d 618 (Or. 1956).
Perceiving no error, we affirm. NRS 172.155. Kinsey v. Sheriff, 87 Nev. 361, 487 P.2d
340 (1971).
____________
93 Nev. 72, 72 (1977) Sheriff v. Arvey
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v.
LAWRENCE ARVEY, Respondent.
No. 9468
February 16, 1977 560 P.2d 153
Appeal from order granting pretrial petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; Paul S. Goldman, Judge.
The Supreme Court held that a habeas corpus petition not verified by the oath or
affirmation of the party making the application was not cognizable in the district court.
Reversed, with instructions.
Michael McGroarty, Deputy District Attorney, Clark County, for Appellant.
William B. Terry, Las Vegas, for Respondent.
93 Nev. 72, 73 (1977) Sheriff v. Arvey
Habeas Corpus.
Habeas corpus petition not verified by oath or affirmation of party making application was not cognizable
in district court. NRS 34.370, subd. 3.
OPINION
Per Curiam:
Indicted for a gross misdemeanor, Lawrence Arvey filed a pretrial petition for a writ of
habeas corpus. The district court considered and granted the petition and the state has
appealed. We do not consider the merit, if any, of the appeal.
Arvey's habeas petition was not verified by the oath or affirmation of the party making
the application, as required by Nev. Rev. Stat. 34.370(3). Therefore, the petition was not
cognizable in the district court; accordingly, we, sua sponte, reverse and instruct the lower
court to dismiss the habeas petition.
____________
93 Nev. 73, 73 (1977) Hiles Co. v. Johnston Pump Co.
HILES COMPANY, HARLAN HILES and ROGER HINES, dba HILES COMPANY,
Appellants, v. JOHNSTON PUMP COMPANY of Pasadena, California, ARMSTRONG
BROS., and MENTZER DETROIT DIESEL, Respondents.
No. 8142
February 16, 1977 560 P.2d 154
Appeal from order granting summary judgment, Third Judicial District Court, Lander
County; John F. Sexton, Judge.
Action was brought by partners and partnership to recover for economic losses caused by
deficient irrigation equipment leased from one defendant and defective product manufactured
by second defendant and sold by a third. The district court granted defendants' motion for
summary judgment and plaintiffs appealed. The Supreme Court, Batjer, C. J., held that where
one partner, in earlier action, had faced dismissal with prejudice or adverse judgment because
the other partner and partnership had not been joined so that stipulated dismissal without
prejudice with opportunity to refile naming proper parties was only avenue by which matter
could be considered on its merits the instant suit commenced within six months of dismissal
but more than four years after alleged breach of warranties was not precluded on theory
that the first action had been voluntarily discontinued; that whether lease fell within
purview of Uniform Commercial Code presented genuine issue of material fact, precluding
summary judgment; and that lack of privity between buyer and manufacturer did not
preclude action against manufacturer.
dismissal but more than four years after alleged breach of warranties was not precluded on
theory that the first action had been voluntarily discontinued; that whether lease fell within
purview of Uniform Commercial Code presented genuine issue of material fact, precluding
summary judgment; and that lack of privity between buyer and manufacturer did not preclude
action against manufacturer.
Reversed and remanded.
Breen, Young, Whitehead & Hoy, and Milos Terzich, Reno, for Appellants.
Julian C. Smith, Carson City, Hibbs & Newton, Reno, and Cunningham & Williams, Reno,
for Respondents.
1. Limitation of Actions.
Where plaintiff partner faced dismissal of breach of contract action with prejudice or adverse judgment
because other partner and partnership had not been joined and plaintiff's motion to join indispensable
parties was denied so that stipulated dismissal without prejudice with opportunity to refile naming proper
parties was only avenue by which matter could be considered on its merits, there was not voluntary
discontinuance within statutory savings clause providing that second action may be commenced after
expiration of time limited and within six months after termination of first action, unless termination resulted
from voluntary discontinuance. NRS 104.2725.
Plea of statute of limitations is not such a meritorious defense that either law or fact should be strained in
aid of it, nor should court indulge in any presumptions in its favor.
Statute authorizing breach of contract action which has been timely commenced but has been terminated
so as to leave available remedy by another action for same breach to be commenced after expiration of
limitations period and within six months after termination of first action applied to case, even though
indispensable party plaintiffs were added in the second action. NRS 104.2725.
4. Bailment.
The sales provisions of Uniform Commercial Code, under appropriate circumstances, can extend to lease
transactions. NRS 104.2725.
5. Judgment.
Genuine issue of material fact existed as to whether lease of diesel engine to power a pump used in
irrigation system fell within purview of Uniform Commercial Code, precluding summary judgment for
lessor sued by lessee to recover economic losses on theories of negligence and breach of warranties
because of malfunction of pump. NRS 104.2725; NRCP 56.
6. Products Liability.
Vertical privity is not required in actions for personal or property injury caused by defective products.
7. Sales.
Lack of privity between buyer and manufacturer did not preclude action against manufacturer for
recovery of economic losses allegedly caused by breach of warranties.
OPINION
By the Court, Batjer, C. J.:
Appellants sought to recover damages for economic losses allegedly caused by deficient
equipment leased by respondent Mentzer Detroit Diesel (Mentzer) and a defective product
manufactured by respondent Johnston Pump Company (Johnston) and sold by respondent
Armstrong Brothers (Armstrong). Here, appellants contend the trial court erroneously granted
respondents' motion for summary judgment. We agree and remand the action for trial.
Appellants Harlan Hiles and Roger Hines formed a partnership to raise crops utilizing an
irrigation system. To this end, Hiles entered into an agreement with Mentzer to lease, with an
option to purchase, a diesel engine to power the pump used in the irrigation system. Further,
Hiles hired Armstrong, a dealer for Johnston, to rebowl this pump. On June 1, 1968,
Armstrong installed new bowls manufactured by Johnston, but the pump failed to operate
properly. The cause of the malfunction was later attributed to missing parts in the bowls.
Due to this defect in the bowls and the alleged failure by Mentzer to supply a proper
engine to operate the pump, Hiles, in his name only, filed suit against respondents to recover
economic losses on the theories of negligence and breach of warranties. At trial, it became
apparent that damages, if any, would be owing to the partnership. However, the trial court,
without stating its reasons, denied Hiles' motion to join the indispensable parties, and
respondents objected to the admission of all evidence relating to partnership damages.
1
Faced with these adversities, Hiles stipulated with respondents to dismiss the action without
prejudice, and, on April 25, 1974, the trial court entered its order of dismissal.
____________________

1
No appeal was taken from the trial court's refusal to allow the addition of indispensable party plaintiffs, and
we express no opinion on that question.
On June 3, 1974, Hiles Company, Harlan Hiles, and Roger Hines filed suit alleging the
identical causes of action previously asserted by Hiles. Johnston moved for summary
judgment relying on the affirmative defenses alleged in its answer that the statute of
limitations set forth in NRS 104.2725 precluded the action and no privity of contract existed.
2
Mentzer and Armstrong orally joined in the motion which the trial court granted after
finding no material issue of fact remained. By granting the motion, appellants contend the
trial court erred because (1) NRS 104.2725 does not bar the action, and (2) lack of privity of
contract does not preclude appellants' action against Johnston.
1. NRS 104.2725 requires that any action for breach of a contract for sale must be
commenced within four years after the cause of action accrues. Here, Hiles filed the original
suit within this time period, but the second action was not commenced within four years.
Thus, the second action must fail unless it falls within the saving clause of the statute which
provides: Where an action commenced within the time limited by subsection 1 is so
terminated as to leave available a remedy by another action for the same breach such other
action may be commenced after the expiration of the time limited and within 6 months after
the termination of the first action unless the termination resulted from voluntary
discontinuance or from dismissal for failure or neglect to prosecute.
[Headnote 1]
Although appellants commenced the second suit within six months of the dismissal of
Hiles' action, respondents argue the saving clause is inapplicable because the original
action was "voluntarily discontinued."
____________________

2
NRS 104.2725 provides: 1. An action for breach of any contract for sale must be commenced within 4
years after the cause of action has accrued. By the original agreement the parties may reduce the period of
limitation to not less than 1 year but may not extend it.
2. A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge
of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty
explicitly extends to future performance of the goods and discovery of the breach must await the time of such
performance the cause of action accrues when the breach is or should have been discovered.
3. Where an action commenced within the time limited by subsection 1 is so terminated as to leave
available a remedy by another action for the same breach such other action may be commenced after the
expiration of the time limited and within 6 months after the termination of the first action unless the termination
resulted from voluntary discontinuance or from dismissal for failure or neglect to prosecute.
4. This section does not alter the law on tolling of the statute of limitations nor does it apply to causes of
action which have accrued before this chapter becomes effective.
months of the dismissal of Hiles' action, respondents argue the saving clause is inapplicable
because the original action was voluntarily discontinued. To support this argument,
respondents rely on the stipulation in which the parties agreed that the original action be
dismissed without prejudice. However, this stipulation was anything but voluntary. The
pressure on Hiles was significant; he faced a dismissal with prejudice or an adverse judgment
because Hines and the partnership had not been joined. After the trial court denied Hiles'
motion to join the indispensable parties, the stipulated dismissal without prejudice with an
opportunity to refile naming the proper parties was the only avenue by which appellants could
have the matter considered on its merits.
[Headnote 2]
The plea of statute of limitations . . . is not such a meritorious defense that either the law
or the fact should be strained in aid of it, nor should this court indulge in any presumptions in
its favor. Howard v. Waale-C. & Tiberti, 67 Nev. 304, 312, 217 P.2d 872, 876 (1950). We
decline to equate voluntary discontinuance to the situation where, in order to maintain a
suit, one is forced to dismiss his action so that another can be filed naming indispensable
party plaintiffs. Cf. D. & J. Leasing, Inc. v. Hercules Galion Products, Inc., 429 S.W.2d 854
(Ky. 1968).
[Headnote 3]
Respondents also assert the saving provision of NRS 104.2725 does not apply where, as
here, indispensable party plaintiffs are added in the second action. The statute is silent in this
regard. It only requires the first action to be so terminated . . . as to leave available a remedy
by another action for the same breach. . . . Here, such a remedy is available.
[Headnotes 4, 5]
Although NRS 104.2725 saves appellants' action against all respondents, Mentzer
nevertheless contends the sales provisions of the uniform commercial code, including NRS
104.2725, should not apply to it because it merely leased equipment to appellants. Under
appropriate circumstances, the code's provisions can extend to lease transactions. See, e.g.,
All-States Leasing Company v. Bass, 538 P.2d 1177 (Idaho 1975); Owens v. Patent
Scaffolding-Div. of Harsco, 354 N.Y.S.2d 778 (Sup.Ct. 1974); Baker v. City of Seattle, 484
P.2d 405 (Wash. 1971). However, whether the Mentzer lease falls within the purview of the
uniform commercial code presents a genuine issue of material fact thereby precluding
summary judgment on the matter.
genuine issue of material fact thereby precluding summary judgment on the matter. NRCP
56; Stern v. Jacobson, 90 Nev. 113, 520 P.2d 614 (1974).
2. Respondent Johnston further contends appellants have no recourse against it for
economic losses caused by breach of warranties because appellants lack vertical privity of
contract with Johnston.
3
Our uniform commercial code, specifically NRS 104.2318, is
neutral on the requirement of vertical privity.
4
See: Nordstrom, Sales 91 at 284 (1970).
While Johnston relies on Amundsen v. Ohio Brass Co., 89 Nev. 378, 513 P.2d 1234 (1973),
and Long v. Flanigan Warehouse Co., 79 Nev. 241, 382 P.2d 399 (1963), to support its
contention, those cases dealt with horizontal, not vertical, privity and are therefore
distinguishable.
5

[Headnote 6]
It is well established that vertical privity is not required in actions for personal or property
injury caused by defective products. See: 3 Williston on Sales 22-5 to 22-8 (1974); White
& Summers, Uniform Commercial Code 11-1 to 11-5 (1972); Nordstrom, Sales 91
(1970); Annot., 16 A.L.R.3d 683 (1967). However, there is a split of authority concerning the
need of privity in actions for the recovery of economic loss. Jurisdictions which require
privity express the fear that to hold otherwise might expose manufacturers to unforeseeable
losses suffered by remote buyers.
____________________

3
Respondents Armstrong and Mentzer concede that, as to them, privity exists, and, thus, they do not join in
Johnston's contention.

4
NRS 104.2318 provides: A seller's warranty whether express or implied extends to any natural person who
is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such
person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A
seller may not exclude or limit the operation of this section.

5
The difference between these two types of problems can be described in this way: a manufacturer sells his
goods to a wholesaler who sells them to a retailer; the retailer sells those goods to a consumer who uses them or
gives them to some third party who uses them. As goods are moving down' the distributive chain from
manufacturer to consumer, the contractual relationships (or sales) are vertical.' When they are placed in the
hands of the ultimate purchaser, they have left the commercial distributive chain and the connection between the
ultimate purchaser and the person who was injured by their use can be described as horizontal.' For horizontal
privity the injured party is trying to place himself in the position of the buyer and take advantage of warranties
made to the buyer; for vertical privity the buyer (or the one in his place) is attempting to take advantage of
warranties made by those who did not sell' to the buyer. Nordstrom, Sales 91 at 282-83 (1970).
unforeseeable losses suffered by remote buyers. However, warranty recovery is limited to the
reasonable damages contemplated by the parties and proximately caused by the breach. See:
NRS 104.2715.
[Headnote 7]
We perceive no reason to distinguish between recovery for personal and property injury,
on the one hand, and economic loss on the other. Cf. Santor v. A & M Karagheusian, Inc.,
207 A.2d 305 (N.J. 1965); Randy Knitwear, Inc. v. American Cyanamid Company, 181
N.E.2d 399 (N.Y. 1962). Instead, we believe that lack of privity between the buyer and
manufacturer does not preclude an action against the manufacturer for the recovery of
economic losses caused by breach of warranties. See: Cova v. Harley Davidson Motor
Company, 182 N.W.2d 800 (Mich.App. 1970); Kassab v. Central Soya, 246 A.2d 848 (Pa.
1968); Lang v. General Motors Corporation, 136 N.W.2d 805 (N.D. 1965); Spence v. Three
Rivers Builders & Masonry Supply, 90 N.W.2d 873 (Mich. 1958); Hoskins v. Jackson Grain
Co., 63 So.2d 514 (Fla. 1953); see also, Schwartz, The Demise of Vertical Privity: Economic
Loss under the Uniform Commercial Code, 2 Hofstra L.Rev. 749 (1974); Zammit,
Manufacturers' Responsibility for Economic Loss Damages in Products Liability Cases, 20
N.Y.L.F. 81 (1974).
The order granting summary judgment is reversed, and the case is remanded for further
proceedings consistent with this opinion.
Zenoff, Mowbray, Thompson, and Gunderson, JJ., concur.
____________
93 Nev. 79, 79 (1977) United Mortgage Co. v. Hildreth
UNITED MORTGAGE CO., a Nevada Corporation, Appellant, v.
LEWIS HILDRETH and SHIRLEY L. HILDRETH, Respondents.
No. 8655
February 16, 1977 559 P.2d 1186
Appeal from judgment for money; Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
Borrowers brought action against licensed mortgage company, alleging that the mortgage
company had made a $75,000 construction loan at 12 percent interest and had also
collected a $9,375 brokerage fee and that the transaction was usurious.
construction loan at 12 percent interest and had also collected a $9,375 brokerage fee and that
the transaction was usurious. The district court entered judgment for the borrowers for a sum
of money representing usury. The mortgage company appealed, and the Supreme Court,
Thompson, J., held that evidence concerning the loan transaction established that the
mortgage company had not acted as a lender or as an agent for the lenders but acted in a
separate capacity as a mortgage broker and that, therefore, the brokerage fee was not usury.
Reversed.
Deaner, Deaner & Reynolds, of Las Vegas, for Appellant.
George E. Franklin, of Las Vegas, for Respondents.
1. Usury.
Where a lender or an agent of a lender exacts a broker's fee in connection with a loan, such fee will be
considered in computing interest to determine if transaction was usurious.
2. Usury.
When one negotiates a loan through a broker with a moneylender and the moneylender in good faith
lends the money at a legal rate of interest, transaction is not made usurious by fact that broker charges
borrower a commission for his services.
3. Usury.
Where, inter alia, borrowers authorized licensed mortgage company to act on their behalf to procure
construction loan and where borrowers contracted to pay a brokerage fee for obtaining that loan before the
identity of the lender was known and mortgage company neither loaned the money itself nor shared
brokerage fee with the lenders which it obtained, brokerage fee of $9,375 did not render $75,000 loan at 12
percent interest usurious.
OPINION
The district court entered judgment for the Hildreths against United Mortgage Co. for a
sum of money representing usury. United has appealed contending that prejudicial error
occurred when the trial court found that United had loaned money to the Hildreths rather than
finding that it acted as a mortgage broker in obtaining a loan for them. If United loaned the
money, its charge therefor was usurious and the judgment must be affirmed. If it did not loan
the money, but acted as a mortgage broker, its charge was a legitimate fee for brokerage
services, and the judgment must be set aside.
United is a licensed mortgage company under NRS 645B. The Hildreths wished to obtain
a construction loan for a trailer park. By written document they appointed United their broker
to procure a first deed of trust loan of $75,000 at 12 percent interest, and agreed to pay a
broker's commission of $9,375 for obtaining that loan. Bradshaw Finance Co. orally indicated
to United that it would fund the construction loan. Consequently, United had the Hildreths
execute a promissory note for $75,000 to Bradshaw Finance and secured payment thereof by
a first deed of trust. Bradshaw Finance, for some reason, elected not to proceed with the
transaction. United then induced George and Margaret Crockett to lend the money. The note
and deed of trust executed by the Hildreths to Bradshaw Finance was, by Bradshaw, assigned
to the Crocketts.
A construction loan account was established with United and the Crockett loan of $75,000
was there deposited. United withdrew its brokerage fee for procuring the loan from that
account. It also made disbursements for construction therefrom. Interest and principal
payments were made by the Hildreths to United to be appropriately credited against the debt
to the Crocketts. Subsequently, the Hildreths defaulted upon their obligation and the
Crocketts foreclosed the deed of trust. This action then was commenced by the Hildreths
claiming that United made the loan and that the interest charged plus the brokerage fee was
usury.
[Headnote 1]
1. It is established that the exaction of a broker's fee by the lender or his agent will be
considered in computing interest to determine whether the transaction is usurious. Pease v.
Taylor, 88 Nev. 287, 496 P.2d 757 (1972); Miller v. York, 92 Nev. 226, 548 P.2d 941 (1976).
[Headnote 2]
It is equally established that where one negotiates a loan through a broker with a
moneylender, and the latter bona fide lends the money at a legal rate of interest, the
transaction is not made usurious by the fact that the broker charges the borrower a
commission for his services. Shaffran v. Holness, 102 So.2d 35 (Fla.App. 1958); Investment
Funds Corporation v. Bomar, 303 F.2d 592 (5th Cir. 1962).
[Headnote 3]
In the case at hand, there is no evidence that United acted as agent for the Crocketts in
making the loan. The Hildreths authorized United to act on their behalf to procure the desired
loan.
loan. United was not, in fact, the lender. The promissory note did not name United as payee,
nor did the deed of trust designate United as the beneficiary. The lenders did not require the
borrowers to pay a broker's fee to the lenders or to their agent. Cf. Morris v. Miglicco, 468
S.W.2d 517 (Tex.Civ.App. 1971). Here, the borrowers contracted to pay a brokerage fee
before the identity of the lender was known to anyone. Neither does the record reveal that
United, as broker, shared its fee with the lenders Crockett. Cf. Hatton v. Greenberg, 451 P.2d
905 (Ariz.App. 1969).
2. When the Hildreths authorized United to act as their broker, they and United signed a
Federal Reserve Regulation Z notice. That notice may be read to suggest that United was to
be the lender of the desired $75,000. The district court gave credence to that document.
Whatever the purpose of that document, the events which thereafter transpired establish
beyond doubt that United was not, in fact, the lender, but acted in a separate capacity as a
mortgage broker. We believe that the district court reached the wrong conclusion, and that its
findings are not supported by evidence possessing substance. Consolazio v. Summerfield, 54
Nev. 176, 179, 10 P.2d 629 (1932); Seyden v. Frade, 88 Nev. 174, 177, 494 P.2d 1281
(1972).
Therefore, we reverse with direction to enter judgment for United.
____________
93 Nev. 82, 82 (1977) Smith v. State
EDWARD LEROY SMITH, Appellant, v. THE
No. 8901
February 17, 1977 560 P.2d 158
Appeal from sentence of death for commission of a capital crime under NRS
200.030(1)(e) and 200.030(5). Second Judicial District Court, Washoe County; Roy L.
Torvinen, Judge.
Defendant was convicted in the district court of killing more than one person as a result of
a single plan, scheme or design, and he appealed. The Supreme Court, Zenoff, J., held that
statute mandating death penalty for such offense was unconstitutional as applied; and
that penalty imposed upon defendant would be life imprisonment without possibility of
parole.
93 Nev. 82, 83 (1977) Smith v. State
statute mandating death penalty for such offense was unconstitutional as applied; and that
penalty imposed upon defendant would be life imprisonment without possibility of parole.
Affirmed as modified.
Richard W. Young, of Reno, for Appellant.
Robert List, Attorney General, Carson City; Larry R. Hicks, District Attorney, and John L.
Conner, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Definite and affirmative consideration of various mitigating factors must be undertaken in sentencing to
satisfy constitutional standards of sentencing to death. NRS 200.030, subds. 1, 5.
2. Criminal Law.
Statute mandating death as penalty for offense of killing more than one person as a result of a single plan,
scheme or design is unconstitutional for failure to provide for consideration of mitigating factors. NRS
200.030, subds. 1, 5.
3. Homicide.
Where defendant convicted of offense of killing more than one person as a result of a single plan, scheme
or design was sentenced to death, and where statute mandating such sentence was unconstitutional as
applied, sentence of death would be vacated and defendant sentenced to life imprisonment without
possibility of parole for each murder, to be served consecutively. NRS 200.030, subds. 1, 5.
OPINION
Smith shot his ex-wife and her husband at close range with a hunting rifle. No question is
raised on appeal as to his guilt. The central issue concerns the constitutionality of NRS
200.030(1)(e) as it relates to the mandatory death penalty of NRS 200.030(5). The offense of
killing more than one person as the result of a single plan, scheme or design comes within
NRS 200.030(5) which prescribes death as the penalty.
Additional claims of error are directed to the method of questioning jurors on the subject
of capital punishment and the giving of certain instructions by the court. Neither warrants
discussion because the statute with which we are concerned is herein declared constitutionally
infirm on other grounds and the punishment now imposed is not the death penalty; nor do
we find error in the instructions given to the jury by the trial court.
93 Nev. 82, 84 (1977) Smith v. State
the punishment now imposed is not the death penalty; nor do we find error in the instructions
given to the jury by the trial court.
We direct our attention therefore to the constitutionality of NRS 200.030(1)(e) as it applies
to the death penalty provision. Its application is unconstitutional.
The collection of decisions which followed Furman v. Georgia, 408 U.S. 238 (1972),
reflects the attempts by several states to retain the death penalty in a form which would be
compatible with the Constitution. Those decisions are Gregg v. Georgia 428 U.S. 153, 96
S.Ct. 2909, 49 L.Ed.2d 859 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d
929 (1976); Proffit v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Woodson
v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); and Roberts v.
Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed. 2d 974 (1976). The statutes of the first
three, Georgia, Texas and Florida, were upheld but those of North Carolina and Louisiana
were held violative of the Constitution.
The plurality of the U.S. Supreme Court seems to hold that controlled discretion on the
part of the sentencing authority is not only permissible but essential under the 8th
Amendment. The court states: Furman mandates that where discretion is afforded a
sentencing body on a matter so grave as the determination of whether a human life should be
taken or spared, that discretion must be suitably directed and limited so as to minimize the
risk of wholly arbitrary and capricious action. Gregg, 428 U.S. 189, 96 S.Ct. at 2932, 49
L.Ed.2d at 883.
The statutes of Georgia, Texas and Florida that met the approval of the highest court of our
land each comprised a statutory scheme whereby a separate hearing for the purpose of
deciding the punishment was provided. In the affirmance of these schemes, their ability to
take into consideration mitigating circumstances, not only those surrounding the offense but
the character and propensities of the offender as well, was favorably noted. The court held
that even the imposition of the death penalty is permissible if these factors are adequately
considered within the sentencing procedures.
As previously stated, Nevada's 200.030(5) mandates punishment by death for each person
convicted under 200.030(1). The U.S. Supreme Court struck down similar statutes of North
Carolina (Woodson v. North Carolina, supra) and Louisiana (Roberts v. Louisiana, supra). In
short, more than simply the limitation of the imposition of the death penalty to certain
narrow, specific situations of murder is necessary to meet the standards of the Furman
and Gregg cases.
93 Nev. 82, 85 (1977) Smith v. State
narrow, specific situations of murder is necessary to meet the standards of the Furman and
Gregg cases. The statutes of the three states that were upheld provided for a bifurcated system
of, first, a trial on guilt or innocence and then if guilt were found a separate penalty hearing.
A jury, the court said, must be allowed to consider on the basis of all relevant evidence
not only why a death sentence should be imposed, but also why it should not be imposed.
428 U.S. at 271, 96 S.Ct. at 2956, 49 L.Ed.2d at 938. Speaking to the types of specific
information which might be considered, in Jurek the court noted, quoting from the opinion of
the Texas Court of Criminal Appeals, that [i]n determining the likelihood that the defendant
would be a continuing threat to society, the jury could consider whether the defendant had a
significant criminal record. It could consider the range and severity of his prior criminal
conduct. It could look further to the age of the defendant and whether or not at the time of the
commission of the offense he was acting under duress or under the domination of another. It
could also consider whether the defendant was under an extreme form of mental or emotional
pressure, something less, perhaps than insanity, but more than the emotions of the average
man, however inflamed, could withstand.' 522 S.W.2d at 939-940. 428 U.S. at 272, 273, 96
S.Ct. at 2956-2957, 49 L.Ed.2d at 939.
[Headnotes 1, 2]
It can be concluded that definite and affirmative consideration of various mitigating factors
must be undertaken in sentencing to satisfy constitutional standards of sentencing to death.
For its failure to provide such consideration, we therefore declare NRS 200.030(5) as it
mandatorily applies to NRS 200.030(1)(e) unconstitutional.
[Headnote 3]
The sentence of death is vacated and the penalty imposed upon Edward Leroy Smith is life
imprisonment without possibility of parole, for each murder, to be served consecutively. See
Anderson v. State, 90 Nev. 385, 528 P.2d 1023 (1974).
____________
93 Nev. 86, 86 (1977) Central National Ins. Co. v. Dixon
CENTRAL NATIONAL INSURANCE COMPANY OF OMAHA, Appellant,
v. JESSE L. DIXON, Jr., Respondent.
No. 8398
February 17, 1977 559 P.2d 1187
Appeal from judgment; Eighth Judicial District Court, Clark County; James A. Brennan,
Judge.
Insurer, which had made payment for fire loss to apartment, brought action against tenant
of apartment for alleged negligence in causing fire. The district court entered judgment for
tenant, and insurer appealed. The Supreme Court, Thompson, J., held that insurer which
made payment to insured for fire loss to apartment and accompanied payment with a loan
receipt agreement thereby lost subrogation right, if any, which it may have had and thus
insured was only real party in interest in any action against tenant for negligently causing the
fire.
Affirmed.
Dickerson, Miles & Pico, and Richard Davenport and Charles H. Wagner, of Las Vegas,
for Appellant.
Tad Porter, Chartered, of Las Vegas, for Respondent.
1. Insurance.
A loan receipt is an agreement in writing between an insurer and an insured under which a sum of money
is paid to the insured by the insurer, as a loan, repayable to the insurer only to extent of any recovery made
by insured from third parties on account of the loss by reason of which the loan is made.
2. Insurance.
When a loan receipt agreement is considered to be a true loan rather than payment of claim there is no
basis for subrogation by insurer.
3. Insurance.
Insurer which made payment to insured for fire loss to apartment and accompanied payment with a loan
receipt agreement thereby lost subrogation right, if any, which it may have had and thus insured was only
real party in interest in any action against tenant for negligently causing the fire. NRCP 17(a).
4. Insurance.
A loan receipt agreement which accompanies payment by insurer to an insured is valid.
OPINION
On December 12, 1971, a fire occurred in apartment 140 at 1100 Dumont, Las Vegas.
Central National Insurance Company had issued a policy covering the loss to the insureds
LeRoy Corporation, Herbert Frey, Advanced Construction Company and Maryland Gardens
Company.
Company had issued a policy covering the loss to the insureds LeRoy Corporation, Herbert
Frey, Advanced Construction Company and Maryland Gardens Company. Consequently,
Central paid them $10,873.87 representing the insured loss resulting from the fire. That
payment was accompanied by a loan receipt agreement. The policy contained a $1,000
deductible provision.
On October 10, 1972, Central commenced this action against Jesse L. Dixon, Jr., who was
the tenant of the apartment at the time of the fire. Central alleged that Dixon negligently
caused the fire and that Central was subrogated to the rights of its insureds to recover for the
loss. Dixon answered by general denial.
The case was tried to the court without a jury on April 25, 1975. We are not favored with a
transcript of that trial. In any event, it is clear from the record that the court made no finding
with regard to the charge that Dixon negligently caused the fire. However, the court did find
that Central had failed to prove its assumed right to subrogation. The court apparently was of
the opinion that Central was not the real party in interest within the intendment of NRCP
17(a) since the payment of $10,873.87 was accompanied by a loan receipt agreement.
Accordingly, judgment was entered for Dixon. This appeal by Central followed. The effect of
the loan receipt agreement forms the central issue for our determination.
The issue here is whether the loan receipt agreement destroys the subrogation right which
the insurer assumes it otherwise would have and, therefore, precludes the insurer from the
status of a real party in interest.
[Headnotes 1, 2]
A loan receipt is an agreement in writing between an insurer and an insured under which a
sum of money is paid to the insured by the insurer, as a loan, repayable to the insurer only to
the extent of any recovery made by the insured from third parties on account of the loss by
reason of which the loan is made. The legality of such an agreement was sustained in the
landmark case of Luckenbach v. McCahan Sugar Refining Co., 248 U.S. 139 (1918). When
considered to be a true loan rather than payment of the claim there is no basis for subrogation.
Miller v. Pine Bluff Hotel Co., 170 F.Supp. 552 (E.D. Ark. 1959); Williams v. Union Pac. R.
Co., 94 F.Supp. 174 (D. Neb. 1950). Indeed, the insurer sometimes prefers to use this method
to avoid its assumed right of subrogation and to permit the company to sue in the insured's
name to preclude possible jury prejudice against the insurer.
possible jury prejudice against the insurer. City Stores Co. v. Lerner Shops of District of
Columbia, Inc., 410 F.2d 1010 (D.C. Cir. 1969).
[Headnote 3]
Related to the nullification of subrogation rights, if any, in the insurer by reason of the loan
receipt is the fixing of the substantive right of action in the insured. Only the insured is the
real party in interest. The very spirit and intent of the loan receipt is at odds with a suit in the
name of the insurer.
[Headnote 4]
We find nothing illegal in a loan receipt agreement. As a practical matter the insurance
company controls the manner in which it wishes to handle the settlement of policy claims. If
it has subrogation rights, it should avoid use of the loan receipt agreement. On the other hand,
if the insurer seeks the assumed advantage of being able to bring suit solely in the name of its
insured then a loan receipt agreement is in order.
We perceive needless confusion if we were to allow the insurer to enjoy the right of
subrogation, if any, where, as here, it has elected to enter into a loan receipt agreement with
its insured. Accordingly, we affirm the judgment of the district court and its ruling that the
Central National Insurance Company is not the real party in interest entitled to prosecute this
action.
1

____________________

1
As the parties have not raised the question, we do not here decide whether an insurance carrier indeed has a
right of subrogation where a landlord purchases insurance to protect against negligence of his tenants.
____________
93 Nev. 88, 88 (1977) Rudder v. Union Pac. R.R. Co.
CHARLES L. RUDDER, Appellant, v. UNION PACIFIC RAILROAD
COMPANY, a Corporation, Respondent.
No. 8771
February 17, 1977 560 P.2d 160
Appeal from an order granting a motion to dismiss with prejudice, pursuant to NRCP
41(e), Eighth Judicial District Court, Clark County; Michael J. Wendell, Judge.
93 Nev. 88, 89 (1977) Rudder v. Union Pac. R.R. Co.
Action for damages under Federal Employers' Liability Act was dismissed with prejudice
by the district court for failure to prosecute and plaintiff appealed. The Supreme Court held
that dismissal with prejudice was mandatory for failure to bring the case to trial within five
years.
Affirmed.
Dale W. Beasey and Jeffrey G. Green, Las Vegas, for Appellant.
W. Bruce Beckley and Guild, Hagen & Clark, Ltd., Las Vegas, for Respondent.
Dismissal and Nonsuit.
Dismissal with prejudice was mandatory for failure to bring case to trial within five years. NRCP 41(e).
OPINION
Per Curiam:
On January 5, 1971, Charles L. Rudder filed a complaint in the district court seeking
damages from respondent under the Federal Employers' Liability Act, 45 U.S.C. 51 et seq.
(1972). On January 12, 1976, over five years later, the court granted a motion to dismiss with
prejudice for failure to prosecute, pursuant to NRCP 41(e).
Although appellant concedes that dismissal is mandatory for failure to bring a case to trial
within five years, he suggests the court abused its discretion in dismissing the action with
prejudice. We disagree.
We have frequently, and consistently, considered and rejected similar arguments. See, for
example, Meredith v. Arden, 92 Nev. 620, 555 P.2d 1241 (1976), and cases cited therein.
Affirmed.
____________
93 Nev. 90, 90 (1977) Potter v. Mutual Benefit Life Ins. Co.
MICHAEL L. POTTER and MICHELE J. POTTER, Appellants, v. THE
MUTUAL BENEFIT LIFE INSURANCE COMPANY, Respondent.
No. 8400
March 9, 1977 560 P.2d 914
Appeal from order granting motion for summary judgment, Eighth Judicial District Court,
Clark County; Joseph S. Pavlikowski, Judge.
In action by hospital against insureds, insureds filed third-party complaint against
hospitalization insurer. The district court granted insurer's motion for summary judgment and
insureds appealed. The Supreme Court held that whether insureds made reckless or fraudulent
statements in policy application as to treatment of insured wife for cystitis was a disputed
question of fact.
Reversed; remanded for trial.
Brown & Deaner, Las Vegas, for Appellants.
Beckley, Singleton, DeLanoy, Jemison & Reid, Chartered and J. Bruce Alverson, Las
Vegas, for Respondent.
1. Judgment.
In deciding upon propriety of summary judgment all evidence favorable to the party against whom such
judgment was rendered will be accepted as true. NRCP 56.
2. Judgment.
Evidence in support of insured's claim against hospitalization insurer made question of fact whether
insureds made reckless or fraudulent statements in application in regard to treatment of insured wife for
cystitis of such magnitude which would relieve insurer of liability for hospital bill, precluding summary
judgment for insurer. NRCP 56.
OPINION
Per Curiam:
Doctor's Adjustment Bureau, Inc. brought an action against Michael and Michele Potter on
a $790 bill owed by the Potters to Desert Springs Hospital. The Potters filed a third party
complaint against Mutual Benefit Life Insurance Company.
The district court granted Mutual Benefit's motion for summary judgment which had
alleged that the policy of insurance was the product of the Potters having made false or
fraudulent statements or representations regarding the physical condition and history of
Michele Potter.
statements or representations regarding the physical condition and history of Michele Potter.
Here, the Potters contend summary judgment should not have been granted. We agree.
On July 10, 1973, a representative of Mutual Benefit asked Mr. Potter questions in regard
to an application for insurance. This conversation occurred, without Mrs. Potter, at Mr.
Potter's place of business. Mr. Potter would answer the questions and the agent would fill in
the answers on the application. Question number 3 stated: Have you (or your eligible
dependents) consulted or been treated by a physician, surgeon or other practitioner in the last
five years? Mr. Potter answered yes explaining that his wife had had a normal child
delivery nine months earlier. This was noted on the back of the form along with her doctor's
name. Question number 4 asked: Do you (or your eligible dependents) contemplate having,
or have you (or your eligible dependents) had in the past five years, any surgery, treatment,
observation or routine examination in any clinic, hospital, sanitarium or health resort? Mr.
Potter answered no.
The policy was effective on August 1, 1973, and Mrs. Potter was hospitalized in December
of 1973, with acute gastroenteritis. One year later Mutual Benefit refused to pay the hospital
bill and cancelled coverage stating that misrepresentations had been made on questions 3 and
4 of the application, i.e., that Mrs. Potter had been treated in May of 1973 for a yeast infection
of the vagina and for cystitis.
Whether the Potters had knowledge of this treatment is questionable. Mr. Potter stated, in
his affidavit in opposition to the motion for summary judgment, that he had no knowledge of
his wife's treatment for cystitis, and no intention of misleading the insurance company. Mrs.
Potter did not know she was being treated for cystitis and could not remember if she had even
mentioned the doctor's appointment to her husband.
A Mutual Benefit's underwriter stated in affidavit: That in accordance with the
underwriting standards followed by the Mutual Benefit Life Insurance Company, the
existence of cystitis requires a one year recovery period before a major medical coverage can
be made by this company.
1

[Headnote 1]
Rule 56 [NRCP 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. . . ."
____________________

1
The record does not disclose that the Potters were apprised of thisor any otherunderwriting standard.
law, where it is quite clear what the truth is, that no genuine issue remains for trial. . . .
Nevada Land & Mtge. v. Hidden Wells, 83 Nev. 501, 506, 435 P.2d 198, 201 (1967). In
deciding the propriety of a summary judgment all evidence favorable to the party against
whom such judgment was rendered will be accepted as true. Short v. Hotel Riviera, Inc., 79
Nev. 94, 378 P.2d 979 (1963).
[Headnote 2]
Looking at the evidence most favorable to the Potters, this record clearly demonstrates that
they did not make reckless or fraudulent statements of such magnitude which, as a matter of
law, would relieve Mutual Benefit of liability. That is a disputed fact to be determined;
therefore, summary judgment was erroneous. The district court's order is reversed and this
case is remanded for trial on the merits.
____________
93 Nev. 92, 92 (1977) Torvinen v. Rollins
ROY L. TORVINEN, Appellant, v. ANN ROLLINS as Registrar of Voters, and WILLIAM
D. SWACKHAMER as Secretary of State, Respondents.
No. 9433
March 9, 1977 560 P.2d 915
Appeal from declaratory judgment, Second Judicial District Court, Washoe County; James
J. Guinan, Judge.
In action for declaration that constitutional amendment extending term of district judges
did not affect terms of incumbent judges, the district court rendered adverse judgment from
which plaintiff appealed. The Supreme Court held that amendment became effective on date
votes for amendment were canvassed and had only prospective application, without effect on
term of incumbent judges.
Reversed.
John Tom Ross and Robert A. Grayson, Carson City, for Appellant.
Robert List, Attorney General, Donald Klasic, Deputy Attorney General, Carson City;
Larry R. Hicks, District Attorney, and Russell S. Nash, Deputy District Attorney, Washoe
County, for Respondents.
1. Judges.
Constitutional amendment increasing elective term of office for district judges became effective on date
votes for amendment were canvassed and had only prospective application, without effect on term of
incumbent judges. Const. art. 6, 5.
Constitutional amendment becomes effective upon canvass of votes by Supreme Court. Const. art. 16,
1 et seq.; art. 19, 2.
Generally, constitutional amendment is given only prospective application from its effective date unless
intent to make it retrospective clearly appears from its terms.
OPINION
Per Curiam:
[Headnote 1]
On November 2, 1976, Nevada voters approved a constitutional amendment which
increased the elective term of office for district court judges from four to six years.
1
Thereafter, appellant sought a declaratory judgment stating the amendment had no effect on
the term of office of incumbent judges. However, the district court ruled the amendment
applied retroactively to all judges holding office at the time it was adopted, thereby extending
their four year terms to six years. Since we conclude the amendment became effective on the
date the votes for the amendment were canvassed and the amendment has only prospective
application, the district court's judgment is reversed.
Shamberger v. Ferrari, 73 Nev. 201, 314 P.2d 384 (1957), left open the question whether
an amendment, such as this, adopted pursuant to article 16 of Nevada's Constitution, becomes
effective on the date of election or upon the canvassing of the votes by the supreme court.
Article 16, section 1, is silent on the subject and only provides: [I]f the people shall approve
and ratify such amendment or amendments by a majority of the electors qualified to vote for
members of the Legislature voting thereon, such amendment or amendments shall . . . become
a part of the Constitution. However, guidance is given elsewhere in our constitution.
____________________

1
The amendment, now included in article 6, section 5, of Nevada's Constitution, provides in pertinent parts:
The District Judges shall be elected by the qualified electors of their respective districts, and shall hold
office for the term of [four Years] 6 years (excepting those elected at said first election) from and including the
first Monday of January, next succeeding their election and qualification; . . . See: 1975 Nev. Stats. 1931-34.
Article 5, section 4, requires the justices of the supreme court to canvass the election
returns and declare the results of the vote cast upon any question submitted to the electors of
the State of Nevada. This canvass is as much a part of the amendment process as the casting
of votes by the electorate, for without it, no determination that the majority had voted
favorably for the amendment could be made. See: Opinion of the Justices, 287 N.E.2d 910
(Mass. 1972); State v. Kyle, 65 S.W. 763 (Mo. 1901). Thus, the canvass is an adjunct to the
amendment process, and to hold an amendment becomes effective before the date of canvass
would, in the event the canvass showed a different result, thwart the will of the electorate.
[Headnote 2]
We therefore determine a constitutional amendment adopted pursuant to article 16
becomes effective upon the canvass of the votes by the supreme court. See: Torres v. State,
278 S.W.2d 853 (Tex.Crim.App. 1955); Opinion of the Justices, 36 So.2d 499 (Ala. 1948);
City of Duluth v. Duluth St. Ry. Co., 62 N.W. 267 (Minn. 1895). This provides uniformity
for the effective date of amendments adopted pursuant to article 16 and those adopted
pursuant to the initiative procedures of article 19, which specifically mandates such
amendments become a part of this constitution upon completion of the canvass of votes by
the supreme court.'' Nev. Const. art. 19, 2.
[Headnote 3]
As a general rule, a constitutional amendment is to be given only prospective application
from its effective date unless the intent to make it retrospective clearly appears from its terms.
People v. Elliot, 525 P.2d 457 (Colo. 1974); Drennen v. Bennett, 322 S.W.2d 585 (Ark.
1959). Here, the amendment is void of any terms indicating the legislature or electorate
intended retrospective application. Cf. Rice v. Wadkins, 92 Nev. 631, 555 P.2d 1232 (1976).
Therefore, the amendment applies prospectively only to elections held after its effective
date, and the district court's judgment is reversed.
____________
93 Nev. 95, 95 (1977) Levers v. Rio King Land & Inv. Co.
STANLEY W. LEVERS and THORNTON G. COLBY, Appellants, v. RIO KING LAND
AND INVESTMENT COMPANY, a Partnership Comprised of B. T. ROCCA and C. M.
ROCCA, Individually and as Partners, Respondents.
No. 8262
March 9, 1977 560 P.2d 917
Appeal from judgment, Second Judicial District Court, Washoe County; John E. Gabrielli,
Judge.
In a consolidated action, the district court set aside sale of collateral and awarded secured
parties difference between amount due on note and amount obtained by them on resale of
collateral, and debtors appealed. The Supreme Court, Batjer, C. J., held that secured parties
failed to give debtors reasonable notice of sale, that sale was not commercially reasonable,
that where there was substantial evidence as to fair market value of collateral, secured parties
were correctly awarded difference between balance owed on promissory note and fair market
value of collateral, and that, since debtors had received complete relief, secured parties'
misconduct did not vitiate statutory sale so as to defeat third party's title in collateral.
Affirmed in part and reversed in part.
Hale & Belford, and J. Stephen Peek, Reno, for Appellants.
John J. McCune, Virgil D. Dutt, and Paul J. Williams, Reno, for Respondents.
1. Secured Transactions.
Notification of time and place of any public sale should be sent by secured party to debtor in such time
that persons entitled to receive it have sufficient time to take appropriate steps to protect their interests in
collateral. NRS 104.9504, subd. 3.
Secured party has burden of establishing compliance with statutory reasonable notification requirement
in connection with sale of collateral. NRS 104.9504, subd. 3.
Where secured parties sent notice only to one debtor by letter on May 25, 1972, informing him that sale
would be held on June 2, 1972, and before the sale date debtors moved to temporarily restrain sale to
protect their interest in collateral but secured parties conducted sale before court's order could be served,
secured parties failed to satisfy statutory reasonable notification requirement in connection with sale of
collateral. NRS 104.9504, subds. 1, 3.
In addition to giving reasonable notice, a secured party must, after default, proceed in a commercially
reasonable manner to dispose of collateral; every aspect of disposition, including method, manner, time,
place and terms must be commercially reasonable. NRS 104.9504, subd. 3.
Although price obtained at sale of collateral by secured party is not sole determinative factor,
nevertheless, it is relevant factor in determining whether sale was commercially reasonable. NRS
104.9504, subd. 3.
Wide discrepancy between sale price and value of collateral compels close scrutiny into commercial
reasonableness of sale, especially where secured party purchases collateral and subsequently resells it for
vastly greater sum than was credited to debtor. NRS 104.9504, subd. 3.
Where one secured party and a former employee were only people who attended sale, there was no
evidence that secured parties publicized sale in any manner or otherwise took steps to insure that best price
possible would be obtained for benefit of debtors, secured party placed only bid at sale and purchased
collateral for $100, and collateral was subsequently resold to third party for $10,000, sale was not
commercially reasonable. NRS 104.9504, subd. 3.
Creditor misconduct should not be absolute bar to deficiency but rather when creditor is derelict in
complying with Uniform Commercial Code provisions in disposing of collateral, it will be presumed that
collateral had fair market value equal to amount of debt and no deficiency will be permitted unless creditor
produces evidence to establish reasonable amount that collateral would have sold for at a proper sale.
NRS 104.9504, subds. 1, 3.
Where, although secured parties failed to satisfy statutory reasonable notification requirement in
connection with sale of collateral and sale was not commercially reasonable, there was substantial evidence
as to market value of collateral, secured parties were correctly awarded difference between balance on
promissory note and fair market value of collateral.
Where debtors received complete relief by having fair market value of collateral credited against amount
due on promissory note, secured parties' misconduct in connection with sale of collateral did not vitiate
statutory sale so as to defeat third party's title in collateral subsequently purchased from secured parties.
OPINION
Appellants gave respondents a $35,000 promissory note as consideration for ranch
supplies purchased from respondents.
Respondents properly perfected a security interest in the supplies, and, upon default by
appellants, respondents disposed of the supplies at a non-judicial sale pursuant to NRS
104.9504(1).
1
At the sale, respondents purchased the collateral for $100 and subsequently
resold it for $10,000. In a consolidated action, the district court set aside the sale but awarded
respondents $25,000, which was the difference between the amount due on the note and the
amount obtained by respondents on resale. We must now determine (1) whether respondents
gave appellants reasonable notification of the sale, (2) whether respondents held the sale in a
commercially reasonable manner, and if not, (3) whether respondents are entitled to a
deficiency judgment. Even though we conclude the sale was conducted in a commercially
unreasonable manner, and without sufficient notice to appellants, we affirm the judgment of
the district court, except that portion setting aside the sale.
[Headnote 1]
1. With certain exceptions not here applicable, a secured party must give the debtor . . .
reasonable notification of the time and place of any public sale . . . before disposing of the
debtor's property to satisfy a perfected security interest. NRS 104.9504(3). Although our
uniform commercial code is silent regarding the length of time such notification should
precede the date of sale, it should at least . . . be sent in such time that persons entitled to
receive it will have sufficient time to take appropriate steps to protect their interests . . . in
the collateral. U.C.C. 9-504, Comment 5; see also Mallicoat v. Volunteer Finance & Loan
Corp., 415 S.W.2d 347 (Tenn.App. 1966).
____________________

1
1. A secured party after default may sell, lease or otherwise dispose of any or all of the collateral in its then
condition or following any commercially reasonable preparation or processing. Any sale of goods is subject to
the article on sales (article 2). The proceeds of disposition shall be applied in the order following to:
(a) The reasonable expenses of retaking, holding, preparing for sale, selling and the like and, to the extent
provided for in the agreement and not prohibited by law, the reasonable attorneys' fees and legal expenses
incurred by the secured party.
(b) The satisfaction of indebtedness secured by the security interest under which the disposition is made.
(c) The satisfaction of indebtedness secured by any subordinate security interest in the collateral if written
notification of demand therefor is received before distribution of the proceeds is completed. If requested by the
secured party, the holder of a subordinate security interest must seasonably furnish reasonable proof of his
interest, and unless be does so, the secured party need not comply with his demand.
[Headnotes 2, 3]
The secured party has the burden of establishing compliance with the reasonable
notification requirement. Leasing Associates, Inc. v. Slaughter & Son, Inc., 450 F.2d 174
(8th Cir. 1971); Tauber v. Johnson, 291 N.E.2d 180 (Ill.App. 1972). Here, this burden has not
been met. Respondents sent notice only to appellant Levers by letter, on May 25, 1972,
informing him that the sale would be held on June 2, 1972.
2
Before the sale date, appellants
moved to temporarily restrain the sale to protect their interest in the collateral, but
respondents had conducted the sale before the court's order could be served. In light of these
facts, respondents failed to satisfy the reasonable notification requirement of NRS
104.9504(3).
3

[Headnotes 4-6]
2. In addition to giving reasonable notice, a secured party must, after default, proceed in a
commercially reasonable manner to dispose of collateral. NRS 104.9504(3); Jones v. Bank of
Nevada, 91 Nev. 368, 535 P.2d 1279 (1975). Every aspect of the disposition, including the
method, manner, time, place, and terms, must be commercially reasonable. NRS 104.9504(3).
Although the price obtained at the sale is not the sole determinative factor, nevertheless, it is
one of the relevant factors in determining whether the sale was commercially reasonable.
First National Bank of Bellevue v. Rose, 196 N.W.2d 507 (Neb. 1972). A wide discrepancy
between the sale price and the value of the collateral compels close scrutiny into the
commercial reasonableness of the sale.
____________________

2
It is to be noted that the Memorial Day weekend intervened between the mailing and the sale.

3
3. Disposition of the collateral may be by public or private proceedings and may be made by way of one or
more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any
terms but every aspect of the disposition including the method, manner, time, place and terms must be
commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type
customarily sold on a recognized market, reasonable notification of the time and place of any public sale or
reasonable notification of the time after which any private sale or other intended disposition is to be made shall
be sent by the secured party to the debtor, and except in the case of consumer goods to any other person who has
a security interest in the collateral and who has duly filed a financing statement indexed in the name of the
debtor in this state or who is known by the secured party to have a security interest in the collateral. The secured
party may buy at any public sale and if the collateral is of a type customarily sold in a recognized market or is of
a type which is the subject of widely distributed standard price quotations he may buy at private sale.
into the commercial reasonableness of the sale. In Re Zsa Zsa Limited, 352 F.Supp. 665 (S.D.
N.Y. 1972); Mercantile Financial Corp. v. Miller, 292 F.Supp. 797 (E.D. Penn. 1968). This is
especially true where, as here, the secured party purchases the collateral and subsequently
resells it for a vastly greater amount than was credited to the debtor.
[Headnote 7]
Respondent C. M. Rocca and one Maness, a former employee of Rocca, were the only
people who attended the sale. There is no evidence that respondents publicized the sale in any
manner or otherwise took steps to insure the best price possible would be obtained for the
benefit of the debtor. See: Foster v. Knutson, 527 P.2d 1108 (Wash. 1974). C. M. Rocca
placed the only bid at the sale and purchased the collateral for $100. Subsequently,
respondents sold the collateral to a third party for $10,000. Under these circumstances, we
conclude the sale was not commercially reasonable.
[Headnote 8]
3. Despite the failure to conduct a commercially reasonable sale with reasonable
notification to appellants, respondents contend they are entitled to a deficiency judgment
based on the difference between the amount owing on the debt and the purchase price of the
collateral at the statutory sale. Jurisdictions are split on whether a creditor who fails to
comply with the uniform commercial code is precluded from recovering a deficiency
judgment. See: White & Summers, Uniform Commercial Code 26-15 (1972). Creditor
misconduct should not be an absolute bar to a deficiency. Instead, when a creditor is derelict
in complying with the code's provisions, it will be presumed the collateral had a fair market
value equal to the amount of the debt, and no deficiency will be permitted unless the creditor
produces evidence to establish the reasonable amount that the collateral would have sold for
at a proper sale. Clark Leasing Corp. v. White Sands Forest Prod., Inc., 535 P.2d 1077 (N.M.
1975); Universal C.I.T. Credit Co. v. Rone, 453 S.W.2d 37 (Ark. 1970). See also: Notes, A
Creditor's Right to a Deficiency Judgment Under Article 9 of the Uniform Commercial Code,
42 Brooklyn L.Rev. 56 (1975).
[Headnotes 9, 10]
Here, there is substantial evidence that the collateral had a fair market value of $10,000.
Therefore, the district court correctly awarded respondents $25,000, the difference between
the balance owed on the promissory note, and the fair market value of the collateral.
value of the collateral. However, because appellants have received complete relief,
respondents' misconduct will not vitiate the statutory sale so as to defeat the third party's title
in the collateral subsequently purchased from respondents. That portion of the judgment
setting aside the sale is therefore reversed.
We need not consider appellants' other contentions challenging various findings by the
district court because they are supported by substantial evidence. Alves v. Bumguardner, 91
Nev. 799, 544 P.2d 436 (1975).
____________
93 Nev. 100, 100 (1977) Watkins v. State
HOWARD ORVILLE WATKINS, Appellant, v. THE
No. 9010
March 9, 1977 560 P.2d 921
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County;
Defendant was convicted in the district court of robbery and he appealed. The Supreme
Court held that victim's testimony, corroborated by nature of his injuries and the testimony of
other witnesses, supported the verdict; and that reviewing court would not second guess trial
counsel's decisions relating to trial strategy.
Affirmed.
George R. Lyles, Las Vegas, for Appellant.
1. Criminal Law.
Inconsistencies in statements and testimony by robbery victim raised question of credibility to be
determined by the finder of fact.
2. Robbery.
Robbery victim's testimony, corroborated by the nature of his injuries and the testimony of other
witnesses, supported conviction.
3. Criminal Law.
Alleged improper remark by prosecutor in closing argument would not be considered on appeal where the
remark was not objected to at the time it was made.
4. Criminal Law.
On appeal from conviction reviewing court would not second guess decisions of trial counsel pertaining
to trial strategy.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction for robbery. We affirm.
On the evening of July 24, 1975, Howard Orville Watkins and his codefendant Ernestine
Webster visited the apartment of Robert Overstreet, a seventy-nine year old retired chef
whom they had met the night before. The three spent the evening drinking and watching
television. When one bottle of whiskey was emptied, Overstreet requested Watkins to go out
for another and gave him $10 from a roll of bills with a hundred dollar bill on the outside.
According to Overstreet, at approximately 1:30 a.m. Watkins got up to leave and requested
a loan of $100 to $150. When Overstreet refused, Watkins attacked him, hitting him with
various objects from the apartment and taking his money. A neighbor testified to hearing the
sounds of a struggle, Overstreet's cries for help, and a second man's comment that he thought
Overstreet was dead and they had better leave.
Watkins claimed that: (1) the fight arose when Overstreet made sexual advances to
Ernestine Webster, his companion; (2) Overstreet was the aggressor and Watkins struck him
solely in self-defense; (3) he was afraid to retreat because he believed Overstreet had a gun.
[Headnote 1]
1. Watkins's first assignment of error claims the verdict is not supported by substantial
evidence. In furtherance of this claim, Watkins offers the conclusion that several purported
inconsistencies in the statements and testimony by the victim should invalidate the jury's
guilty verdict. The inconsistencies are insignificant, and are certainly not sufficient to
invalidate the verdict. See Hampton v. State, 85 Nev. 720, 462 P.2d 760 (1969). Rather, they
raise a question of credibility to be determined by the finder of fact. Polito v. State, 71 Nev.
135, 282 P.2d 801 (1955).
[Headnote 2]
The victim's testimony, corroborated by the nature of his injuries and the testimony of
other witnesses, amply supports the verdict. In analogous circumstances, we have consistently
held that we will not substitute our judgment for that of the finder of fact. See, for example,
Wheeler v. State, 91 Nev. 119, 531 P.2d 1358 (1975), and cases cited therein.
[Headnote 3]
2. Watkins next contends that improper remarks made by the prosecuting attorney in the
closing argument were so prejudicial as to deny him a fair trial. There were two such remarks.
The second was not objected to at the time it was made; therefore, it will not be considered on
appeal. Moser v. State, 91 Nev. 809, 544 P.2d 424 (1975). The first, to which an objection
was sustained, was inadvertent and the error, if any, was harmless. Harris v. State, 90 Nev.
172, 521 P.2d 367 (1974).
[Headnote 4]
3. The thrust of Watkins's next claim of error is directed to his trial counsel's failure to
make certain objections and to pursue certain lines of investigation. We have previously held
that we will not second guess such matters when, as here, they relate to trial strategy and are
within the discretion of the attorney, Rodriguez v. State, 91 Nev. 782, 542 P.2d 1065 (1975),
even if better tactics appear in retrospect to have been available. United States v. Stern, 519
F.2d 521, 524 (9th Cir. 1975).
We summarily reject Watkins's final claim relating to his attorneywhich is raised for the
first time in this appealthat he had insufficient time to consult with counsel prior to the
preliminary examination. See Smart v. Valencia, 49 Nev. 411, 248 P. 46 (1926).
Affirmed.
____________
93 Nev. 103, 103 (1977) Fleshman v. Hendricks
LA HOMA FLESHMAN, Appellant, v. GEORGE M. HENDRICKS,
dba HENDRICKS REALTY, Respondent.
No. 8832
March 9, 1977 560 P.2d 1350
Appeal from judgment awarding broker's commission. Eighth Judicial District Court,
Clark County; J. Charles Thompson, Judge.
The Supreme Court held that where listing agreement, upon which real estate broker's
authority was based, expressly noted that operation of listed business was subject to a
five-year lease of premises and, according to his own testimony, broker understood that he
was responsible for producing a purchaser who would also receive assignment of lease, and
no effective transfer of lease could be obtained from lessor, so that purchaser failed to qualify
as an able buyer, broker, having produced a purchaser who was ready and willing but not one
who was able, was not entitled to a commission from vendor.
Reversed and dismissed.
Robert Callister, of Las Vegas, for Appellant.
James L. Buchanan II, of Las Vegas, for Respondent.
1. Brokers.
A real estate broker has earned his commission when he has brought to vendor a purchaser who is ready,
willing and able to buy property upon terms upon which broker is authorized to sell, or when a written
contract upon any terms acceptable to vendor has been entered into with purchaser originally brought to
vendor by broker.
2. Brokers.
Where listing agreement, upon which real estate broker's authority was based, expressly noted that
operation of listed business was subject to a five-year lease of premises and, according to his own
testimony, broker understood that he was responsible for producing a purchaser who would also receive
assignment of lease, and no effective transfer of lease could be obtained from lessor, so that purchaser
failed to qualify as an able buyer, broker, having produced a purchaser who was ready and willing but not
one who was able, was not entitled to a commission from vendor.
3. Brokers.
That operation of listed business was subject to a five-year lease of premises was omitted from terms of
purchase agreement was irrelevant in action by broker to collect his commission in that it was terms upon
which broker was authorized to sell which controlled.
Claims of error that were raised on appeal but were not otherwise applicable to case would not be
considered by Supreme Court.
OPINION
Per Curiam:
On September 20, 1973, appellant La Homa Fleshman listed her business, the Long
Branch Saloon, with respondent George Hendricks, a licensed real estate broker. The listing
provided for a broker's commission in the event of sale or exchange of ten percent of the
agreed-upon purchase price. Prior to its expiration, the respondent produced potential buyers,
Floyd and Agnes Williams, who ultimately signed a document entitled Offer and
Acceptance Agreement and Earnest Money Receipt on November 20, 1973. This agreement
by its terms was subject to the timely approval of the seller which was effected by Mrs.
Fleshman's signature on that same day. The sale eventually did not go through because the
operation of the listed business was subject to a five-year lease of the premises and no
effective transfer of this lease could be obtained from the landlord.
An action for the broker's commission was entertained by the court below and
subsequently granted. Appellant has appealed this award claiming fundamentally that
respondent did not produce a buyer actually ready, willing and able to purchase the
business.
[Headnotes 1, 2]
The long-established rule of law in this state concerning brokers' commissions is that a
real estate broker has earned his commission when he has brought to the vendor a purchaser
who is ready, willing and able to buy the property upon the terms on which the agent is
authorized to sell, or when a written contract upon any terms acceptable to the seller has been
entered into with the purchaser originally brought to the vendor by the agent. Engel v.
Wilcox, 75 Nev. 323, 326, 340 P.2d 93, 94 (1959); citing Alison v. Chapman, 173 P. 389
(Cal.App. 1918). In the instant case, the broker produced a purchaser who was ready and
willing but not one who was able. The listing agreement, upon which the broker's authority
was based, expressly noted the existence of the lease. According to his own testimony, the
broker understood that he was responsible for producing a purchaser who would also receive
assignment of the lease. This was the only sensible construction of the agreement since the
business could not have been operated without such an assignment.
such an assignment. When the lessor refused to approve assignment of the lease to the
purchaser, that purchaser failed to qualify as an able buyer, just as he would have had he
failed to produce the purchase price or to meet any of the other specified terms or conditions.
Cf. Nolan v. State Dept. of Commerce, 85 Nev. 611, 614, 460 P.2d 153, 155 (1969).
[Headnote 3]
The omission of the lease assignment as a term of the purchase agreement is irrelevant in
an action by a broker to collect his commission. As noted in Engel, it is the terms upon which
the agent is authorized to sell which control. If the terms of the purchase agreement were,
instead, controlling, a broker would be permitted to recover by virtue of his own misfeasance.
Such a result would be contrary to equitable principles.
[Headnote 4]
Other claims of error are not applicable to this case. We therefore will not consider them.
Sala & Ruthe Realty, Inc. v. Campbell, 89 Nev. 483, 515 P.2d 394 (1973).
Reversed and dismissed.
____________
93 Nev. 105, 105 (1977) Dean v. Pollard
NORMAN DEAN and LEILA DEAN, Husband and Wife, and DEAN ROOFING
COMPANY, a Nevada Corporation, Appellants, v. KEITH A. POLLARD and POLLARD
POOLS, INC., a Nevada Corporation, Respondents.
No. 8566
March 9, 1977 560 P.2d 911
Appeal from judgment, Eighth Judicial District Court, Clark County, J. Charles
Thompson, Judge.
From a judgment of the district court, granting defendant an easement by prescription over
property owned by plaintiffs, the plaintiffs appealed. The Supreme Court held that in order to
acquire an easement by prescription there must be five years adverse, continuous, open and
peaceable use, and that the evidence supported trial court's finding of a prescriptive easement.
Affirmed.
[Rehearing denied March 30, 1977] Leavitt, Edwards & Leavitt, Las Vegas, for
Appellants.
Leavitt, Edwards & Leavitt, Las Vegas, for Appellants.
Allan D. Bray, Las Vegas, for Respondents.
1. Easements.
In order to acquire an easement by prescription there must be five years adverse, continuous, open and
peaceable use.
2. Easements.
Evidence including showing that from date the property was purchased the twelve and one-half-foot strip
which allegedly encroached on adjacent property had been used as a driveway, which testimony was
corroborated by people who worked on or near the subject property, supported trial court's finding of a
prescriptive easement.
OPINION
Per Curiam:
This is an appeal from a judgment granting Keith A. Pollard an easement, by prescription,
over property owned by Dean Roofing Company. Dean erroneously contends (1) the evidence
does not support the finding of a prescriptive easement; and, (2) that a letter, executed by the
parties in 1972, constituted an accord and satisfaction of the property dispute.
In 1962, Keith and Harriet Pollard, together with Guy Gagnon, purchased a piece of
property contiguous to property owned by Dean Roofing Company. Subsequently, Keith
Pollard became the sole owner of the property on which he operated a swimming pool
business. When the property was originally acquired a chain link fence stood on what was
thought to be the northern boundary of Pollard's property. Adjacent to this fence Pollard
constructed a driveway which was used for ingress and egress to a warehouse.
In 1972, Dean had the property surveyed and found that the chain link fence encroached
twelve and one-half feet upon the Dean property. Soon thereafter Pollard and Dean signed a
letter, prepared by Dean, which stated: Easement is hereby granted to Keith Pollard, Pollard
Pools, until February 1975. In January 1975, Dean informed Pollard that the fence was going
to be moved to the surveyed boundary line. This suit followed.
[Headnote 1]
1. In order to acquire an easement by prescription there must be five years adverse,
continuous, open and peaceable use.
Richardson v. Brennan, 92 Nev. 236, 548 P.2d 1370 (1976); Stix v. La Rue, 78 Nev. 9, 368
P.2d 167 (1962); Howard v. Wright, 38 Nev. 25, 143 P. 1184 (1914).
[Headnote 2]
Mr. Gagnon's testimony established that from the date the property was purchased in 1962,
the twelve and one-half foot strip had been used as a driveway. Many people who worked on
or near the subject property corroborated this testimony. Such evidence clearly supports the
trial court's finding, which we decline to disturb. See Holland Livestock v. B & C Enterprises,
92 Nev. 473, 553 P.2d 950 (1976).
2. It having been established that Pollard had used the driveway adversely, continuously,
openly and peaceably for more than five years prior to the time the 1972 letter was signed, we
need not, and therefore do not, reach Dean's contention that the letter was an accord and
satisfaction. Stix v. La Rue, supra.
Affirmed.
____________
93 Nev. 107, 107 (1977) Pickard v. Sheriff
STANLEY PICKARD, Appellant, v. SHERIFF,
MINERAL COUNTY, NEVADA, Respondent.
No. 9523
March 9, 1977 560 P.2d 912
Appeal from order denying pretrial petition for writ of habeas corpus, Fifth Judicial
District Court, Mineral County; William P. Beko, Judge.
The Supreme Court held that persons who receive contraband gratuitously are not
accomplices so as to require corroboration of their testimony in order to warrant conviction.
Affirmed.
Rodlin H. Goff, Public Defender, and Fred H. Atcheson, Deputy Public Defender, Carson
Larry G. Bettis, District Attorney, and John S. Hill, Deputy District Attorney, Mineral
County, for Respondent.
93 Nev. 107, 108 (1977) Pickard v. Sheriff
Criminal Law.
Persons who receive contraband gratuitously are not accomplices so as to require corroboration of their
testimony in order to warrant conviction. NRS 453.161, 453.321, subd. 1.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Stanley Pickard was ordered to stand trial
on four felony counts of furnishing a controlled substance (marijuana). NRS 453.321 and
453.161. He then filed a pretrial petition for a writ of habeas corpus contending the charges
cannot stand because the only incriminating evidence presented at the preliminary
examination was accomplice testimony which was not corroborated as required by NRS
175.291.
1
The district judge denied habeas and, in this appeal, Pickard advances the same
contention.
The incriminating testimony that established probable cause to hold Pickard for trial was
given by gratuitous recipients of a contraband.
2
We have previously held that a buyer of
narcotics is not an accomplice to the act of selling. Tellis v. State, 84 Nev. 587, 445 P.2d 938
(1968).
3
We perceive no significant difference in the status of a person who is furnished
contraband for cash or, as here, gratuitously. Thus, we extend our holding in Tellis to include
persons who receive contraband gratuitously. Accord, People v. Poindexter, 330 P.2d 763
(Cal. 1958); State v. Winslow, 472 P.2d 852 (Or.App. 1970).
Affirmed.
____________________

1
1. A conviction shall not be had on the testimony of an accomplice unless he is corroborated by other
evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant
with the commission of the offense; and the corroboration shall not be sufficient if it merely shows the
commission of the offense or the circumstances thereof.
2. An accomplice is hereby defined as one who is liable to prosecution, for the identical offense charged
against the defendant on trial in the cause in which the testimony of the accomplice is given.

2
NRS 453.321(1), the statute which proscribes the act, reads, in part: it is unlawful for any person to sell,
exchange, barter, supply or give away a controlled or counterfeit substance.

3
See Austin v. State, 87 Nev. 578, 491 P.2d 724 (1971), for a comprehensive discussion of the law relating
to accomplice testimony.
____________
93 Nev. 109, 109 (1977) Keefe v. Sheriff
JOHN JOSEPH KEEFE, Appellant and Cross-Respondent, v. SHERIFF, WASHOE
COUNTY, NEVADA, Respondent and Cross-Appellant.
No. 9485
March 9, 1977 560 P.2d 913
Appeal from order denying pretrial petition for writ of habeas corpus; cross-appeal from
order requiring prosecution to elect between counts in indictment, Second Judicial District
Court, Washoe County; John E. Gabrielli, Judge.
Habeas corpus relief was denied by the district court but the prosecution was required to
elect between counts in an indictment. Defendant appealed and the defendant sheriff
cross-appealed. The Supreme Court held that in light of defendant's presence, companionship
and conduct before and after offense, it was permissible for grand jurors to infer that
defendant was involved in a scheme to cheat a casino, and the indictment was accordingly
supported by sufficient evidence. Under a statute providing that the prosecution is not
required to elect between different offenses or counts set forth in an indictment, it was
permissible to try defendant on all counts of the indictment, even if one offense was
necessarily included in another.
Appeal affirmed; cross-appeal reversed.
Jerome M. Polaha, Reno, for Appellant and Cross-Respondent.
Robert List, Attorney General, Carson City; Larry R. Hicks, District Attorney, and William
G. Cobb, Deputy District Attorney, Washoe County, for Respondent and Cross-Appellant.
In light of defendant's presence, companionship and conduct before and after offense, it was permissible
for grand jurors to infer that defendant was involved in scheme to cheat casino, and indictment was
accordingly supported by sufficient evidence. NRS 172.155, 195.020, 199.480, 465.080.
Under statute providing that prosecution is not required to elect between different offenses or counts set
forth in indictment, it was permissible to try defendant on all counts of indictment, even if one offense was
necessarily included in another. NRS 173.125.
3. Criminal Law.
If one offense charged was necessarily included in another, defendant could be convicted of only one.
NRS 173.125.
OPINION
Per Curiam:
A multiple count indictment, filed pursuant to a True Bill by the Washoe County Grand
Jury, charged John Joseph Keefe, among others, with (1) aiding and abetting in the
possession of a cheating device (NRS 465.080; NRS 195.020); (2) aiding and abetting in the
use of a cheating device (NRS 465.080; NRS 195.020); and, (3) conspiracy to possess and
use a cheating device (NRS 465.080; NRS 199.480). Thereafter, in a pre-trial petition for a
writ of habeas corpus, Keefe challenged the sufficiency of the evidence to support the
indictment. The district judge denied the habeas petition, but directed the prosecuting attorney
to elect between the counts in the indictment charging Keefe with aiding and abetting in the
possession of a cheating device and aiding and abetting in the use of a cheating device. Keefe
has appealed from the order denying habeas and the prosecutor has cross-appealed from the
order directing him to elect which count to pursue.
[Headnote 1]
1. The record establishes that Keefe was present in a casino in the immediate vicinity of a
slot machine that was allegedly opened with a forged key by his codefendants. Keefe
exchanged words with them, and, immediately after a jackpot combination was aligned on the
reels of the slot machine, he departed with them.
In light of his presence, companionship, and conduct before and after the offense it was
permissible for the grand jurors to infer that Keefe was involved in the scheme to cheat the
casino. Robertson v. Sheriff, 85 Nev. 681, 683, 462 P.2d 528, 529 (1969). Accordingly, we
perceive no error in the district judge's determination that the indictment is supported by
sufficient evidence. NRS 172.155; Kinsey v. Sheriff, 87 Nev. 361, 487 P.2d 340 (1971).
[Headnotes 2, 3]
2. NRS 173.125 provides in part that [t]he prosecution is not required to elect between
the different offenses or counts set forth in the indictment. . . . It is therefore permissible to
try Keefe on all counts in the indictment; however, if one offense is necessarily included in
another, he can be convicted of only one.
necessarily included in another, he can be convicted of only one. Wallace v. State, 84 Nev.
532, 445 P.2d 29 (1968); Fairman v. State, 83 Nev. 137, 425 P.2d 342 (1967).
The order denying the pretrial petition for a writ of habeas corpus is affirmed; the order
requiring the prosecution to elect between the counts in the indictment is reversed.
____________
93 Nev. 111, 111 (1977) Oueilhe v. Lovell
ED OUEILHE, dba WRESTLING STUDIOS, Appellant, v. CARL E. LOVELL,
Individually and in His Capacity as Attorney for the City of Las Vegas, WILLIAM BRIARE,
Individually and in His Official Capacity as the Mayor of the City of Las Vegas and a
Member of the Board of City Commissioners Together With MYRON LEAVITT, ROY
WOOFTER, RON LURIE and PAUL J. CHRISTENSEN, Individually and in Their
Capacities as Members of the Board of City Commissioners; and ILA BRITT, Named
Individually and in Her Capacity as Director of the Division of License and Revenue of the
Department of Finance of the City of Las Vegas, and CITY OF LAS VEGAS, a Municipal
Corporation, Respondents.
No. 8727
March 9, 1977 560 P.2d 1348
Appeal from order denying injunction; Eighth Judicial District Court, Clark County;
Addeliar D. Guy, Judge.
Proprietor of wrestling studio applied for injunction against enforcement of ordinance
prohibiting operation of business wherein for payment, direct or indirect, wrestling partners
of the opposite sex could be obtained. The district court denied injunction, and proprietor
appealed. The Supreme Court, Thompson, J., held that ordinance was not overbroad, did not
offend the equal protection clause, and was not an impermissible Bill of Attainder.
Affirmed.
Alan B. Andrews, of Las Vegas, for Appellant.
Carl E. Lovell, Jr., City Attorney of Las Vegas, Janson F.
Stewart, Deputy City Attorney, and Richard A. Koch, Deputy City Attorney, for Respondents.
1. Municipal Corporations.
Ordinance providing criminal sanctions for disobedience must be strictly construed and limited in its
application to the objective sought to be accomplished.
Ordinance prohibiting businesses which utilized wrestling as subterfuge for sexual pleasure for pay
between female and male was not unconstitutionally overbroad in that it did not purport to prohibit
enterprises such as legitimate wrestling, judo or karate schools which were lawful enterprises.
It was within province of city to determine that a rational relationship existed between preclusion of
businesses which utilized wrestling as subterfuge for sexual pleasure for pay between female and male and
the objects sought to be accomplished, by such preclusion, namely the protection of the public welfare,
safety and morals. U.S.C.A.Const. Amend. 14.
Gender-based classifications are subject to close scrutiny under the equal protection clause.
Ordinance prohibiting both men and women from wrestling for sexual pleasure with member of opposite
sex for pay did not carry with it a gender-based discriminatory effect and, thus, did not offend the equal
protection clause. U.S.C.A.Const. Amend. 14.
The title of an ordinance does not control its meaning.
Although defendant was in business which offered coed wrestling for pay at the time the prohibitive
ordinance was enacted, where body of ordinance did not single out the defendant nor did it purport to
punish him without a trial, ordinance was not a Bill of Attainder in violation of the United States and
Nevada Constitutions. U.S.C.A.Const. art. 1, 9, cl. 3; Const. art. 1, 15.
OPINION
This appeal from an order of the district court denying the application for injunction of Ed
Oueilhe, d.b.a. Wrestling Studios places in issue the constitutionality of Las Vegas, Nev.,
City Code Title V, ch. 41, 3 (1975). That section provides that It shall be unlawful for any
person, firm or corporation to conduct, manage, operate, maintain, or advertise a business
wherein for payment, direct or indirect, wrestling partners of the opposite sex may be
obtained. The term "wrestling" is defined by the ordinance to mean "to grapple or engage
by physical contact whereby one person seeks to overpower another or throw him or her
to the floor or ground."
wrestling is defined by the ordinance to mean to grapple or engage by physical contact
whereby one person seeks to overpower another or throw him or her to the floor or ground.
Violation of the ordinance carries a fine of not more than $500, imprisonment in the city jail
for not more than six months, or a combination thereof.
[Headnote 1]
By reason of criminal sanctions for disobedience the ordinance must be strictly construed,
In re Laiolo, 83 Nev. 186, 426 P.2d 726 (1967), and limited in its application to the objective
sought to be accomplished.
Oueilhe is the proprietor of a business which offers the public wrestling partners of the
opposite sex and advertises such service in a sexually aggressive manner. One advertisement
thereof states: Co-ed Wrestling. Beautiful sensuous yielding young girls waiting for your
male body. He sought to enjoin enforcement of the ordinance and a declaration of its
unconstitutionality. The district court denied him relief. This appeal followed.
It is contended that the ordinance is unconstitutionally vague and overbroad in that it may
be read to prohibit legitimate wrestling, Judo and Karate schools which are lawful enterprises
and, therefore, protected activity. It also is claimed that the Equal Protection Clause is
offended by the gender-based classification of the ordinance. Finally, it is asserted that the
ordinance is an impermissible Bill of Attainder. We reject each contention and affirm the
ruling of the district court.
1. The purpose of the ordinance is stated in these words: It is further determined as a
matter of legislative determination that the operation of a business of providing wrestling
partners of the opposite sex is detrimental to the health and safety of the public and
community, that such a business is offensive to the public morals and decency, that such a
business is detrimental to the continued economic development of the community and tends
to degrade the City as a provider of good entertainment, and is harmful to the cause of
attracting tourists and visitors to the City; that there are substantial physiological differences
between males and females which make it physically dangerous for them to engage in contact
sports against each other, especially one that is so physically demanding as wrestling.
[Headnotes 2, 3]
In our view, that expression of purpose does not reflect an intention to prohibit legitimate
wrestling, whether between members of the opposite sex or otherwise, nor to prohibit Judo
and Karate schools where members of the opposite sex may or may not be engaged in the
learning of those disciplines.
members of the opposite sex or otherwise, nor to prohibit Judo and Karate schools where
members of the opposite sex may or may not be engaged in the learning of those disciplines.
Rather, the prohibition of the ordinance concerns businesses which utilize wrestling as a
subterfuge for sexual pleasure for pay between female and male. It was within the province of
the City to determine that a rational relationship exists between the preclusion of such an
enterprise and the object sought to be accomplished, namely the protection of the public
welfare, safety and morals.
[Headnotes 4, 5]
2. The Equal Protection Clause is not offended. Although it is true that gender-based
classifications are subject to close scrutiny under the Equal Protection Clause, Reed v. Reed,
404 U.S. 71 (1971), we perceive no discrimination here. Women and men are treated equally.
Neither can wrestle for sexual pleasure with a member of the opposite sex for pay. Thus, the
ordinance is neutral on its face and does not carry with it a gender-based discriminatory
effect. Cf. Colorado Springs Amusements, Ltd. v. Rizzo, 524 F.2d 571 (3d Cir. 1975),
holding that an ordinance prohibiting intersex massage was not a denial of equal protection.
3. No Bill of Attainder shall be passed. U.S. Const. art. 1, 9; Nev. Const. art. 1, 15. A
Bill of Attainder is a legislative act which applies to named individuals or to easily
ascertainable members of a group in such a way as to inflict punishment on them without a
judicial trial. Cummings v. Missouri, 71 U.S. (4 Wall) 277 (1866); Ex Parte Garland, 71 U.S.
(4 Wall) 333 (1866); United States v. Lovett, 328 U.S. 303 (1946).
[Headnotes 6, 7]
The title of the ordinance declares, among other things, that its purpose is to make
unlawful the business of providing wrestling partners of the opposite sex. Since the appellant
was operating such a business when the ordinance was enacted he contends that the ordinance
must be annulled as a Bill of Attainder since it inflicts punishment upon him without a
judicial trial. His contention is not sound. The title of the ordinance does not control its
meaning. L. V. Police Protective Ass'n v. City of Las Vegas, 89 Nev. 394, 513 P.2d 1231
(1973). Moreover, the body of the ordinance does not single out the appellant nor purport to
punish him without a trial. It prohibits any person, firm or corporation from conducting
such a business and leaves to the court the determination of whether the person charged
is in violation thereof.
conducting such a business and leaves to the court the determination of whether the person
charged is in violation thereof. Constitutional requirements thus are satisfied. Accident Index
Bureau, Inc. v. Male, 229 A.2d 812 (N.J. Super.Ct. 1967), aff'd. 237 A.2d 880 (N.J. 1968).
The mere fact that the ordinance forbids acts theretofore lawful affords no basis for holding
the ordinance void or unreasonable, Ex Parte Nash, 55 Nev. 92, 26 P.2d 353 (1933). We
conclude, therefore, that the ordinance is not a Bill of Attainder in violation of the United
States and Nevada Constitutions.
4. We reject the appellant's contention that the words of the ordinance are imprecise and
vague. The intended meaning will be understood by the average reader. Roth v. United States,
354 U.S. 476 (1957).
Affirmed.
____________
93 Nev. 115, 115 (1977) Nevada Industrial Comm'n v. Reese
NEVADA INDUSTRIAL COMMISSION; JOHN R. REISER, Chairman, Nevada Industrial
Commission; CLAUDE EVANS, Commissioner Representing Labor, Nevada Industrial
Commission; JAMES LORIGAN, Commissioner Representing Industry, Nevada Industrial
Commission; and RICHARD BORTOLIN, Appellants, v. LUTHER REESE, DANIEL G.
MAHONEY, and MICHAEL E. AUSICH, Respondents.
No. 7901
March 9, 1977 560 P.2d 1352
Appeal from judgment of Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Appeal was taken from judgment of the district court declaring unconstitutional certain
1973 amendments to the Industrial Insurance Act, incorporating the Administrative Procedure
Act, establishing an appeals officer to conduct administrative hearings on contested claims,
and providing for limited judicial review. The Supreme Court reversed, two judges, in an
opinion by Mowbray, J., being of the opinion that administrative officer can exercise
quasi-judicial functions without violating doctrine of separation of powers and that appeal
procedures under the Administrative Procedure Act are constitutional, and two judges, in
an opinion by Batjer, C. J., being of the opinion that proceedings under the Industrial
Insurance Act are special proceedings essentially contractual in character, based on
election of coverage, which constitutes waiver of claims that its provisions are
unconstitutional.
without violating doctrine of separation of powers and that appeal procedures under the
Administrative Procedure Act are constitutional, and two judges, in an opinion by Batjer, C.
J., being of the opinion that proceedings under the Industrial Insurance Act are special
proceedings essentially contractual in character, based on election of coverage, which
constitutes waiver of claims that its provisions are unconstitutional.
Reversed.
Gunderson, J., dissented.
Cooke, Roberts & Reese, Reno; and William J. Crowell and Riley M. Beckett, Carson City,
for Appellants Nevada Industrial Commission and Commissioners.
Manoukian, Scarpello & Alling, Ltd., Carson City, for Appellant Bortolin.
Rice & Goedert, Reno, for Respondents.
Constitutional Law; Workmen's Compensation.
Amendments to the Industrial Insurance Act incorporating the Administrative Procedure Act, establishing
an Appeals Officer to conduct administrative hearings on contested claims, and providing for limited
judicial review were upheld, two judges being of the opinion that administrative official can exercise
administrative powers that are quasi-judicial in nature without violating separation of powers doctrine and
that provision for appeal to district courts under the Administrative Procedure Act is constitutional, and
two judges being of the opinion that, aside from enumerated employers and their employees as to whom the
Act is compulsory, proceedings under the Industrial Insurance Act are not in reality a lawsuit but are
special proceedings essentially contractual in character, based on election of coverage, with such election
resulting in waiver and estoppel with respect to claims of unconstitutionality. Const. art. 3, 1; art. 6,
1; NRS 233B.010 et seq., 233B.030, 233B.130-233B.150, 233B.140, 616.010 et seq., 616.218,
616.220, 616.305, 616.500, 616.542, 616.543, 617.405; Stats. Nev. 1973, ch. 762, 5, 7.
OPINION
By the Court, Mowbray, J.:
This is an appeal from a judgment of the district court declaring unconstitutional certain
1973 amendments to the Nevada Industrial Insurance Act.
During the 1973 Legislature, Assembly Bill No. 339 was enacted as chapter 762, Stats.
Nev. 1973, at 1595-1598. This statute amended the Nevada Industrial Insurance Act, chapter
616 of NRS. Among other things, the amendment provided for the incorporation of the
Nevada Administrative Procedure Act (ch. 233B of NRS) into the Nevada Industrial
Insurance Act and for the establishment of an Appeals Officer, appointed by the Governor, to
conduct administrative hearings in contested claims. The amendment also provided that a
decision of the Appeals Officer was to constitute a final decision under the Nevada
Administrative Procedure Act and that the record for purposes of judicial review of the
decision of the Appeals Officer was limited solely to the evidence received during the hearing
before the Appeals Officer. Section 6 of chapter 762 provided that no judicial proceedings
could be instituted for the recovery of compensation for injury or death under the Nevada
Industrial Insurance Act unless a claim for compensation had been filed in accordance with
the provisions of NRS 616.500 and there had been a final decision rendered by the NIC
Appeals Officer on such claim. Additionally, section 6 provided that judicial proceedings
instituted by a dissatisfied claimant after a final decision would be limited to the scope of
judicial review of an administrative decision, pursuant to the Nevada Administrative
Procedure Act, sections 233B.130-233B.150. As a result, the decision of the NIC Appeals
Officer was afforded the same status as a decision of an administrative agency under the
Nevada Administrative Procedure Act. NRS 233B.140, subsections 4 and 5.
1

The respondents, Luther Reese, Daniel G. Mahoney, and Michael E. Ausich, as
dissatisfied claimants of benefits under the Nevada Industrial Insurance Act, commenced this
original action in the Second Judicial District Court to challenge the constitutionality of the
1973 amendments to the Nevada Industrial Insurance Act. Appellant Richard Bortolin, in his
official capacity as the NIC Appeals Officer, was named a party defendant, along with the
NIC and the Commissioners, in their official capacities. The district judge, in his amended
judgment filed April 22, 1974, ruled sections 4, 5, 6, 7, 8, 9, and 12 of chapter 762
unconstitutional because they violated article 6, section 1, of the Nevada Constitution.2
____________________

1
The former procedure of filing a claim for industrial insurance compensation and, if dissatisfied, thereafter
filing an original action with another full evidentiary hearing in the district court against the NIC was replaced
with the administrative hearing before the Appeals Officer.
chapter 762 unconstitutional because they violated article 6, section 1, of the Nevada
Constitution.
2

Respondents predicate their argument that the amendments to the Industrial Insurance Act
are unconstitutional on the principal ground that they violate the traditional separation of
powers doctrine, article 3, section 1, of the Nevada Constitution
3
and the judicial power
provision set forth in article 6, section 1, of the Constitution.
4

In 1880, the Supreme Court of the United States declared in Kilbourn v. Thompson, 103
U.S. 168, 190, 191, that all powers entrusted to government are divided into executive,
legislative, and judicial branches, and that it is essential to the successful working of this
system that the persons entrusted with power in any one of these branches shall not be
permitted to encroach upon the powers confided to the others, but that each shall by the law
of its creation be limited to the exercise of the powers appropriate to its own department and
no other. The pronouncement was predicated upon reasoning stemming from Plato and
Locke. The basic doctrine had been stated by Blackstone a century before Kilbourn, in 1765:
"In all tyrannical governments, the supreme magistracy, or the right of both making and
of enforcing the laws, is vested in one and the same man, or one and the same body of
men; and wherever these two powers are united together, there can be no public liberty. .
. ."
____________________

2
The amended judgment provided in part as follows:
That Sections 4, 5, 6, 7, 8, 9, and 12 of (Chapter 762 of 1973 Statutes of Nevada, pp 1595 through 1598)
are unconstitutional, void and ineffective and in violation of Section 1, Article 6, of the Constitution of Nevada
on the following grounds and for the following reasons, namely:
(1) Said sections of Chapter 762 illegally delegate to an Administrative Appeals Officer judicial powers and
functions in workmens compensation cases;
(2) Said sections of Chapter 762 illegally and effectively abolish a pre-existing, long established and long
recognized judicially declared, independent original cause of action for injured complainants having a judicial
dispute with the Nevada Industrial Commission;
(3) Said sections of Chapter 762 illegally gave a right to appeal decisions of an appeals officer in workmens
compensation cases when such an appeal can legally lie only from a constitutional court or tribunal in such
cases.

3
Nev. Const. art. 3, 1:
The powers of the Government of the State of Nevada shall be divided into three separate
departments,the Legislative,the Executive and the Judicial; and no persons charged with the exercise of
powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the
others, except in the cases herein expressly directed or permitted.

4
The Judicial power of this State shall be vested in a Supreme Court, District Courts, and in Justices of the
Peace. The Legislature may also establish Courts for municipal purposes only in incorporated cities and towns.
In all tyrannical governments, the supreme magistracy, or the right of both making and of
enforcing the laws, is vested in one and the same man, or one and the same body of men; and
wherever these two powers are united together, there can be no public liberty. . . . 1
Blackstone Commentaries on the Laws of England 146 (Lewis's ed. 1902 at 133).
Most state constitutions, as the Nevada Constitution, contain explicit provisions having
something in common with the Kilbourn statement. Nev.Const. art. 3, 1, supra.
The Federal Constitution, however, contains no specific provision that the three kinds of
power shall be kept separate. It goes no further than to provide separately for each of the three
branches of Government: All legislative Powers herein granted shall be vested in a Congress
of the United States, which shall consist of a Senate and House of Representatives. Art. I,
1. The executive Power shall be vested in a President of the United States of America. . . .
Art. II, 1. The judicial Power of the United States, shall be vested in one supreme Court,
and in such inferior Courts as the Congress may from time to time ordain and establish. . . .
Art. III, 1.
The Supreme Court of the United States has held that judicial powers may be conferred
upon administrative agencies. See Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381
(1940); Reconstruction Fin. Corp. v. Bankers Trust Co., 318 U.S. 163 (1943). The High
Court, without disapproval, said of the Federal Trade Commission, in 1935: To the extent
that it exercises any executive functionas distinguished from executive power in the
constitutional senseit does so in the discharge and effectuation of its quasi-legislative or
quasi-judicial powers, or as an agency of the legislative or judicial departments of the
government. (Footnote omitted.) Humphrey's Executor v. United States, 295 U.S. 602, 628
(1935).
5
Since a typical administrative agency exercises many types of power, including
executive, legislative, and judicial, a strict application of the theory of separation of
powers would make the very existence of such an agency unconstitutional.

____________________

5
The realities of the law about separation of powers were stated by Mr. Justice Jackson: . . . They
[administrative bodies] have become a veritable fourth branch of the Government, which has deranged our
three-branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking.
Courts have differed in assigning a place to these seemingly necessary bodies in our constitutional system.
Administrative agencies have been called quasi-legislative, quasi-executive or quasi-judicial, as the occasion
required, in order to validate their functions within the separation-of-powers scheme of the Constitution. The
mere retreat to the qualifying quasi' is implicit with confession that all recognized classifications have broken
down, and quasi' is a smooth cover which we draw over our confusion as we might use a counterpane to conceal
a disordered bed. Federal Trade Comm'n v. Ruberoid Co., 343 U.S. 470, 487-488 (1952) (dissenting opinion).
Since a typical administrative agency exercises many types of power, including executive,
legislative, and judicial, a strict application of the theory of separation of powers would make
the very existence of such an agency unconstitutional.
While an administrative officer such as the NIC Appeals Officer cannot validly exercise
purely judicial functions under article 6, section 1, or article 3, section 1, of the Nevada
Constitution, we have heretofore recognized a distinction between purely judicial acts and
quasi-judicial administrative acts. As a result, administrative officials can exercise
administrative powers which are quasi-judicial in nature without violating the separation of
powers doctrine. Provenzano v. Long, 64 Nev. 412, 427, 183 P.2d 639, 646 (1947). The NIC
Appeals Officer's authority is limited to the power to conduct administrative hearings and
make findings and render administrative decisions thereon. To execute these duties, it is
necessary to exercise quasi-judicial powers. In Ormsby County v. Kearney, 37 Nev. 314, 346,
142 P. 803, 808 (1914), this court held that a statute which invests an administrative
commission or official with administrative powers does not violate the separation of powers
clause of the State Constitution, even though some of the administrative powers exercised by
the official are quasi-judicial in nature. The statute upheld in Kearney created the office of
State Water Engineer and empowered that official to conduct hearings, take evidence, and
make decisions that determined water rights. The exercise of these quasi-judicial
administrative powers by the State Water Engineer was held not violative of either article 3,
section 1, or article 6, section 1, of the Nevada Constitution. The court in Kearney, in
upholding the statute against an attack based on the separation of powers clause, quoted from
an earlier case, Sawyer v. Dooley, 21 Nev. 390, 396, 32 P. 437, 439 (1893): It would be
impossible to administer the state government were the officers not permitted and required, in
many instances, to discharge duties in their nature judicial, in that they must exercise
judgment and discretion in determining the facts concerning which they are called upon to
act, and in construing the laws applicable to them.
Kearney is persuasive authority for upholding the constitutional validity of the office of the
NIC Appeals Officer. In both cases the statutes challenged had created an administrative
position and delegated to the official in that position the power to carry out administrative
duties that are quasi-judicial in nature. The duties of both officials are almost identical in that,
like the State Water Engineer, the NIC Appeals Officer is granted the power to conduct
hearings on contested claims, take evidence relevant to those claims, and render final
administrative decisions thereon.
take evidence relevant to those claims, and render final administrative decisions thereon. See
also, Humboldt Land & Cattle Co. v. Sixth Judicial Dist. Court, 47 Nev. 396, 224 P. 612
(1924). In Mallatt v. Luihn, 294 P.2d 871 (Ore. 1956), the court considered the question of a
legislative delegation of power which allegedly constituted a violation of the doctrine of
separation of powers. The court stated, at 880: . . . [T]he mere fact that some functions
usually performed by courts are conferred upon an administrative body does not necessarily
bring the legislation into conflict with the principle of the separation of powers. And in
Mulhearn v. Federal Shipbuilding & Dry Dock Co., 66 A.2d 726, 731 (N.J. 1949), the
Supreme Court of New Jersey ruled that the State Division of Workmen's Compensation was
not a court, but was an administrative tribunal in a department that was a component part of
the State executive department. In addition, the court made a distinction between
administrative quasi-judicial duties of an official of the executive branch of government and
purely judicial adjudication properly vested in the judicial branch of government. The court
stated, at 730:
The failure to comprehend that administrative adjudication is not judicial springs from
the erroneous notion that all adjudication is judicial. This is not so and never has been so. . . .
Once the obvious right of the Governor and the Legislature, each to adjudicate within his or
its own proper sphere, is recognized and it is conceded that the courts are not the exclusive
instrumentalities for adjudication, the true nature of the administrative adjudications,
commonly termed quasi-judicial', becomes apparent. This term serves to characterize not the
quality of the adjudication but its origin outside the judicial branch of the government.
6
We
conclude, therefore, that the NIC Appeals Officer can exercise his administrative powers
that are quasi-judicial in nature without violating the separation of powers doctrine.

____________________

6
There is a large number of jurisdictions holding constitutional administrative adjudication of workmen's
compensation. Most of them hold that such a determination is not exclusively judicial in character, provided that
there is the customary judicial review. See Alabam's Freight Co. v. Hunt, 242 P. 658 (Ariz. 1926); Walters v.
Blackledge, 71 So.2d 433 (Miss. 1954); Utah Fuel Co. v. Industrial Comm'n, 194 P. 122 (Utah 1920); Borgnis
v. Falk Co., 133 N.W. 209 (Wis. 1911). See also Ontario Mining Co. v. Industrial Comm'n, 280 P. 483 (Colo.
1929); Grant Coal Mining Co. v. Coleman, 179 N.E. 778 (Ind. 1932). Some justify their holding by
characterizing the powers of the agency as summary, thus implying the degree of judicial power is slight. See
Grand Trunk Western Ry. v. Industrial Comm'n, 125 N.E. 748 (Ill. 1919); Cunningham v. Northwestern
Improvement Co., 119 P. 554 (Mont. 1911). There have been bolder, more realistic rationales. The Supreme
Court of Oregon has held that the power of the legislature to create courts such as the Industrial Commission is
unlimited. See
We conclude, therefore, that the NIC Appeals Officer can exercise his administrative
powers that are quasi-judicial in nature without violating the separation of powers doctrine. In
doing so, we agree with the pronouncement of Mr. Justice Douglas in Sunshine Anthracite
Coal Co. v. Adkins, supra, 310 U.S. 381, wherein an administrative agency was empowered
by Congress to make a finding of fact whether a coal producer produced bituminous coal as
defined in the Bituminous Coal Act. Justice Douglas wrote, at 400: To hold that there was
[an invalid delegation of judicial power] would be to turn back the clock on at least a half
century of administrative law.
The respondents have relied heavily upon State ex rel. Brown v. Nevada Indus. Comm'n,
40 Nev. 220, 161 P. 516 (1916); Dahlquist v. Nevada Indus. Comm'n, 46 Nev. 107, 206 P.
197, 207 P. 1104 (1922); and Nevada Indus. Comm'n v. Strange, 84 Nev. 153, 437 P.2d 873
(1968), in support of their position that this court has by the holdings in those cases
established the rule that an aggrieved employee who is dissatisfied with the award granted by
the NIC has a right to bring an original common law action in the district court against the
Commission.
Brown recognized such a right. Although the Industrial Insurance Act as it then existed
created new rights, it did not restrict the employee's privilege to pursue his common law
remedy. Therefore, the court properly recognized his right to sue the Commission. If a
statute which creates a right does not indicate expressly the remedy, one is implied, and resort
may be had to the common law, or the general method of obtaining relief which has displaced
or supplemented the common law. (Footnote omitted.) 2A Sutherland Statutory
Construction, 55.03, at 383 (C.Sands 4th ed. 1973). Dahlquist reaffirmed Brown. Since the
Legislature had not negated the employee's right to pursue his common law remedy after the
decision in Brown, the court properly followed its prior decision. Strange, supra, decided in
1968, again reaffirmed Brown and Dahlquist, and although an amendment to the
Administrative Procedure Act containing the present provisions for judicial review had been
passed by the 1967 Legislature, the court did not mention it or indicate that it was in any
way applicable to the case.
____________________
Evanhoff v. State Indus. Accident Comm'n, 154 P. 106 (Ore. 1915). The Supreme Court of Washington has held
that, because administrative adjudication is necessary to the success of the scheme, it is constitutional.
Necessary in this context may be taken to mean that each of the group of controversies delegated to
administrative adjudication is an aspect of an organic whole, best handled by a single agency. See State v.
Mountain Timber Co., 135 P. 645 (Wash. 1913).
did not mention it or indicate that it was in any way applicable to the case. The reason for this
was simply that the 1967 amendatory act stated, in section 13: The provisions of this act do
not apply to contested cases pending on July 1, 1967. Stats. Nev. 1967, ch. 280, 13, at 807,
811. As indicated in the opinion, 84 Nev. at 159, 437 P.2d at 877, Strange was a contested
case pending on July 1, 1967; hence, the amendment to the Administrative Procedure Act
containing the provisions for judicial review that in the present case were held invalid in the
district court did not apply to that case. Actually, the judicial review provisions have been
applicable to all agencies of the executive department since 1967, except those agencies
expressly exempted. The NIC was not exempted. See NRS 233B.030. We interpret the
adoption by reference of the Administrative Procedure Act by the 1973 Legislature as a
reaffirmation of the legislative intent to abolish the independent common law action.
Just as the Legislature under the police power could and did abolish the old common law
cause of action against the employer and abolish the latter's defenses and merge both into a
comprehensive statutory system which provided a fixed and certain indemnity when the
Nevada Industrial Insurance Act was first enacted, so, now, the Legislature can abolish the
independent, original cause of action against the NIC. It is settled by a host of authorities that
no person has a vested right in a rule of law, nor can anyone assert a vested right in any
particular mode of procedure. The legislative mandate is unrestricted, subject, of course, to
constitutional limitations. Vineyard Land & Stock Co. v. District Court, 42 Nev. 1, 171 P.
166 (1918); Humboldt Land & Cattle Co. v. Sixth Judicial Dist. Court, supra; Deibeikis v.
Link-Belt Co., 104 N.E. 211 (Ill. 1914); Hunter v. Colfax Consol. Coal Co., 154 N.W. 1037
(Iowa 1915); State ex rel. Davis-Smith Co. v. Clausen, 117 P. 1101 (Wash. 1911); Zancanelli
v. Central Coal & Coke Co., 173 P. 981 (Wyo. 1918); Munn v. Illinois, 94 U.S. 113 (1876).
We turn to consider the final reason given by the district judge in declaring the
aforementioned amendments to the Nevada Industrial Insurance Act unconstitutional: Said
sections of Chapter 762 illegally gave a right to appeal decisions of an appeals officer in
workmens compensation cases when such an appeal can legally lie only from a constitutional
court or tribunal in such cases. We find this contention completely meritless.
The district judge, in condemning chapter 762 on this ground, predicated his reasoning on
dicta appearing in Ormsby County v. Kearney, supra, 37 Nev. at 356, 142 P. at 812, where
Chief Justice Talbot declared in his separate, concurring opinion: As the constitution limits
the judicial power in this state to the supreme court, district, justice, city, and municipal
courts, it follows that it does not provide for an appeal to the district court from the decision
of any tribunal not mentioned in that document. Justice Talbot's dictum, however,
overlooked that provision of our Constitution that vests district courts with final appellate
jurisdiction in cases arising in justice courts, and such other inferior tribunals as may be
established by law. Nev. Const. art. 6, 6. In accordance with this constitutional mandate,
this court has repeatedly affirmed the district court's power to entertain appeals from
administrative agency hearings and rulings, despite the fact that such agencies are not
mentioned in the Constitution. Moreover, we have outlined the scope of judicial review in
such cases.
7

Although we have not heretofore directly examined the review provisions of the
Administrative Procedure Act, we have, on two occasions, implicitly recognized and affirmed
the power of the district court to entertain appeals from administrative agencies under the
provisions of that Act. In Harrison v. Department of Highways, 87 Nev. 183, 484 P.2d 716
(1971), we noted that NRS 233B.140 affords the court a limited power to modify or reverse
agency decisions. In Mead v. State Dep't of Health, 91 Nev. 152, 532 P.2d 611 (1975), we
implicitly affirmed the review provisions of NRS 233B.140 by holding that governmental
entities were not persons within the meaning of the Act so that such entities could
prosecute appeals to the district court. We now make explicit our approval of the review
provisions of the Administrative Procedure Act.
____________________

7
See, e.g., State ex rel. Johns v. Gragson, 89 Nev. 478, 482, 515 P.2d 65, 68 (1973) (review of zoning board
decision is limited to the record before the administrative tribunal, and in the absence of a showing that the
agency acted fraudulently or arbitrarily, the district court may not substitute its own opinion for that of the city
commissioners); Miller v. West, 88 Nev. 105, 493 P.2d 1332 (1972) (review of decision of State Welfare
Division is limited to the record before the Welfare Division and must be affirmed if the decision is supported by
substantial evidence). See, also, City of Reno v. Folsom, 86 Nev. 39, 464 P.2d 454 (1970); Holland Realty Inv.
Co. v. State, 84 Nev. 91, 436 P.2d 422 (1968); City of North Las Vegas v. Public Serv. Comm'n, 83 Nev. 278,
429 P.2d 66 (1967).
Procedure Act. Turning to those provisions, we note that NRS 233B.140(2)
8
provides in
substance that within 30 days after the service of the petition for review, or within further
time allowed by the district court, the Appeals Officer shall transmit to the district court the
original or a certified copy of the entire record of the proceedings under review. If, before the
date set for the hearing, application is made to the district court for leave to present additional
evidence, the court may order such evidence presented to the Appeals Officer. NRS
233B.140(3).
9
The review shall be confined to the record; however, in case of alleged
irregularities in procedures before the Appeals Officer not shown in the record, proof thereon
may be taken in the district court. NRS 233B.140(4).
10
While the district court may not
substitute its judgment for that of the Appeals Officer as to the weight of the evidence on
questions of fact, the district court may affirm the decision of the Appeals Officer, remand for
further proceedings, or reverse or modify the decision if substantial rights of the appellant
have been prejudiced because the Appeals Officer's findings, inferences, conclusions, or
decisions are (a) in violation of constitutional or statutory provisions, (b) in excess of
statutory authority, (c) made upon unlawful procedure, (d) affected by other error of law, {e)
clearly erroneous in view of the reliable, probative, and substantial evidence on the
record, or {f) arbitrary or capricious or characterized by abuse of discretion.
____________________

8
NRS 233B.140(2):
Within 30 days after the service of the petition, or within further time allowed by the court, the agency shall
transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under view.
By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably
refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require
or permit subsequent corrections or additions to the record.

9
NRS 233B.140(3):
If, before the date set for hearing, application is made to the court for leave to present additional evidence,
and it is shown to the satisfaction of the court that the additional evidence is material and that there were good
reasons for failure to present it in the proceeding before the agency, the court may order that the additional
evidence be taken before the agency upon conditions determined by the court. The agency may modify its
findings and decision by reason of the additional evidence and shall file that evidence and any modifications,
new findings or decisions with the reviewing court.

10
NRS 233B.140(4):
The review shall be conducted by the court without a jury and shall be confined to the record. In cases of
alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the
court. The court, upon request, shall hear oral argument and receive written briefs.
of law, (e) clearly erroneous in view of the reliable, probative, and substantial evidence on the
record, or (f) arbitrary or capricious or characterized by abuse of discretion. NRS
233B.140(5).
11

Thus we see that relief from a decision of the Appeals Officer is clearly provided for under
the Administrative Procedure Act and that the district court is given very broad supervisory
powers to insure that all relevant evidence is examined and considered by the Appeals
Officer. His findings and ultimate decisions, however, are not to be disturbed unless clearly
erroneous or otherwise amount to an abuse of discretion.
When the Nevada Industrial Insurance Act was first enacted in 1913, it represented an
entirely new approach to the recovery of compensation by an employee injured or killed on
the job. The old procedure of filing suit against an employer who had accepted the terms of
the Act was abolished, and recovery by an employee under the terms of the Act was made his
exclusive remedy against the employer. NRS 616.270(3); NRS 616.370(1); cf. Cummings v.
United Resort Hotels, Inc., 85 Nev. 23, 449 P.2d 245 (1969); McColl v. Scherer, 73 Nev.
226, 315 P.2d 807 (1957), citing both NRS 616.270 and NRS 616.370 and recognizing that
recovery under the Industrial Insurance Act is the exclusive remedy of the employee against
his employer if his employer has accepted the terms of the Industrial Insurance Act. In
response to this departure from the prior procedure, there was concern that the Act was in
violation of the Nevada Constitution and therefore unconstitutional. The Act, however, was
upheld by this court as a valid exercise of the State's police power. Nevada Indus. Comm'n v.
Washoe County, 41 Nev. 437, 446, 171 P. 511, 513 (1918).
____________________

11
NRS 233B.140(5):
The court shall not substitute its judgment for that of the agency as to the weight of the evidence on
questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings.
The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because
the administrative findings, inferences, conclusions or decisions are:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Made upon unlawful procedure;
(d) Affected by other error of law;
(e) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or
(f) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of
discretion.
The 1973 Nevada Legislature amended the Industrial Insurance Act by chapter 762 to
create the administrative position of NIC Appeals Officer. This amendment empowered that
official to conduct administrative hearings on contested workmen's compensation claims and
delegated quasi-judicial administrative powers to the Appeals Officer so that he could
properly carry out his administrative duties. In addition, it abolished the old procedure of
filing an independent suit against the NIC if a claimant was dissatisfied with the NIC's award
of compensation by providing that judicial review of the administrative decisions of the
Appeals Officer was limited to the scope of judicial review of other administrative decisions
under the Nevada Administrative Procedure Act.
We would do well to recall the approach that this court has taken with respect to
allegations that a particular statutory change is unconstitutional. Mr. Justice Coleman, in
Vineyard Land & Stock Co. v. District Court, supra, 42 Nev. at 26-27, 171 P. at 172-173, set
forth the proper guidelines when he wrote:
We do not accept radical changes without protest. If a statute radically different from
anything to which we have been accustomed is enacted, the average lawyer becomes alarmed
and at once brands it as unconstitutional. Lawyers generally were very much excited and
alarmed when the statutes of the various states creating railroad commissions, corporation
commissions, industrial insurance commissions, and the like, were enacted. They considered
them not only unconstitutional but revolutionary. Lawyers do not feel that way about the
matter today, because they have become used to such statutes. . . .
We are too prone to view legislation as unconstitutional, unmindful of the fact that,
unless a statute violates the letter or spirit of some portion of the constitution, it should be
upheld.
. . .
. . . These hidebound constructions are unnecessary, and they imperil the existence of
constitutional government. The constitutional guarantees must be maintained; but the only
way to maintain them is to mold them to the requirements of modern civilization. They must
be reins to guide the chariot of progress in the road of safety, not barriers across its track.'
We conclude that the provisions of chapter 762 amending the Nevada Industrial Insurance
Act do not violate the Nevada Constitution. Therefore, the judgment of the district court was
erroneous as a matter of law, and it is reversed.
Thompson, J., concurs.
Batjer, C. J., with whom Zenoff, J., joins, concurring:
We agree that the judgment of the district court was erroneous as a matter of law and must
be reversed, but for an entirely different reason than those announced by Justice Mowbray,
with whom Justice Thompson concurs.
We perceive no valid constitutional question to be decided. Proceedings instituted under
the provisions of Nevada Industrial Insurance Act, hereafter referred to as N.I.I.A., are not in
reality a lawsuit, but special proceedings essentially contractual in character, sanctioned and
encouraged by statute, but not compulsorily imposed on the parties. An employer may elect to
accept the terms of the N.I.I.A., by giving notice and paying to the Nevada Industrial
Commission all premiums. NRS 616.305.
1
The employee, where the employer has made the
election pursuant to NRS 616.305, is deemed by implication to have accepted the statutory
provisions of the N.I.I.A. at the time of injury for which liability is claimed if he does not give
notice to the employer of an election to reject the statutory terms. NRS 616.305. The
respondents in this case and their employers were free to decline to adopt the terms of the
N.I.I.A. to govern their relationship, and instead be governed by such rights and remedies as
might be accorded them under the common law with its constitutional and statutory
modifications. See Hecht v. Parkinson, 70 So.2d 505 (Fla. 1954); McNeese Construction
Company v. Harris, 273 S.W.2d 355 {Ky.
____________________

1
NRS 616.305: 1. Where the employer, as provided by this chapter, has given notice of an election to
accept the terms of this chapter, and the employee has not given notice of an election to reject the terms of this
chapter, the employer shall provide and secure, and the employee shall accept, compensation in the manner
provided by this chapter for all personal injuries sustained arising out of and in the course of employment.
2. Every employer electing to be governed by the provisions of this chapter, before becoming entitled to the
benefits of this chapter in the providing and securing of compensation to the employees thereunder, shall, on or
before July 1, 1947, and thereafter during the period of his election to be governed by the provisions of this
chapter, pay to the commission all premiums in the manner provided in this chapter. During the period of his
election to be governed by the provisions of this chapter he shall comply with all conditions and provisions
thereof.
3. Failure on the part of any employer to pay all the premiums as required by the provisions of this chapter
shall operate as a rejection of the terms of this chapter. In the event of any rejection of this chapter, or the terms
hereof, such rejecting employer shall post a notice of rejection of the terms of this chapter upon his premises in a
conspicuous place. The employer at all times shall maintain the notice or notices so provided for the information
of his employees.
355 (Ky. 1954); Fougnie v. Wilbert & Schreeb Coal Co., 286 P. 396 (Kan. 1930); Sollitt
Construction Company v. Walker, 135 N.E.2d 623 (Ind.App. 1956); Grice v. Suwannee
Lumber Manufacturing Company, 113 So.2d 742 (Fla.App. 1959). Cf. Reliford v. Eastern
Coal Corporation, 149 F.Supp. 778 (E.D. Ky. 1957).
The Supreme Court of the United States, in determining whether the Wisconsin
Workmen's Compensation Act deprived the employer of equal protection of the law in
violation of the 14th Amendment of the United States Constitution, held that the employer
having elected to accept the provisions of the law, and such benefits and immunities as it
gives, may not escape its burdens by asserting that it is unconstitutional. The election is a
waiver and estops such complaint. Booth Fisheries Co. v. Industrial Comm., 271 U.S. 208,
211 (1926), citing Daniels v. Tearney, 102 U.S. 415 (1880), and Grand Rapids & I. R. Co. v.
Osborn, 193 U.S. 17 (1904).
The same reasoning would apply by analogy to the contentions raised by respondents in
this case that certain amendments to the N.I.I.A. found in 1973 Statutes of Nevada, Chapter
762, are unconstitutional.
2
Likewise it is apparent that the district court erred when it ruled
sections 4, 5, 6, 7, 8, 9 and 12 of the above mentioned Chapter 762 to be unconstitutional
upon the grounds they violated article 6, section 1 of the Nevada Constitution.
Gunderson, J., dissenting:
Like my brothers Batjer and Zenoff, I reject the rationale espoused by our brothers
Mowbray and Thompson. The Nevada Constitution establishes that the doctrine of separation
of powers is fundamental to this state's system of government. City of No. Las Vegas v.
Daines, 92 Nev. 292, 550 P.2d 399 (1976); Dunphy v. Sheehan, 92 Nev. 259, 549 P.2d 332
(1976). Thus, I agree that severely circumscribed judicial review, such as here concerned, will
violate separation of powers if such limitations are imposed without prior intelligent
agreement. However, in my view, the legislative scheme does not, in fact, provide adequate
mechanics through which a workman may choose intelligently whether to accept or reject its
provisions. Thus, I disagree that constitutional infirmities may be ignored by classifying our
workman's compensation law as "contractual."
____________________

2
Caveat: For those employers enumerated in NRS 616.275, as well as their employees, the Nevada Industrial
Insurance Act is conclusive, compulsory and obligatory, and the reasoning of this concurring opinion might be
inapposite as to them.
be ignored by classifying our workman's compensation law as contractual.
Nothing in the record indicates that new employees are consistently advised of the option
to elect, the advantages and disadvantages of election, or the rights under both possibilities, in
order that they may make a voluntary, knowing, and intelligent election. Upon failure to reject
the provisions of the Act for any reason, whether due to ignorance or otherwise, an employee
is conclusively presumed to have elected to be covered by the Act, and therefore is precluded
from asserting his or her common law rights. NRS 616.305; Quicksilver Co. v. Thiers, 62
Nev. 382, 152 P.2d 432 (1944). Under such circumstances, the right to elect is illusory and
negative, and cannot realistically be equated to situations in which parties mutually assent to
special proceedings to determine their relative rights.
Having thus respectfully noted the tenuous nature of the implied contract upon which
Justices Batjer and Zenoff rely to by-pass concern for separation of powers, I now wish to
review, with equal deference and respect, the views stated by the court's other minority,
Justices Mowbray and Thompson.
From the inception of Nevada's Industrial Insurance Act, this court has consistently ruled
that, in contested cases, an injured workman has the right to an original determination of facts
regarding his right to compensation, and that, pursuant to our constitution, this is a judicial
function committed to the district courts. Nevada Indus. Comm'n v. Strange, 84 Nev. 153,
437 P.2d 873 (1968); Dahlquist v. Nevada Ind. Com., 46 Nev. 107, 207 P. 1104 (1922); State
v. Nevada Ind. Commission, 40 Nev. 220, 161 P. 516 (1916).
In State v. Nevada Ind. Commission, id. at 226, 161 P. at 518, we stated: Necessarily, the
claim of an employee, rejected in whole or in part by the industrial commission upon any
question of fact going to the extent of his injuries . . . must be determined in an action at law
against the commission. (Emphasis added.) Further, we held that this was purely a judicial
function to be properly performed only by a district court: A district court is the proper
forum to determine the legality of his claim, and, if a legal claim, the amount he is entitled to
recover under the statute. Id. at 227, 161 P. at 518. We reaffirmed this position in Dahlquist
v. Nevada Ind. Com., cited above, and again in Nevada Indus. Comm'n v. Strange, cited
above, wherein we stated at 155, 437 P.2d at 875: [T]his court [has] clearly established that
an aggrieved employee who was dissatisfied with the award of compensation granted by the
Commission had the right to bring an original action in district court against the
Commission and that the enforcement of that right in the district court involved a
justiciable controversy over which our district courts have original jurisdiction as
provided in the Nevada Constitution.'' {Emphasis added.)
action in district court against the Commission and that the enforcement of that right in the
district court involved a justiciable controversy over which our district courts have original
jurisdiction as provided in the Nevada Constitution.'' (Emphasis added.)
The 1973 amendment radically modifies our industrial compensation law not only by
shifting from the judicial branch of government to the executive a function we have
heretofore deemed purely judicial, but also by eliminating altogether effective judicial
intervention in disputed cases. This is clearly improper.
By section 4, the amendment supplants judicial intervention in contested claims between
the commission and injured workmen by creating the NIC appeals officer to hear and
decide such cases. In essence, this officer is nothing more than an unelected adjudicator who
is subservient to the executive branch and performs functions previously committed to an
independent district court. He is appointed by the governor for a minimum term of four years
and remains in office thereafter so long as his disposition of disputed cases pleases the
executive branch. NRS 616.542(1). His salary is paid from the state insurance fund, the same
fund from which employees receive compensation. NRS 616.542(1). The amendment
empowers him to hear and decide contested claims between injured workmen and the
commission, itself a part of the executive branch. NRS 616.542. In conducting such hearings,
he can issue subpoenas requiring the attendance of witnesses or the production of documents,
call and examine witnesses or parties, pass upon all questions arising during the course of a
hearing, permit or deny discovery, dispose of procedural requests, and generally guide the
course of a proceeding or pending hearing. NRS 616.226. No judicial proceedings may be
initiated until this officer renders his supposedly impartial decision, which is the final
administrative determination of the matter. NRS 616.542(4) and 616.543.
The amendment further restricts ultimate judicial action to a narrow review of the officer's
decision pursuant to the Nevada Administrative Procedure Act. NRS 616.543. This review is
quite circumscribed and limited. See: Harrison v. Dep't of Highways, 87 Nev. 183, 484 P.2d
716 (1971). Unless clearly erroneous, the court must accept the appeals officer's findings and
conclusions. NRS 233B.140(5). This necessarily requires the court to defer to the officer's
findings and conclusions, and the court can no longer make de novo factual determinations.
Indeed, if the claimant desires new evidence to be considered, he must petition the court,
demonstrate the evidence is material, and show good reason why it was not presented to
the appeals officer.
he must petition the court, demonstrate the evidence is material, and show good reason why it
was not presented to the appeals officer. NRS 233B.140. Even if the claimant satisfies the
court that new evidence should be considered, the court is not authorized to receive it.
Instead, the evidence must first be presented to the appeals officer for his consideration. NRS
233B.140(3).
In my view, to fasten the workman with the legal, equitable, and factual determinations of
a subservient member of the executive branch in this fashion, divesting his right to
independent determinations by a real judicial tribunal, not only fails to protect the claimant's
rights under the Industrial Insurance Act, but violates our constitution.
Regardless of what may be permitted in other jurisdictions, it is for our court, based on its
constitution, to determine what powers must be kept separate between the three branches of
government. Article 3, section 1 of our 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, . . . (Emphasis added.) Article 6, section 1 vests the
judicial power of our state only in a supreme court, district courts, justices of the peace, and
courts the legislature establishes for municipal purposes in incorporated cities and towns.
Thus, in the face of these provisions and our firmly established case law, I cannot perceive
how the legislature may constitutionally confer such broad power on the appeals officer to the
exclusion of the judiciary.
I recognize that some jurisdictions do permit executive officers to exercise functions
similar to those of the appeals officer. However, this is permitted pursuant to constitutional
provisions different from ours, and, for this reason, authority from those jurisdictions is not
here persuasive or even germane. For example, while some administrative officers on the
federal level exercise such power, it is acknowledged that the United States Constitution has
no provision regarding separation of powers as set forth in article 3, section 1 of our
constitution. Further, while the exercise of judicial power by federal agencies may arguably
be necessitated due to peculiar needs of the federal system, Nevada has different needs. Even
now, I note, people are becoming dissatisfied as the federal bureaucracy burgeons, and as
their rights to due process become more and more blurred.
blurred. For these reasons, the federal cases are not, to me, persuasive authority for stretching
Nevada's constitution to sustain the office of the NIC appeals officer.
I am aware of no sister state having constitutional provisions like ours which permit the
commission or one of its employees to exercise such powers. In those jurisdictions where the
commission does exercise such powers, the people have authorized it by specific
constitutional provisions. See: Provenzano v. Long, 64 Nev. 412, 183 P.2d 639 (1947);
Michigan Mut. Liability Co. v. Baker, 294 N.W. 168 (Mich. 1940). For example, when the
people of California adopted their workmen's compensation law, they also saw fit to amend
their constitution to permit the legislature to provide for the settlement of any disputes . . . by
arbitration, or by an industrial accident board, by the courts, or by either or any or all of these
agencies, anything in this Constitution to the contrary notwithstanding. Cal. Const. art. 20,
21 (1911). The manifest purpose of this amendment was to obviate objections, based on
constitutional provisions almost identical to ours, to the determination of compensation by a
body other than a judicial tribunal. See: Western Metal Supply Co. v. Pillsbury, 156 P. 491,
497 (Cal. 1916) (Angellotti, C. J., concurring). Indeed, the California Supreme Court has
noted that their commission, in awarding compensation, is exercising judicial power and
acting as a court, and, but for the special constitutional amendment, this would be improper
due to constitutional provisions like ours. See: Carstens v. Pillsbury, 158 P. 218 (Cal. 1916);
Western Metal Supply Co. v. Pillsbury, cited above; Pacific Coast Casualty Co. v. Pillsbury,
153 P. 24 (Cal. 1915).
The people of Nevada have not so liberalized our constitution as to sanctify the legislative
establishment of a judicial tribunal within the executive department. On the contrary,
Nevada's constitutional mandates, regarding separation of powers and the vesting of judicial
power only in specifically enumerated courts, closely parallel those of New Mexico and
Maryland. Each of these jurisdictions has faced similar attempts by its legislature to permit
the commission to determine one's right to compensation and make such determination final,
subject only to a very limited judicial review.
In State v. Mechem, 316 P.2d 1069 (N.M. 1957), the New Mexico Supreme Court
denounced their legislature's attempt to preclude de novo judicial determination of a
workman's right to compensation in disputed cases. That court astutely perceived that it was
improper to permit the commission to determine one's right to compensation because the
commission would then be determining rights and liabilities between individuals.
would then be determining rights and liabilities between individuals. The court stated: The
rights and liabilities of a private individual are fixed by law and are to be determined by
judicial inquiry. . . . The fact that an appeal is provided for from the decision of the board . . .
to the district court does not alter the character of the proceedings.' * * * Here, the legislature
has attempted to create an executive agency, clothe it with judicial power, on a parity with
district courts, and invest it with statewide jurisdiction. This cannot be done. Id. at 1070-71.
Maryland also has constitutional provisions like ours which forbid persons performing
executive functions from exercising judicial functions and vest all judicial power only in
specifically enumerated courts. Maryland's workmen's compensation statute permits the
commission to make compensation determinations which are final and conclusive if
supported by substantial evidence. However, Maryland's law also provides for a de novo trial
on appeal. See: Md. Code Ann. art. 101, 56 (Supp. 1976); Abell v. Albert F. Goetze, Inc.,
226 A.2d 253 (Md. 1967). [I]t is rather clear that, but for this aspect of the Workmen's
Compensation Law, [Maryland's] Act would have surely been declared unconstitutional if it
had not provided for the right to a jury trial by a de novo appeal. County Coun., Montgomery
Cty. v. Investors F. Corp., 312 A.2d 225, 256 (Md. 1973) (Barnes, J., concurring in part and
dissenting in part).
In reaching the conclusion that the 1973 amendment does not violate the separation of
powers, Justices Thompson and Mowbray rely heavily on Ormsby County v. Kearney, 37
Nev. 314, 142 P. 803 (1914). However, a careful analysis of Kearney clearly manifests it is
not persuasive authority for upholding the constitutionality of the office of the NIC appeals
officer, and, in fact, mandates an opposite conclusion.
Kearney involved the constitutionality of Nevada's water law of 1913 which authorized the
state engineer to determine relative rights and empowered him to administer and regulate the
use of water in accordance with his determinations. The majority of the court upheld the state
engineer's power to determine relative water rights for administrative purposes only.
However, by scrutinizing the majority position set forth by Justices Norcross and Talbot and
the dissenting position by Justice McCarran, it is plain that their opinions do not support the
constitutionality of the office of the NIC appeals officer.
Justice Norcross set the tone for the majority by first explaining that the Act before the
court concerned the economic use and distribution of water, a scarce commodity in the
arid west.
explaining that the Act before the court concerned the economic use and distribution of water,
a scarce commodity in the arid west. He noted that, due to the public interest in distributing
water for the best economic use, not only could the state regulate water, but such regulation
was the only effective manner to control this scarce natural resource. Ormsby County v.
Kearney, cited above at 336-38, 142 P. at 805-806. Justice Norcross concluded that the
engineer could, in his administration of the water law, make administrative determinations
regarding relative water rights. Id. at 339, 142 P. at 806. However, in reaching this
conclusion, Norcross stressed two important points. First, [t]he right . . . to have the matter
finally adjudicated by the courts is not attempted to be taken away, id. at 339, 142 P. at 806,
and, in the event of disputes as to water rights, the parties contesting must initiate an
adjudication by the courts. . . . (Emphasis added.) Id. at 350, 142 P. at 810. Secondly,
Norcross, quoting from other jurisdictions, elucidated the true nature of the engineer's
proceeding to determine relative water rights and explained: (1) Affirmative relief in favor
of one party as against another is not its object,' id. at 346, 142 P. at 808, (2) in the
proceeding, a party does not obtain redress for an injury, but secures evidence of title to a
valuable right . . . ,' id. at 344, 142 P. at 808, and (3) the proceeding does not result in a
judgment for damages to a party for injuries sustained . . . ,' but only the adjustment of
the priorities of appropriation of the public waters of the state . . . ,' id. at 343, 142 P. at 807.
Thus Norcross found the Act constitutionally valid because it in no way affected a party's
right to de novo judicial determinations and did not involve either affirmative relief or redress
for injuries.
In his concurring opinion, Justice Talbot also concluded that the engineer could
constitutionally determine relative water rights for administrative purposes. Id. at 354, 142 P.
at 811. Talbot found this permissible because the state, pursuant to its police power, could
regulate such an important commodity as water just as it regulates certain other business and
property. Id. at 354, 142 P. at 811. However, Justice Talbot, like Norcross, emphasized that
such determinations could not be conclusive against adjudication by the courts. He noted that,
if the Act provided for no appeal from the engineer's determinations, our constitution would
be violated. Id. at 356, 142 P. at 811-12. Further, he stated that [t]he fact that the statute
provides for an appeal cannot make the determination of the state engineer binding as a final
adjudication of water rights or endow him with judicial power to make a final determination
of rights, when the constitution directly limits that power to the courts specified." Id. at
356-57, 142 P. at S12.
when the constitution directly limits that power to the courts specified. Id. at 356-57, 142 P.
at 812.
Finally, Justice McCarran, dissenting, found that Nevada's constitution would not permit
such a method of determining water rights, even for administrative purposes. McCarran
argued that article 6, section 6 of Nevada's constitution limited the district court's final
appellate jurisdiction to cases from justice courts and inferior tribunals established pursuant
to article 6, section 1. Since the state engineer was neither a justice court nor an inferior
tribunal, the district court had no appellate jurisdiction over the engineer's decision. Thus,
McCarran concluded the Act was unconstitutional and stated: As has already been stated, the
constitution limits the appellate jurisdiction of the district court to those cases appealed from
justices' courts and such other inferior tribunals as may be established by law, and hence it
follows that unless we read into this provision of the constitution either that the state engineer
is an inferior tribunal, established by the water law of 1913, or that the district court will take
appellate jurisdiction in cases other than those conferred upon it by the organic law, it
necessarily follows that the provision of the water law of 1913, as to appeals from the orders
and determinative decrees of the state engineer, are unconstitutional, and the district court
would be without power to assume such jurisdiction. If we view the contemplated final orders
or decrees of the state engineer and his determinations in the light of these conclusions, it
unanswerably follows that, there being no appeal from the determinations of the state
engineer, they are therefore final determinations, and these final determinations are in matters
in which the right of possession to property is involved, and the party aggrieved is cut off
from access to the civil courts, and the constitutional guaranty is nullified. Id. at 379, 142 P.
at 819.
Thus, reviewing the reasoning of each justice in Kearney, it is clear none of them would
uphold the office of the appeals officer in the instant case. Since the proceeding before the
appeals officer seeks affirmative relief in favor of one party and results in an award of
damages for injuries sustained, Norcross would distinguish this proceeding from that before
the engineer in which no affirmative relief is sought. In addition, Norcross would find the
1973 amendment constitutionally invalid for precluding a claimant's right to a de novo
judicial determination in disputed cases. Similarly, Justice Talbot would also find the
amendment unconstitutional because, even though a workman can obtain a limited appeal
pursuant to the Administrative Procedure Act, the determination of the appeals officer, for
all practical purposes, is the final determination, conclusive against de novo adjudication
by the courts.
Procedure Act, the determination of the appeals officer, for all practical purposes, is the final
determination, conclusive against de novo adjudication by the courts. Finally, McCarran
would denounce not only the office of the NIC appeals officer but any system which deprived
the district court of the jurisdiction vested in it by our constitution. In summary, it is patent
that Kearney is not persuasive authority for upholding the office of the NIC appeals officer.
Thus, as my brothers Batjer and Zenoff evidently see, the statutory scheme is
insupportable, unless consent or contract may be invoked to save it. Since only those two
justices, a minority of this court, express the view that the illusory consent raised by the
statute results in a valid contract, the validity of that rationale remains in serious doubt even
in this court. Moreover, since the presumption relied upon to raise a contract lacks a
rational basis, I suggest that to avoid application of the Nevada Constitution my brothers
Batjer and Zenoff may have raised equally serious federal concerns. See, for example,
Western & Atl. R. Co. v. Henderson, 279 U.S. 639 (1929); cf. Edwards v. Sheriff, 93 Nev.
13, 558 P.2d 1144 (1977).
____________
93 Nev. 137, 137 (1977) City of Las Vegas v. Williams
CITY OF LAS VEGAS, NEVADA, a Municipal Corporation, ORAN K. GRAGSON,
Mayor, WESLEY G. HOWERY, JAMES COREY, HANK THORNLEY and DR.
ALEXANDER COBLENTZ, Board of Commissioners, Appellants and Cross-Respondents,
v. C. D. WILLIAMS, Respondent and Cross-Appellant.
No. 8373
March 10, 1977 560 P.2d 922
Appeal and cross-appeal from order granting summary judgment, Eighth Judicial District
Court, Clark County; Keith C. Hayes, Judge.
Former Fire Chief who had been demoted brought action against City to recover pay
differential and to obtain reinstatement. The district court granted summary judgment in favor
of the Chief with respect to the pay differential but refused to order reinstatement and both
parties appealed. The Supreme Court held that factual dispute as to whether City had
complied, after demoting the Fire Chief at a meeting which did not follow procedural
requirements set forth in the city charter, with the city charter provisions for ratification
of that action when it subsequently denied the Fire Chief's claim for pay differential
precluded grant of summary judgment.
follow procedural requirements set forth in the city charter, with the city charter provisions
for ratification of that action when it subsequently denied the Fire Chief's claim for pay
differential precluded grant of summary judgment.
Carl E. Lovell, Jr., City Attorney, and Richard C. Maurer, Deputy City Attorney, Las
Vegas, for Appellants and Cross-Respondents.
William R. Devlin, Las Vegas, for Respondent and Cross-Appellant.
1. Judgment.
Motion for summary judgment should not be granted unless there is no genuine issue as to any material
fact in the case.
2. Judgment.
Dispute regarding compliance or noncompliance by City, which had demoted Fire Chief at a meeting of
the Board of City Commissioners which did not comply with numerous procedural requirements set forth
in the city's charter, with the ratification requirements set forth in the charter when it subsequently denied
the demoted chief's claim for pay differential precluded grant of summary judgment in former chief's action
for reinstatement and back wages.
OPINION
Per Curiam:
At a special meeting and without first complying with numerous procedural requirements
set forth in the Las Vegas City Charter, the Board of City Commissioners approved the city
manager's demotion of C. D. Williams from Fire Chief to Assistant Fire Chief. Subsequently,
at a regularly scheduled Board meeting, Williams presented a claim for the pay differential
occasioned by his demotion, premised on the contention that such demotion was improper.
The Board unanimously denied his first claim, and Williams subsequently presented
additional claims for wage differentials accruing thereafter. Ultimately, he filed suit seeking
reinstatement as Fire Chief, and the total differential between wages actually received and
those allegedly due him as Chief.
On motion for summary judgment the trial judge awarded Williams judgment for the total
pay differential, but denied reinstatement because, as the judge concluded, . . . to do so
would be a useless act and could only lead to unnecessary further proceedings. . . ."
further proceedings. . . . The City has appealed from the portion of the summary judgment
granting the pay differential, and Williams has cross-appealed from that portion denying
reinstatement.
[Headnotes 1, 2]
Here, one central factual issue is whether the Board intended to confirm and ratify
Williams' demotion, when it denied his first claim for wages ostensibly remaining due him as
Chief. A motion for summary judgment should not be granted unless there is no genuine issue
as to any material fact in the case. See: Ottenheimer v. Real Estate Division, 91 Nev. 338, 535
P.2d 1284 (1975); Old West Enterprises v. Reno Escrow Co., 86 Nev. 727, 476 P.2d 1
(1970); Islandia, Inc. v. Marechek, 82 Nev. 424, 420 P.2d 5 (1966). Here, it appears that such
a dispute exists regarding the compliance or non-compliance with the ratification
requirements for demotion set forth in Las Vegas City Charter Ch. III, 16 1/2 (1968). Thus,
we reverse and remand with instructions to the district court to resolve the factual dispute
surrounding the ratification of William's demotion.
1

____________________

1
In view of our disposition of this appeal we need not, at this juncture, consider the cross-appeal.
____________
93 Nev. 139, 139 (1977) McKissick v. McKissick
BLAIR McKISSICK, BRUCE McKISSICK, BARBARA McKISSICK JEMISON,
Individually, and as Guardian ad Litem for JOHN McKISSICK and MOLLY McKISSICK,
Minors, Appellants and Cross-Respondents, v. DOROTHY McKISSICK, Individually, and as
Administratrix of the Estate of Howard F. McKissick, Jr., Respondent and Cross-Appellant.
No. 8984
March 14, 1977 560 P.2d 1366
Appeal and cross-appeal from judgment; Second Judicial District Court, Washoe County;
John E. Gabrielli, Judge.
Decedent's first wife and children brought action against decedent's second wife,
individually and as administratrix of decedent's estate, seeking, inter alia, constructive trust
upon proceeds of life insurance policies and declaration that time certificate of deposit was
an asset of decedent's estate subject to claims of creditors and thereafter distributable to
decedent's heirs at law.
certificate of deposit was an asset of decedent's estate subject to claims of creditors and
thereafter distributable to decedent's heirs at law. The district court impressed a limited
constructive trust over proceeds of life insurance and held that time certificate became
property of decedent's second wife by operation of law, and cross-appeals were taken. The
Supreme Court, Thompson, J., held that second wife was properly deemed to have held
insurance proceeds in constructive trust for first wife, and such trust was not limited to
$50,000 figure mentioned in property settlement agreement, but included increase in proceeds
resulting from husband's accidental death; that words of time certificate did not create joint
tenancy, and oral evidence of second wife's intention to hold time certificate in joint tenancy
did not remedy deficiency in written instrument; that time certificate was community
property, and, upon husband's death intestate, passed to husband's second wife as his
surviving spouse.
The parts of the judgment from which the appeal is taken are reversed. The part of
the judgment from which the cross-appeal is taken is affirmed. Cause remanded for
entry of judgment in accordance with opinion.
[Rehearing denied April 13, 1977]
Beckley, Singleton, De Lanoy, Jemison & Reid, Chartered, of Las Vegas, for Appellants
and Cross-Respondents.
Raggio, Walker & Wooster, and David J. Guinan, of Reno, for Respondent and
Cross-Appellant.
Bissett and Logar, of Reno, for Estate of Howard F. McKissick, Jr.
1. Judgment.
Where property settlement agreement described a life insurance policy insuring husband's life as issued
by a specified insurer in face amount of $50,000, but when such agreement was made, husband did not
have such a policy with specified insurer, error in describing life insurance policy was clerical in nature,
since it did not occur as consequence of exercise of judicial discretion, and could be corrected at any time.
NRCP 60(a).
2. Trusts.
Where divorce decree obligated divorced husband to maintain life insurance with divorced wife as
irrevocable beneficiary, property settlement agreement erroneously stated that policies insuring husband's
life were in face amount of $50,000, and divorced husband subsequently designated his second wife as
beneficiary of policies, upon death of divorced husband, husband's second wife was properly deemed
to have held insurance proceeds in constructive trust for first wife, and such trust
was not limited to $50,000 figure mentioned in property settlement agreement, but
included increase in proceeds resulting from husband's accidental death.
properly deemed to have held insurance proceeds in constructive trust for first wife, and such trust was not
limited to $50,000 figure mentioned in property settlement agreement, but included increase in proceeds
resulting from husband's accidental death.
3. Joint Tenancy.
A writing is required to create a joint tenancy in personal property. NRS 111.065, subd. 2.
4. Joint Tenancy.
Oral evidence of intention to hold personal property in joint tenancy may not supply deficiency in written
instrument; joint tenancy must be created by written transfer, agreement or instrument, and may not be
created orally. NRS 111.065, subd. 2.
5. Joint Tenancy.
Since joint tenancy is a method by which property may pass upon death, a written instrument specifying
such intention is essential, and claims of creditors should not be erased by oral testimony of intention given
by one asserting the rights of a surviving joint tenant. NRS 111.065, subd. 2.
6. Joint Tenancy.
Joint tenancies are not favored in courts of equity. NRS 111.065, subd. 2.
7. Husband and Wife.
Where husband and his second wife purchased time certificate of deposit from funds realized from sale of
real property they had held as joint tenants, and there was no written agreement between husband and
second wife with respect to creation of joint tenancy in time certificate, and time certificate was issued in
names of husband and/or husband's second wife, words of time certificate did not create joint tenancy, and
oral evidence of second wife's intention to hold time certificate in joint tenancy did not remedy deficiency
in written instrument. NRS 111.065, subd. 2.
Where husband and his second wife purchased time certificate of deposit from funds realized from sale of
real property they had held as joint tenants, and there was no written agreement between husband and
second wife as to status of time certificate, time certificate was community property and, upon husband's
death intestate, passed to husband's second wife as his surviving spouse; however, one half of such
certificate was subject to administration and creditors' claims. NRS 123.130, 123.220, 123.250, subd.
1.
OPINION
The former wife and children of Howard F. McKissick, Jr., commenced separate actions,
later consolidated, against Dorothy McKissick, Howard's second wife and the administratrix
of his estate. Their objective was to secure a judgment against the estate for accrued child
support with interest which became due in the six years preceding Howard's death; to
impress a constructive trust for the benefit of the children upon the proceeds of life
insurance policies in Howard's name; and, to have the court declare that a time certificate
of deposit for $3S5,000 issued to "Howard F. McKissick, Jr., andJor Dorothy McKissick"
was an asset of Howard's estate subject to claims of creditors, and thereafter
distributable to his heirs at law.
became due in the six years preceding Howard's death; to impress a constructive trust for the
benefit of the children upon the proceeds of life insurance policies in Howard's name; and, to
have the court declare that a time certificate of deposit for $385,000 issued to Howard F.
McKissick, Jr., and/or Dorothy McKissick was an asset of Howard's estate subject to claims
of creditors, and thereafter distributable to his heirs at law.
The district court entered judgment against Howard's estate for accrued child support and
interest in the amount of $46,219.96. No appeal is taken from that judgment. The district
court impressed a constructive trust over proceeds of life insurance, but limited that trust to
$50,000. The district court declared that the time certificate of deposit was held in joint
tenancy by Howard and Dorothy prior to Howard's death, and became Dorothy's property by
operation of law.
Barbara and the children have appealed from the ruling limiting the constructive trust to
$50,000, contending that all life insurance proceeds should be subject to the trust. They also
appeal from the judgment that the time certificate of deposit is joint tenancy property. By
cross-appeal, Dorothy contends that the district court erred when it impressed a constructive
trust upon the proceeds of Howard's life insurance policies.
Barbara McKissick (now Jemison) married Howard F. McKissick, Jr., on October 25,
1953. There were four children of their union: Blair, born October 9, 1954; Bruce, born
December 9, 1955; John, born March 7, 1958; and Molly, born September 8, 1959. Their
marriage was dissolved by divorce on April 29, 1964. They entered into a property settlement
agreement which the court approved and made part of the decree.
The provision of the agreement regarding insurance is quoted below.
1
The district court
found that the primary purpose of that provision was to provide for the future support and
education of the minor children.
____________________

1
Life Insurance.
The husband agrees that he will maintain the life insurance policy presently insuring his life, which policy is
with the Equitable Life Insurance Company of America and which policy is in the face amount of $50,000, free
and unencumbered and that he will promptly pay all premiums due thereon. The Wife shall be the irrevocable
beneficiary on said policy until the Husband changes the beneficiary naming the First National Bank of Nevada
as Trustee of the proceeds of said policy and by the creation of a trust for the benefit of the Wife and the four
children of Husband and Wife, said trust to continue until the youngest child has reached the age of twenty-one
(21) years or has completed four years of college education, whichever shall first occur, that a pro
Dorothy McKissick and Howard were married in 1965. An accident caused Howard's
death on October 24, 1973. He died intestate. During their marriage they acquired valuable
real property which they held in joint tenancy, and later sold to Harrah Realty Company.
From part of the proceeds of that sale they purchased a time certificate of deposit in the
amount of $385,000. That certificate was issued by the First National Bank of Nevada to
Howard F. McKissick, Jr., and/or Dorothy McKissick. The district court found the
certificate to be in a form to be paid to the survivor. Howard's estate is insolvent if the time
certificate of deposit became Dorothy's as his surviving joint tenant.
1. As noted, Howard agreed to maintain the life insurance policy presently insuring his
life. That insurance was described as a policy with the Equitable Life Insurance Company of
America in the face amount of $50,000. Barbara was to be the irrevocable beneficiary. The
evident purpose was to provide for the future support and education of their children.
When the agreement was made Howard did not have a life insurance policy with the
Equitable Life Insurance Company of America in the face amount of $50,000. There was no
such company. Nor did he then have life insurance in that amount. However, at that time,
there were in existence three policies presently insuring his life with a total face value of
$40,000. At the time of his death those policies named Dorothy, his second wife, beneficiary.
Accidental death benefits increased those policies to $112,848.59 which sum Dorothy has
received.
[Headnote 1]
The district court found that Howard intended to provide life insurance for the benefit of
Barbara and the children in the amount of $50,000, and that the court in its divorce decree so
intended. The misdescription of the policy in the property settlement agreement resulted from
a mistake and was deemed by the court to be a clerical, as distinguished from a judicial, error.
Clearly, the error in describing the insurance presently insuring his life may not be
attributed to judicial discretion, or as an incorrect result in the exercise of a judicial function.
Marble v. Wright, 77 Nev. 244, 362 P.2d 265 (1961). The error in describing the insurance
was clerical in nature since it did not occur as a consequence of the exercise of a judicial
function.2 Clerical errors may be corrected at "any time."
____________________
rata portion of said policy shall be released to Husband if he be living. That at the time the last child reaches the
age of twenty-one (21) or completes four years of college education, the entire policy shall then become the sole
and separate property of the Husband if he be living, upon his paying to Wife the sum of One Thousand Seven
Hundred Fifty dollars ($1,750.00) being one-half (1/2) of the present cash value of the policy.
describing the insurance was clerical in nature since it did not occur as a consequence of the
exercise of a judicial function.
2
Clerical errors may be corrected at any time. NRCP 60(a);
Alamo Irrigation Co. v. United States, 81 Nev. 390, 404 P.2d 5 (1965). Consequently, the
court ruled that Dorothy held $50,000 of the insurance money paid to her as constructive
trustee for the uses and purposes expressed in the property settlement agreement.
It was permissible for the court to conclude that the property settlement agreement
expressed an intention on the part of Howard to provide life insurance for the benefit of
Barbara and the children. To conclude otherwise would attribute to Howard an intention to
defraud Barbara and the children. There is nothing in the record to suggest such an evil
purpose.
[Headnote 2]
The divorce decree obligated Howard to maintain insurance with Barbara as the
irrevocable beneficiary.
3
This constituted an equitable assignment for her benefit. Chilwell
v. Chilwell, 105 P.2d 122 (Dist.Ct.App. Cal. 1940); Murphy v. Travelers Insurance Co., 534
F.2d 1155 (5th Cir. 1976); General American Life Insurance Co. v. Rogers, 539 S.W.2d 693
(Mo.Ct.App. 1976). He violated the agreement and decree when he designated his second
wife, Dorothy, as the beneficiary of the insurance policies. In such circumstances it is
permissible to conclude, as did the district court, that the second wife holds the insurance
proceeds in a constructive trust for the first wife. Salinas v. Salinas, 62 N.Y.S.2d 385 (Sup.Ct.
1946). The problem remains, however, as to the extent of that trust. The district court limited
the trust to $50,000 since that was the sum mentioned in the property settlement agreement.
We believe that the court erred in so limiting the trust. The figure of $50,000 in the
insurance paragraph of the property settlement was a part of the misdescription of the life
insurance presently insuring his life. He did not have life insurance in that amount.
Notwithstanding this mistake, it is clear that Howard intended to secure his obligation to
provide for the support and education of his children in the event of his untimely death by
means of the life insurance he had when the agreement was made.4 Consequently,
Barbara and the children are entitled to the proceeds of that insurance including the
increase in amount by reason of Howard's accidental death since such increase properly
belongs to the person or persons for whose benefit the insurance was required to be
carried.
____________________

2
The provision in the agreement regarding the description of insurance was from a financial statement
submitted by Howard or his agent and accepted by counsel for Howard and Barbara as true and correct.

3
The provision that Howard could change the beneficiary naming the First National Bank of Nevada as
Trustee. . . . was never effectuated.
untimely death by means of the life insurance he had when the agreement was made.
4
Consequently, Barbara and the children are entitled to the proceeds of that insurance
including the increase in amount by reason of Howard's accidental death since such increase
properly belongs to the person or persons for whose benefit the insurance was required to be
carried. Odom v. Prudential Insurance Company of America, 145 P.2d 480 (Ore. 1944);
Newton v. Newton, 472 P.2d 718 (Ct.App. Colo. 1970). We, therefore, conclude that the life
insurance proceeds received by Dorothy in the amount of $112,848.59 are held by her as
constructive trustee for the benefit of Barbara and the children.
2. On October 4, 1973, Dorothy purchased a time certificate of deposit from the First
National Bank of Nevada. It was issued in the names of Howard F. McKissick, Jr., and/or
Dorothy McKissick. There was no written agreement between Howard and Dorothy with
respect to the creation of a joint tenancy in the time certificate of deposit. Neither did the
certificate itself contain language of joint tenancy or survivorship.
The purchase of the time certificate was from funds realized by Howard and Dorothy from
the sale of real property they had held as joint tenants. Dorothy intended for the time
certificate to be in joint tenancy with Howard. The bank officer with whom she dealt
indicated that the certificate was in proper form to accomplish that end.
The first question arising from these circumstances is whether the certificate was in a
form to be paid to the survivor within the meaning of NRS 663.015.
5
The district court held
that it was. We do not agree.
____________________

4
Regarding child support the agreement stated: The Husband agrees to pay to the wife, as and for the
support and maintenance of the minor children, the sum of one hundred twenty-five dollars ($125.00) per month
per child, until the last child attains the age of twenty-one (21) years, unless said children marry or quit school
and become self-supporting. In addition, in the event the children of the parties desire to attend college, Husband
agrees to pay all the expenses of each child attending college until each child has completed four years of
college attendance. . . .

5
NRS 663.015: 1. When a deposit has been made, or is made after July 1, 1971, by any person, in any
bank or other depository transacting business in this state, in the name of such depositor and one, two or more
persons, and in form to be paid to the survivor or survivors of them, such deposit and any additions thereto made
by any of such persons, after the making thereof, shall become the property of such persons as joint tenants, and
such deposits, together with all dividends thereon, shall be held for the exclusive use of such persons and may be
[Headnote 3]
NRS 111.065(2) provides that a joint tenancy in personal property may be created by a
written transfer, agreement or instrument. A writing is required. Weinstein v. Sodaro, 91
Nev. 638, 541 P.2d 531 (1975). The word may in the context of this statute is mandatory.
California Trust Co. v. Bennett, 204 P.2d 324 (Cal. 1949). Thus, we here must determine
whether the written time certificate of deposit to Howard F. McKissick, Jr., and/or Dorothy
McKissick is in a form to be paid to the survivor.
This court has ruled that in order for a joint tenancy to exist in a chose in action
(promissory note and mortgage) the instruments must so provide. Newitt v. Dawe, 61 Nev.
472, 133 P.2d 918 (1943). In that case the note was payable to William J. Dawe or Sue A.
Hazell Newitt. The court found no basis for holding that a joint ownership was intended.
And, in In re Condos's Estate, 70 Nev. 271, 266 P.2d 404 (1954), in the decedent's personal
ledger he described bonds as U.S. bonds (Paul Condos or Ellen Condos). The court wrote:
It is impossible to read from the notation an intention on the part of the decedent to create a
joint tenancy by the notation or by the use of the word or'. . . the notation most clearly falls
far short of constituting or evidencing a transfer or agreement. Id. at 286.
Case authority elsewhere denies the creation of a joint tenancy by the use of only the word
or or the words and/or. Betker v. Ide, 55 N.W.2d 835 (Mich. 1952); Crocker-Anglo
National Bank v. American Trust Co., 338 P.2d 617 (Dist.Ct. App.Cal. 1959); Estate of
Syroczynski, 379 N.Y.S.2d 652 (Sur.Ct. 1976). Indeed, in Betker v. Ide, supra, the court held
that under a statute strikingly similar to NRS 663.015 the words and/or did not constitute
the bank accounts there in issue in a form payable to the survivor. We conclude, therefore,
that the words of the time certificate of deposit did not create a joint tenancy.
____________________
paid to any of them during the lifetime of all or to the survivor or survivors after the death of any of them. Such
payments and receipts or acquittances of the person or persons to whom such payment is made shall be a valid
and sufficient release and discharge to such bank or other depository for all payments made on account of such
deposit.
2. The making of the deposit in such form shall, in the absence of fraud or undue influence, be conclusive
evidence, in any action or proceeding to which either such bank or other depository, or a surviving depositor, is
a party, of the intention of the depositors to vest such deposit and the additions thereto in such survivor or
survivors.
Although the certificate is not itself in proper form to create a joint tenancy, Dorothy
contends that oral evidence adduced at trial would permit the court to overcome the
deficiency of the instrument and conclude that she and Howard intended to hold title to the
certificate as joint tenants. Dorothy testified that she so intended. Of course, Howard's
intention is not disclosed. Whether a joint tenancy can be created by such oral evidence of
intention is the question to which we now turn our attention.
[Headnote 4]
The Nevada case of Edmonds v. Perry, 62 Nev. 41, 140 P.2d 566 (1943), may be read to
suggest that such evidence is admissible on the issue. The court found that the deposit there in
question was not in a form to be paid to the survivor. However, in so finding, the court wrote:
It seems that the court below would be justified in holding that it was not in the absence of
evidence, parole or otherwise to the contrary. Id. at 58. We reject the dictum that oral
evidence of intention to hold personal property in joint tenancy may supply a deficiency in the
written instrument. Such a joint tenancy must be created by a written transfer, agreement or
instrument. NRS 111.065 (2). It may not be created orally. Crocker-Anglo National Bank v.
American Trust Co., 338 P.2d 617 (Dist.Ct.App. Cal. 1959); California Trust Co. v. Bennett,
204 P.2d 324 (Cal. 1949).
[Headnotes 5, 6]
Since joint tenancy is a method by which property may pass upon death a written
instrument specifying such intention is essential. Creditors of the decedent and the rights of
others who normally would be the natural objects of his bounty may be involved. Their
claims should not be erased by oral testimony of intention given by one asserting the rights of
a surviving joint tenant. Only a writing may accomplish that consequence. Indeed, joint
tenancies are not favored in courts of equity. Newitt v. Dawe, 61 Nev. 472, 133 P.2d 918
(1943).
[Headnote 7]
The district court also gave some weight to the fact that the funds used to purchase the
time certificate of deposit were realized from the sale of real property which Howard and
Dorothy held as joint tenants. It reasoned that since the source of the money was joint tenancy
property, the time certificate later purchased retained that characteristic. That circumstance is
not entitled to credit. The joint tenancy was destroyed when the real property was sold. In re
Baker's Estate, 78 N.W.
2d 863 (Iowa 1956); In re Estate of Cooke, 524 P.2d 176 (Idaho 1973). The source doctrine
and the concept of tracing are inimical to joint tenancy since they are equitable doctrines and,
as before noted, equity will defeat a joint tenancy whenever it is possible. Newitt v. Dawe,
supra.
We conclude that the time certificate of deposit was not held in joint tenancy by Howard
and Dorothy, and set aside the district court judgment in this regard.
[Headnote 8]
3. There remains for determination the status of the time certificate of deposit. For reasons
already expressed it is not joint tenancy property. Barbara and the children contend that it was
held by Howard and Dorothy as tenants in common. Dorothy asserts that if she is in error
with respect to the joint tenancy status of the certificate, then it must be deemed to be
community property.
The certificate was acquired by Howard and Dorothy after their marriage and did not
become theirs as the result of gift, bequest, devise or descent. Community funds were used to
purchase the joint tenancy real property. That tenancy was destroyed when the property was
sold. The proceeds of that sale were used to purchase the time certificate. The record does not
reflect an understanding or agreement between Howard and Dorothy as to the status of those
proceeds or of the time certificate. Presumptively, therefore, the time certificate is community
property having been acquired after their marriage as a result of their joint efforts. NRS
123.220; 123.130.
Howard died intestate. Consequently, the time certificate of deposit goes to Dorothy as his
surviving spouse, but one-half thereof is subject to administration and creditors' claims. NRS
123.250(1).
6

This matter is remanded to the district court for entry of judgment in accordance with this
opinion.
Batjer, C. J. and Zenoff and Mowbray, JJ., and Hoyt, D.J., concur.
____________________

6
NRS 123.250. 1. Upon the death of either husband or wife: (a) An undivided one-half interest in the
community property is the property of the surviving spouse and his or her sole separate property. (b) The
remaining interest is subject to the testamentary disposition of the decedent, in the absence thereof goes to the
surviving spouse, and is the only portion subject to administration under the provisions of Title 12 of NRS.
____________
93 Nev. 149, 149 (1977) Campos v. Rowe
A. A. CAMPOS, Chief Probation Officer, Nevada State Department of Parole
and Probation, Appellant, v. CALVIN SWOPE ROWE, Respondent.
No. 9431
March 14, 1977 560 P.2d 923
Reversed.
Robert List, Attorney General, D. Geno Menchetti, Deputy Attorney General, Carson City;
Larry R. Hicks, District Attorney, and John L. Conner, Deputy District Attorney, Washoe
Julian Smith, Carson City, for Respondent.
OPINION
Per Curiam:
P.2d 1139 (1976), we, sua sponte, reverse the district court's order which granted respondent's
petition for a writ of habeas corpus.
____________
93 Nev. 149, 149 (1977) Routhier v. Sheriff
DONALD JOSEPH ROUTHIER, Appellant, v. SHERIFF,
No. 9489
March 17, 1977 560 P.2d 1371
Petitioner, who was charged with sale of a controlled substance, filed pretrial petition for
writ of habeas corpus. The district court denied the requested relief, and petitioner appealed.
The Supreme Court held that where informant was material witness and where informant's
name was not disclosed until preliminary examination was in progress, magistrate's failure
to grant continuance of examination in order to permit petitioner to call and interrogate
the informant was error.
until preliminary examination was in progress, magistrate's failure to grant continuance of
examination in order to permit petitioner to call and interrogate the informant was error.
Reversed.
Criminal Law.
Where informant was material witness in prosecution for sale of a controlled substance and where name
of informant was not disclosed until preliminary examination was in progress, magistrate's failure to grant
defendant's motion for continuance of examination in order to permit defendant to call and interrogate the
informant was error. NRS 171.196, subd. 4, 453.161, 453.321.
OPINION
Per Curiam:
At the conclusion of a preliminary examination Donald Joseph Routhier was held to
answer on one count of sale of a controlled substance, a felony under NRS 453.321 and
453.161. He then filed a pretrial petition for a writ of habeas corpus contending the charge
must be dismissed because the magistrate denied the right to call and cross-examine a
witness, as permitted by NRS 171.196(4).
1
The district court denied habeas and in this
appeal the same contention is reasserted.
During the preliminary examination the magistrate, upon defense counsel's demand,
directed a prosecution witness to divulge the name of the police informant who allegedly set
up and witnessed the transaction which led to the felony charge. However, the magistrate
refused to order disclosure of the informant's address. He also refused to continue the
examination to permit Routhier to call and interrogate the newly discovered witness. The
refusal to grant the continuance is the central issue on appeal.
It is undisputed that the informant was a material witness and, since that name was not
disclosed until the preliminary examination was in progress, we hold that the magistrate's
failure to grant the continuance was error; the district judge should have so ruled.
____________________

1
NRS 171.196(4) provides: The defendant may cross-examine witnesses against him and may introduce
evidence in his own behalf.
examination was in progress, we hold that the magistrate's failure to grant the continuance
was error; the district judge should have so ruled. NRS 171.196(4). Coleman v. Alabama, 399
U.S. 1, 9 (1970). Accord, Eleazer v. Superior Court of Los Angeles County, 464 P.2d 42 (Cal.
1970); State v. Essman, 403 P.2d 540 (Ariz. 1965). Cf. Washington v. Clemmer, 339 F.2d
715 (D.C. Cir. 1964). Accordingly, we reverse.
____________
93 Nev. 151, 151 (1977) Gaughan v. District Court
JOHN D. GAUGHAN and PHILIP H. EMPEY, Petitioners, v. THE EIGHTH JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF
CLARK, and HONORABLE MICHAEL WENDELL, Judge, Respondent.
No. 8795
March 17, 1977 560 P.2d 1372
Original proceeding was brought for writ of prohibition. The Supreme Court held that
applicants, who sought permission to construct hotel-casino, had adequate remedy at law by
way of intervention in proceeding brought in the district court for review of decision of
County Board of Commissioners overruling Planning Commission order that rejected their
application, and thus their petition, which alleged that they were indispensable parties to
district court proceeding and that the district court was therefore without jurisdiction, would
be dismissed.
Dismissed.
Dickerson, Miles & Pico, Las Vegas, for Petitioners.
Lionel, Sawyer & Collins and Steve Morris, Las Vegas, for Respondent.
1. Prohibition.
Writ of prohibition will be issued to arrest proceedings of any tribunal, corporation, board or person
exercising judicial functions, when such proceedings are without or in excess of jurisdiction of such
tribunal, corporation, board or person, and where no plain, speedy and adequate remedy at law exists.
NRS 34.320, 34.330.
2. Prohibition.
Applicants, who sought permission to construct hotel-casino, had adequate remedy at law by way of
intervention in proceeding brought in district court for review of County Board of
Commissioners' decision overruling Planning Commission order rejecting their
application, and thus petition for writ of prohibition sought by applicants, who
alleged that they were indispensable parties to proceeding before the district court
and that the district court therefore was without jurisdiction, would be dismissed.
93 Nev. 151, 152 (1977) Gaughan v. District Court
brought in district court for review of County Board of Commissioners' decision overruling Planning
Commission order rejecting their application, and thus petition for writ of prohibition sought by applicants,
who alleged that they were indispensable parties to proceeding before the district court and that the district
court therefore was without jurisdiction, would be dismissed. NRS 34.320, 34.330.
OPINION
Per Curiam:
A Planning Commission order which rejected petitioners' application for permission to
construct a hotel-casino was overruled by the Clark County Board of Commissioners. Hilton
Hotels Corporation, et al., and MGM Hotel, Inc., who had opposed the application before the
Planning Commission and the Board of County Commissioners, filed a petition for review in
the district court.
Prior to any action being taken in the district court petitioners initiated this proceeding
asserting, inter alia, that they are indispensable parties below; therefore, they argue the
district court is without jurisdiction to consider the petition for review.
[Headnote 1]
A writ of prohibition will be issued to arrest the proceedings of any tribunal, corporation,
board or person exercising judicial functions, when such proceedings are without or in excess
of the jurisdiction of such tribunal, corporation, board or person, and where no plain, speedy
and adequate remedy at law exists. NRS 34.320, NRS 34.330. See Heilig v. Christensen, 91
Nev. 120, 532 P.2d 267 (1975).
[Headnote 2]
Petitioners have an adequate remedy at law, by intervention; therefore, we elect to dismiss
their petition for a writ of prohibition. Heilig, supra. Cf. Nevada Lincoln Co. v. Dist. Ct., 43
Nev. 396, 187 P. 1006 (1920).
____________
93 Nev. 153, 153 (1977) Hilkert v. Sheriff
WILLIAM D. HILKERT, III, Appellant, v. SHERIFF,
No. 9555
March 17, 1977 561 P.2d 448
Petitioner, who had been indicted for failing to report campaign contributions and failing
to report campaign expenses, filed pretrial petition for habeas corpus relief. The district court
denied habeas relief and petitioner appealed. The Supreme Court held that indictment was
fatally defective for failure to allege that petitioner either received contributions or incurred
expenses.
Reversed.
Morgan D. Harris, Public Defender, and George E. Franzen,
Deputy Public Defender, Clark County, for Appellant.
Elections.
Indictment, which charged accused with failing to report campaign contributions and failing to report
campaign expenses, was fatally defective for failure to allege that accused either received contributions or
incurred expenses. NRS 294A.010, 294A.010, subd. 1, 294A.020, 294A.020, subd. 1.
OPINION
Per Curiam:
Pursuant to a True Bill returned by the Clark County Grand Jury, William D. Hilkert, III,
was indicted for failing to report campaign contributions and failing to report campaign
expenses, gross misdemeanors under NRS 294A.010 and 294A.020.
1
Hilkert, who had been
a candidate for the Nevada State Senate in 1976, filed a pretrial petition for a writ of
habeas corpus contending that the indictment was fatally defective because it did not
allege that he received campaign contributions or that he incurred campaign expenses.

____________________

1
NRS 294A.010(1) provides: Every candidate for state, district, county, city or township office at a primary
or general election shall, within 15 days after the primary election and 30 days after the general election, report
the total amount of all of his campaign contributions to the secretary of state on affidavit forms to be designed
and provided by the secretary of state.
NRS 294A.020(1) provides: Every candidate for state, district,
93 Nev. 153, 154 (1977) Hilkert v. Sheriff
Hilkert, who had been a candidate for the Nevada State Senate in 1976, filed a pretrial
petition for a writ of habeas corpus contending that the indictment was fatally defective
because it did not allege that he received campaign contributions or that he incurred campaign
expenses. He also argued the statutes were constitutionally infirm. The district judge denied
habeas relief and, in this appeal, Hilkert reasserts the same contentions.
We have previously held that an indictment accusing a public administrator of failing to
comply with a statute requiring him to file quarterly reports of all fees and compensation
received in his official capacity was defective because it did not allege that he had received
such fees or compensation. Adler v. Sheriff, 92 Nev. 436, 552 P.2d 334 (1976).
Here, there is no allegation that Hilkert either received contributions, or incurred expenses;
thus, we have the same deficiency which proved to be fatal in Adler. Accordingly, we reverse.
In view of our ruling, it is unnecessary for us to consider the constitutional challenge to the
statute. Cf. Buckley v. Valeo, 424 U.S. 1 (1976).
____________________
county, city or township office at a primary or general election shall, within 15 days after the primary election
and 30 days after the general election, report his campaign expenses to the secretary of state on affidavit forms to
be designed and provided by the secretary of state.
____________
93 Nev. 154, 154 (1977) Kelly v. State
ROBERT DALE KELLY, Appellant, v. THE
No. 8991
March 17, 1977 561 P.2d 449
Appeal from a judgment of conviction, Second Judicial District Court, Washoe County;
William N. Forman, Judge.
Defendant was convicted before the district court of armed robbery, and he appealed. The
Supreme Court held that denial of full hearing on issue of defendant's competency at
arraignment was not an abuse of discretion; and that Court would not consider defendant's
tardy claim that prosecutor improperly asked certain questions.
Affirmed.
[Rehearing denied April 7, 1977] William N.
93 Nev. 154, 155 (1977) Kelly v. State
William N. Dunseath, Public Defender, and Michael B. McDonald, Deputy Public
Defender, Washoe County, for Appellant.
1. Criminal Law.
In prosecution for armed robbery, denial of full hearing on issue of accused's competency at an
arraignment taking place after a previous psychiatric examination had resulted in a conclusion that accused
was presently in possession of sufficient ability and competency to assist his counsel in the preparation of
possible defenses and . . . able to testify in court was not an abuse of discretion.
2. Mental Health.
Question of competency of accused is within discretion of trial judge.
3. Criminal Law.
Supreme Court would not consider accused's tardy claim that prosecutor improperly asked certain
questions which were not objected to at time they were asked in armed robbery prosecution, in that it was
not manifest, from a review of record, that claimed error was plain error affecting accused's substantial
rights. NRS 47.040, subds. 1(a), 2.
OPINION
Per Curiam:
Appellant Robert Dale Kelly was convicted of the crime of armed robbery of a cab driver
of $27.00. He was undergoing treatment at the Washoe County Mental Health Institute as a
resident patient and was absent from there at the time the crime was committed.
[Headnotes 1, 2]
Appellant's first contention is that the denial of a full hearing into the defendant's
competency at arraignment was an abuse of the trial judge's discretion. We cannot agree. A
previous psychiatric examination had been ordered which specifically concluded that the
defendant was presently in possession of sufficient ability and competency to assist his
counsel in the preparation of possible defenses and . . . able to testify in court. The question
of the competency of the defendant is within the discretion of the trial judge. Williams v.
State, 85 Nev. 169, 451 P.2d 848 (1969). The evidence does not reflect abuse of the trial
court's discretion.
93 Nev. 154, 156 (1977) Kelly v. State
[Headnote 3]
A second claim of error is directed to the trial judge's denial of a motion for mistrial,
tendered after defendant rested his case, complaining of questions the prosecutor propounded
on cross-examination of the defendant's expert witness, a psychiatrist. At the time such
questions were asked, defense counsel had proffered no objection as required by NRS
47.040(1)(a). Plain error affecting the defendant's substantial rights is not manifest from our
review of the record. NRS 47.040(2). Under these circumstances, therefore, we decline to
consider defendant's tardy claim of error. Bishop v. State, 91 Nev. 465, 537 P.2d 1202
(1975); Tucker v. State, 86 Nev. 354, 469 P.2d 62 (1970); Mears v. State, 83 Nev. 3, 422
P.2d 230 (1967).
Affirmed.
____________
93 Nev. 156, 156 (1977) Beals v. County of Douglas
MANFORD BEALS, dba MANNY'S, Appellant, v. THE COUNTY OF DOUGLAS,
a Political Subdivision of the State of Nevada, Respondent.
No. 8666
March 17, 1977 560 P.2d 1373
Appeal from judgment, Ninth Judicial District Court, Douglas County; Noel E.
Manoukian, Judge.
County commissioners moved for and were granted an order by the district court requiring
owner of nonconforming signs to remove the signs, and owner appealed. The Supreme Court
held that amortization of nonconforming signs is a constitutionally permissible method of
effectuating removal of such signs while properly safeguarding constitutional rights, due
process and just compensation.
Affirmed.
Carl F. Martillaro, Carson City, for Appellant.
Howard D. McKibben, District Attorney, Douglas County, for Respondent.
93 Nev. 156, 157 (1977) Beals v. County of Douglas
Constitutional Law; Eminent Domain.
Amortization of nonconforming signs is a constitutionally permissible method of effectuating removal of
such signs while properly safeguarding constitutional rights, due process, and just compensation.
OPINION
Per Curiam:
On July 1, 1971, Douglas County enacted Ordinance No. 183, commonly known as the
Douglas County Advertising Control Ordinance. The Ordinance provides, among other
things, that (1) nonconforming signs must either be modified to meet prescribed standards or
removed within a specified period of time; (2) nonconforming signs will be valued by the
County Building Inspector and such value may be amortized over the period specified for
nonconforming use; and, (3) nonconforming signs maintained in violation of the Ordinance
are a public nuisance to be removed and abated in the manner provided by law.
On January 5, 1972, the County Building Inspector gave appellant written Notices of
Noncompliance. Included in the Notices were valuations for several nonconforming signs.
Appellant registered no objections, but instead, ignored the Notices and continued to maintain
his nonconforming signs. Pursuant to the Ordinance, the Douglas County Commissioners
declared appellant's signs a public nuisance and moved for and were granted an order
requiring appellant to remove his signs. Appellant has appealed from that order.
Appellant's only cognizable contention is that the amortization schedule deprives him of
property rights without due process of law and just compensation. We do not agree.
Amortization of nonconforming signs has received widespread acceptance as a
constitutionally permissible method of effectuating the removal of signs while properly
safeguarding constitutional rights, due process, and just compensation. See: E. B. Elliott Adv.
Co. v. Metropolitan Dade County, 425 F.2d 1141 (5th Cir. 1970). Accord, Markham
Advertising Company v. State, 439 P.2d 248 (Wash. 1968); Naegele Outdoor Adv. Co. v.
Village of Minnetonka, 162 N.W.2d 206 (Minn. 1968); Grant v. Mayor and City Council of
Baltimore, 129 A.2d 363 (Md. 1957); and City of Los Angeles v. Gage, 274 P.2d 34
(Cal.App. 1954). Accordingly, we affirm the district court order.
____________
93 Nev. 158, 158 (1977) Outboard Marine Corp. v. Schupbach
OUTBOARD MARINE CORPORATION, a Corporation, Appellant, v.
SHARON ELIZABETH SCHUPBACH, et al., Respondents.
No. 8374
STAUFFER CHEMICAL CORPORATION, a Delaware Corporation; and MONTROSE
CHEMICAL CORPORATION OF CALIFORNIA, Appellants, v. OUTBOARD
MARINE CORPORATION, a Corporation, Respondent.
No. 8724
March 17, 1977 561 P.2d 450
Appeal from judgments entered upon jury verdicts; Eighth Judicial District Court, Clark
County; Carl J. Christensen, Judge.
Action was brought seeking damages for personal injuries sustained by employees of a
chemical plant as a result of an explosion caused when a spark from an electric utility cart
used at the plant ignited benzene gas which had accumulated from leaky pipes. The district
court entered judgment on a jury verdict finding the manufacturer of the electric cart
twenty-five percent at fault and the chemical plant and its principal each thirty-seven and
one-half percent at fault, and appeal was taken. The Supreme Court, Thompson, J., held that
failure of the cart manufacturer to warn that the cart, which was not sparkproof, became
dangerous when used in a hazardous atmosphere where its sparking characteristic foreseeably
could cause damage, could itself be deemed a defect causing injury; that, under the
circumstances, the failure to give suitable warning was appropriately deemed a hidden defect;
that the exclusivity provision of the Industrial Insurance Act insulated the employers from
liability by way of indemnity to the manufacturer of the cart; and that the cart manufacturer
was therefore solely liable for the judgment.
Appeal No. 8374, affirmed.
Appeal No. 8724, reversed.
[Rehearing denied May 12, 1977]
Beckley, Singleton, De Lanoy, Jemison & Reid, Chartered, of Las Vegas, for Outboard
Marine.
Galatz, Earl & Biggar, of Las Vegas, for Schupbach, et al.
Cromer, Barker & Michelson and James R. Olson, of Las Vegas, for Montrose Chemical
and Stauffer Chemical.
Although not appealable ruling per se, Supreme Court may, following judgment, review propriety of
interlocutory ruling denying directed verdict if properly assigned as error; in such case, appellate
evaluation is confined to evidence and reasonable inferences therefrom favoring parties against whom
motion is made.
Where defendant has reason to anticipate that danger may result from particular use of his product and he
fails to give adequate warning of such danger, product sold without such warning is in defective
condition, for purposes of application of doctrine of strict liability.
Strict liability may be imposed even though product is faultlessly made if it was unreasonably dangerous
to place product in hands of user without suitable and adequate warning concerning safe and proper use.
Where electric utility cart manufactured by defendant was safe when used in nonhazardous surroundings,
but was not sparkproof nor intended to be so, and became dangerous and defective when used in hazardous
atmosphere where its sparking characteristic foreseeably could cause damage, manufacturer's failure to
give warning that it should not be so used could itself be deemed defect causing injury when explosion
resulted in chemical plant after cart was used in such atmosphere.
Where record showed that although chemical plant employees were aware that electric utility cart used in
plant was not sparkproof, they did not know intensity of spark required to cause explosion in chemical
atmosphere, and where cart had been used in plant for years without explosion resulting from such use, it
was appropriate to deem defect in cart arising from manufacturer's failure to give suitable warnings that
cart should not be used in hazardous atmosphere where its sparking characteristics foreseeably could cause
damage, as being latent or hidden, for purposes of imposing strict liability for injuries caused when spark
from cart ignited highly explosive benzene atmosphere in chemical plant; record failed to establish that
employees possessed essential detailed knowledge as to render danger open and obvious to them.
6. Workmen's Compensation.
Employers who accept Industrial Insurance Act and provide and secure compensation for injuries by
accidents sustained by an employee arising out of and in the course of employment are relieved from other
liability for recovery of damages or other compensation for such personal injuries; exclusive remedy
provision of Act is exclusive in sense that no other common law or statutory remedy under local law is
possessed by employee against his employer. NRS 616.270.
Exclusivity provision of Industrial Insurance Act not only insulates employers from liability to
employees, but also from liability by way of indemnity to third party who supplied defective product found
to have caused injury to employees. NRS 616.265, 616.270.
Where employees of chemical plant who were injured by explosion which resulted when benzene leaking
from pipes in plant was ignited by a spark from defective electric utility cart were compensated under
Industrial Insurance Act because chemical plant and its principal were covered employers, exclusivity
provision of Act insulated employers from liability by way of indemnity to cart manufacturer where there
was neither express contract of indemnity nor independent duty owing from employers to manufacturer;
independent duty did not arise simply from fact that employers purchased cart. NRS 616.265, 616.270.
OPINION
This litigation is a result of an explosion at the Henderson, Nevada, chemical plant of
Montrose Chemical Company. The plant was operated by Stauffer Chemical Company. Two
employees, Cleo Sharrock and John Schupbach, were severely injured by the explosion.
Schupbach died from his injuries one week later. Sharrock eventually recovered and returned
to work though permanently disabled and disfigured. Compensation has been paid pursuant to
the Nevada Industrial Insurance Act.
The widow of Schupbach for herself and as guardian ad litem for their minor children, and
Sharrock for himself, commenced suit to recover damages from Outboard Marine
Corporation, the manufacturer of the product alleged to have caused the explosion. Outboard,
in turn, sought indemnification from Stauffer and Montrose should Outboard be found liable
to plaintiffs.
A jury found Outboard liable and assessed damages of $738,443 for Sharrock and
$480,234 for the survivors of Schupbach. The jury also found in favor of Outboard against
Stauffer and Montrose and proceeded to apportion fault among them: Outboard, twenty-five
percent at fault, and Stauffer and Montrose each thirty-seven and one-half percent at fault.
Outboard has appealed contending that it is not liable as a matter of law and that the
district court erred in not granting a directed verdict. This is appeal No. 8374.
Montrose and Stauffer each have appealed asserting that, as statutory employers, they have
paid compensation and are not, therefore, subject to the rules of indemnity. This is appeal No.
8724. We turn first to the appeal of Outboard.
Appeal No. 8374.
[Headnote 1]
1. The appeal of Outboard is from the refusal of the district court to direct a verdict in its
favor. Although not an appealable ruling per se, we may review the propriety of an
interlocutory ruling following judgment if properly assigned as error. Levine v. Remolif, 80
Nev. 168, 390 P.2d 718 (1964). Our evaluation is confined to evidence and reasonable
inferences therefrom favoring the parties against whom the motion is made. Kline v.
Robinson, 83 Nev. 244, 428 P.2d 190 (1967).
The chemical plant at Henderson utilized a complex system of tanks, pipes, valves and
other equipment to produce industrial chemicals. On the night of the explosion a leak in one
of the pipes resulted in an accumulation of benzene creating a highly explosive atmosphere
over a large area of the plant. Before the explosion, an employee had driven an industrial
utility cart into a hazardous area labeled with no smoking signs and left the cart there with
the ignition switch on. The cart was customarily used in all areas of the plant. Plaintiff
Sharrock, while sitting on the cart, accidentally touched the accelerator causing a spark. The
explosion occurred simultaneously. Experts gave opinion that the spark caused the explosion.
The cart was manufactured by Outboard through its Cushman division which is well
known for its golf carts. The cart is not sparkproof nor intended to be so. Other companies
manufacture special explosion-proof equipment. The particular cart was sold to
Montrose-Stauffer in 1963 through a dealer and used without incident until the 1967
explosion. The cart did not have a warning label to inform the user that it was not sparkproof
and should not be used in a hazardous atmosphere.
Outboard knew that the electric cart was not safe for use in hazardous areas and, on
occasion, had so advised potential customers. It is reasonable to infer from the evidence given
regarding the sale of the cart an awareness on the part of Outboard that the utility cart was
sold for use at the Henderson chemical plant. Although employees at the plant knew that the
cart sparked, they did not know that the sparking was of such intensity as to cause an
explosion in a chemical atmosphere.
such intensity as to cause an explosion in a chemical atmosphere.
Plaintiffs contended at trial that Outboard was strictly liable in tort for placing a product in
the hands of a user without giving proper warning concerning its safe and appropriate use.
They argue that in the absence of adequate warning liability may arise from the use of a
product not otherwise defective since the failure to warn itself may be deemed a defect
causing injury. On the other hand, Outboard insists that it may not be found liable in these
circumstances since the product was not defective for its intended use, nor does the law
impose a duty to warn of dangers actually known to the user. These respective contentions
form the issues of this appeal.
2. The doctrine of strict tort liability first was adopted in Nevada with respect to bottled
beverages. Shoshone Coca-Cola v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966). Later, it was
extended to products of all types. Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135
(1970).
To date, our consideration of that doctrine has primarily been confined to cases where the
product was shown to be defective without any need to consider the outer limits of the word
defect or the scope of its meaning. In Shoshone Coca-Cola v. Dolinski, supra, the bottled
beverage was defective because it contained a decomposed mouse. In Ginnis v. Mapes Hotel
Corp., supra, the automatic hotel door was defective because of a malfunctioning safety relay.
Worrell v. Barnes, 87 Nev. 204, 484 P.2d 573 (1971), concerned a leaky fitting in a
residential gas system. And, General Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972),
involved a defective eye bolt.
[Headnotes 2, 3]
In a different context (pleading) we have approved Comment h following 402A of the
Restatement (Second) of Torts (1965) to the effect that where a defendant has reason to
anticipate that danger may result from a particular use of his product and he fails to give
adequate warning of such a danger a product sold without such warning is in a defective
condition. Jacobsen v. Ducommun, Inc., 87 Nev. 240, 484 P.2d 1095 (1971). In that case we
also noted that the concept of defect is a broad one. In General Electric Co. v. Bush, supra,
we approved the proposition that strict liability may be imposed even though the product is
faultlessly made if it was unreasonably dangerous to place the product in the hands of the user
without suitable and adequate warning concerning safe and proper use.
[Headnote 4]
In the case before us the electric cart was safe when used in nonhazardous surroundings. It
was not sparkproof nor intended to be so. It became a dangerous and defective product only
when used in a hazardous atmosphere where its sparking characteristic foreseeably could
cause damage. It was used in such an atmosphere, and since Outboard did not give warning
that it should not be so used, the plaintiffs contend that the failure to warn may itself be
deemed a defect causing injury. We agree with this contention since it is in line with this
court's mentioned expressions in the cases of Jacobsen v. Ducommun, Inc., supra, and
General Electric Co. v. Bush, supra. We, therefore, turn to consider Outboard's alternative
contention that it was not under a duty to warn since the danger resulting from the use of the
cart in a hazardous atmosphere was actually known to the user.
[Headnote 5]
The record does not show that the employees knew of danger if they used the cart in a
chemical atmosphere. Although aware that the cart sparked, they did not know the intensity
required to cause an explosion. Indeed, that very cart had been used in all areas of the plant
for years without an explosion resulting from such use. In these circumstances, it is
appropriate to deem the defect in the product, that is, the failure to give suitable warning, as
latent or hidden. Our decision in Bradshaw v. Blystone Equipment Co. of Nevada, 79 Nev.
441, 386 P.2d 396 (1963), concerning an open and obvious danger is, for this reason alone,
inapposite.
1

Moreover, we reject Outboard's contention that it is a matter of common knowledge that
sparks cause an explosion in a chemical atmosphere. Many factors must coexist before an
explosion occurs. The record does not establish that the employees possessed essential
detailed knowledge as to render the danger open and obvious to them. Sierra Pacific v.
Anderson, 77 Nev. 68, 358 P.2d 892 (1961).
We, therefore, conclude that the district court did not err when it declined to direct a
verdict for Outboard.
Appeal No. 8724.
____________________

1
Bradshaw v. Blystone Equipment Co. of Nevada, supra, did not involve the doctrine of strict tort liability.
Its discussion of open and obvious danger was with regard to a negligence cause of action and followed the
New York case of Campo v. Scofield, 95 N.E.2d 802 (1950). The New York Court of Appeals has since
expressly overruled Campo v. Scofield. See: Micallef v. Miehle Co., 348 N.E.2d 571 (1976); Comment, 29
Vand.L.Rev. 1463 (1976).
1. The appeal by Montrose and Stauffer asserts that the law precludes indemnity. If they
are correct then Outboard is solely liable for the judgments entered below.
The plaintiffs were compensated under the provisions of the Nevada Industrial Insurance
Act since Stauffer and Montrose were covered employers.
2
By reason of this circumstance
the employers argue that they are totally insulated from other liability on account of the
industrial accident.
[Headnote 6]
Employers who accept the Act and provide and secure compensation for injuries by
accident sustained by an employee arising out of and in the course of employment are
relieved from other liability for recovery of damages or other compensation for such
personal injury. . . . NRS 616.270. This provision, of course, forbids suit by the injured
employee against his employer. Frith v. Harrah South Shore Corp., 92 Nev. 447, 552 P.2d
337 (1976); Cummings v. United Resort Hotels, Inc., 85 Nev. 23, 449 P.2d 245 (1969); Tab
Constr. Co. v. District Court, 83 Nev. 364, 432 P.2d 90 (1967). This exclusive remedy
provision of the Act is exclusive in the sense that no other common law or statutory remedy
under local law is possessed by the employee against his employer. Nevada Ind. Comm'n v.
Underwood, 79 Nev. 496, 387 P.2d 663 (1963); Titanium Metals v. District Court, 76 Nev.
72, 349 P.2d 444 (1960); Simon Service v. Mitchell, 73 Nev. 9, 307 P.2d 110 (1957).
The issue here presented is whether the exclusivity provision of the Act not only insulates
employers from liability to employees, but also from liability by way of indemnity to a third
party (in this instance, Outboard) who supplied a defective product found to have caused
injury to employees. We have not heretofore considered this question. The federal district
court of Nevada, however, has considered it, ruling that indemnity is precluded. Santisteven
v. Dow Chemical Company, 362 F.Supp. 646 (1973). The Court of Appeals affirmed that
ruling. Santisteven v. Dow Chemical Company, 506 F.2d 1216 (9th Cir. 1974). The
Santisteven case dealt specifically with the Nevada Industrial Insurance Act.
____________________

2
Sharrock and Schupbach were employed by Stauffer Chemical which operated the plant at Henderson for
Montrose Chemical. Outboard has conceded that Montrose, as the principal of Stauffer, is entitled to the same
protection under the Nevada Industrial Insurance Act as Stauffer. This concession resulted from our decision in
Frith v. Harrah South Shore Corp., 92 Nev. 447, 552 P.2d 337 (1976).
[Headnotes 7, 8]
We believe that Santisteven correctly perceived the policy and intention of the Act. Each
federal court opinion relied not only upon the exclusivity clause, NRS 616.270, but as well
upon NRS 616.265 which voids a contract of indemnity having for its purpose the waiver or
modification of the terms or liability created by the Act. An express contract of indemnity is
not present in this case. However, if such a contract is voided by NRS 616.265, it is certain
that there exists no room for implied indemnity, absent an independent duty owing from the
employer (Stauffer-Montrose) to the third party (Outboard). Cf. United States Fidelity &
Guaranty Co. v. Kaiser Gypsum Co. Inc., 539 P.2d 1065 (Ore. 1975). Such an independent
duty does not arise simply from the fact that the employers purchased a product. Santisteven
v. Dow Chemical Company, supra.
2. It is argued that if indemnity is not allowed the result is manifestly inequitable since the
jury found Outboard to be only twenty-five percent at fault while the employers each were
found to be thirty-seven and one-half percent at fault. Consequently, as a matter of fairness,
the employers should not be insulated completely. Although this contention has some appeal,
it is one to be submitted to the legislature rather than to us. To date, the legislature has
insulated the contributing employer and has voided indemnity absent an independent duty
owing from the employer to the third party. The matter of indemnity should never have been
submitted to the jury. The third-party complaint should have been dismissed.
The amount of damages awarded by the jury is not challenged. It is not suggested by any
of the appellants, that is, by Outboard, Stauffer or Montrose, that the amount awarded was
greater by reason of apportioning fault among them than it would have been had Outboard
been the only party found liable. Consequently, we do not address this point.
We affirm the judgments against Outboard (Appeal No. 8374) and reverse the indemnity
judgments for Outboard against Montrose and Stauffer (Appeal No. 8724).
____________
93 Nev. 166, 166 (1977) Melvin v. Farmer
JEAN DOPKINS MELVIN, Appellant, v. LOLA F. FARMER, Administratrix of the Estate
of Eola Cline Reade, Deceased, Respondent.
No. 8591
March 17, 1977 561 P.2d 455
Appeal from order granting summary judgment, Second Judicial District Court, Washoe
County; William N. Forman, Judge.
Person, on whom notice of a prior will contest had been served, subsequently filed petition
to contest will after it was admitted to probate. The district court granted administratrix's
motion for summary judgment on ground that petition was barred, and petitioner appealed.
The Supreme Court held that fact that will contestants in the earlier proceedings had entered
into a court-approved settlement did not mean that there had been no contest before probate
for purposes of statute relating to whether or not persons have a right to contest will after it is
admitted to probate.
Affirmed.
Legarza, Lee, Barengo, Doyle & McNally, Reno, for Appellant.
Vargas, Bartlett & Dixon and John P. Sande, III, Reno, for Respondent.
Wills.
Fact that will contestants had entered into a court-approved settlement did not mean that there had been
no contest before probate for purposes of statute which provides that
. . . any interested person other than a party to a contest before probate and other than a person who had
actual notice of such previous contest in time to have joined therein, may, at any time within 3 months after
admission of such will to probate, contest the same or validity of the will. NRS 137.080.
OPINION
Per Curiam:
A petition to admit to probate the will of Eola Cline Reade was filed January 2, 1973.
On January 17, 1973, Myrl H. Soutar and Merna Whelan, nieces of the decedent,
petitioned to contest the will. A notice of this contest was served on Jean Dopkins Melvin,
ordering her to respond within thirty days.
93 Nev. 166, 167 (1977) Melvin v. Farmer
of this contest was served on Jean Dopkins Melvin, ordering her to respond within thirty
days. She failed to do so and the contest was concluded by a court-approved settlement in
September 1974. The will was admitted to probate and Lola F. Farmer was appointed
administratrix with the will annexed.
On December 6, 1974, Melvin filed a petition contesting the decedent's will. The
administratrix moved for summary judgment on the ground that the petition was barred by the
provisions of NRS 137.080.
1
The motion was granted and this appeal followed.
The thrust of the argument Melvin has presented suggests that since the prior contest was
settled, it was not really a contest; thus, we should permit her to now contest the will. In
support of this novel contention, she relies on In Re Hoover's Estate, 35 P.2d 188 (Cal.App.
1934).
Hoover's Estate is inapposite. There, a contest had been filed and dismissed, without
prejudice, and the court correctly ruled there had been no contest. Here, the contestants
reached a court-approved agreement which compromised and settled their differences. When
their agreement was approved by the court, it achieved the same status as if the issues had
been resolved by the court. See In Re Witte's Estate, 171 P.2d 183, 188 (Wash. 1946), where
the court observed that such settlements are favorites of the law and are calculated to avert
contentions, adjust doubtful rights, contribute to peace and harmony, protect the honor of the
family, and avoid litigation, . . .
Melvin had timely notice of the proceedings brought by the nieces of the deceased;
however, she chose not to participate in them. She has tendered no legal reason why she
should be immune from the provisions of NRS 137.080. Accordingly, we affirm.
____________________

1
NRS 137.080 provides, in pertinent part: Who may contest after probate: Filing petition. When a will has
been admitted to probate any interested person other than a party to a contest before probate and other than a
person who had actual notice of such previous contest in time to have joined therein, may, at any time within 3
months after admission of such will to probate, contest the same or the validity of the will. . . . [Emphasis
added.]
____________
93 Nev. 168, 168 (1977) Pangborn v. National Advertising Co.
JACK H. PANGBORN, Assignee for the Benefit of Creditors of FREEMAN EQUIPMENT,
INC., a Nevada Corporation, Appellant, v. NATIONAL
ADVERTISING COMPANY, a Delaware Corporation, Respondent.
No. 8320
March 17, 1977 561 P.2d 456
Appeal from judgment, Second Judicial District Court, Washoe County; Roy L. Torvinen,
Judge.
Suit was brought by sublessor against sublessee to recover for alleged breach of sublease
which permitted erection of advertising sign. The district court found that sublessee had
lawfully terminated sublease and entered judgment for sublessee but awarded sublessor rental
payments previously tendered and refused, and sublessor appealed. The Supreme Court held
that challenged evidence pertaining to sublessee's defense of rightful termination according to
tenor of sublease was admissible under sublessee's pleadings, that determination that
sublessee could not have reasonably anticipated summary revocation of permit was supported
by substantial evidence, and that sublessor, who neither succeeded on main issue nor received
judgment in his favor, was not entitled to costs.
Affirmed.
Leonard T. Howard, Reno, for Appellant.
Stewart & Horton, and Raymond B. Little, Reno, for Respondent.
1. Pleading.
Challenged evidence, which pertained to sublessee's defense of rightful termination according to tenor of
sublease that allowed sublessee to terminate sublease permitting erection of advertising sign if sublessee
was unable to obtain necessary permits or licenses and which merely controverted sublessor's prima facie
case and neither raised matters outside sublessor's case nor constituted confession and avoidance, was
admissible under sublessee's pleadings, which denied allegation that it had failed to pay sums due under
sublease. NRCP 8(b), (c).
Evidence in suit by sublessor against sublessee to recover for alleged breach of sublease which permitted
erection of advertising sign and provided that sublessee could terminate lease if unable to obtain necessary
permits or licenses was sufficient to support determination that sublessee, relying upon Nevada Highway
Department's rules, regulations, and past history of granting extensions, could not have reasonably
anticipated summary revocation of permit for erection of sign following its failure to
erect sign within 120 days after obtaining permit.
could not have reasonably anticipated summary revocation of permit for erection of sign following its
failure to erect sign within 120 days after obtaining permit.
3. Costs.
Sublessor, who brought suit against sublessee to recover for alleged breach of sublease that permitted
erection of advertising sign and who neither succeeded on main issue of action nor received judgment in
his favor, was not entitled to recover costs despite award to sublessor of pro rata rents which covered lease
period prior to termination and which had been previously tendered by sublessee and refused by sublessor.
NRS 18.010, 18.020.
OPINION
Per Curiam:
Appellant and respondent entered into a sublease which permitted respondent to erect an
advertising sign on appellant's leasehold. The sublease provided: If at any time . . . the use or
installation of such displays is prevented or restricted by law or Lessee's inability to obtain
any necessary permits or licenses, . . . the Lessee may, at its option, terminate this lease by
giving the Lessor fifteen (15) days written notice, . . . Respondent obtained a permit to erect
the sign from the Nevada Highway Department, but failed to construct it within 120 days as
apparently required by the department. Despite representations by the department that
respondent would be given an extension of time to erect the sign and contrary to its past
policy of granting extensions, the department summarily revoked respondent's permit. In the
interim, the department issued a permit to another party to construct a sign on adjoining
property within 500 feet of appellant's leasehold, thereby precluding pursuant to federal and
state regulations the construction of a sign on appellant's leasehold.
Unable to obtain another permit, respondent gave appellant notice of termination and
tendered pro rata rental payments covering the lease period prior to termination. Appellant
refused to accept the rental payments and brought suit seeking to recover damages caused by
respondent's alleged breach of the sublease. The district court found respondent had lawfully
terminated the sublease and entered judgment for respondent, but awarded appellant the
rental payments previously tendered and refused. Here appellant contends the district court
erred by (1) admitting evidence of respondent's right of termination when respondent failed to
specifically plead this as an affirmative defense, (2) finding respondent lawfully terminated
the sublease, and {3) denying appellant's costs.
lawfully terminated the sublease, and (3) denying appellant's costs. We disagree.
[Headnote 1]
1. In his complaint, appellant alleged respondent had failed to pay sums due pursuant to
the terms and conditions of the sublease. Respondent denied this averment in its answer and,
at trial, was permitted to introduce evidence pertaining to its defense of rightful termination
according to the tenor of the sublease. Appellant contends the district court should have
excluded this evidence because it related to an affirmative defense which had not been
specifically pleaded, as required by NRCP 8(c). The challenged evidence, which merely
controverted appellant's prima facie case and neither raised matters outside appellant's case
nor constituted a confession and avoidance, was admissible under respondent's pleading.
NRAP 8(b); 2A Moore's Federal Practice 8.19(1) at 1811-1812 (1975).
[Headnote 2]
2. Appellant next contends respondent had no right to terminate the sublease because it
was respondent's negligence which brought about the failure to obtain the necessary permits.
The district court determined otherwise upon the ground that respondent, relying on the
department's rules, regulations, and past history of granting extensions, could not have
reasonably anticipated the summary revocation of the permit. This determination is supported
by substantial evidence, and we will not disturb it on appeal. Alves v. Bumguardner, 91 Nev.
799, 544 P.2d 436 (1975); Clark County v. Mullen, 91 Nev. 172, 533 P.2d 156 (1975).
[Headnote 3]
3. Finally, appellant contends the district court erred by denying him costs. A prevailing
party or a plaintiff receiving a judgment in his favor can recover costs. NRS 18.010 and
18.020. Here, appellant neither succeeded on the main issue of the action nor received a
judgment in his favor. This fact is not altered by the district court award to appellant of the
pro rata rents previously tendered by respondent and refused by appellant.
Affirmed.
____________
93 Nev. 171, 171 (1977) McGee v. Humboldt Co. School Dist.
LILLIAN KAY McGEE, Appellant, v. HUMBOLDT COUNTY SCHOOL DISTRICT, a
Political Subdivision of the State of Nevada, Respondent.
No. 8238
March 17, 1977 561 P.2d 458
Appeal from order granting respondent's motion for summary judgment and denying
appellant's motion for partial summary judgment, Sixth Judicial District Court, Humboldt
County; Llewellyn A. Young, Judge.
Teacher brought suit against school district for alleged unlawful failure to renew teaching
contract. The district court granted district's motion for summary judgment, and teacher
appealed. The Supreme Court held that where teacher had not completed two consecutive
contract periods, she did not become a post-probationary teacher upon execution of a third
year contract, under statutes then in effect, and where statutes were amended prior to
completion of the second contract period, she remained a probationary teacher during her
third year when she received notification of school district's intention not to reemploy her,
and thus statutory procedural mandates were not available to her; and that as a probationary
teacher with only a unilateral expectation of employment and no claim of entitlement to it,
appellant had no proprietary interest, for due process purposes, and was not deprived of
liberty simply by district's refusal to rehire her.
Affirmed.
Thornton, Stephens, Atkins & Kellison, Reno, for Appellant.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, Reno, for Respondent.
1. Schools and School Districts.
Where teacher had not completed two consecutive contract periods, she did not become a
post-probationary teacher upon execution of a third year contract, under statutes then in effect, and where
statutes were amended prior to completion of the second contract period, she remained a probationary
teacher during her third year when she received notification of school district's intention not to reemploy
her, and thus statutory procedural mandates were not available to her. NRS 391.311-391.3196,
391.3197, subd. 3.
Probationary teacher with only a unilateral expectation of employment, and no claim of entitlement to it,
had no proprietary interest, for purposes of due process guaranty, and was not deprived
of liberty simply by school district's refusal to rehire her.
interest, for purposes of due process guaranty, and was not deprived of liberty simply by school district's
refusal to rehire her.
Where teacher received notification of reasons school district was not rehiring her and was given an
opportunity to reply at public hearing, she received all the process due a probationary teacher pursuant to
the statutes then in effect. NRS 391.311-391.3196.
OPINION
Per Curiam:
Appellant brought suit against respondent for its alleged unlawful failure to renew her
teaching contract. The district court granted respondent's motion for summary judgment and
denied appellant's motion for partial summary judgment. Appellant here contends (1) she was
a post-probationary teacher and therefore entitled to the procedural mandates of NRS 391.111
to 391.3196, and (2) her proprietary and liberty interests were impaired without due process.
We disagree.
[Headnote 1]
1. Pursuant to statutes then in force, the procedures of NRS 391.111 to 391.3196,
concerning the dismissal of or refusal to reemploy teachers, were applicable only to
post-probationary teachers.
1
Such status was achieved after a teacher had been employed for
two consecutive contract periods. 1969 Nev. Stats. 271-72. Prior to appellant's completion of
the second contract period, but subsequent to the execution of an employment contract for her
third teaching term, the legislature amended NRS Ch. 391 by extending the probationary
period from two to three years. 1971 Nev. Stats. 379-82. The amendment also provided that,
prior to formal action, . . . the probationary teacher shall be given the reasons for the
recommendation to dismiss or not to renew the contract and be given the opportunity to
reply. 1971 Nev. Stats. 382.
Even though she had not completed two consecutive contract periods, appellant contends
she became a post-probationary teacher upon the execution of her third year contract. The
clear statutory mandate then in effect required employment for two consecutive contract
periods, and the mere fact of executing a contract for a third term did not alter this
requirement.
____________________

1
NRS Ch. 391 has since been amended to give probationary teachers the right to a hearing before a hearing
officer or hearing commission as set out in NRS 391.111 to 391.3196. NRS 391.3197(3).
requirement. See: Spicer v. Anchorage Independent School District, 410 P.2d 995 (Alas.
1966); Richardson v. Board of Education, 58 P.2d 1285 (Cal. 1936). Appellant was a
probationary teacher at the time of the amendment and, pursuant to that amendment,
remained a probationary teacher during her third year when she received notification of the
school district's intention not to reemploy her. Therefore, the procedural mandates of NRS
391.111 to 391.3196 were not available to her.
[Headnotes 2, 3]
2. Appellant also contends respondent's action impaired her proprietary and liberty
interests without due process. As a probationary teacher with only a unilateral expectation of
employment, and no claim of entitlement to it, appellant had no proprietary interest, and she
was not deprived of liberty simply by respondent's refusal to rehire her. Board of Regents v.
Roth, 408 U.S. 564 (1972). Appellant received notification of the reasons respondent was not
rehiring her and was given an opportunity to reply at a public hearing. Therefore, she received
all the process due a probationary teacher pursuant to the statutes then in effect.
Affirmed.
____________
93 Nev. 173, 173 (1977) Maginnis v. State
ROBERT J. MAGINNIS and RICHARD E. MELLO, Appellants,
v. STATE OF NEVADA, Respondent.
No. 8436
March 22, 1977 561 P.2d 922
Defendants were convicted of first degree murder, and appealed from judgment of the
district court. The Supreme Court held that where each defendant in the presence of each
other and other witnesses in the course of private conversation in a private home made
statements discussing homicides in detail and implicated the other as well as himself and the
conversation was of such nature that, in ordinary experience, dissent would have been
expected if communications were incorrect, the statements were admissible as adoptive
admissions. The confrontation clause is not violated by admitting declarant's out-of-court
statements, as long as the declarant is testifying as a witness and is subject to full and
effective cross-examination.
testifying as a witness and is subject to full and effective cross-examination. Where the record
disclosed that the State's noncompliance with the court's discovery order was neither willful
nor deliberate, and where the court took appropriate action pursuant to statute to protect
defendant from any prejudice, there was no error.
Affirmed.
Richard J. Legarza, Winnemucca, for Appellant, Maginnis; William Dunseath, Public
Defender, and David Parraguirre, Deputy Public Defender, Washoe County, for Appellant,
Mello.
Robert List, Attorney General; Larry R. Hicks, District Attorney, and Kathleen Wall and
Donald Coppa, Deputy District Attorneys, Washoe County, for Respondent.
1. Criminal Law.
Where each defendant in the presence of each other and other witnesses in course of private conversation
in private home made statements discussing homicides in detail and implicated the other as well as himself
and conversation was of such nature that, in ordinary experience, dissent would have been expected it
communications were incorrect, statements were admissible as adoptive admissions. NRS 51.035, subd.
3(a), (b).
2. Criminal Law.
Testimony given before grand jury is not excludable as hearsay pursuant to statute. NRS 51.035, subd.
2(d).
3. Criminal Law.
Confrontation clause is not violated by admitting declarant's out-of-court statements, as long as declarant
is testifying as witness and is subject to full and effective cross-examination.
4. Criminal Law.
Where record disclosed that State's noncompliance with court's discovery order was neither willful nor
deliberate, and where court took appropriate action pursuant to statute to protect defendant from any
prejudice, there was no error. NRS 174.295.
5. Criminal Law.
Colored photographs of victims were properly admitted in homicide prosecution where they aided in
ascertainment of truth and where their probative value outweighed any prejudicial effect.
OPINION
Per Curiam:
Appellants contend we must reverse their conviction by jury of first degree murder
because of (1) the admission of statements made by one appellant implicating the other in the
crime, (2) the admission of a witness's testimony given before a grand jury, {3) the State's
failure to comply with a discovery order, and {4) the admission of the victims'
photographs.
grand jury, (3) the State's failure to comply with a discovery order, and (4) the admission of
the victims' photographs. We disagree.
[Headnote 1]
1. In the presence of each other and other witnesses, each appellant made extra judicial
out-of-custody statements wherein each discussed the homicides in detail and implicated the
other as well as himself. The district court, ruling the statements were adoptive admissions
pursuant to NRS 51.035(3)(a) & (b),
1
permitted the witnesses to testify about the
conversations. Relying on Bruton v. United States, 391 U.S. 123 (1968), each appellant
contends the other's statements are inadmissible against him. However, Bruton involved a
co-defendant's confession made to a third party outside the presence of the defendant, not
adoptive admissions, and is therefore inapposite. Further, we are not here faced with a
post-arrest or custodial situation where one has no duty to speak and, indeed, has the
constitutional right to remain silent. See: Vipperman v. State, 92 Nev. 213, 547 P.2d 682
(1976). Instead, the statements were made in a private conversation in a private home and
were of such a nature that, in ordinary experience, dissent would have been expected if the
communications were incorrect. Under similar circumstances, it was held in People v.
Preston, 508 P.2d 300 at 304 (Cal. 1973):
If a person is accused of having committed a crime, under circumstances which
fairly afford him an opportunity to hear, understand, and to reply, and which do not
lend themselves to an inference that he was relying on the right of silence guaranteed by
the Fifth Amendment to the United States Constitution, and he fails to speak, or he
makes an evasive or equivocal reply, both the accusatory statement and the fact of
silence or equivocation may be offered as an implied or adoptive admission of guilt.
[Headnotes 2, 3]
2. Appellants next assert as error the admission of prior testimony given before a grand
jury by a witness who testified at trial.
____________________

1
NRS 51.035(3)(a) & (b) provide: Hearsay' means a statement offered in evidence to prove the truth of
the matter asserted unless:
3. The statement is offered against a party and is:
(a) His own statement, in either his individual or a representative capacity;
(b) A statement of which he has manifested his adoption or belief in its truth; . . .
at trial. Testimony given before a grand jury is not excludable as hearsay pursuant to NRS
51.035(2)(d).
2
Further, . . . the Confrontation Clause is not violated by admitting a
declarant's out-of-court statements, as long as the declarant is testifying as a witness and
subject to full and effective cross-examination. California v. Green, 399 U.S. 149, 158
(1970).
[Headnote 4]
3. Appellants next contend the State's failure to provide discovery in accordance with a
court order constitutes reversible error. The record disclosed the State's noncompliance was
neither willful nor deliberate, and the court took appropriate action pursuant to NRS 174.295
to protect appellants from any prejudice.
3
Under these circumstances, we perceive no error.
[Headnote 5]
4. Appellants finally contend the district court erred by admitting into evidence colored
photographs of the victims. The photographs were properly admitted because they aided in
the ascertainment of truth and their probative value out-weighed any prejudicial effect. Scott
v. State, 92 Nev. 552, 554 P.2d 735 (1976); Theriault v. State, 92 Nev. 185, 547 P.2d 668
(1976); Allen v. State, 91 Nev. 78, 530 P.2d 1195 (1975).
Affirmed.
4

____________________

2
NRS 51.035(2)(d) provides: Hearsay' means a statement offered in evidence to prove the truth of the
matter asserted unless:
2. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the
statement, and the statement is:
(d) A transcript of testimony given under oath at a trial or hearing or before the grand jury; . . .

3
NRS 174.295 provides: If, subsequent to compliance with an order issued pursuant to NRS 174.235 to
174.295, inclusive, and prior to or during trial, a party discovers additional material previously requested or
ordered which is subject to discovery or inspection under such sections, he shall promptly notify the other party
or his attorney or the court of the existence of the additional material. If at any time during the course of the
proceedings it is brought to the attention of the court that a party has failed to comply with such sections or with
an order issued pursuant to such sections, the court may order such party to permit the discovery or inspection of
materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the
material not disclosed, or it may enter such other order as it deems just under the circumstances.

4
Mr. Justice Thompson voluntarily disqualified himself and took no part in this decision. The Governor,
pursuant to Article VI, 4 of the Constitution, designated District Judge Stanley A. Smart to participate in this
case.
____________
93 Nev. 177, 177 (1977) Kostelac v. Sheriff
STEVE T. KOSTELAC, Jr., Appellant, v. SHERIFF,
No. 9594
March 30, 1977 561 P.2d 1334
Reversed.
Madison B. Graves, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, Thomas D.
Beatty, Assistant District Attorney, and J. Michael McGroarty, Deputy District Attorney,
OPINION
Per Curiam:
On the authority of, and for the same reasons stated in, Hilkert v. Sheriff, 93 Nev. 153, 561
P.2d 448 (1977), we reverse the district judge's order denying Steve T. Kostelac, Jr.'s petition
for a writ of habeas corpus.
____________
93 Nev. 177, 177 (1977) Las Vegas Hacienda v. G.L.M.M. Corp.
LAS VEGAS HACIENDA, INC., a California Corporation; and NEVADA ROCK AND
SAND COMPANY, a Nevada Corporation, Appellants, v. G.L.M.M. CORP., a Nevada
Corporation, dba HACIENDA KARTWAYS, Respondent.
No. 9419
March 30, 1977 561 P.2d 1334
Appeal from judgment on counterclaim, Eighth Judicial District Court, Clark County; Carl
J. Christensen, Judge.
Appeal was taken from an order of the district court entering judgment in favor of a lessee
as to the lessor's counterclaim for rescission in an action for damages for alleged breach of a
lease agreement. The Supreme Court held that the lessor's counterclaim for rescission was not
a separate claim for relief; and that the appeal taken from the district court's subsequent
determination that there was no just reason for delay of appeal would be dismissed
without prejudice to the rights of the parties upon entry of final judgment below.
and that the appeal taken from the district court's subsequent determination that there was no
just reason for delay of appeal would be dismissed without prejudice to the rights of the
parties upon entry of final judgment below.
Appeal dismissed.
Galane & Tingey, Las Vegas, for Appellant Las Vegas Hacienda, Inc.
Albright & McGimsey, Las Vegas, for Appellant Nevada Rock and Sand Company.
Lionel Sawyer & Collins, Las Vegas, for Respondent.
District court's finding of no just reason for delay of appeal does not confer jurisdiction on Supreme
Court unless more than one claim for relief was presented in action. NRCP 54(b).
In lessee's action for damages for alleged breach of lease agreement, lessor's counterclaim for rescission,
because it arose out of same transaction or occurrence that was subject matter of suit, was not separate
claim for relief, as specified in rule permitting court which has directed entry of final judgment as to one
or more but fewer than all of claims to allow immediate appeal upon finding of no just reason for delay.
NRCP 54(b).
Where lessor filed counterclaim for rescission in action brought by lessee seeking damages for alleged
breach of lease, and where district court, in ruling on counterclaim, held that lease was valid, that lessor
was not entitled to rescission, and that lessee was entitled to damages, district court's subsequent
determination that there was no just reason for delay of appeal was erroneously premised on assumption
that lessor's counterclaim was separate claim for relief, and appeal taken from such determination would
be dismissed without prejudice to rights of parties upon entry of final judgment below. NRCP 54(b).
OPINION
Per Curiam:
G.L.M.M. Corporation filed suit against Las Vegas Hacienda, Inc., and Nevada Rock and
Sand Company seeking damages for the alleged breach of a lease agreement.
Hacienda filed a counterclaim for rescission of the lease and, after a bench trial, on that
equitable issue, the court ruled: (1) the lease was valid; (2) Hacienda was not entitled to
rescission; and, (3) G.L.M.M. was entitled to damages for breach of the lease.
The trial court subsequently, pursuant to NRCP 54(b), made an express determination that
there was no just reason for delay and Las Vegas Hacienda, Inc., and Nevada Rock and Sand
Company perfected this appeal.
G.L.M.M. has moved to dismiss the appeal contending the district court's NRCP 54(b)
determination was erroneously premised on the assumption that the counterclaim was a
separate claim for relief.
NRCP 54(b) provides in pertinent part: [w]hen more than one claim for relief is presented
in an action, whether as a claim, counterclaim, cross-claim, or third-party claim. . . , the court
may direct the entry of a final judgment as to one or more but fewer than all of the claims.
. . .
[Headnotes 1-3]
The district court's finding of no just reason for delay of appeal does not confer
jurisdiction on this [c]ourt unless more than one claim for relief [was] presented in [the]
action.' Carter v. Croswell, 323 F.2d 696, 697 (5th Cir. 1963). A counterclaim for
rescission is not a separate claim for relief, as specified in NRCP 54(b), because it arises
out of the same transaction or occurrence that is the subject matter of the opposing party's
claim. 6 Moore's Federal Practice 54.33. Compare Engebregson v. Bank of Nevada, 92
Nev. 548, 554 P.2d 1121 (1976). Furthermore, a decision on this appeal may state the law of
the case and thus decide important aspects of the main case. Carter, supra. See also,
Western Geophysical Co. of Am., Inc. v. Bolt Associates, Inc., 463 F.2d 101 (2nd Cir. 1972).
Accordingly, we grant respondent's motion and dismiss the appeal, without prejudice to the
rights of the parties upon entry of final judgment below. Our ruling renders pending ancillary
motions moot.
It is so ORDERED.
____________
93 Nev. 179, 179 (1977) U.S. Fidelity & Guar. v. Nevada Cement
UNITED STATES FIDELITY & GUARANTY COMPANY, a Corporation, Appellant, v.
NEVADA CEMENT COMPANY, a Nevada Corporation, Respondent.
No. 7732
March 30, 1977 561 P.2d 1335
Appeal from judgment of the Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
Cement manufacturer brought suit against its general liability insurer to recover the
amount and expense of settlement with general contractor on claim arising from furnishing
defective cement to concrete supplier.
general contractor on claim arising from furnishing defective cement to concrete supplier.
The district court awarded manufacturer the policy limits, attorney fees and interest and
insurer appealed. The Supreme Court, Gunderson, J., held that the defective cement caused
injury to tangible property within meaning of manufacturer's policy, even though financial
loss was minimized by and limited to installation of shoring and related expenses and there
was no collapse or removal of structure; that cement manufacturer was liable for general
contractor's damages even if the cement satisfied specifications of the general contract
inasmuch as manufacturer represented to concrete supplier that the cement was of a higher
quality; and that trial court could properly find active malfunction of manufacturer's
product within meaning of policy exclusion.
Affirmed.
Richard P. Wait, Ltd., Reno, for Appellant.
Vargas, Bartlett & Dixon, Reno, for Respondent.
1. Insurance.
Defective cement sold by manufacturer to concrete supplier caused injury to or destruction of tangible
property within coverage of manufacturer's general liability policy even though financial loss was
minimized by and limited to installation of shoring and related expenses and there was no collapse or
removal of structure.
2. Sales.
Cement manufacturer was liable for general contractor's damage incurred as a result of sale of defective
cement to concrete supplier even though the cement satisfied specifications of the general contract where
manufacturer represented to concrete supplier that the cement was of a higher quality.
3. Insurance.
For purpose of concrete manufacturer's general liability policy, trial court could properly find active
malfunction of defective cement which manufacturer sold to concrete supplier.
4. Insurance.
Exclusion in cement manufacturer's general liability policy for damages claimed for withdrawal,
inspection, repair, replacement or loss of use of manufacturer's product did not exclude coverage for
damage arising from manufacturer's sale of defective cement to concrete supplier where manufacturer made
no claim for damages resulting from withdrawal, inspection, repair, replacement or loss of use of its
products.
OPINION
By the Court, Gunderson, J.:
Respondent Nevada Cement Company manufactures and sells cement to concrete
manufacturers.
sells cement to concrete manufacturers. In September, 1969, a production error resulted in the
manufacture of a quantity of cement with an insufficient amount of a chemical compound
needed to give it strength. Relying on Nevada Cement's representation that it met market
standards, C. B. Concrete Company purchased and used the defective product in concrete
supplied to Brunzell Construction Company, general contractor for an addition of floors to
the Sky Motor Inn, Reno, Nevada. After C. B. poured the concrete, routine inspection tests
revealed the deficiency and the resulting weakened state of the concrete's structural integrity.
The owner of Sky Motor Inn stopped all construction operations. However, when Brunzell
agreed to cure the problem by leaving supportive shoring in place for an extended time and by
adding shoring to the existing structure, the owner permitted construction to resume. The
additional shoring and time delay caused Brunzell to incur $169,317.64 in additional
construction expenses, for which it sought reimbursement from Nevada Cement.
Nevada Cement tendered Brunzell's claim to appellant, its insurance carrier; however,
coverage was denied on the basis that there was no property damage. Thereafter, Nevada
Cement negotiated a settlement with Brunzell for $129,000 and then brought this suit on its
general liability policy to recover the amount and expense of the settlement. The district court
awarded respondent the policy limits of $100,000, attorney fees, and interest. This appeal
follows.
Appellant contends the district court erred in holding: (1) there was injury to or destruction
of tangible property; (2) Nevada Cement was legally liable for damages suffered by Brunzell;
and, (3) certain policy exclusions did not preclude coverage. These contentions lack merit.
1. By the policy's terms, appellant promised to pay on behalf of respondent all sums which
respondent became legally obligated to pay as damages for loss of use of property resulting
from property damage, defined as injury to or destruction of tangible property.
1
Appellant
evidently recognizes this language would apply if the structure had collapsed, or had been
removed and replaced in whole or in part.
____________________

1
The policy issued to respondent provided in part:
COVERAGE
The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to
pay as damages because of
. . .
B. property damage
to which this insurance applies, caused by an occurrence . . .
DEFINITIONS
. . .
removed and replaced in whole or in part. However, because such consequences could be
avoided by additional shoring, appellant contends there was no injury to or destruction of
tangible property.
[Headnote 1]
Cases relied on by appellant do not support this contention and are distinguishable from
the present circumstances. In the cited cases, coverage was precluded because the property
damage was isolated to the insured's own product,
2
or intangible instead of tangible property
suffered the damage,
3
or no occurrence, as defined by the policy, occurred.
4
However,
when the insured supplies a part to another who constructs an entity from the insured's part
and other parts, courts have found coverage where the insured's part proves defective, causing
damage to the entity. Pittsburgh Bridge & Iron Works v. Liberty Mut. Ins. Co., 444 F.2d 1286
(3rd Cir. 1971); Bundy Tubing Company v. Royal Indemnity Company, 298 F.2d 151 (6th
Cir. 1962); Pittsburgh Plate Glass Co. v. Fidelity & Cas. Co. of N.Y., 281 F.2d 538 (3rd Cir.
1960). Similarly, we think the question here is: does compensable injury to or destruction of
tangible property occur when defective cement destroys the structural integrity of a partially
concrete building? In our view, the answer is affirmative.
It has been held that the mere presence of a defective product in an entity can constitute
property damage. See, for example: Dakota Block Co. v. Western Casualty & Surety Co., 132
N.W.2d 826 (S.D. 1965); Hauenstein v. Saint Paul-Mercury Indem. Co., 65 N.W.2d 122
(Minn. 1954). In the instant case, the presence of defective cement significantly weakened the
total structure, thereby requiring additional shoring to avoid the danger of collapse.
____________________
damages' includes . . . damages for loss of use of property resulting from property damage;
. . .
property damage' means injury to or destruction of tangible property.''

2
See Haugan v. Home Indemnity Company, 197 N.W.2d 18 (S.D. 1972); Kendall Plumbing, Inc. v. St. Paul
Mercury Ins. Co., 370 P.2d 396 (Kan. 1962); Liberty Building Co. v. Royal Indemnity Co., 2 Cal.Rptr. 329
(Cal.App. 1960); Volf v. Ocean Accident and Guarantee Corporation, 325 P.2d 987 (Cal. 1958).

3
Hartford Accident & Ind. Co. v. Case Foundation Co., 294 N.E.2d 7 (Ill.App. 1973); St. Paul Mercury Ins.
Co. v. Sugarland Indus., Inc., 406 S.W.2d 778 (Tex.Civ.App. 1966).

4
Escambia Chemical Corp. v. U.S. Fidelity & Guar. Co., 212 So.2d 884 (Fla.App. 1968); E. K. Hardison
Seed Co. v. Continental Casualty Co., 410 S.W.2d 729 (Tenn.App. 1966).
total structure, thereby requiring additional shoring to avoid the danger of collapse. We are
not persuaded by appellant's argument that structural damage may be recognized only if
collapse or removal ensues, and not if replacement is averted by a shoring process. We
therefore think the trial court properly determined that the defective cement caused injury to
tangible property within the meaning of respondent's insurance policy, even though financial
loss was minimized by and limited to installation of shoring and related expenses. Cf. Teeples
v. Tolson, 207 F.Supp. 212 (D.Ore. 1962).
[Headnote 2]
2. In support of its second contention, appellant argues that, since the cement satisfied the
Brunzell-Sky Motor Inn contract specifications, Nevada Cement can have no legal liability to
Brunzell and thus appellant has none. The argument is not persuasive. Nevada Cement was
not a party to that contract, did not rely on those specifications when manufacturing its
cement, and represented to C. B. Concrete that the cement was of a higher quality. C. B.
relied upon this representation in the formulation of its concrete mix design. Under these
circumstances, we perceive no error in the trial court's determination that Nevada Cement was
liable for Brunzell's damages. Cf. Mohasco Indus. v. Anderson Halverson Corp., 90 Nev.
114, 520 P.2d 234 (1974); General Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972);
Worrell v. Barnes, 87 Nev. 204, 484 P.2d 573 (1971).
[Headnotes 3, 4]
3. Finally, we consider appellant's reliance upon policy exclusions (k) and (n) to be
misplaced.
5
Strictly construing the policy, we think the trial court might properly find
"active malfunction" of appellant's product within the meaning of that language, which
limits exclusion {k).
____________________

5
Exclusions (k) and (n) provided in part:
This insurance does not apply:
. . .
(k) to . . . property damage resulting from the failure of the Named Insured's products or work completed by
or for the Named Insured to perform the function or serve the purpose intended by the Named Insured, if such
failure is due to a mistake or deficiency in any design, formula, plan, specifications, advertising material or
printed instructions prepared or developed by any Insured; but this exclusion does not apply to . . . property
damage resulting from the active malfunctioning of such products or work;
. . .
(n) to damages claimed for the withdrawal, inspection, repair, replacement, or loss of use of the Named
Insured's products or work completed by or for the Named Insured or of any property of which such products or
work form a part, if such products, work or property are withdrawn from the market or from use because of any
known or suspected defect or deficiency therein.
policy, we think the trial court might properly find active malfunction of appellant's product
within the meaning of that language, which limits exclusion (k). Beyond that, it has been held
that exclusion (k) has no application where, as here, the product's failure to serve its intended
purpose results from a production error, as contrasted to a design error. Arcos
Corporation v. American Mutual Liability Ins. Co., 350 F.Supp. 380 (E.D.Pa. 1972); Dawe's
Lab., N.V. v. Commercial Ins. Co. of Newark, N.J., 313 N.E.2d 218 (Ill.App. 1974).
Similarly, exclusion (n) is inapplicable because respondent has not made a claim for damages
resulting from the withdrawal, inspection, repair, replacement, or loss of use of its own
product or its own property of which its product forms a part. Hamilton Die Cast, Inc. v.
United States F. & G. Co., 508 F.2d 417 (7th Cir. 1975); Thomas J. Lipton, Inc. v. Liberty
Mutual Ins. Co., 314 N.E.2d 37 (N.Y. 1974); Gulf Insurance Company v. Parker Products,
Inc., 498 S.W.2d 676 (Tex. 1973).
Affirmed.
Batjer, C. J., and Zenoff, Mowbray, and Thompson, JJ., concur.
____________
93 Nev. 184, 184 (1977) Shapley v. State
BILLY RAY SHAPLEY, Appellant, v. THE
No. 8985
March 30, 1977 561 P.2d 1339
Appeal from a judgment of conviction for forgery. Fourth Judicial District Court, Elko
County; Joseph O. McDaniel, Judge.
The Supreme Court held, inter alia, that the claim that court should not have permitted
filing of second information beyond the statutorily prescribed 15-day period following the
preliminary hearing dissolved in view of the fact that first information, which was dismissed
as insufficient to state a crime, in fact passed muster.
Affirmed.
Horace R. Goff, State Public Defender, and J. Thomas Susich, Deputy Public Defender,
Carson City, for Appellant.
Robert List, Attorney General, Carson City; Robert C. Manley, District Attorney, Elko
Claim that court should not have permitted filing of second information beyond the statutorily prescribed
15-day period following the preliminary hearing dissolved in view of the fact that first information, which
was dismissed as insufficient to state a crime, in fact passed muster. NRS 173.035, subd. 3.
2. Criminal Law.
Although the trial court proceeded to adjudge defendant an habitual criminal, it made no reference to
such status in imposing the statutory ten-year maximum for each of the five forgery counts, and therefore,
the punishment not having been enhanced because of habitual criminal status, the issues advanced by
defendant regarding that adjudication were not reviewable. NRS 205.090.
OPINION
Per Curiam:
After being injured on the job and unable to work defendant Billy Ray Shapley was
terminated by his employer, Delta Drilling Company, at which time he received a draft from
the job foreman for wages owing to him. Following his departure from the drilling site in
Utah near Montello, Nevada, it was discovered that the draft book which had been used to
pay the defendant was missing. This book contained sequential drafts, five of which
subsequently appeared with forged signatures in Wells, Nevada.
Defendant was found guilty by a jury of five counts of forgery by uttering a forged
instrument in violation of NRS 205.090. A hearing to determine habitual criminal status
followed and Shapley was found to be an habitual criminal. He was sentenced to the
maximum ten years imprisonment for each count but with no specific allusion to or sentence
imposition based on the habitual criminal status. The sentences are to run consecutively.
[Headnote 1]
1. Shapley first claims on appeal that the district judge erred in allowing the filing of an
amended information after the initial information was dismissed as insufficient to state a
crime. The contention is that the second information, being the first legally adequate
information, its filing beyond the statutorily prescribed 15-day period following the
preliminary hearing should not have been permitted.
1
The original information was not in
fact insufficient.

____________________

1
NRS 173.035(3): The information shall be filed within 15 days after the holding or waiver of the
preliminary examination. All informations shall set forth the crime committed according to the facts.
The original information was not in fact insufficient. The trial court apparently was of the
opinion that the information should have been drawn in closer conformity to the exact
language of the charging statute but as we read the first information all requirements of
apprising the accused were met; in short, he was charged with committing an offense clearly
and distinctly in ordinary and concise language . . . in such a manner as to enable a person of
common understanding to know what is intended. State v. McKiernan, 17 Nev. 224, at 227,
30 P. 831, at 832 (1882); Watkins v. Sheriff, 87 Nev. 233, 484 P.2d 1086 (1971); Laney v.
State, 86 Nev. 173, 466 P.2d 666 (1970); Langley v. State, 84 Nev. 295, 439 P.2d 986 (1968).
Therefore, the first information having passed muster, the claim of late filing of the
amended version dissolves. Garnick v. District Court, 81 Nev. 531, 407 P.2d 163 (1965).
[Headnote 2]
2. Shapley protests that he should not have been sentenced as an habitual criminal. In fact
he was not. Although the trial court proceeded to adjudge him an habitual criminal, it made
no reference to this status in imposing the statutory ten-year maximum for each of the five
counts. This punishment, not having been enhanced because of the habitual criminal status,
the issues advanced regarding that adjudication are not reviewable.
3. Despite appellant's contentions, we find no error in the trial court's admission of certain
evidence such as copies instead of originals of certain checks and the in-court identification
of the defendant by a witness. We have reviewed appellant's other claims and also can find no
error.
Affirmed.
____________
93 Nev. 186, 186 (1977) Harmon v. Telerent Leasing Corp.
GEORGE HARMON, dba VALLEY INN MOTEL, Appellant, v.
TELERENT LEASING CORPORATION, Respondent.
No. 8766
March 30, 1977 561 P.2d 1340
Appeal from summary judgment, Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
Appeal was taken from an order of the district court which granted lessor's motion for
summary judgment in its action against the lessee of certain motel property.
against the lessee of certain motel property. The Supreme Court held that the pleadings and
affidavit in support of the lessor's motion for summary judgment, which failed to controvert
the contention in the lessee's answer that lessor could not maintain the action because it was
not qualified to do business in the state, left unresolved a factual dispute precluding summary
judgment.
R. Paul Sorenson, Las Vegas, for Appellant.
Wanderer and Wanderer, Las Vegas, for Respondent.
1. Judgment.
Motion for summary judgment should not be granted unless there is no genuine issue as to any material
fact in case.
2. Judgment.
In lessor's action against lessee of motel property, lessor's pleadings and affidavit in support of motion for
summary judgment, which failed to controvert contention advanced in answer that lessor could not
maintain action because it was not qualified to do business in state, left unresolved factual dispute
precluding summary judgment. NRS 80.210, subd. 1.
OPINION
Per Curiam:
Telerent Leasing Corporation filed a complaint against George Harmon d/b/a Valley Inn
Motel. Thereafter, on March 1, 1976, the district court granted Telerent's motion for summary
judgment and Harmon has appealed.
In his answer to the complaint, Harmon advanced, inter alia, the affirmative defense that
under NRS 80.210(1), Telerent could not maintain the action because it was not qualified to
do business in the state.
1
Neither Telerent's pleadings, nor its affidavit in support of
summary judgment, attempted to controvert Harmon's contention.
[Headnote 1]
A motion for summary judgment should not be granted unless there is no genuine issue as
to any material fact in the case. See Ottenheimer v. Real Estate Division, 91 Nev. 338, 535
P.2d 12S4 {1975); Old West Enterprises v. Reno Escrow Co.,
____________________

1
NRS 80.210(1) provides in part: Every corporation which fails or neglects to comply with the provisions
of NRS 80.010 to 80.040 [re qualifying to do business in the State of Nevada] . . . shall not be allowed to
commence, maintain, or defend any action or proceeding in any court of this state until it shall have fully
complied [therewith].
535 P.2d 1284 (1975); Old West Enterprises v. Reno Escrow Co., 86 Nev. 727, 476 P.2d 1
(1970); Islandia, Inc. v. Marechek, 82 Nev. 424, 420 P.2d 5 (1966).
[Headnote 2]
Here, when the trial judge ruled in favor of Telerent, there was nothing in the record to
controvert Harmon's contention; therefore, there is an unresolved factual dispute regarding
Telerent's complianceor non-compliancewith the requirements of NRS 80.210(1).
2
Accordingly, we reverse and remand with instructions to the district court to consider and
resolve that dispute.
____________
93 Nev. 188, 188 (1977) Arvey v. Sheriff
LAWRENCE ARVEY, Appellant, v. SHERIFF,
No. 9593
March 30, 1977 561 P.2d 1341
Reversed.
William B. Terry, Las Vegas, for Appellant.
George E. Holt, District Attorney, and J. Michael McGroarty, Deputy District Attorney,
OPINION
Per Curiam:
On the authority of, and for the same reasons stated in, Hilkert v. Sheriff, 93 Nev. 153, 561
P.2d 448 (1977), we reverse the district judge's order denying Lawrence Arvey's petition
____________________

2
On April 6, 1976, after the appeal had been noticed, Harmon filed a certificate, signed by the Secretary of
State, which stated that Telerent had never qualified to do business in this state. On April 8, 1976, Telerent filed
a certificate, signed by the Deputy Secretary of State, which stated that Telerent was qualified to do business in
the state. Neither of these certificates was presented to or considered by the trial judge when he rendered
judgment for Telerent on February 26, 1976.
reverse the district judge's order denying Lawrence Arvey's petition for a writ of habeas
corpus.
____________
93 Nev. 189, 189 (1977) Rusling v. Sheriff
MATTHEW NOLAN RUSLING, Appellant, v. SHERIFF,
No. 9583
March 30, 1977 561 P.2d 459
Reversed.
George E. Holt, District Attorney, and Rimantas A. Rukstele, Deputy District Attorney,
OPINION
Per Curiam:
For the same reasons stated in Routhier v. Sheriff, 93 Nev. 149, 560 P.2d 1371 (1977), we
reverse the district judge's order denying Matthew Nolan Rusling's petition for a writ of
habeas corpus.
The prosecuting attorney may, within fifteen (15) days after remittitur issues, institute new
charges against Rusling.
____________
93 Nev. 189, 189 (1977) Schlatter v. District Court
MARY SCHLATTER, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, In and For the County of Clark, Respondent.
No. 8278
March 31, 1977 561 P.2d 1342
Original proceeding in mandamus seeking relief from a pretrial discovery order, Eighth
Judicial District Court, Clark County; Keith C. Hayes, Judge.
Original proceeding in mandamus was brought seeking relief from a pretrial discovery
order entered in an action brought against a hotel corporation alleging that plaintiff had
suffered personal injuries on defendant's property resulting in work time lost and impairment
of ability to earn a living. The Supreme Court, Gunderson, J., held that the district court
exceeded its jurisdiction by ordering disclosure of information neither relevant to the tendered
issues nor leading to discovery of admissible evidence; and that, under the circumstances, it
was proper to grant mandamus compelling the court to vacate its improper discovery order.
Petition granted.
Wiener, Goldwater, Galatz & Waldman, Ltd., Las Vegas, for Petitioner.
Cromer, Barker & Michaelson, and Corby D. Arnold, Las Vegas, for Respondent.
1. Discovery.
Scope of discovery in civil actions is limited to matter, not privileged, which is relevant to subject matter
involved in the action. NRCP 26(b)(1).
2. Discovery.
Where civil litigant's physical condition is in issue, court may order discovery of medical records
containing information relevant to injury complained of or any pre-existing injury related thereto. NRCP
26(b)(1).
3. Discovery.
When civil litigant puts amount of her income in issue by alleging impairment of ability to earn living,
court may require disclosure of matter contained in tax records which is relevant to such issue. NRCP
26(b)(1).
4. Discovery.
In civil proceedings, discovery of medical records containing information relevant to an injury
complained of or disclosure of matter contained in tax records relevant to a claim of impairment of ability
to earn a living may not be approved in absence of showing that information is otherwise unobtainable.
NRCP 26(b)(1).
5. Discovery.
In civil action brought against hotel corporation based on allegations that plaintiff had suffered personal
injuries on defendant's property, resulting in work time lost and impairment of ability to earn living, trial
court could properly compel disclosure of matters in plaintiff's tax returns and medical records relating to
issues raised by her action. NRCP 26(b)(1).
6. Discovery.
In civil action brought against hotel corporation based on allegations that plaintiff had suffered personal
injury on defendant's property resulting in work time lost and impairment of ability to earn a living,
district court exceeded its jurisdiction by ordering plaintiff to permit defendant to
inspect and copy all medical records relating to injuries complained of, and, if
pre-existing condition was discovered, authorization allowing defendant access to all
records in her medical history without limitation, and by ordering plaintiff to
authorize defendant to obtain copies of her entire income tax returns for 1972-1974;
discovery order permitted disclosure of information neither relevant to tendered
issues nor leading to discovery of admissible evidence.
to earn a living, district court exceeded its jurisdiction by ordering plaintiff to permit defendant to inspect
and copy all medical records relating to injuries complained of, and, if pre-existing condition was
discovered, authorization allowing defendant access to all records in her medical history without limitation,
and by ordering plaintiff to authorize defendant to obtain copies of her entire income tax returns for
1972-1974; discovery order permitted disclosure of information neither relevant to tendered issues nor
leading to discovery of admissible evidence. NRCP 26(b)(1).
7. Mandamus.
Extraordinary relief of mandamus may not be used to review alleged errors in discovery pertaining to
matters within court's jurisdiction; generally aggrieved party must raise such issues on direct appeal from
final judgment in action wherein discovery was granted or denied. NRS 34.160, 34.170.
8. Mandamus.
Where district court exceeded its jurisdiction in civil action by granting discovery of irrelevant matter,
and where disclosure of irrelevant matter was irretrievable once made so that aggrieved party would
effectively be deprived of any remedy from erroneous ruling if she was required to disclose information
and then contest the validity of order in direct appeal, mandamus could properly be granted compelling
district court to vacate improper discovery order. NRS 34.160, 34.170.
OPINION
In this original proceeding in mandamus, petitioner Mary Schlatter seeks a writ directing
respondent court to vacate a pretrial discovery order permitting blanket discovery of her
medical records and income tax returns. Because respondent exceeded its jurisdiction by
ordering such broad discovery, the writ shall issue.
Ms. Schlatter filed suit in respondent court against Paradise Road Hotel Corporation and
others alleging she had suffered personal injuries on Paradise's property, resulting in time lost
work, and impairment of ability to earn a living. When Schlatter refused a request for pretrial
disclosure of her medical records, income tax returns, and workmen's compensation records,
Paradise moved respondent court for an order compelling discovery. After a hearing, the
court ordered Schlatter to execute an authorization permitting Paradise to inspect and copy all
medical records relating to the injuries complained of and, if a pre-existing condition was
discovered, an authorization allowing Paradise access to all records in her medical history
without limitation. Further, respondent ordered her to execute an authorization permitting
Paradise to obtain copies of her entire income tax returns for 1972-1974.
execute an authorization permitting Paradise to obtain copies of her entire income tax returns
for 1972-1974.
We must determine whether respondent exceeded its jurisdiction by ordering the
disclosure of Schlatter's entire tax returns, and of all medical records in the event a
pre-existing condition is discovered. If so, we must decide whether mandamus is a proper
remedy to prevent improper discovery.
[Headnotes 1-5]
1. The scope of discovery in civil actions is limited to matter, not privileged, which is
relevant to the subject matter involved in the pending action, . . . NRCP 26(b)(1). Where, as
here, a litigant's physical condition is in issue, a court may order discovery of medical records
containing information relevant to the injury complained of or any pre-existing injury related
thereto. Mattison v. Poulen, 353 A.2d 327 (Vt. 1976); State ex rel. McNutt v. Keet, 432
S.W.2d 597 (Mo. 1968). Similarly, when a litigant puts the amount of her income in issue by
alleging the impairment of ability to earn a living, a court may require disclosure of matter
contained in tax records which is relevant to this issue. Matchen v. McGahey, 455 P.2d 52
(Okla. 1969); Anno., 70 A.L.R.2d 242, 260-63 (1960). Of course, such discovery may not be
approved, in the absence of a showing that the information is otherwise unobtainable.
Richland Wholesale Liq. v. Jos. E. Seagram & Sons, Inc., 40 F.R.D. 480 (D. S.C. 1966). Still,
from the record, any such consideration appears to be satisfied; thus, we think the court could
properly compel disclosure of matters in petitioner's tax returns and medical records relating
to issues raised by her action.
[Headnote 6]
However, respondent's order went beyond this and permitted carte blanche discovery of all
information contained in these materials without regard to relevancy. Our discovery rules
provide no basis for such an invasion into a litigant's private affairs merely because redress is
sought for personal injury. Respondent court therefore exceeded its jurisdiction by ordering
disclosure of information neither relevant to the tendered issues nor leading to discovery of
admissible evidence. See: People v. Bua, 226 N.E.2d 6 (Ill. 1967); Maresca v. Marks, 362
S.W.2d 299 (Tex. 1962).
[Headnote 7]
2. Petitioner seeks a writ of mandamus directing the respondent court to vacate its
improper discovery order. Such a writ may issue to compel the performance of an act
which the law especially enjoins as a duty resulting from an office if there is no plain,
speedy, and adequate remedy at law.
a writ may issue to compel the performance of an act which the law especially enjoins as a
duty resulting from an office if there is no plain, speedy, and adequate remedy at law. NRS
34.160 and 34.170. Respondent correctly asserts that extraordinary relief may not be used to
review alleged errors in discovery pertaining to matters within the court's jurisdiction, and
that generally an aggrieved party must raise such issues on direct appeal from final judgment
in the action wherein discovery was granted or denied. Fisher v. Delehant, 250 F.2d 265 (8th
Cir. 1957); Pennsylvania R. Co. v. Kirkpatrick, 203 F.2d 149 (3rd Cir. 1953). Nevertheless,
we have previously stated extraordinary relief is a proper remedy to prevent improper
discovery. State ex rel. Tidvall v. District Court, 91 Nev. 520, 539 P.2d 456 (1975).
[Headnote 8]
Here, respondent exceeded its jurisdiction by granting discovery of irrelevant matter, and a
traditional use of the writ [of mandamus] . . . has been to confine an inferior court to a
lawful exercise of its prescribed jurisdiction. . . .' Schlagenhauf v. Holder, 379 U.S. 104,
109-10 (1964). Since the disclosure of irrelevant matter is irretrievable once made, Schlatter
would effectively be deprived of any remedy from respondent's erroneous ruling if she was
required to disclose the information and then contest the validity of the order on direct appeal.
Hartley Pen Co. v. United States District Court, Etc., 287 F.2d 324 (9th Cir. 1961); Crane v.
Tunks, 328 S.W.2d 434 (Tex. 1959). Under these circumstances, we consider it proper to
grant mandamus, compelling respondent to vacate its improper discovery order. See:
Heathman v. United States Dist. Ct. for Cent. Dist. of Cal., 503 F.2d 1032 (9th Cir. 1974);
Curtis, Inc. v. District Court In & For C. & C. of Denver, 526 P.2d 1335 (Colo. 1974);
Maresca v. Marks, cited above.
Let a writ issue directing respondent to vacate its order as entered. Respondent may
thereupon enter an amended order consistent with its jurisdiction and with this opinion.
____________
93 Nev. 194, 194 (1977) Tamagni v. Tamagni
ALFRED TAMAGNI and DOLORES ANN TAMAGNI, His Wife,
Appellants, v. ALBERT TAMAGNI, Respondent.
No. 8486
April 7, 1977 562 P.2d 481
Appeal from judgment of Ninth Judicial District Court, Lyon County; Noel Manoukian,
Judge.
The district court granted father judgment against son and his wife for remaining balance
on note which was for the amount loaned to son and wife by son's parents, and son and wife
appealed. The Supreme Court held that evidence supported findings that payments which son
and wife made to father after mother's death were to be charged against balance of note and
that mother had not forgiven the note; and that evidence warranted finding that father had not
forgiven the note in exchange for quitclaim deed to real property held by father and his
deceased wife as community property.
Affirmed.
Peter A. Perry, Reno, for Appellants.
Diehl, Recanzone & Evans, Fallon, for Respondent.
1. Bills and Notes.
In action wherein father was granted judgment against son and his wife for remaining balance on note,
which was for the amount loaned to son and wife by son's parents, evidence supported finding that
payments which son and wife made to father after mother's death were to be charged against balance of
note and that mother had not forgiven the note.
2. Bills and Notes.
In action wherein father was granted judgment against son and his wife for remaining balance on note
which was for the amount loaned to son and wife by son's parents, evidence warranted finding that father,
who had received some payments from son and his wife after mother died and after son and wife gave
father quitclaim deed to real property held by such parents as community property, had not forgiven the
note in exchange for the deed. NRS 123.250.
Where trial court, sitting without jury, makes a determination on conflicting evidence, that determination
will not be disturbed on appeal if it is supported by substantial evidence.
OPINION
Per Curiam:
On February 22, 1967, respondent and his wife borrowed $15,000 from the Yerington
branch of the First National Bank of Nevada.
of Nevada. The loan was secured by two passbook savings accounts owned by them. The
money was then loaned to appellants, the son and daughter-in-law of respondent, and
appellants executed and delivered to respondent a non-interest bearing note for said amount.
The money was used to purchase a beauty salon business in Reno which appellants
subsequently sold.
Appellants made fifteen payments, in varying amounts, between September, 1969, and
May, 1972, reducing the principal balance to $12,535. In September, 1975, the trial judge,
sitting without a jury, granted respondent a judgment for the remaining balance on the note,
attorneys' fees, and costs.
Appellants contend that liability on the promissory note was forgiven by respondent's wife
before her death, and that after his wife's death respondent forgave the note in exchange for a
quitclaim deed, from appellants, to certain real property held by respondent and his deceased
wife as community property.
[Headnote 1]
The trial court determined that respondent's wife had not forgiven the note. Four checks
were received by respondent after his wife's death. Respondent considered the checks to be
payments on the note and listed them on the back of the note in the same manner as other
payments had been listed. The evidence supports the finding that these payments were to be
charged against the balance of the note and that respondent's wife had not forgiven the note.
[Headnote 2]
It was also established that respondent had not forgiven the note in return for the quitclaim
deed. The judge determined that some of the payments were made after respondent obtained
the deed. Furthermore, the property in question was held as community property, respondent's
wife died intestate, and as a matter of law the property passed to respondent.
1

[Headnote 3]
Where a trial court, sitting without a jury, makes a determination upon conflicting
evidence, that determination will not be disturbed on appeal if it is supported by
substantial evidence.
____________________

1
NRS 123.250: 1. Upon the death of either husband or wife:
(a) An undivided one-half interest in the community property is the property of the surviving spouse and his
or her sole separate property.
(b) The remaining interest is subject to the testamentary disposition of the decedent, in the absence thereof
goes to the surviving spouse, and is the only portion subject to administration under the provisions of Title 12 of
NRS.
not be disturbed on appeal if it is supported by substantial evidence. County of Clark v.
Lucas, 91 Nev. 263, 534 P.2d 499 (1975); Fletcher v. Fletcher, 89 Nev. 540, 516 P.2d 103
(1973).
The findings of the trial court in this case are supported by substantial evidence.
Affirmed.
____________
93 Nev. 196, 196 (1977) Ecklund v. Nevada Wholesale Lumber Co.
JERRY D. ECKLUND, Appellant, v. NEVADA WHOLESALE LUMBER
CO., a Nevada Corporation, Respondent.
No. 8624
April 7, 1977 562 P.2d 479
Appeal from judgment of Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Seller brought action for payment for building materials furnished corporation. Seller
joined corporation's president as a party defendant. The district court held that president was
personally liable for the debt and he appealed. The Supreme Court, Mowbray, J., held that
seller failed to prove elements upon which the alter ego theory is predicated where the
corporation did not appear to be undercapitalized, seller knew it was dealing with a
corporation and it could not reasonably have relied on president's personal credit and there
was no showing that president used corporation as a conduit for his individual enterprise.
Reversed.
Hale, Belford, Lane & Peek, Reno, for Appellant.
A. D. Jensen, Reno, for Respondent.
1. Corporations.
Party relying on the alter ego doctrine must establish all three elements of the doctrine by a
preponderance of the evidence in order to pierce the corporate veil.
2. Corporations.
Fact that corporation's president influenced and governed the corporation, and president's use of the
pronoun we in answer to complaint to State Contractors' Board were not ground for applying alter ego
doctrine in favor of seller of materials where it did not appear that the corporation was undercapitalized,
seller knew it was dealing with a corporation and could not reasonably have relied on
president's personal credit and there was no showing that president used corporate
shell as a conduit for his individual enterprise.
it was dealing with a corporation and could not reasonably have relied on president's personal credit and
there was no showing that president used corporate shell as a conduit for his individual enterprise.
OPINION
Nevada Wholesale Lumber Co. commenced this action against Ecklund Insulation, Inc.,
seeking payment for building materials furnished Ecklund. Judgment by stipulation was
entered against Ecklund for $9,663.63 plus $1,000 attorney's fees and costs. Nevada in its
complaint also joined, as a party defendant, Ecklund's president, Jerry D. Ecklund. The sole
issue presented to the district judge and to this court is whether Jerry is personally liable for
the debt. The district judge held that he was liable and entered judgment accordingly. We
disagree and therefore reverse.
1. At the close of Nevada's case in chief, Jerry made a motion to dismiss the complaint
pursuant to NRCP 41(b). The motion was denied, and the case was submitted without the
presentation of further evidence. The district judge found that Nevada had established a prima
facie case, that there was a unity of interest and ownership between Jerry and the Ecklund
corporation, and that Jerry controlled it. The district judge concluded, therefore, that Jerry
was the corporation's alter ego and personally liable for the debt.
2. Jerry urges that Nevada did not meet the burden of proving by a preponderance of the
evidence the necessary elements upon which the alter ego theory is predicated.
[Headnote 1]
The requirements for applying the alter ego doctrine are set forth in McCleary Cattle Co. v.
Sewell, 73 Nev. 279, 282, 317 P.2d 957, 959 (1957):
(1) The corporation must be influenced and governed by the person asserted to be its
alter ego. (2) There must be such unity of interest and ownership that one is inseparable
from the other; and (3) The facts must be such that adherence to the fiction of separate
entity would, under the circumstances, sanction a fraud or promote injustice.
Each of the above three elements must be established by a preponderance of the evidence by
the party seeking to pierce the corporate veil. See North Arlington Medical Bldg., Inc., v.
Sanchez Constr. Co., S6 Nev. 515
the corporate veil. See North Arlington Medical Bldg., Inc., v. Sanchez Constr. Co., 86 Nev.
515, 471 P.2d 240 (1970); Baer v. Amos J. Walker, Inc., 85 Nev. 219, 452 P.2d 916 (1969).
Ecklund was incorporated in 1963. The articles of incorporation named Jerry D. Ecklund
(the appellant), Leonard E. Shaunce, and Janet Ecklund as directors. Jerry served at all times
as president. The capital structure was stated to be 75,000 shares of $1-par-value common
stock.
An unaudited financial statement of May 8, 1967, showed the corporation to have assets of
$94,920.38, with liabilities of an equal amount, and paid-in capital of $2,300, with retained
earnings of $21,931.28. No evidence was presented regarding the ownership of the stock.
Nevada's general manager testified. He stated that he knew of the existence of Ecklund
Insulation, Inc., and had done business with the corporation; that Jerry, but no other person,
had on numerous occasions ordered insulation materials for the corporation, which were
charged to the corporation's account.
Nevada urged before the court below that Jerry had admitted personal liability for the debt
and his alter ego relationship with the corporation. In support of these contentions, Nevada
presented Jerry's answer to the complaint filed with the State Contractors' Board seeking
payment of its debt, where Jerry admitted: We owe Nevada Wholesale Lumber Company
$9,628.46. Nevada also presented a responsive pleading in another lawsuit regarding the sale
of the corporation. Jerry stated in that document that he had agreed orally to sell the
corporation, but when the seller failed to make payment Jerry resumed control of the
corporation.
The sole remaining evidence presented was that the State Contractors' Board had
suspended the corporation's license pending payment of the debt and that the corporation had
failed to file with the Secretary of State its annual list of officers and directors for July 1,
1975, to June 30, 1976.
[Headnote 2]
3. It is clear from the foregoing that the only element Nevada has established by a
preponderance of the evidence is that Jerry influenced and governed the corporation. He
served as president and director of the corporation, and he appears to have been the sole
person acting on its behalf.
The evidence, however, does not establish that there was a unity of interest and
ownership between Jerry and the corporation.
unity of interest and ownership between Jerry and the corporation. It was never shown that
Jerry owned a single share of the 7,000 outstanding shares of stock.
Ecklund's admissions are too ambiguous to establish a unity of interest and ownership. The
use of the pronoun we in the answer to the complaint to the State Contractors' Board does
not necessarily indicate an admission of personal liability.
The record is devoid of any other evidence that adherence to the corporate fiction would
promote an injustice, the third necessary element for the alter ego theory. It does not appear
that the corporation was undercapitalized; it conducted business successfully for 12 years
before running into financial difficulty. Nevada knew it was dealing with a corporation and
could not reasonably have relied on Jerry's personal credit, absent any conduct by Jerry
inducing it to do so. The only evidence of any corporate irregularitiesthe termination of its
license and its being held delinquent in filing a list of current officers and directorsrelated
to events subsequent to the facts pertinent herein, and was therefore irrelevant.
4. Cases in which this court has chosen to disregard the corporate entity and hold an
individual liable for its debts have required considerably more. We turn to review those cases.
In McCleary Cattle Co., this court held a cattle company liable for the debts of a timber
company. The court found that, for tax purposes, all the assets of the timber company had
been transferred to the cattle company, which had borne the litigation expenses of the timber
company. It further found that the same two individuals were the sole shareholders in both
corporations and that one of these individuals served as president for both. Unlike the instant
case, the McCleary case clearly established a unity of ownership and interest. Furthermore, to
allow a corporation to escape its debts by transferring its debts to another, similarly situated
corporation would promote an injustice.
In Caple v. Raynel Campers, Inc., 90 Nev. 341, 526 P.2d 334 (1974), this court held the
principal incorporator and corporate officer of two financing companies personally liable for
damages due to wrongful repossession of a truck by corporate employees. Its determination
rested on findings of fact clearly distinguishing it from the instant case:
Caple . . . alone stands out as the investing and directing force of both corporations. He
was the sole investor and stockholder, the only person with direction and control. . . .
There did exist between Caple and the two corporations a unity . . . [of] interest . . .
[and] ownership of such nature that the corporation had no apparent independent
business operation and existed solely for the purpose of conducting the personal
business of Caple.
nature that the corporation had no apparent independent business operation and existed
solely for the purpose of conducting the personal business of Caple.
Id. at 343-344, 526 P.2d at 336. The Caple case is distinguishable on the same ground as
McCleary, as involving a clear unity of ownership and interest.
A case of injustice was involved in Carson Meadows, Inc. v. Pease, 91 Nev. 187, 533 P.2d
458 (1975). In that case, this court held the president and director of a corporation liable in
damages to investors he had induced to loan money to the corporation by misrepresenting the
corporation as financially sound. The record indicated that the defendant had wholly
controlled the corporation and, while not the sole stockholder, had used it and its assets for
whatever purposes he wished. Not only were none of the corporate formalities observed, but
Goldbeck commingled corporate funds with his own. He treated some corporate assets as his
own and manipulated them to suit himself. He appears to have negotiated all of the corporate
business, and truly may be said to have used the corporate shell as a conduit for his individual
enterprise. Id. at 191, 533 P.2d at 461. No such showing supports the trial court's decision in
the instant case.
This court has rejected the alter ego theory in other, less extreme fact situations. See
Plotkin v. National Lead Co., 87 Nev. 51, 482 P.2d 323 (1971); North Arlington Medical
Bldg., Inc. v. Sanchez Constr. Co., 86 Nev. 515, 471 P.2d 240 (1970); Baer v. Amos J.
Walker, Inc., 85 Nev. 219, 452 P.2d 916 (1969); O'Connell v. Cox, 78 Nev. 40, 368 P.2d 761
(1962); and Nevada Tax Comm'n v. Hicks, 73 Nev. 115, 310 P.2d 852 (1957).
The instant case is allied with those cases in which the corporate entity was upheld.
Nevada has failed to meet its burden of establishing the three required elements of the alter
ego doctrine. Therefore, the decision of the trial court holding Jerry D. Ecklund personally
liable for the debts of the corporation is reversed.
Batjer, C. J., and Zenoff, Thompson, and Gunderson, JJ., concur.
____________
93 Nev. 201, 201 (1977) Fireman's Fund Am. Ins. Co. v. Knobbe
FIREMAN'S FUND AMERICAN INSURANCE COMPANIES, Appellant, v. ANDREW J.
KNOBBE, GERALDINE KNOBBE, JOHN D. DOHERTY, and MARILYN DOHERTY,
Respondents.
No. 8830
April 7, 1977 562 P.2d 825
Appeal from an order granting motion for summary judgment; Eighth Judicial District
Court, Clark County; Joseph S. Pavlikowski, Judge.
Following hotel fire caused by cigarette, hotel's insurer brought action against four guests.
The district court granted defendants' motion for summary judgment as to the res ipsa loquitur
theory of liability, and insurer appealed. The Supreme Court, Mowbray, J., held that where
hotel fire was caused by cigarette and evidence established that four guests had been smoking
in room where fire originated, but there was no evidence indicating which guest had control
of the cigarette that started the fire, doctrine of res ipsa loquitur had no application.
Affirmed.
C. Nicholas Pereos, Reno, for Appellant.
Cromer, Barker & Michaelson, Las Vegas, for Respondents Knobbe.
McDonald, Carano, Wilson, Bergin & Bible, Reno, for Respondents Doherty.
Innkeepers.
Where hotel fire was caused by cigarette and evidence established that four guests had been smoking in
room where fire originated, but there was no evidence indicating which guest had control of the cigarette
that started the fire, doctrine of res ipsa loquitur had no application.
OPINION
The sole issue presented is whether the doctrine of res ipsa loquitur may be invoked to
recover damages from a hotel's guests for a fire that originated in one of the guests' rooms.
The district judge on a motion for summary judgment held that under the facts presented
the doctrine was not applicable.
under the facts presented the doctrine was not applicable. We agree and affirm.
1. A fire was discovered in a hotel room in Las Vegas. The cause of the fire was
determined to be a cigarette. On the night of the fire, the room was occupied by Respondents
John and Marilyn Doherty. The Dohertys were traveling in the company of Respondents
Andrew and Geraldine Knobbe, who occupied an adjoining, connecting room.
2. A complaint was filed by appellant insurance company against respondents, claiming
subrogation to the rights of the hotel and alleging negligence predicated both on a standard
evidentiary negligence theory and on the doctrine of res ipsa loquitur. Respondents moved for
summary judgment. The court denied the motion, on the ground that there was a conflict of
material fact under the standard evidentiary theory; however, the court granted the motion as
to the res ipsa loquitur theory of liability. Appellant then stipulated that there was insufficient
evidence to establish negligence without the aid of res ipsa loquitur. This appeal followed.
3. In Bialer v. St. Mary's Hosp., 83 Nev. 241, 243, 427 P.2d 957, 958 (1967), this court
said:
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.
Evidence was presented that the hotel had 18 keys to the room where the fire occurred.
The staff was not questioned to determine whether anyone had entered the room after the four
respondents had departed and before the discovery of the fire. Further, appellant failed to
demonstrate that respondents had exclusive control or joint control of the instrumentality
causing the damage. Taken in the light most favorable to the appellant, the evidence
established that all four respondents were smoking in the room. While each had exclusive
control of his or her own cigarette, there is no evidence as to which cigarette started the fire.
Traditionally, such a failure defeats the plaintiff's case. There have been cases, however, in
which res ipsa loquitur has been applied to multiple defendants, thereby shifting the burden to
each individual defendant to present exculpating evidence. Appellant relies upon the leading
case of Ybarra v. Spangard, 154 P.2d 6S7 {Cal.
154 P.2d 687 (Cal. 1944), in urging this theory in this case. In Ybarra, an appendectomy
patient who awoke with a shoulder injury was permitted to invoke the doctrine of res ipsa
loquitur against several medical practitioners in whose care he had been while unconscious.
No showing had been made as to which defendant or what instrumentality had caused the
injury. The court concluded this did not bar the doctrine, holding, however, that the ruling
was limited to the fact situation presented.
The rule has also been applied, upon occasion, in a variety of other fact situations: Smith
v. Claude Neon Lights, Inc., 164 A. 423 (N.J. 1933) (plaintiff injured by falling sign sued
owner of building and light company which erected and maintained sign); Schroeder v. City
& County Sav. Bank, 57 N.E.2d 57 (N.Y. 1944) (plaintiff injured by collapse of construction
barricade sued owner of building and two construction companies); Bond v. Otis Elevator
Co., 388 S.W.2d 681 (Tex. 1965) (plaintiff injured when elevator went into free fall sued
owner of building and company which installed and maintained elevator); Burr v.
Sherwin-Williams Co., 258 P.2d 58 (Cal.App. 1953) (plaintiff whose cotton crop was
damaged by insecticide spray sued manufacturer of spray, spraying company, and local
cooperative which advised use of spray); Raber v. Tumin, 226 P.2d 574 (Cal. 1951) (plaintiff
injured by a falling ladder sued leasee of premises and carpenter doing repairs on premises).
1
In the foregoing cases, the instrumentality causing the damage was known. While the plaintiff
had not established which defendant had been negligent, he had established that each was at
some time or to some extent responsible for that instrumentality. Only the cases involving
unconscious patients lack direct evidence as to both the particular defendant and the
particular instrumentality responsible, as does the instant case.
More commonly, it has been held that when any of several defendants wholly independent
of each other may be responsible for plaintiff's injury, the doctrine of res ipsa loquitur cannot
be applied. See, e.g., Estes v. Estes, 127 S.W.2d 7S {Mo.App. 1939); Gerber v. Faber, 129
P.2d 4S5 {Cal. 1942); Wolf v. American Tract Soc'y, 5S N.E. 31 {N.Y. 1900).
____________________

1
In his dissent in Raber, Justice Traynor noted, at 579, the danger of extending the Ybarra holding to other
fact situations:
Under the rule of the Ybarra case as here applied a plaintiff who has suffered an injury of a kind that
ordinarily does not occur in the absence of someone's negligence may establish a cause of action against
all persons who had an opportunity to cause the injury. A plaintiff, for instance, who is struck on the head
by a flower pot falling from a multistoried apartment building may recover judgment against all the
tenants unless the innocent tenants are able to identify the guilty one.
be applied. See, e.g., Estes v. Estes, 127 S.W.2d 78 (Mo.App. 1939); Gerber v. Faber, 129
P.2d 485 (Cal. 1942); Wolf v. American Tract Soc'y, 58 N.E. 31 (N.Y. 1900). In Wolf, the
plaintiff had been injured by a brick falling from a building under construction in which 19
independent contractors were at work. The court rejected the lower court's application of res
ipsa loquitur to two of these contractors, which would have required them to come forward
with proof of their innocence. It concluded, at 32, that:
Cases must occasionally happen where the person really responsible for a personal
injury cannot be identified or pointed out by proof, as in this case; and then it is far
better and more consistent with reason and law that the injury should go without
redress, than that innocent persons should be held responsible, upon some strained
construction of the law developed for the occasion.
Clearly, the doctrine has no application in this case, where there is lacking even a scintilla
of evidence indicating which respondent had control of the cigarette that started the fire.
The order granting summary judgment is affirmed.
2

____________________

2
As the parties have not raised the question, we do not here decide whether an insurance carrier indeed has a
right of subrogation where a hotel purchases insurance to protect against negligence of its guests. See Central
National Ins. Co. v. Dixon, 93 Nev. 86, 559 P.2d 1187 (1977).
____________
93 Nev. 204, 204 (1977) Allen v. Anderson
SARAH ALLEN, Appellant, v. FREDRICK CARL ANDERSON, NEALE R. RUARK and
JOE FUETSCH, Special Administrator of the Estate of Michael Lynn Ruark, Deceased, et al.,
Respondents.
No. 8925
April 7, 1977 562 P.2d 487
Appeal from judgment, entered pursuant to NRCP 54(b), striking punitive damage claim,
Second Judicial District Court, Washoe County; William N. Forman, Judge.
Automobile passenger brought action against special administrator of estate of driver of
such automobile, driver's father and driver of another automobile for compensatory and
punitive damages for personal injuries sustained when such vehicles collided.
and driver of another automobile for compensatory and punitive damages for personal
injuries sustained when such vehicles collided. The district court entered judgment striking
punitive damage claim, and passenger appealed. The Supreme Court, Gunderson, J., held that
neither estate nor father of alleged deceased tortfeasor driver could be liable for punitive
damages; and that failure of defendant driver to file brief on appeal or tender an explanation
for his failure to do so would be treated as a confession of error.
Affirmed in part; reversed in part.
Peter Chase Neumann and Lew Carnahan, Reno, for Appellant.
Vargas, Bartlett & Dixon, Reno, for Respondents Neale R. Ruark and Joe Fuetsch.
Erickson, Thorpe & Swainston, Reno, for Respondent Fredrick Carl Anderson.
1. Damages; Executors and Administrators.
Neither estate nor father of alleged deceased tortfeasor could be liable for punitive damages. NRS
41.100, 41.440, 42.010; NRCP 54(b).
2. Executors and Administrators.
Punitive damage claims do not survive death of tortfeasor and cannot be sought from deceased
tortfeasor's estate.
3. Damages.
Family members of deceased tortfeasor cannot be vicariously liable for punitive damages under statute
imposing vicarious liability on other family members for damages proximately resulting from . . .
negligence or willful misconduct, . . . . NRS 41.440, 42.010.
Failure of a respondent to file brief on appeal or tender an explanation for his failure to do so, though he
was served with appellant's opening brief and was granted an extension of time to file answering brief,
would be treated as a confession of error. NRAP 31(c).
OPINION
Appellant sought compensatory and punitive damages for personal injuries sustained when
the car in which she was a passenger, driven by Michael Ruark, collided with a car driven by
respondent Fredrick Anderson. In the accident, Michael Ruark was killed and Anderson was
injured.
Ruark was killed and Anderson was injured. Appellant's complaint against Anderson, Joe
Fuetsch (Special Administrator of Michael Ruark's estate), and Neale Ruark (Michael's
father) alleged: (1) Anderson and Michael Ruark, while under the influence of alcohol,
negligently and carelessly operated their vehicles in such a manner as to cause them to collide
violently, and such negligence was the proximate cause of her injuries; (2) the intentionally
dangerous and irresponsible conduct of Anderson and Michael Ruark constituted fraud,
oppression, or malice, as contemplated by NRS 42.010, thus, punitive damages were
warranted;
1
and, (3) Neale Ruark was liable pursuant to NRS 41.440 for any judgment
against his son, Michael.
2

Two of the defendants, Fuetsch and Ruark, moved, pursuant to NRCP 12, to strike the
punitive damage claim. The district judge granted the motion because, he reasoned, the
allegations were insufficient and the movants were, as a matter of law, not liable for such
damages. An order striking that claim was entered as to all of the defendants who then
stipulated to the finality of that order. Accordingly, the district judge, determining there was
no just cause for delay, directed a final judgment be entered pursuant to NRCP 54(b), thereby
permitting Allen to pursue this appeal.
3
Allen contends on appeal that the district court
erred in striking her claim for punitive damages because its allegations were sufficient to
sustain such a claim.

____________________

1
In an action for the breach of an obligation not arising from contract, where the defendant has been guilty of
oppression, fraud or malice, express or implied, the plaintiff, in addition to the actual damages, may recover
damages for the sake of example and by way of punishing the defendant.

2
Any liability imposed upon a wife, husband, son, daughter, father, mother, brother, sister or other immediate
member of a family arising out of his or her driving and operating a motor vehicle upon a highway with the
permission, express or implied, of such owner is hereby imposed upon the owner of the motor vehicle, and such
owner shall be jointly and severally liable with his or her wife, husband, son, daughter, father, mother, brother,
sister or other immediate member of a family for any damages proximately resulting from such negligence or
willful misconduct, and such negligent or willful misconduct shall be imputed to the owner of the motor vehicle
for all purposes of civil damages.

3
NRCP 54(b) provides, in part:
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. . . .
Allen contends on appeal that the district court erred in striking her claim for punitive
damages because its allegations were sufficient to sustain such a claim. However, here we
need not, and therefore do not, decide this issue.
[Headnote 1]
1. Neither the estate nor the father of the deceased tortfeasor can here be liable for
punitive damages.
On its face, Nevada's broadly phrased survival statute might be read to mandate survival of
punitive damage claims, not only following death of the aggrieved party but subsequent to the
tortfeasor's death as well. See NRS 41.100.
4
However, punitive damages are awarded for
sake of example and by way of punishing the defendant. NRS 42.010. See Caple v. Raynel
Campers, Inc., 90 Nev. 341, 526 P.2d 334 (1974).
Thus, as might be expected, it is commonly held that punitive damage claims survive the
aggrieved party's death, as against a living tortfeasor. See, for example: Worrie v. Boze, 96
S.E.2d 799 (Va. 1957); Swartz v. Rosenkrans, 240 P. 333 (Colo. 1925); Wagner v. Gibbs, 31
So. 434 (Miss. 1902). Such tortfeasors, of course, remain susceptible to punishment. As one
court has said, in distinguishing a situation involving a deceased injured party from
precedents denying punitive damages where the tortfeasors were dead: [T]he reason for the
difference is perfectly manifest. Punitory damages are inflicted for the purpose of deterring a
culprit in the future, and the imposition of them for such purpose is impossible in the case
of a person deceased.
____________________

4
NRS 41.100 provides, in part:
1. Causes of action, whether suit has been brought upon the same or not, in favor of the injured party for
personal injuries other than those resulting in death, whether such injuries be to the health or to the reputation or
to the person of the injured party, shall not abate by reason of his death nor by reason of the death of the person
against whom such cause of action shall have accrued; but in the case of the death of either or both, such cause
of action shall survive to and in favor of the heirs and legal representatives of such injured party and against the
person, receiver or corporation liable for such injuries, and his or its legal representatives; and so surviving such
cause of action may be hereafter prosecuted in like manner and with like legal effect as would a cause of action
for injuries to or destruction of personal property.
2. The court or jury in every such action may give such damages, pecuniary and exemplary, as it shall deem
fair and just. Every person entitled to maintain such action, and every person for whose benefit such action is
brought, may prove his respective damages, and the court or jury may award such person that amount of
damages to which it considers such person entitled, including damages for loss of probable future
companionship, society and comfort.
imposition of them for such purpose is impossible in the case of a person deceased. But
where the trespasser is still alive, as in the case at bar, there is no reason whatever why he
should be exonerated because of the death of the one upon whom he has committed a
trespass; for the punishment is imposed not to deter him from repeating his trespass as against
the particular party assailed or injured, but to secure his general good behavior. Id. at 435.
[Headnote 2]
With consistent logic, by the great weight of authority, punitive damage claims do not
survive the death of the tortfeasor, and cannot be sought from the deceased tortfeasor's estate.
See, for example: Barnes v. Smith, 305 F.2d 226 (10th Cir. 1962); Hayes v. Gill, 390 S.W.2d
213 (Tenn. 1965); Dalton v. Johnson, 129 S.E.2d 647 (Va. 1963); Morriss v. Barton, 190
P.2d 451 (Okl. 1947); Marcante v. Hein, 67 P.2d 196 (Wyo. 1937); Evans v. Gibson, 31 P.2d
389 (Cal. 1934); Braun v. Moreno, 466 P.2d 60 (Ariz.App. 1970); McAdams v. Blue, 164
S.E.2d 490 (N.C.App. 1968); Sears, Roebuck and Company v. Jones, 303 S.W.2d 432
(Tex.Civ.App. 1957). In Barnes v. Smith, cited above, a case arising, as this one, from a
highway disaster involving the collision of two motor vehicles, the court noted that the rule
just mentioned has been almost unanimously followed by courts considering the liability of a
tortfeasor's estate.
5
One court has cogently stated the fundamental rationale for such holdings
as follows: Punitive damages are not to compensate an injured person for the loss sustained,
but to punish a defendant for his conduct. [Citation omitted]. Since the deceased tortfeasor
can in no way be punished by the award of punitive damages, we see no reason for allowing
such damages to be assessed. When the reason for a rule ceases to exist, the rule itself is no
longer of value and is extinguished by the disappearance of the reason. Braun v. Moreno,
cited above, 466 P.2d at 62, 63. Accord, Hayes v. Gill, cited above. We are persuaded by this
logic.
[Headnote 3]
A fortiori, family members of a deceased tortfeasor cannot be vicariously liable for
punitive damages under NRS 41.440.
____________________

5
Although Barnes involved the interpretation of the New Mexico wrongful death statute permitting the jury
to award such damages, compensatory and exemplary, as they shall deem fair and just. . . . N.M. Stat. Ann.
22-20-3, in our view, the rationale underlying the rule makes it equally applicable to our personal injury statute
similarly permitting the jury to award such damages, pecuniary and exemplary, as it shall deem fair and just.
NRS 41.100.
That statute, by its express terms, only imposes vicarious liability upon other family members
for damages proximately resulting from . . . negligence or willful misconduct, . . . Punitive
damages do not so result. Such damages are raised, not as a proximate result of the
wrongdoer's conduct, but rather, by law and are intended to punish the wrongdoer. See NRS
42.010.
Accordingly, the judgment in favor of respondents Fuetsch and Ruark is affirmed.
[Headnote 4]
2. Although served with appellant's opening brief, and granted an extension of time to file
his answering brief, respondent Anderson neither filed his brief nor tendered an explanation
for his failure to do so. Under these circumstances, we elect, under NRAP 31(c), to treat such
failure as a confession of error. Kitchen Factors, Inc. v. Brown, 91 Nev. 308, 535 P.2d 677
(1975). The judgment in favor of Anderson is reversed.
____________
93 Nev. 209, 209 (1977) Warden v. Conner
RONALD DAWAYNE CONNER, Respondent.
No. 9079
April 7, 1977 562 P.2d 483
Appeal from order granting post-conviction writ of habeas corpus. First Judicial District
Court, Carson City; Frank B. Gregory, Judge.
The district court granted writ of habeas corpus, vacated 1968 guilty plea, and released and
remanded habeas corpus petitioner for hearing regarding petitioner's sanity, and appeal was
taken. The Supreme Court held that where trial judge's review of psychiatric evidence left no
doubt as to petitioner's competency and where nothing was shown or appeared to give any
indication but that petitioner was competent at time that guilty plea was entered, trial court's
failure to make specific finding as to petitioner's competency to enter plea after having
ordered psychiatric examination did not invalidate guilty plea and did not entitle petitioner to
habeas corpus relief.
Reversed.
Robert List, Attorney General, and Patrick B. Walsh, Deputy Attorney General, Carson
1. Criminal Law.
Despite fact that district court failed to suspend further proceeding and provide competency hearing after
having ordered psychiatric examination, where it was apparent that trial judge's review of psychiatric
evaluation left no doubt as to petitioner's competency and where court canvassed him thoroughly and
accepted his guilty plea and nothing was shown or appeared to give any indication but that petitioner was
competent to enter guilty plea, district court had jurisdiction to accept petitioner's guilty plea. NRS
178.405 et seq.
2. Criminal Law.
A court is not required to institute the statutory mechanism for a determination of defendant's sanity in the
absence of sufficient and reasonable doubt as to competency. NRS 178.405 et seq.
OPINION
Per Curiam:
Respondent, Ronald Dawayne Conner, initiated habeas corpus proceedings by alleging,
inter alia, that the Second Judicial District Court had in 1968 failed to suspend further
proceedings and provide a competency hearing pursuant to NRS 178.405 et seq. after having
ordered a psychiatric examination. The omission, it is claimed, deprived the trial court of
jurisdiction to accept his plea of guilty.
The writ was granted, the guilty plea vacated and respondent was released and remanded
to Washoe County for a hearing regarding his sanity.
[Headnote 1]
We reverse the order granting the writ. Although initially the trial court made no specific
finding as to Conner's competency to enter a plea, from the record it is apparent that the trial
judge's review of the psychiatric evaluation left no doubt as to Conner's competency. The
court canvassed him thoroughly and accepted his guilty plea. Nothing is shown or appears to
give any indication but that Conner was competent.
[Headnote 2]
A court is not required to institute the statutory mechanism for a determination of
defendant's sanity in the absence of sufficient and reasonable doubt as to competency. U.S. ex
rel.
Roth v. Zelker, 455 F.2d 1105 (2d Cir. 1972); Redd v. Decker, 447 F.2d 1346 (5th Cir.
1971); U.S. ex rel. Evans v. LaVallee, 446 F.2d 782 (2d Cir. 1971). Accord, Williams v.
State, 85 Nev. 169, 451 P.2d 848 (1969). See Pate v. Robinson, 383 U.S. 375 (1966).
The granting of the writ is reversed, the plea of guilty is reinstated and respondent is
remanded to custody to complete the penalty imposed.
Reversed.
____________
93 Nev. 211, 211 (1977) Warden v. O'Brian
ROY O'BRIAN, Respondent.
No. 9032
April 7, 1977 562 P.2d 484
Appeal from order granting writ of habeas corpus, First Judicial District Court, Carson
Petitioner confined pursuant to conviction for armed robbery sought writ of habeas corpus.
The district court struck warden's return and summarily granted habeas and warden appealed.
The Supreme Court held that assuming that return bearing the signature of the deputy district
attorney, but not that of the warden, was defective, district court should have permitted an
appropriate amendment.
for Appellant.
Habeas Corpus.
Assuming that return to prisoner's habeas corpus petition was defective in that it was not personally
signed by the warden, district court should have permitted an appropriate amendment and should not have
struck the return and summarily granted habeas. NRS 34.430, 177.315, subd. 3, 177.375, subd. 1.
OPINION
Per Curiam:
On December 16, 1974, Roy O'Brian entered a guilty plea to the charge of armed robbery,
a felony under NRS 200.380.
93 Nev. 211, 212 (1977) Warden v. O'Brian
On March 30, 1976, he petitioned for a writ of habeas corpus asserting various reasons why
he should be released from confinement. The writ was directed to Edwin T. Pogue, the then
warden of the prison.
A return to the writ contained the following language: Comes now Edwin T. Pogue,
Warden of the Nevada State Prison, respondent, through his counsel, George E. Holt, Clark
County District Attorney, by Bill C. Hammer, Deputy District Attorney. . . . The return bears
the signature of the deputy district attorney, but not that of the warden.
During argument on the writ the district judge concluded that under NRS 34.430 the
warden was required to personally sign the return; and, since he had not done so, the judge
granted respondent's motion to strike the defective return. He also summarily granted
habeas. The warden has appealed.
When the allegation of a defective return was raised, the attorney appearing on behalf of
the warden requested a short recess in order to conform the return to the satisfaction of the
district judge. It has been held that default judgments in habeas corpus proceedings are not
available as procedure to empty state prisons. Allen v. Perini, 424 F.2d 134 (6th Cir. 1970).
See Marshall v. Geer, 344 P.2d 440, 442 (Colo. 1959), which held that the court should not
blindly and arbitrarily release a prisoner, not entitled to release, because of a late return and
answer or even because of total lack of a return or answer. We need not decide whether,
indeed, the return was defective. Assuming that it was, the district court should have
permitted an appropriate amendment. Reversed and remanded.
1

____________________

1
At this juncture, we need not, and therefore do not, consider whether, under NRS 177.315(3) and
177.375(1), the habeas petition was cognizable in the district court.
____________
93 Nev. 212, 212 (1977) Halbower v. State
RODNEY L. HALBOWER, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 8885
April 7, 1977 562 P.2d 485
Defendant was convicted in the district court of forcible rape, infamous crime against
nature and infamous crime against nature with force.
against nature with force. Defendant appealed. The Supreme Court held that defendant was
not entitled, on grounds of surprise, to exclusion from evidence of the results of a test made
on his clothing, even though that test was not made until shortly before the results were
introduced in evidence, in that a similar test had been made on the victim's undergarment and,
through pretrial discovery of the first test, the defendant was not unaware of the technical
procedure that had been employed; and that where the defendant did not move to strike the
prosecutor's jury argument relating to his prior felony convictions, move for a mistrial, assign
misconduct, or request an instruction, alleged error therein would not be considered on
appeal.
Affirmed.
Chubb & Silverman, Sparks, for Appellant.
1. Criminal Law.
Absent motion for continuance, claim of prejudicial surprise in introduction of evidence cannot generally
be founded.
2. Criminal Law.
In prosecution for, inter alia, forcible rape, in which victim testified that defendant inserted a sausage in
her vagina, defendant was not entitled, on grounds of surprise, to exclusion from evidence of results of test
made on his clothing for presence of pork protein, even though test was not made until shortly before
results were introduced in evidence, in that similar test had been made on victim's undergarment and,
through pretrial discovery of first test, defendant was not unaware of technical procedure that had been
employed.
3. Criminal Law.
Decision to admit evidence after balancing its prejudice against its probative value is one addressed to
discretion of trial judge. NRS 48.035, subd. 1.
4. Criminal Law.
Where defendant did not move to strike prosecutor's jury argument relating to his prior felony
convictions, and did not move for mistrial, assign misconduct, or request instruction, alleged error in
argument would not be considered on appeal. NRS 50.095.
OPINION
Per Curiam:
Rodney L. Halbower was convicted by a jury of forcible rape, infamous crime against
nature, and infamous crime against nature with force.
against nature with force. He was sentenced to serve two concurrent terms of life
imprisonment, plus a term of six years to run consecutively after the completion of the life
terms. Two claims of error are asserted. In our view, neither has merit and we affirm each of
the convictions.
At 2:20 a.m. on November 27, 1975, the female victim, a 21 dealer, left her place of
employment in downtown Reno and began walking home. The defendant grabbed her and
forced her into an alley at knifepoint. After being directed to remove her clothes, she was
forced to submit to various sexual acts. During the course of these acts, the defendant
produced a large salami or bologna which he caused to be inserted in the victim's vagina.
Eventually the victim was released. She called the police and the defendant was later
apprehended.
Clothing from both the victim and the defendant was preserved for later use as evidence in
the case. About thirty days after the crime, a criminalistic technologist employed by the
Washoe County Sheriff's Department performed a precipitant test on the victim's underwear.
This relatively simple test takes only a few hours. At the trial and without an objection from
the defendant, the technologist was permitted to express her expert opinion that the test result
was positive for the presence of pork protein on the undergarment.
On the same day that she testified, the technologist performed another precipitant test on
the defendant's coat pocket. This was the same coat from which the victim testified the
defendant produced the salami. The result of this second precipitant test was also positive for
the presence of pork protein. The defendant objected to the introduction into evidence of the
result of this second test on the grounds of surprise and prejudice. The trial court overruled
the objection and the result of the second precipitant test was also admitted.
Halbower argues that he was deprived of a fair trial because the second precipitant test was
not conducted until the last moment, thereby precluding the defendant from investigating the
procedure and conducting his own test to determine its accuracy.
[Headnotes 1, 2]
The second precipitant test was identical to the one which had been conducted upon the
victim's undergarments. Through pretrial discovery of the first test, the defendant was not
unaware of the technical procedure that had been employed. The defendant also failed to
request a continuance to investigate the result of the second test.
the result of the second test. Absent the motion for continuance, a claim of prejudicial
surprise cannot generally be founded. Garden v. State, 73 Nev. 312, 318 P.2d 652 (1957).
[Headnote 3]
The trial court is at liberty to exclude relevant evidence if it determines that its probative
value is substantially outweighed by the danger of the unfair prejudice. NRS 48.035(1). The
decision to admit evidence after balancing its prejudice against its probative value is one
addressed to the discretion of the trial judge. Martin v. State, 80 Nev. 307, 393 P.2d 141
(1964); State v. Nystedt, 79 Nev. 24, 377 P.2d 929 (1963). Cf. Anderson v. State, 92 Nev. 21,
544 P.2d 1200 (1976). We perceive no abuse of discretion in the admission of the result of
the second precipitant test.
[Headnote 4]
Halbower testified in his own defense. Thereupon, for the purpose of attacking his
credibility as a witness, the state produced evidence that he had been convicted of a felony on
two prior occasions. NRS 50.095. Appellant claims that the prosecutor improperly argued to
the jury the evidentiary value of the appellant's prior felony convictions. We need not
consider if the remarks were either improper or prejudicial, because the failure of the
appellant to move to strike, move for a mistrial, assign misconduct or request an instruction,
precludes appellate consideration. Walker v. State, 89 Nev. 568, 516 P.2d 739 (1973).
Accord, Hayden v. State, 91 Nev. 474, 538 P.2d 583 (1975); Bonnenfant v. State, 86 Nev.
393, 469 P.2d 401 (1970). Indeed, the trial court correctly instructed the jury on the
evidentiary value of the prior felony convictions.
1

Affirmed.
2

____________________

1
The trial judge, in his written instructions, admonished the jury as follows:
The fact that a witness had been convicted of a felony, if such be a fact, may be considered by you only for
the purpose of determining the credibility of that witness. The fact of such a conviction does not necessarily
destroy or impair the witness' credibility. It is one of the circumstances that you may take into consideration in
weighing the testimony of such a witness.

2
Mr. Justice Zenoff voluntarily disqualified himself and took no part in this decision. The Governor, pursuant
to Article VI, 4 of the Constitution, designated District Judge J. Charles Thompson to participate in this case.
____________
93 Nev. 216, 216 (1977) In re Kadans
IN THE MATTER OF JOSEPH M. KADANS.
No. 8738
April 8, 1977 562 P.2d 490
Original petition for waiver of SCR 51(4) and motion for order to show cause.
Petitioner sought waiver of rule requiring that applicant for license to practice as attorney
shall have received degree from law school approved by the American Bar Association. The
Supreme Court held that rule would not be waived where applicant had marginal academic
credentials and questionable business ethics.
Petition denied; motion denied.
Joseph M. Kadans, in pro per, Las Vegas, for Petitioner.
Samuel S. Lionel, Las Vegas, for Nevada Board of Bar Examiners.
1. Attorney and Client.
Although petitioner had received a law degree from an unaccredited law school, had allegedly been
admitted to practice and had apparently practiced elsewhere, and had convinced certain members of the
State Bar that he possessed basic legal research and briefing skills, in light of certain misleading claims
regarding his business and his academic credentials, rule requiring that applicant for examination for
license to practice as attorney shall have received law degree from law school approved by the American
Bar Association would not be waived. SCR 51(4).
Rules requiring that applicant for examination for license to practice as an attorney shall pass bar exam
and have received degree from law school approved by the American Bar Association will not be waived
where applicant has only marginal academic credentials for practicing of law and questionable business
ethics. SCR 51(4).
OPINION
Per Curiam:
Petitioner Kadans seeks a waiver of SCR 51(4) contending that, while he does not have a
law degree from an A.B.A. accredited school, he should nevertheless be permitted to sit for
the Nevada Bar Examination because he is admitted to practice law in other jurisdictions, is a
nationally recognized author and lecturer on law, and has an otherwise exceptionally
meritorious legal background.1 We disagree.
93 Nev. 216, 217 (1977) In re Kadans
author and lecturer on law, and has an otherwise exceptionally meritorious legal background.
1
We disagree. Because petitioner has unsuccessfully challenged our bar application
requirements on three separate occasions in the United States Supreme Court, we here
endeavor to set forth all relevant facts concerning this matter in order that it may be finally
settled.
On April 7, 1976, Mr. Kadans petitioned for a waiver of SCR 51(4). On April 19, 1976,
we directed the State Board of Bar Examiners to undertake a full inquiry and report
concerning petitioner's personal and academic background. The Board's report reflects that it
conducted hearings, and that petitioner represented himself, presented witnesses, and offered
exhibits for the Board's consideration. While the Board's report indicates petitioner may be
academically prepared for the practice of law, at least marginally, it suggests that petitioner
may not be morally suited to the practice of law, alluding to circumstances surrounding
petitioner's operation of the Church of Universology, Inc. and Bernadean University, and
to his published claims with respect to his academic credentials. The Board contends that
SCR 51(4) does not operate unfairly as to petitioner, and recommends that he not be
permitted to sit for the Nevada Bar Examination.
1. Petitioner's operation of Bernadean University does, indeed, manifest a moral
orientation that would be unacceptable in a legal practitioner.
The catalog for Bernadean University describes the school as a four-year senior university
consisting of seven different colleges. It further describes the examinations, textbooks,
classes, and advanced degree work available. Other brochures disseminated by petitioner
describe the University as one including colleges of Health Sciences, Liberal Arts, Fine Arts,
Law, Theology, Agriculture, and Police Sciences, and offering such diverse courses as church
management, firearms, polygraph procedures, herbology, reflexology (foot massage
techniques), dance therapy, acupuncture, traffic control, preparation of sermons, evidence,
organic food growing, and police administration.
____________________

1
Supreme Court Rule 51(4) provides in pertinent part:
An applicant for examination for a license to practice as an attorney and counselor at law in this state shall:
. . .
4. 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. . . .
93 Nev. 216, 218 (1977) In re Kadans
The University is, in fact, located in a small Las Vegas office; there are no classrooms or
separate colleges. The classes are all offered through correspondence courses mailed to the
students. Exams are open book and submitted at the students' leisure. The extensive
curriculum is taught and administered by petitioner and four faculty members; petitioner
serves as Dean of Students, President of the University, and handles all affairs of the school;
the four faculty members merely assist in grading student papers. The highest degree held
by any of the faculty members is a high school diploma. It is clear to us that the University
and petitioner are one and the same, and that the faculty, in fact, performs only administrative
tasks. In addition, most texts used in the many diverse courses are prepared by petitioner by
compiling materials from available sources and publishing them on copy machines. Petitioner
claims he is qualified to author the texts because, as a lawyer, he has the necessary skills to
master nearly any subject matter by obtaining sufficient available material and studying it.
On May 9, 1975, petitioner applied for a license to operate a private school, college, or
university. The Nevada Commission on Postsecondary Institutional Authorization denied his
application because, they concluded, the quality of instruction, school facilities, personnel,
and financial stability were inadequate and, further, advertising by the University
misrepresented the size of the institution, faculty, and instructional program.
In light of the foregoing, we agree with the Board's conclusion that petitioner's operation
of the dubious Bernadean University and his misrepresentations concerning the nature of the
University cast serious doubt upon petitioner's moral suitability to practice law in this state.
2. Petitioner's misleading claims regarding his academic credentials also manifest his
moral unsuitability to practice law in this state He professes to have earned degrees as Doctor
of Philosophy, Doctor of Naturopathy, and Doctor of Theology while attending three separate
universities. His Doctor of Philosophy degree was awarded by the International University in
New Delhi, India, for writing a course on herbal studies. Petitioner utilizes this alleged degree
to promote the sale of his book concerning the therapeutic properties of herbs, fruits,
vegetables, nuts, and seeds.
2
Petitioner obtained his Doctor of Naturopathy degree from an
affiliate of Bernadean University for submitting a written course on herbs.
____________________

2
J. M. Kadans, Ph.D., Encylopedia of Fruits, Vegetables, Nuts and Seeds for Healthful Living (1973).
93 Nev. 216, 219 (1977) In re Kadans
University for submitting a written course on herbs. Again, petitioner uses this degree to
promote the sale of his book concerning the use of herbs.
3
Petitioner's Doctor of Theology
degree was awarded by Berean Christian College in Kansas, evidently in exchange for a
degree from his own Bernadean University to the President of Berean Christian College. The
record is barren of any proof which indicates Mr. Kadans ever attended or took any courses
from any of these schools, yet he represents that he earned doctoral degrees from each of
them.
Petitioner also claims to have served on the faculty of four universities, including the law
faculty of Loyola University of Los Angeles. While it is true that he taught one summer
course at Loyola, it should be noted that the Dean of the Law School stated that petitioner had
been hired as a lecturer at a time when the University was in a turmoil and the customary
background investigation had not been conducted with respect to petitioner's qualifications.
The Dean further stated that forty out of the fifty students enrolled in Mr. Kadans' course had
expressed serious dissatisfaction with Mr. Kadans' teaching techniques and twenty students
withdrew and the school had to refund their tuition. The Dean observed the course and
concluded Mr. Kadans was not academically qualified to teach the course and stated he would
strongly resist Mr. Kadans' appointment to any faculty of which he was a member. Petitioner
has totally failed to offer any evidence either to the Board or this court substantiating his
claim that he served on the faculty of other universities.
Petitioner further claims to have written and published numerous law books. However,
none of those books has ever been published by a commercial law book company, but
instead, are xerox copies published by the Bernadean University Press in Las Vegas. We
have reviewed petitioner's published law books and find them to be without value as legal
material. They appear, instead, to be an incomplete compilation of materials from texts
written by other authors.
In addition to the foregoing, we also express concern over petitioner's use of stationery
suggesting that he is licensed to practice law in Nevada, when in fact he is not; stationery
indicating that he maintained an office in Washington, D.C., when in fact he did not; and
business cards stating that he was a Professor of Law at Loyola University, when in fact he
was only a lecturer.
____________________

3
J. M. Kadans, N.D., Ph.D., Modern Encylopedia of Herbs with the Herbs-o-Matic Locator Index (1970).
93 Nev. 216, 220 (1977) In re Kadans
[Headnotes 1, 2]
In 1943, petitioner received a law degree from the Eastern College of Commerce and Law
(an unaccredited law school);
4
he has been admitted to practice and has apparently practiced
without distinction elsewhere; and he has convinced certain members of our Bar that he
possesses basic legal research and briefing skills. At best, those facts establish only marginal
academic credentials for the practice of law, while petitioner's business ethics are not
remotely acceptable. The Board's conclusion that SCR 51(4) does not operate unfairly as to
petitioner is fully supported by the evidence, and we therefore deny his petition for waiver of
that rule. We also deny petitioner's Motion for Order to Show Cause why he should not be
admitted to the Nevada Bar without sitting for our Bar Examination.
____________________

4
According to petitioner, at some point in time he couldn't state with clarity, a successor institution,
provisionally accredited in 1972, issued him another diploma without requiring further study.
____________
93 Nev. 220, 220 (1977) Kishner v. Kishner
IRWIN KISHNER, Appellant, v. ELLEN CHRISTEN
KISHNER, Respondent.
No. 8077
April 1l, 1977 562 P.2d 493
Appeal from order of the Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
Former wife filed document styled Motion for Clarification requesting determination as
to effect of her remarriage on obligation of former husband under alimony provision of
judgment and decree in dissolution of marriage proceeding. The district court entered a
Clarification of Decision determining that the alimony provision was ambiguous and ruled
that death or remarriage of wife did not terminate the husband's obligation, and the husband
appealed. The Supreme Court, Stanley A. Smart, D.J., sitting by designation, held that
lump-sum alimony, whether payable immediately in full or periodically in installments, is not
subject to automatic termination on death or remarriage and that since challenged provision,
which provided for periodic payments of lump-sum alimony, was not ambiguous the district
court erred in entertaining the motion.
Affirmed; order appealed from vacated.
[Rehearing denied September 23, 1977] Lionel Sawyer Collins & Wartman, Las Vegas,
for Appellant.
Lionel Sawyer Collins & Wartman, Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy & Jemison, Chartered, Las Vegas, for Respondent.
1. Divorce.
Statute providing for automatic termination of alimony on death or remarriage, unless otherwise ordered,
does not apply to a provision in a judgment and decree of divorce which is, in whole or in part, a division
of community property. NRS 125.150, subd. 4.
2. Divorce.
Award of lump-sum alimony or alimony in gross is proper; although variety of reasons may lead to an
award lump-sum alimony, the result in every case is to fully and finally fix the rights and obligations of the
parties with respect to future support; nature and purpose of an award of lump-sum alimony remains the
same, whether it is payable immediately in full or periodically in installments. NRS 125.150, subd. 3.
3. Divorce.
Award to lump-sum alimony, whether payable immediately in full or periodically in installments, is not
subject to automatic termination on death or remarriage; applying to an award of lump-sum alimony statute
providing for automatic termination on such events would undermine the nature and contravene the
purpose of such an award. NRS 125.150, subd. 4.
4. Judgment.
A district court has inherent power to construe its judgments and decrees for purposes of removing any
ambiguity; however, such power does not extend to judgment and decrees which are not ambiguous.
5. Divorce.
Provision of divorce decree requiring husband to pay wife lump-sum alimony in specified amount over
11 years, with amount of payments varying over specified months, was not ambiguous; hence, trial court
erred in entertaining wife's motion for clarification.
OPINION
By the Court, Smart, D. J.:
1

On February 25, 1974, a judgment and decree was entered dissolving the marriage of the
parties to this appeal and adjudicating their property rights and all matters pertaining to their
minor children. The decree included the following provision: Irwin Kishner shall pay . . .
Ellen Christen Kishner lump sum alimony in the amount of $S6,100.64, over a period of
eleven {11) years, payable in the following monthly installments:
____________________

1
pursuant to Article VI, 4 of the Constitution, designated District Judge Stanley Smart to participate in this case.
Irwin Kishner shall pay . . . Ellen Christen Kishner lump sum alimony in the amount of
$86,100.64, over a period of eleven (11) years, payable in the following monthly
installments:
Twenty-four (24) consecutive monthly installments of $1,250.00 each, payable on
the 5th day of each month, commencing on March 5, 1974;
Ninety-six (96) consecutive monthly installments of $583.34 each, payable on the
5th day of each month, commencing on March 5, 1976; and
One (1) payment of $100.00 on the 5th day of March, 1985. . . .
No appeal was taken from this judgment and decree.
During August of 1974, Mrs. Kishner remarried, and on September 17, 1974, she filed a
document styled, Motion for Clarification, requesting a determination as to the effect of her
remarriage on the obligation of Mr. Kishner under the alimony provision of the judgment and
decree quoted above.
The district court subsequently entered a Clarification of Decision determining that the
alimony provision was ambiguous, stating:
It is the ruling of the Court, therefore, that the prior decision and judgment in this
matter contemplated continued payments under the alimony award, irrespective of
future contingencies such as death of the parties or remarriage of the wife. Furthermore,
as a matter of law, the Court otherwise ordered within the contemplation of NRS
125.150(4).
Mr. Kishner appeals from the foregoing order, contending: (1) the provision for alimony in
the judgment and decree was unambiguous, and the district court was, accordingly, without
jurisdiction to clarify or construe it; and, (2) that, as a matter of law, NRS 125.150(4)
automatically terminates his obligation to pay installments of alimony after Mrs. Kishner's
remarriage.
We will consider these contentions in reverse order.
[Headnote 1]
It should be noted initially that we are not here concerned with a provision in a judgment
and decree of divorce which is, in whole or in part, a division of community property. In such
a case, NRS 125.150(4) does not apply. Krick v. Krick, 76 Nev. 52, 348 P.2d 752 (1960). The
payments ordered in the judgment and decree in this case constituted alimony only, and
neither party contends otherwise.
judgment and decree in this case constituted alimony only, and neither party contends
otherwise.
NRS 125.150 provides for the allowance of an award of alimony incident to the granting
of a divorce. At the time of the entry of the judgment and decree and at the time of the
subsequent proceedings in district court, the statute read, in part, as follows:
1. In granting a divorce, the court may award such alimony to the wife, and shall
make such disposition of the community property of the parties, as shall appear just and
equitable, having regard to the respective merits of the parties and to the condition in
which they will be left by such divorce, and to the party through whom the property was
acquired, and to the burdens, if any, imposed upon it, for the benefit of the children.
. . .
4. 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.
2

[Headnote 2]
Our statutes do not make any specific provision for the award of lump sum alimony or
alimony in gross, as it is sometimes called. However, such awards have been made in this
state and have received the approval of this court. See, for example, Sargeant v. Sargeant, 88
Nev. 223, 495 P.2d 618 (1972). A variety of reasons may lead a court to award lump sum
alimony, but the result in every such case is to fully and finally fix the rights and obligations
of the parties with respect to future support. Ziegenbein v. Damme, 292 N.W. 921 (Neb.
1940); Walters v. Walters, 99 N.E.2d 342 (Ill. 1951); Cummings v. Lockwood, 327 P.2d
1012 (Ariz. 1958); Horne v. Horne, 289 So.2d 39 (Fla.App. 1974).
3
When a court awards
lump sum alimony, a further determination is required: i.e., whether the entire award
should be payable immediately or in installments over a specified period of time.

____________________

2
NRS 125.150 was subsequently amended to permit alimony to be awarded to the husband under certain
conditions and to provide for modification of unaccrued periodic payments of alimony ordered in any divorce
decree entered on or after July 1, 1975. 1975 Nev. Stats. 1588. These amendments are not applicable to the
present case.

3
A number of the cases herein cited involved attempts to modify provisions for lump sum alimony payable in
installments. We express no opinion as to whether such modification is permissible under our statutes, especially
in light of the 1975 amendment which added 6 to NRS 125.150. The cases are cited only for their underlying
rationale as to the true purpose and nature of such an alimony award.
When a court awards lump sum alimony, a further determination is required: i.e., whether
the entire award should be payable immediately or in installments over a specified period of
time. This determination, again, may rest on various factors, but generally involves either the
ability of the husband to pay or the adverse tax consequences to him of such an award unless
payable over a period of more than ten years.
4
See I.R.C. 71.
The effect of remarriage by the recipient of alimony has been the subject of continuing and
extensive litigation throughout this country. See cases collected in Annots., 48 A.L.R.2d 270
and 318 (1956). The greatest difficulty has arisen in connection with lump sum alimony,
especially when payable in installments.
The nature and purpose of an award of lump sum alimony remains the same, whether it is
payable immediately in full or periodically in installments. We concur with, and adopt, the
following statements of the Nebraska Supreme Court in Ziegenbein, 292 N.W. at 923.
Obviously, the purpose of both the court and the parties, in providing for or in
accepting a gross allowance of alimony, is to define and fix with finality the scope of
the rights and the obligations of the parties. In this case, it was designed to set the limits
of the wife's right to alimony, and we have no doubt that the husband would have
cushioned himself on the doctrine of vested rights, if the wife had attempted to institute
proceedings to increase the amount. Without discussing the matter further, it is our
view that an unqualified allowance in gross, in a divorce decree, whether payable
immediately in full or periodically in installments, and whether intended solely as a
property settlement or as an allowance for support, or both, is such a definite and final
adjustment of mutual rights and obligations as to be capable of a present vesting and to
constitute an absolute judgment. . . . If the judgment in this case was intended to be
subject to a defeasance in case of the wife's remarriage [or death] it was necessary,
since a vested right was involved, to have provided for such defeasance in the decree.
[Headnote 3]
Application of NRS 125.150(4) to any award of lump sum alimony would undermine the
nature and contravene the purpose of such an award.
____________________

4
The word husband is used here to designate the person obligated to pay alimony since that has been the
customary situation in the past and is the actual situation in this case.
alimony would undermine the nature and contravene the purpose of such an award. The
statute must be interpreted to avoid such a result, unless a clear legislative mandate appears
requiring that result. We perceive no such mandate.
While, as previously pointed out, no specific statute of this state authorizes lump sum
alimony, legislative authority has been found by this court in the provisions of NRS
125.150(3).
5
Sargeant, supra. As a practical matter, it would be difficult, if not impossible,
to apply NRS 125.150(4) to an order entered under NRS 125.150(3). An order setting aside
property is complete and final. Nothing remains which could be terminated under the
provisions of NRS 125.150(4). However, even assuming that such an application of NRS
125.150(4) is possible, we find nothing to reflect a legislative intention that it should so
apply. Had the legislature intended such a result, we would think that NRS 125.150(4) would
have made reference to orders under subsection (3) in addition to awards of alimony under
subsection (1).
Accordingly, we hold that an award of lump sum alimony, whether payable immediately in
full or periodically in installments, is not subject to termination under the provisions of NRS
125.150(4).
Appellant also contends that the protective orders entered by this court in connection with
our opinion in Sargeant, supra, constituted an implied holding that NRS 125.150(4) applies
to lump sum alimony awards. Whether such orders were actually required was not an issue in
this case; furthermore, they were entered for reasons clearly stated in the opinion. Nothing in
Sargeant should be read as inconsistent with our holding today.
[Headnote 4]
The procedural issue raised by appellant, issue number one above, presents some problem
in light of the foregoing holding. A district court of the state has inherent power to construe
its judgments and decrees for the purpose of removing any ambiguity. Grenz v. Grenz, 78
Nev. 394, 374 P.2d 891 (1962); Lindsay v. Lindsay, 52 Nev. 26, 280 P. 95 (1929). This
power does not, however, extend to judgments and decrees which, as here, are not
ambiguous. Adams v. Adams, 85 Nev. 50, 450 P.2d 146 (1969).
____________________

5
Prior to the 1975 amendments referred to in n. 2, supra, NRS 125.150(3) read as follows: The court may
also set apart such portion of the husband's property for the wife's support, and the support of their children as
shall be deemed just and equitable.
[Headnote 5]
Having determined that NRS 125.150(4) is inapplicable to lump sum alimony awards, it
becomes apparent that the judgment and decree in this case was not ambiguous and therefore,
the district court need not have given further definition to its ruling. Accordingly, the order
appealed from is vacated and the decree heretofore entered is affirmed.
____________
93 Nev. 226, 226 (1977) Tucker v. State
ARCHIE TUCKER, Appellant, v. THE STATE
No. 9097
April 18, 1977 562 P.2d 827
Appeal from judgment, Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
Defendant was found guilty in the district court of the sale of a controlled substance.
Defendant appealed. The Supreme Court held that where delay of eight months between the
date of alleged sale and arraignment was raised by defendant as an issue in pretrial petition
for habeas corpus which was denied, defendant by failing to avail himself of appeal waived
the issue.
Affirmed.
Morgan D. Harris, Public Defender, Clark County, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, Clark
1. Drugs and Narcotics.
It was not necessary to set aside conviction for sale of controlled substance because State did not present
evidence at trial that defendant was 21 years of age or older.
2. Criminal Law.
Where delay of eight months between date of alleged sale of controlled substance and arraignment was
raised by defendant as issue in pretrial petition for habeas corpus which was denied, defendant by failing to
avail himself of appeal waived the issue. NRS 34.380, subd. 3; U.S.C.A.Const. Amends. 6, 14.
3. Criminal Law.
Where, on trial for sale of controlled substance, prosecutor offered exemplified copy of defendant's prior
conviction and same was received without objection, prior conviction was before trial court when sentence
was imposed, and punishment was properly enhanced pursuant to statute. NRS 453.321, subd. 2(a)(1).
OPINION
Per Curiam:
On July 21, 1976, Archie Tucker was found guilty by the district court, sitting without a
jury, of the sale of a controlled substance and sentenced to twenty years in prison. The
evidence adduced at trial established that Tucker had flown to Las Vegas, Nevada, on July
15, 1975, and sold one ounce of heroin to an undercover federal narcotics agent.
[Headnote 1]
Relying on Hass v. State, 92 Nev. 256, 548 P.2d 1367 (1976), Tucker contends that his
conviction should be overturned because the State did not present evidence at trial that he was
21 years of age or older. This court reversed Hass and disposed of Tucker's contention in
Wright v. State, 92 Nev. 734, 558 P.2d 1139 (1976).
[Headnote 2]
Appellant next contends that his constitutional right of due process under the Sixth and
Fourteenth Amendments of the United States Constitution has been violated. Specifically he
cites the delay of eight months between the date of the alleged sale of the controlled
substance and his arraignment. Tucker raised this issue in a pretrial petition for habeas corpus
which was denied, and from which no appeal has been taken. By failing to avail himself of an
appeal pursuant to the provisions of NRS 34.380(3),
1
appellant has waived the issued of
delay. Nix v. State, 91 Nev. 613, 541 P.2d 1 (1975); George v. State, 89 Nev. 47, 505 P.2d
1217 (1973); Oberle v. Fogliani, 82 Nev. 428, 420 P.2d 251 (1966).
____________________

1
NRS 34.380(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 15 days from the day of entry of the order or judgment.
[Headnote 3]
Finally, appellant contends that the trial court unlawfully enhanced his punishment
pursuant to the provisions of NRS 453.321(2)(a)(1).
2

During appellant's trial before the court, at the conclusion of the State's case-in-chief, the
prosecutor offered an exemplified copy of appellant's prior conviction which was received
without objection, thus his prior conviction was before the trial court at the time sentence was
imposed. In the entirety of this case we perceive no error affecting appellant's substantial
rights.
Affirmed.
____________________

2
NRS 453.321(2)(a)(1): Twenty-one years of age or older shall be punished by imprisonment in the state
prison for not less than 1 year nor more than 20 years and may be further punished by a fine of not more than
$5,000. For a second or subsequent offense, such offender shall be punished by imprisonment in the state prison
for life, without possibility of parole, and may be further punished by a fine of not more than $5,000. If the
offender has previously been convicted of any violation of the laws of the United States or any state, territory or
district relating to a controlled substance, the term of imprisonment imposed pursuant to this subsection shall be
served without benefit of probation.
____________
93 Nev. 228, 228 (1977) Summa Corp. v. Richardson
SUMMA CORPORATION, a Delaware Corporation, Appellant v. T. W. RICHARDSON,
MAURICE H. FRIEDMAN, NORMA D. FRIEDMAN, JACK BARENFELD, BELDON R.
KATLEMAN, IRVING J. LEFF, DOES I Through V,
and DOE COMPANIES I Through IV, Respondents.
No. 8419
April 21, 1977 564 P.2d 181
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Assignee corporation brought suit against lessors for specific performance of options to
purchase contained in two leases executed by lessors and subsequently assigned by original
lessee. After parties filed cross motions for summary judgment, the district court granted
lessors' motion and denied assignee's motion, and assignee appealed. The Supreme Court,
Batjer, C. J., held that option to purchase contained in lease was not personal to original
lessee and passed to assignee with assignment of lease; that assignee's technical breaches of
lease would not cause forfeiture of option to purchase; that assignee exercised option in
accordance with its terms; and that option was timely exercised.
not cause forfeiture of option to purchase; that assignee exercised option in accordance with
its terms; and that option was timely exercised.
Morse, Foley and Wadsworth, Las Vegas, for Appellant.
John Peter Lee and James C. Mahan, Las Vegas, and Arthur J. Crowley, Los Angeles, for
Respondents.
Option to purchase contained in lease passes upon assignment of lease to assignee, entitling assignee to
specific performance of agreement to convey.
If the exercise of an option to purchase contained in a lease is made personal to the lessee, it cannot be
assigned to another.
While a lessor may restrict the right of assignment, covenants dealing with assignment should not be
extended by implication.
Where option to purchase clause contained in lease of real property did not limit exercise of option
exclusively to lessee but only prevented lessee or its assigns from transferring the option, before its
exercise, independently of the leasehold interest, exercise of option was not personal to lessee and, thus,
option passed to assignee corporation upon assignment of the lease.
Where leases for parcels of land, including improvements thereon, for a term of fifteen years did not
involve relation of personal confidence and trust on solvency or credit of lessee but, to the contrary, the
land was to serve as security for the option to purchase, and where lease specifically provided the right to
purchase could be assigned to another, exercise of option to purchase was not personal to lessee and, thus,
option passed to assignee corporation upon assignment of the lease.
Whether breaches of a lease constitute a forfeiture of the option to purchase contained therein depends
among other things, on the circumstances surrounding the breaches and the exercise of the option.
While parties to a lease are basically free to determine their own terms, it is fundamental that forfeitures
of purchase options in leases are not favored.
8. Contracts.
Any inconsistent act, dealing, or expression of intent not to require the doing of a thing suffices to
prevent a forfeiture based on the nonperformance of such thing.
Even though there is a condition precedent to the exercise of a purchase option contained in a lease, it can
be waived or lessor can be estopped from asserting it.
A lessor's acceptance of rents with knowledge of prior breaches can constitute a waiver of conditions
precedent to the exercise of option to purchase contained in the lease.
A nonwaiver clause in lease providing that subsequent acceptance of rent would not be construed to be
waiver of any preceding breach by lessee will not, in all circumstances, foreclose lessor from waiving a
forfeiture based on past breaches.
Where lessors recognized validity of lease of parcels of real estate and improvements thereon subsequent
to technical breaches of lease by lessee's assignee, accepted rents with no expression of intent to stand on
any legal rights they may have had because of assignee's prior breaches, made no demand on assignee to
remedy them, and otherwise lulled assignee into inaction, and where it was only after assignee's exercise of
option to purchase that lessors seized upon breaches as means to establish assignee's forfeiture of privilege
to exercise, lessors, by their conduct, waived any right to assert forfeiture for assignee's infractions of lease
prior to exercising the options.
Lessors of parcels of real property and improvements thereon could not rely on alleged breaches of lease
occurring after lessee's assignee's exercise of option to purchase contained in lease as grounds for
forfeiture.
Upon exercise of option to purchase contained in lease, landlord-tenant relationship of parties is
converted to that of vendor-vendee.
After exercise of option to purchase contained in lease, lessors cannot avail themselves of breaches of
covenants in the lease to work a forfeiture of the option.
Where address to which deposit was to be sent upon exercise of option to purchase contained in lease of
parcels of real estate and improvements thereon was vacant, and where it was apparent that tender of
deposit by assignee of original lessee would have been refused by lessor under any condition, and where
lease only provided that lessee was to give notice in writing of its exercise of option, accompanying notice
with deposit and further provided that all rents or moneys due lessor were to be paid to lessor at particular
bank, assignee's deposit of money with bank was reasonable and in accordance with terms of option to
purchase.
Where lease containing option to purchase provided that option could be exercised between the first day
of the sixtieth month and the last day of the ninetieth month of the term and where by an amendment
dated October 1S, 1965, the term of the 1965 lease commenced November 1, 1965,
assignee's exercise of option to purchase on March 29, 1973, was timely.
where by an amendment dated October 18, 1965, the term of the 1965 lease commenced November 1,
1965, assignee's exercise of option to purchase on March 29, 1973, was timely.
OPINION
Appellant Summa Corporation brought suit against respondents for specific performance
of options to purchase contained in two leases executed by respondents and subsequently
assigned to Summa by Shelam Incorporated, the original lessee. After the parties filed
cross-motions for summary judgment, the district court entered its order granting respondents'
motion and denying appellant's. Because Summa was entitled to exercise the options and
properly did so, respondents' summary judgment must be reversed.
On June 15, 1965, respondents leased two parcels of land, including improvements
thereon, to Shelam Incorporated for a term of fifteen years. One of the improvements located
on parcel A was the Silver Slipper Casino. The lease contained an option giving the lessee
the privilege of purchasing the parcels and requiring written notification of the exercise of
this option along with a deposit of $100,000 on account of the purchase price. To
consummate the purchase, the lessee was required to open an escrow account at the Bank of
Las Vegas (now Valley Bank), Las Vegas, Nevada, and the lease was to constitute the
primary escrow instructions.
By the terms of the lease, the lessee could assign it without respondents' permission,
except the written consent of the president or vice-president of the Bank of Las Vegas was
first required before the assignment of any gaming casino on the premises. Further, the lease
specifically provided that its terms, provisions, and covenants inured to the benefit of the
lessee's assigns.
On April 3, 1967, respondents entered into a second lease with Shelam for a small vacant
parcel adjacent to the previously leased land. The lease incorporated by reference most of the
provisions of the 1965 lease and also contained an option to purchase. However, the exercise
of this option was made contingent upon the exercise of the option to purchase parcel A
contained in the 1965 lease.
Negotiations conducted during April of 1968 between Shelam, Howard R. Hughes, and
Summa's predecessor, Hughes Tool Company, culminated in the assignment to Summa of
Shelam's interests in the two leases.
Shelam's interests in the two leases. Summa obtained the necessary consent to the assignment
from the bank and thereafter, on March 29, 1973, gave notice of its exercise of the options
contained in the leases. The notice was sent by certified mail, and also hand delivered, to an
address in Los Angeles, California, which had been designated in the 1965 lease as the place
to send notices to lessors. Inasmuch as that address proved to be vacant, Summa also sent
notices to respondents at their individual addresses and at the Bank of Las Vegas. Because the
1965 lease provided that all rents or other monies due respondents were to be paid at the
Bank of Las Vegas, Summa deposited with the bank a cashier's check for $100,000, payable
to an account established by respondents for the receipt and disbursement of rents and other
monies payable pursuant to the lease.
At this juncture, the transaction broke down. Respondents' rejected Summa's exercise, and
Summa commenced action for specific performance. Both parties moved for summary
judgment, and, after a hearing on the matter, the district court determined no genuine issue of
material fact remained, Summa was not entitled to exercise the option contained in the 1965
lease, and in any event, Summa's exercise of the 1965 option was not effected in conformity
with the terms of that option. Accordingly, the district court denied Summa's motion for
summary judgment and entered summary judgment in favor of respondents. Since the
exercise of the 1967 option was contingent upon the exercise of the 1965 option, we must
determine whether (1) the 1965 option passed to Summa with the assignment of the lease, (2)
Summa's failure to perform conditions precedent and subsequent precluded its exercise of the
1965 option, and (3) Summa exercised the 1965 option in accordance with the terms of the
lease.
[Headnotes 1, 2]
1. Ordinarily, an option to purchase contained in a lease passes upon the assignment of the
lease to the assignee, entitling it to specific performance of the agreement to convey. Jamson
v. Poulos, 168 N.W.2d 526 (Neb. 1969); Humble Oil & Refining Company v. Lennon, 182
A.2d 306 (R.I. 1962); Texas Co. v. Butler, 256 P.2d 259 (Ore. 1953). If the exercise of the
option is made personal to the lessee, it cannot be assigned to another. Anno., 38 A.L.R.
1162, 1172 (1925). Respondents contend the option clause in the 1965 lease, by its terms,
expressly limits its exercise only to Shelam, and therefore it did not pass with the assignment
of the lease. That part of the instrument upon which respondents rely in support of this
contention provides:
of the instrument upon which respondents rely in support of this contention provides:
If the Lessee shall then be entitled to exercise the option to purchase Parcel A and
Parcel B, it shall first give notice in writing of its exercise of said option,
accompanying said notice with a deposit of One Hundred Thousand Dollars ($100,000)
on account of the purchase price. After giving such written notice and making such
deposit, the Lessee may assign said option, and not before.
[Headnotes 3, 4]
While a lessor may restrict the right of assignment, covenants dealing with assignments
should not be extended by implication. Cummins v. Dixon, 265 S.W.2d 386 (Mo. 1954). The
above quoted provision does not limit the exercise of the option exclusively to Shelam. See
Myers v. J. J. Stone & Son, 102 N.W. 507 (Iowa 1905); Anno., 45 A.L.R.2d 1034, 1950
(1956). Instead, the provision is merely an anti-severability clause. It prevents the lessee or its
assigns from transferring the option, before its exercise, independently of the leasehold
interest which, absent the provision, might arguably be permissible. See Gilbert v. Van
Kleeck, 132 N.Y.S.2d 580 (Sup.Ct. 1954); Bewick v. Mecham, 156 P.2d 757 (Cal. 1945); 1
American Law of Property 3.82 at 361 (1952). Since the provision only prevents the
severance of the option and leasehold interests prior to exercise, and does not make the
exercise personal to Shelam, the option passed to Summa upon the assignment of the lease.
[Headnote 5]
As an apparent afterthought, respondents also argue the option is personal to Shelam
because the purchase involves the extension of credit to the original lessee. Jurisdictions are
in conflict on the question of whether the extension of credit to the original lessee, as a matter
of law, makes the option personal, and therefore non-assignable. See Rosello v. Hayden, 79
So.2d 682 (Fla. 1955). Here, however, the contract did not involve a relation of personal
confidence and trust on the solvency or credit of Shelam. To the contrary, the land was to
serve as security for the purchase, and the lease specifically provided the right to purchase
could be assigned to another. Under such circumstances, it can not be argued that respondents
reposed such personal trust in Shelam's financial ability as to make the option personal to
Shelam.
[Headnotes 6-9]
2. As a condition precedent to the exercise of the 1965 option, the lessee was required to
faithfully perform all the terms, conditions, and covenants of the lease.
1
Respondents
contend this condition precedent was not satisfied due to Summa's technical breaches of the
lease, and Summa therefore forfeited any right it had to exercise the option. Summa counters
by claiming respondents' subsequent acceptance of rents with knowledge of the breaches
constituted a waiver of the condition precedent. Even assuming, as we must, that the breaches
in fact occurred, Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979 (1963), we conclude
respondents waived any right to forfeiture.
Whether breaches of a lease constitute a forfeiture of the option to purchase contained
therein depends, among other things, on the circumstances surrounding the breaches and the
exercise of the option. See Phillips v. Hill, 555 P.2d 1043 (Okla. 1976). While parties to a
lease are basically free to determine their own terms, it is fundamental that forfeitures of
purchase options in leases are not favored. Atlantic Greyhound Corp. v. Smithdeal, 192 F.2d
453 (4th Cir. 1951). Any inconsistent act, dealing, or expression of intent not to require the
doing of a thing suffices to prevent a forfeiture based on the nonperformance of such thing.
Group Property v. Bruce, 248 P.2d 761 (Cal.App. 1952). Even though there is a condition
precedent to the exercise of a purchase option, it can be waived or the lessor can be estopped
from asserting it. See Bio-Ramo Drug Company v. Abrams, 184 A.2d 831 (Md. 1962);
Friedman, Friedman on Leases 15.2 (1974); cf. Reno Realty v. Hornstein, 72 Nev. 219, 301
P.2d 1051 (1956).
[Headnotes 10, 11]
A lessor's acceptance of rents with knowledge of prior breaches can constitute a waiver of
conditions precedent to the exercise of an option to purchase. See Bridges v. Jeffrey, 437
S.W.2d 732 (Ky.App. 1968); cf. Sharp v. Twin Lakes Corp., 71 Nev. 162, 283 P.2d 611
(1955); Larsen v. Sjogren, 226 P.2d 177 (Wyo. 1951). Respondents' argue such a waiver is
precluded by a specific provision in the 1965 lease which provides: The subsequent
acceptance of rent . . . shall not be construed to be a waiver of any preceding breach by Lessee
.
____________________

1
The 1965 lease provided in pertinent parts: This option to purchase . . . may be exercised only if . . . the
Lessee shall have fully and faithfully performed all the terms, covenants and conditions of this Lease. . . .
. . . , regardless of Lessor's knowledge of such preceding breach at the time of acceptance of
such rental or other payment. However, such a nonwaiver clause will not, in all
circumstances, foreclose the lessor from waiving a forfeiture based on past breaches. See
Sagson Co. v. Weiss, 374 N.Y.S.2d 88 (Sup.Ct. 1975); Gonsalves v. Gilbert, 356 P.2d 379
(Hawaii 1960).
[Headnote 12]
Here, respondents recognized the validity of the lease, accepted rents with no expression
of intent to stand on any legal rights they may have had because of Summa's prior breaches,
made no demand on Summa to remedy them, and otherwise lulled Summa into inaction. Only
after Summa's exercise of the options did respondents seize upon the breaches as a means to
establish Summa's forfeiture of the privilege to exercise. Under such circumstances,
respondents, by their conduct, waived any right to assert forfeiture for Summa's infractions of
the lease prior to exercising the options.
[Headnotes 13-15]
Further, respondents can not rely on alleged breaches occurring after Summa's exercise as
grounds for forfeiture. Upon the exercise of the option, the landlord-tenant relationship of the
parties was converted to that of vendor-vendee. 1 American Law of Property 3.84 at 363
(1952). After exercise, respondents can not avail themselves of breaches of covenants in the
lease to work a forfeiture of the option. Larsen v. Sjogren, cited above.
3. Finally, respondents contend Summa did not exercise the 1965 option in accordance
with its terms because $100,000 cash did not accompany Summa's notice of exercise and the
option was not exercised within the time set forth in the lease.
[Headnote 16]
The lease provided that the lessee shall first give notice in writing of its exercise of said
option, accompanying said notice with a deposit of One Hundred Thousand Dollars
($100,000) on account of the purchase price. Further, [a]ll rents or other monies due the
Lessor . . . shall be paid to Lessor . . . at the Bank of Las Vegas. . . . Respondents urge that
Summa should have included the money with the notice which was sent to the address in
California. However, due to the vacancy at that address, such action by Summa would have
been highly improvident. It is apparent that Summa's tender would have been refused under
any condition. Faced with these circumstances and with no guidance, other than the
provisions stated above, as to whom or where the money was to be sent, Summa's deposit
of the money with the bank was reasonable. Cf. Finnell v. Bromberg, 79 Nev. 211, 3S1
P.2d 221 {1963); Milner v. Dudrey, 77 Nev. 256
above, as to whom or where the money was to be sent, Summa's deposit of the money with
the bank was reasonable. Cf. Finnell v. Bromberg, 79 Nev. 211, 381 P.2d 221 (1963); Milner
v. Dudrey, 77 Nev. 256, 362 P.2d 439 (1961).
[Headnote 17]
Respondents' contention that the exercise of the option was not timely is also without
merit. By an amendment dated October 18, 1965, the term of the 1965 lease commenced
November 1, 1965. The lease provided the option could be exercised between the first day of
the sixtieth month and the last day of the ninetieth month of the term; that is, between
November 1, 1970 and April 30, 1973. Summa exercised the option on March 29, 1973.
Summa held the privilege to exercise the options contained in the 1965 and 1967 leases,
did not forfeit that privilege, and properly exercised the options. Accordingly, respondents'
summary judgment is reversed, and the district court is directed to enter judgment for
Summa.
____________
93 Nev. 236, 236 (1977) Watson v. Sheriff
KENNETH WATSON, Appellant, v. SHERIFF, ELKO
No. 9205
April 21, 1977 562 P.2d 1133
Appeal from order denying pretrial petition for writ of habeas corpus, Fourth Judicial
District Court, Elko County; Joseph O. McDaniel, Judge.
The Supreme Court held that where defendant was arrested in September of 1975 but, as
of time of indictment in July of 1976, no preliminary examination had been held because of
animosity between the district attorney and the magistrate, petitioner had been denied due
process.
Horace R. Goff, State Public Defender, Carson City, for Appellant.
Robert List, Attorney General, Carson City; Robert C. Manley, District Attorney, and Gary
N. DiGrazia, Deputy District Attorney, Elko County, for Respondent.
Constitutional Law.
Where defendant was arrested in September of 1975, but preliminary examination was not held before
indictment was returned in July of 1976, because of animosity between the district attorney and magistrate,
defendant had been denied due process.
OPINION
Per Curiam:
In September 1975, Kenneth Watson was charged by criminal complaint filed in the
Justice Court, Mountain City, Nevada, with battery, a gross misdemeanor pursuant to NRS
200.481(2)(b). A preliminary examination, however, was never held, and in July 1976, the
Elko County Grand Jury indicted Watson for the same offense. In a petition for habeas corpus
Watson asserted prosecutorial misconduct resulted in unnecessary delay of the action against
him and denied him due process of law. The district court denied habeas and in this appeal
Watson reurges the same contention.
It is clear from the record that Watson has been subjected to a course of procedure that has
denied him his right to a prompt and just adjudication of the criminal action pending against
him. For this reason we reverse the district court's order denying the petition for habeas
corpus.
Watson was arrested in September 1975, but efforts to set a date for a preliminary
examination were, up to July of 1976, unsuccessful. The reason for the delay, according to the
district attorney, was the existence of an antagonistic relationship between the district
attorney and the magistrate in Mountain City. The district attorney maintains that because of
this animosity any kind of cooperation between himself and the magistrate was impossible.
He, therefore, without conferring with or notifying the magistrate, Watson, or Watson's
counsel, arranged, ex parte, to have a magistrate from Carlin Township preside at a
preliminary examination in Mountain City. Presumably irritated by this challenge to his
authority, the Mountain City magistrate blocked this proceeding. The matter then remained
unresolved until the indictment was filed in July 1976, nearly ten months after his arrest.
We agree with Watson's contention that the procedural anomalies described above
amounted to a denial of due process of law. "[T]he State's legal representatives [do not]
have an unrestricted right to blunder interminably. . . ."
of law. [T]he State's legal representatives [do not] have an unrestricted right to blunder
interminably. . . . State v. Austin, 87 Nev. 81, 83, 482 P.2d 284, 285 (1971). Petty jealousies
and distrust among public officials have no place in the criminal process, particularly when
the rights of the accused are prejudiced. Accordingly, in view of the confusion necessarily
resulting from the procedures employed by the prosecution, (Broadhead v. Sheriff, 87 Nev.
219, 223, 484 P.2d 1092, 1094 (1971)), we reverse with instructions to the district court to
grant appellant's petition for habeas corpus.
____________
93 Nev. 238, 238 (1977) Patterson v. Sheriff
DENNIS ROY PATTERSON, Appellant, v. SHERIFF,
No. 9621
April 21, 1977 562 P.2d 1134
Appeal from order denying pretrial petition for writ of habeas corpus; Eighth Judicial
Defendant, charged with robbery and battery with intent to commit robbery, filed pretrial
petition for writ of habeas corpus. The district court denied relief, and petitioner appealed.
The Supreme Court held that where defendant, who allegedly seized a woman's purse, was
immediately grabbed by the woman's companion, whereon defendant struck the companion,
the act of striking the captor could properly be used to subject defendant to liability for
battery with intent to commit robbery, as against contention that any force he may have used
during the struggle was intended solely to effectuate an escape.
Affirmed.
Morgan D. Harris, Clark County Public Defender, and Terrence M. Jackson, Deputy, Las
Vegas, for Appellant.
Robbery.
Where defendant, who allegedly seized a woman's purse, was immediately grabbed by the woman's
companion, whereon defendant struck companion and the two struggled and ultimately crashed through
a plate glass window, act of striking the companion could properly be used to subject
defendant to liability for battery with intent to commit robbery, as against contention
that any force he may have used during the struggle was intended solely to
effectuate his escape and not to commit the robbery.
through a plate glass window, act of striking the companion could properly be used to subject defendant to
liability for battery with intent to commit robbery, as against contention that any force he may have used
during the struggle was intended solely to effectuate his escape and not to commit the robbery. NRS
200.380, 200.380, subd. 1, 200.400.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Dennis Roy Patterson was ordered to
stand trial for robbery and battery with intent to commit robbery, felonies under NRS 200.380
and 200.400. Thereafter, in a pretrial petition for a writ of habeas corpus, Patterson contended
that insufficient evidence was produced at the preliminary examination to establish probable
cause to believe he perpetrated the battery with intent to commit robbery.
1
The district judge
denied habeas, and in this appeal Patterson advances the same contention.
On December 27, 1976, Patterson allegedly seized a woman's purse. He was immediately
grabbed by the woman's companion. The two men struggled, with Patterson striking the male
victim, and they ultimately crashed through a plate glass window. The battery charge is
predicated on this encounter. Patterson argues the charge is impermissible, because any force
he may have used during the struggle was intended solely to effectuate his escape.
2
We
disagree.
While Patterson's conduct was sufficient to constitute the crime of robbery, that robbery
was still in progress when the battery occurred. Where one snatches property from the hand
of another and uses force or intimidation to prevent an immediate retaking . . . this is all one
transaction and constitutes robbery. R. Perkins, Criminal Law 284 (2d ed. 1969) (citation
omitted). Cf. Norman v. Sheriff, 92 Nev. 695, 558 P.2d 541 (1976). Furthermore, it is
irrelevant whether Patterson intended the battery to effectuate his escape or to prevent the
purse from being retaken, since the latter purpose was in fact served. In Norman, this court
held that defendants' use of force against their victim, even if not primarily intended to aid the
robbery, supported the charge, since that force did in fact aid the robbery.
____________________

1
The robbery charge was not challenged.

2
NRS 200.380(1), the statute defining robbery, provides in part that force or fear must be used to obtain or
retain possession of the property, or to prevent or overcome resistance to the taking. . . . If used merely as a
means of escape, it does not constitute robbery.
fact aid the robbery. Accordingly, Patterson's act of striking his captor would in the
circumstances of this case properly subject him to liability for battery with intent to commit
robbery.
Affirmed.
____________
93 Nev. 240, 240 (1977) Swartz v. Adams
VIOLET SWARTZ, Appellant, v. HERMAN M. ADAMS
and MARILYN E. ADAMS, Respondents.
No. 8281
April 21, 1977 563 P.2d 74
Appeal from summary judgment of the Eighth Judicial District Court, Clark County; J.
Judgment debtor brought action to set aside execution sales of two parcels of real property.
The district court granted summary judgment for judgment creditor, and judgment debtor
appealed. The Supreme Court, Mowbray, J., held that: (1) judgment creditor, who knew
whereabouts of judgment debtor, could not levy execution upon debtor's property without
giving debtor notice reasonably calculated to inform her of that levy; (2) judgment creditor's
method of providing notice, even though complying with statutory requirements then in force,
was insufficient to satisfy due process demands; and (3) where property could not be returned
to former owner pending constitutionally sufficient proceedings, remedy would have to be
compensatory relief.
Reversed and remanded for further proceedings.
Thompson, J., dissented.
Jones, Jones, Bell, LeBaron & Close, Joseph W. Brown, and Michael E. Buckley, Las
Vegas, for Appellant.
Cromer, Barker & Michaelson, Las Vegas, for Respondents.
Procedural due process mandates that judgment creditor, who knows whereabouts of judgment debtor,
give debtor notice reasonably calculated to inform her of levy before levying execution upon that debtor's
property. U.S.C.A.Const. Amend. 14.
Even though judgment creditor, in giving notice of execution on judgment debtors' property, complied
with the then-existing statutory provisions requiring that notice be posted in several specified places and
that it be published in newspaper in county, and even though judgment creditor claimed to
have arranged for notice to be posted on property itself, where notice was not mailed
directly to judgment debtors, who were former clients of judgment creditor, and
whose address was necessarily known or easily discoverable by him, creditor's
methods of providing notice were insufficient to satisfy due process demands.
even though judgment creditor claimed to have arranged for notice to be posted on property itself, where
notice was not mailed directly to judgment debtors, who were former clients of judgment creditor, and
whose address was necessarily known or easily discoverable by him, creditor's methods of providing notice
were insufficient to satisfy due process demands. U.S.C.A.Const. Amend. 14; NRS 21.130; Banking
Law N.Y. 100-c, subd. 12.
3. Pleading.
Although a pleading requires a short and plain statement of claim showing pleader is entitled to relief and
a demand for judgment for relief, it does not require the legal theory relied upon to be correctly identified.
NRCP 8(a).
Complaint alleging that judgment creditor willfully, intentionally, and fraudulently failed to employ any
method of publication reasonably calculated to give judgment debtor and her husband notice of attachment
and sale on execution of their real property, which purported to advance a theory of fraud, was sufficient to
state a claim for denial of due process. NRCP 8(a); U.S.C.A. Const. Amend. 14.
5. Judgment.
Failure to support factual allegations by affidavit or other evidence as required for opposition to motion
for summary judgment will justify order only with respect to facts put in dispute by the pleadings, and facts
not in dispute need not be supported by affidavit.
6. Execution.
Where execution sales were conducted so as to deny owners of property due process of law, ideal remedy
would be to return that property to former owner pending constitutionally sufficient proceedings.
7. Execution.
Where property improperly executed upon could not be returned to former owner pending
constitutionally sufficient proceedings without injury to innocent third parties who were bona fide
purchasers of property, relief would have to be in form of compensatory relief. U.S.C.A.Const. Amend. 14;
NRS 21.130; Banking Law N.Y. 100-c, subd. 12.
OPINION
[Headnote 1]
The principal issue presented is whether a judgment creditor, who knows the whereabouts
of a judgment debtor, may levy execution upon that debtor's property without giving the
debtor notice reasonably calculated to inform her of the levy. We hold that procedural due
process guaranteed by the fourteenth amendment of the Federal Constitution mandates that
notice be given.
1. The appeal comes to us from an order of the district judge granting summary judgment
in favor of Respondent Adamses and against Appellant Swartz. For the reasons expressed, we
reverse and remand the case for further proceedings.
2. Appellant Violet Swartz commenced this action to set aside execution sales of two
parcels of real property. She later sought compensatory relief.
Respondent Herman M. Adams had served as counsel for Violet and her blind husband,
who is now deceased. After termination of their attorney-client relationship, Adams sued the
Swartzes for his attorney's fees. He won a judgment of $6,251.54. Adams, in satisfaction of
the judgment, levied on the personal and real property of the Swartzes. By bidding in parts of
his judgment, he purchased furniture of the Swartzes' for $50; one parcel of real property for
$2,000 (which he later sold for $10,000); and another parcel of realty for $4,201.54, the
balance of the unsatisfied judgment (which he traded for a 1,232-acre farm in California
having, according to Adams' deposition, an equity in excess of $53,000).
Neither Violet nor her husband had any knowledge of the execution sales of the real
property. Indeed, Violet continued to pay real property taxes on the property that Adams had
purchased, even after the period of redemption had expired. Adams made no attempt to notify
Violet of the sales and, when questioned in his deposition regarding the payment of the taxes,
replied, I thought that was a pretty good deal, somebody else paying my taxes. Thereafter,
Violet learned of the sales, and this action was commenced.
3. Violet advances several theories to support her position that the trial court erred in
granting summary judgment for Adams. We need discuss only one: whether the notice given
of the execution sales was sufficient to satisfy the due process requirements of the fourteenth
amendment.
It is undisputed that, in giving notice of the execution on the Swartzes' property, Adams
complied with the then-existing provisions of NRS 21.130.
1
These provisions required that
notice be posted in several specified places and that it be published in a newspaper in the
county. In addition, Adams claims to have arranged for notice to be posted on the property
itself. He argues that this latter measure, beyond what was required by law, demonstrates a
genuine effort to convey notice to appellant rather than any intent to conceal the sale.
____________________

1
NRS 21.130 has since been amended to require notice by mailing. Act of May 13, 1975, ch. 433, 1975 Nev.
Stats. 651.
required by law, demonstrates a genuine effort to convey notice to appellant rather than any
intent to conceal the sale.
[Headnote 2]
Adams' argument is not convincing. It remains unexplained why he did not simply mail
notice directly to the Swartzesa simpler and more effective way of ensuring actual notice.
Since Violet and her husband were Adams' former clients, their address was necessarily
known or easily discoverable by him. Under the facts of this case, Adams' methods of
providing notice, even though complying with the statutory requirements then in force, were
insufficient to satisfy due process demands as set forth by the United States Supreme Court.
2

The leading case on the requirements of due process in giving notice of a pending legal
proceeding is Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). In that
case the supreme court held that publication in a local newspaper, in accordance with N.Y.
Bank. Law 100-c(12) (McKinney 1950), of an accounting for a common trust fund did not
satisfy procedural due process. In so holding, the Court expressed the following general
principles, at 314-315, 320:
An elementary and fundamental requirement of due process in any proceeding which
is to be accorded finality is notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an opportunity
to present their objections. . . .
. . . The means employed must be such as one desirous of actually informing the
absentee might reasonably adopt to accomplish it. . . .
. . . .
. . . Publication may theoretically be available for all the world to see, but it is too
much in our day to suppose that each or any individual beneficiary does or could
examine all that is published to see if something may be tucked away in it that affects
his property interests.
Although Mullane contained dicta suggesting that publication might be sufficient where
tangible rather than intangible property was concerned, subsequent cases have held to the
contrary in appropriate factual contexts.
____________________

2
It should be noted that, where the statute itself is unconstitutional, it has been held that the giving of notice
beyond that required by statute is irrelevant. See Wuchter v. Pizzutti, 276 U.S. 13 (1928), in which the High
Court held unconstitutional a nonresident motorist statute requiring only service on the secretary of state, even
though the defendant in that case had been personally served.
property was concerned, subsequent cases have held to the contrary in appropriate factual
contexts. In Walker v. City of Hutchinson, 352 U.S. 112 (1956), the court held that notice by
publication of the condemnation of property was a denial of due process where the name of
the owner, a resident of the state, was known to the condemning party. The court noted, at
116:
In Mullane we pointed out many of the infirmities of such notice and emphasized the
advantage of some kind of personal notice to interested parties. In the present case there
seem to be no compelling or even persuasive reasons why such direct notice cannot be
given.
The same observation could be made in the instant case. See also Schroeder v. City of New
York, 371 U.S. 208 (1962), in which publication and posting near the property being
condemned were held to be a denial of due process.
The High Court has, moreover, indicated that in providing reasonable notice one must
consider any known disabilities, physical or practical, of the party to be informed. In Covey v.
Town of Somers, 351 U.S. 141 (1956), the Court held that notice by mailing, posting, and
publication was insufficient where the individual was a known incompetent without the care
of a guardian. In Robinson v. Hanrahan, 409 U.S. 38 (1972), it was held that notice of a
forfeiture proceeding mailed to the owner's home was insufficient when the individual was
known to be in jail at that time. In the instant case, Violet's husband, who was known by
Adams to be in charge of the couple's business affairs, was blind. Had Adams wished to
convey notice of the proceeding, he certainly would have employed a more direct means, in
view of this disability.
This court has previously rejected mere compliance with statutory provisions where, under
the facts of the case, such compliance falls short of due process standards. In Kotecki v.
Augusztiny, 87 Nev. 393, 487 P.2d 925 (1971), it was held that notice to creditors of a
decedent's estate, which used decedent's legal rather than her professional name, was
insufficient as to those creditors who knew the decedent only by the latter name. In Golden v.
Tomiyasu, 79 Nev. 503, 387 P.2d 989 (1963), cert. denied, 382 U.S. 844, on which the
Adamses rely heavily, the court rejected charges of fraud and refused to set aside a trustee's
sale foreclosing a deed of trust. In so doing, however, it noted as important that the trustee
gave information and knowledge to the trustors in addition to that required by statute, and
particularly putting them on notice that foreclosure was imminent;
. . ." Id. at 517-51S.
required by statute, and particularly putting them on notice that foreclosure was imminent;
. . . Id. at 517-518.
[Headnotes 3, 4]
Adams objects to consideration of the due process issue, on the ground that it was not
raised before the lower court. While the complaint and the points and authorities filed below
in opposition to Adams' motion for summary judgment purport to advance a theory of fraud,
they are sufficient to state a claim for denial of due process. NRCP 8(a) requires a pleading to
contain: (1) a short and plain statement of the claim showing that the pleader is entitled to
relief, and (2) a demand for judgment for the relief to which he deems himself entitled. It
does not require the legal theory relied upon to be correctly identified. See Ablah v. Eyman,
365 P.2d 181, 193 (Kan. 1961); Appleton v. Citizens' Cent. Nat'l Bank, 83 N.E. 470 (N.Y.
1908), aff'd 216 U.S. 196 (1910).
Paragraph 12 of the complaint alleges:
That Defendant HERMAN M. ADAMS executed upon the real property of Plaintiff
and her husband, . . . that said Defendant wilfully, intentionally, and fraudulently failed
to employ any method of publication reasonably calculated to give Plaintiff and her
husband notice of the attachment and sale on execution of said real property; . . .
The points and authorities in opposition to the motion contain similar allegations. The prayer
of the complaint asks for such relief as the court finds just and equitable.
[Headnote 5]
While Violet failed to support her factual allegations by affidavit or other evidence as
required for opposition to a motion for summary judgment, this omission justifies the order
only with respect to facts put in dispute by the pleadings, i.e., the bona fide status of the
present owners of the property. The facts establishing that due process was denied are not in
dispute: the type of notice provided and the Swartzes' and Adams' former attorney-client
relationship, from which may be inferred Adams' knowledge of the Swartzes' whereabouts
and of Mr. Swartz' disability. Therefore, they need not be supported by affidavit.
[Headnotes 6, 7]
The order granting summary judgment and dismissing the complaint is error. Since the
execution sales were conducted so as to deny the owners of the property due process of
law, the ideal remedy would be to return that property to the former owner pending
constitutionally sufficient proceedings.
so as to deny the owners of the property due process of law, the ideal remedy would be to
return that property to the former owner pending constitutionally sufficient proceedings.
Unfortunately, this may no longer be done without injury to innocent third parties who are
bona fide purchasers of the property. However, Violet has also sought compensatory relief in
her complaint. We therefore reverse and remand the case to the court below for appropriate
proceedings consistent with this opinion.
Batjer, C. J., and Zenoff and Gunderson, JJ., concur.
Thompson, J., dissenting:
The issue presented to this court is not as stated in the majority opinion.
1
The
constitutional problem of procedural due process in effectuating execution sales is not before
us. That issue has been abandoned. Only the claim of Violet Swartz to recover damages for
an alleged fraud is tendered. Consequently, the predicate of the majority opinion does not
exist, and all discussion therein premised upon Mullane v. Central Hanover Bank & Trust
Co., 339 U.S. 306 (1950), is not relevant to our review.
Mr. Adams, a Nevada attorney, represented Violet Swartz and her husband Richard in
certain litigation. That professional relationship was terminated by Richard Swartz in June
1964. The Swartzes then owed Adams an agreed fee of $5,000 for services rendered. That fee
was not paid. In 1968, Adams obtained judgment therefor and satisfied the same through
execution upon two parcels of unimproved real property owned by the judgment debtors.
Adams was the highest bidder at the sheriff's sale and received a certificate of sale which
he recorded March 20 1969.
____________________

1
Appellant's opening brief states:
This action was originally brought by Appellant Violet Swartz to set aside certain execution sales after the
redemption period had run. Appellant has also asked for compensatory and punitive damages, and it is this
money relief which Appellant seeks exclusively now.
Respondent Herman M. Adams (hereinafter Respondent Adams) obtained a judgment for attorney's fees
against Appellant and her now deceased husband and levied execution thereon. Respondent Adams then, by
bidding in parts of his judgment, purchased certain personal and real property formerly belonging to Appellant.
When Appellant failed to redeem within the statutory period, Respondent Adams conveyed the real property he
had purchased to two local realtors, Marshall S. Ashcraft and Mary Bartsas, in separate conveyances.
Appellant's action sought to have the deeds to Ashcraft and Bartsas set aside, but although originally named
as Defendants herein, both were dismissed as parties to the suit. Neither of these Orders is appealed.
bidder at the sheriff's sale and received a certificate of sale which he recorded March 20 1969.
On March 31, 1970, the sheriff executed and delivered his deed to Adams which was duly
recorded on April 2, 1970. No effort was made by the Swartzes to redeem the property within
the statutory period. Mr. Swartz since has died.
The execution sale fully complied with our statutory law. Violet Swartz has abandoned her
effort to set aside the execution sale, and seeks only damages for an alleged fraud.
No basis for the charge of fraud appears in this record. Adams, as a judgment creditor, did
only that which he was authorized to do. The contention that he was precluded from causing
property to be sold to satisfy his judgment because of the prior attorney-client relationship is
unsound. Indeed, supportive authority is not offered. An attorney may satisfy his judgment in
the same manner as other judgment creditors. His decision to do so according to statutory law
obviously cannot be the predicate for a charge of fraud.
Although it is claimed that the price bid by Adams for the property was grossly
inadequate, the record is wholly unsatisfactory as to the value of the land.
Moreover, inadequacy of price standing alone does not tend to establish fraud. Golden v.
Tomiyasu, 79 Nev. 503, 387 P.2d 989 (1963); Brunzell v. Woodbury, 85 Nev. 29, 449 P.2d
158 (1968); Turner v. Dewco Services, Inc., 87 Nev. 14, 479 P.2d 462 (1971). Thus, if one
were inferentially to conclude that an inadequate price was paid, a claim of fraud still is
without foundation. For these reasons, I would affirm the summary judgment entered below
and, therefore, respectfully record my dissent from today's opinion.
____________
93 Nev. 247, 247 (1977) Flynn v. State
JAMES LESLIE WAYNE FLYNN, Appellant, v.
No. 9197
April 21, 1977 562 P.2d 1135
By a judgment of the district court the defendant was convicted of a crime of forcible rape,
battery with a deadly weapon, robbery and burglary and he appealed. The Supreme Court
held that: {1) conviction for robbery was not negated by fact that victim offered her
money because of defendant's prior acts of violence; {2) felonious intent to commit rape
could be reasonably inferred from the facts to sustain burglary conviction; and {3) court
properly refused requested instruction on consent which constituted incorrect statement
of law.
93 Nev. 247, 248 (1977) Flynn v. State
held that: (1) conviction for robbery was not negated by fact that victim offered her money
because of defendant's prior acts of violence; (2) felonious intent to commit rape could be
reasonably inferred from the facts to sustain burglary conviction; and (3) court properly
refused requested instruction on consent which constituted incorrect statement of law.
Affirmed.
William N. Dunseath, Washoe County Public Defender, and Michael B. McDonald,
Deputy Public Defender, Reno, for Appellant.
Robert List, Attorney General; Larry R. Hicks, District Attorney, and John L. Conner,
Deputy District Attorney, Washoe County, for Respondent.
1. Robbery.
While victim offered defendant her money, such offer was a product of defendant's prior acts of violence
toward her and threatening conduct so that jury was justified in finding that money was taken from victim
against her will and thus constituted robbery. NRS 200.380.
2. Burglary.
Where defendant and his accomplice carried victim directly to her bedroom and shortly thereafter and
against her will had sexual intercourse with her, defendant's felonious intent to commit rape could be
reasonably inferred from these facts and thus the burglary conviction would not be disturbed, contrary to
defendant's claim that at time he entered victim's apartment he lacked intent to commit a felony. NRS
205.060.
3. Rape.
Requested instruction that consent given any time prior to penetration deprived subsequent intercourse of
required criminal character no matter how reluctantly consent was given or how much force had been
employed was properly refused as an incorrect statement of law.
OPINION
Per Curiam:
Convicted by jury of forcible rape, battery with a deadly weapon, robbery, and burglary,
appellant here contends (1) the evidence was not sufficient to sustain his conviction of either
robbery or burglary, and (2) the district court erred in refusing to instruct the jury on the issue
of consent as to the rape charge. We disagree.
93 Nev. 247, 249 (1977) Flynn v. State
Shortly before midnight on December 6, 1975, appellant Flynn and his accomplice, a man
who has never been identified or arrested, assumed a position outside the apartment of
Suzanne Wells. At approximately 1:30 a.m. on December 7, 1975, when Ms. Wells left her
apartment to go to work at the Silver Spur in Reno, she was accosted by appellant's
accomplice. She screamed and appellant's accomplice struck her in the mouth with his fist,
knocking her to the ground. Appellant then emerged and struck her with a tire iron. The
victim pleaded for her life. Appellant responded that he had to kill her, and struck her a
severe blow in the head with the tire iron. The two assailants, having located the victim's
keys, carried the victim back to her apartment and threw her on a bed located in her bedroom.
Stunned, bleeding from her head wound, and fearing for her life, the victim volunteered the
location in her apartment of approximately one hundred and ninety dollars. Appellant located
the money, returned to the bedroom, disrobed the victim, and engaged her in sexual
intercourse. After appellant completed his sex act, he told his accomplice to take his turn.
Over the victim's objections, the accomplice also engaged the victim in sexual intercourse.
Thereafter assailants gagged the victim, bound her hands and feet, and departed in her
automobile.
[Headnote 1]
1. Appellant contends the robbery conviction was improper because the evidence failed to
establish that the taking was against the will of the victim.
1
Appellant argues the money was
offered to him by Ms. Wells in an effort to divert his attention from his announced
intention to kill her, and thus, was not taken against her will.
While Ms. Wells admittedly offered appellant her money, such offer was the product of
appellant's prior acts of violence and threatening conduct. Under these circumstances, the jury
was justified in finding the money was taken from Ms. Wells against her will. See Wheeler v.
State, 91 Nev. 119, 531 P.2d 1358 (1975). Cf. Norman v. Sheriff, 92 Nev. 695, 558 P.2d 541
(1976); State v. Luhano, 31 Nev. 278, 102 P. 260 (1909); People v. Winters, 329 P.2d 743
(Cal.App. 1958); Application of Massie, 283 P.2d 573 (Okl.Crim.App. 1955).
____________________

1
NRS 200.380 defines robbery, in pertinent part, as the unlawful taking of personal property from the
person of another, or in his presence, against his will, by means of force or violence or fear of injury, . . .
93 Nev. 247, 250 (1977) Flynn v. State
[Headnote 2]
2. Appellant next contends the burglary conviction was improper because, at the time he
entered the victim's apartment, he lacked the intent to commit a felony.
2

However, the intention with which appellant entered Ms. Wells' apartment is a question of
fact which may be inferred from appellant's conduct and other circumstances disclosed by the
evidence. Here, appellant and his accomplice carried Ms. Wells directly to her bedroom and,
shortly thereafter and against her will, had sexual intercourse with her. In our view,
appellant's felonious intent to commit rape may reasonably be inferred from these facts and,
thus, the burglary conviction will not be disturbed. See People v. Matson, 528 P.2d 752 (Cal.
1974); People v. Bard, 447 P.2d 939 (Cal. 1968).
[Headnote 3]
3. Finally, appellant contends the district court erred in refusing to give his proposed
instruction on the issue of consent with respect to the rape charge. His proffered instruction
read: Consent given at any time prior to penetration deprives the subsequent intercourse of
its criminal character, regardless of how reluctantly it was given, or of how much force had
theretofore been employed.
This instruction is an incorrect statement of our law regarding the consent which negates
the crime of rape and, therefore, was properly refused. See Dinkens v. State, 92 Nev. 74, 546
P.2d 228 (1976); Ricci v. State, 91 Nev. 373, 536 P.2d 79 (1975).
Other issues raised by appellant are frivolous and without merit. The judgment is affirmed.
____________________

2
NRS 205.060 provides, in pertinent part:
1. Every person who . . . enters any house, room, apartment . . . or other building . . . with intent to commit .
. . any felony, is guilty of burglary.
____________
93 Nev. 251, 251 (1977) Estwin Corp. v. Prescription Ctr. Pharmacy
ESTWIN CORPORATION, Appellant, v. PRESCRIPTION CENTER PHARMACY, INC.,
Doing Business As LANDMARK PHARMACY; and DONALD IGLINSKI, Respondents.
No. 8618
April 25, 1977 563 P.2d 78
Appeal from declaratory judgment, Eighth Judicial District Court, Clark County; Michael
J. Wendell, Judge.
Landlord filed action for declaratory relief with respect to lease section providing for
upward adjustment of fixed minimum rent calculated annually with reference to percentage
increase of United States Consumer Price Index. The district court entered judgment in favor
of tenant, and landlord appealed. The Supreme Court held that in view of ambiguity of
minimum rent adjustment provision, trial court properly construed provision against the
landlord, which had drafted the instrument.
Affirmed.
Dickerson, Miles & Pico, of Las Vegas, for Appellant.
Scotty Gladstone, of Las Vegas, for Respondents.
Landlord and Tenant.
In view of ambiguity existing in lease section providing for upward adjustment of fixed minimum rent
calculated annually with reference to percentage increase in United States Consumer Price Index, trial
court properly construed provision against landlord.
OPINION
Per Curiam:
Estwin Corporation leased a store in a Las Vegas shopping center to Prescription Center
Pharmacy, Inc., in August of 1972. In 1974 a dispute arose concerning the proper
interpretation of Section 3.06 of the written lease agreement which provides for an upward
adjustment of the fixed minimum rent calculated annually with reference to the percentage
increase of the United States Consumer Price Index (CPI). Estwin Corporation filed an action
for declaratory relief and appeals from the adoption by the lower court of lessee's
interpretation of the clause in question.
The rent payable under the ten-year lease prepared by Estwin Corporation was calculated
by taking the fixed minimum rent, which automatically increased after four years; adding to
that any amount by which a percentage of the gross annual sales exceeded the minimum; and
additionally, annually adjusting the fixed minimum rental upward by the percentage which
the CPI had moved since the last adjustment. The different interpretations of the last clause
by lessor and lessee resulted in this action. That section of the lease provides:
3.06. At the end of each one year period subsequent to the execution of this lease the
fixed minimum rent shall be adjusted upward if the cost of living index as provided
herein discloses an increase in the cost of living, according to the United States
Consumer Price Index. Said rent shall be adjusted upward by the percent which said
price index has moved since the last adjustment in rent. In any event, said fixed
minimum rent shall not be less than provided in Section 3.03. The United States
Consumer Price Index as of the effective day of this lease as represented by the United
States Department of Labor, Bureau of Statistics for the United States area, is agreed by
the parties to stand at 125.0 as of June, 1972, and that this is to be used as the base
hereinafter. Emphasis added.
Appellant-lessor contends that the proper method of calculating the increase is to divide
the current consumer price index by the base 125.0, multiply that by the fixed minimum rent,
and add the resulting figure to the last adjusted rent. Respondent-lessee claims the proper
method is to subtract the last applicable consumer price index from the current index figure,
divide the difference by the last applicable index figure, apply that percentage to the fixed
minimum rent, and add the resulting figure to the last adjusted rent. Appellant's construction
emphasizes the last phrase of 3.06, while respondent's follows from the language by the
percent which said price index has moved since the last adjustment in rent.
The lower court found the language of the provision ambiguous and therefore construed it
against the lessor-draftsman. The court declared the proper computation as follows:
The cost of living index published as of June of each year, shall be annually
compared with that as published for June of the preceding year, and if there has been an
increase, the number of points of increase shall be divided by the index for June of the
preceding year, and the resultant percentage shall be the percentage of increase for
the year.
the resultant percentage shall be the percentage of increase for the year. During the first
four years of the lease, such resultant percentage shall then be multiplied times the base
fixed rental of $3,250.00 and the result thereof shall be added to the last preceding
monthly rental, and this shall be the monthly rental for the next ensuing year. After the
fourth year, such percentage shall be multiplied times the base fixed minimum rental of
$4,000.00 and added to the last previous monthly rental to produce the new monthly
rental for the next ensuing year.
We have reviewed the entire record and conclude that the lower court's construction of the
disputed provision is reasonable with a view to fair dealing between the parties. Gallagher v.
Holland, 20 Nev. 164, 18 P. 834 (1888).
Affirmed.
____________
93 Nev. 253, 253 (1977) Robbins v. State
EDWARD O'NEAL ROBBINS, Appellant, v.
No. 9336
April 28, 1977 563 P.2d 80
The district court convicted defendant of second-degree murder, and defendant appealed.
The Supreme Court held that where witnesses testified that they saw defendant chasing
victim by swimming pool where she collapsed and that victim, while still conscious, charged
defendant with shooting her, it was not mandatory for jury to accept defendant's explanation
that shooting was an accident, particularly in view of fact that defendant's testimony was
highly improbable since bullet entered victim through the small of her back.
Affirmed.
Morgan D. Harris, Public Defender, and Stephen L. Huffaker, Chief Deputy Public
Defender, Clark County, for Appellant.
Leon Simon, Chief Deputy District Attorney, Clark County, for Respondent.
1. Homicide.
Where witnesses testified that they heard five shots fired in quick succession and saw defendant chasing
victim by swimming pool where she collapsed, where witnesses testified that victim, while still conscious,
charged defendant with the shooting, and where defendant's testimony that shooting was accidental was
highly improbable in view of fact that bullet entered victim through the small of her back, it was not
mandatory for jury in homicide prosecution to accept defendant's explanation of the incident.
2. Criminal Law.
Where, on appeal of conviction of second-degree murder, defendant failed to cite any authority in support
of his claim of error, claim of error would be summarily rejected.
OPINION
Per Curiam:
On July 23, 1976, at approximately 7:00 p.m., Edward O'Neal Robbins shot his wife
Carolyn. Four weeks later Carolyn died from a wound caused by the entry of a bullet through
the small of her back. Edward claimed the shooting was accidental, that Carolyn had
panicked when she saw the gun and attacked him, and that the gun accidentally discharged in
the struggle. Neighbors testified that they heard five shots fired in quick succession and
looked out to see Edward chasing Carolyn by the pool where she collapsed. In the presence of
those neighbors, Carolyn, still conscious, charged Curly (Edward) with the shooting. A jury
found Edward guilty of second-degree murder and he appeals.
[Headnote 1]
1. The only cognizable assignment of error claims that the evidence was not sufficient to
support the verdict. Specifically, Edward contends that it was mandatory for the jury to accept
his explanation of the incident since no one else witnessed the actual shooting. We reject this
novel contention. Eagan v. State, 128 P.2d 215 (Wyo. 1942), relied on by appellant, held that,
where the accused is the sole witness of the crime, his unimpeached testimony may not be
rejected unless improbable or inconsistent with the evidence. This authority does not apply to
the instant case where there were other witnesses to the crime and where the victim herself
survived long enough to give some account of what transpired. Furthermore, appellant's
testimony is highly improbable in view of the entry point of the bullet.
[Headnote 2]
2. Robbins has failed to cite any authority in support of his subordinate claim of error.
Accordingly, it is summarily rejected.
Affirmed.
____________
93 Nev. 255, 255 (1977) Warden v. Owens
BOBBY RAY OWENS, Respondent.
No. 9080
April 28, 1977 563 P.2d 81
Appeal from order granting writ of habeas corpus, First Judicial District Court, Carson
Petitioner, who had been convicted of second degree murder, petitioned for writ of habeas
corpus on basis of contention that he was being illegally detained because his retained
counsel had failed to advise him of his right to appeal from such conviction. The district court
vacated another district court's judgment of conviction and sentence and directed such court
to reimpose judgment of conviction and sentence, and warden appealed. The Supreme Court
held that district court exceeded its jurisdiction in vacating judgment and directing
reimposition of judgment.
Reversed.
Leon Simon, Deputy District Attorney, Clark County, for Appellant.
Rodlin Goff, State Public Defender, Carson City, for Respondent.
1. Habeas Corpus.
In habeas corpus proceedings, district court may not order relief which is beyond its power or authority.
Const. art. 6, 6; NRS 3.190.
2. Habeas Corpus.
In proceeding on petition for writ of habeas corpus based on contention that petitioner, who had been
convicted of second degree murder, was being illegally detained because his retained counsel had failed to
advise him of his right to appeal from such conviction, district court had no jurisdiction to
vacate another district court's judgment of conviction and sentence and to direct
such court to reimpose judgment of conviction and sentence.
93 Nev. 255, 256 (1977) Warden v. Owens
conviction, district court had no jurisdiction to vacate another district court's judgment of conviction and
sentence and to direct such court to reimpose judgment of conviction and sentence. Const. art. 6, 6;
NRS 3.190.
OPINION
Per Curiam:
Respondent was convicted by jury of second degree murder and sentenced by the Eighth
Judicial District Court to a term of ten years imprisonment in the Nevada State Prison.
Thereafter, respondent perfected no appeal from this conviction and sentence, but petitioned
the First Judicial District Court for a writ of habeas corpus. Although he did not challenge
any infirmities, constitutional or otherwise, in the trial or sentence, respondent contended he
was being illegally detained because his retained attorney had failed to advise him of his right
to appeal. In an apparent attempt to resurrect respondent's right to a direct appeal, the First
Judicial District Court granted respondent's petition, vacated his conviction, and remanded
him to the Eighth Judicial District Court with instructions to that court to reimpose the
judgment of conviction and sentence. The State contends the First Judicial District Court
exceeded its jurisdiction by such action. We agree.
[Headnotes 1, 2]
In habeas corpus proceedings, a district court may not order relief which is beyond its
power or authority. Cf. State v. Ricci, 88 Nev. 220, 495 P.2d 614 (1972). The First Judicial
District Court had no jurisdiction to vacate the other court's valid judgment of conviction and
sentence, and direct that court how to proceed. Nev. Const. art. 6, 6; NRS 3.190.
The order granting the habeas petition is reversed without prejudice to respondent's right to
seek such relief, if any, to which he may be entitled under our Post-Conviction Relief Act,
NRS 177.315 et seq.
____________
93 Nev. 257, 257 (1977) Aladdin Heating v. Trustees, Cent. States
ALADDIN HEATING CORPORATION; VEGAS VALLEY ELECTRIC, INC., and
MARTIN STERN, Jr., HERBERT FEHR, dba HERBERT FEHR MASONRY
CONTRACTOR and VALLEY ELEVATOR COMPANY, Appellants, v. TRUSTEES
OF THE CENTRAL STATES, SOUTHEAST AND SOUTHWEST PENSION
FUND, Respondents.
No. 8127
April 28, 1977 563 P.2d 82
Appeal from judgment of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Mechanics' lien claimants sought to foreclose their liens, and beneficiaries of deed of trust
defended on ground that prior foreclosure of their deed of trust had extinguished junior liens.
The district court ruled in favor of beneficiaries, and claimants appealed. The Supreme Court,
Gunderson, J., held that: (1) agricultural, soil testing and survey work claimants relied on for
their priority was insufficient to constitute commencement of building or improvement; (2)
delivery of grant, bargain and sale deed to beneficiaries did not cause all legal and equitable
title to merge in beneficiaries; (3) beneficiaries, who were claiming under deed of trust and
not as owners, were not required to file notice of nonresponsibility to protect their beneficial
interest; and (4) beneficiaries, as purchasers at foreclosure sale, took title as of date their lien
vested and subsequent junior liens were extinguished by foreclosure.
Affirmed.
Sanford, Sanford, Fahrenkopf, & Mousel, Reno, and Cromer, Barker & Michaelson, Las
Vegas, for Appellants.
McDonald, Carano, Wilson, Bergin & Bible, and Rutan & Tucker, Reno, for Respondents.
1. Mortgages.
Work done provision of statute providing preference for certain liens only prefers liens for work or
labor which was begun prior to filing of mortgage or recording of deed of trust but after commencement of
erection of building. NRS 108.225.
2. Mechanics' Liens.
Where actual on-site construction had not yet started, agricultural, soil testing and survey work
mechanics' lien claimants relied on for their priority was insufficient to constitute commencement of
building or improvement so as to entitle them to statutory preference over any lien, mortgage or other
encumbrance that attached subsequent to time when building improvement or structure
was commenced, work done or materials furnished.
attached subsequent to time when building improvement or structure was commenced, work done or
materials furnished. NRS 108.225.
3. Mortgages.
When greater estate and lesser one coincide and meet in the same person, lesser estate merges into greater
and is extinguished.
4. Mortgages.
Whether merger has occurred depends on intent of parties, especially one in whom interests unite, and if
merger is against that party's best interest, it will not be deemed intended by the parties.
5. Mortgages.
Where merger would have been against deed of trust beneficiaries' best interest because their deed of
trust would then lose its priority, parties' conduct indicated intent to have security arrangement only and not
merger, which fact was manifested by beneficiaries' retention of debt instrument and owner's treatment of
that debt as still alive by making periodic payments, and estates were not coextensive and commensurate in
that deed conveyed legal title only of real property while deed of trust covered property plus existing and
future improvements, delivery of grant, bargain and sale deed to beneficiaries did not cause all legal and
equitable title to merge in beneficiaries so as to extinguish deed of trust and leave nothing to defeat
mechanics' liens.
6. Mortgages.
One claiming under deed of trust, similar to a mortgagee, does not have to give notice of
nonresponsibility to protect his priority over subsequent lien, and thus beneficiaries of deed of trust, who
were claiming under their deed of trust and not as owners under grant, bargain and sale deed given them as
part of security arrangement, were not required to file notice of nonresponsibility to protect their beneficial
interest as against mechanics' lien claims. NRS 108.234.
7. Mortgages.
Where beneficiaries of deed of trust, pursuant to security arrangement, did not acquire entire interest of
owner pursuant to sale-leaseback transaction, they could not be considered trustors of deed of trust and thus
beneficiaries, as purchasers at foreclosure sale, took title as of date their lien vested and mechanics' lien
claimants' subsequent junior liens were extinguished by the foreclosure.
OPINION
This dispute involves competing priorities between mechanics' lien claimants and
beneficiaries of a deed of trust. In a consolidated action, appellants sought to foreclose their
mechanics' liens, and respondents defended on the ground that the prior foreclosure of
respondents' deed of trust had extinguished appellants' junior liens. The district court ruled in
favor of respondents. We agree.
Respondents loaned Kings Castle Limited Partnership $6,500,000 to finance the
construction of the Kings Castle Hotel and Casino located at Incline Village, Nevada. To
secure this loan, the partnership gave respondents a promissory note and a deed of trust which
covered the Kings Castle real property, existing improvements, and improvements to be
thereafter constructed on the land. Respondents recorded this deed of trust on May 9, 1969.
As part of the loan transaction and apparently in lieu of paying loan points in advance,
Kings Castle Limited Partnership and respondents also entered into a sale-leaseback
arrangement. This arrangement contemplated that respondents would purchase Kings Castle's
real property, lease the land back to Kings Castle for a five-year period, and, at the end of this
period, Kings Castle would repurchase the property at a higher price, thereby permitting
respondents to receive their loan points at this later date. Pursuant to this arrangement,
Kings Castle executed in favor of respondents a grant, bargain, and sale deed covering the
subject real property only, excluding any improvements. Respondents recorded this deed on
May 9, 1969, subsequent to the recording of their deed of trust.
Kings Castle defaulted on payments of the promissory note, and respondents foreclosed
their deed of trust pursuant to the deed's power of sale provision. At the foreclosure sale,
respondents bid and acquired the property and improvements thereon for $5,000,000.
After the foreclosure sale, appellants filed suit to foreclose mechanics' liens which they
had perfected pursuant to NRS Ch. 108. The district court ruled that the deed of trust was
senior to the mechanics' liens and, thus, foreclosure of the deed of trust had extinguished the
mechanics' liens. Appellants here contend the district court erred in ruling (1) that the deed of
trust took priority over mechanics' liens, (2) that there had been no merger of respondents'
interests, (3) that respondents were not required to file a notice of non-responsibility to
maintain their priority, and (4) that Call v. Thunderbird Mortgage Co., 375 P.2d 169 (Cal.
1962), was inapplicable to the facts of this case. These contentions are without merit.
1. Prior to the recordation of respondents' deed of trust and the actual commencement of
construction, appellant Martin Stern, Jr. and others performed certain work and/or services in
preparation for the construction of the Kings Castle complex. This work consisted of
surveying the land, soil testing, and drafting architectural plans. Appellants contend this
preparatory labor constitutes "work done," thereby causing their liens to attach and take
priority over the deed of trust pursuant to NRS 10S.225.1
preparatory labor constitutes work done, thereby causing their liens to attach and take
priority over the deed of trust pursuant to NRS 108.225.
1

[Headnotes 1, 2]
It is clear that the work done provision of NRS 108.225 only prefers liens for work or
labor, which work or labor was begun prior to the filing of a mortgage [or recording of a deed
of trust], but begun after the commencement of the erection of the building. . . . (Emphasis
added.) Pacific States Savings, Loan & Building Co. v. Dubois, 83 P. 513, 514 (Idaho 1905);
see also McClain v. Hutton, 61 P. 273 (Cal. 1900); Home Savings & Loan Ass'n v. Burton,
56 P. 940 (Wash. 1899). Here, actual on-site construction had not yet started and the
architectural, soil testing, and survey work appellants rely on for their priority is insufficient
to constitute the commencement of a building or improvement; something more is required.
D-K Investment Corporation v. Sutter, 96 Cal.Rptr. 830 (Cal.App. 1971); Walker v. Lytton
Savings and Loan Ass'n of No. Cal., 465 P.2d 497 (Cal. 1970); Mortgage Associates, Inc. v.
Monona Shores, Inc., 177 N.W.2d 340 (Wis. 1970); M. E. Kraft Excavating & Grading Co. v.
Barac Const. Co., 156 N.W.2d 748 (Minn. 1968); H. B. Deal Const. Co. v. Labor Discount
Center, Inc., 418 S.W.2d 940 (Mo. 1967). Were we to hold otherwise and permit mechanics'
liens to accrue based on this work done prior to the commencement of construction,
mechanics' liens could relate back to a time long before there were any visible signs of
construction to inform prospective lenders inspecting the premises that liens had attached.
Under such circumstances, no prudent businessman would be willing to lend construction
money. See: Walker v. Lytton Savings and Loan Ass'n of No. Cal., cited above; M. E. Kraft
Excavating & Grading Co. v. Barac Const. Co., cited above; Western Mortgage L. Corp. v.
Cottonwood Const. Co., 424 P.2d 437 (Utah 1967).
____________________

1
NRS 108.225 provides in pertinent parts:
1. The liens provided for in NRS 108.221 to 108.2395, inclusive, are preferred to:
(a) Any lien, mortgage or other encumbrance which may have attached subsequent to the time when the
building, improvement or structure was commenced, work done, or materials were commenced to be furnished.
(b) Any lien, mortgage or other encumbrance of which the lienholder had no notice and which was
unrecorded at the time the building, improvement or structure was commenced, work done, or the materials were
commenced to be furnished.'' (Emphasis added.)
[Headnote 3]
2. Appellants next contend that delivery of the grant, bargain, and sale deed to
respondents caused all legal and equitable title to merge in respondents, and, due to this
merger, the deed of trust was extinguished leaving nothing to defeat appellants' liens. It is true
that when a greater estate and lesser one coincide and meet in the same person, the lesser
estate merges into the greater and is extinguished. 2 Jones on Mortgages 1080 at 508-509
(1928). However, as the district court correctly found, no merger took place.
[Headnotes 4, 5]
Whether a merger has occurred depends on the intent of the parties, especially the one in
whom the interests unite. Grellet v. Heilshorn, 4 Nev. 526 (1869); see also Fowler v. Carter,
425 P.2d 737 (N.M. 1967). If merger is against that party's best interest, it will not be deemed
intended by the parties. Bowman v. Cook, 419 P.2d 723 (Ariz. 1966); Kansas Seventh Day
Adventist Conf. Ass'n v. Williams, 134 P.2d 626 (Kan. 1943); Osborne, Mortgages 273 at
549 (2d ed. 1970). Here, it is apparent the parties did not intend that a merger take place.
Merger would be against respondents' best interests because their deed of trust would lose its
priority. Similarly, the parties' conduct clearly indicates their intent to have a security
arrangement only, and not a merger. This fact is manifested by respondents' retention of the
debt instrument and Kings Castle's treatment of that debt as still alive by making periodic
payments. See: Bowman v. Cook, cited above.
Not only is there no intent to have a merger, but the estates appellants contend merged are
not coextensive add commensurate. See: Grellet v. Heilshorn, cited above. The deed
conveyed legal title only of the real property, while the deed of trust covered the property plus
existing improvements and improvements to be constructed in the future. Since respondents
acquired only part of the subject matter covered by their deed of trust, there can be no merger.
See: Warfield v. Christiansen, 93 A.2d 560 (Md. 1953).
[Headnote 6]
3. Respondents never posted or recorded a notice of non-responsibility, and, thus,
appellants argue that respondents' ownership interest in the land arising from the
sale-leaseback arrangement is subject to appellants' liens pursuant to NRS 108.234.
2
However, it is well settled that one claiming under a deed of trust, similar to a mortgagee,
does not have to give such a notice of non-responsibility to protect his priority over
subsequent liens.
____________________

2
NRS 108.234 provides in pertinent parts:
Every building or other improvement mentioned in NRS 108.222,
deed of trust, similar to a mortgagee, does not have to give such a notice of non-responsibility
to protect his priority over subsequent liens. Rheem Manufacturing Company v. United
States, 371 P.2d 578 (Cal. 1962); Hollywood Lumber Co. v. Love, 100 P. 698 (Cal. 1909);
Anno., 123 A.L.R. 7, 24 (1939). Thus, since respondents are claiming under their deed of
trust and not as owners, they were not required to file a notice of non-responsibility to protect
their beneficial interests.
[Headnote 7]
4. Finally, appellants contend the district court erred in ruling that the case of Call v.
Thunderbird Mortgage Co., 375 P.2d 169 (Cal. 1962), was inapplicable to the facts of this
case. Call involved the redemption rights of various persons after a judicial foreclosure, and
the effect on those rights when the judgment debtor or his successor in interest purchased at
the foreclosure sale. The California Supreme Court ruled that when the judgment debtor or
his successor purchased at the foreclosure sale, the lien foreclosed was satisfied and
discharged, the effect of the sale ended, and the property remained subject to subsequent
junior liens.
However, Call is factually distinguishable from this case. Here, because respondents did
not acquire the entire interest of Kings Castle pursuant to the sale-leaseback transaction, they
cannot be considered trustors of the deed of trust as was the successor in Call. Further, the
successor in Call had no other interest in the prior deeds of trust, whereas here, respondents
are also the beneficiaries. Finally, the type of financing arrangement involved here was not
present in Call. Call being inapplicable, respondents, as purchasers at a foreclosure sale, took
title as of the date their lien vested, and appellants' subsequent junior liens were extinguished
by the foreclosure. Erickson Constr. Co. v. Nevada Nat'l Bank, S9 Nev. 350
____________________
constructed upon any lands with the knowledge of the owner or the person having or claiming any interest
therein, shall be held to have been constructed at the instance of such owner or person having or claiming any
interest therein, and the interest owned or claimed shall be subject to any lien recorded in accordance with the
provisions of NRS 108.221 to 108.2395, inclusive, unless such owner or persons having or claiming an interest
therein shall, within 3 days after he has obtained knowledge of the construction, alteration or repair, or the
intended construction, alteration or repair, give notice that he will not be responsible for such improvement by
filing a notice in writing to that effect with the county recorder of the county where the land or building is
situate; . . .
Constr. Co. v. Nevada Nat'l Bank, 89 Nev. 350, 513 P.2d 1236 (1973).
Affirmed.
Batjer C. J. and Zenoff, Mowbray, and Thompson, JJ., concur.
____________
93 Nev. 263, 263 (1977) Sloat v. Turner
BILLY SLOAT and HAZEL HEDGES, Appellants and Cross-Respondents, v. OSWALD
TURNER, M. TURNER, M. YASUTAKE, BERTHA SHAFTON, MARJORIE PERRY,
STATE OF NEVADA ON RELATION OF ITS DEPARTMENT OF HIGHWAYS, GRANT
BASTIAN, HIGHWAY ENGINEER, Respondents and Cross-Appellants.
No. 8286
April 28, 1977 563 P.2d 86
Appeal from an award of attorney's fees seeking an increase thereof. Cross-appeal from
judgment for plaintiffs in inverse condemnation action. Eighth Judicial District Court; Keith
C. Hayes, Judge.
Landlocked landowners sought an award for inverse condemnation. The district court
awarded compensation and attorney fees, and cross-appeals were filed. The Supreme Court,
Zenoff, J., held, inter alia: (1) that the evidence was insufficient to show sufficient adverse
user to create a prescriptive easement, and (2) that no damages were allowable under a statute
providing for compensation for property damaged by the proposed improvement.
Appeal dismissed. On cross-appeal, the judgment below is reversed with direction to
enter judgment for respondents.
R. Paul Sorenson and Kermitt L. Waters, of Las Vegas, for Appellants and
Cross-respondents.
Robert List, Attorney General, and D. Michael Clasen, Deputy Attorney General, Carson
City, for Respondents and Cross-appellants.
1. Easements.
In order to perfect easement by prescription, it is necessary that there be adverse, continuous, open and
peaceable use for five years.
2. Adverse Possession.
Absent statute allowing adverse user against state, no rights as to state property can be acquired by
prescription. NRS 322.050.
3. Easements.
Landlocked landowners acquired no prescriptive easement over routes of access to their land where state
acquired such route for highway purposes prior to expiration of minimum five-year period of user
necessary for perfection of such prescriptive access.
4. Easements.
Evidence in action for damages for inverse condemnation of prescriptive rights of access was insufficient
to establish that plaintiffs' predecessors in interest had engaged in sufficient prior adverse user of access
routes that such user, when tacked to plaintiff's use, perfected easement prior to state's condemnation of
routes for highway purposes.
5. Eminent Domain.
Where landlocked landowners had no existing right of access to their property either by covenant or by
prescription, state's condemnation of property over which landowners' access easement allegedly crossed
was not deprivation of access compensable under State Constitution. Const. art. 1, 8.
6. Eminent Domain.
Where landlocked landowners had no existing right of access to their property over routes condemned by
state for highway purposes, either by covenant or by prescription, state was not liable for compensation for
taking of such routes under statute providing for compensation for damage to property caused by
construction of proposed improvement. NRS 37.110, subd. 3.
7. Eminent Domain.
Statute providing for compensation for property which, although not taken for public improvement, is
damaged by construction of such improvement was enacted to apply only when actual physical damage has
been inflicted on property by construction of improvement or where some property right which is directly
connected to ownership or use of such property is substantially impaired or extinguished.
OPINION
This appeal is taken from an inverse condemnation award granted to the appellants,
plaintiffs below. The trial court found as a matter of law that appellants had prescriptively
perfected an easement over property condemned by the state for purposes of erecting
Interstate 15 and charged the state with compensation for this deprivation of access.
compensation for this deprivation of access. Concurrently, it held the state liable to appellants
for the reduction in market value caused by the completion of the freeway. Appellants' only
claim on appeal is for an increase in the allowance for attorney's fees.
The cross-appeal for this judgment for appellants, cross-respondents, presents the main
issues to be decided by this court. Respondents have cross-appealed for reversal urging first
that the lower court erred in holding that a prescriptive easement had actually been acquired,
and second, that NRS 37.110(3) which provides for compensation even when there is not an
actual taking of the property does not apply unless there is actual physical injury or damage to
the property or unless an existing right is impaired or extinguished. Although cross-appellants
have raised other questions related to the judgment, we shall not consider them for a
resolution of the above issues is dispositive of the cross-appeal.
Because a decision on the cross-appeal in favor of the cross-appellants and against the
appellants, cross-respondents, would render the initial appeal nugatory and unnecessary to
consider, we proceed first to resolve the questions tendered by the cross-appeal.
1. Appellants Billy Sloat and Hazel Hedges purchased adjacent tracts in Clark County on
June 13 and November 4 of 1963 respectively. At that time the properties were complete]y
landlocked. Their land was, and still is, completely bounded on all sides by private property
with a Union Pacific Railroad right-of-way passing through the northwest corner of each
tract. The nearest developed road, Lamb Boulevard, is located in excess of one-half mile due
east.
No rights of access were acquired with the purchases nor were any obtained from the
surrounding landowners. To travel to their land the appellants traveled directly across private
property from Lamb Boulevard. It is the use of this route of access eight to ten times a year by
appellants which the trial court found gave rise to an easement by prescription.
[Headnotes 1-3]
In order to perfect an easement by prescription it is necessary that there be adverse,
continuous, open and peaceable use for five years. Stix v. LaRue, 78 Nev. 9, 368 P.2d 167
(1962). In acquiring land for the construction of Interstate 15 the State of Nevada in 1965
condemned the property upon which the appellants had relied for their prescriptive access.
The last tract necessary to completely obstruct appellants' prescriptive access was acquired
by the state on July 21 of that year.
was acquired by the state on July 21 of that year. It is a well-settled principle that absent a
statute allowing adverse user against the state, no rights as to state property can be acquired
by prescription. Armstrong v. Morrill, 81 U.S. (14 Wall) 120 (1872); City of Los Angeles v.
Coffey, 52 Cal.Rptr. 218 (Cal.App. 1966); Spotswood v. Spotswood, 89 P. 362 (Cal. App.
1907); Verrill v. School City of Hobart, 52 N.E.2d 619 (Ind. 1944); Everett v. State, 2
N.Y.S.2d 117 (1938); Burgett v. Calentine, 242 P.2d 276 (N.M. 1951); Tripp v. Bagley, 276
P. 912 (Utah 1928); Attorney General v. Revere Copper Co., 25 N.E. 605 (Mass. 1890);
Scofield v. Scheaffer, 116 N.W. 210 (Minn. 1908); Cottrill v. Myrick, 12 Me. 222 (1835). No
such statute exists in Nevada. The sole statutory authority on the subject of easements over
state lands, NRS 322.050, provides only for easements by lease. Further, the statutory period
is stayed when the state acquires the land prior to the minimum five years necessary for
perfection. City of Los Angeles v. Coffey, supra; Spotswood v. Spotswood, supra; Kapiolani
v. Cleghorn, 4 Ha. 330 (1902); Johnson v. Burgeson, 170 P.2d 311 (Wash. 1946); Greene v.
Esquibel, 272 P.2d 330 (N.M. 1954); Kasner v. Wilson, 215 P.2d 833 (Okla. 1950); Mogren
v. A. P. Investment Co., 131 N.E.2d 620 (Ohio 1956). Because of these restrictions the
maximum period of actual adverse user by the appellants could not exceed one year and ten
months. The acquisition of the easement property by the state completely precluded any
possibility of a prescriptive access route based solely upon appellants' use.
[Headnote 4]
Appellants claimed, however, that the trial court concluded that the prescriptive use of the
predecessors in interest, Robert G. and Scottie June Naumann, should be tacked to their use
so as to perfect the easement prior to the state's condemnation. The court below made no
specific finding of fact as to the extent or duration of any user by the Naumanns. The only
evidence found in the record on appeal clearly refutes the possibility of any adverse user on
their part. By individual affidavit Mr. and Mrs. Naumann aver that from the date of their
purchase of the property, October 30, 1961, until it was sold to the appellants, they had
never continuously consistently enjoyed ingress and egress to said real estate. Even if such
prescriptive access had been used, the period from October 30, 1961 to July 21, 1965, less
than three years and ten months, would not in itself support a prescriptive easement. There is
no additional evidence of any prior adverse user to substantiate the court's conclusion that a
valid prescriptive easement had been gained.
the court's conclusion that a valid prescriptive easement had been gained. In light of such
refutation and in the absence of any conflicting evidence this court finds insufficient evidence
to support the lower court's conclusion that such an easement existed. If a conclusion is
unsupportable, this court has a duty to set it aside. Ophir Silver Mining Co. v. Carpenter, 4
Nev. 534 (1869), cited in Crosman v. Southern Pacific Co., 42 Nev. 92, 108, 173 P. 233, 228
(1918).
[Headnote 5]
If there was no existing right in the appellants of access to their property either by
covenant or by prescription, the state's condemnation of the property over which the easement
allegedly crossed was not a deprivation of access compensable under Article I, Section 8, of
the Nevada Constitution. Therefore, the respondents owe no liability to the appellants for a
right which did not exist. The trial court erred in so holding.
[Headnote 6]
2. The trial court alternatively held that apart from the easement by prescription the state
was liable to appellants for damages under NRS 37.110(3). This statute states, in pertinent
part, that:
The court, jury, commissioners or master must hear such legal testimony as may be
offered by any of the parties to the proceedings, and thereupon must ascertain and assess:
* * *
3. If the property, though no part thereof is taken, will be damaged by the construction of
the proposed improvement, the amount of such damages.
In awarding damages under this section the court relied on the following language found in
Nichols on Eminent Domain:
. . . property is damaged when it is made less valuable, less useful, or less desirable. . . . It
is immaterial whether such damage occurs by reason of the construction or the maintenance
of the project, so long as it is directly attributable to such causative factor, and irrespective of
whether there has been an actual physical taking of any part of such property.
1

The lower court's reliance on this language is misplaced. The conditioning sentence and
the context of the passage, omitted by the court, more fully delineate the particular meaning
intended by the author.
Under the constitutional provision which requires payment of compensation when
property is damaged, consequential damages may be recovered. . . .
____________________

1
4A Nichols on Eminent Domain, 14.1[1] at 14-19 to 14-21 (3d Ed. 1975).
of compensation when property is damaged, consequential damages may be recovered. . . .
Under this provision, property is damaged when it is made less valuable, less useful, or less
desirable. (The measure of damages in such case is the difference between the fair market
value before and after the inflicting of the damage.) Hence, it is immaterial whether such
damage occurs by reason of the construction or the maintenance of the project, so long as it is
directly attributable to such causative factor, and irrespective of whether there has been an
actual physical taking of any part of such property. The depreciation in value, however, must
be by reason of damage to the land itself or to property rights therein. (Emphasis added.)
2

As noted, the statement relied on by the court presupposes a constitutional provision
allowing just compensation for damage as well as taking. The Constitution of the State of
Nevada provides for compensation based solely on a taking by the state of private property,
not for damage thereto. However, even in those states whose constitutions do provide for just
compensation based on either the taking of or damage to the property involved, it is only
actual physical injury to the property or some derogation of a right appurtenant to that
property which is compensable. Ingram v. City of Redondo Beach, 119 Cal.Rptr. 688
(Cal.App. 1975); Eldridge v. City of Palo Alto, 124 Cal.Rptr. 547 (Cal.App. 1975); Holtz v.
Superior Court cf City and County of San Francisco, 475 P.2d 441 (Cal. 1970); Albers v.
County of Los Angeles, 398 P.2d 129 (Cal. 1965); City of Los Angeles v. Geiger, 210 P.2d
717 (Cal. 1949); Bacich v. Board of Control, 144 P.2d 818 (Cal. 1943). Most notably, in
Albers v. County of Los Angeles, supra, at 137, a case involving inverse condemnation, it is
stated that any actual physical injury to real property caused by the improvement . . . is
compensable. This language was further explained in Holtz v. Superior Court of City and
County of San Francisco, supra, at 445, Thus we limited our holding of inverse
condemnation liability, absent fault, to physical injuries of real property' that were
proximately caused' by the improvement. In Eldridge v. City of Palo Alto, supra, a
restriction on the right to use property in the form of a zoning ordinance was considered a
taking even though there had been no actual exercise of the right of eminent domain. Such an
infringement on a right attendant to the ownership of property was considered compensable
even though there had been no physical damage to the property nor was any part thereof
actually appropriated by the state.
____________________

2
Nichols, supra, at 14-14 to 14-24.
been no physical damage to the property nor was any part thereof actually appropriated by the
state.
[Headnote 7]
We think it apparent that NRS 37.110(3) was enacted to apply only when actual physical
damage has been inflicted on the property by construction of the improvement or if some
property right which is directly connected to the ownership or use of the property is
substantially impaired or extinguished. This court has stated [n]either constitution or statute
contemplates compensation for that which does not exist. Probasco v. City of Reno, 85 Nev.
563, 566, 459 P.2d 772, 774 (1969).
No right of access existed at the time the appellants purchased the property and neither did
they acquire any. No right of access, prescriptive or otherwise, existed at the time the state
condemned the easement property. Neither has there been any actual physical damage to the
property owned by the appellants. It is presently in the same landlocked state in which it was
purchased with no right of ingress or egress. The construction of the freeway could have no
effect on rights which did not exist. If there was not a perfected prescriptive easement at the
time the state condemned the property over which the appellants had traveled to reach their
land, the construction of Interstate 15 thereon abrogated no right enjoyed by either Billy Sloat
or Hazel Hedges. Absent some interference with an existing right or damage to the property,
the state cannot be charged with any liability under NRS 37.110(3) to the appellants.
This court therefore finds for the cross-appellants. We reverse the lower court's judgment
and remand it to that court for entry of judgment in favor of the respondents, cross-appellants.
Because we so grant the cross-appeal, the judgment upon which the appellants propounded
a claim for an increase in attorney's fees is vacated. With its vacation, appellants are no longer
the prevailing party and as such are not entitled to any award of attorney's fees. Thus, the sole
issue presented for review by appellants now stands moot and consequently the appeal is
dismissed.
Reversed and remanded with direction to enter judgment for respondents and
cross-appellants on cross-appeal. Appeal dismissed.
Batjer, C. J., and Mowbray, and Thompson, JJ., concur.
It appearing to me that my brethren have elected to decide for themselves matters of fact
which the district court otherwise determined upon adequate evidence, I respectfully
dissent.
for themselves matters of fact which the district court otherwise determined upon adequate
evidence, I respectfully dissent.
The trial court's finding that plaintiffs or their predecessors in interest had acquired an
easement by prescription is supported by evidence showing appellants had used the dirt road
openly, notoriously, and adversely for access; others had frequently used the road; the road
was in existence when appellants purchased their property; appellants were informed the road
came into existence in 1950; and the only way to gain access to appellants' property was
along the section line dirt road. Assuming arguendo that plaintiffs did not perfect the
easement during 1961-1963, the evidence is nevertheless sufficient to support a finding that
owners prior to the plaintiffs' immediate predecessors in interest had established one, that
such easement was appurtenant to the property prior to 1961, and that it passed to plaintiffs'
immediate predecessors and then to the plaintiffs.
____________
93 Nev. 270, 270 (1977) League to Save Lake Tahoe v. Tahoe R.P.A.
LEAGUE TO SAVE LAKE TAHOE, Appellant, v. TAHOE REGIONAL PLANNING
AGENCY, HARVEY'S WAGON WHEEL, INC., OLIVER KAHLE, and TED
JENNINGS, Respondents.
No. 8693
May 3, 1977 563 P.2d 582
Appeal from orders dismissing complaint with prejudice; Ninth Judicial District Court,
Douglas County; James J. Guinan, Judge.
Action was instituted to bar construction of resort hotels in Tahoe Basin. The district court
entered order dismissing complaint with prejudice, and plaintiff appealed. The Supreme
Court, Thompson, J., held that: (1) plaintiff, being a foreign nonprofit corporation, was
properly dismissed from action where it was not qualified to do business in state when action
was commenced though it did qualify to do business in state approximately nine months later;
(2) action against one developer, started approximately one year and seven months after
county acted on developer's application for a use permit, was not commenced within 25 days
of filing of notice of final action of governing body granting permit and, hence, was barred
as untimely; (3) failure of regional planning agency to reach a decision on permits granted to
other developers resulted in an automatic affirmance that was equivalent of "final action"
within limitations statute; {4) belated compliance of plaintiff with foreign corporation
qualification statutes did not defeat applicability of statute of limitations during period of
time plaintiff was in noncompliance; and {5) institution of action before compliance with
filing requirements did not toll statute of limitations, nor did later compliance operate
retroactively to permit continuation of action when period of limitations had run between
filing and compliance.
in an automatic affirmance that was equivalent of final action within limitations statute; (4)
belated compliance of plaintiff with foreign corporation qualification statutes did not defeat
applicability of statute of limitations during period of time plaintiff was in noncompliance;
and (5) institution of action before compliance with filing requirements did not toll statute of
limitations, nor did later compliance operate retroactively to permit continuation of action
when period of limitations had run between filing and compliance.
Affirmed.
Coleman A. Blease, of Sacramento, California, and Janet L. Chubb, of Sparks, for
Appellant.
Owen & Ralston, of Carson City, for Respondent Tahoe Regional Planning Agency.
Laxalt, Berry & Allison, of Carson City, for Respondent Harvey's Wagon Wheel, Inc.
Breen, Young, Whitehead & Hoy, of Reno, for Respondent Kahle.
McDonald, Carano, Wilson, Bergin & Bible, and John J. Frankovich, of Reno, for
Respondent Jennings.
1. Corporations.
Word maintain, within statute providing that a foreign corporation shall not be allowed to commence,
maintain, or defend any action or proceeding in any court of state until it shall have fully complied with
statutory requirements, means that a corporation which is qualified to do business in state at time it
commences action may not maintain action when it subsequently becomes unqualified because of failure to
comply with continuing statutory requirements. NRS 80.210.
2. Corporations.
Foreign nonprofit corporation was subject to being dismissed as a plaintiff in suit to bar construction of
resort hotels in Tahoe Basin where it was not qualified to do business in state at time action was
commenced though it did qualify to do business in state approximately nine months later. NRS 80.210.
3. Zoning.
Action to bar particular developer from constructing a resort hotel in Tahoe Basin was untimely when
instituted approximately one year and seven months after county acted on developer's application for use
permit and, hence, was barred under statute requiring court action to be commenced within 25 days of
filing of notice of "final action" of governing body granting any special use or variance.
of final action of governing body granting any special use or variance. NRS 278.027.
4. Zoning.
Failure of Tahoe Regional Planning Agency to reach a decision on action of county in granting special
use permits to developers to construct resort hotels in Tahoe Basin resulted in an automatic affirmance that
was equivalent to final action within statute requiring court action to be commenced within 25 days of
filing of notice of final action of governing body granting any special use or variance. NRS 278.027.
That plaintiff did not qualify to do business in state as a foreign corporation until some nine months after
special use permit was issued to defendants to construct resort hotels in Tahoe Basin did not defeat
applicability of statute of limitations during period of time plaintiff was in noncompliance with foreign
corporation qualification statutes; institution of action before compliance with filing requirements did not
toll statute of limitations nor did later compliance operate retroactively to permit continuation of action
when period of limitations had run between filing and compliance. NRS 278.027.
OPINION
This action by League to Save Lake Tahoe was commenced August 16, 1974. Its purpose
is to bar construction of resort-hotels in the Tahoe Basin by Oliver Kahle, Ted Jennings, and
Harvey's Wagon Wheel, Inc.
The League to Save Lake Tahoe is a foreign nonprofit corporation. It does business in
Nevada by engaging in activities for which it was incorporated, including the solicitation of
memberships and contributions, testifying before legislative committees and governing
bodies of political subdivisions, and the holding of public meetings.
When this action was commenced, the League to Save Lake Tahoe was not qualified to do
business in Nevada, although doing business here. On May 21, 1975, approximately nine
months later, it did qualify to do business in this state.
The district court dismissed the action with prejudice. It reasoned that NRS 80.210 which
provides that a foreign corporation . . . shall not be allowed to commence, maintain, or
defend any action or proceeding in any court of this state until it shall have fully complied
with the provisions of NRS 80.010 to 80.040, inclusive mandated dismissal since the League
to Save Lake Tahoe had not qualified to do business when suit was commenced.
By this appeal the League to Save Lake Tahoe claims that the court erred in dismissing its
case since it later qualified to do business.
do business. This contention places in issue the meaning to be accorded the language of NRS
80.210. In any event, the League contends that the dismissal should not have been with
prejudice.
1
We turn to address these contentions.
1. A foreign corporation transacting business in Nevada is denied access to the courts of
this state unless and until it files with the Secretary of State a certified copy of its charter and
obtains from him a certificate authorizing it to do business here. NRS 80.210; 80.010;
80.120; cf. Peccole v. Fresno Air Serv., Inc., 86 Nev. 377, 469 P.2d 397 (1970).
Whether tardy compliance with the filing requirements will allow an unauthorized action
to go forward is the issue tendered. The League to Save Lake Tahoe lacked capacity to
commence this action. We must decide whether the statute, NRS 80.210, allows curative
efforts to revive initial lack of capacity to sue.
The issue has not before been decided by this court. Case authority elsewhere is split and
not particularly helpful since statutory language differs. Annot., 6 A.L.R.3d 326 (1966).
[Headnotes 1, 2]
The League to Save Lake Tahoe contends that the words maintain and until in the
phrase shall not be allowed to commence, maintain, or defend any action or proceeding in
any court of this state until . . . express a legislative intention that an unauthorized action
may be maintained upon later compliance with statutory filing requirements. The district
court did not so view that language. It reasoned that the word maintain was meant to apply
to a case commenced by a corporation which had qualified to do business here but which
subsequently became unqualified because of failure to comply with continuing statutory
requirements. This, we think, is a proper application of the statutory language and we approve
it.
2. The action was dismissed with prejudice. We presume that the dismissal was so
structured because of the court's belief that the statute of limitations would be an available
defense to bar another action should it be filed.
2
According to the complaint, Douglas
County granted special use permits for resort-hotels to Jennings, Kahle and Harvey's
Wagon Wheel, Inc., on May 7, 1973, April 24, 1973, and June 20, 1973, respectively.

____________________

1
We summarily reject the final contention of the League that NRS 80.210 applies only to foreign
corporations doing business for profit. The statute makes no such distinction, and by its express terms applies to
every corporation.

2
The bar of limitations appears from the face of the complaint. The defense, therefore, may be raised by the
motions to dismiss presented by the defendants-respondents. Kellar v. Snowden, 87 Nev. 488, 489 P.2d 90
(1971); Manville v. Manville, 79 Nev. 487, 387 P.2d 661 (1963).
According to the complaint, Douglas County granted special use permits for resort-hotels
to Jennings, Kahle and Harvey's Wagon Wheel, Inc., on May 7, 1973, April 24, 1973, and
June 20, 1973, respectively.
NRS 278.027 requires court action to be commenced within 25 days of the filing of notice
of final action of the governing body granting any special use or variance, if judicial review
is desired.
3

As to Jennings and Kahle the action of Douglas County thereafter was reviewed by the
Nevada Tahoe Regional Planning Agency (NTRPA) and subsequently by the Tahoe Regional
Planning Agency (TRPA). The Nevada agency approved their projects. The TRPA did not
reach a decision. California ex rel. Younger v. Tahoe Regional Planning Agency, 516 F.2d
215 (9th Cir. 1975). Consequently, their projects were deemed approved and the decision of
Douglas County affirmed. California ex rel. Younger v. Tahoe Regional Planning Agency,
supra, at 219. This automatic approval by reason of TRPA's failure to reach a decision
occurred on or about August 12, 1974. The record does not reflect similar agency review of
the action of Douglas County with regard to Harvey's Wagon Wheel, Inc.
[Headnote 3]
What is final action within the intendment of NRS 278.027? If agency review
(NTRPATRPA) does not occur, then the action of Douglas County is the final action,
and judicial review, if desired, must be sought within 25 days thereafter. Since such review
was not timely sought with regard to Harvey's Wagon Wheel (this action was started
approximately one year and seven months after Douglas County acted on Harvey's
application for a use permitif one was ever made) NRS 278.027 is an available defense to
bar this action against that defendant-respondent.
If agency review does occur, and TRPA either approves, requires modification of, or
rejects the decision of the permit issuing authority, final action is taken at that point in time,
and judicial review must be sought within 25 days thereafter. If TRPA is unable to decide and
does not take final action {California ex rel.
____________________

3
NRS 278.027 in relevant part: No action or proceeding shall be commenced for the purpose of seeking
judicial relief or review from or with respect to any final action, decision or order of any governing body . . .
granting any special use or variance . . . unless such action or proceeding is commenced within 25 days from the
date of the filing of notice of such final action. . . .
(California ex rel. Younger v. Tahoe Regional Planning Agency, supra), what date is to be
used for the purposes of NRS 278.027? This is what occurred with regard to Jennings and
Kahle.
[Headnote 4]
As before noted the failure of TRPA to take final action resulted in an automatic
affirmance of the decision of the local permit issuing authority, Douglas County. We construe
such automatic affirmance to be the equivalent of final action within the meaning of NRS
278.027.
[Headnote 5]
The special use permits issued by Douglas County to Jennings and to Kahle were
automatically affirmed by the TRPA on August 12, 1974. This action was commenced on
August 16, 1974, well within the 25 day period specified in NRS 278.027. However, at that
time the League to Save Lake Tahoe, for reasons heretofore expressed, lacked capacity to
commence the action. The League did not qualify to do business in this state until May 21,
1975, some nine months after the special use permit was automatically affirmed. This
belated compliance with the foreign corporation qualification statutes does not defeat the
applicability of the statute of limitations during the period of time the corporation was in
noncompliance. Alaska Mines & Minerals, Inc. v. Alaska Industrial Board, 354 P.2d 376
(Alas. 1960); Jorgensen v. Baker, 157 N.E.2d 773 (Ill. 1959); Western Electrical Co. v.
Pickett, 118 P. 988 (Colo. 1911). Institution of suit before compliance with filing
requirements does not toll the statute of limitations, nor does later compliance operate
retroactively to permit continuation of the action if the statute of limitations had run between
filing of the suit and such compliance. Accordingly, we conclude that NRS 278.027 is an
available defense to bar this action against Jennings and Kahle.
Therefore, we affirm the dismissals with prejudice, since to do otherwise would be to
countenance the filing of another action as to which limitations is a bar.
Mowbray, J., and Thompson, D. J., and Brennan, D. J., concur.
With all respect, it appears to me that in deciding the meaning of NRS 80.210, the court's
decision disposes of a tremendously significant legal issue without exposition of either logic
or precedent to support its holding.
The court's interpretation of NRS 80.210, if not later changed in a case perceived as having
greater merit, may certainly occasion harsh results. If this court is to adopt a rule apparently
countenancing such results, I suggest we should articulate legal or logical reasons sufficient
to command the respect and concurrence of the bench and Bar.
____________
93 Nev. 276, 276 (1977) Warden v. Cordwell
GENE E. CORDWELL, Respondent.
No. 9432
May 12, 1977 564 P.2d 186
Reversed.
City; Larry R. Hicks, District Attorney, and John L. Conner, Deputy District Attorney,
Washoe County, for Appellant.
H. Rodlin Goff, State Public Defender, and J. Thomas Susich, Deputy Public Defender,
OPINION
Per Curiam:
On the authority of, and for the same reasons stated in, Warden v. Owens, 93 Nev. 255,
563 P.2d 81 (1977), we, sua sponte, reverse the district court's order which granted
respondent's petition for a writ of habeas corpus.
____________
93 Nev. 277, 277 (1977) Warden v. Graham
HOLLIS FENTON GRAHAM, Respondent.
No. 9404
May 12, 1977 564 P.2d 186
The district court granted habeas and set aside guilty plea, and warden appealed. The
Supreme Court held that psychiatric evaluations left no doubt as to petitioner's sanity and
amply supported determination that petitioner was fully competent.
Reversed.
Leon Simon, Deputy District Attorney, Clark County, for Appellant.
Horace R. Goff, State Public Defender, J. Thomas Susich and David Mathews, Deputy
Public Defenders, Carson City, for Respondent.
Habeas Corpus.
Where psychiatric evaluations left no doubt as to petitioner's sanity, at time guilty plea was entered the
canvass fully comported with delineated requirements, and other than petitioner's bare allegations, nothing
was shown or appeared to give any indication but that petitioner was indeed competent, granting writ of
habeas corpus and setting aside guilty plea on ground that record raised serious doubt about petitioner's
competency to stand trial constituted reversible error and plea of guilty would therefore be reinstated and
petitioner remanded to custody of warden to complete sentence originally imposed.
OPINION
Per Curiam:
In 1972 Hollis Fenton Graham requested and was afforded a sanity hearing, by the Eighth
Judicial District Court, pursuant to NRS 178.415. See Williams v. Warden, 91 Nev. 16, 530
P.2d 761 (1975). Thereafter, Graham was found competent and the proceedings were
remanded to a justice court in Clark County for a preliminary examination. On remand, the
case was given a new number and Graham was ultimately ordered to stand trial for murder.
On May 30, 1973, after a successful plea bargain agreement by his attorney, Graham
entered a solemn plea of guilty to a reduced charge of murder in the second-degree and
was sentenced to a twenty {20) year term of imprisonment.
93 Nev. 277, 278 (1977) Warden v. Graham
by his attorney, Graham entered a solemn plea of guilty to a reduced charge of murder in the
second-degree and was sentenced to a twenty (20) year term of imprisonment.
On June 17, 1976, Graham filed an in pro per petition for habeas corpus in the First
Judicial District Court, the thrust of which contended that, at the time he was charged and
convicted, the Eighth Judicial District Court had failed to suspend further proceedings and
provide a competency hearing, as required by NRS 178.405. The judge who conducted the
habeas hearing, apparently not having been apprised that the two differently numbered cases
below were, in fact, the same proceeding, concluded the record of the Eighth Judicial District
raised serious doubt about the petitioner's competency to stand trial. Thereafter, on
December 3, 1976, he granted habeas and set aside the guilty plea, vacated the sentence and
remanded the proceedings to the Eighth Judicial District Court for an inquiry, pursuant to
the provision of Nevada Revised Statute 178.400 . . . into the insanity of the defendant, and
further proceedings thereafter.
The warden has appealed, contending the district judge committed reversible error. We
agree.
From the complete record it is apparent that the psychiatric evaluations left no doubt as to
Graham's sanity; and, they amply support the determination that Graham was fully competent.
Furthermore, at the time the guilty plea was entered the canvass fully comported with the
requirements delineated in Heffley v. Warden, 89 Nev. 573, 516 P.2d 1403 (1973); and, in
fact, prior to accepting the guilty plea the trial judge, with an abundance of caution, caused
additional psychiatric examinations to be made. From the reports of those examinations, it
was again concluded that Graham was competent. Other than Graham's bare allegations,
nothing is shown or appears to give any indication but that Graham was, indeed, competent.
Cf. Warden v. Conner, 93 Nev. 209, 562 P.2d 483 (1977).
The order granting the writ is reversed; the plea of guilty is reinstated; and, Hollis Fenton
Graham is remanded to the custody of the warden of the Nevada State Prison to complete the
sentence originally imposed by the Eighth Judicial District Court.
1

____________________

1
In view of our resolution of this case, we need not, and therefore do not, consider the jurisdictional issue
involved in the First Judicial District Court's attempt to remand the case to the Eighth Judicial District Court.
See Warden v. Owens, 93 Nev. 255, 563 P.2d 81 (1977).
____________
93 Nev. 279, 279 (1977) Warden v. Cross
EDWARD CROSS, Respondent.
No. 9429
May 12, 1977 564 P.2d 186
Reversed.
City; George E. Holt, District Attorney, and H. Leon Simon, Deputy District Attorney, Clark
OPINION
Per Curiam:
____________
93 Nev. 279, 279 (1977) State v. Johnston
THE STATE OF NEVADA, Appellant, v. GLENN
W. JOHNSTON, Respondent.
No. 9248
May 12, 1977 563 P.2d 1147
Appeal from an order of the Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
The State appealed from the action of the district court in dismissing a charge of driving
while under the influence of intoxicating liquor. The Supreme Court held that the State, in
bringing such a charge, was required to allege the act or neglect of duty that proximately
caused bodily harm.
bringing such a charge, was required to allege the act or neglect of duty that proximately
caused bodily harm.
Affirmed.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and Bill C.
Hammer, Deputy District Attorney, Clark County, for Appellant.
Morgan D. Harris, Public Defender, and Herbert F. Ahlswede, Deputy Public Defender,
Automobiles.
Indictment charging driving automobile while under influence of intoxicating liquor was properly
dismissed where it failed to set forth act or neglect of duty which proximately caused death or bodily
harm. NRS 484.040, Stats. Nev. 1967, ch. 211; 484.3795.
OPINION
Per Curiam:
The narrow issue presented is whether it is necessary to set forth the act or neglect of
duty that proximately causes the death or bodily harm when charging a felony under NRS
484.3795.
1
The district judge, in dismissing the offense predicated on that statute, held that it
was necessary, and dismissed the charge. The State has appealed. We affirm.
According to the grand jury record, the respondent, Glenn W. Johnston, while under the
influence of intoxicating liquor, was drag-racing with another vehicle. Both the cars ran a
stop sign. Johnston's car collided with a third vehicle crossing the intersection. Passengers in
both vehicles received serious injuries, from which one of the passengers in Johnston's car
later died.
1. A grand jury indictment was returned against Johnston and Brent Leishman, with
whom Johnston was drag-racing.
____________________

1
NRS 484.3795:
Any person who, while under the influence of intoxicating liquor, or a controlled substance as defined in
chapter 453 of NRS, or under the combined influence of intoxicating liquor and a controlled substance, or any
person who inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent to a degree which
renders him incapable of safely driving or steering a vehicle, does any act or neglects any duty imposed by law
while driving or in actual physical control of any vehicle, which act or neglect of duty proximately causes the
death of, or substantial bodily harm to, any person other than himself, is guilty of a felony.
The indictment contained three counts: Count III charged both Johnston and Leishman with
involuntary manslaughter,
2
Count II related only to Leishman, and Count I charged Johnston
with driving under the influence of liquor and causing substantial bodily harm to two of
Johnston's passengers and a passenger riding in the car he struck.
3

2. In dismissing Count I of the indictment, which was predicated on a violation of NRS
484.3795, the district judge ruled that the State must allege the act or neglect of duty that
proximately caused the bodily harm to the persons named therein.
The State claims the court erred and that under NRS 484.3795 it is necessary only to allege
that the defendant was driving under the influence of intoxicating liquor. It urges that driving
under the influence, prohibited by NRS 484.3795, is per se an unlawful act which
proximately caused the injuries to the several passengers.
In Anderson v. State, 85 Nev. 415, 456 P.2d 445 (1969), this court held that it was
necessary for the State to allege in the Information and to prove at trial the act causing the
death of the victim. This court said that such averment and proof of same were required in
addition to showing that the defendant was driving under the influence of intoxicating liquor.
The State claims that Anderson is no longer the law, because the language of NRS 4S4.040,
under which the appellant there had been convicted, differs from that of NRS 4S4.3795,
the current felony drunk driving statute.4 State's argument is unpersuasive.
____________________

2
Count III:
Defendant GLENN W. JOHNSTON was then and there operating his vehicle while under the influence of
intoxicating beverage, causing Defendant GLENN W. JOHNSTON to drive with wilful or wanton disregard for
the safety of persons or property, both Defendants GLENN W. JOHNSTON and BRENT ARLAN LEISHMAN
racing their vehicles and driving at excessive speeds approaching said intersection, both vehicles failing to stop
in obedience to a stop sign erected at said intersection on Oakey Boulevard, which caused Defendant GLENN
W. JOHNSTON to strike and collide with a 1966 Ford Bronco, . . . resulting in injury to and the death of . . . a
passenger in the vehicle operated by Defendant GLENN W. JOHNSTON.

3
Count I:
[Defendant] did then and there wilfully, unlawfully and feloniously operate a motor vehicle, to-wit: a 1965
Dodge four-door automobile, bearing 1976 Nevada License No. CKY-079, on Oakey Boulevard at the
intersection with Rainbow Boulevard, Clark County, Nevada, while under the influence of intoxicating liquor,
which act or neglect of duty proximately caused substantial bodily harm to REESE McMANUS, EMILY
BARKER, and MARK SPRINKLE, in that Defendant did strike and collide with that certain 1966 Ford Bronco,
bearing 1975 Nevada License No. CY-69, driven by said [sic] PARKER H. McMANUS, the said EMILY
BARKER and MARK SPRINKLE being then and there passengers in the vehicle operated by Defendant.
of NRS 484.040, under which the appellant there had been convicted, differs from that of
NRS 484.3795, the current felony drunk driving statute.
4
State's argument is unpersuasive.
The language in NRS 484.3795 is substantially similar to NRS 484.040, indicating no intent
to dispense with the necessity of alleging the act or neglect of duty as a proximate cause of
the death or injury.
5

Indeed, such an intent runs counter to the plain language of the statute. It focuses on the
act or neglect of duty which becomes a felony if committed while driving intoxicated, not
because driving intoxicated. In other words, one who drives intoxicated takes the risk of
being more heavily penalized for his negligent act than a driver who is sober.
State next contends that the failure of Count I to specify the act or omission of duty
causing the injury is remedied by the specificity of Count III and by the grand jury transcript,
to which Johnston had access. It cites Logan v. Warden, 86 Nev. 511, 471 P.2d 249 (1970), a
post-conviction habeas proceeding. In Logan, this court held that the conviction need not be
reversed despite a similar omission in the Information. It noted that in Nevada a defendant
had access to transcripts of preliminary hearings and grand jury transcripts, and that this
information was sufficient to inform the defendant of the offense with which he was charged,
so that he could properly prepare his defense.
In Logan, this court also ruled that, when an Information or indictment is first challenged
after conviction, a reduced standard may be used in evaluating it.
____________________

4
NRS 484.040 as then in effect (Act of March 29, 1967, ch. 211, 469, 1967 Nev. Stats. at 594; repealed by
Act of May 4, 1969, ch. 675, 201, 1969 Nev. Stats. at 1510):
Any person while intoxicated or under the influence of intoxicating liquor who drives or operates a vehicle of
any kind, and who, by reason of such intoxication or condition does any act or neglects any duty now or
hereafter imposed by law, which act or neglect of duty causes the death of, or bodily injury to, any person, shall
be punished by imprisonment in the state prison for not less than 1 year nor more than 10 years, or by a fine of
not more than $5,000, or by both fine and imprisonment.

5
NRS 484.040 provided, in relevant part: Any person while . . . under the influence of intoxicating liquor
who drives or operates a vehicle of any kind, and who . . . does any act or neglects any duty . . . imposed by law,
which act or neglect of duty causes the death of, or bodily injury to, any person, shall be punished. . . .
Compare NRS 484.3795, which provides, in relevant part: Any person who, while under the influence of
intoxicating liquor, . . . does any act or neglects any duty imposed by law while driving or in actual physical
control of any vehicle, which act or neglect of duty proximately causes the death of, or substantial bodily harm
to, any person . . . is guilty of a felony.
indictment is first challenged after conviction, a reduced standard may be used in evaluating
it. In the instant case, Johnston's challenge was timely made, and the district court ruled
properly in granting the challenge. Therefore, we affirm.
____________
93 Nev. 283, 283 (1977) Woloson v. Sheriff
DEBORAH WOLOSON, Appellant, v. SHERIFF,
No. 9177
AGNES FRANKLIN AVILA, Appellant, v. SHERIFF,
No. 9178
May 23, 1977 564 P.2d 603
Appeals from orders denying habeas corpus; Eighth Judicial District Court, Clark County;
Petitioners for habeas corpus challenged constitutionality of statute making it unlawful for
any person to sell any document for the purpose of establishing a false identity for any other
person. The district court found no merit to petitioners' claims, and petitioners appealed. The
Supreme Court, Thompson, J., held that: (1) statute was not unconstitutionally vague or
overbroad, and (2) statute did not unconstitutionally impose a criminal penalty in absence of
unlawful intent.
Orders affirmed.
Alan B. Andrews, of Las Vegas, for Appellant.
George E. Holt, District Attorney, H. Leon Simon and Elliott A. Sattler, Deputy District
Attorneys, Clark County, for Respondent.
It is not an abridgment of free speech to make a course of conduct illegal merely because the conduct was
in part evidenced by language, either spoken, written or printed. U.S.C.A.Const. Amend. 1.
2. Constitutional Law; Disorderly Conduct.
Statute making it unlawful for any person to sell any document for the purpose of establishing a false
identity for any other person was promulgated within police power of State, furthered a substantial
governmental interest, and was unrelated to the suppression of free expression and, consequently, its
validity would be tested by those standards applicable to criminal statutes in general
rather than according to First Amendment standards.
tested by those standards applicable to criminal statutes in general rather than according to First
Amendment standards. NRS 205.465; U.S.C.A.Const. Amends. 1, 14.
3. Criminal Law.
identity for any other person was not unconstitutionally vague or overbroad. NRS 205.465;
U.S.C.A.Const. Amends. 1, 14.
4. Disorderly Conduct.
identity for any other person did not unconstitutionally impose a criminal penalty in the absence of
unlawful intent as word purpose denoted a willful intent just as the word false denoted an unlawful
application. NRS 205.465; U.S.C.A.Const. Amends. 1, 14.
OPINION
These consolidated appeals from orders denying petitions for habeas corpus challenge the
constitutionality of NRS 205.465. That statute, among other things, makes it unlawful for any
person to sell any document for the purpose of establishing a false identity for any other
person.
1
Each appellant is charged with having so violated the statute. Each contends that the
statute abridges free speech, is vague and overbroad, and imposes criminal penalty without
requiring unlawful intention as an element of the offense. We find no merit in these
contentions and affirm the orders entered below.
1. The First Amendment declares that Congress shall make no law . . . abridging the
freedom of speech. . . . This amendment is made applicable to the states by the due process
clause of the Fourteenth Amendment. Edwards v. South Carolina, 372 U.S. 229 (1963).
Although the amendment extends to all forms of expression designed to communicate ideas
and embraces symbolic as well as pure speech, the sale of a document to establish the false
identity of another person is not associated with any interest the First Amendment seeks to
protect. Such a transaction does not involve the communication of an idea from one person to
another. Neither does it affect the political process, provide information on matters of public
importance, contribute to the exchange of ideas or otherwise concern speech within the
intendment of the First Amendment.
____________________

1
NRS 205.465: It is unlawful for any person to possess, sell or transfer any document for the purpose of
establishing a false status, occupation, membership, license or identity, for himself or any other person.
Cf. Culinary Workers v. Court, 66 Nev. 166, 207 P.2d 990 (1949).
[Headnotes 1, 2]
It is not an abridgment of free speech to make a course of conduct illegal merely because
the conduct was in part evidenced by language, either spoken, written or printed. Giboney v.
Empire Storage Co., 336 U.S. 490 (1949). It is evident that the challenged statute was
promulgated within the police power of this State, furthers a substantial governmental interest
and is unrelated to the suppression of free expression. United States v. O'Brien, 391 U.S. 367
(1968). Consequently, its validity must be tested by those standards applicable to criminal
statutes in general. The First Amendment simply is not involved.
[Headnote 3]
2. The contention that the words of NRS 205.465 are imprecise and vague is specious.
Without question, the statute notifies the reader that a sale of false identification cards is
proscribed. United States v. Goeltz, 513 F.2d 193 (10th Cir. 1975). And, since the statute
furthers an important governmental interest in preventing fraud which is unrelated to the
suppression of free expression, the assertion of overbreadth is inapposite in this context.
[Headnote 4]
3. Equally without substance is the contention that the statute imposes a criminal penalty
in the absence of unlawful intent. It prohibits only the sale, transfer or possession of a
document for the purpose of establishing a false identity. The word purpose denotes a
willful intent just as the word false denotes an unlawful application.
Affirmed.
Batjer, C. J., and Mowbray, Gunderson, and Manoukian, JJ., concur.
____________
93 Nev. 285, 285 (1977) Stickney v. State
ROBERT LYNN STICKNEY, Appellant, v. THE
No. 9109
May 23, 1977 564 P.2d 604
Appeal from judgments of conviction; Second Judicial District Court, Washoe County;
Peter I. Breen, Judge.
Defendant was convicted before the district court of robbery and rape, and he appealed.
and rape, and he appealed. The Supreme Court held that: (1) defendant was not prejudiced by
unsolicited, vague references to unrelated criminal activity made by defense witness during
cross-examination, in view of fact that trial court excused jury and admonished witness to
refrain from such references, and in view of fact that defense counsel elected not to have jury
admonished; (2) defendant was not prejudiced by reference made by state witness to
defendant's alleged prior prosecution for arson, which prosecution had not in fact occurred, in
view of fact that jury was advised that arson trial had not occurred and admonished to
disregard the reference; and (3) evidence sustained conviction.
Affirmed.
William N. Dunseath, Public Defender, and Michael B. McDonald, Deputy Public
Defender, Washoe County, for Appellant.
Larry R. Hicks, District Attorney, and John L. Conner, Deputy District Attorney, Washoe
1. Criminal Law.
In prosecution for robbery and rape, defendant was not prejudiced by unsolicited, vague references to
unrelated criminal activity made by defense witness during cross-examination, in view of fact that trial
court excused jury and admonished witness to refrain from such references, and in view of fact that
defendant's counsel elected not to have the jury admonished.
2. Criminal Law.
In prosecution for robbery and rape, defendant was not prejudiced by reference made by state witness to
defendant's alleged prior prosecution for arson, which prosecution had not in fact occurred, in view of fact
that jury was advised that arson trial had not occurred and admonished to disregard the reference.
3. Rape; Robbery.
Evidence in prosecution for robbery and rape sustained conviction.
OPINION
Per Curiam:
Stickney stands convicted of robbery and rape. He asks that we void the judgments and
sentences entered upon jury verdicts because of vague references, during trial, to his other
unrelated criminal activity.
[Headnote 1]
Two such references were made by his main alibi witness called in defense. During
cross-examination by the prosecutor she made reference to Stickney being "in jail for
something else."
she made reference to Stickney being in jail for something else. Shortly thereafter she
stated that Stickney was picked up in New York to go to jail. The prosecutor did not solicit
such comments. The court excused the jury and admonished the witness to refrain from such
references. Defense counsel elected not to have the jury admonished. In these circumstances
we do not perceive prejudicial error. Allen v. State, 91 Nev. 78, 530 P.2d 1195 (1975).
[Headnote 2]
A third reference, this time by a rebuttal witness for the State, was that the witness had no
discussions with Stickney because I never saw Mr. Stickney after that, only during his arson
trial in Wellsburg. . . . An arson trial had not occurred. The jury was so advised and
admonished to disregard the reference. The defense motion for a mistrial was denied. We are
not willing to presume that the jury failed to follow the court's admonition.
[Headnote 3]
Our review of the record reveals an abundance of evidence to support Stickney's guilt of
the crimes charged, although denied by Stickney himself. The inadvertent references to other
possible criminal activity were blurted out by the mentioned witnesses and did not, in our
view, affect a substantial right of the accused. NRS 47.040.
Affirmed.
____________
93 Nev. 287, 287 (1977) Jones v. State
BENJAMIN D. JONES, Appellant, v. THE STATE
No. 9357
May 23, 1977 564 P.2d 605
Appeal from judgment of conviction, First Judicial District Court, Carson City; Frank B.
Gregory, Judge.
By a judgment of the district court the defendant was convicted of possession of a
controlled substance and he appealed. The Supreme Court held that: (1) since nothing showed
that informer might have been a material witness on issue of guilt court properly denied
motion to compel his production; (2) in view of defense witness' explanation of
circumstances of alleged conviction and fact that he admitted two other prior felony
convictions, there was no reversible error because State asked such witness whether he had
been convicted of a felony which it could not prove; and {3) the reading of a small portion
of the habitual criminal charge to jury was harmless error.
93 Nev. 287, 288 (1977) Jones v. State
could not prove; and (3) the reading of a small portion of the habitual criminal charge to jury
was harmless error.
Affirmed.
Rodlin Goff, State Public Defender, Carson City, for Appellant.
Robert List, Attorney General, Carson City, for Respondent.
1. Criminal Law.
Where defendant was on trial for possession of controlled substance because of facts witnessed at the
scene by officers acting pursuant to an informer's tip and nothing in record disclosed that informer might
have been a material witness on issue of guilt, trial court properly denied defendant's motion to compel
production of informer.
2. Criminal Law.
Although it is permissible to impeach a witness by evidence of criminal conviction, Supreme Court does
not condone use of cross-examination as subterfuge to blacken witness' character by insinuating criminal
convictions which cannot be proved. NRS 50.095, subd. 1.
3. Criminal Law.
Where defense witness, asked by State whether he had been convicted of a felony, fully explained
circumstances of alleged conviction, record indicated there was justification for State's belief that witness
had been convicted of crime, and witness admitted two other felony convictions, there was no reversible
error on ground that State asked defense witness concerning an alleged prior conviction it was not prepared
to prove in event of negative answer. NRS 50.095, subd. 1.
4. Criminal Law.
Because of evidence of defendant's guilt of possession of controlled substance was overwhelming and
jury knew of his status as a felon from fact that his present offense occurred in State Prison, error occurring
because a small portion of habitual criminal charge contained in information was inadvertently read to jury
in violation of statute was harmless. NRS 207.010, subd. 5; U.S.C.A.Const. Amend. 5.
OPINION
Per Curiam:
Convicted by jury for possession of a controlled substance in violation of NRS 453.336,
appellant contends the district court erred by (1) denying his pre-trial motion to compel the
State to produce an informant, (2) refusing to grant a mistrial because of the State's alleged
improper cross-examination of a defense witness, and (3) failing to grant a mistrial because a
portion of the habitual criminal charge contained in the information was read to the jury.
93 Nev. 287, 289 (1977) Jones v. State
portion of the habitual criminal charge contained in the information was read to the jury. We
disagree.
[Headnote 1]
1. Acting on an informant's tip, officers at the Nevada State Prison approached appellant's
cell, observed him with his arm in the toilet bowl, and found marijuana floating in the bowl
and on appellant's arm. Appellant was on trial because of these facts witnessed on the scene
by the officers, not because of the prior information received. Under these circumstances and
because nothing in the record discloses the informer might have been a material witness on
the issue of guilt, the district court properly denied appellant's motion to compel the
production of the informant. Miller v. State, 86 Nev. 503, 471 P.2d 213 (1970); Adams v.
State, 81 Nev. 524, 407 P.2d 169 (1965).
[Headnotes 2, 3]
2. Appellant next contends the district court should have granted him a mistrial because
the State asked a defense witness on cross-examination whether the witness had been
convicted of a felony (robbery) and was not prepared to prove such conviction in the event of
a negative answer. While it is permissible to impeach a witness by evidence of a criminal
conviction, NRS 50.095(1),
1
we do not condone the use of cross-examination as a
subterfuge to blacken a witness's character by insinuating criminal convictions which cannot
be proved. See State v. Gustafson, 432 P.2d 323 (Ore. 1967); Anno., 3 A.L.R.3d 965 (1965).
Here the witness fully explained the circumstances of the alleged conviction, and the record
indicates there was justification for the State's belief that the witness had been convicted of
the crime. In light of these facts and because the witness admitted two other felony
convictions, we find no reversible error. See State v. Thompson, 516 P.2d 42 (Ariz. 1973).
[Headnote 4]
3. Finally, appellant contends we must reverse his conviction because a small portion of
the habitual criminal charge contained in the information was inadvertently read to the jury by
the district court clerk, contrary to the mandate of NRS 207.010{5).2 Here, the appellant
exercised his 5th Amendment right and elected not to be a witness in his own behalf.
____________________

1
1. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime
is admissible but only if the crime was punishable by death or imprisonment in excess of 1 year under the law
under which he was convicted.
93 Nev. 287, 290 (1977) Jones v. State
207.010(5).
2
Here, the appellant exercised his 5th Amendment right and elected not to be a
witness in his own behalf. Any material error with respect to the reading of the criminal
charge would militate against a defendant's right to silence. The statute precludes any
reference to the habitual charge during the trial of the primary offense. A review of the prior
offenses makes it clear why appellant may have determined not to take the stand. The statute
speaks in terms of charge, and although there was reference to habitual criminal made by
the court clerk, none of the convictions were alluded to. Had they been, prejudicial error may
have occurred. See Fritz v. State, 86 Nev. 655, 474 P.2d 377 (1970). Because the evidence of
appellant's guilt is overwhelming, and since the jury knew of his status as a felon from the
fact that his present offense occurred in the Nevada State Prison, we deem the error harmless.
Coffman v. State, 93 Nev. 32, 559 P.2d 828 (1977); Hendee v. State, 92 Nev. 669, 557 P.2d
275 (1976).
Affirmed.
____________________

2
5. In proceedings under this section, each previous conviction shall be alleged in the accusatory pleading
charging the primary offense, but no such conviction may be alluded to on trial of the primary offense, nor may
any allegation of such conviction be read in the presence of a jury trying such offense.
____________
93 Nev. 290, 290 (1977) Kershaw v. State
MICHAEL KERSHAW, Appellant, v. THE
No. 9203
May 23, 1977 564 P.2d 607
Gregory, Judge.
Defendant was convicted in the district court on plea of guilty to escape and he appealed.
The Supreme Court held that: (1) reviewing court would not consider challenges to portions
of pre-sentence report which defendants did not challenge when sentence was imposed; (2)
claim of error that constitutional rights were violated because sentencing judge relied on
records of juvenile court was patently frivolous where at sentencing the judge stated he was
not basing his decision on the juvenile record.
Affirmed.
Robert List, Attorney General, D. Geno Menchetti, Chief Deputy Attorney General, and
Patrick B. Walsh, Deputy Attorney General, Carson City, for Respondent.
1. Criminal Law.
Reviewing court would not consider challenges to portions of pre-sentence report which were advanced
for the first time on appeal from conviction.
2. Criminal Law.
Claim of error that constitutional rights were violated because sentencing judge relied on records of
juvenile court was patently frivolous in view of trial judge's statement at time of sentencing that he was not
basing his decision on the juvenile record.
OPINION
Per Curiam:
The prosecuting attorney agreed to forego filing charges of felony narcotic offenses,
alleged to have been committed by Michael Kershaw in the Nevada State Prison. In exchange
for this agreement, Kershaw entered a solemn plea of guilty to a charge of having escaped
from prison, a violation of NRS 212.090.
1
He was sentenced to a five year term, to run
consecutively with sentences previously imposed for felony convictions in Arizona and in
Ohio.
[Headnote 1]
Kershaw, obviously disenchanted because the sentence was consecutive rather than
concurrent, has appealed claiming that his constitutional rights were violated because the
sentencing judge relied on (1) an inaccurate pre-sentence report; and, (2) records of the
juvenile court which showed that Kershaw, as a juvenile, had committed a number of
felony offenses.
[Headnote 2]
When sentence was imposed, the trial judge declined to consider portions of the
pre-sentence report which Kershaw then challenged.
____________________

1
NRS 212.090 provides in part: 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 punished:
. . . .
(b) . . . by imprisonment in the state prison for not less than 1 year nor more than 10 years.
challenged. We decline to consider challenges to other portions of the report, which are now
advanced for the first time. Moser v. State, 91 Nev. 809, 544 P.2d 424 (1975). Cf. Thomas v.
State, 88 Nev. 382, 498 P.2d 1314 (1972). Furthermore, at sentencing, the district judge
stated: I am not basing my decision on the juvenile record. Thus, in the context presented,
we consider Kershaw's claims of error as being patently frivolous. Burks v. State, 92 Nev.
670, 557 P.2d 711 (1976). Cf. Tollett v. Henderson, 411 U.S. 258 (1973).
Affirmed.
____________
93 Nev. 292, 292 (1977) Passarelli v. State
ANTHONY FREDERICK PASSARELLI, Appellant, v.
No. 9054
May 23, 1977 564 P.2d 608
Goldman, Judge.
The district court found defendant guilty of second degree murder, and he appealed. The
Supreme Court held that (1) death of witness prior to trial was no basis for excluding her
testimony given at preliminary hearing; (2) alleged unreliability of said witness was not
ground for excluding her testimony, but merely went to her credibility and the weight to be
given her testimony, which were determinations for the trier of fact; (3) the court did not
abuse its discretion in admitting said witness' testimony after balancing its prejudicial effect
against its probative value; and (4) even if the court, after defendant at trial introduced
preliminary hearing testimony of another unavailable witness to the effect that defendant had
never told her he was going to dust the victim, erred in allowing the State to call a detective
who testified that the witness had given a contrary statement to him, the jury's verdict finding
defendant guilty of second degree murder was supported by other overwhelming evidence of
guilt and thus would not be disturbed on appeal.
Affirmed.
Cohen and Terry, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George Holt, District Attorney, H.
District Attorney, H. Leon Simon and Wiliiam Koot, Deputy District Attorneys, Clark County,
for Respondent.
1. Criminal Law.
Death of witness prior to trial was no basis for excluding her testimony given at preliminary hearing.
NRS 51.055, subd. 1(c), 51.325, subd. 1.
2. Criminal Law.
Alleged unreliability of witness who testified at preliminary hearing but died prior to trial was not ground
for excluding her preliminary hearing testimony, but merely went to her credibility and the weight to be
given her testimony, which were determinations for the trier of fact.
3. Criminal Law.
Decision to admit testimony of deceased witness given at preliminary hearing, after balancing its
prejudicial effect against its probative value, was addressed to the sound discretion of the trial court.
4. Criminal Law.
Even if the district court, after the defendant at trial introduced preliminary hearing testimony of an
unavailable witness to the effect that defendant had never told her he was going to dust the murder
victim, erred in allowing the State to call a detective who testified that the witness had given a contrary
statement to him, the jury's verdict finding defendant guilty of second degree murder was supported by
other overwhelming evidence of guilt and thus would not be disturbed on appeal. NRS 51.325, subd. 1.
5. Criminal Law.
It is not error to refuse to give an instruction when the law encompassed therein is substantially covered
by another instruction given to the jury.
OPINION
Per Curiam:
Convicted by jury of second degree murder, appellant contends the district court erred by
(1) admitting into evidence one Ondra Passarelli's preliminary hearing testimony, (2)
admitting into evidence a witness's prior inconsistent statement, and (3) refusing to give two
instructions proposed by appellant. We disagree.
[Headnotes 1-3]
1. Appellant contends Ondra Passarelli's testimony given at his preliminary hearing
should not have been read to the jury because her death prior to trial precluded the jury's
observation of her demeanor on the stand, she was an unreliable witness, and the danger of
prejudice outweighed the probative value of her testimony.
value of her testimony. However, Ondra's death is no basis for excluding such evidence. NRS
51.325(1)
1
and 51.055(1)(c).
2
Ondra's alleged unreliability is not grounds for excluding the
evidence, but merely goes to her credibility and the weight to be given her testimony which
are determinations for the trier of fact. King v. State, 87 Nev. 537, 490 P.2d 1054 (1971).
Finally, the decision to admit Ondra's testimony given at the preliminary hearing after
balancing its prejudicial effect against its probative value is one addressed to the sound
discretion of the trial court. Halbower v. State, 93 Nev. 212, 562 P.2d 485 (1977). Here, we
perceive no abuse of discretion in admitting Ondra's testimony.
2. At appellant's preliminary hearing, one Reggie Gregg testified appellant had never told
her he was going to dust the victim. Gregg was confronted with a statement previously
given to law enforcement officials which was contrary to this testimony, and appellant's
counsel extensively cross-examined her regarding the circumstances of the prior inconsistent
statement. At trial, Gregg being declared an unavailable witness within the meaning of NRS
51.055(1)(d),
3
her preliminary hearing testimony was admitted into evidence under the
former testimony exception to the hearsay rule. NRS 51.325(1).
4
The State then called
Detective McGuckin of the Las Vegas Metropolitan Police Department who testified Gregg
had indeed made the prior inconsistent statement to him.
[Headnote 4]
Appellant contends the district court erred by admitting McGuckin's testimony into
evidence for the truth of the matter asserted because Gregg was not available at trial for
cross-examination.
____________________

1
Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition
taken in compliance with law in the course of another proceeding, is not inadmissible under the hearsay rule if:
1. The declarant is unavailable as a witness; . . .

2
NRS 51 055(1)(c) provides:
1. A declarant is unavailable as a witness' if he is:
. . .
(c) Unable to be present or to testify at that hearing because of death or then existing physical or mental
illness or infirmity; . . .

3
NRS 51.055(1)(d) provides:
1. A declarant is unavailable as a witness' if he is:
. . .
(d) Absent from the hearing and beyond the jurisdiction of the court to compel appearance and the
proponent of his statement has exercised reasonable diligence but has been unable to procure his attendance or
to take his deposition.

4
Supra note 1.
asserted because Gregg was not available at trial for cross-examination. Even were we
inclined to accept appellant's argument, the jury's verdict is supported by other overwhelming
evidence of appellant's guilt and thus will not be disturbed on appeal. Coffman v. State, 93
Nev. 32, 559 P.2d 828 (1977); Hendee v. State, 92 Nev. 669, 557 P.2d 275 (1976).
[Headnote 5]
3. Finally, appellant contends the district court erred by refusing to give two instructions
dealing with the weight and credibility which the jury should accord certain testimony.
However, the subject matter of those proposed instructions was treated in other instructions
given by the court. It is not error to refuse to give an instruction when the law encompassed
therein is substantially covered by another instruction given to the jury.' Geary v. State, 91
Nev. 784, 793, 544 P.2d 417, 423 (1975); see also Layton v. State, 91 Nev. 363, 536 P.2d 85
(1975).
Affirmed.
5

____________________

5
The Governor, pursuant to Article IV, 4 of the Constitution, designated District Judge Peter I. Breen to sit
for Mr. Justice Zenoff, who voluntarily disqualified himself and took no part in this decision.
____________
93 Nev. 295, 295 (1977) Higuera v. State
RAYMOND RICHARD HIGUERA, Appellant, v.
No. 9434
May 23, 1977 564 P.2d 610
Appeal from judgment of conviction, Ninth Judicial District Court, Douglas County; Noel
E. Manoukian, Judge.
Defendant was convicted, on guilty plea, before the district court of possession of a
controlled substance, and he appealed. The Supreme Court held that record established that
plea was voluntary, not coerced and not the result of a promise of leniency.
Affirmed.
Robert List, Attorney General, Carson City; Steven D. McMorris, District Attorney,
Douglas County, for Respondent.
93 Nev. 295, 296 (1977) Higuera v. State
Criminal Law.
Record established that accused's guilty plea to possession of a controlled substance was voluntary, not
coerced and not the result of a promise of leniency and that accused understood nature of charge,
consequences of his plea and knowingly and understandingly waived right to trial by jury, right to confront
his accusers and privilege against self-incrimination.
OPINION
Per Curiam:
Appellant was charged by information with possession of a controlled substance, a felony
under NRS 453.336, and furnishing a controlled substance, a felony under NRS 453.321. In
return for the dismissal of the charge of furnishing a controlled substance, appellant entered a
solemn plea of guilty to the possession charge. In this appeal, submitted pursuant to Anders v.
California, 386 U.S. 738 (1967), and Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969),
appellant contends his guilty plea was not made voluntarily and intelligently. We disagree.
The record affirmatively shows the plea was voluntary, not coerced, and not the result of a
promise of leniency, and that appellant, who was represented by counsel, understood the
nature of the charge, the consequences of his plea, and knowingly and understandingly
waived the right to trial by jury, the right to confront his accusers, and the privilege against
self-incrimination. Under these circumstances, appellant's contention is without merit.
Heffley v. Warden, 89 Nev. 573, 516 P.2d 1403 (1973); Higby v. Sheriff, 86 Nev. 774, 476
P.2d 959 (1970).
Affirmed.
1

____________________

1
The Governor, pursuant to Article IV, 4 of the Constitution, designated District Judge William P. Beko to
sit for Mr. Justice, Manoukian, who voluntarily disqualified himself and took no part in the decision.
____________
93 Nev. 297, 297 (1977) Jones v. Sheriff
JAMES JONES, Appellant, v. SHERIFF, CLARK
No. 9786
June 15, 1977 565 P.2d 325
Defendant, charged with rape committed with use of a deadly weapon and the infamous
crime against nature, also committed with use of a deadly weapon, filed pretrial habeas
corpus petition challenging sufficiency of the evidence to establish probable cause. The
district court denied petition and petitioner appealed. The Supreme Court held that holding
gun to prosecuting witness' head while demanding that she perform both oral and vaginal
intercourse and continuing to hold such gun against her head while she was performing such
acts equated to the use of force.
Affirmed.
Harry M. Reid, and Manos & Cherry, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and Gerald
W. Hardcastle, Deputy District Attorney, Clark County, for Respondent.
Rape; Sodomy.
Holding gun to prosecuting witness' head while demanding that she perform both oral and vaginal
intercourse and holding gun against her head while she performed such acts equated to the use of force, for
purpose of prosecution for rape committed with use of a deadly weapon and the infamous crime against
nature, also committed with use of a deadly weapon. NRS 171.206, 193.165, 200.363, 201.190.
OPINION
Per Curiam:
At the conclusion of a preliminary examination James Jones was ordered to stand trial for
(1) rape (NRS 200.363) committed with the use of a deadly weapon (NRS 193.165); and, (2)
the infamous crime against nature (NRS 201.190), which was also committed with the use of
a deadly weapon (NRS 193.165).
93 Nev. 297, 298 (1977) Jones v. Sheriff
A pretrial petition for a writ of habeas corpus contended the prosecutor failed to meet the
burden, imposed by NRS 171.206, of producing sufficient evidence to establish probable
cause that Jones had committed the charged offenses. The district judge considered and
denied the habeas petition.
Jones has appealed, arguing that the charges cannot stand because, according to the record,
there is no showing that he used force to compel the prosecuting witness to engage in the sex
acts. Jones's claim is patently frivolous. Burks v. State, 92 Nev. 670, 557 P.2d 711 (1976).
On August 18, 1976, the prosecuting witness voluntarily accompanied Jones to his
apartment for the limited purpose of sharing a joint of marijuana. During the time the
smoking was in progress Jones excused himself and went to his bedroom. Shortly thereafter
he called to the prosecutrix that he wanted to show her something. When she entered the
bedroom Jones met her at the door and placed a gun against her head. He demanded that she
perform both oral and vaginal intercourse. Jones continued to hold the gun against her head
while she performed those acts. When she was permitted to leave the apartment she notified
the authorities, who arrested Jones and initiated this prosecution.
In our view, using a gun in such manner equates to the use of force. See Dinkens v. State,
92 Nev. 74, 546 P.2d 228 (1976). Cf. Fitzpatrick v. State, 93 Nev. 21, 558 P.2d 630 (1977),
and the cases cited in State v. Havas, 91 Nev. 611, 540 P.2d 1060 (1975). Accordingly, we
affirm.
____________
93 Nev. 298, 298 (1977) Walker v. Sheriff
BERNARD WALKER, Appellant, v. SHERIFF,
No. 9761
June 15, 1977 565 P.2d 326
Accused filed a pretrial petition for a writ of habeas corpus contending that evidence
adduced by the prosecutor failed to establish probable cause that robbery had been
committed. The district court denied habeas and accused appealed. The Supreme Court held
that taking a wallet and removing its contents could constitute robbery, rather than
attempted robbery, even if accused was apprehended at the scene of the crime.
Supreme Court held that taking a wallet and removing its contents could constitute robbery,
rather than attempted robbery, even if accused was apprehended at the scene of the crime.
Affirmed.
Morgan D. Harris, Public Defender, and R. Michael Gardner, Deputy Public Defender,
Robbery.
Taking of wallet and removal of its contents could constitute robbery, rather than attempted robbery,
even if accused was apprehended at scene of crime. NRS 200.380.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Bernard Walker was bound over for trial
on a charge of robbery, a felony under NRS 200.380. A pretrial petition for a writ of habeas
corpus contended the evidence adduced by the prosecuting attorney failed to establish that a
robbery had probably been committed and that, instead, the evidence showed the alleged
crime was merely an attempt because the asportation element was absent. The district court
denied habeas and in this appeal Walker reasserts the same contention.
Among the evidence the district attorney proffered was the following. The victim testified
that, upon walking into a restroom at the MGM Grand Hotel, he was attacked, beaten, and
dragged into an adjacent storage room by Walker and another man. He further testified that
his wallet was taken from his person and at least $75 was removed. A security guard who
interrupted the alleged crime testified he saw the opened wallet on a shelf behind the men.
Walker contends that since he was apprehended at the scene there was no asportation of
the victim's money; therefore, he argues that under our decision in State v. Fouquette, 67 Nev.
505, 221 P.2d 404 (1950), he can only be charged with attempted robbery, a crime of lesser
magnitude. His reliance on Fouquette is misplaced. That case dealt, not with the problem of
when an attempt becomes a robbery, but with when a robbery concludes for purposes of
applying the felony-murder doctrine {i.e., whether a killing occurred during the
"perpetration" of the robbery or after its conclusion).
when a robbery concludes for purposes of applying the felony-murder doctrine (i.e., whether a
killing occurred during the perpetration of the robbery or after its conclusion). The
Fouquette court ruled that the robbery was still in progress until the asportation of the
property had been completed; that is, until the robber had made an escape.
The problem of when the asportation arises is a different one and the law is clear. In
discussing asportation as it relates to larceny, Perkins states that this technical requirement
may be satisfied by a very slight movement. R. Perkins, Criminal Law 263 (2d ed. 1969). On
weaker facts, the California Supreme Court held that the taking of [the victim's] wallet
constituted a robbery even though the defendant discarded it as soon as he discovered it was
empty. People v. Carroll, 463 P.2d 400, 402 (Cal. 1970). Here the defendant not only took
the wallet from the victim, but he also removed some of its contents. Compare Jensen v.
Sheriff, 89 Nev. 123, 126, 508 P.2d 4, 5 (1973), a kidnapping case, where we wrote that it
was the fact, not the distance, of forcible removal . . . that constitutes [the offense].
Affirmed.
____________
93 Nev. 300, 300 (1977) Robertson v. Sheriff
LANE ROBERTSON, Appellant, v. SHERIFF,
No. 9704
June 15, 1977 565 P.2d 647
Petitioner, indicted on five counts of robbery with use of a deadly weapon and one count
of possession of stolen credit cards, filed pretrial petition for writ of habeas corpus. The
district court denied habeas and petitioner appealed. The Supreme Court held that (1) ski
masks and stolen credit cards seized in search of petitioner's apartment supported reasonable
inference that petitioner participated in robberies of bar and customers; (2) money taken from
cash register was taken from presence of bartender who, although he was in the restroom
throughout the robbery, was prevented by fear from retaining possession of the money.
Affirmed.
Douglas Clark, Deputy District Attorney, Clark County, for Respondent.
1. Robbery.
Ski masks which were found in petitioner's apartment and which were identified as the same type used by
perpetrators of robbery of bar and customers, and identification and credit cards taken from customers,
supported reasonable inference that petitioner participated in the robberies. NRS 193.165, 200.380,
205.730.
2. Robbery.
Money taken from cash register of bar was taken from presence of bartender who was in the restroom
throughout the robbery but was prevented by fear from retaining possession of the money. NRS 200.380.
OPINION
Per Curiam:
A True Bill, returned by the Clark County Grand Jury, resulted in Lane Robertson being
indicted on five counts of robbery with use of a deadly weapon (NRS 200.380 and 193.165)
and one count of possession of stolen credit cards (NRS 205.730). A pretrial petition for a
writ of habeas corpus contended the indictment must be dismissed because (1) there was
insufficient evidence presented to the grand jury to establish probable cause to believe he
participated in the alleged robbery; and, (2) an element of robbery is absent in the facts as
presented by the prosecuting attorney. Habeas was denied and Robertson has appealed.
The record establishes that on December 21, 1976, two or three men wearing ski masks
entered the Nite-Twain Bar in Las Vegas, robbed the customers, and took over $1500 from
the cash register. The bartender was in the men's room when the robbers entered the bar; he
heard the robbery in progress and remained in the men's room out of fear.
[Headnote 1]
1. A search of Robertson's apartment, made pursuant to a warrant issued seven weeks
after the incident, resulted in the seizure of three ski masks, later identified as the same type
used by the perpetrators of the crimes, and sixteen identification and credit cards taken from
the victims. When Robertson was booked the police found another credit card taken at the
Nite-Twain Bar.
booked the police found another credit card taken at the Nite-Twain Bar. Such evidence
supports a reasonable inference that Robertson participated in the robberies.
[Headnote 2]
2. In support of his second contention Robertson argues that, since the bartender was in
the restroom throughout the incident, the $1500 was not taken from the person or presence
(of the bartender) as required by NRS 200.380;
1
therefore, the bartender was never robbed.
We cannot ascribe to such a narrow definition of presence. The generally accepted
definition states that [a] thing is in the presence of a person, in respect to robbery, which is
so within his reach, inspection, observation or control, that he could, if not overcome by
violence or prevented by fear, retain his possession of it. Commonwealth v. Homer, 127
N.E. 517, 520 (Mass. 1920), cited with approval in United States v. Dixon, 469 F.2d 940 n.
22 (D.C. Cir. 1972), and quoted in R. Perkins, Criminal Law 282 (2d ed. 1969). Here, the
record supports the trial judge's determination that the bartender was prevented by fear from
retaining possession of the money; and, that it was, therefore, taken from the bartender's
presence.
Affirmed.
____________________

1
NRS 200.380 provides in part:
Robbery is the unlawful taking of personal property from the person of another, or in his presence, against
his will, by means of force or violence or fear of injury immediate or future, to his person or property, or the
person or property of a member of his family, or of anyone in his company at the time of the robbery.
(Emphasis added.)
____________
93 Nev. 302, 302 (1977) Mills v. Sheriff
JOHN FREDERICK MILLS, III, Appellant, v. SHERIFF,
CARSON CITY, NEVADA, Respondent.
No. 9702
June 15, 1977 565 P.2d 327
Appeal from order denying pretrial petition for writ of habeas corpus, First Judicial
District Court, Carson City; Frank B. Gregory, Judge.
Defendant at conclusion of preliminary examination was ordered to stand trial for
possession of marijuana. From an order of the district court denying pretrial petition for writ
of habeas corpus, the defendant appealed. The Supreme Court held that the evidence was
insufficient to warrant prosecution for possession of marijuana.
held that the evidence was insufficient to warrant prosecution for possession of marijuana.
Horace R. Goff, State Public Defender, and Don Aimar, Deputy Public Defender, Carson
for Respondent.
Where the only evidence suggesting that defendant exercised dominion and control over marijuana was
given by two correctional officers employed at the state's prison who testified that defendant, an inmate at
the facility, was sitting on another inmate's bed in a dorm that was accessible to between 30 and 40
prisoners, and that marijuana was discovered in a crumpled cigarette package located near where defendant
was seated, and neither officer observed defendant in actual physical possession of the package, evidence
was insufficient to warrant prosecution for possession of marijuana. NRS 171.206, 453.336.
OPINION
Per Curiam:
At the conclusion of a preliminary examination John Frederick Mills, III, was ordered to
stand trial for possession of a controlled substance (marijuana), a felony under NRS 453.336.
Thereafter, a pretrial petition for a writ of habeas corpus contended there was insufficient
evidence to establish probable cause that Mills had committed the crime. The district judge
denied habeas relief and Mills has appealed.
The only evidence suggesting that Mills exercised dominion and control over the
contraband was given by two correctional officers employed at the state prison. The thrust of
their testimony was: that Mills, an inmate at the facility, was sitting on another inmate's bed
in a dorm that was accessible to between thirty and forty prisoners; and, the marijuana was
discovered in a crumpled cigarette package located near where Mills was seated. Neither
officer observed Mills in actual physical possession of the package.
We deem such evidence insufficient to meet the probable cause requirement delineated in
NRS 171.206. See Glispey v. Sheriff, 89 Nev. 221, 223, 510 P.2d 623, 624 (1973), where we
said possession may be imputed when the contraband is found in a location which is
immediately and exclusively accessible to the accused and subject to [his] dominion and
control."
found in a location which is immediately and exclusively accessible to the accused and
subject to [his] dominion and control. (Emphasis added.) Here, Mills's access to the dorm
was not exclusive, nor did he maintain control over the other inmate's bed. Accordingly, we
reverse with instructions to grant the writ of habeas corpus. Cf. Hammond v. Sheriff, 91 Nev.
176, 532 P.2d 1030 (1975).
____________
93 Nev. 304, 304 (1977) Ginnochio v. Cockeye Land & Livestock Co.
L. F. GINNOCHIO and WILLIAM MONTGOMERY, Appellants, v.
COCKEYE LAND AND LIVESTOCK CO., INC., Respondent.
No. 8688
June 15, 1977 565 P.2d 328
Appeal from judgment, Second Judicial District Court, Washoe County; John E. Gabrielli,
Judge.
In a suit to recover the unpaid purchase price of hay sold to defendants, defendants
appealed from the action of the district court in ruling that an answer to a request to admit
certain matters was insufficient and that the request for admissions would be deemed
admitted as true. The Supreme Court held that the trial court's action was proper.
Affirmed.
Gordon C. Shelley, Reno, for Appellants.
McDonald, Carano, Wilson, Bergin & Bible, Reno, for Respondent.
Pretrial Procedure.
Where defendants in civil action refused to answer valid request for admissions, trial court acted properly
in holding that such request would be deemed admitted as true. NRCP 36, 36(a).
OPINION
Per Curiam:
Respondent sought and recovered the unpaid purchase price of hay sold to appellants.
During pretrial discovery, respondent requested appellants to admit, pursuant to NRCP 36,
that certain weight certificates represented amounts of respondent's hay sold to appellants.
Without specifically addressing each weight certificate as requested, appellants untimely
responded they were unable to admit or deny the matter because the certificates were
illegible.
93 Nev. 304, 305 (1977) Ginnochio v. Cockeye Land & Livestock Co.
weight certificate as requested, appellants untimely responded they were unable to admit or
deny the matter because the certificates were illegible. Not only was this answer evasive, it
was untruthful in light of appellant Montgomery's testimony that he could in fact read some
of the certificates. The trial court ruled the answer was insufficient and granted respondent's
motion that the matter contained in the request for admissions be deemed admitted as true.
Appellants contend this was error. We disagree.
Answers to requests for admissions which are untruthful and not set forth with specificity
do not comply with the requirements of NRCP 36. Dodd v. Cowgill, 85 Nev. 705, 463 P.2d
482 (1969). When a party fails to provide an answer which comports with the rule, the trial
court can properly consider the requested matter admitted as true. NRCP 36. See Western
Mercury, Inc. v. The Rix Co., 84 Nev. 218, 438 P.2d 792 (1968). The record discloses
respondent's request called for matters which appellants were obviously able to admit, deny,
or explain. By refusing to answer the request as a whole, without some attempt to admit or
deny in part, appellants failed to comply with NRCP 36. [W]hen good faith requires that a
party qualify his answer or deny only a part of the matter of which an admission is requested,
he shall specify so much of it as is true and qualify or deny the remainder. NRCP 36(a).
Under such circumstances, the trial court properly ruled the matter admitted.
Affirmed.
____________
93 Nev. 305, 305 (1977) High v. State, Dep't of Motor Vehicles
FERDINAND GLENN HIGH, Appellant, v. STATE OF NEVADA, DEPARTMENT OF
MOTOR VEHICLES, and HOWARD HILL, Director of Department of Motor Vehicles,
Respondents.
No. 8807
June 15, 1977 565 P.2d 329
Appeal from judgment, Second Judicial District Court, Washoe County; James J. Guinan,
Judge.
Applicant for renewal of his driver's license appealed decision of the district court which
had affirmed decision of Department of Motor Vehicles not to give applicant a driving test
following his failure to pass eye test. The Supreme Court held that even if driving test had
been administered, Department of Motor Vehicles would have been precluded by statute from
issuing applicant a license due to his failure to pass the necessary eye examination and
thus Department did not abuse its discretion by refusing applicant's request for a driving
test.
from issuing applicant a license due to his failure to pass the necessary eye examination and
thus Department did not abuse its discretion by refusing applicant's request for a driving test.
Affirmed.
Guild, Hagen & Clark, Reno, for Appellant.
Robert List, Attorney General; Cathy Valenta-Weise, Deputy Attorney General, Carson
City, for Respondents.
1. Administrative Law and Procedure.
Function of Supreme Court in reviewing decision of an administrative agency is to ascertain whether that
body acted arbitrarily or capriciously and, therefore, abused its discretion.
2. Automobiles.
Even if driving test had been administered, Department of Motor Vehicles would have been precluded by
statute from issuing applicant a license due to his failure to pass the necessary eye examination and thus
Department did not abuse its discretion by refusing applicant's request for a driving test. NRS 483.250,
subd. 6, 483.380, subd. 1.
OPINION
Per Curiam:
Appellant sought the renewal of his driver's license, but failed to pass the eye test required
by NRS 483.380(1).
1
Despite this deficiency, appellant requested that respondents give him
a driving test. After a hearing on the matter, respondents refused his request, and the district
court affirmed respondents' decision. Here, appellant contends respondents' refusal to test his
ability to drive is arbitrary, capricious, and an abuse of discretion. We disagree.
[Headnotes 1, 2]
The function of this court in reviewing the decision of an administrative agency is to
ascertain whether that body acted arbitrarily or capriciously and, therefore, abused its
discretion. Bd. Chiropractic Exam'rs v. Babtkis, 83 Nev. 385, 387, 432 P.2d 49S, 499
{1967).
____________________

1
NRS 483.380(1) provides in pertinent parts:
1. . . . Every license shall be renewable on or during a 90-day period before its expiration upon application
and payment of the required fee, and . . . each applicant for renewal shall appear before a driver's license
examiner and successfully pass a test of his eye-sight. . . .
P.2d 498, 499 (1967). Even if the driving test was administered, respondents would be
precluded by statute from issuing appellant a license due to his failure to pass the necessary
eye examination. NRS 483.250(6).
2
Under such circumstances, respondents did not abuse
their discretion by refusing appellant's request.
Affirmed.
____________________

2
The department shall not issue any license under the provisions of NRS 483.010 to 483.630, inclusive:
. . .
6. To any person who is required by NRS 483.010 to 483.630, inclusive, to take an examination, unless
such person has successfully passed such examination.
____________
93 Nev. 307, 307 (1977) Glenn v. Sheriff
KATHLEEN GLENN, Appellant, v. SHERIFF,
No. 9753
June 15, 1977 565 P.2d 648
Petitioner who was ordered to stand trial for felonious sale of a controlled substance
petitioned for writ of habeas corpus on ground there was insufficient evidence to establish
probable cause that she committed the offense. The district court denied habeas and petitioner
appealed. The Supreme Court held that petitioner who was present at table when hashish was
weighed and who answered buyer's question as to the price of the material was chargeable
with the sale.
Affirmed.
Petitioner who was one of five people gathered around kitchen table where hashish was
weighed and who answered buyer's question as to price of the material was
chargeable with the "sale" of controlled substance.
kitchen table where hashish was weighed and who answered buyer's question as to price of the material was
chargeable with the sale of controlled substance. NRS 453.161, 453.321.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Kathleen Glenn was ordered to stand trial
for the felonious sale of a controlled substance (hashish), in violation of NRS 453.321 and
453.161. A pretrial petition for a writ of habeas corpus contended there was insufficient
evidence to establish probable cause that Glenn committed the offense. Habeas was denied
and Glenn reasserts the contention in this appeal.
On March 23, 1976, Ralph Orduno, a Las Vegas Metropolitan police officer assigned to an
undercover narcotic detail, together with an informant, went to an apartment occupied by
Glenn and a woman by the name of Sue Linza. The stated purpose of the visit was to
purchase narcotics.
Approximately ten or fifteen minutes later Kenneth Konold arrived at the apartment. At
Konold's request, Linza brought scales from the back bedroom and the five people gathered
around the kitchen table. Konold weighed out two grams of what was represented to beand
later identified ashashish. Orduno asked Konold how much he was asking for the material;
however, Glenn responded to the query, stating that it was ten dollars per gram. Orduno
placed twenty dollars on the table, took the hashish, departed and subsequently initiated this
charge.
Glenn argues that we are compelled to rule that she is immune from the sale charge
because of our holding in Egan v. Sheriff, 88 Nev. 611, 503 P.2d 16 (1972). We do not agree.
In Egan we held that [t]he mere physical presence of [the accused] during the
negotiations and her statement of the price of a baggie may well subject her to criminal
charges; however, such participation is insufficient to establish probable cause that she made
a sale.' Id. at 614, 503 P.2d at 18. Glenn's activities are substantially different. While Egan
was present only at the negotiations, Glenn was present at the sale. While Egan quoted the
price at a place and time removed from the sale, Glenn did so immediately incident to the
sale. Egan manifested an intent to absent herself from the sale; however, Glenn, while seated
at the kitchen table, focused her attention on the transaction and watched the sale take
place.
on the transaction and watched the sale take place. Conceding there is no universal litmus to
determine probable cause in such cases, we feel an examination of the context in which
Glenn's participation occurred is akin to and satisfies the presence, companionship, and
conduct guidelines developed in Robertson v. Sheriff, 85 Nev. 681, 462 P.2d 528 (1969),
and its progeny. Accordingly, we affirm.
____________
93 Nev. 309, 309 (1977) Phillips v. Sheriff
TERRY LEE PHILLIPS, Appellant, v. SHERIFF,
No. 9729
June 15, 1977 565 P.2d 330
Appeal from order denying pre-trial petition for writ of habeas corpus. Eighth Judicial
District Court, Clark County, J. Charles Thompson, Judge.
Proceeding was instituted on pretrial petition for writ of habeas corpus. The district court
denied petition, and petitioner appealed. The Supreme Court, Manoukian, J., held that: (1)
dismissal of indictment on ground that preliminary examination had been dismissed due to
willful failure of prosecutor to comply with important procedural rules was not warranted
where case was originally dismissed, not as a sanction against prosecutor for any willful
failures to comply with rules, but because prosecutor, after exercising due diligence, was
unable to proceed due to absence of a necessary witness, and (2) though only legally
admissible evidence could be presented to grand jury, where particular statements in question
were dying declarations, they were admissible as such under another statute and, hence, there
was no error in presenting those declarations to grand jury.
Affirmed.
Howard Ecker, Las Vegas, for Appellant.
Dismissal of indictment on ground that preliminary examination had been dismissed due to willful failure
of prosecutor to comply with important procedural rules was not warranted where case
was originally dismissed, not as a sanction against prosecutor for any "willful
failures" to comply with rules, but because prosecutor, after exercising due diligence,
was unable to proceed due to absence of a necessary witness.
comply with important procedural rules was not warranted where case was originally dismissed, not as a
sanction against prosecutor for any willful failures to comply with rules, but because prosecutor, after
exercising due diligence, was unable to proceed due to absence of a necessary witness. DCR 21.
That district attorney was able to obtain a true bill from grand jury without testimony of an absent witness
did not, by itself, establish that such witness' testimony was unnecessary at time of previous preliminary
examination and, hence did not warrant dismissal of indictment on ground of willful failure of prosecutor
to comply with important procedural rules. DCR 21.
3. District and Prosecuting Attorneys.
No requirement is imposed upon a prosecuting attorney to offer gratuitous explanations of every legal
matter that may or may not become relevant to further prosecution of case.
4. Grand Jury.
Though only legally admissible evidence could be presented to grand jury, where particular statements in
question were dying declarations, they were admissible as such under another statute and, hence, there was
no error in presenting those declarations to grand jury. NRS 51.335, 172.135.
5. Grand Jury; Indictment and Information.
Record failed to support claims that evidence before grand jury, taken together, did not establish probable
cause to believe that an offense had been committed and that defendant had committed it, that chief trial
judge exceeded his authority in impanelment of grand jury, and that second grand jury impaneled in case
was illegal. NRS 172.155, subd. 1.
OPINION
By the Court, Manoukian, J.:
Pursuant to a True Bill by the Clark County Grand Jury, an indictment was filed charging
Terry Lee Phillips, and others, with murder (NRS 200.010; NRS 200.030) and robbery with
use of a deadly weapon in the commission of a crime (NRS 200.380; NRS 193.165). The
indictment was challenged with a pre-trial petition for a writ of habeas corpus wherein the
principal contention was that the district attorney, in prosecuting the case, showed a
conscious indifference to Phillips' rights. Appellant also contends that there was inadmissible
evidence presented to the grand jury and without such evidence, probable cause evaporates.
Both contentions were considered and rejected by the district court and are reasserted in this
appeal.
The State originally proceeded against Phillips by criminal complaint. The preliminary
examination, first scheduled for December 10, 1976, was continued at the prosecution's
request.
request. The deputy district attorney made a sworn declaration as permitted by Bustos v.
Sheriff, 87 Nev. 622, 491 P.2d 1279 (1971), stating that a necessary witness had been
subpoenaed but had failed to appear. On December 13, 1976, at the second scheduled
preliminary examination, the State was again unable to proceed, having learned in the interim
that the absent witness had fled the jurisdiction. The case was dismissed.
Phillips argues that our decision in Maes v. Sheriff, 86 Nev. 317, 468 P.2d 332 (1970),
requires a dismissal of the indictment because [a] new proceeding for the same offense . . . is
not allowable when the original proceeding has been dismissed due to the willful failure of
the prosecutor to comply with important procedural rules. Appellant contends there were
two such willful failures.
[Headnote 1]
First, he argues the inability of the State to proceed to preliminary examination constitutes
a violation of DCR 21 and bars any further proceedings. However, the record supports the
district judge's determination that the case was originally dismissed, not as a sanction against
the State for any willful failures to comply with DCR 21, but because the State, after
exercising due diligence, was unable to proceed. Therefore, Maes is inapposite, and this
proceeding on the indictment is permissible. Tellis v. Sheriff, 85 Nev. 557, 459 P.2d 364
(1969).
[Headnote 2]
Secondly, he contends that since the district attorney was later able to obtain a True Bill
without the missing witness's testimony, the witness was never really essential and the Bustos
declaration was necessarily false. A false Bustos declaration, the argument proceeds,
evidences a conscious indifference to his rights (forbidden by State v. Austin, 87 Nev. 81,
482 P.2d 284 (1971)), and, therefore, this subsequent proceeding is improper. A similar
argument was considered and rejected in Egan v. Sheriff, 88 Nev. 611, 503 P.2d 16 (1972).
Cf. Johnson v. Sheriff, 89 Nev. 304, 511 P.2d 1051 (1973). That the district attorney was able
to obtain a True Bill from the grand jury without the testimony of the absent witness does not,
by itself, establish that such witness's testimony was unnecessary at the time of the
preliminary examination.
[Headnotes 3, 4]
In support of his second contention, Phillips argues that inadmissible hearsay statements
were presented to the grand jury without it having been instructed as to the foundational
requirements for admissibility.
requirements for admissibility. He relies on Highers v. State, 337 P.2d 1112 (Okla.Crim.App.
1959), and Hammers v. State, 337 P.2d 1097 (Okla.Crim.App. 1959), for the proposition that
it is mandatory for the grand jury to be correctly instructed on the law by the prosecuting
attorney. The cases do not support the proposition. Highers and Hammers hold that the grand
jury may request advice on matters of law. This is the law in Nevada as well. Franklin v.
State, 89 Nev. 382, 513 P.2d 1252 (1973). However, the cases impose no requirement upon
the prosecuting attorney to offer gratuitous explanations of every legal matter that may or may
not become relevant to the further prosecution of the case. While it is true NRS 172.135
requires that only legally admissible evidence be presented to the grand jury, the particular
statements in question were dying declarations, which are admissible under NRS 51.335.
1
Therefore, we perceive no error in the presentation of these statements to the grand jury.
[Headnote 5]
Additionally, appellant has proffered the contention that the requirements of NRS
172.155(1)
2
were not met and that the then chief trial judge exceeded his authority in the
impanelment of the grand jury. Finally, he challenges the legality of the second Clark County
Grand Jury. These ancillary contentions, and such others raised, being without merit, are
rejected. See, Hardison v. Sheriff, 93 Nev. 64, 560 P.2d 148 (1977).
Affirmed.
____________________

1
The statute provides: A statement made by a declarant while believing that his death was imminent is not
inadmissible under the hearsay rule if the declarant is unavailable as a witness.

2
NRS 172.155(1) provides: The grand jury ought to find an indictment when all the evidence before them,
taken together, establishes probable cause to believe that an offense has been committed and that the defendant
has committed it.
____________
93 Nev. 313, 313 (1977) Sheriff v. McKinney
SHERIFF, CLARK COUNTY, NEVADA, Appellant,
v. WILLIAM McKINNEY, Respondent.
No. 9569
June 15, 1977 565 P.2d 649
A second pretrial petition for habeas relief was filed. The district court granted the habeas
petition, and sheriff appealed. The Supreme Court held that delay in docketing record on
appeal with Supreme Court, following denial of pretrial petition for writ of habeas corpus,
was not basis for finding of denial of right to speedy trial, in absence of demonstration of how
defense had been prejudiced, if at all, by such delay and also since petitioner had been free on
bail the entire time and had initiated the original delay and chose to wait more than two
months after his unverified habeas petition had been dismissed before filing a cognizable
petition, notwithstanding that the clerk of the district court may have been remiss in
transmitting record to Supreme Court.
Reversed.
Rimantas A. Rukstele, Deputy District Attorney, Clark County, for Appellant.
Kelly H. Swanson, Las Vegas, for Respondent.
1. Criminal Law.
In determining when a delay amounts to a denial of a defendant's right to a speedy trial, four factors are
considered, namely, the length of the delay, the reason for it, the defendant's assertion of his right and
resulting prejudice.
2. Criminal Law.
Delay in docketing record on appeal with Supreme Court, following denial of pretrial petition for writ of
habeas corpus, was not basis for finding of denial of right to speedy trial, in absence of demonstration of
how defense had been prejudiced, if at all, by such delay and also since petitioner had been free on bail the
entire time and had initiated the original delay and chose to wait more than two months after his unverified
habeas petition had been dismissed before filing a cognizable petition, notwithstanding that the clerk of
the district court may have been remiss in transmitting record to Supreme Court.
that the clerk of the district court may have been remiss in transmitting record to Supreme Court. NRS
34.370, subd. 3, 34.380, subd. 3, 193.165, 200.380.
OPINION
Per Curiam:
Ordered to stand trial for robbery and the use of a deadly weapon in the commission of a
crime (NRS 200.380; NRS 193.165), William McKinney filed a pretrial petition for a writ of
habeas corpus, which was denied by the district court on August 18, 1976. Pursuant to NRS
34.380(3), McKinney timely filed a notice of appeal; however, the record was not received by
the supreme court until December 2, 1976.
1

McKinney filed a second petition for habeas relief on February 8, 1977, contending the
delay which occurred between the time he filed his original notice of appeal and the time the
record on appeal was docketed with the supreme court resulted in the denial of his right to a
speedy trial and due process of law. The district judge granted the habeas petition and this
appeal followed.
[Headnote 1]
In determining when a delay amounts to a denial of a defendant's right to a speedy trial,
four factors are considered, namely, the length of the delay, the reason for it, the defendant's
assertion of his right, and resulting prejudice. Barker v. Wingo, 407 U.S. 514 (1972);
Sondergaard v. Sheriff, 91 Nev. 93, 531 P.2d 474 (1975).
[Headnote 2]
Here, McKinney has not demonstrated how his defense has been prejudiced, if at all, by
the delay in docketing the record on appeal with the supreme court. See Shack v. State, 288
N.E.2d 155 (Ind. 1972). In fact, McKinney has been free on bail the entire time; furthermore,
he had initiated the original delay and chose to wait more than two months after his
unverified petition had been dismissed before filing a cognizable petition. Under these
circumstances we are not prepared to charge the state with the sole responsibility for the
delay. Maiorca v. Sheriff, 87 Nev. 63, 482 P.2d 312 (1971). Cf.
____________________

1
In an unpublished order, filed December 6, 1976, we dismissed the appeal because McKinney's habeas
petition was not verified as required by NRS 34.370(3).
Morgan v. Sheriff, 92 Nev. 544, 554 P.2d 733 (1976), and cases cited therein.
Thus, although the clerk of the district court may have been remiss in transmitting the
record to the supreme court, we do not consider his fault alone to overbalance the other
considerations to which we have alluded. Sondergaard v. Sheriff, 91 Nev. at 95, 531 P.2d at
475. Cf. Coffman v. State, 93 Nev. 32, 559 P.2d 828 (1977).
Reversed.
____________
93 Nev. 315, 315 (1977) Balsamo v. Sheriff
VITO BALSAMO, Appellant, v. SHERIFF, CLARK
No. 9606
June 15, 1977 565 P.2d 650
Petitioner ordered to stand trial for obtaining money in an amount exceeding $100 under
false pretenses filed pretrial petition for writ of habeas corpus. The district court denied
habeas and petitioner appealed. The Supreme Court held that petitioner who agreed to
perform certain construction work and who, in order to purchase materials for the job,
obtained a check in the amount of $1,500 was chargeable with obtaining money by false
pretenses, as against petitioner's contention that the unkept promise to perform services
related to a future fact.
Affirmed.
Morgan D. Harris, Public Defender, and Robert B. Amundson, Deputy Public Defender,
False Pretenses.
Petitioner who agreed to perform certain construction work and who, in order to obtain materials for the
job, obtained a check in the amount of $1,500 but who would not start the job, was chargeable with
obtaining money in an amount exceeding $100 under false pretenses, as against his
contention that the unkept promise to perform services related to a future fact.
$100 under false pretenses, as against his contention that the unkept promise to perform services related to
a future fact. NRS 205.380.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Vito Balsamo was ordered to stand trial
for obtaining money in an amount exceeding $100 under false pretenses, a felony under NRS
205.380. He then filed a pretrial petition for a writ of habeas corpus contending the evidence
adduced before the magistrate was insufficient to support the charge. The district judge
denied habeas and, in this appeal, Balsamo advances the same contention.
Balsamo agreed to perform certain construction work for Herbert Frey. In order to
purchase the materials for the job, Balsamo obtained from Frey a check in the amount of
$1500; however, although frequently requested, Balsamo did not start, much less complete,
the job.
1

The thrust of Balsamo's argument below, and here, is that the unkept promise to perform
services for Frey cannot support the charge of obtaining money by false pretenses because the
promise relates to a future fact. We disagree.
In support of his contention, Balsamo relies principally on the case of Polisher v. State,
276 A.2d 102 (Md.Ct.Spec.App. 1971), which said a false representation must be to a past or
existing fact before a person can be guilty of the charged crime.
In our view, People v. Ashley, 267 P.2d 271, 281 (Cal. 1954), sets forth the better rule,
which we adopt. It is that a promise made without intention to perform is a
misrepresentation of a state of mind, and thus a misrepresentation of existing fact, and is a
false pretense within the meaning of [NRS 205.380].
2
The reason for the rule was
enunciated by Mr. Justice Traynor, who wrote: If false promises were not false pretenses, the
legally sophisticated, without fear of punishment, could perpetrate on the unwary fraudulent
schemes like that divulged by the record in this case and . . . would sanction such schemes
without any corresponding benefit to the public order.'' Id. at 2S3.
Here, there is no suggestion that Balsamo's misrepresentations were made innocently or
inadvertently; thus, we are not concerned with a criminal proceeding instigated by a
disgruntled creditor against one who has blamelessly encountered a commercial default.
Cf. United States v. Ballard, 322 U.S. 7S {1944).
____________________

1
Subsequently, Balsamo submitted an expense account to Frey's secretary and received from her another
check. This latter transaction resulted in Balsamo being charged with a second count of false pretenses which is
not here challenged.

2
NRS 205.380 provides, in part:
Every person who shall knowingly and designedly, by any false pretense or pretenses, obtain from any other
person or persons any chose in action, money, goods, wares, chattels, effects or other valuable thing, with intent
to cheat or defraud any person or persons of the same, is a cheat, and on conviction shall be imprisoned. . . .
divulged by the record in this case and . . . would sanction such schemes without any
corresponding benefit to the public order.'' Id. at 283.
Here, there is no suggestion that Balsamo's misrepresentations were made innocently or
inadvertently; thus, we are not concerned with a criminal proceeding instigated by a
disgruntled creditor against one who has blamelessly encountered a commercial default. Cf.
United States v. Ballard, 322 U.S. 78 (1944). Neither are we dealing with one who is guilty of
nothing more than a failure or inability to pay a debt. Chaplin v. United States, 157 F.2d 697
(D.C. Cir. 1946).
Accordingly, we perceive no error in the district judge's order denying the habeas petition.
NRS 171.206; Brymer v. Sheriff, 92 Nev. 598, 555 P.2d 844 (1976).
Affirmed.
____________
93 Nev. 317, 317 (1977) Nevada State Bank v. Fischer
NEVADA STATE BANK, Appellant, v. LUCILE
FISCHER, Respondent.
No. 8539
June 15, 1977 565 P.2d 332
Appeal from judgment; Eighth Judicial District Court, Clark County; Michael J. Wendell,
Judge.
Depositor brought action against bank for wrongfully debiting her account after notice of
dishonor of check which she had endorsed as an accommodation party. The district court
entered a judgment in favor of the depositor and the bank appealed. The Supreme Court,
Thompson, J., held that notwithstanding fact that bank initiated collection the day after
endorsement and gave endorser notice of dishonor within one day after the bank received it,
because of the 90-day delay in notifying endorser of delay she was discharged from liability
because of the unreasonable delay committed by another unknown bank involved in chain of
collection.
Affirmed.
Freedman and Whelton, of Las Vegas, for Appellant.
Miriam Shearing, of Las Vegas, for Respondent.
1. Bills and Notes.
Person by endorsing check as an accommodation party engaged that upon dishonor and any necessary
notice of dishonor and protest she would pay instrument according to the tenor at time
of her endorsement.
and protest she would pay instrument according to the tenor at time of her endorsement. NRS 104.3414,
subd. 1, 104.3415.
2. Bills and Notes.
Where, without excuse, any necessary presentment or notice of dishonor is delayed beyond time it is due,
an endorser on check is discharged from liability. NRS 104.3502, subd. 1.
3. Bills and Notes.
Although bank initiated collection of check, which plaintiff had endorsed as an accommodation party,
within one day of endorsement and notified plaintiff of dishonor within one day of receipt of such notice,
where almost 90 days elapsed between endorsement of check and receipt of notice of dishonor, violation of
midnight deadline by some unknown bank, resulted in an unreasonable delay in notice of dishonor thereby
discharging endorser from liability. NRS 104.3503, 104.3504, 104.4104, 104.4104, subd. 1(h).
OPINION
The Nevada State Bank charged Lucile Fischer's account $2,000 when it received notice
that a check in that amount, endorsed by her, had been dishonored. Therefore, she
commenced this action against the Bank for wrongfully so debiting her account.
The district court ruled that her liability as endorser was discharged since notice of
dishonor was not timely given her. Judgment was entered in her favor together with interest,
costs, and attorney fees. The Bank appeals from that judgment. We affirm.
The facts are not disputed. On May 1, 1970, Mrs. Fischer endorsed a $2,000 check payable
to the drawer and drawn on the Clayton Bank of Clayton, Missouri. She did this as an
accommodation to the payee-drawer. The Nevada State Bank cashed the check for the
payee-drawer and initiated collection through Valley Bank of Nevada that same day.
On July 28, 1970, the Valley Bank of Nevada notified Nevada State Bank that the check
had been dishonored stating original lost in transit-account closed. On July 29, 1970, the
Nevada State Bank debited Mrs. Fischer's account for $2,000 and notified her in writing of
the payor bank's dishonor of the check.
The record does not disclose which of the several banks involved in the collection process
either lost the check or delayed action with regard to it. It is clear, however, that Nevada State
Bank acted promptly upon receiving notice of dishonor.
dishonor. Whether it was permissible in these circumstances for that bank to charge its
innocent depositor rather than to look to one of the other banks involved is the issue for our
decision.
[Headnote 1]
1. Lucile Fischer endorsed the check as an accommodation party and is liable in the
capacity in which she signed. NRS 104.3415.
1
By endorsing the check she engaged that
upon dishonor and any necessary notice of dishonor and protest, she would pay the
instrument according to tenor at the time of her endorsement. NRS 104.3414(1).
2

[Headnote 2]
An endorser is a secondary party, NRS 104.3102(1)(d), whose liability is subject to the
preconditions of presentment, NRS 104.3501(1)(b), and proper notice of dishonor, NRS
104.3501(2)(a). Where, without excuse, any necessary presentment or notice of dishonor is
delayed beyond the time it is due, an endorser is discharged. Such is the command of NRS
104.3502(1).
It is the contention of Nevada State Bank that since it initiated collection within one day of
the endorsement and notified the endorser of dishonor within one day of receipt of such
notice by it, delay does not exist and Mrs. Fischer, as endorser, is not discharged from
liability.
An uncertified check must be presented for payment, or collection initiated thereon, within
a reasonable time, which in this case is presumed to be seven days. NRS 104.3503(2)(b).
3
Although the record does not advise us when presentment was made to the proper party,
NRS 104.3504, we do know that Nevada State Bank initiated collection within one day
after cashing the check.
____________________

1
NRS 104.3415: 1. An accommodation party is one who signs the instrument in any capacity for the
purpose of lending his name to another party to it.
2. When the instrument has been taken for value before it is due the accommodation party is liable in the
capacity in which he has signed even though the taker knows of the accommodation.

2
NRS 104.3414(1): Unless the endorsement otherwise specifies (as by such words as without recourse')
every endorser engages that upon dishonor and any necessary notice of dishonor and protest be will pay the
instrument according to its tenor at the time of his endorsement to the holder or to any subsequent endorser who
takes it up, even though the endorser who takes it up was not obligated to do so. The endorsement here
involved did not otherwise specify.

3
NRS 104.3503(2): A reasonable time for presentment is determined by the nature of the instrument, any
usage of banking or trade and the facts of the particular case. In the case of an uncertified check which is drawn
and payable within the United States and which is not
made to the proper party, NRS 104.3504, we do know that Nevada State Bank initiated
collection within one day after cashing the check. Consequently, bank collection was timely
initiated.
In our view, however, the second precondition to liability of the endorser, that is, timely
notice of dishonor, was not met. Although the Nevada State Bank notified Mrs. Fischer
within its midnight deadline, NRS 104.4104,
4
after receipt of notice of dishonor from Valley
Bank of Nevada, this fact, alone, does not resolve the timeliness issue.
The record does not disclose at what point in time the check first was dishonored. We
know only that almost ninety days elapsed between Mrs. Fischer's endorsement of the check
and her receipt of notice of its dishonor. It is apparent that one of the several banks involved
in the collection process violated its midnight deadline in giving notice of dishonor. Had such
bank given timely notice, Mrs. Fischer would have learned within a reasonable time that the
check had been dishonored.
Prompt action by all parties to the transaction is contemplated before an endorser may be
held liable. As stated in the official comment to sec. 3-503 of Uniform Commercial Code
(our NRS 104.3503):
The endorser who has normally merely received the check and passed it on and does
not expect to have to pay it, is entitled to know more promptly whether it is to be
dishonored, in order that he may have recourse against the person with whom he has
dealt.
[Headnote 3]
As already expressed, at some time in the chain of collection a midnight deadline was
violated. Notwithstanding such violation, we are asked to conclude that notice of dishonor
given ninety days after initiation of bank collection was timely. We decline to so conclude.
Mrs. Fischer's liability as an endorser was discharged when the violation of the midnight
deadline by a bank, identity unknown, resulted in unreasonable delay in notice of dishonor.
____________________
a draft drawn by a bank the following are presumed to be reasonable periods within which to present for
payment or to initiate bank collection:
(a) . . . .
(b) With respect to the liability of an endorser, 7 days after his endorsement.

4
NRS 104.4104(1)(h): Midnight deadline' with respect to a bank is midnight on its next banking day
following the banking day on which it receives the relevant item or notice or from which the time for taking
action commences to run, whichever is later.''
notice of dishonor. The Nevada State Bank may look to the violator for its recovery. Cf.
Fromer Distributor's Inc. v. Bankers Trust Company, 321 N.Y.S.2d 428 (1971). Its
customer-endorser should not be held responsible for a violation of law committed by another
bank involved in the chain of collection.
Affirmed.
____________
93 Nev. 321, 321 (1977) Oxborrow v. Sheriff
KENNETH STEVEN OXBORROW, Appellant, v. SHERIFF,
NYE COUNTY, NEVADA, Respondent.
No. 9748
June 16, 1977 565 P.2d 652
Appeal from order denying pretrial petition for writ of habeas corpus, Fifth Judicial
District Court, Nye County; William P. Beko, Judge.
The Supreme Court held that petitioner did not have actual physical possession of
contraband and there was nothing from which constructive or joint possession could be
inferred to support charged offense of felonious possession of marijuana.
Reversed.
Dean Breeze, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; Peter L. Knight, District Attorney, and
Andrew Demetras, Deputy District Attorney, Nye County, for Respondent.
Proof that petitioner exercised dominion and control over contraband was required in order to support
charge of felonious possession of marijuana. NRS 453.161, 453.336.
Petitioner, who was guest in residence of a friend when police officers arrived and, pursuant to a warrant,
conducted search which resulted in seizure of marijuana from under a couch, refrigerator and from pill
vials that had been secreted in a closed jewelry box, did not have actual physical possession of contraband
and there was nothing in the record from which constructive or joint possession could be inferred that
would support charged offense of felonious possession of marijuana. NRS 453.161, 453.336.
Without warrant, mere presence in area where narcotic is discovered or mere association with person who
does control drug or property where it is located is insufficient to support finding of possession.
OPINION
Per Curiam:
Kenneth Steven Oxborrow was a guest in the residence of a friend when police officers
arrived and, pursuant to a warrant, conducted a search. Marijuana was seized from under a
couch, the refrigerator and from pill vials which were secreted in a closed jewelry box. On
this evidence Oxborrow was charged with, and ordered to stand trial for, the felonious
possession of marijuana. NRS 453.336 and NRS 453.161.
In a pretrial petition for a writ of habeas corpus, Oxborrow contended there was
insufficient evidence adduced at the preliminary examination to establish probable cause to
believe he committed the charged offense. Habeas relief was denied and, in this appeal,
Oxborrow asserts the same contention raised below.
[Headnotes 1, 2]
Proof that Oxborrow exercised dominion and control over the contraband was required in
order to support the possession charge. Glispey v. Sheriff, 89 Nev. 221, 510 P.2d 623 (1973).
Oxborrow did not have actual physical possession of the contraband and there is nothing in
the record from which we might infer constructive possession. See Doyle v. State, 82 Nev.
242, 415 P.2d 323 (I966).
Furthermore, this record is barren of facts that might support a theory of joint possession
such as existed in Maskaly v. State, 85 Nev. 111, 450 P.2d 790 (1969), and Woerner v. State,
85 Nev. 281, 453 P.2d 1004 (1969). Thus, this record cannot support the charged offense.
[Headnote 3]
Without more, mere presence in the area where the narcotic is discovered or mere
association with the person who does control the drug or the property where it is located, is
insufficient to support a finding of possession. United States v. Stephenson, 474 F.2d 1353,
1355 (5th Cir. 1973). See also State v. Luchetti, 87 Nev. 343, 486 P.2d 1189 (1971), where
this court held that thirteen occupants of a house did not have constructive possession of
marijuana found in plain view in the living room because there was no proof that they had
the right to control the contraband.
living room because there was no proof that they had the right to control the contraband.
Reversed.
____________
93 Nev. 323, 323 (1977) Eckert v. Sheriff
EDWARD ECKERT, Appellant, v. SHERIFF,
No. 9598
June 16, 1977 565 P.2d 335
The district court denied pretrial habeas corpus petition challenging quantum and quality
of evidence in support of indictment for conspiracy to commit murder. The Supreme Court
held that record supported determination that witness against defendant was a feigned
accomplice, whose testimony did not have to be corroborated.
Affirmed.
Swanson & Momot, Ltd., Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, Special Prosecutor, Las
Vegas, for Respondent.
1. Habeas Corpus.
Record in pretrial habeas corpus proceeding challenging quantum and quality of evidence in support of
indictment for conspiracy to commit murder, disclosing that principal prosecution witness' participation
and efforts in the scheme were performed in conjunction with and under the supervision of police officer,
supported determination that the witness was a feigned accomplice, whose testimony did not have to be
corroborated. NRS 175.291, 175.291, subd. 1, 199.480.
2. Criminal Law.
Testimony of a feigned accomplice need not be corroborated. NRS 175.291, subd. 1.
OPINION
Per Curiam:
Pursuant to a True Bill returned by the Clark County Grand Jury, Edward Eckert was
indicted for conspiracy to commit murder, a felony under NRS 199.4S0.
93 Nev. 323, 324 (1977) Eckert v. Sheriff
Jury, Edward Eckert was indicted for conspiracy to commit murder, a felony under NRS
199.480. A pretrial habeas corpus petition challenged the quantum and quality of the
evidence in support of the indictment. Habeas was denied and, in this appeal, Eckert again
advances the same contentions.
The charge arises out of an alleged scheme, designed by Eckert and another individual
while they were in jail, to kill a woman who they believed could provide damaging testimony
against them in an unrelated criminal proceeding. Virtually all of the incriminating testimony
in the instant case was provided by David Ledcke, a jail acquaintance of Eckert, who
ostensibly participated in the plan.
Eckert's central contention is that Ledcke was an accomplice; therefore, he argues we
cannot consider Ledcke's damaging testimony because it was not corroborated, as required by
NRS 175.291.
1
The contention is rejected.
[Headnotes 1, 2]
All of Ledcke's participation and efforts in pursuit of the scheme were performed in
conjunction with, and under the supervision and direction of, Las Vegas police officers. Thus,
the record supports the district judge's determination that Ledcke was, in fact, a feigned
accomplice. See State v. Verganadis, 50 Nev. 1, 10, 248 P. 900, 903 (1926), where this court
wrote that one who feigns complicity in the commission of a crime in order to entrap the
person on trial is not an accomplice, even though he may have actually encouraged or
counseled the commission of the crime. Compare Austin v. State, 87 Nev. 578, 491 P.2d
724 (1971). The testimony of a feigned accomplice need not be corroborated. At the time of
trial, whether Ledcke was a mere feigned accomplice, and if not, whether sufficient
corroboration has been adduced will be issues for presentation to the jury upon proper
instruction.
Eckert's ancillary contention is also without merit. Franklin v. State, 89 Nev. 382, 513 P.2d
1252 (1973).
Affirmed.
____________________

1
A conviction shall not be had on the testimony of an accomplice unless he is corroborated by other evidence
which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the
commission of the offense; and the corroboration shall not be sufficient if it merely shows the commission of the
offense or the circumstances thereof.
____________
93 Nev. 325, 325 (1977) Warden v. Jupiter
HAMINA MARIE JUPITER, Respondent.
No. 9789
June 29, 1977 565 P.2d 653
Carson City; William P. Beko, Judge.
Reversed.
Robert List, Attorney General, Carson City, for Appellant.
H. Rodlin Goff, State Public Defender, Carson City, for Respondent.
OPINION
Per Curiam:
____________
93 Nev. 325, 325 (1977) Starling v. Sheriff
RHONDA JEAN STARLING, Appellant, v. SHERIFF,
No. 9742
June 29, 1977 565 P.2d 653
Reversed.
James L. Buchanan, II, Las Vegas, for Appellant.
OPINION
Per Curiam:
On the authority of, and for the same reasons stated in, Oxborrow v. Sheriff, 93 Nev. 321
93 Nev. 325, 326 (1977) Starling v. Sheriff
Oxborrow v. Sheriff, 93 Nev. 321, 565 P.2d 652 (1977), the order of the district court which
denied Rhonda Jean Starling's pretrial petition for a writ of habeas corpus, is reversed.
____________
93 Nev. 326, 326 (1977) Korby v. State
THOMAS OLIVER KORBY, Appellant, v. THE
No. 9255
June 29, 1977 565 P.2d 1006
Appeal from probationary judgment; Fourth Judicial District Court, Elko County; Joseph
0. McDaniel, Judge.
Defendant was convicted, on his guilty plea, in the district court of possession of a
controlled substance and was placed on probation, with a condition that he reimburse the
county for jury, witness and mileage fees incurred during a prior unsuccessful prosecution on
a greater charge. Defendant appealed. The Supreme Court, Thompson, J., held that the district
court did not have authority to order payment of jury, witness and mileage fees incurred by
the county in the unsuccessful prosecution.
Gregory D. Corn, of Reno, for Appellant.
Robert C. Manley, District Attorney, Elko County, for Respondent.
1. Criminal Law.
District court did not have authority to condition probation granted defendant on his guilty plea to charge
of possession of controlled substance on requirement that he pay jury, witness and mileage fees incurred by
county in prior unsuccessful prosecution of defendant on a greater charge. NRS 176.189, subd. 1.
2. Costs.
Defendant whose trial ends without conviction is not obliged to reimburse county for costs of his defense.
NRS 176.091.
3. Criminal Law.
Convicted defendant may be required to make restitution as condition of probation. NRS 176.189,
subd. 1.
OPINION
Thomas Korby was prosecuted for supplying a controlled substance.
93 Nev. 326, 327 (1977) Korby v. State
substance. The jury was unable to reach a verdict. Later negotiation with the district attorney
resulted in Korby's plea of guilty to a reduced charge, possession of a controlled substance.
The district court sentenced him to a term of eighteen months in prison, suspended
imposition of that sentence and placed him on probation. As a condition of probation the
court ordered Korby to reimburse Elko County for jury, witness and mileage fees in the
amount of $1,310.85 incurred during the prior unsuccessful prosecution. Korby is not
indigent. Whether the court possessed authority to impose that condition of probation is the
issue presented for our decision.
[Headnotes 1, 2]
1. We find no statute empowering the district court to order payment of jury, witness and
mileage fees incurred by a county in an unsuccessful prosecution. A defendant whose trial
ends without conviction is not obliged to reimburse the county for the costs of his defense.
[Headnote 3]
Of course a convicted defendant may be required, as a condition of probation, to make
restitution.
1
This statute is directed to the restoration of money or property to the victim of
the offense of which the defendant is found guilty. And, our recoupment statute, NRS
176.091, empowers the court to order a convicted defendant to pay as costs the expenses
incurred by the county in providing such defendant with an attorney. This statute is directed
to convicted defendants who are indigent at the time of criminal proceedings against them but
who later gain the ability to pay the expenses of legal representation. It is evident that neither
statute bears relevance to the issue before us.
2. As noted, our statutes distinguish between defendants who are convicted and those who
are not. This classification is noninvidious. Convicted defendants may be subject to orders
contemplated by the mentioned statutes. A defendant whose trial ends without conviction is
not. Here, as in Oregon, the legislature could surely decide with objective rationality that
when a defendant has been forced to submit to a criminal prosecution that does not end in
conviction, he will be freed of any potential liability to reimburse the state for the costs of his
defense.
____________________

1
NRS 176.189(1): The Court may order as a condition of probation or suspension of sentence, in
appropriate circumstances, that the defendant make restitution to the person or persons named in the order, at the
times and in the amounts specified in such order.
93 Nev. 326, 328 (1977) Korby v. State
defense. This legislative decision reflects no more than an effort to achieve elemental fairness
and is a far cry from the kind of invidious discrimination that the Equal Protection Clause
condemns. Fuller v. Oregon, 417 U.S. 40 at 50 (1973). This is precisely what our Nevada
legislature has done.
3. For the reasons expressed we direct the district court to modify the order of probation
by striking therefrom the requirement that Korby reimburse Elko County for jury, witness and
mileage fees incurred in the unsuccessful prosecution of him.
____________
93 Nev. 328, 328 (1977) Carbonneau v. State
JAMES RICHARD CARBONNEAU, Appellant, v.
No. 9397
June 29, 1977 565 P.2d 654
Appeal from judgment entered upon plea of guilty to robbery. Third Judicial District
Court, Eureka County; Stanley A. Smart, Judge.
Affirmed.
Horace R. Goff, Nevada State Public Defender, and J. Thomas Susich, Chief Deputy
Public Defender, for Appellant.
Johnson W. Lloyd, District Attorney, Eureka County, for Respondent.
OPINION
Per Curiam:
This appeal is before us because of the United States Supreme Court decision of Anders v.
California, 386 U.S. 738 (1967), and our decision in Sanchez v. State, 85 Nev. 95, 450 P.2d
793 (1969). The arguable issue presented is whether the guilty plea entered by appellant to the
charge of robbery was voluntary. Our independent review of the record reveals that the appeal
is frivolous. The trial judge complied with all requirements of law before accepting
appellant's plea. The judgment of conviction is affirmed.
____________
93 Nev. 329, 329 (1977) Cutler v. State
TERRY LEE CUTLER, Appellant, v. THE
No. 8658
June 29, 1977 566 P.2d 809
Appeal from judgment of Seventh Judicial District Court, White Pine County; Merlyn H.
Hoyt, Judge.
Defendant was convicted in the district court of first degree murder, and he appealed. The
Supreme Court, Batjer, C. J., held that: (1) photographs of victim taken both before and after
fatal injuries were admissible to show injuries, explain cause of death, and establish size of
victim; (2) prosecution had right to offer evidence tending to prove motive, malice, or intent;
(3) juvenile record was properly used to reveal false testimony of minor defense witness; (4)
aside from accomplice testimony, alleged by defendant to be uncorroborated, there was a
substantial amount of other evidence that in itself tended to connect defendant with offense;
(5) refusing to give certain offered instructions, denying a change of venue, and refusing to
conduct an evidentiary hearing to determine defendant's sanity and competency to stand trial
was not error; (6) record failed to establish that defendant was denied effective assistance of
counsel; (7) claim that prosecutor made prejudicial remarks during closing argument was
patently frivolous; and (8) instructions on statutory definitions of reasonable doubt and
implied malice were not erroneous as depriving defendant of due process.
Affirmed.
Robert List, Attorney General, Patrick B. Walsh, Deputy Attorney General, Carson City,
and Rupert C. Schneider, District Attorney, White Pine County, for Respondent.
1. Criminal Law.
Photographs of victim taken both before and after fatal injuries were admissible in homicide prosecution
for purpose of showing injuries, explaining cause of death, and establishing size of victim as long as they
revealed nothing gruesome or inflammatory which could have excited or prejudiced jury.
2. Criminal Law.
Prosecution had right in homicide prosecution to offer evidence tending to prove motive, malice, or
intent.
3. Criminal Law.
Testimony concerning a statement made by a member of group in which defendant participated prior to
fatal event and which was to effect that members of group were going to get rid of victim was admissible
for purpose of proving motive, malice, or intent.
4. Criminal Law.
When defendant voluntarily opens the juvenile record of his witness to the jury, and witness testifies
untruthfully, defendant may not claim error on appeal when the juvenile record is used to reveal such false
testimony. NRS 50.095, subd. 4.
5. Witnesses.
Once defense witness was questioned extensively by defense counsel about her juvenile record and, on
cross-examination, replied in negative to question whether, as one of conditions of probation, she was
precluded from associating with defendant's sister, copy of Order placing Minor on Probation which
provided that, as one of the conditions of probation, witness was not to associate with defendant's sister was
properly received for purpose of showing that witness had falsely testified. NRS 50.095, subd. 4.
6. Criminal Law.
An accomplice is one who is liable to prosecution for the identical offense charged against the defendant
on trial in the case in which the testimony of the accomplice is given. NRS 175.291, subd. 2.
7. Criminal Law.
Upon a trial of a case, the jury is the judge of the credibility of the witnesses, and the question of whether
the witness was in fact an accomplice can be submitted to the jury upon proper instructions. NRS
175.291, subd. 2.
8. Criminal Law.
Trial court properly instructed jury on credibility of testimony given by individuals in defendant's group
prior to fatal event, law regarding accomplices, and necessity of corroboration of accomplice testimony
and, thereafter, properly submitted to jury question whether individuals were accomplices. NRS
175.291, subd. 2.
9. Criminal Law.
Aside from testimony of accomplices, alleged by defendant to be uncorroborated, there was a substantial
amount of other evidence that in itself tended to connect defendant with offense and to sustain conviction
of first degree murder. NRS 175.291, subd. 2.
10. Criminal Law.
Refusal to conduct an evidentiary hearing to determine defendant's sanity and competency to stand trial
was not error on basis of record indicating that, after defendant was examined by two doctors who reported
that he was mentally and physically fit to stand trial, his attorney and prosecutor stipulated that court could
proceed to set matter for trial without conducting an evidentiary hearing on issue of defendant's
competence to stand trial.
11. Criminal Law.
Refusing to give certain offered instructions was not error where instructions were either substantially
covered by other instructions or misstated the law applicable to the facts.
12. Criminal Law.
A motion for a change of venue, made after voir dire examination has been conducted and it is apparent
that selection of a fair and impartial jury cannot be had in county where indictment, information or
complaint is pending, is within trial court's discretion. NRS 174.455.
13. Criminal Law.
Record served to establish that an impartial jury was selected in homicide prosecution and that trial court
did not abuse its discretion in denying defendant's motion for change of venue. NRS 174.455.
14. Criminal Law.
Claim that certain prosecutor's remarks during closing argument in homicide prosecution were prejudicial
and violated defendant's rights to a fair trial and due process was patently frivolous and without merit in
record.
15. Criminal Law.
Failure to object at time prosecutor made his closing remarks in homicide prosecution operated to
preclude consideration of remarks on appeal.
16. Criminal Law.
Presumption that defense counsel has fully discharged his duties can only be overcome by strong and
convincing proof to contrary.
17. Criminal Law.
Record failed to establish that defense counsel was ineffective and inadequate because he was
unsuccessful in obtaining a change of venue, failed to make objections during closing argument, and
waived a sanity hearing.
18. Homicide.
In returning a verdict of murder in the first degree, the jury was required to find, beyond a reasonable
doubt, that defendant deliberately, willfully, and with premeditation murdered victim; implied malice
played no part in case and, hence, did not relieve prosecution of its burden in that elements of crime
conclusively established express malice. NRS 200.020, subds. 1, 2.
19. Constitutional Law; Criminal Law.
Instruction defining term reasonable doubt in relation to crime of first degree murder was not erroneous
as violative of defendant's right to a fair trial and due process. NRS 175.211, subd. 1.
20. Criminal Law.
An instruction given in accordance with statute defining reasonable doubt does not dilute burden of state
to establish guilt beyond reasonable doubt and does not shift burden of proof. NRS 175.211, subd. 1.
21. Criminal Law.
Where giving of an instruction to jury does not constitute plain error, failure to object precludes appellate
consideration.
22. Criminal Law.
Absence of an objection at trial to instruction on reasonable doubt in terms of first degree
murder operated to preclude appellate consideration of instruction in absence of
plain error.
doubt in terms of first degree murder operated to preclude appellate consideration of instruction in absence
of plain error. NRS 175.211, subd. 1.
OPINION
Appellant challenges his conviction for first degree murder. On June 11, 1974, Terry Lee
Cutler was discharged from the Army at Fort Riley, Kansas. During the discharge process
Cutler met Michael Bowman and the two decided to hitchhike to Ely, Nevada. Ten days later
they reached Ely and met April Boettcher, Dianna McCaslin and Dale Robert Kaze.
The five partied for a few days and on July 1, 1974, found themselves at the Kaze trailer.
Upon information from Kaze's sister-in-law that two runaway girls were in the trailer, a
juvenile probation officer was dispatched to watch it. The officer saw Kaze's car leave with
Cutler and Bowman in it, but believed the two girls were still in the trailer. He radioed for
help and when it arrived they entered the trailer. Kaze was found tied up, under a bed, with
bruises on his neck. He was rushed to a hospital where he died a few days later. Medical
testimony established that strangulation which lead to pneumonia caused his death.
Cutler, Bowman, and the two girls were apprehended later that evening while traveling in
Kaze's car. The two girls testified that first Bowman held Kaze down by the throat and after a
few minutes Cutler held Kaze down while Bowman smoked a cigarette.
[Headnote 1]
1. Appellant's claim of error in the admission of several photographs of the victim taken
both before and after the fatal injuries is specious and completely without merit. The
photographs were admitted to show the injuries, explain the cause of death and establish the
size of the victim. Examination of these photographs reveals nothing gruesome or
inflammatory which could have excited or prejudiced the jury. State v. Gambetta, 66 Nev.
317, 208 P.2d 1059 (1949). See Allen v. State, 91 Nev. 78, 530 P.2d 1195 (1975); Ricci v.
State, 91 Nev. 373, 536 P.2d 79 (1975).
[Headnotes 2, 3]
2. Appellant next objects to the admission of testimony by Dianna McCaslin concerning a
conversation the group had in which the participants discussed whether Kaze would take
them to California, and Bowman, referring to Kaze, told appellant "We are going to get rid
of him."
which the participants discussed whether Kaze would take them to California, and Bowman,
referring to Kaze, told appellant We are going to get rid of him. The prosecution had the
right to offer evidence tending to prove motive, malice or intent. This testimony was clearly
admissible for that purpose. State v. Larkin, 11 Nev. 314 (1876); State v. White, 52 Nev. 235,
285 Pac. 503 (1930); State v. Plunkett, 62 Nev. 258, 142 P.2d 893 (1944); cf. Bails v. State,
92 Nev. 95, 545 P.2d 1155 (1976).
[Headnotes 4, 5]
3. Appellant contends error was committed in allowing the prosecution to impeach Kathy
Lerch by use of a juvenile adjudication. NRS 50.095(4).
1
Kathy was called as a defense
witness and was questioned extensively by defense counsel about her juvenile record. On
cross-examination she was asked whether, as one of the conditions of probation, she was
precluded from associating with Laurie Cutler, appellant's sister. Kathy answered that she did
not know Laurie at that time. The prosecution then offered a copy of the Order placing
Minor on Probation which provided, as one of the conditions of probation, that she was not
to associate with Laurie Cutler. The order was offered to show that Kathy had falsely
testified. In deciding a similar contention this Court in Rhodes v. State, 91 Nev. 720, 723, 542
P.2d 196 (1975), said: It is true that NRS 50.095, subsection 4, provides that evidence of
juvenile adjudications is not admissible for the purpose of attacking the credibility of a
witness. However, the statute was never intended to aid and abet perjury and, as with most
statutes, is subject to the doctrine of invited error. See People v. Simmons, 172 P.2d 18 (Cal.
1946).'' When a defendant voluntarily opens the juvenile record of his witness to the jury, and
that witness testifies untruthfully, appellant may not claim error on appeal when the juvenile
record is used to reveal such false testimony. See Davis v. Alaska, 415 U.S. 308 (1974); cf.
Harris v. New York, 401 U.S. 222 (1971). See also Walder v. United States, 347 U.S. 62
(1954). Under the factual posture of this case, the court did not err in admitting the Order
Placing Minor on Probation.
4. The appellant further claims that the verdict is unsupported by the evidence because
McCaslin and Boettcher were accomplices and their testimony was not corroborated.
____________________

1
NRS 50.095(4): Evidence of juvenile adjudications is inadmissible under this section.

[Headnotes 6-8]
An accomplice is one who is liable to prosecution for the identical offense charged against
the defendant on trial in the case in which the testimony of the accomplice is given. NRS
175.291(2).
2
Upon a trial of the case the jury is the judge of the credibility of the witnesses,
and the question of whether or not the witness was in fact an accomplice can be submitted to
the jury upon proper instructions. In Re Bowman and Best, 38 Nev. 484, 151 P. 517 (1915).
Here the trial court properly instructed the jury on the credibility of the girls' testimony, the
law regarding accomplices, and the necessity of corroboration of accomplice testimony, and
submitted to the jury the question of whether McCaslin and Boettcher were accomplices.
Upon all the evidence appellant was found guilty.
[Headnote 9]
There was a substantial amount of other evidence which in itself tended to connect the
appellant with the offense. NRS 175.291(1); State v. Hilbish, 59 Nev. 469, 97 P.2d 435
(1940); LaPena v. Sheriff, 91 Nev. 692, 541 P.2d 907 (1975).
3
The testimony of McCaslin
and Boettcher was properly admitted.
5. In a second supplemental brief filed by appellant in pro per the claims the trial court
erred in refusing to give certain offered instructions, denying a change of venue, and refusing
to conduct an evidentiary hearing to determine appellant's sanity and competency to stand
trial. He further claims that he was denied the effective assistance of counsel, that the
prosecutor made prejudicial remarks during the closing argument and that the statutory
definitions of reasonable doubt (NRS 175.211) and implied malice (NRS 200.020(2)) are
unconstitutional.
[Headnote 10]
Appellant's only basis for claiming insanity and incompetency to stand trial was his
testimony that he had blacked out on two occasions while in the military service because of
the use of drugs.
____________________

2
NRS 175.291(2): An accomplice is hereby defined as one who is liable to prosecution, for the identical
offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.

3
In an appeal from the denial of a petition for habeas corpus, from an order binding him over for trial after a
preliminary hearing in an unpublished order, we rejected appellant's contention that April Boettcher and Dianna
McCaslin were accomplices and held that their testimony need not be corroborated.

the use of drugs. After he was examined by two doctors who reported that he was mentally
and physically fit to stand trial, his attorney and the prosecutor stipulated That Plaintiff's and
Defendant's medical reports in relation to the Defendant, TERRY LEE CUTLER, indicate the
absence of any medical infirmity which would indicate a present inability to stand trial or
assist counsel in his defense.
That this court may proceed to set this matter for trial WITHOUT conducting an
evidentiary hearing on the issue of Defendant's competence to stand trial.
That Defendant, TERRY LEE CUTLER, hereby waives any and all procedural and
substantive rights to such an evidentiary hearing and, through counsel requests that this
matter be set for trial.
[Headnote 11]
The instructions offered by appellant were either substantially covered by other
instructions, Collins v. State, 88 Nev. 168, 494 P.2d 956 (1972), or they misstated the law
applicable to the facts and were properly refused by the trial court.
[Headnotes 12, 13]
NRS 174.455 allows for change of venue when: After the voir dire examination has been
conducted and it is apparent to the court that a selection of a fair and impartial jury cannot be
had in the county where the indictment, information or complaint is pending. A motion for a
change of venue is within the trial court's discretion. State v. Casey, 34 Nev. 154, 117 Pac. 5
(1911), cited, State v. Fouquette, 67 Nev. 505, at 517, 221 P.2d 404 (1950); State v. Alsup,
69 Nev. 121, at 124, 243 P.2d 256 (1952). A reading of the record indicates that an impartial
jury was selected and the trial judge did not abuse his discretion in denying appellant's motion
for a change of venue.
[Headnotes 14, 15]
Appellant's claim that certain of the prosecutor's remarks during closing argument were
prejudicial and violated his rights to a fair trial and due process are without merit and patently
frivolous, furthermore, defense counsel made no objection to any of the prosecutor's closing
argument. Failure to object to remarks at the time they are made precludes their consideration
on appeal. Hayden v. State, 91 Nev. 474, 538 P.2d 583 (1975); Bonnenfant v. State, 86 Nev.
393, 469 P.2d 401 (1970); Cook v. State, 77 Nev. 83, 359 P.2d 483 (1961).
[Headnotes 16, 17]
Appellant argues that his counsel was ineffective and inadequate because he was (1)
unsuccessful in obtaining a change of venue, (2) failed to make objections during closing
argument, and (3) waived a sanity hearing. It is presumed that an attorney has fully
discharged his duties. This presumption can be overcome by strong and convincing proof to
the contrary. This record does not contain evidence of incompetency upon the part of the
appellant's trial counsel. Smithart v. State, 86 Nev. 925, 478 P.2d 576 (1970).
[Headnote 18]
Appellant contends that Nevada's statute on implied malice, NRS 200.020(2), given in the
form of a jury instruction is unconstitutional in its application because it relieves the
prosecution of the burden of proving every element of the crime and thus deprives appellant
of due process. We need not reach this contention. In returning a verdict of murder in the first
degree the jury was required to find, beyond a reasonable doubt, that appellant deliberately,
willfully and with premeditation murdered Dale Robert Kaze. Implied malice played no part
in this case inasmuch as those elements of the crime of murder in the first degree conclusively
established express malice as defined in NRS 200.020(1). Scott v. State, 92 Nev. 552, 554
P.2d 735 (1976).
[Headnote 19]
Finally, appellant contends that the jury instruction given on the definition of the term
reasonable doubt, in the language of NRS 175.211(1)
4
is unconstitutional and violated his
right to a fair trial and due process. The contention is also without merit.
[Headnotes 20-22]
Ever since the legislature first enacted ch. 21, Stats. 1889, which has been carried forward
into NRS 175.211(1), this court has approved the giving of that statute as an instruction to the
jury in a criminal case. State v. Potts, 20 Nev. 389, 22 Pac. 754 (1889); State v. Economy, 61
Nev. 394, 130 P.2d 264 {1942).
____________________

4
NRS 175.211(1): A reasonable doubt is one based on reason. It is not mere possible doubt, but is such a
doubt as would govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the
entire comparison and consideration of all the evidence, are in such a condition that they can say they feel an
abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable must be
actual and substantial, nor mere possibility or speculation.
264 (1942). The statutory instruction required to be given by the trial court did not dilute the
state's burden to establish guilt beyond reasonable doubt and does not shift the burden of
proof as appellant contends. Furthermore, there was no objection at trial by appellant to the
instruction. Where, as here, the giving of an instruction to the jury does not constitute plain
error, the failure to object precludes appellate consideration. McCall v. State, 91 Nev. 556,
540 P.2d 95 (1975). There is substantial evidence in the record to support the jury's verdict of
guilty.
The judgment of conviction is affirmed.
Mowbray, Thompson, Gunderson, and Manoukian, JJ., concur.
____________
93 Nev. 337, 337 (1977) Gates v. State
ANDREW WENTWORTH GATES, Appellant, v. THE
No. 9251
June 29, 1977 565 P.2d 654
Appeal from judgments and consecutive sentences of life without the possibility of parole
for two first degree murders; Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Affirmed.
Morgan D. Harris, Public Defender, and Herbert F. Ahlswede, Deputy Public Defender,
George E. Holt, District Attorney, and H. Leon Simon, Deputy District Attorney, Clark
OPINION
Per Curiam:
On the authority of, and for the same reasons stated in, Smith v. State, 93 Nev. 82, 560
P.2d 158 (1977), we affirm the judgments of the trial court.
____________
93 Nev. 338, 338 (1977) Stephens v. Sheriff
THOMAS ROBERT STEPHENS, Appellant, v. SHERIFF,
No. 9760
June 29, 1977 565 P.2d 1007
Petitioner, who had been indicted for conspiracy to commit murder and attempted murder,
petitioned for a writ of habeas corpus. The district court denied habeas, and petitioner
appealed. The Supreme Court, Manoukian, J., held that evidence was sufficient to support an
indictment for attempted murder.
Affirmed.
Morgan D. Harris, Public Defender, and Thomas L. Leen, Deputy Public Defender, Clark
1. Criminal Law.
An attempt requires only that accused have an intent to commit the crime and that he take a direct but
ineffectual act toward the commission of the crime.
Evidence presented to grand jury, including evidence that accused participated in scheme to kill certain
person and that he was delivered to hit men, was sufficient to support an indictment for attempted
murder. NRS 200.010, 200.030, 208.070.
OPINION
Thomas Robert Stephens and another person were indicted by the Clark County Grand
Jury for conspiracy to commit murder (felony, NRS 199.480) and attempted murder (felony,
NRS 200.010, 200.030, and 208.070). Thereafter, in a pre-trial petition for a writ of habeas
corpus, Stephens contended there was insufficient evidence presented to the grand jury to
support the charge of attempted murder. The district judge denied habeas, and, in this
appeal, Stephens raises the same contention.1
93 Nev. 338, 339 (1977) Stephens v. Sheriff
denied habeas, and, in this appeal, Stephens raises the same contention.
1

The record shows that Stephens and his co-defendant sought the aid of two undercover
police officers, posing as hit men, in a plot to murder one Reed Siegfried. It further reflects
that Appellant made preparations for a contract murder by enlisting the assistance of two
undercover officers, and not only outlined details of the proposed murder including the
identity, daily habits, and residence of the proposed victim, but further the method by which
the murder was to be perpetrated and the proposed disposition of the body. Following this, a
plan was devised whereby Stephens and his confederate would deliver Siegfried, the intended
victim, to the undercover officers at a designated area where the homicide was to occur.
Stephens claims that his participation in the scheme to kill the victim did not achieve the
dignity of an attempt because there was no direct movement toward the commission of a
crime; therefore, he argues an essential element is lacking and the charge must be dismissed.
2
We disagree. If only the foregoing alleged facts had occurred relating primarily as they do
to the conspiracy charge, it is quite possible that a true attempt would not have been
effectuated. However, the apparent, subsequent conveyance and delivery of Siegfried to the
purported killers stands as an adequate act in perpetration to elevate their behavior to that of
attempted murder.
[Headnotes 1, 2]
An attempt requires only that the Appellant have an intent to commit the crime and that he
take a direct but ineffectual act toward the commission of the crime. Darnell v. State, 92 Nev.
680, 558 P.2d 624 (1976); State v. Thompson, 31 Nev. 209, 101 P. 557 (1909). In our view,
Stephens' conduct, coupled with the delivery of Siegfried to the hit men, is sufficient to
support the charge of attempted murder. Accordingly, we affirm.
____________________

1
Neither Stephens nor his co-defendant challenged the conspiracy charge.

2
NRS 208.070 describes an attempt as [a]n act done with intent to commit a crime, and tending but failing
to accomplish it.
____________
93 Nev. 340, 340 (1977) Skinner v. Sheriff
AMELlA SKINNER, Appellant, v. SHERIFF,
No. 9636
June 29, 1977 566 P.2d 80
Petitioner charged with robbery sought writ of habeas corpus contending there was
insufficient evidence produced at preliminary examination to establish probable cause to
believe she committed the charged offense. The district court denied habeas and petitioner
appealed. The Supreme Court, Manoukian, J., held that petitioner who scattered contents of
victim's purse on sidewalk and took some money and keys while victim was fighting with a
third woman did not accomplish the taking of money and keys by means of force or violence
in absence of evidence that petitioner participated with the third woman in a common scheme
or plan to batter the victim.
Reversed.
Morgan D. Harris, Public Defender, and James L. Gubler, Deputy Public Defender, Clark
Robbery.
Petitioner who scattered contents of victim's purse on sidewalk and took some money and keys while
victim was fighting with a third woman did not accomplish taking of the property by means of force or
violence and was not chargeable with robbery in absence of showing that petitioner participated with the
third woman in a common scheme or plan to batter the victim. NRS 200.380, subd. 1.
OPINION
Following a preliminary examination, Amelia Skinner was ordered to stand trial for
robbery, a felony under NRS 200.380. Thereafter, she filed a pretrial petition for writ of
habeas corpus contending there was insufficient evidence produced at the preliminary
examination to establish probable cause to believe she committed the charged offense.
93 Nev. 340, 341 (1977) Skinner v. Sheriff
believe she committed the charged offense. The district judge denied habeas, and, in this
appeal, Skinner advances the same contention.
Our review shows that on August 2, 1976, Lucinda Heckard was accosted by Vernell
Williams on a Las Vegas sidewalk. The two women combatted during this encounter and
then parted company. A short time later, Williams returned to the scene in a car driven by the
Appellant, Amelia Skinner. After Skinner asked Heckard why she and Williams had been
fighting, the record reflects that Williams again attacked Heckard. During the second
encounter, Skinner allegedly scattered the contents of Heckard's purse on the sidewalk and
took some money and keys.
The essence of Skinner's argument is that she did not accomplish the taking of the money
and keys by means of force or violence; therefore, an essential element of the crime of
robbery is lacking and the charge must be dismissed.
1
We agree.
In order for the recited conduct to achieve the magnitude of robbery, it was incumbent on
the prosecution to present evidence to show that Skinner and Vernell Williams acted in
concert in the battering of Heckard; thereupon, Williams' use of force against the victim could
then be imputed to Skinner. State v. Gerhardt, 549 P.2d 262 (Idaho 1976). Here, the record
contains no evidence from which we could infer that Skinner participated with Williams in a
common scheme or plan to batter the victim. In the absence of facts or conduct showing or
inferring such an agreement, Skinner's mere presence would not render [her] guilty of
robbery, however reprehensible [her] conduct may have been in subsequently taking [the
victim's] property. James v. State, 161 S.W.2d 285 (Tex. Crim.App. 1942), aff'd on
rehearing, 161 S.W.2d at 289. Cf. Winston v. Sheriff, 92 Nev. 616, 555 P.2d 1234 (1976).
Accordingly, we reverse, without prejudice to the right of the state to institute an appropriate
charge within fifteen (15) days after remittitur issues.
____________________

1
NRS 200.380(1) provides in part that [r]obbery is the unlawful taking of personal property from the person
of another, or in his presence, against his will, by means of force or violence or fear of injury. . . . (Emphasis
added.)
____________
93 Nev. 342, 342 (1977) Thompson v. State
SHERMAN A. THOMPSON, aka John C. Nicholas, Jr.,
Appellant, v. THE STATE OF NEVADA, Respondent.
No. 9344
June 30, 1977 565 P.2d 1011
Howard W. Babcock, Judge.
Defendant was convicted in district court of larceny from the person and he appealed. The
Supreme Court held that (1) items which were in plain view in hotel room which officers
entered with defendant's consent were not illegally seized and, (2) State's failure to, sua
sponte, disclose to defense counsel oral inculpatory statements made by defendant did not
deny due process.
Affirmed.
1. Searches and Seizures.
Items in plain view of officers who entered defendant's hotel room with defendant's consent were legally
seized.
State's failure to, sua sponte, disclose to defense counsel oral inculpatory statements made by defendant
did not deny due process. NRS 174.235, subd. 1.
3. Larceny.
Evidence was sufficient to sustain conviction for larceny from the person. NRS 207.270.
OPINION
Per Curiam:
At the conclusion of a bench trial, appellant was adjudged guilty of the crime of larceny
from the person, a felony under NRS 205.270.
1
Here, his principal contentions are: (1)
evidence was illegally seized and should have been suppressed; (2) he was denied due
process by the State's failure to, sua sponte, disclose his inculpatory statements made to a
police officer; and, {3) his conviction is not supported by substantial evidence.
____________________

1
Every person who, under circumstances not amounting to robbery,
93 Nev. 342, 343 (1977) Thompson v. State
officer; and, (3) his conviction is not supported by substantial evidence. We disagree.
[Headnote 1]
1. Hot Pursuit of the perpetrator led police officers to a hotel room, near the scene of the
crime, which appellant had just rented. Appellant consented to the officers' entry whereupon
they immediately arrested him. The officers then seized money together with clothing which,
according to the victim's description, matched that worn by the perpetrator. Appellant argues
these items of evidence were illegally seized and should have been suppressed. However,
these items were in plain view of the officers, and [i]t has long been settled that objects
falling in the plain view of an officer who has a right to be in the position to have that view
are subject to seizure and may be introduced in evidence.' Boone v. State, 85 Nev. 450, 454,
456, P.2d 418, 420 (1969).
[Headnote 2]
2. Appellant next argues he was denied due process because the State failed to, sua
sponte, disclose to defense counsel oral inculpatory statements made by appellant. Pre-trial
discovery of the accused's statements is not constitutionally compelled by the Fourteenth
Amendment. Mears v. State, 83 Nev. 3, 7, 422 P.2d 230, 232 (1967). Further, voluntary
disclosure is not contemplated by our statutory provisions concerning criminal discovery. See
NRS 174.235(1)
2

[Headnote 3]
3. Notwithstanding appellant's contention to the contrary, his conviction is supported by
substantial evidence. Hunt v. State, 92 Nev. 536, 554 P.2d 255 (1976).
Other contentions by appellant are without merit.
Affirmed.
____________________
shall, with intent to steal or appropriate to his own use, take from the person of another, without his consent, any
money, property or thing of value, shall be punished by imprisonment in the state prison for not less than 1 year
nor more than 10 years, and may be further punished by a fine of not more than $5,000.

2
Upon motion of a defendant the court may order the district attorney to permit the defendant to inspect and
copy or photograph any relevant:
1. Written or recorded statements or confessions made by the defendant, or copies thereof, within the
possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence
may become known, to the district attorney; . . .
____________
93 Nev. 344, 344 (1977) Loretta v. Sheriff
BRUCE ANTHONY LORETTA, aka CLAIBORNE, Appellant v.
SHERIFF, CLARK COUNTY, NEVADA, Respondent.
No. 9665
June 30, 1977 565 P.2d 1008
The Supreme Court held that in order to establish probable cause that appellant committed
the charged crimes, namely, two gross misdemeanors of assault with a deadly weapon by
reason of having pointed a gun at two police officers, it was incumbent upon the state to
submit evidence of appellant's present ability to use a loaded weapon.
Morgan D. Harris, Public Defender, and John H. Howard, Deputy Public Defender, Clark
1. Criminal Law.
In order to establish probable cause that appellant committed the charged crimes, namely, two gross
misdemeanors of assault with a deadly weapon by reason of having pointed a gun at two police officers, it
was incumbent upon the state to submit evidence of appellant's present ability to use a loaded weapon.
NRS 171.206, 200.471.
2. Assault and Battery.
An unloaded pistol may, under certain circumstances, be used as a deadly weapon; e.g., if the assailant
uses or attempts to use a pistol as a bludgeon, proof that it was loaded would not be required to support a
charge of assault with a deadly weapon; rather, whether the weapon was deadly would, under these
circumstances, be a question to be determined by the trier of fact. NRS 200.471.
OPINION
Per Curiam:
Appellant was ordered to stand trial on two gross misdemeanor counts of assault with a
deadly weapon. The charges resulted from appellant having pointed a gun at two Las Vegas
police officers.
A pretrial petition for habeas corpus contended the prosecuting attorney failed to produce
sufficient evidence, at the preliminary examination, to establish that appellant had probably
committed the charged crimes, as required by NRS 171.206. The habeas petition was denied
and the same contention is reasserted in this appeal.
Appellant argues we must reverse because there was no proof that the gun was loaded;
hence, the requisite present ability to commit the assaults was not shown. We agree.
[Headnotes 1, 2]
In order to establish probable cause that appellant committed the charged crimes, it was
incumbent upon the state to submit evidence of appellant's present ability to use a loaded
weapon.
1
See State of Nevada v. Napper, 6 Nev. 113, 115 (1870), where this court said:
The pistol held in the hand of defendant, capped, pointed at [the victims], and attempted to
be discharged, would not be a deadly weapon, unless loaded with something capable of
wounding when discharged. No presumption of such loading can arise under the statute.
(Emphasis added.) See NRS 200.471.
2

Here, the information alleges that appellant attempted to injure the two officers with a
present ability to use a deadly weapon . . . by pointing a firearm at [them]. Therefore, to
support the charges, it was incumbent on the prosecuting attorney to submit proof that the
weapon was loaded. Napper, supra.
____________________

1
An unloaded pistol may, under certain circumstances, which are not present here, be used as a deadly
weapon; e.g., if the assailant uses or attempts to use a pistol as a bludgeon, proof that it was loaded would not be
required to support a charge of assault with a deadly weapon; rather, whether or not the weapon is deadly would,
under these circumstances, be a question to be determined by the trier of fact. State v. McNeil, 53 Nev. 428, 4
P.2d 889 (1931). Accord, Price v. United States, 156 F. 950 (9th Cir. 1907).

2
1. As used in this section, assault means an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another.
2. Any person convicted of an assault shall be punished:
(a) If the assault is not made with use of a deadly weapon, or the present ability to use a deadly weapon, for
a misdemeanor.
(b) If the assault is made with use of a deadly weapon, or the present ability to use a deadly weapon, for a
gross misdemeanor. (Emphasis added.) The operative portion of the statute has not changed since 1870.
Accordingly, we reverse and remand. The district court is instructed to grant the petition
____________
93 Nev. 346, 346 (1977) Burton v. Sheriff
CYDNEY JO BURTON, Appellant, v. SHERIFF,
No. 9816
June 30, 1977 565 P.2d 1010
Appeal from order denying pretrial petition for a writ of habeas corpus, Eighth Judicial
Petitioner was indicted by the Clark County Grand Jury on a charge of grand larceny
whereupon she filed pretrial petition for habeas corpus. The district court denied the writ, and
petitioner appealed. The Supreme Court held that: (1) identity of name was sufficient to prove
identity of petitioner; (2) evidence was sufficient to support district judge's determination that
there was probable cause to believe that petitioner committed the charged offense.
Affirmed.
Oscar B. Goodman and William B. Terry, Las Vegas, for Appellant.
In testing an indictment or information, only probable cause of identity is required.
2. Names.
Identity of name is sufficient to prove identity of person in grand jury proceeding in absence of
contradictory evidence.
Even assuming there was some inadmissible evidence before grand jury which indicted defendant,
evidence, including victim's testimony that he saw defendant going through his closet where he had hid
$2,300 cash when he suspected that he had been drugged, was sufficient to support district
judge's determination that there was probable cause to believe that defendant
committed charged offense of grand larceny.
drugged, was sufficient to support district judge's determination that there was probable cause to believe
that defendant committed charged offense of grand larceny. NRS 172.155.
OPINION
Per Curiam:
Cydney Jo Burton was indicted by the Clark County Grand Jury on a charge of grand
larceny, a felony under NRS 205.220. She then filed a pretrial petition for habeas corpus in
the district court contending the indictment must be dismissed because (1) she was
insufficiently identified in the grand jury proceedings and (2) some of the evidence presented
to the grand jury was inadmissible. The district court denied habeas and, in this appeal,
Burton raises the same contentions.
William Dunlap, the victim, testified before the grand jury that he met Joellen Ziska,
Burton's codefendant, when she approached him in the bar of the Frontier Hotel, Las Vegas.
After about an hour of drinking and talking, he said he was going to his room. Ziska asked if
she could sleep on his couch and Dunlap acquiesced. After a short interval in Dunlap's room,
Burton arrived, apparently summoned by Ziska by phone while Dunlap was out of the room.
Soon the women asked Dunlap to order some cheeseburgers. The food arrived, they all ate,
and immediately thereafter Dunlap became extremely drowsy. Suspecting that he had been
drugged, he hid $2,300 cash in a jacket at the back of his closet. He further testified that
Burton had offered him some maroon and grey pills during the course of events. Finally, he
testified that he fell asleep, barely making it to his bed, and the last thing he remembered
seeing that night was Burton going through the jackets in his closet. In the morning the
money was gone.
[Headnotes 1, 2]
1. Burton's first argument is that there must be more than name identification to establish
she is indeed the same Cydney Jo Burton discussed during the grand jury proceeding. This
simply is not the law. In testing an indictment or information, only probable cause of identity
is required. Bandics v. Sheriff, 86 Nev. 746, 476 P.2d 7 (1970); Maskaly v. State, 85 Nev.
111, 450 P.2d 790 (1969). In fact, it has been held that identity of name is sufficient to prove
identity of person in the absence of contradictory evidence. Bayless v. United States, 381 F.2d
67 (9th Cir. 1967).
[Headnote 3]
2. Even if we accept Burton's conclusion that there was some inadmissable evidence
before the grand jury we perceive no reversible error. There was ample unchallenged
evidence to support the district judge's determination that there was probable cause to believe
that Burton committed the charged offense. NRS 172.155. See Kinsey v. Sheriff, 87 Nev.
361, 487 P.2d 340 (1971).
Affirmed.
____________
93 Nev. 348, 348 (1977) Estate of Neal v. Farmers Ins. Exch.
ESTATE OF LOUIS S. NEAL, By and Through Its Executrix, GEORGIA DELGADO, and
FLORETTA NEAL, JOSEPH NEAL and LORETTA NEAL, Minors, By and Through Their
Guardians of the Person, VIRGINIA HALL and JOHNNIE BOYD SCOTT, Appellants and
Cross-Respondents, v. FARMERS INSURANCE EXCHANGE, a Corporation, Respondent
and Cross-Appellant.
No. 8614
June 30, 1977 566 P.2d 81
Appeal and cross-appeal from summary judgment, Eighth Judicial District Court, Clark
County; J. Charles Thompson, Judge.
Insurance company sought a declaratory judgment precluding liability under the household
exclusion clause of an automobile liability policy. After the parties filed cross motions for
summary judgment, the district court held that the household exclusion clause was valid only
to the extent of limiting the insurance company's liability to the children of the insured for
personal injury and for death of their mother to the statutory minimum of $15,000 per person,
$30,000 per accident. On appeal and cross-appeal, the Supreme Court, Batjer, C. J., held that:
(1) as the policy had not been issued to satisfy the Motor Vehicle Safety Responsibility Act,
the provisions of that statute were inapplicable to it, and (2) the policy's household exclusion
clause was void insofar as it attempted to eliminate the minimum security for tort liability
required by statute, but was otherwise viable in that liability was limited to the statutory
minimum.
required by statute, but was otherwise viable in that liability was limited to the statutory
minimum.
Affirmed.
Rogers, Monsey & Woodbury, and Embry, Shaner & Lang, Las Vegas, for Appellants and
Cross-Respondents.
Austin, Thorndal & Liles, Las Vegas, for Respondent and Cross-Appellant.
1. Insurance.
Where a policy had not been issued as proof of financial responsibility to satisfy the mandates of the
Motor Vehicle Safety Responsibility Act, the provisions of that Act were inapplicable to the policy. NRS
485.010 et seq.
2. Insurance.
Automobile liability policy's household exclusion clause was void insofar as it attempted to eliminate the
minimum security for tort liability required by statute, but was otherwise viable in that liability was limited
to the statutory minimum rather than the larger limits otherwise provided by the policy. NRS 698.190,
698.200, subd. 3, 698.320.
OPINION
On June 15, 1974, Louis Neal was fatally injured when the automobile he was driving was
involved in a one car accident. His wife, Cornelius, was also killed, and their three minor
children, Floretta, Loretta, and Joseph, suffered personal injuries. Respondent Farmers
Insurance Exchange had issued an automobile liability insurance policy to Louis, as the
named insured, which covered the automobile and was in effect at the time of the accident.
This policy contained a household exclusion clause which provided: This policy does not
apply . . . (12) to the liability of any insured for bodily injury to (a) any member of the same
household of such insured except a servant, or (b) the named insured; . . . The policy further
specified: If the named insured . . . is an individual, the term named insured' includes his
spouse if a resident of the same household. At the time of the accident, Cornelius and the
children were members of Louis's household.
Farmers sought a declaratory judgment claiming the household exclusion clause precluded
its liability for any amount which Louis's estate might become obligated to pay the
children due to their bodily injuries and the alleged wrongful death of their mother.
which Louis's estate might become obligated to pay the children due to their bodily injuries
and the alleged wrongful death of their mother. Appellants answered and contended the
exclusion was void because it violated Nevada's Motor Vehicle Insurance Act, NRS Ch. 698,
and Motor Vehicle Safety Responsibility Act, NRS Ch. 485. After the parties filed
cross-motions for summary judgment, the district court found:
[T]hat the insurance policy . . . was issued by . . . Farmers Insurance Exchange to
Louis S. Neal pursuant to . . . the Motor Vehicle Insurance Act, N.R.S. Chapter 698.
That said policy was not certified nor required to be issued under the Nevada Motor
Vehicle Safety Responsibility Act, N.R.S. Chapter 485. That said automobile insurance
must contain minimum security for tort liabilities as defined and required by Chapter
698 notwithstanding any contrary provisions in said policy. That the minimum security
for tort liabilities is defined in N.R.S. 698.320 and is $15,000 per person, $30,000 per
accident. That a contract of insurance issued pursuant to Chapter 698 is only required to
meet the requirements of said Chapter up to the liability limits of $15,000 per person,
$30,000 per accident, and that the household exclusion clause is therefore valid for any
amounts above the minimum liability.
Accordingly, the district court held Farmers would not be liable for any amount in excess
of the $15,000/$30,000 statutory limits set forth in NRS Ch. 698. Appellants contend both
NRS Ch. 485 and NRS Ch. 698 void the household exclusion to the full extent of policy
coverage, not just the statutory minimum of NRS Ch. 698. Farmers cross-appeals contending
the exclusion is not violative of NRS Ch. 698 and therefore it has no liability whatsoever.
Since we conclude that NRS Ch. 485 has no applicability to the factual circumstances of this
case and the household exclusion clause contravenes the mandates of NRS Ch. 698 only to
the extent of the statutory limits set forth therein, the district court's judgment is affirmed.
[Headnote 1]
1. Although appellants concede Louis Neal's insurance policy was neither issued pursuant
to nor certified in accordance with Nevada's Motor Vehicle Safety Responsibility Act, NRS
Ch. 485, as proof of his financial responsibility, they nevertheless contend the provisions of
that Act are a part of every policy issued in this state. However, when a policy has not been
issued as proof of financial responsibility to satisfy the mandates of NRS Ch. 4S5
the mandates of NRS Ch. 485, the provisions of that chapter have no applicability to such
policy. Miller v. State Farm Mutual Automobile Ins. Co., 466 P.2d 336 (Kan. 1970); Lewis v.
Mid-Century Insurance Company, 449 P.2d 679 (Mont. 1968); Havlik v. Bittner, 74 N.W.2d
798 (Wis. 1956); 12 Couch on Insurance 2d 45:736 at 647-48 (1964). Indeed, we have
previously noted the non-applicability of NRS Ch. 485 to policies not issued pursuant to its
requirements. Universal Underwriters v. Snyder, 81 Nev. 315, 318-19 n. 3, 402 P.2d 483, 485
n. 3 (1965).
[Headnote 2]
2. Respondent's contention that Nevada's Motor Vehicle Insurance Act, NRS Ch. 698,
does not render the household exclusion clause void is equally without merit. That Act
requires an owner of a motor vehicle registered in the state to provide, by a contract of
insurance or by qualifying as a self-insurer, security for the payment of tort liabilities arising
from the maintenance or use of the motor vehicle. NRS 698.190. Pursuant to NRS 698.320,
this requirement is satisfied by providing:
1. Subject to subsection 2, liability coverage of not less than $15,000 for all
damages arising out of bodily injury or death sustained by any one person as a result of
any one accident applicable to each person sustaining injury caused by accident arising
out of ownership, maintenance, use, loading or unloading of the secured vehicle;
2. Liability coverage of not less than $30,000 in aggregate for all damages arising
out of bodily injury or death sustained by two or more persons as a result of any one
accident arising out of ownership, maintenance, use, loading or unloading of the
secured vehicle;
3. Liability coverage of not less than $5,000 for all damages arising out of injury to
or destruction of property, including the loss of use thereof, as a result of any one
accident arising out of ownership, maintenance, use, loading or unloading of the
secured vehicle; . . .
The Act specifically prohibits an insurer from excluding this required minimum security
for tort liability. NRS 698.200(3). Therefore, respondent's household exclusion clause, insofar
as it attempts to eliminate the minimum security, contravenes the statutory mandates of NRS
Ch. 698 and is void. State Farm Mut. Auto. Ins. v. Hinkel, 87 Nev. 478, 488 P.2d 1151
(1971).
3. On the ground that the household exclusion clause is void, appellants contend the
amount of liability which Farmers might incur should be governed by the larger limits of
coverage provided by Louis's policy and not the minimum coverage set forth in NRS Ch. 698.
But for the statutory prohibitions of NRS Ch. 698, the household exclusion clause would be
valid and preclude Farmers' liability. Lee v. State Farm Mutual Automobile Insurance Co.,
507 P.2d 6 (Ore. 1973); McManus v. State Farm Mutual Automobile Ins. Co., 463 S.W.2d
702 (Tenn. 1971); 12 Couch on Insurance 2d 44:502 at 61 (1964). NRS 698.200(2)
specifically provides: Notwithstanding any contrary provision in it, every contract of liability
insurance for injury, wherever issued, covering ownership, maintenance or use of a motor
vehicle, . . . includes . . . minimum security for tort liabilities required by this chapter, while it
is in this state, . . . In light of this provision and because the household exclusion would
otherwise be valid, the insurance policy here need provide nothing more than the minimum
security required by the Act, and, beyond this minimum security, the exclusionary clause is
viable. Cf. Arceneaux v. State Farm Mutual Automobile Ins. Co., 550 P.2d 87 (Ariz. 1976);
State Farm Mutual Auto. Ins. Co. v. Shelly, 231 N.W.2d 641 (Mich. 1975); Anno., 29
A.L.R.2d 817 (1953).
Affirmed.
____________
93 Nev. 352, 352 (1977) Cosey v. State
DONNELL COSEY, Appellant, v. THE STATE
No. 9171
June 30, 1977 566 P.2d 83
Goldman, Judge.
Defendant was convicted before the district court of robbery, received an enhanced
sentence for use of a deadly weapon in commission of that crime, and he appealed. The
Supreme Court held that (1) while the prosecutor's comment during closing argument If you
cut [defendant] loose, you are going to be cutting loose a person who is going to be out there
to rob you or I was improper, defense counsel, after the court declined to grant his motion
for mistrial, did not pursue the matter further and chose not to seek a corrective
instruction; under these circumstances and since the case was free from doubt, error
requiring reversal did not occur, {2) defendant's failure to make any showing that he was
prejudiced by the allegedly erroneous admission of a hearsay statement into evidence
vitiated that claim of error, and {3) prosecutor's examination of one state witness, who
was asked whether she had received any threats regarding her testimony, was a proper
inquiry into matters relevant to the witness' credibility and reasons why she was
recanting her prior statement given to law enforcement officials.
93 Nev. 352, 353 (1977) Cosey v. State
pursue the matter further and chose not to seek a corrective instruction; under these
circumstances and since the case was free from doubt, error requiring reversal did not occur,
(2) defendant's failure to make any showing that he was prejudiced by the allegedly erroneous
admission of a hearsay statement into evidence vitiated that claim of error, and (3)
prosecutor's examination of one state witness, who was asked whether she had received any
threats regarding her testimony, was a proper inquiry into matters relevant to the witness'
credibility and reasons why she was recanting her prior statement given to law enforcement
officials.
Affirmed.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, Clark
1. Criminal Law.
Refusal to give proposed instruction was not error where the law encompassed therein was substantially
covered by other instructions given to the jury.
2. Criminal Law.
Trial court properly precluded defense counsel's attempt to read from a court decision during final
argument to jury.
3. Criminal Law.
While the prosecutor's comment during closing argument if you cut [defendant] loose, you are going to
be cutting loose a person who is going to be out there to rob you or I was improper, defense counsel, after
the court declined to grant his motion for mistrial, did not pursue the matter further and chose not to seek a
corrective instruction; under these circumstances and since the case was free from doubt, error requiring
reversal did not occur.
4. Criminal Law.
Defendant's failure to make any showing that he was prejudiced by the allegedly erroneous admission of a
hearsay statement into evidence vitiated that claim of error. NRS 47.040, subd. 1.
5. Witnesses.
Prosecutor's examination of one state witness, who was asked whether she had received any threats
regarding her testimony, was a proper inquiry into matters relevant to the witness' credibility and reasons
why she was recanting her prior statement given to law enforcement officials. NRS 50.075.
OPINION
Per Curiam:
Appellant was convicted by jury of robbery, a violation of NRS 200.3S0, and, pursuant to
NRS 193.165, received an enhanced sentence for use of a deadly weapon in the
commission of that crime.1 Here, he contends the district court erred by {1) refusing to
give a proposed instruction, {2) refusing to allow his counsel to read from a court decision
during final argument, {3) failing to grant a mistrial due to the prosecutor's remarks to
the jury during closing argument, {4) admitting into evidence a hearsay statement, and
{5) allowing the prosecutor to prejudicially question a witness.
93 Nev. 352, 354 (1977) Cosey v. State
NRS 200.380, and, pursuant to NRS 193.165, received an enhanced sentence for use of a
deadly weapon in the commission of that crime.
1
Here, he contends the district court erred
by (1) refusing to give a proposed instruction, (2) refusing to allow his counsel to read from a
court decision during final argument, (3) failing to grant a mistrial due to the prosecutor's
remarks to the jury during closing argument, (4) admitting into evidence a hearsay statement,
and (5) allowing the prosecutor to prejudicially question a witness. We perceive no error.
[Headnote 1]
1. Since the law encompassed in his proposed instruction was substantially covered by
other instructions given to the jury, appellant's first contention is without merit. Passarelli v.
State, 93 Nev. 292, 564 P.2d 608 (1977); Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975).
[Headnote 2]
2. Notwithstanding appellant's second contention to the contrary, the district court
properly precluded defense counsel's attempt to read from a court decision during final
argument to the jury. State v. Shelton, 431 P.2d 201 (Wash. 1967).
[Headnote 3]
3. Appellant next contends he should have been granted a mistrial because, during final
argument, the prosecutor commented: If you cut Donnell Cosey loose, you are going to be
cutting loose a person who is going to be out there to rob you or I. This comment was
improper. However, after the trial court declined to grant Cosey's motion for mistrial,
defense counsel did not pursue the matter further and chose not to seek a corrective
instruction.
____________________

1
1. Robbery is the unlawful taking of personal property from the person of another, or in his presence,
against his will, by means of force or violence or fear of injury, immediate or future, to his person or property, or
the person or property of a member of his family, or of anyone in his company at the time of the robbery. Such
force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to
the taking, in either of which cases the degree of force is immaterial. If used merely as a means of escape, it does
not constitute robbery. Such taking constitutes robbery whenever it appears that, although the taking was fully
completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of
force or fear.
1. Any person who uses a firearm or other deadly weapon in the commission of a crime shall be punished
by imprisonment in the state prison for a term equal to and in addition to the term of imprisonment prescribed by
statute for such crime. The sentence prescribed by this section shall run consecutively with the sentence
prescribed by statute for such crime.
93 Nev. 352, 355 (1977) Cosey v. State
court declined to grant Cosey's motion for mistrial, defense counsel did not pursue the matter
further and chose not to seek a corrective instruction. Under these circumstances and since
the case is free from doubt, we conclude that error requiring a reversal did not occur. Moser
v. State, 91 Nev. 809, 544 P.2d 424 (1975).
[Headnote 4]
4. Appellant argues the district court erred by admitting a hearsay statement into evidence.
However, he has failed to make any showing that he was prejudiced by the statement.
[E]rror may not be predicated upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected, . . . NRS 47.040(1).
[Headnote 5]
5. Finally, appellant contends the court erred by permitting the State to ask one of its
witnesses whether she had received any threats regarding her testimony. This contention
arose after her credibility was placed in issue because of a prior inconsistent statement she
had given to law enforcement officials. Although she testified otherwise, she told the court
outside the presence of the jury that threats had indeed been made. The credibility of a
witness may be attacked by any party, including the party calling him. NRS 50.075. Here,
the prosecutor's examination was a proper inquiry into matters relevant to the witness's
credibility and reasons why she was recanting her prior statement. See Thompson v. State,
541 P.2d 1328 (Okla.Crim.App. 1975); People v. Pruitt, 318 P.2d 552 (Cal.App. 1957);
Luker v. State, 125 S. 788 (Ala.App. 1930).
Affirmed.
____________
93 Nev. 355, 355 (1977) Covington Bros. v. Valley Plastering, Inc.
COVINGTON BROTHERS, a California Corporation, Appellant, v. VALLEY
PLASTERING, INC., a Nevada Corporation, Respondent.
No. 8519
July 1, 1977 566 P.2d 814
Appeal from judgment of Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Subcontractor brought action against general contractor for housing project to obtain
foreclosure of mechanic's lien and to obtain damages for breach of contract under which
subcontractor was to perform exterior "stucco" job.
to obtain damages for breach of contract under which subcontractor was to perform exterior
stucco job. The district court entered judgment for subcontractor, and general contractor
appealed. The Supreme Court, Mowbray, J., held that: (1) finding to effect that
subcontractor's work, in applying lath backing for stone veneer, was not work within scope of
its contract was supported by substantial evidence; (2) finding that subcontractor had not
committed an anticipatory repudiation of contract was supported by substantial evidence; (3)
gross profit lost, rather than net profit lost, was the proper measure of subcontractor's
damages for breach of contract; and (4) damages allegedly resulting from breach of contract
were not too speculative to support an award.
Affirmed.
Jones, Jones, Bell, LeBaron & Close, Las Vegas, for Appellant.
John Peter Lee, Las Vegas, for Respondent.
1. Contracts; Mechanics' Liens.
In subcontractor's action against general contractor for housing project to obtain foreclosure of
mechanic's lien and to obtain damages for breach of contract under which subcontractor was to perform
exterior stucco job, finding to effect that subcontractor's work, in applying lath backing for stone veneer,
was not work within scope of its contract, and, thus, that subcontractor was entitled to an additional
payment for such work was supported by substantial evidence.
2. Contracts.
A contractual anticipatory repudiation must be clear, positive and unequivocal.
3. Contracts.
Whether specific conduct or language is sufficiently clear to constitute an anticipatory repudiation of a
contract must be decided in light of total factual context of the individual case.
4. Contracts; Mechanics' Liens.
exterior stucco job, finding that such subcontractor, which failed to respond to general contractor's letter
requesting written assurance that subcontractor was willing to perform second phase of the contract, had
not committed an anticipatory repudiation of contract was supported by substantial evidence.
5. Damages.
An award of net profits rather than gross profits for breach of contract is proper where overhead has been
reduced as a result of the breach which has caused an interruption or reduction in business operations.
6. Damages.
Where overhead expenses are saved as result of breach of contract, proper measure of recovery is net, not
gross, profit; but where such expenses are constant, and no saving occurs, the rule is otherwise.
7. Damages.
Gross profits lost, rather than net profits lost, was the proper measure of subcontractor's damages for
general contractor's breach of contract under which subcontractor was to perform exterior stucco job,
absent any indication that subcontractor's overhead was reduced as a result of the breach.
8. Damages.
Future profits are not per se speculative so as to preclude an award of lost future profits as damages for
breach of contract.
9. Damages.
exterior stucco job, the damages allegedly resulting from breach of second phase of contract were not too
speculative to support an award, particularly in light of fact that subcontractor had completed the nearly
identical first phase of the contract, and, thus, had a reliable basis for computing its damages.
OPINION
Valley Plastering, Inc., the respondent, commenced this action against Covington
Brothers, the appellant, seeking (1) foreclosure of a mechanic's lien and (2) damages for
breach of contract. Both causes of action arose out of a housing construction project in Las
Vegas. The district judge ruled in favor of Valley, ordering foreclosure of the lien in the
amount of $3,858.10 and awarding $20,000 damages for breach of contract.
The issues presented are whether the court erred in its findings that Valley was entitled to
recover $3,858.10 under its mechanic's lien and that Covington had breached its contract with
Valley. If Covington did breach its contract, then we must determine whether the $20,000
damage award was proper.
1. The Facts.
Covington, as owner and general contractor for a housing project called El Sol Del Pueblo,
entered into a written contract with Valley to [f]urnish all necessary labor, equipment and
materials for [a] complete exterior plaster (stucco) job, covering 48 four-plex buildings. The
construction consisted of two phases: the first included 22 units, and the second, 26 units.
two phases: the first included 22 units, and the second, 26 units.
Covington agreed to pay Valley $62,106 upon completion of the first phase, and $73,398
when the second phase was completed.
A dispute arose soon after work started regarding who had the responsibility of applying
the lath backing for the stone veneer on the buildings. Rather than delay the construction, Mr.
Bryan, project superintendent for Covington, told Mr. Friel, president of Valley, to go ahead
and do the work. The testimony is conflicting, however, whether Bryan unconditionally
promised Friel payment for the additional work or whether he promised payment only if
Covington's main office should determine that the work was not within the scope of the
contract.
Before commencement of the second phase of the project, Covington sent letters to all its
subcontractors, including Valley, asking for a written assurance of their intent to perform
phase 2. Valley did not comply with Covington's request. The testimony is in conflict whether
oral assurances were given. Valley stated they were given. Covington claimed, however, that
Valley had previously expressed an unwillingness to go forward unless the contract price for
phase 2 was increased. Covington later notified Valley that it had selected another
subcontractor. This lawsuit resulted.
2. The Issues.
[Headnote 1]
Covington urges that Valley should not be awarded $3,858.10 for applying the lath
backing for the stone veneer. Covington presented evidence indicating that plaster
subcontractors customarily did lathing work and urged that the terms of the contract indicated
that the work was included in the contract price.
The terms of the contract are ambiguous. While the contract specifies all lath and plaster
required for a complete job, it also refers to work required for a complete stucco exterior. No
reference is made to portions of the exterior that were brick or stone. Valley offered evidence
that it did not consider the work within the scope of the contract and that it did the work only
because of Covington's expressed assurance of additional payment.
1
The court found for
Valley, and the finding is supported by substantial evidence. It may not be disturbed on
appeal.
____________________

1
From transcript of June 1975 trial:
Q [by John Peter Lee, Esq.] What was said by you, and what was said by Mr. Bryan about the extras?
A [by Mr. Friel] Well, I askedI told Bill [Bryan] that it wasn't
appeal. Shell Oil Co. v. Ed Hoppe Realty Inc., 91 Nev. 576, 540 P.2d 107 (1975).
Covington suggests that it did not breach its contract by awarding phase 2 to another
subcontractor, because Valley had already committed an anticipatory repudiation of its
contractual obligations. The record shows that Covington sent registered form letters to all
phase 1 subcontractors, requesting written assurance that they were ready and willing to
perform phase 2. It is undisputed that Valley received such a letter and failed to provide a
written response.
The testimony is conflicting whether Valley gave oral assurance of performance. The
uncertainty arose from the fact that a price increase for phase 2 was discussed. Valley admits
requesting an increase, but denies having conditioned further performance on its being
granted.
2
On March 25, 1974, Covington informed Valley by letter that it had selected
another subcontractor to perform, and on April 2, 1974, engaged Southwest Construction Co.
for that purpose. Valley, in return, by certIfied letter dated April 3, 1974, advised Covington
that it was willing to perform phase 2. That letter stated, in part:
Mr. Friel, president of Valley Plastering, Inc., informed your representative, William
Bryan, that his firm did intend to proceed with Phase Two, but demanded payment in
full of all the monies due under Phase One. Therefore, the statement made by you in
your March 25, 1974 letter are incorrect. Valley Plastering, Inc., does intend to do
Phase Two but must insist on payment in full of the monies now due under Phase
One, to-wit: the sum of $3,S5S.10.
____________________
on the plans or the contract for me to supply the backing for the block veneer, that my job was only do the
exterior lathing and plastering on the exterior walls which were supposed to be stucco.
Q And what was Mr. Bryan's response to that?
A Well, be said that for me to go ahead and do it so I wouldn't delay the job, and we would get it ironed out,
and that he would take the money off the block layer and pay me for it as soon as they could have a meeting.

2
Id.:
Q Did you have any future discussion with anyone from Covington about doing it [phase 2] or not doing it
after you received Exhibit 12 [Covington's letter of Feb. 8, 1974, to all subcontractors re phase 2]?
A Yes. I talked with Bill Bryan.
Q When was that new, Mr. Friel?
A It would have been towards the end of February. I talked to him about it. I asked him if on uniton phase
two if we would be able to get any more money, and he says No. He asked me if I was planning on continuing
and doing phase two. At that time I says, Yes, because I have a contract that I'm obligated to fill with no
increase. I said, I plan on filling it.
Q When was that, Mr. Friel?
A That was toward the end of February.
1974 letter are incorrect. Valley Plastering, Inc., does intend to do Phase Two but must
insist on payment in full of the monies now due under Phase One, to-wit: the sum of
$3,858.10.
We have been informed that you intend to use others to do work that Valley
Plastering, Inc., contracted to do. If this occurs, then we intend to proceed against your
firm for the damages suffered by Valley Plastering, Inc., in the amount of the profit
which they would otherwise have realized had they been allowed to proceed with the
second phase in the sum of $20,000.00.
Your prompt attention to these matters is encouraged and we will expect payment
forthwith of the balance due under the old contract so that we may proceed to perform
the second phase immediately.
[Headnotes 2, 3]
A contractual anticipatory repudiation must be clear, positive, and unequivocal. See Kahle
v. Kostiner, 85 Nev. 355, 455 P.2d 42 (1969). Whether specific conduct or language is
sufficiently clear to constitute an anticipatory repudiation must be decided in light of the total
factual context of the individual case. See Early v. Santa Clara Broadcasting Co., 27 Cal.Rptr.
212, 214 (Cal.App. 1963).
[Headnote 4]
The court in this case chose to believe Valley's version of the facts and in so doing found
that an anticipatory repudiation did not occur. Such a finding was within the court's
discretion. Substantial evidence supports the finding, and it therefore must stand. Shell Oil
Co. v. Ed Hoppe Realty Inc., 91 Nev. 576, 540 P.2d 107 (1975).
Finally, Covington contends that the court erred in awarding Valley a gross profit lost on
phase 2 of the contract. It is urged that, in addition to the cost of labor and material, the court
should have deducted some portion of the company's overhead: i.e., the officers' salaries,
depreciation, interest, office rent.
Covington cites four cases from neighboring jurisdictions to support its contention that the
proper measure of damages for a breach of contract is net, not gross, profit. The issue has not
yet been decided by this court.
3
The four cases that Covington relies upon are: Perfecting
Serv. Co. v. Product Dev. & Sales Co., 131 S.E.2d 9 {N.C. 1963); Gerwin v. Southeastern
Cal. Ass'n of Seventh Day Adv., 92 Cal.Rptr.
____________________

3
The two Nevada cases cited hold only that the nonbreaching party is entitled to the total contract price less
cost of performing. See Fuller v. United Elec. Co., 70 Nev. 448, 273 P.2d 136 (1954); Bradley v.
relies upon are: Perfecting Serv. Co. v. Product Dev. & Sales Co., 131 S.E.2d 9 (N.C. 1963);
Gerwin v. Southeastern Cal. Ass'n of Seventh Day Adv., 92 Cal.Rptr. 111 (Cal.App. 1971);
West Coast Winery, Inc. v. Golden West Wineries, 158 P.2d 623 (Cal.App. 1945); and Lee v.
Durango Music, 355 P.2d 1083 (Colo. 1960).
In Perfecting Serv. Co., the court held that the measure of damages for breach of a contract
to manufacture and deliver a patented mechanical device for automobiles was the contract
price less the cost of performance, that cost to include overhead charges. This holding is
limited to contracts dealing with the supply of goods manufactured in volume, where
overhead can be accurately allocated as a per-unit cost.
In cases, such as the one at bar, where the seller has an established and going business
and is manufacturing and selling goods to various buyers, overhead and fixed charges
constitute elements of cost of manufacture and are the subject of proper inquiry, and
they are susceptible of approximate ascertainment.
Id. at 22. What portion of Valley's overhead should be apportioned to the project concerned
herein cannot be determined with the same accuracy. Moreover, to make such a deduction
when a contractor is prevented from performing a contract is contrary to the underlying
purpose of an award of damages.
[Headnote 5]
The other three cases cited are distinguishable on another basis. Lee concerned an action
by a tenant against a landlord for breach of a lease. Tenants sought profits lost from operation
of a music store as a result of being excluded from part of the leased premises. An award of
net profits rather than gross is proper where overhead has been reduced as a result of the
breach, which caused an interruption or reduction in business operations. No reduction was
shown in the instant case, nor is one necessarily inferred from the facts presented.
Covington cites two California cases in further support of its argument. West Coast
Winery, Inc. is distinguishable as involving a sale-of-goods contract. In that case, however,
overhead charges required to be deducted were those which were saved by virtue of the
breach:
Here, to allow plaintiff to recover the retail sale price of the wine would be to put it in
a better position than it would have been in if defendant had returned the wine
according to the exchange agreement. . . .
____________________
Nevada-California-Oregon Ry., 42 Nev. 411, 178 P. 906 (1919). That the cost of performing includes company
overhead is supported only by appellant's own assertion.
the wine would be to put it in a better position than it would have been in if defendant
had returned the wine according to the exchange agreement. . . . It would then have
been necessary for plaintiff in order to sell it at retail to provide bottles or other
containers.
. . . The labor necessary to bottle or otherwise package this quantity of wine for retail
sale would also be an important item.
Id. at 625-626.
In Gerwin, plaintiff sued for breach of a contract to supply restaurant and bar equipment
for a proposed business. Plaintiff was unable to secure substitute equipment, and the business
never went into operation. In that case, it would have been error to award gross profits lost,
compensating plaintiff for overhead charges never incurred. In fact, the court denied any
recovery for lost profits as not having been proved with reasonable certainty.
[Headnote 6]
Where overhead expenses are saved as a result of a breach of contract, the proper measure
of recovery is net, not gross, profit. Where such expenses are constant, however, and no
saving occurs, the rule is otherwise. In Automatic Vending Co. v. Wisdom, 6 Cal.Rptr. 31,
33-34 (Cal.App. 1960), the court stated:
[T]he testimony shows that the respondent's costs of doing business were fixed and
would not diminish because of the loss of the right to place one of its cigarette vending
machines in appellant's cafe. While the general rule is that one will not be permitted to
recover gross profits . . . in such a situation, the gross profits involved would also
constitute the net profits which the plaintiff would have earned under the agreement.
Accord, Dallman Co. v. Southern Heater Co., 68 Cal.Rptr. 873 (Cal.App. 1968). See also
Distillers Distrib. Corp. v. J. C. Millett Co., 310 F.2d 162 (9th Cir. 1962); Resolute Ins. Co.
v. Percy Jones, Inc., 198 F.2d 309 (10th Cir. 1952); McCollum v. O'Neil, 281 P.2d 493
(Mont. 1954).
[Headnote 7]
Covington urges that this rule places Valley in a superior position. This argument
misconstrues the purpose of the computation of damages in the event of a breach. Had Valley
never been awarded the plastering contract, it would have been required to bear
approximately the same overhead charges. Admittedly, the award of gross profit puts Valley
in a position superior to that held before the contract was secured.
superior to that held before the contract was secured. However, it is not this prior position the
court seeks to approximate but, rather, Valley's position had the contract been performed.
While it is possible that some portion of Valley's overhead was saved by virtue of the
breach and that this saving should have been considered in computing the damage award,
Covington offered no evidence to establish the fact or the amount of the savings. This court
has held, in Cladianos v. Friedhoff, 69 Nev. 41, 240 P.2d 208 (1952), that where no showing
is made as to the cost of performing the remainder of a contract, it will be presumed that there
was no cost.
[Headnotes 8, 9]
Covington also contends that the alleged damages were too speculative to support an
award, but offers no authority to support this contention, which is totally without merit.
Future profits are not per se speculative and, when based on a fixed contract, would rarely be
held as such. Furthermore, in this case Valley had a particularly reliable basis for computing
its damages, having already completed a nearly identical portion of the contract.
In summary, we conclude that conflicting evidence was presented whether Valley was
promised payment above the contract price for certain lathing work and whether Valley was
guilty of an anticipatory repudiation of its contract with Covington. The court, as the trier of
fact, found in favor of Valley on both issues, and its decision, supported by the record, may
not be disturbed on appeal.
Neither did the court err in awarding gross, rather than net, profit as the measure of
damages, since no proof was presented that the breach in any way reduced Valley's overhead
expenses. The purpose of an award of damages is to put the nonbreaching party in as good a
position as if the contract had been performed. Where that party's overhead remains constant
notwithstanding the breach, an award of net profit would put the party only where it would
have been had the contract never been secured.
The judgment is affirmed.
4

____________________

4
Pursuant to the authority delineated in the Nevada Constitution, art. 6, 19, the Chief Justice recalled the
Honorable David Zenoff, a retired Justice of this court, to participate in this case.
____________
93 Nev. 364, 364 (1977) Dearman v. State
JESSIE EYLER DEARMAN, Appellant, v. THE
No. 9209
July 1, 1977 566 P.2d 407
Appeal from judgment of conviction for first degree murder, Eighth Judicial District
Court, Clark County; Joseph S. Pavlikowski, Judge.
The Supreme Court, Manoukian, J., held that: (1) evidence of premeditation was sufficient
to sustain conviction; (2) fact that prosecutor made certain comments during closing
argument in regard to his responsibility as a prosecutor and reverence for life, in regard to his
personal views on mercy and justice and in regard to fact that victim would not be able to
keep New Year's resolution or see roses bloom in spring was not error requiring reversal; and
(3) admission of three color photographs, which depicted bullet entry and exit wounds on
victim's body, was not an abuse of discretion.
Affirmed.
Morgan D. Harris, Public Defender, and Stephen L. Huffaker, Deputy Public Defender,
1. Criminal Law.
It is function of jury and not reviewing court to weigh the evidence.
2. Criminal Law.
Where there is substantial evidence in record to support verdict of jury, it will not be overturned by
appellate court.
3. Homicide.
Intent to kill, as well as premeditation, may be ascertained or deduced from the facts and circumstances
of the killing, such as use of a weapon calculated to produce death, the manner of use, and the attendant
circumstances. NRS 200.010, 200.030.
4. Criminal Law.
Jury is at liberty to believe whichever witnesses it finds most credible in a criminal proceeding in which
the evidence is conflicting.
5. Homicide.
Evidence of premeditation was sufficient, despite accused's claims that he was under influence of alcohol
and drugs, to sustain his conviction of first degree murder. NRS 200.010, 200.030.
6. Criminal Law.
Improper remarks made by prosecutor in closing argument will not be considered on appeal if not
objected to at time of trial.
7. Criminal Law.
If guilty verdict is free from doubt, even rather aggravated prosecutorial remarks will not justify reversal.
8. Criminal Law.
Fact that prosecutor made comments during closing argument in regard to his responsibility as a
prosecutor and reverence for life, in regard to his personal views on mercy and justice and in regard to fact
that deceased victim would not be able to keep New Year's resolutions or see roses bloom in spring was not
error requiring reversal in first degree murder prosecution in which the guilty verdict was free from doubt
and in which accused had not objected to such comments. NRS 200.010, 200.030.
9. Criminal Law.
In prosecution for first degree murder, admission of three color photographs, which depicted bullet entry
and exit wounds on victim's body, which were used to illustrate and explain circumstances of the crime and
nature of the victim's wounds and which were not gruesome or inflammatory, was not an abuse of
discretion, notwithstanding contentions that prejudicial effect of photographs outweighed their probative
value and that photographs were merely cumulative of other direct testimony. NRS 200.010, 200.030.
10. Criminal Law.
It is in sound discretion of trial court to admit or exclude photographs, and, absent a showing of abuse of
such discretion, the decision will not be overturned.
OPINION
This is an appeal from a judgment of conviction wherein Appellant was found guilty, by
jury verdict, of the crime of first degree murder. (NRS 200.010; 200.030.) The trial judge
thereafter sentenced him to life imprisonment with the possibility of parole.
Dearman was convicted of the murder of one Dennis Wolfe. The homicide occurred at
approximately 8:30 p.m., on December 31, 1974, in a North Las Vegas, Nevada, bar and
restaurant known as Cal's Gin Mill. It was undisputed at the trial that Dearman shot Wolfe
seven times with a .45 caliber automatic pistol at close range. The shooting was observed by
several patrons of the establishment who knew both the victim and the Appellant. Dearman's
only defense presented at trial was that he was under the influence of a combination of
alcohol and drugs at the time of the shooting and therefore could not form the necessary
intent to commit the crime of first degree murder.
and drugs at the time of the shooting and therefore could not form the necessary intent to
commit the crime of first degree murder.
Appellant has raised three specifications of error for our determination. (1) The evidence is
insufficient to support the conviction of first degree murder; (2) Improper and prejudicial
statements made by the prosecutor during his closing argument affected the substantial rights
of the defendant; (3) The Court erred in admitting Exhibits 4, 7, and 8 (color photographs of
the victim) into evidence over objection of defense counsel.
1. The Evidence is Insufficient to Support a Conviction or First Degree Murder:
Here, Appellant asserts that the State did not present sufficient evidence to prove beyond a
reasonable doubt that he was capable of forming the premeditation necessary to support a
conviction of first degree murder. We disagree.
Dearman took the stand at trial and testified that he could not remember anything
contemporaneous with the shooting, or thereafter, until waking up the next day in a park in
California. He also testified that in addition to the alcohol that he had consumed throughout
the day, he had ingested two pills, possibly barbiturates, just prior to going to the scene of the
shooting. Dearman's mother, Delores Hutchens, testified that he was drunk at about 6:30
p.m., and that she had never seen him drink so much.
That Appellant had been drinking heavily since approximately 1:00 p.m., the afternoon of
the incident is undisputed. However, it is the evidence of the degree of such intoxication
which is conflicting. During the trial, witnesses testified that the decedent and Appellant each
consumed several drinks from 1:00 p.m. to 6:30 p.m. on the day of the incident. Other
evidence offered at trial showed that on two occasions the Appellant was capable of driving
an automobile without incident, that during the relevant periods of time the Appellant was
capable of carrying on and understanding a normal conversation, that he was capable of
playing pool, that he knew the location of Cal's Gin Mill as he drove to that location from his
home accompanied by his mother and a friend approximately one half hour prior to the
shooting, that prior to the shooting he had been playing 21, and that at no time prior to the
shooting did anyone notice anything out of the ordinary about the Appellant other than that he
was to some degree intoxicated.
There was also testimony from which the jury could have reasonably inferred that
Appellant had left the bar a few minutes prior to the shooting for the express purpose of
obtaining the murder weapon.
reasonably inferred that Appellant had left the bar a few minutes prior to the shooting for the
express purpose of obtaining the murder weapon.
William Glenn, an acquaintance, characterized Dearman as being pretty looped, shortly
after the shooting, but added that there was nothing about his manner that would indicate any
unusual degree of intoxication.
The record further reveals that immediately following the shooting Appellant walked
briskly out of the bar, entered his automobile, and drove at a high rate of speed out of the
parking lot from where the vehicle was located. The jury could have reasonably inferred that
these actions taken by the Appellant immediately after the shooting were for the purpose of
effecting an escape from the scene, and further, that the Appellant knew at the time of the
shooting that the act was wrong.
[Headnotes 1, 2]
It is well established in Nevada that it is the function of the jury and not the reviewing
court to weigh the evidence. McGuire v. State, 86 Nev. 262, 267, 468 P.2d 12, 15 (1970). It
is also well recognized that where there is substantial evidence in the record to support the
verdict of the jury, it will not be overturned by an appellate court. Tellis v. State, 85 Nev.
679, 680, 462 P.2d 526, 527 (1969). See also, McGuire v. State, 86 Nev. 262, 468 P.2d 12
(1970).
[Headnotes 3-5]
In this state it is well-recognized that in a prosecution for murder evidence of the
intoxication of the accused is relevant for the purpose of a jury determination whether the
defendant lacked the capacity to deliberate and premeditate required of first degree murder.
Jackson v. State, 84 Nev. 203, 206, 438 P.2d 795, 797 (1968). Intent to kill, as well as
premeditation, may be ascertained or deduced from the facts and circumstances of the killing,
such as use of a weapon calculated to produce death, the manner of use, and the attendant
circumstances. See Moser v. State, 91 Nev. 809, 544 P.2d 424 (1975). Here, the jury had such
evidence presented for its consideration and further heard evidence of Appellant's speech,
demeanor, and movement. Although the evidence is conflicting, the jury was at liberty to
believe whichever witnesses it found most credible. Id. We perceive no error that would
require a reversal of the jury's verdict on this issue, in that a finding of willful, deliberate, and
premeditated killing was permissible despite the defendant's claim of intoxication.
despite the defendant's claim of intoxication. In accord, Kuk v. State, 80 Nev. 291, 392 P.2d
630 (1964).
2. Improper and Prejudicial Statements Made by the Prosecutor in Closing Argument
Affected the Substantial Rights of the Defendant:
Dearman contends that he was deprived of a fair trial by improper and prejudicial
prosecutorial closing argument. In one instance, the prosecutor submitted his own subjective
belief concerning his responsibility as a prosecutor and reverence for life.
1
On another
occasion, the prosecutor's argument dealt with the prosecutor presenting his personal views
on mercy and justice.
2
In a third instance, it is claimed that the prosecutor attempted to
arouse and inflame the passions of the jury by using an emotional argument concerning the
decedent's not being able to keep New Year's resolutions or being able to see the roses bloom
in spring.
3

[Headnote 6]
Although the comments made by the prosecutor may have been improper, a reading of the
record reveals that at no time were any objections made by Appellant. It is well established
that improper remarks made by the prosecutor in closing argument will not be considered on
appeal if not objected to at the time of trial. Watkins v. State, 93 Nev. 100, 560 P.2d 921
(1977); Jackson v. State, 93 Nev. 28, 559 P.2d 825 (1977); Moser v. State, 91 Nev. 809, 544
P.2d 424 (1975). This Court stated in Jackson, 93 Nev. 28, 30, 559 P.2d 825, 826 (1977):
Jackson's contention that the prosecutor committed prejudicial error in his closing
argument is also rejected. The now challenged comment was not considered sufficiently
prejudicial to invoke an objection at the time it was made.
____________________

1
I feel very strongly, very deeply about my responsibility as a prosecutor. I think the law should be
enforced, and I feel where crimes are committed that those who commit those crimes should be punished. By the
same token, I feel just as strongly if persons are not guilty that they should be found not guilty.
My primary partiality stems from a very deep seated prejudice I have. I happen to revere human life. I feel
that every person who is born on this sphere of ours, this earth, is entitled to live out their days.

2
Well, I believe that mercy cannot rob justice even for persons who murder their good friends.

3
Well ladies and gentlemen, for being a so-called best friend, Jessie Dearman had a strange New Year's
present for his friend, Dennis Wayne Wolfe. I don't suppose Mr. Wolfe will be keeping his New Year's
resolutions this year, will he? It is a beautiful day out here in the springtime. I don't suppose he will see the rose
bloom either, will he?
was made. Furthermore, the record discloses overwhelming evidence of guilt; thus,
even if we assume there was error, in the context of this appeal, any error that may have
occurred would be harmless. Harris v. State, 90 Nev. 172, 521 P.2d 367 (1974).
[Headnote 7]
The evidence against Appellant is substantial. A number of eye witnesses observed the
Appellant stand over the victim and fire repeatedly into him, stooping and aiming. When, as
here, a guilty verdict is free from doubt, even rather aggravated prosecutorial remarks will not
justify reversal. Jackson v. State, 93 Nev. 28, 559 P.2d 825 (1977); Riley v. State, 91 Nev.
196, 533 P.2d 456 (1975); Pacheco v. State, 82 Nev. 172, 414 P.2d 100 (1966).
[Headnote 8]
We observe no error which would require reversal incidental to this issue.
3. The Trial Court Erred in Admitting Exhibits 4, 7, and 8 (Color Photographs of the
Victim) Over Defense Counsel's Objection:
Dearman contends that the admission into evidence of the three colored photographs
depicting bullet entry and exit wounds on the body of the decedent was error. He further
contends that even if relevant, their prejudicial effect outweighed probative value. Finally, he
asserts that the photographs were merely cumulative of other direct testimony and that there
was no reason for their introduction. These contentions are without merit.
The record indicates that Exhibit 4 was admitted into evidence after the trial judge
reviewed the offered photograph outside the presence of the jury. During that hearing, the
Court sustained the defense objection to Exhibits 2 and 3 (additional photographs). The
record further shows that the trial judge admitted the photographs marked as Exhibits 7 and 8
after considering their admissibility out of the presence of the jury and after testimony by the
pathologist, Dr. Clarke, that the photographs would be helpful to him in explaining the cause
of death.
In Allen v. State, 91 Nev. 78, 82, 530 P.2d 1195, 1197 (1975), this Court stated:
Color photographs of a victim used by a doctor to explain the cause of death to a
jury are properly admissible because they aid in the ascertainment of truth. The
probative value of the photographs outweighs any prejudicial effect they might
have on the jury.
probative value of the photographs outweighs any prejudicial effect they might have on
the jury.
See also, Maginnis v. State, 93 Nev. 173, 561 P.2d 922 (1977); Scott v. State, 92 Nev. 552,
554 P.2d 735 (1976); Theriault v. State, 92 Nev. 185, 547 P.2d 668 (1976).
[Headnotes 9, 10]
The trial judge exercised caution and took the intermediate step of determining whether
the probative value of the proffered evidence outweighed any prejudicial effect. The trial
court considered all of the objections to the photographs, rejecting several and admitting
others. Further, examination of the questioned exhibits reveals nothing gruesome or
inflammatory which could have excited or prejudiced the jury. State v. Gambetta, 66 Nev.
317, 208 P.2d 1059 (1949); Allen v. State, 91 Nev. 78, 530 P.2d 1195 (1975); Ricci v. State,
91 Nev. 373, 536 P.2d 79 (1975). The evidence clearly demonstrates that the photogaphs
were used to illustrate and explain the circumstances of the crime and the nature of the
victim's wounds, both of which are relevant to a determination of the degree of crime
committed. It is in the sound discretion of the court to admit or exclude photographs, and
absent a showing of abuse of this discretion the decision will not be overturned. People v.
Polk, 406 P.2d 641 (Cal. 1965).
Affirmed.
____________
93 Nev. 370, 370 (1977) Lipshie v. Tracy Investment Co.
NORMAN W. LIPSHIE, Appellant, v. TRACY INVESTMENT
COMPANY, a Nevada Corporation, Respondent.
No. 8678
July 1, 1977 566 P.2d 819
Appeal from order granting summary judgment, Eighth Judicial District Court, Clark
County; J. Charles Thompson, Judge.
Action was brought by payee to recover on promissory note against successor to maker's
stock and assets. The district court granted summary judgment in favor of defendant and
plaintiff appealed. The Supreme Court, Manoukian, J., held that: {1) payee failed to show
that successor used nomenclature of maker as facade to insulate itself from responsibility
on claimed indebtedness; {2) it could not be said that successor had expressly or
impliedly promissorily bound itself to retire remaining debt to payee; and {3) maker's
president did not actually represent that successor would be liable as to remaining
balance on note as contended by payee.
that: (1) payee failed to show that successor used nomenclature of maker as facade to insulate
itself from responsibility on claimed indebtedness; (2) it could not be said that successor had
expressly or impliedly promissorily bound itself to retire remaining debt to payee; and (3)
maker's president did not actually represent that successor would be liable as to remaining
balance on note as contended by payee.
Affirmed.
Smith and O'Brien, and Richard A. Avila, Las Vegas, for Appellant.
Lionel Sawyer & Collins, and Stephen L. Morris, Las Vegas, for Respondent.
1. Judgment.
In deciding propriety of summary judgment, court must view evidence most favorable to party against
whom summary judgment was granted and give that party the benefit of all favorable inferences that may
be drawn from subsidiary facts.
2. Judgment.
Summary judgment is appropriate only when it is quite clear what the truth is, and that no genuine issue
remains for trial. NRCP 56(c).
3. Corporations.
Where there was no showing that maker of promissory note and successor to maker's stock and assets had
other than valid, separate and independent corporate entities other than facts that successor owned all
shares of maker and that their officers were identical, it was clear from outset that it was successor's intent
to have obligation to payee continue exclusively as maker's indebtedness, and payee accepted promissory
note and failed to request its redrafting to include successor as joint obligor, payee failed to show that
successor used nomenclature of maker as facade to insulate itself from responsibility on claimed
indebtedness so as to render successor liable on note under alter ego doctrine.
4. Corporations.
Where, in consideration for payee's withdrawal of claim in bankruptcy, he received sum certain in
settlement of his stock purchase and concurrent loan and $50,000 together with promissory note for
balance of indebtedness executed by maker and endorsed by maker's president in settlement of his
extraordinary loan, payee, who contended that maker was instrumentality used by successor to maker's
stock and assets to obstruct payment of debt and that successor was therefore liable under alter ego
doctrine, received exactly what he bargained for and was not entitled to recover on note from successor.
5. Contracts.
To permit recovery by quasi-contract where written agreement exists would constitute subversion of
contractual principles.
6. Contracts.
To obtain status as third-party beneficiary, there must clearly appear a promissory intent to benefit third
party and ultimately it must be shown that third party's reliance thereon was foreseeable.
7. Contracts.
Contract to pay debt to a third person is presumed for his benefit unless it appears that contract was not
so intended.
8. Contracts.
Where there was no promise, at least on part of successor to maker's stock and assets, to satisfy maker's
indebtedness, agreement between successor and maker's president provided only that obligation of maker
to payee for amount of extraordinary loan would survive bankruptcy proceedings and manner of
negotiation, intent of parties and tenor of agreement made it plain that successor did not assume or intend
to assume any obligation to payee, there was no promise to benefit payee and thus it could not be said that
successor had expressly or impliedly promissorily bound itself to retire remaining debt to payee so as to
entitle him to recover against successor as third-party beneficiary.
9. Bills and Notes.
Where identity of successor was omitted from promissory note, specific language in agreement whereby
successor succeeded to maker's stock and assets provided only for survival of obligation of maker to payee,
not of assumption of that obligation by successor, and there was no legally admissible evidence that
representations concerning successor's liability were in fact made by maker's president, successor was not
liable as principal on promissory note executed by maker on theory that payee relied upon alleged
representations in releasing his creditor's claim against maker and in assigning his stock in maker.
OPINION
This appeal is taken from an order of the District Court granting summary judgment in
favor of Respondent, Tracy Investment Company, against Appellant, Norman W. Lipshie,
plaintiff below. This action was commenced by Lipshie to recover the amount of
$127,780.00, less third party payments, on a promissory note executed by Bonanza No. 2, a
Nevada corporation doing business as the Bonanza Hotel and Casino, and personally
endorsed by Lawrence Paul Wolf. Summary judgment was granted in favor of Appellant
against Bonanza No. 2 on March 26, 1971. Wolf died in 1971, and thereafter Lipshie twice
amended his complaint to substitute Wolf's estate, as well as to include Respondent Tracy as
a defendant, pleading additional theories of recovery. A cross-complaint was filed by Wolf
against co-defendant Tracy.
by Wolf against co-defendant Tracy. Thereafter, motions for summary judgment were
proffered by Tracy against both the initial complainant and the cross-complainant, which the
trial court granted on the ground that no genuine issue as to any material fact had been
established by Lipshie or Wolf regarding Tracy's liability to either Lipshie or Wolf. We are
concerned solely with the grant of summary judgment against Appellant Lipshie.
Appellant has raised the following issues for our determination: (1) Whether Tracy
Investment Company, under the alter ego doctrine, should be held liable to Lipshie for the
debt owed him by Bonanza No. 2? If the former is answered in the negative, whether Tracy
was unjustly enriched so as to allow quasi-contractual recovery by Lipshie? (2) Whether
Lipshie can be regarded as a third party beneficiary of the October 28, 1968, agreement
between Wolf and Tracy? (3) Whether Tracy is liable to Lipshie for representations
purportedly made by Wolf as its agent? Review of these questions prompts us to conclude
that the trial court was correct in so entering summary judgment in favor of Tracy Investment
Company, and, accordingly, for the reasons hereinafter expressed, we affirm.
In 1966, Lipshie purchased 178.43 shares of Bonanza Hotel and Casino stock for
$79,305.00 and concurrently loaned to Bonanza $79,305.00. Thereafter, he loaned to
Bonanza an additional $177,780.00, each loan evidenced by unsecured promissory notes.
Soon experiencing financial difficulties, Bonanza filed a Petition for Arrangement under
Chapter XI of the Bankruptcy Act in the United States District Court, Las Vegas, Nevada. In
March, 1968, Appellant timely filed a creditor's proof of claim in the amount of $272,652.40
in the Bonanza Bankruptcy proceedings.
Wolf, the then president and majority stockholder of Bonanza, proceeded to attract
funding for a plan of arrangement, and in June, 1968, entered into negotiations with Dal-Tex
Corp., and others, to fund Bonanza's plan of arrangement. In summary, Dal-Tex Corp.
preliminarily agreed to fund the plan and settle with Bonanza's creditors in exchange for the
stock and assets of Bonanza. Lipshie, being aware of Dal-Tex Corp.'s intentions, insisted
through Wolf that his interest as a creditor be recognized before he would assign his stock to
Bonanza. Appellant ultimately assigned his stock to Bonanza No. 2, or nominee.
On October 17, 1968, a memorandum of discussion was executed by Wolf and a Dal-Tex
Corp. representative setting forth the basic understanding of the parties' plan of
arrangement.
forth the basic understanding of the parties' plan of arrangement. The obligation owed Lipshie
was referred to in paragraph 6 of the memorandum.
6. New corporation to assume the so-called Lipshie loan (Lipshie and Wolf) of
$290,000.00 and the so-called Ling and Howard loan in an amount ranging from
$131,000.00 up to $158,000.00. Both of said loans shall be retired in 60 equal monthly
installments commencing two years after closing.
Prior to the execution of any formal documents of agreement with Dal-Tex Corp., and it
appears without the knowledge of Appellant, Wolf entered into negotiations with Tracy,
whereby Tracy succeeded by assignment to all of the rights and interests of the prospective
purchaser, Dal-Tex Corp. The Tracy-Wolf agreement, executed October 28, 1968, contained
the following provisions relative to Lipshie.
III(a): The indebtedness of Bonanza No. 2 to Norman Lipshie and Lawrence Paul
Wolf in the principal amount of $290,000.00 shall survive the Chapter XI proceeding of
Bonanza No. 2 and shall be retired as hereinafter provided.
III(c): The obligation of Bonanza No. 2 in the sum of $290,000.00 to Lipshie and
Wolf shall be paid in 84 equal monthly installments commencing thirty (30) days
following the close of the escrow herein provided and there shall be no interest payable
on said obligation. [Emphasis added.]
The October 28, 1968, agreement acknowledged the pre-existing agreement between Wolf
(Bonanza) and Dal-Tex Corp.
Pursuant to the agreement, Wolf was advanced money to aid him in securing the
assignments of stock and releases of loan claims held by the various Bonanza stockholders.
Further, Tracy advanced the sum of $100,000.00 to Wolf . . . to be used by Wolf by way of
down payment outside of escrow to obtain the said assignments and releases of loan claims
from the shareholders. . . . It was further provided that Wolf's application of such sum would
be subject to the general supervision of a Tracy representative.
Wolf then approached Lipshie in order to obtain the assignment of stock, together with the
withdrawal of Lipshie's claim in bankruptcy. Lipshie agreed to this under the following
conditions: the payment of $64,000.00 for his stock and the coincident loan of $79,305.00; a
$50,000.00 down payment against the second loan by Lipshie in the sum of $177,7S0.00,
and a promissory note for the $127,7S0.00 balance on said loan.
the second loan by Lipshie in the sum of $177,780.00, and a promissory note for the
$127,780.00 balance on said loan. Tracy through and outside of escrow, indirectly provided
funds for the acquisition or payment of the following: Lipshie's Bonanza stock, the payment
of his original $79,305.00 loan to Bonanza, and the $50,000.00 in partial satisfaction of his
$177,780.00 loan to Bonanza.
Following Lipshie's compliance with the agreement, Bonanza, through its president,
executed a note dated December 2, 1968, in the amount of $127,780.00 to be paid to Lipshie
in 84 monthly installments. Prior to December 2, 1968, and following the releases by the
several stockholders, Bonanza's plan of arrangement was approved by the Federal District
Court.
Tracy assumed management and control of Bonanza's assets on or about November 26,
1968; the officers of Tracy were essentially the same officers of Bonanza; the officers of
Tracy were the directors of Bonanza; Kirk Kerkorian was the sole stockholder of Tracy,
chairman of the board and director of Tracy, and chairman of the board and director of
Bonanza; the principal place of business and resident agent for Tracy and Bonanza were the
same; while owned by Tracy, Bonanza was never a going concern; Bonanza's primary source
of funds were those provided by Tracy, including operating capital, and within approximately
60 days of or prior to the closing of the Bonanza-Tracy escrow on December 2, 1968, Tracy
sold the Bonanza properties, including all of the outstanding stock, for a substantial profit,
including an assumption by the purchaser of the Lipshie obligation in the sum of
$127,780.00.
Thereafter, following a breach by the purchasers, Tracy served them and Bonanza with a
Notice of Default and Election to Sell under Deed of Trust. The Deed of Trust was foreclosed
upon, and on July 29, 1970, the trustee conveyed Bonanza's real and personal property to
another corporation.
[Headnotes 1, 2]
In deciding the propriety of the summary judgment, we must review the evidence most
favorable to the party against whom summary judgment was granted and give that party the
benefit of all favorable inferences that may be drawn from the subsidiary facts. Ottenheimer
v. Real Estate Division, 91 Nev. 338, 535 P.2d 1284 (1975); Brewer v. Annett, 86 Nev. 700,
475 P.2d 607 (1970); Old West Enterprises v. Reno Escrow Co., 86 Nev. 727, 476 P.2d 1
(1970). Summary judgment is appropriate only when it is quite clear what the truth is, and
that no genuine issue remains for trial. Perry v. Byrd, 87 Nev. 431, 488 P.2d 550 (1971);
Short v. Hotel Riviera, Inc., 79 Nev. 94, 37S P.2d 979 {1963).
Nev. 94, 378 P.2d 979 (1963). After reviewing the record and viewing the evidence most
favorable to Appellant, we find no material issues of fact to be resolved. Summary judgment
on all issues was appropriate. NRCP 56(c).
[Headnote 3]
1. Alter Ego Doctrine: It is Appellant's position that the Bonanza Corporation was an
instrumentality used by Tracy Investment Company to obstruct payment of the debt owing
Appellant. Essentially, as stated by Appellant, the factual basis of liability rests in the
manner by which Tracy, its officers and directors, and sole shareholder systematically used
the Bonanza and other corporate screens to ultimately deprive Lipshie of his stock interest in
the Bonanza Corporation and monies due under the subject promissory note.
1

The requirements for applying the alter ego doctrine are set forth in McCleary Cattle Co. v.
Sewell, 73 Nev. 279, 282, 317 P.2d 957, 959 (1957).
(1) The corporation must be influenced and governed by the person asserted to be its
alter ego. (2) There must be such unity of interest and ownership that one is inseparable
from the other; and (3) The facts must be such that adherence to the fiction of separate
entity would, under the circumstances, sanction a fraud or promote injustice. [Emphasis
added.]
A cursory review of the facts would cause us to erroneously conclude that the first two
requirements are satisfied by virtue of the interlocking nature of the officers and directors of
the two corporations, Tracy Investment Company and Bonanza No. 2. There is no showing,
however, that Tracy and Bonanza have been other than valid, separate, and independent
corporate entities. Appellant's reliance on Chatterly v. Omnico, lnc., 485 P.2d 667 (Utah
1971), is misplaced. In that case, it was the parent corporation which was doing business, not
the subsidiary. The parent corporation's board of directors controlled the subsidiary in every
respect. The subsidiary neither kept nor maintained minutes, books, or other general corporate
records of its own, and the parent corporation's board of directors voted on and approved or
disapproved the subsidiary's business activities. The Utah Court was justified in its finding of
sufficient evidence on the alter ego issue. Appellant also cites to the Court, Houston Oil Field
Material Company v. Stuard, 406 F.2d 1052 {5th Cir.
____________________

1
Appellant's opening brief, p. 2.
406 F.2d 1052 (5th Cir. 1969). That case involved a factual setting of influence or
dominance, unity of interest and ownership, and injustice, even more aggravated than the case
of Chatterly, supra, and is equally misplaced. Appellant has failed to bring to our attention
evidence that would warrant a like conclusion. He presents little more than the fact that Tracy
owned all shares of Bonanza and that the officers of Tracy and Bonanza were identical. This,
without more, is insufficient. See H. Henn, Corporations, 148 (2nd ed. 1970).
Likewise, the third requirement has not been met. There is no evidence that a fraud or
deception would be sanctioned. Specifically, the injustice that would purportedly result from
the adherence to the fiction of separate entities is, from Appellant's point of view, that
Bonanza was wrongfully made the debtor on the new application to reimburse Lipshie, it now
being Lipshie's understanding that Tracy was to be the party responsible for payment of the
$127,780.00 installment note. It must be noted that the promissory note for the remaining
$127,780.00 was executed December 7, 1968, and that it was not until May 7, 1970, that the
initial complaint against Bonanza was filed. The amended complaint which joined Tracy was
not filed until August 3, 1972. It is not reasonable to conclude that Tracy undercapitalized
Bonanza in order to frustrate the payment of its obligation, because the default which led to
the commencement of this action occurred subsequent to Tracy's having divested itself of the
Bonanza stock. The chronology belies this present claim by Appellant that Tracy was to be
the intended obligor on the note.
In North Arlington Med. v. Sanchez, 86 Nev. 515, 522, 471 P.2d 240, 244 (1970), we
stated:
Undercapitalization, where it is clearly shown, is an important factor in determining
whether the doctrine of alter ego should be applied. However, in the absence of fraud or
injustice to the aggrieved party, it is not an absolute ground for disregarding a corporate
entity.
There is nothing at bar showing that the Bonanza was undercapitalized, following the
bankruptcy rearrangement, and preceding Tracy's sale of the Bonanza and all of its assets.
Nor is there any evidence to indicate that any protest or objection was made by Appellant
that Bonanza was the maker of the agreement and promissory note.
It is clear that from the outset it was Tracy's intent to have the obligation owed by Bonanza
to continue exclusively as Bonanza's indebtedness.
Bonanza's indebtedness. The October 28, 1968, agreement speaks specifically of the
indebtedness of Bonanza No. 2 in that it shall survive as the obligation of Bonanza No.
2. It is not reasonable to conclude that Tracy, through Bonanza, assumed the Lipshie
obligation. The fact of Tracy's custom or practice of having third parties assume
responsibility for such indebtedness, considered in light of its non-assumption of the Lipshie
obligation, provides further support to Tracy's argument that it intended to avoid liability.
This becomes especially apparent when reviewing the other provisions of the October 28,
1968, agreement, wherein Tracy expressly assumed responsibility for several other creditor
claims.
[Headnote 4]
As contended by Tracy, Appellant received exactly what he bargained for. In
consideration for his withdrawal of the claim in bankruptcy, he received a sum certain in
settlement of the purchase of his stock and concurrent loan and $50,000.00, together with a
promissory note for $127,780.00 executed by Bonanza and endorsed by Wolf, in settlement
of his extraordinary loan. It cannot be said that the circumstances present here rise to that
level of injustice sufficient to avoid summary judgment. See, North Arlington Med. v.
Sanchez, 86 Nev. 515, 471 P.2d 240 (1970) (insufficient evidence to support finding of alter
ego); Baer v. Amos J. Walker, Inc., 85 Nev. 219, 452 P.2d 916 (1969) (insufficient evidence
to support finding of alter ego). Cf. Carson Meadows, Inc. v. Pease, 91 Nev. 187, 533 P.2d
458 (1975) (sufficient evidence was presented to establish a finding of alter ego); Plotkin v.
National Lead Co., 87 Nev. 51, 482 P.2d 323 (1971) (evidence of non-assumption of
corporate debt by individuals presented factual question to be decided by trial and summary
judgment vacated); McCleary Cattle Co. v. Sewell, 73 Nev. 279, 317 P.2d 957 (1957) (alter
ego doctrine allowed execution of debt against third-party corporation).
That Bonanza defaulted on its obligation is unfortunate from Appellant's point of view, but
this does not represent an injustice carried out by Tracy. Lipshie was knowledgeable enough
to request Wolf's personal signature on the promissory note, but that did not commit Tracy to
an assumption of the indebtedness. Nor does there exist any evidence of bad faith on Tracy's
part.
At Bar, Lipshie accepted the promissory note without objection or protest; he failed or
otherwise neglected to request its redrafting to include Tracy as a joint obligor; he accepted a
number of installments from Bonanza and successor owners or obligors, exclusive of Tracy;
he failed to join Tracy as a defendant until he obtained an empty judgment against
Bonanza; and he has admitted that he did not know that Tracy might potentially be liable
on the note or that Wolf may be the agent of Tracy until the post-default period.
obligors, exclusive of Tracy; he failed to join Tracy as a defendant until he obtained an empty
judgment against Bonanza; and he has admitted that he did not know that Tracy might
potentially be liable on the note or that Wolf may be the agent of Tracy until the post-default
period.
Appellant has failed to show that Tracy used the nomenclature of another corporation,
namely, Bonanza, as a facade to insulate itself from responsibility on the claimed
indebtedness. We cannot say that these are uncommon business practices.
[Headnote 5]
Lipshie raises another argument, purportedly independent of the alter ego contention, to
the effect that Tracy was unjustly enriched so as to allow quasi-contractual recovery by
Lipshie. We deem this argument to be embraced in our resolution of the alter ego question.
Additionally, Bonanza was the maker of the promissory note, and Lipshie the payee. To
permit recovery by quasi-contract where a written agreement exists would constitute a
subversion of contractual principles.
The trial court was correct in granting summary judgment on these issues.
[Headnote 6]
2. Third Party Beneficiary: Appellant next contends that the provisions of the October 28,
1968, agreement between Wolf and Tracy make him a third party beneficiary thereof. To
obtain such a status, there must clearly appear a promissory intent to benefit the third party
(Olson v. Iacometti, 91 Nev. 241, 533 P.2d 1360 (1975)), and ultimately it must be shown
that the third party's reliance thereon is foreseeable (Lear v. Bishop, 86 Nev. 709, 476 P.2d 18
(1970)). Appellant cannot satisfy the third party beneficiary requirements.
[Headnotes 7, 8]
It is not at all demonstrated that Appellant was to be a Tracy beneficiary of the October 28,
1968, agreement. A contract to pay a debt to a third person is presumed for his benefit unless
it appears that the contract was not so intended. Quijada v. Southern Pipe and Casing, 78
Nev. 271, 371 P.2d 661 (1962); Hemphill v. Hanson, 77 Nev. 432, 366 P.2d 92 (1961);
Concrete Steel Co. v. Illinois Surety Co., 157 N.W. 543 (Wis. 1916). Here, although
Appellant was mentioned in the agreement and he would indeed receive a benefit, there was
no promise, at least on the part of Tracy, to satisfy his indebtedness. The agreement between
Tracy and Wolf provides only that the obligation of Bonanza to Lipshie for the amount of the
extraordinary loan would survive the bankruptcy proceedings.
extraordinary loan would survive the bankruptcy proceedings. The matter of negotiations
between Tracy and Wolf, the intent of the parties, and the tenor of the agreement make it
plain that Tracy did not assume, or intend to assume, any obligation to Lipshie.
In Fruitvale Canning Co. v. Cotton, 252 P.2d 953, 955 (Cal.App. 1953), the Court stated:
Before a third party who may derive a benefit of a promise is entitled to bring action
thereon, there must be an intent clearly manifested by the promisor to secure the benefit
claimed to the third party.
Here, there was no promise to benefit Lipshie. The fact that he might only have
incidentally benefited by the performance of the agreement is insufficient. Olson v. Iacometti,
91 Nev. 241, 533 P.2d 1360 (1975).
It cannot then be said that Tracy had expressly or impliedly promissorily bound itself to
retire the remaining debt to Appellant and that his reliance was reasonably foreseeable.
The trial court's granting of summary judgment on this theory was also proper.
[Headnote 9]
3. Tracy's liability as Principal: In summary, Appellant contends that he relied upon
certain representations of Wolf in releasing his creditor's claim against Bonanza and in
assigning his Bonanza stock. Appellant further argues that the existence of the agency
relationship, the representations that were purportedly made, together with the reliance
thereon by him, are mixed questions of fact and law not properly resolved by the granting of
summary judgment. Appellant founds this contention on provisions contained in the
Tracy-Wolf agreement of October 28, 1968, at page one, paragraph e, and page three thereof
as follows:
e. It is the intent and desire of Tracy and Wolf hereby to enter into an agreement
replacing the prior agreement with Shanbaum wherein Tracy will agree to purchase and
Wolf will agree to sell and/or obtain for Tracy eighty-eight percent (88%) of the issued
and outstanding stock of Bonanza.
and at page 3:
. . . Tracy shall furnish Wolf with the sum of One Hundred Thousand and 00/100
Dollars ($100,000.00) to be used by Wolf by way of down payment outside of escrow
to obtain the said assignment and release of loan claims from the shareholders
reflected in Exhibit D {other than Wolf).
claims from the shareholders reflected in Exhibit D (other than Wolf). Wolf's ability to
use said sum of $100,000.00 by way of down payment shall be subject to the general
supervision of a representative of Tracy who shall provide the same or pro-rata portion
thereof upon being satisfied that Wolf shall be able to obtain an appropriate portion of
the required percentage of stock for the account of Tracy.
In Brunzell v. Woodbury, 85 Nev. 29, 449 P.2d 158 (1969), we indicated that unless the
intention to bind the principal appears on the face of the instrument, extrinsic evidence cannot
be admitted to bind the principal. Quoting from Van Haaren v. Whitmore, 38 P.2d 829
(Cal.App. 1934):
[I]t must appear from the instrument itself that the true object and intent of it are to
bind the principal and not the person who signed the note, before he can escape
personal liability. . . . When the parties have deliberately put their agreement in writing,
in such language as imports a legal consideration, it is conclusively presumed that the
whole engagement and the extent and manner of their undertaking is there expressed.
85 Nev. at 33, 449 P.2d at 160.
The omission of Tracy's identity from Appellant's promissory note clearly demonstrates
that Lipshie intended to look to Bonanza and Wolf for payment. Specific language is seen in
the October 28, 1968, agreement that provides only for the survival of the obligation of
Bonanza No. 2 to Lipshie, not its assumption by Tracy. Further, there is no legally admissible
evidence in the present record which would support a finding that representations concerning
Tracy's liability were in fact made by Wolf.
The reasonable interpretation of the agreement restricts the scope of Wolf's authority in
terms of negotiations with Appellant and other Bonanza shareholders and creditors.
The question of whether Wolf did actually represent that Tracy would be liable as to the
remaining $127,780.00 balance must be answered in the negative.
The summary judgment granted on this issue was also proper.
The summary judgments are affirmed.
____________
93 Nev. 382, 382 (1977) Applebaum v. Applebaum
GERALDINE APPLEBAUM, Appellant and Cross-Respondent, v.
STEVEN APPLEBAUM, Respondent and Cross-Appellant.
Nos. 8713 and 8714
July 5, 1977 566 P.2d 85
Appeal and cross-appeal from two cases, consolidated for trial, in which a prior property
settlement agreement was declared valid and a decree of divorce was granted; Eighth Judicial
In divorce action, the district court granted divorce and declared property settlement
agreement valid and wife appealed and husband cross-appealed. The Supreme Court,
Mowbray, J., held that (1) property settlement agreement providing for payment of $15,000 to
wife was not fraudulent by reason of husband's greater experience in financial matters, his
having remained in the house on a family basis during the pendency of the divorce or by the
disparity between the amount of the settlement and value of husband's business alleged to be
$1,200,000; (2) apportionment of increase in husband's separate property business was not
required where the allocation was agreed upon by the parties; (3) trial court did not err in
refusing to award wife temporary or permanent alimony.
Affirmed.
Woofter, Coleman & Bilbray and Mark W. Gibbons, Las Vegas; and Lewis Kates,
Philadelphia, Pa., for Appellant and Cross-Respondent.
Orin G. Grossman and Jack G. Perry, Las Vegas, for Respondent and Cross-Appellant.
Property settlement agreement providing for payment of $15,000 was not fraudulent on ground that
agreement was drafted by husband who was older and more experienced in business than wife, nor did
disparity between amount of settlement and value of husband's business, alleged to be $1,200,000, render
the agreement fraudulent.
Husband's continued residence in family home during pendency of divorce did not impose on him a
fiduciary duty to his estranged wife so as to render fraudulent property settlement agreed to by wife.
3. Divorce.
Rule providing for apportionment of increase in separate property applies only to cases in which the court
must identify community property in order to effect an equitable division; it has no application when the
parties have agreed upon a division of that property.
4. Divorce.
Trial court did not abuse its discretion in failing to grant wife temporary or permanent alimony.
5. Divorce.
Trial court did not abuse its discretion in denying husband's request for attorney fees in divorce action.
NRS 125.150, subd. 2.
OPINION
The principal issue presented is whether extrinsic fraud by respondent, Steven Applebaum,
induced appellant, Geraldine Applebaum, to execute a property settlement agreement, thus
rendering it void. The district judge ruled there was no showing of fraud and upheld the
agreement. We agree and affirm.
1. The parties were married in 1968. Geraldine was 24, and Steven 40, at the time of their
marriage. That marriage terminated in divorce in 1972, in which proceedings the district court
approved the property settlement agreement, the subject of this appeal. Therein, Geraldine
was awarded $15,000 payable in $1,000 quarterly installments. The parties remarried in 1973.
In 1975, they sought to have their second marriage terminated. Geraldine filed an action
seeking to have the property settlement agreement, approved in the first divorce action,
declared void. She also sought separate maintenance. Steven counterclaimed for an absolute
divorce. The district judge granted Steven a divorce, refused to declare the property
settlement void, and awarded Geraldine $12,000 payable in $1,000 monthly installments as
her share of the community property. Geraldine appeals the lower court's refusal to declare
the property settlement agreement void and the court's refusal to grant her alimony either
permanently or pending this appeal. Steven has cross-appealed the district court's refusal to
award him attorney's fees.
2. Geraldine contends that the property settlement agreement approved by the court in
1972 is void because of extrinsic fraud committed on the part of Steven. She has predicated
the fraud charge on the claim that Steven was in a confidential or fiduciary relationship with
her when the agreement was negotiated; that Steven was much older than she and more
experienced in business and financial matters; that he had remained in the house on a
friendly basis during the pendency of the divorce proceeding; and that, in inducing her to
sign the agreement, Steven misrepresented the nature and size of the community
interestthe largest part of which lay in the increased value of Steven's business due to
his community property services.
fiduciary relationship with her when the agreement was negotiated; that Steven was much
older than she and more experienced in business and financial matters; that he had remained
in the house on a friendly basis during the pendency of the divorce proceeding; and that, in
inducing her to sign the agreement, Steven misrepresented the nature and size of the
community interestthe largest part of which lay in the increased value of Steven's business
due to his community property services. The disparity between this interest, alleged to be
$1,200,000 and the $15,000 settlement, is claimed to render the agreement unconscionable
and presumptively fraudulent.
While conceding that she consulted an attorney to determine if the agreement was
enforcible, Geraldine claims she was unrepresented as to the substance of the agreement.
Geraldine, in support of her argument, relies heavily on Moore v. Moore, 78 Nev. 186, 370
P.2d 690 (1962). In Moore, this court reversed an order granting summary judgment in an
action to set aside a divorce decree on the ground of extrinsic fraud and remanded the case for
trial. According to appellant's affidavits in Moore, appellant had executed a power of attorney
to her husband in reliance on his promise to establish legal residence in Nevada before
obtaining a divorce. Instead, he commenced the action before obtaining residence, of which
action she had no notice until after its resolution. In holding that these allegations stated a
claim of extrinsic fraud, the court relied on Murphy v. Murphy, 65 Nev. 264, 193 P.2d 850
(1948), which it found to be indistinguishable in principle. In Murphy, the husband had
executed an appearance and waiver in a divorce action on the assurance that the wife would
adhere to a child custody agreement. The court held that her subsequent repudiation of that
agreement constituted extrinsic fraud.
[Headnotes 1, 2]
Geraldine cites no conduct on the part of Steven comparable to that of the respondents in
Murphy or Moore. The parties executed a property settlement agreement, which Steven
represented he would submit to the court for approval. This is precisely what he did; no term
of the agreement signed by Geraldine was altered before its submission for the court's
approval. That the agreement was drafted by Steven, who was older and more experienced in
business than Geraldine, does not make it fraudulent. Nor does Steven's continued residence
in the family home impose on him a fiduciary duty to his estranged wife. Once Steven
announced his intention to seek a divorce, Geraldine was on notice that their interests were
adverse.
divorce, Geraldine was on notice that their interests were adverse. It was not necessary for
Steven to treat her with animosity to bring this fact home to her.
Finally, Geraldine concedes that Steven told her to retain a lawyer of her own choosing at
his expense. Geraldine contends that she consulted this attorney only as to the enforceability
of the agreement, not as to its substance, and so she was substantially unrepresented. If this is
so, it cannot be charged to Steven. There is no evidence that he attempted to limit the scope
of her representation. It does not appear, moreover, that her attorney was so strictly limited,
nor that Geraldine accepted the agreement without question. The record shows that at least
some provisions of the original agreement were reviewed critically and, as a result, an
addendum submitted.
1

[Headnote 3]
Geraldine also contends that the district judge erred in failing to apportion the increase in
Steven's separate property business during the period of the first marriage, as required by
Johnson v. Johnson, 89 Nev. 244, 510 P.2d 625 (1973). This argument is without merit. The
Johnson rule applies only to cases in which the court must identify community property in
order to effect an equitable division. It has no application when the parties have agreed upon a
division of that property.
Even if the agreement had been found void, it does not appear that there was any
community property interest in the increased value of the business. Under either approach
sanctioned by Johnson, i.e., Pereira or Van Camp, only a portion of the increase is
allocable to community property, and from that interest must be subtracted any amounts
drawn during the period of the increase to meet family expenses.
____________________

1
MR. GROSSMAN [cross-examining Geraldine's attorney in the first divorce]:
Q. Now prior to the addendum, and I am going to ask you about the agreement, in case you need to refresh
your memory. Prior to the addendum being drawn, did you have any discussions with Mr.strike that, with Mrs.
Applebaum?
A. Yes. I think these addendums are the points that Mrs. Applebaum was concerned about. The medical, her
son's college and her apartment rent. She discussed ways in which to get the money and I don't know how long
the discussion was.
Q. Then you called Mr. Keefer [Steven's attorney] regarding these points?
A. Yes.
Q. And what did you discuss with him?
A. Well, here again I think Mr. Keefer told me be did not have the right to make a stipulation for Mr.
Applebaum and that he would tell Mr. Applebaum and get back to me. She said that her and her husband had
met together and that these things had been worked out.
Q. Did you call Mr. Keefer back again?
A. I did, and if I recall, Mr. Keefer said yes, that Mr. Applebaum had called him and that Mr. and Mrs.
Applebaum had met privately and worked out the agreement.
increased value of the business. Under either approach sanctioned by Johnson, i.e., Pereira or
Van Camp, only a portion of the increase is allocable to community property, and from that
interest must be subtracted any amounts drawn during the period of the increase to meet
family expenses. Schulman v. Schulman, 92 Nev. 707, 558 P.2d 525 (1976); Beam v. Bank
of America, 490 P.2d 257 (Cal. 1971). In the instant case, the trial judge found that any
community interest in the increased value of the business had already been withdrawn for this
purpose. This finding was amply supported by testimony as to the high standard of living
enjoyed by both parties during the marriage.
3. NRS 125.150 provides that a court may, in granting a divorce, award alimony to a wife
as appears just with regard to the merits and conditions of the parties.
2
In the instant case,
the trial court concluded that Geraldine was entitled to neither permanent nor temporary
alimony pendente lite.
[Headnote 4]
While conceding the award of permanent alimony to be discretionary, Geraldine claims
that the failure to grant it in the instant case was an abuse of discretion. The record does not
support this contention. A similar claim was rejected in the case relied upon by Geraldine
under substantially similar facts. See Buchanan v. Buchanan, 90 Nev. 209, 523 P.2d 1 (1974).
In the instant case, the court concluded that Geraldine had adequate resources with which to
support herself. Evidence sufficient to support this conclusion was presented at trial.
Geraldine finally contends that, in any event, the court erred in failing to award alimony
pendente lite. She cites Buchanan and Braddock v. Braddock, 91 Nev. 735, 542 P.2d 1060
(1975), in support of this claim. Those cases are distinguishable. In Buchanan, the trial court,
after considering the respective conditions of the parties, awarded the appellant support
pendente lite; on appeal, this court merely reinstated that order.
____________________

2
NRS 125.150 in relevant part:
1. In granting a divorce, the court may award such alimony to the wife, or to the husband if he is disabled or
unable to provide for himself, in a specified principal sum or as specified periodic payments, and shall make
such disposition of the community property of the parties, as appears just and equitable, having regard to the
respective merits of the parties and to the condition in which they will be left by such divorce, and to the party
through whom the property was acquired, and to the burdens, if any, imposed upon it, for the benefit of the
children.
2. Whether or not application for suit money has been made under the provisions of NRS 125.040, the court
may award a reasonable attorney's fee to either party to an action for divorce if the attorneys' fees are in issue
under the pleadings.
pendente lite; on appeal, this court merely reinstated that order. In Braddock, the appellant
stipulated to paying support pendente lite; this court enforced that stipulation, construing
pendente lite to mean until final resolution of the case on appeal. Neither case is authority for
reversing a trial court's refusal to grant temporary support.
[Headnote 5]
4. Steven appeals from the court's refusal to award him reasonable attorney's fees as
permitted by NRS 125.150(2).
3
He contends that this refusal was an abuse of discretion.
This contention is unsupported by any relevant authority. Indeed, the record shows that
Steven was financially secure and well able to pay his own attorney's fees. See Sargeant v.
Sargeant, 88 Nev. 223, 495 P.2d 618 (1972). There was no abuse of discretion in denying his
request for fees. To the contrary, evidence as to Steven's assets makes such a contention
absurd.
We conclude, therefore, that the judgment of the trial court should be affirmed in all
respects. The property settlement agreement is valid and was properly upheld; it does not
appear to have been obtained through fraud or duress, and it was executed by two parties
dealing at arms' length in full knowledge that there [their] interests were adverse. Neither did
the court below err in failing to apportion the increase in Steven's separate property business.
Such an allocation must be made when the court determines the division of property, but not
when the allocation is agreed upon by the parties. Finally, the trial court did not err in
refusing to award Geraldine temporary or permanent alimony or in refusing Steven attorney's
fees. The court has a broad range of discretion in such issues, and it does not appear to have
abused it in the instant case.
Affirmed.
Batjer, C. J., and Thompson, Gunderson, and Manoukian, JJ., concur.
____________________

2
Id., subsection 2.
____________
93 Nev. 388, 388 (1977) Pederson v. First Nat'l Bank of Nevada
BJARNE PEDERSON, Appellant, v. FIRST NATIONAL BANK OF NEVADA,
a National Banking Association; ORME KILBURN; and
DIXIE KILBURN, Respondents.
No. 8785
July 7, 1977 566 P.2d 89
Appeal from judgment of the Second Judicial District Court, Washoe County; Peter I.
Breen, Judge.
Suit was brought by bank against endorsers and another for collection of balance
remaining on promissory note, and endorsers cross-complained against such other defendant
contending that he had agreed to indemnify them as to unpaid balance. The district court
entered judgment against endorsers for balance and entered judgment against other
defendants on cross-complaint, and such defendant appealed. The Supreme Court,
Manoukian, J., held that evidence did not require finding that compromise and settlement was
effected between such defendant and bank.
Affirmed.
Gary A. Sheerin, Carson City, for Appellant.
Raymond B. Little, Reno, for Respondent First National Bank of Nevada.
Woodburn, Wedge, Blakey, Folsom and Hug, Reno, for Respondents Orme Kilburn and
Dixie Kilburn.
1. Trial.
Where evidence was substantial and record clear and would support judgment against defendant, negative
findings as to affirmative defenses could necessarily be implied and thus trial court, which found that
disputed amount was still owing notwithstanding defendant's interjection of compromise defense, did not
err in not making specific findings of fact and conclusions of law that defendant had not reached accord
and satisfaction of matters in question with plaintiff bank.
2. Accord and Satisfaction.
Principles of accord and satisfaction, subtending those of compromise and settlement dealing only with
disputed or unliquidated amounts, are contractual in nature.
3. Compromise and Settlement.
One who asserts defense of compromise and settlement bears burden of proof and must clearly establish
that there was meeting of minds of the parties.
4. Compromise and Settlement.
Although terms of check and acceptance by plaintiff bank supported defense of compromise and
settlement in suit by bank seeking collection of balance of promissory note, other evidence, which showed
that bank had agreed to waive portion of past due interest as well as attorney fees but concurrently
maintained that full amount expressed in agreement was to be repaid and that defendant was a trusted
customer and as such was allowed return of collateral although balance was still owing, showed that bank
accepted defendant's check to be credited against full sum due and did not require finding that compromise
and settlement was effected.
OPINION
A complaint was filed by Respondent, First National Bank of Nevada, against
co-respondents Orme and Dixie Kilburn, and Bjarne Pederson, Appellant, for collection of a
$10,588.52 balance remaining on a promissory note. Kilburns, defendants below, as
endorsers of the note, cross-complained against Pederson, contending that he had agreed to
indemnify them as to the unpaid balance. Pederson defended against both claims urging as his
Fourth Affirmative Defense that a full compromise and settlement had been effected which
precluded the liability of either the Kilburns or himself. Following trial, the trial court entered
judgment against Kilburns for the balance, and judgment was concurrently entered against
Pederson incidental to the Kilburns' cross-complaint, holding him liable to them as an
indemnitor. Appellant Pederson appeals solely from the lower court's determination on the
Fourth Affirmative Defense issue of compromise and settlement.
Although he did dispute the obligation below Pederson is not here challenging his liability
as an indemnitor, claiming that an effective compromise and settlement would extinguish the
original debt and any incidental indemnity liability.
In 1971, Savini Construction Company, a Nevada corporation, was engaged in several
construction projects in Nevada. One of such projects, known as the North Fork job,
necessitated a $50,000 loan from Respondent, First National Bank, to Savini for its
completion because of that corporation's then unstable financial condition. This condition
prompted the Bank to require additional security for the loan in the form of the endorsement
of Orme and Dixie Kilburn on the note as guarantors.
Other of the Savini jobs required the execution of performance bonds. These bonds had
been co-endorsed by Bjarne Pederson because of Savini's questionable financial status. After
it became clear that Savini was encountering difficulty in completing its projects, the surety
company, United States Fidelity and Guaranty Company, threatened to assume control of the
projects, leaving Pederson liable on the bonds. Then on September 14, 1971, lengthy
negotiations between the Bank, the surety company, and Pederson were conducted, directed
toward allowing Pederson to complete the construction projects in order to decrease his
ultimate liability on not only the performance bonds but additionally, various other notes to
the Bank which he had guaranteed for Savini. On September 15, 1971, incidental to those
negotiations, an agreement was executed between the Bank and the surety company, the same
consented to by Pederson and Savini. Under the agreement, Pederson undertook to finish the
projects, the Bank would provide additional financial support, and the surety, in consideration
thereof, was to defer the assertion of its rights as a surety, all with the purpose of minimizing
any financial damage to each party.
During this time, the Bank had outstanding various loans to Savini in the aggregate sum of
$203,422.57, $50,000 of which represented the note guaranteed by the Kilburns. The original
agreement for the repayment of the Kilburn-guaranteed note had provided that a proportionate
percentage (19 percent) of the total contract amount would be diverted from the contract
payments as they were channeled through the Bank to Savini. Several of the notes had similar
provisions. Rather than those diversions for repayment of the notes, the new September 15,
1971, agreement allowed the return of all contract funds by way of a trust fund to the projects
themselves as a means of providing cash flow and working capital.
The signing of the new agreement meant that the Kilburns would have to consent to the
new arrangement and its release as working capital of the nineteen percent of the North Fork
funds designated to repay their guaranteed note. The Kilburns then attended a meeting at the
Bank where the situation was explained to them. As an added incentive, there was testimony
offered, and although disputed, the trial court so found that Mr. Pederson had agreed to
indemnify the Kilburns as to any amount remaining on the North Fork note should it not be
completely retired.
The new arrangement proved satisfactory in enabling the completion of the various
projects with the result that Pederson ultimately incurred no liability on the performance
bonds, and the Bank was completely repaid for the funds loaned, with the exception of
the $10,5SS.52, the subject of this action and appeal.
completion of the various projects with the result that Pederson ultimately incurred no
liability on the performance bonds, and the Bank was completely repaid for the funds loaned,
with the exception of the $10,588.52, the subject of this action and appeal.
On July 30, 1973, Appellant's attorney, by letter, informed First National Bank that
pursuant to the original agreement, superseded by the September 15, 1971, agreement, the
repayment of the Kilburn note was complete through the application thereon of the nineteen
percent North Fork contract funds. However, the total contract figure was not met, and, as a
result, application of the nineteen percent left a remaining balance of $10,588.52.
Subsequently, Pederson's accountant directed final payment under the September 15
agreement to the Bank, accompanied by a letter. The following is relied upon by the
Appellant as the operative language for his claim of compromise and settlement. Enclosed is
our Trust Account Check No. 493 in the amount of $74,306.32 in full settlement of the
Savini-Pederson matter.'' [Emphasis added.] Specific reference was made to the Kilburn
Note diversions.
[Headnote 1]
Appellant asserts that the trial court erred in not making specific findings of fact and
conclusions of law that the Appellant had reached an accord and satisfaction of the
Savini-Pederson matters with the Bank. Based on these facts, we cannot agree, for where the
evidence is substantial and the record clear, as we find it to be in this case, and will support a
judgment against a defendant, negative findings as to affirmative defenses can necessarily be
implied. Hardy v. First National Bank of Nev., 86 Nev. 921, 478 P.2d 581 (1970); accord,
Pease v. Taylor, 86 Nev. 195, 467 P.2d 109 (1970); cf. Gordon v. Lynch, 77 Nev. 344, 364
P.2d 889 (1961) (finding for defendant implied a finding that defense raised was persuasive);
Timney v. Timney, 76 Nev. 230, 351 P.2d 611 (1960) (award of custody to father is an
implied finding that he was a fit and proper person). Added to this record, a finding by the
lower court that the disputed amount was still owed notwithstanding Appellant's interjection
of the compromise defense most assuredly indicates that it was rejected as ineffective and
allows the necessary implication thereof.
The question truly presented is whether the payment of November 21, 1973, was
effectively communicated as an offer of compromise in full and final settlement of the
Kilburn note so as to produce an acceptance and meeting of the minds when credited by
Respondent Bank.
so as to produce an acceptance and meeting of the minds when credited by Respondent Bank.
It is Pederson's contention that although $203,422.57 was the figure originally owed to the
Bank, as embodied in the September 15, 1971, agreement, the November 21, 1973, payment
in full settlement effected a valid compromise and settlement precluding any further
liability thereupon.
[Headnote 2]
The principles of accord and satisfaction, subtending those of compromise and settlement
dealing only with the disputed or unliquidated amounts, are contractual in nature. This Court
has stated, [i]n order to support a plea of accord and satisfaction, it must clearly appear from
the evidence that there was in fact and in reality a meeting of the minds in accord and
satisfaction. Wolf v. Humboldt Co., 36 Nev. 26, at 31, 131 P. 964, 965 (1913); accord,
Mountain Shadows of Incline v. Kopsho, 92 Nev. 599, 555 P.2d 841 (1976). Adelman v.
Arthur, 83 Nev. 436, 433 P.2d 841 (1967); Walden v. Backus, 81 Nev. 634, 408 P.2d 172
(1965); Western Nat. Ins. Co. v. Trent, 69 Nev. 239, 247 P.2d 208 (1952). The court further
stated:
Unless the party has accepted the amount allowed on his claim, under such
circumstances as that a settlement or compromise of matters in dispute between the
parties can be inferred therefrom he is not precluded thereby from maintaining an action
for the portion disallowed. . . [I]f with full knowledge . . . the claimant should, without
objection, accept the amount allowed, this should be regarded as an acceptance by him
of the terms of compromise offered, and he ought to be precluded from instituting an
action. (36 Nev. at 31, 131 P.2d at 965)
[Headnote 3]
Under Mountain Shadows of Incline v. Kopsho, 92 Nev. 599, 555 P.2d 841 (1976); and
Wolf v. Humboldt Co., 36 Nev. 26, 131 P. 964 (1913), it is clear that one who asserts the
defense of compromise and settlement must bear the burden of proof and clearly establish
that there was a meeting of the minds of the parties. Here, the evidence does not require a
finding that a compromise and settlement was effected.
[Headnote 4]
It is Pederson's position that the trial court was compelled to sustain his affirmative
defense since he tendered a check to the Bank for $74,306.32 in full settlement of the
Bank's claim against him, which check was accepted by the Bank.
claim against him, which check was accepted by the Bank. Although the tender of that check
and acceptance by the Bank is evidence supporting his defense of compromise and
settlement, other evidence presented shows that the Bank accepted the check to be credited
against the full sum due it. Those countervailing factors include the following: that in
negotiations several days preceding the tender of the check, the Bank had agreed to waive a
portion of the past due interest as well as attorney's fees; that concurrently the Bank
maintained that the full amount expressed in the September 15, 1971, agreement had to be
repaid; that Pederson was a trusted customer and as such was allowed the return of his
collateral although the $10,588.52 was still owing; and that the Bank understood that
although this last amount was to be rescheduled to become the last payment, it was to be paid.
From the record, we do not believe the district court was constrained to find that the Bank
accepted the November 21, 1973, payment as the final payment on the Kilburn note.
The lower court's judgment is affirmed.
Mowbray, Thompson, and Gunderson, JJ., and Hoyt, D. J., concur.
____________
93 Nev. 393, 393 (1977) Zang v. Zang
STEPHEN M. ZANG, Appellant, v. CHERLYN
LIN ZANG, Respondent.
No. 9708
July 13, 1977 566 P.2d 92
Appeal from order committing appellant to jail, Eighth Judicial District Court, Clark
County; Keith C. Hayes, Judge.
Reversed.
W. Owen Nitz and Oscar B. Goodman, Las Vegas, for Appellant.
Robert W. Lueck, Las Vegas, for Respondent.
OPINION
Per Curiam:
Respondent, with commendable candor, has conceded that the district court's order which
committed appellant to jail was erroneous; accordingly, we reverse. Remittitur shall issue
forthwith.
____________
93 Nev. 394, 394 (1977) Sheriff v. Toston
LOUISE TOSTON Respondent.
No. 9895
July 13, 1977 566 P.2d 411
Appeal from order granting pretrial petition for habeas corpus, Eighth Judicial District
Court, Clark County; Paul S. Goldman, Judge.
On appeal by the state from an order of the district court granting a pretrial petition for
habeas corpus, the Supreme Court held that the petition filed on May 23, 1977, which did not
meet the requirements imposed by the legislature on habeas petitioners when it enacted
Chapter 545 of the 1977 Nevada Statutes that became effective May 14, 1977, was not
cognizable in the district court.
[Rehearing denied August 17, 1977]
Douglas Clark, Deputy District Attorney, Clark County, for Appellant.
Morgan D. Harris, Public Defender, and Thomas R. Jarrett, Deputy Public Defender,
Habeas Corpus.
Pretrial petition for a writ of habeas corpus filed on May 23, 1977, which petition did not meet the
requirements imposed by the legislature on habeas petitioners when it enacted Chapter 545 of the 1977
Nevada Statutes that became effective May 14, 1977, was not cognizable in the district court. Stats. Nev.
1977, ch. 545.
OPINION
Per Curiam:
On May 23, 1977, Louise Toston filed a pretrial petition for a writ of habeas corpus.
The petition did not meet the requirements the legislature imposed on habeas petitioners
when it enacted Chapter 545 of the 1977 Nevada Statutes which became effective May 14,
1977.
93 Nev. 394, 395 (1977) Sheriff v. Toston
1977. Nevertheless, the district judge considered and granted the petition and the state has
appealed.
We do not reach the merit, if any, of the appeal because the habeas petition was not
cognizable in the district court. Accordingly, we reverse. This proceeding is remanded with
instructions to dismiss the petition.
____________
93 Nev. 395, 395 (1977) Clark County Sports Enterprises v. Kaighn
CLARK COUNTY SPORTS ENTERPRISES, INC., a Nevada Corporation, and DALE W.
HOLADAY, ELIZABETH HOLADAY, CARL PRICE, and MRS. CARL PRICE, as
Individuals, Appellants, v. JAMES M. KAIGHN and F. T. CARTER, Respondents.
No. 9396
July 13, 1977 566 P.2d 411
Appeal from judgment of Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Appeal was taken from an order of the district court which granted an ex parte motion
filed by a former corporate administrator and entered a judgment of $10,000 against the
corporation in favor of the former administrator as compensation for services rendered. The
Supreme Court held that notice of the application for the $10,000 judgment should have been
given to the corporation and the ex parte judgment would therefore be set aside.
Jolley, Urga & Wirth, Las Vegas, for Appellants.
LePome & Gorman, Las Vegas, for Respondents.
1. Process.
Central tenet of legal system is concept of notice and hearing; justice is served only when parties are
given adequate notice and appropriate opportunity to respond in open court.
2. Corporations.
Even though corporation appeared through its president and with counsel at proceedings which resulted
in order granting corporate administrator's motion to withdraw and ordering $10,000 compensation for
services rendered, notice of former administrator's subsequent ex parte application
for judgment against corporation for $10,000 should have been given to corporation
and order granting application would be set aside.
compensation for services rendered, notice of former administrator's subsequent ex parte application for
judgment against corporation for $10,000 should have been given to corporation and order granting
application would be set aside.
OPINION
Per Curiam:
The respondents, James M. Kaighn and F. T. Carter, filed this action against Clark County
Sports Enterprises, Inc., Dale W. Holaday, Elizabeth Holaday, and Mr. and Mrs. Carl Price.
The complaint alleged waste of corporate assets by the Holadays and Prices and sought,
among other things, the appointment of a receiver. The court appointed Warren Stanley and
Mel Larson as administrators of Clark County Sports Enterprises, Inc., and later named James
H. Phillips to serve in that capacity.
Mr. Phillips acted as administrator for about one year, after which he petitioned the court
for authority to withdraw. Notice of the hearing on the petition was given to all parties. The
appellant corporation appeared through its president, Carl Price, and with counsel. The court
granted Phillips' motion to withdraw and further ordered that, as compensation for services
rendered, Phillips shall be paid the sum of $10,000.00. The order does not reflect who was
to pay the fee.
A year later, Phillips filed an ex parte motion seeking a $10,000 judgment against the
appellant corporation. No notice was given, and the following day the court below entered a
$10,000 judgment in favor of Phillips and against the appellant corporation, from which order
this appeal has been taken.
[Headnote 1]
A central tenet of our legal system is the concept of notice and hearing. Justice is served
only when parties are given adequate notice and an appropriate opportunity to respond in
open court. This court has reiterated this concept over and overas long ago as 1871 in Pratt
v. Rice, 7 Nev. 123, and as recently as 1975 in Monroe, Ltd. v. Central Tel. Co., 91 Nev. 450,
538 P.2d 152.
Pratt is significant both for its similarities to this case and for the strong directive from
this court that in all matters except those of course, notice and hearing must be accorded.
Pratt obtained a decree of foreclosure against Rice in 1866, but apparently was unsuccessful
in recovering upon such foreclosure.
apparently was unsuccessful in recovering upon such foreclosure. Five years later he obtained
an ex parte judgment against Rice, nunc pro tunc. No notice of such application was given,
despite the fact that Rice had appeared in the proceedings. Rice moved to vacate the order
because of lack of notice and its insufficiency of showing the facts. The motion was denied.
On appeal, this court reversed, citing the rule that after appearance a defendant or his
attorney shall be entitled to notice of all subsequent proceedings in which notice is required to
be given:' Stat. 1869, Sec. 499. 7 Nev. at 126. This court then indicated that, because such a
motion for entry of judgment was not a mere matter of course, it could be entered only
upon notice.
[Headnote 2]
We believe, and so hold, that in the instant case notice of the application for the judgment
should have been given to the appellant corporation; therefore, we set aside the judgment and
remand for further proceedings.
____________
93 Nev. 397, 397 (1977) Larsen v. State
CHRISTOPHER GARY LARSEN, Appellant, v.
No. 8677
July 13, 1977 566 P.2d 413
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County, Joseph
S. Pavlikowski, Judge.
Defendant was convicted in the district court of first degree murder, kidnapping, use of a
deadly weapon in commission of a crime, and battery with use of a deadly weapon, and he
appealed. The Supreme Court held that (1) deputy district attorney did not obtain statements
from defendant in violation of his right against self-incrimination; (2) finding of jury in
previous trial that co-defendant was guilty of first degree kidnapping did not operate to
preclude defendant, pursuant to doctrines of res judicata and collateral estoppel, from being
convicted in subsequent prosecution under felony murder statute; and (3) trial court was not
required in absence of a request to instruct jury on false imprisonment because crime was a
lesser included offense of kidnapping and was not required to give instruction, sua
sponte, where evidence clearly showed guilt beyond lesser offense.
was a lesser included offense of kidnapping and was not required to give instruction, sua
sponte, where evidence clearly showed guilt beyond lesser offense.
Affirmed.
Jack J. Pursel, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, Rene
Arceneaux and Rimantas A. Rukstele, Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Statements which defendant made to a deputy district attorney were not obtained in violation of
defendant's right against self-incrimination where, upon his arrest, defendant was immediately advised of
his right in accordance with Miranda and, additionally, because deputy district attorney had represented
defendant prior to assuming his position, was repeatedly admonished that deputy district attorney was at
time in same relative position to him as a police officer, that no confidential relationship existed, and that
any statement made by defendant could be used against him. U.S.C.A.Const. Amend. 5.
2. Judgment.
A judgment of conviction or acquittal of a co-defendant does not operate as res judicata or collateral
estoppel in subsequent trial of defendant even though charges against both arise out of same transaction.
3. Judgment.
That jury in a previous trial found co-defendant guilty of first degree kidnapping did not preclude
defendant, pursuant to doctrines of res judicata and collateral estoppel, from being convicted in subsequent
prosecution under felony murder statute. NRS 200.030, subd. 2(b).
4. Criminal Law.
Trial court was not required in absence of a request to instruct jury on false imprisonment because that
crime was a lesser included offense of kidnapping and was not required to give it, sua sponte, where
evidence clearly showed guilt beyond lesser offense. NRS 200.310.
OPINION
Per Curiam:
Appellant stands convicted by jury of first degree murder (NRS 200.030), kidnapping
(NRS 200.310), use of a deadly weapon in the commission of a crime (NRS 193.165), and
battery with use of a deadly weapon (NRS 200.481). Here, he contends (1) his right against
self-incrimination was violated, (2) he cannot be convicted of felony murder, and (3) the trial
court erred by not instructing the jury on a lesser included offense.
the trial court erred by not instructing the jury on a lesser included offense. We disagree.
In June of 1974, appellant, together with Jerry Hayes and Gene Garcia, drove to Arizona to
purchase marijuana for resale in Nevada. During the trip, appellant went to sleep in a motel
and, upon awakening, discovered the two companions along with his $1,000 were gone.
Upon returning to Las Vegas, appellant, accompanied by one Hulett and Berdine, went to an
apartment to abduct Hayes, who they hoped would disclose Garcia's whereabouts. While
Berdine waited in a car, appellant and Hulett, both of whom were armed, entered the
apartment. During the course of Hayes' abduction, Robert Wellman unexpectedly entered the
apartment and was shot by Hulett. Appellant and Hulett then took Hayes away in the waiting
automobile.
[Headnote 1]
1. Appellant's first contention is directed at testimony by Lawrence Leavitt, a deputy
district attorney, regarding statements made to him by appellant. Upon his arrest, appellant
was immediately advised of his rights in accordance with Miranda v. Arizona, 384 U.S. 436
(1966). Additionally, because Leavitt had represented appellant prior to becoming a deputy
district attorney, he was repeatedly admonished that Leavitt was at that time in the same
relative position to him as a police officer, no confidential relationship existed, and anything
he told Leavitt could be used against him. Appellant specifically stated he understood his
rights and the official position of Leavitt, but nevertheless proceeded to make incriminating
statements. Under these limited circumstances, we do not believe appellant's statements were
improperly obtained; thus, we perceive no infringement of his rights under the Fifth
Amendment to the United States Constitution. Allen v. State, 91 Nev. 568, 540 P.2d 101
(1975).
[Headnotes 2, 3]
2. Because a jury in a previous trial found appellant's co-defendant Hulett only guilty of
first degree kidnapping, appellant contends that, pursuant to the doctrines of res judicata and
collateral estoppel, he cannot be convicted under our felony murder statute, NRS
200.030(2)(b).
1
It is the general rule, which is applicable here, that a judgment of
conviction or acquittal of a co-defendant does not operate as res judicata or collateral
estoppel in the subsequent trial of the defendant, even though the charges against both
arose out of the same transaction.2 United States v. Musgrave, 4S3 F.2d 327 {5th Cir.
1973), cert. denied, 414 U.S. 1023 {1973); Schleiss v. State, 239 N.W.2d 6S {Wis. 1976);
Annot., 9 A.L.R.3d 203 {1966).
____________________

1
NRS 200.030(2)(b) provides:
2. Murder of the first degree is murder which is:
. . .
(b) Committed in the perpetration or attempted perpetration of rape, kidnapping, arson, robbery, burglary or
sexual molestation of a child under the age of 14 years; . . .
rule, which is applicable here, that a judgment of conviction or acquittal of a co-defendant
does not operate as res judicata or collateral estoppel in the subsequent trial of the defendant,
even though the charges against both arose out of the same transaction.
2
United States v.
Musgrave, 483 F.2d 327 (5th Cir. 1973), cert. denied, 414 U.S. 1023 (1973); Schleiss v.
State, 239 N.W.2d 68 (Wis. 1976); Annot., 9 A.L.R.3d 203 (1966).
[Headnote 4]
3. Finally, appellant contends the trial court should have instructed the jury on false
imprisonment because that crime is a lesser included offense of kidnapping. The contention is
rejected because appellant failed to request such an instruction (Gebert v. State, 85 Nev. 331,
454 P.2d 897 (1969)); and, the trial court was not required to give it, sua sponte, because the
evidence clearly showed guilt beyond the lesser offense. Holland v. State, 82 Nev. 191, 414
P.2d 590 (1966); Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966).
Affirmed.
____________________

2
There may be special circumstances which warrant deviation from this rule. See, e.g. People v. Taylor, 527
P.2d 622 (Cal. 1974). However, none are demonstrated by the record before us.
____________
93 Nev. 400, 400 (1977) Goodwin v. City of Sparks
CHLORIS GOODWIN, City Clerk of the City of Sparks,
Appellant, v. THE CITY OF SPARKS, Respondent.
No. 9618
July 13, 1977 566 P.2d 415
Appeal from order granting writ of mandamus, Second Judicial District Court, Washoe
County; John E. Gabrielli, Judge.
City clerk appealed from judgment of the district court issuing peremptory writ of
mandamus ordering her to publish notice of public hearing pertaining to proposed tax
increment district. The Supreme Court held the Revitalization and Redevelopment Law
applicable only to two cities in state and passed to develop and finance certain public
improvements therein is unconstitutional as violating prohibition against special or local
legislation.
Reversed.
[Rehearing denied August 17, 1977] Raggio, Walker & Wooster, Reno, for Appellant.
Raggio, Walker & Wooster, Reno, for Appellant.
Paul W. Freitag, City Attorney, Sparks, for Respondent.
1. Statutes.
Local legislation which operates over a particular locality instead of over the whole territory of state and
special legislation which pertains to a part of a class as opposed to all of a class violates Nevada
constitutional prohibition against special and local legislation. Const. art. 4, 20, 21.
2. Statutes.
Revitalization and Redevelopment Law applicable only to two cities in state and having as its purpose
developing and financing of certain public improvements and allowing proceeds from taxable property
within tax increment district to be segregated is unconstitutional as violative of prohibition against special
and local legislation, since a general law could be made applicable to the cities and there were no
emergency circumstances requiring legislative interference by special legislation. Const. art. 4, 21.
3. Statutes.
If statute is a special or local one within constitutional prohibition against special or local legislation and
does not come within one of the enumerated cases in Constitution, its constitutionality depends on whether
general law can be made applicable. Const. art. 4, 20, 21.
OPINION
Per Curiam:
In this appeal we must determine the constitutionality of Chapter 702, 1975 Statutes of
Nevada, hereinafter referred to as Revitalization and Redevelopment Law.
The Revitalization and Redevelopment Law was passed to specifically enable only the
cities of Reno and Sparks to develop and finance certain public improvements. Section 29 of
the Act allows the proceeds from the taxable property within a tax increment district to be
segregated. As of the date of creation of the district, property tax assessments within the
district are frozen for the purpose of allocating tax proceeds to the public entities entitled to
those proceeds. The tax proceeds from increases in value of property within the tax increment
district are to be segregated into a special tax increment account and used to repay municipal
bonds sold to defray costs of the new public improvements within the district.
To implement the Act, the city council of Sparks passed Resolution No. 1194 which
required appellant, as city clerk, to publish notice of hearings pertaining to the proposed tax
increment district.
increment district. She refused to publish such notice, contending the Revitalization and
Redevelopment Law is unconstitutional. The district court upheld the Act's constitutionality
and issued a peremptory writ of mandamus ordering appellant to publish notice of public
hearing. Since we conclude the Act to be special legislation, and therefore unconstitutional
the district court's order is reversed.
[Headnotes 1, 2]
The Nevada Constitution prohibits special and local legislation. The Revitalization and
Redevelopment Law is applicable only to Reno and Sparks. It is, therefore, local legislation
which operates over a particular locality instead of over the whole territory of the state and
special legislation which pertains to a part of a class as opposed to all of a class. State ex rel.
Clarke v. Irwin, 5 Nev. 111, 121 (1869).
[Headnote 3]
Article 4, Section 21, of the Nevada Constitution provides: In all cases enumerated in the
preceding section, and in all other cases where a general law can be made applicable, all laws
shall be general and of uniform operation throughout the State. If a statute is special or local
and does not come within one of the cases enumerated in Section 20, its constitutionality
depends upon whether a general law can be made applicable. Washoe County Water
Conservation District v. Beemer, 56 Nev. 104, 116, 45 P.2d 779 (1935).
In this particular case, a general law can be made applicable to the cities. The problems of
the deterioration of downtown areas and the need for their improvement is not unique to Reno
and Sparks. Nor are such conditions emergency circumstances requiring legislative
interference by special legislation. See Quilici v. Strosnider, 34 Nev. 9, 115 P. 177 (1911).
The Revitalization and Redevelopment Law permits the individual cities to determine what
projects are needed to revitalize the community. Because the Act applies specifically to Reno
and Sparks, it comes within the prohibition of Article 4, Section 21, and is void. County of
Clark v. City of Las Vegas, 92 Nev. 323, 550 P.2d 779 (1976); McDonald v. Beemer, 67 Nev.
419, 220 P.2d 217 (1950).
Reversed.
____________
JAMES ALVlN WATSON, Appellant, v. SHERIFF,
LYON COUNTY, NEVADA, Respondent.
No. 9737
July 13, 1977 566 P.2d 416
Appeal from order denying pretrial petition for writ of habeas corpus, Ninth Judicial
District Court, Lyon County; Noel E. Manoukian, Judge.
Defendant who was charged with burglary filed a pretrial petition for a writ of habeas
corpus to challenge the sufficiency of the complaint against him. The district court denied the
writ, and petitioner appealed. The Supreme Court held that the complaint was constitutionally
insufficient in that it did not contain information which would enable a magistrate to make an
independent judgment that probable cause existed for an arrest warrant.
Reversed.
Julian C. Smith and David R. Gamble, Carson City, for Appellant.
Robert List, Attorney General, Carson City; Ronald T. Banta, District Attorney, Lyon
1. Habeas Corpus.
Where petitioner challenged sufficiency of criminal complaint prior to his preliminary examination, issue
as to whether complaint sufficiently established probable cause for arrest was preserved for later review by
pretrial petition for writ of habeas corpus. U.S.C.A.Const. Amend. 4; Const. art. 1, 18.
2. Criminal Law.
A complaint which consists of nothing more than the complainant's conclusions is constitutionally
insufficient. U.S.C.A. Const. Amend. 4; Const. art. 1, 18.
3. Criminal Law.
Where criminal complaint alleged only that defendant did, on or about a specified date and at a specified
address, willfully, unlawfully and feloniously enter a business with the intent to then and there commit
grand or petit larceny, or a felony, complaint was not sufficient to enable magistrate to make independent
judgment that probable cause existed for an arrest warrant and, therefore, complaint was constitutionally
insufficient. U.S.C.A. Const. Amend. 4; Const. art. 1, 18.
Requirement that there be a probable cause determination prior to arrest is binding on the states
through the due process clause of the Fourteenth Amendment.
prior to arrest is binding on the states through the due process clause of the Fourteenth Amendment.
U.S.C.A.Const. Amends. 4, 14.
OPINION
Per Curiam:
[Headnote 1]
No Warrants shall issue, but upon probable cause. . . . Such is the command of U.S.
Const. amend. IV, and of Nev. Const. art. 1, 18 as well. Whether the criminal complaint
charging James Alvin Watson with having committed the crime of burglary contains
sufficient information to support an independent judgment of the magistrate that probable
cause exists for an arrest warrant is the issue presented by this appeal from an order denying a
pretrial petition for a writ of habeas corpus.
1

The complaint alleges only that Watson did, on or about the 25th day of January, 1977, in
Dayton Township, County of Lyon, State of Nevada, at the intersection of Apache Drive and
Highway 50 East, at the Land Office, Dayton, Nevada, willfully, unlawfully and feloniously
enter a business with the intent to then and there commit grand or petit larceny, or a felony.
[Headnotes 2-4]
It is settled that a complaint which consists of nothing more than the complainant's
conclusions is constitutionally insufficient. Whiteley v. Warden, 401 U.S. 560 (1971). The
complaint under review in Whiteley is remarkably similar to the one before us and was held to
be insufficient to enable a magistrate to make an independent judgment that probable cause
existed for an arrest warrant. Consequently we are compelled to so rule in this case.
2

Reversed.
____________________

1
Watson challenged the sufficiency of the complaint prior to his preliminary examination and thus preserved
his contention for later review. Cf. State of Nevada v. Plunkett, 62 Nev. 265, 271, 149 P.2d 101, 104 (1944).

2
The requirement that there be a probable cause determination prior to arrest is binding upon the states
through the Due Process Clause for the Fourteenth Amendment. Ker v. California, 374 U.S. 23 (1963).
____________
93 Nev. 405, 405 (1977) Williams v. State
BILLY WILLIAMS, Appellant, v. THE STATE
No. 8780
July 14, 1977 566 P.2d 417
Appeal from judgment of conviction, Second Judicial District Court, Washoe County; Roy
L. Torvinen, Judge.
Defendant was convicted before the district court of robbery and was sentenced as an
habitual criminal, and he appealed. The Supreme Court held that: (1) double jeopardy did not
preclude retrial of defendant; (2) defendant had not been denied right to speedy trial; (3)
evidence which was connected with perpetrator, victim or the crime was relevant and
admissible; (4) fact that defendant was not positively identified by victim did not render
defendant's identification as the robbery suspect insufficient as a matter of law; (5) evidence
on issue whether property was taken was sufficient to sustain conviction; (6) certain argument
to jury by prosecutor was not reversible error, in light of fact that, at most, it was only an
indirect comment on defendant's failure to testify; and (7) exemplified records of defendant's
prior convictions which had no unconstitutional infirmities on their face were admissible.
Affirmed.
David Dean, Reno, for Appellant.
1. Criminal Law.
Double jeopardy did not preclude retrial of accused after he obtained reversal of his unsatisfied robbery
conviction.
2. Criminal Law.
Accused had not been denied right to speedy trial in robbery prosecution where his actions were primary
reasons for the delay in his retrial.
3. Criminal Law.
Evidence which was connected with perpetrator, victim or crime in question was relevant and admissible
in robbery prosecution.
4. Criminal Law.
In robbery prosecution, admission of evidence concerning a shooting incident which occurred when
officers stopped accused for questioning was not prejudicial error.
5. Robbery.
Fact that accused was not positively identified by victim did not render accused's identification as a
robbery suspect insufficient as a matter of law in robbery prosecution.
6. Robbery.
State is not required to prove entire amount or value of property taken in a robbery, but, rather, only that
some properly was taken.
7. Robbery.
Evidence on issue whether property was taken was sufficient to sustain robbery conviction, though State
failed to produce all the money taken and though victim could not specifically identity each coin, which
had been found in accused's possession, as victim's property.
8. Criminal Law.
In robbery prosecution, prosecutor's argument to jury that . . . I was sitting there wondering like I think
you were wondering when is the defendant going to come forward on the facts of this case? And I was still
thinking that when he sat down . . . was not reversible error, in light of fact that, at most, it was only an
indirect comment on accused's failure to testify.
9. Criminal Law.
Alleged improper argument by prosecutor would not be considered on appeal where accused had not
objected to such argument.
10. Criminal Law.
In proceeding in which accused was convicted of robbery and was sentenced as an habitual criminal,
exemplified records of accused's prior convictions which had no unconstitutional infirmities on their face
were admissible.
11. Criminal Law.
Fact that witness made reference to accused's status as an habitual criminal and his prior conviction for
robbery could not be raised as a basis of error on appeal from proceeding in which he was convicted of
robbery and was sentenced as an habitual offender where references to such matters were elicited as a
direct response to the questioning of defense counsel.
OPINION
Per Curiam:
After being afforded a new trial (Williams v. Warden, 91 Nev. 16, 530 P.2d 761 (1975)),
Billy Williams was again tried and convicted, by jury verdict, of robbery. He was
sentencedas an habitual criminalto life imprisonment. In this appeal, he asserts numerous
grounds for reversal, none of which have merit.
[Headnote 1]
1. Williams first contends double jeopardy precludes his being retried for the same
offense. "It has long been the rule that when a defendant obtains a reversal of a prior,
unsatisfied conviction, he may be retried in the normal course of events." United States v.
Ewell, 3S3 U.S. 116, 121 {1966).
being retried for the same offense. It has long been the rule that when a defendant obtains a
reversal of a prior, unsatisfied conviction, he may be retried in the normal course of events.
United States v. Ewell, 383 U.S. 116, 121 (1966). Here, Williams had not satisfied his prior
conviction which we overturned, and, therefore, his double jeopardy claim is not applicable.
[Headnote 2]
2. Williams' own actions were the primary reason for the delay in his retrial. Thus, we
reject his claim that he was denied a speedy trial. See Sheriff v. McKinney, 93 Nev. 313, 565
P.2d 649 (1977), and cases cited therein. See also Harris v. State, 86 Nev. 197, 466 P.2d 850
(1970).
[Headnote 3]
3. In regard to the assertion that the court erred by admitting certain evidence because it
was irrelevant, it appears that the evidence was connected with the perpetrator, victim, or
crime; thus, it was relevant and admissible. Jackson v. State, 93 Nev. 28, 559 P.2d 825
(1977).
[Headnote 4]
4. For the same reasons set forth in his first appeal, we reject the contention that it was
prejudicial error to admit evidence concerning a shooting incident which occurred when
police officers stopped Williams for questioning. See Williams v. State, 85 Nev. 169, 451
P.2d 848 (1969).
[Headnote 5]
5. Because he was not positively identified by the victim, Williams argues that his
identification as the robbery suspect was insufficient as a matter of law. An identical
argument has previously been rejected where we said: In order to sustain a conviction it is
not necessary that the identification of the defendant as the perpetrator of the crime be made
positively or in a manner free from inconsistencies.' Collins v. State, 88 Nev. 9, 13, 492 P.2d
991, 993 (1972).
[Headnotes 6, 7]
6. Williams next contends that he should have been acquitted because the State failed to
produce all the money taken in the crime and the victim could not, with certainty, identify
money found in appellant's possession as part of the actual property stolen. The State is not
required to prove the entire amount or value of property taken in a robbery, only that some
property was indeed taken. State v. Brown, 452 P.2d 95S {Wash.
P.2d 958 (Wash. 1969); State v. Townsend, 392 P.2d 459 (Ore. 1964). Here, part of the
money taken included $20 in half dollars and $70-$80 in quarters. At the time of his arrest,
some thirty (30) minutes after the robbery, Williams possessed $20 in half dollars and $60 in
quarters. This evidence was probative on the issue of taking, and with other evidence,
sufficient to prove that element; thus, it is immaterial that the victim could not specifically
identify each coin as his property. State v. Hunter, 384 P.2d 983 (Ore. 1963).
[Headnotes 8, 9]
7. Contending he was denied a fair trial because of improper argument to the jury, it is
claimed that the prosecutor should not have commented on Williams' failure to take the stand
and testify. However, viewed in proper context, the statement complained of was, at best,
only an indirect comment on the subject and thus not reversible error.
1
Septer v. Warden, 91
Nev. 84, 530 P.2d 1390 (1975). Other alleged improper argument was not objected to; thus, it
will not be considered. Sorce v. State, 88 Nev. 350, 497 P.2d 902 (1972).
[Headnote 10]
8. We also reject the claim that prior convictions, which were used to support the habitual
criminal charge, are invalid. The State introduced exemplified records of prior convictions
which had no constitutional infirmities on their face; therefore, they were admissible. Anglin
v. State, 86 Nev. 70, 464 P.2d 504 (1970).
[Headnote 11]
9. Finally, Williams contends he should have been granted a mistrial because witnesses
made reference to his status as an habitual criminal and his prior conviction for robbery.
However, the references to these matters were elicited as [a] direct response to the
questioning of defense counsel and may not be raised by the defendant as a basis of error."
____________________

1
The prosecutor's remark referred to the fact that the evidence stood uncontradicted. He stated:
I don't plan to take long, I just plan to talk to you about a few things that defense counsel said in his
argument.
What I really plan to do is talk to you about what he didn't say. I couldn't help but reflect that I haven't had a
lecture on the constitutional law like we had since I was in law school, and I was sitting there wondering like I
think you were wondering when is the defendant going to come forward on the facts of this case? And I was still
thinking that when he sat down.
Now, ladies and gentlemen, we heard defense counsel talk about everything but the facts in this case. We
didn't hear him explain away any of the incriminating evidence.
raised by the defendant as a basis of error. Founts v. State, 87 Nev. 165, 169, 483 P.2d 654,
656 (1971).
Affirmed.
____________
93 Nev. 409, 409 (1977) Ham v. District Court
A. W. HAM, Jr., Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF THE STATE
OF NEVADA, In and For the County of Clark, and THE HONORABLE LLEWELLYN A.
YOUNG, ASSIGNED JUDGE OF THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, In and For the County of Clark, Respondents.
No. 9536
July 15, 1977 566 P.2d 420
Original Petition for Writ of Prohibition to prevent a district judge from entering an order
of disqualification. Eighth Judicial District Court, Clark County; Llewellyn A. Young, Judge.
Writ of prohibition was sought to preclude trial judge from voluntarily disqualifying
himself. The Supreme Court, Manoukian, J., held that: (1) trial judge was without authority to
voluntarily disqualify himself where no explanation of the nature of claimed bias or prejudice
was given and where the trial judge had already ruled on certain litigated matters, and (2)
prohibition was appropriate remedy.
Petition granted.
Mowbray, J., dissented.
Dickerson, Miles, and Pico, Las Vegas, for Petitioner.
Lionel, Sawyer, and Collins, Las Vegas, for Respondents.
1. Prohibition.
Writ of prohibition must issue when there is an act to be arrested which is without or in excess of the
jurisdiction of the trial judge and there is no plain, speedy, and adequate remedy in the ordinary course of
law. NRS 34.320, 34.330.
2. Appeal and Error: Prohibition.
Voluntary order of disqualification of trial judge is not an appealable order in the ordinary course of law
so that party seeking to prohibit the judge from disqualifying himself is without a plain, speedy and
adequate remedy at law and thus entitled to prohibition if the voluntary order of disqualification is in
excess of the trial judge's jurisdiction. NRS 34.320, 34.330.
3. Judges.
Where no explanation of nature of claimed bias or prejudice was given and, as such, stood
unsubstantiated, where the trial judge had already ruled on some litigated matters, and where the claim of
bias was untimely and informal, trial judge did not have the authority to voluntarily disqualify himself.
NRS 1.230, subd. 3.
4. Judges.
Legislative limitations on the disqualification of judges mandate that a judge not be disqualified by an
unsubstantiated charge of bias or prejudice where an affidavit is not timely filed. NRS 1.230, subd. 5.
5. Judges.
It is incumbent, as an obligation attendant to the performance of judicial duties and responsibilities, that a
judge continue to serve in a case unless there exist certain circumstances or facts which would, for any
number of reasons, necessitate disqualifications so that the ends of justice would be more fairly and
impartially served for all parties concerned; trial judge has a duty to preside to the conclusion of all
proceedings in the absence of some statute, rule of court, ethical standard, or other compelling reason to the
contrary.
6. Judges; Prohibition.
Trial judge's action in purporting to voluntarily disqualify himself after he had ruled on certain litigated
matters in the case was ineffectual and, had an order of disqualification been signed and entered by the trial
judge, prohibition would have been proper remedy for party seeking to prevent the disqualification as
judicial action would have been void and improvidently issued. NRS 1.230.
OPINION
This is an original proceeding wherein Petitioner requests this Court to issue a writ of
prohibition, which if granted, would preclude the Honorable Llewellyn A. Young, District
Judge, from disqualifying himself as presiding Judge relative to these actions.
Two questions are presented for our determination in this extraordinary proceeding. (1)
Whether a writ of prohibition is the proper remedy; (2) Whether a district court judge can
voluntarily disqualify himself from participation in or consideration of proceedings pending
before him, absent a judicially-warranted reason or justification for such a recusal. We answer
the first issue in the affirmative and, upon these facts, the latter in the negative.
On October 15, 1973, being advised that all of the judges then sitting in the Eighth Judicial
District had voluntarily recused themselves, this Court assigned Respondent, the
Honorable Llewellyn A.
recused themselves, this Court assigned Respondent, the Honorable Llewellyn A. Young,
from the Sixth Judicial District, to preside on two consolidated civil actions in that district.
Petitioner and Doris Ham Shupe are adversaries in that litigation. Since that time, the
Respondent has presided over these consolidated proceedings for a period well in excess of
three years and in doing so has heard and decided a number of contested motions including
cross-motions for summary judgment February 16, 1977, which were decided in favor of
Petitioner and against Ms. Shupe.
When Respondent ruled on the above motions, he set several remaining motions for
hearing and decision commencing February 22, 1977, prior to the scheduled commencement
of the jury trial February 28, 1977, and ordered that immediately thereafter, a stipulated-to,
pre-trial conference would be held February 22, 1977, to and including February 26, 1977. On
the morning of February 22, 1977, and prior to the hearing on the motions, the attorney for
Ms. Shupe requested that counsel for both parties meet in chambers with Respondent. During
this meeting, counsel for Ms. Shupe stated that his client believed Judge Young to be biased
and prejudiced against her and further suggested that the jurist should voluntarily disqualify
himself from further proceedings.
In response to these allegations of bias and prejudice, Respondent informed counsel that
he entertained no such bias or prejudice for or against either party, stating additionally that
during the course of the proceedings, he had ruled in favor of and against both parties.
Notwithstanding this, the Judge agreed to disqualify himself and allow the parties fifteen days
within which to agree upon a judge to whom the case would be reassigned.
The next day, February 23, 1977, in furtherance of the disqualification request,
proceedings were conducted before Respondent with counsel for both parties present. During
that proceeding, the previous day's in-chambers discussion was substantially reiterated and
made of record, and a proposed order of disqualification was presented to the Judge for
signature by counsel for Ms. Shupe. Counsel for Petitioner objected to the reassignment
contending that such a voluntary recusal, following as it did an untimely suggestion of bias
and prejudice, was improper where it was expressly denied that bias or prejudice was the
reason for the volunteered withdrawal. The formal written order of disqualification was not
signed, and it is from the oral order of February 22, 1977, therefore, upon which Petitioner
has based this application for extraordinary relief.
1. Whether a writ of prohibition is the proper remedy?
[Headnote 1]
Preliminarily, this Court is asked to decide whether or not a writ of prohibition is the
proper procedure with which to resolve a question concerning the propriety of a trial judge's
voluntary disqualification. It is clear that a writ of prohibition must issue when there is an act
to be arrested which is without or in excess of the jurisdiction of the trial judge under
NRS 34.320,
1
Culinary Workers v. District Court, 66 Nev. 166, 207 P.2d 990 (1949);
Seaborn v. District Court, 55 Nev. 206, 29 P.2d 500 (1934), and where there is not a plain,
speedy and adequate remedy in the ordinary course of law pursuant to NRS 34.330.
2
Heilig
v. Christensen, 91 Nev. 120, 532 P.2d 267 (1975).
[Headnote 2]
Since the voluntary order of disqualification of a judge is not an appealable order in the
ordinary course of law, NRAP 3A(b), see Clack v. Jones, 62 Nev. 72, 140 P.2d 580 (1943),
Petitioner is, therefore, without a plain, speedy and adequate remedy at law. The
unavailability of a valid legal basis for review satisfies one of the requirements for the
issuance of a writ. The question of whether Respondent's action in this case exceeded the
jurisdiction of the court below, to fulfill the second prerequisite for issuance is, in actuality,
the substantive issue raised by this petition, that of whether the recusal here, albeit voluntary,
was proper. A resolution of this issue then will necessarily be dispositive of the question of
excess of jurisdiction, and we turn now to consider it.
2. Whether a district court judge can voluntarily disqualify himself from participation in
or consideration of proceedings pending before him absent a judicially-warranted reason or
justification for such a recusal?
Petitioner contends that there does not exist that power inherent in the position which
enables a trial judge, without exceeding his jurisdiction, to voluntarily recuse himself not only
at his discretion, at any time, but further without stating any reasons therefor.
____________________

1
NRS 34.320 provides: The writ of prohibition is the counterpart of the writ of mandate. It arrests the
proceedings of the tribunal, corporation, board or person exercising judicial functions, when such proceedings
are without or in excess of the jurisdiction of such tribunal, corporation, board or person.

2
NRS 34.330 provides: The writ may be issued only by the supreme court to an inferior tribunal, or to a
corporation, board or person, in all cases where there is not a plain, speedy and adequate remedy in the ordinary
course of law. It is issued upon affidavit, on the application of the person beneficially interested.
at his discretion, at any time, but further without stating any reasons therefor. Looking beyond
NRS 1.230(3)
3
standing as the sole statutory authority for a disqualification, sua sponte,
upon the ground of actual or implied bias, Ms. Shupe has directed this Court's attention to
District Court Rule 26,
4
a rule restricting the involvement of any other judge into a case
without written authority from the then-presiding judge, as it or its similar predecessors have
been construed by State v. Blackwell, 65 Nev. 405, 198 P.2d 280 (1948), and Weeks v.
Weeks, 75 Nev. 411, 345 P.2d 228 (1959).
The issue we are being asked to resolve is, as we perceive it, more precisely stated,
whether a judge may disqualify himself after he has ruled on litigated matters where it is not
shown and where the judge denies that he is biased or prejudiced, following an untimely and
informal claim of such bias or prejudice being made against him. Since the issue at hand is
more specifically that of disqualification voluntarily effected by a district judge, we are
constrained to separate the above-mentioned contention, founded as it is on District Court
Rule 26, as being inapplicable to a case of voluntary recusal.
While it is true, under Blackwell and Weeks, a trial judge may reassign a case without
being required to state the reasons therefor, it does not a fortiori follow that a trial judge can
disqualify himself without there being some limit on this discretion. Our reading of NRS
1.230(3) impresses us as requiring some basis for the disqualification.
[Headnote 3]
Here, no explanation of the nature of the claimed bias or prejudice was given and, as such,
stands unsubstantiated. Indeed, the trial judge expressly denied that he entertained any bias or
prejudice when he offered to voluntarily disqualify himself. There seems to be no other
explanation for the judge's voluntary disqualification other than that such a course was
suggested to him attendant to a claim of bias.
____________________

3
NRS 1.230 sets forth the various grounds and procedures for disqualification of judges other than Supreme
Court Justices. The relevant portion is as follows: 3. A judge, upon his own motion, may disqualify himself
from acting in any matter upon the ground of actual or implied bias.

4
District Court Rule 26 provides in relevant part: 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 written request of the judge who shall have first entered upon the trial or
hearing of such cause, proceeding, or motion. [Emphasis added.]
suggested to him attendant to a claim of bias. While we are entirely mindful that the direction
of NRS 1.230(3) is not mandatory in setting forth actual or implied bias as a ground for a
volunteered recusal, we cannot expand this permissiveness to allow disqualification on any
grounds whatsoever.
In Zuniga v. Superior Court, 269 P.2d 720 (Ariz. 1954), the court affirmed the voluntary
disqualification of a trial judge stating:
. . . [W]e hold that a judge may on his own motion, if he acts timely, recuse himself
even though the reason given might not be sufficient to form a basis of legal
disqualification.
Id. at 721.
The general rule is set forth in 48 C.J.S. Judges, 93, (1947), as follows:
It is the duty of a judge, however, to exercise the judicial functions only conferred on
him by law, and he has no right to disqualify himself in the absence of a valid reason.
See Conkling v. Crosby, 239 P. 506 (Ariz. 1925).
In State v. Allen, 206 N.E.2d 139 (Ind. 1965), the court stated:
A judge has a discretion to disqualify himself as a judge in a case if he feels he
cannot properly hear the case because his integrity has been impugned or false charges
have been made against him, and he has a mandatory duty to disqualify himself if he is
prejudiced, interested, or related to any of the parties in litigation. [Emphasis added.]
Id. at 142.
We recognize that, apart from NRS 1.230(3), there may exist a number of circumstances
over and above those which simply go to bias or prejudice toward a party which could allow,
indeed require, disqualification. For instance, were there any suggestion of impropriety or
action giving the appearance of impropriety in any given case, as contemplated by Supreme
Court Rule 209,
5
then in effect, it seems clear that recusal would be a necessary step to
alleviate or obviate such an appearance.
____________________

5
Supreme Court Rule 209 provides: A judge's official conduct should be free from impropriety and the
appearance of impropriety. He should avoid infractions of law, and his personal behavior, not only upon the
Bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach.
Supreme Court Rule 209 has been replaced by Canon 2A of the
would be a necessary step to alleviate or obviate such an appearance.
We choose to adopt a more practical construction of NRS 1.230(3), one which allows the
voluntary disqualification of a judge not for any reason, but for only those reasons which
reasonably appear to be judicially warranted. However, we find that the instant case in which
recusal was effected for seemingly no reason to be outside the allowable limits of any
reasonable and practicable interpretation of this statute.
[Headnote 4]
The Legislature intended some reasonable limitation on the disqualification of judges,
Backer v. District Court, 70 Nev. 488, 274 P.2d 571 (1954), and in addition to requiring bias
or prejudice, either expressed or implied, the ten day time limitation was adopted. NRS
1.230(5). Clearly, these legislative limitations mandate that a judge may not be disqualified
by an unsubstantiated charge of bias or prejudice when, as here, an affidavit was not timely
filed. To prevent the voluntary withdrawal or disqualification of a judge in these
circumstances would not protect against abuse, which was clearly one of the legislative
objectives in adopting this legislation.
[Headnote 5]
We find it incumbent as an obligation attendant to the performance of judicial duties and
responsibilities that a judge should continue to serve in a case unless there exists certain
circumstances or facts which would, for any number of reasons, necessitate disqualification
so that the ends of justice would more fairly and impartially be served for all parties
concerned. A trial judge has a duty to preside to the conclusion of all proceedings, in the
absence of some statute, rule of court, ethical standard, or other compelling reason to the
contrary. Here, Respondent was assigned by this Court to hear all matters incident to these
proceedings until final judgment. Respondent is fully familiar with the issues of law and fact
as well as complexities of these cases. To permit a disqualification on these facts would result
in a substantial inconvenience to the court and all parties and persons directly or indirectly
concerned, cause unnecessary delay and expense, and could result in a trial judge acting
without or in excess of his jurisdiction, contrary to legislative intent, which intent is to
expedite proceedings and to require that a judge preside on a case until he is prevented
from so doing for proper reason.
____________________
Nevada Code of Judicial Conduct, effective July 1, 1977, which provides: A JUDGE SHOULD AVOID
IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL HIS ACTIVITIES. A. A judge
should respect and comply with the law and should conduct himself at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary.
trial judge acting without or in excess of his jurisdiction, contrary to legislative intent, which
intent is to expedite proceedings and to require that a judge preside on a case until he is
prevented from so doing for proper reason. Should a reason appear, he should then step down
and, at that time, explicate his reasons for the withdrawal.
If Ms. Shupe has evidence of actual bias or prejudice and believes Respondent entertains
such, she should proceed to proof before an impartial jurist pursuant to NRS 1.230(4). We
observe nothing in the record that would show a manifestation of prejudice or bias. If it exists
dehors this record, an appropriate motion can be filed at any time, unless the cause is waived.
NRS 1.230(4) affords a judge an opportunity of demonstrating his impartiality. Here, without
such a proceeding, the unrebutted declarations of a judge that he is not biased or prejudiced
fail to satisfy the provisions of NRS 1.230(3). To allow a voluntary disqualification under the
instant circumstances would introduce into the judicial procedures in Nevada an approach
wholly uncontemplated by our Legislature and this Court.
[Headnote 6]
Finally, we turn again to the question of remedy and conclude that Respondent was
without legal authority to withdraw from the case as he purported to do. His action was
ineffectual. Had an order of disqualification been signed and entered by Respondent,
prohibition would nonetheless have been available to Petitioner, since the judicial action
would have been void and improvidently issued, as being in violation of NRS 1.230.
Compare, Madison Nat'l Life v. District Court, 85 Nev. 6, 449 P.2d 256 (1969). The
disqualification in this case, admittedly voluntary, although accomplished for no express
reason and at the suggestion of one of the parties, is clearly without or in excess of the
jurisdiction of the lower court and therefore succeeds to satisfy the second requirement fur
issuance of a writ of prohibition.
In so holding, we emphasize that this case is decided on these facts alone. We are not
concerned, as we might be in some other case, with express reasons and their validity. Neither
are we concerned with reasons which, although unexpressed, prove sufficient to allow
disqualification. Here, it is the lack of a proper explanation, or more specifically, that it was
expressly indicated that there was no justification for the withdrawal to which we have
limited the discussion and our holding.
Accordingly, the writ of prohibition should issue prohibiting the Honorable Llewellyn A.
Young from disqualifying himself voluntarily from the pending proceedings. This writ is, of
course, retroactive and specific only for, should a judicially-warranted cause arise, the
interests of justice would require recusal.
Let the writ issue.
Batjer, C. J., and Thompson, and Gunderson, JJ., concur.
Mowbray, J., dissenting:
Respectfully, I dissent. As I see it, the narrow issue presented is whether a district judge
may, when requested to do so, and without confessing bias, disqualify himself from a
proceeding and transfer it to another judge. I believe he should have that power. As I
understand today's ruling, he will now be precluded from so doing unless he admits bias.
Such a precedent is too restrictive. A court has the duty to give the parties a fair hearing, and
the parties must know that they have received such a hearing. There may be cases where a
judge himself feels he is not biased, yet in the interest of presenting a high standard of
impartiality concludes that a requested transfer should be granted.
I am not suggesting that there is presently anything before us showing bias on the part of
the respondent judge. If he had denied the request to step down, he may have been acting well
within his power to do so, and the parties would have been left to their statutory remedies. I
am only expressing the view that this court should let such a decision rest with the trial court.
____________
93 Nev. 417, 417 (1977) Depaoli v. Stebbins
MARY DEPAOLI, Appellant, v. FRANK
STEBBINS, et al., Respondents.
No. 9135
July 19, 1977 566 P.2d 826
Appeal from judgment, Ninth Judicial District Court, Douglas County; Noel E.
Manoukian, Judge.
Action was brought wherein plaintiff claimed ownership of three lots by adverse
possession. The district court ruled against the claimant, and appeal was taken. The Supreme
Court held that evidence amply supported the district court's determination that the
claimant's possession was not hostile and adverse to the interests of her cotenants.
93 Nev. 417, 418 (1977) Depaoli v. Stebbins
Court held that evidence amply supported the district court's determination that the claimant's
possession was not hostile and adverse to the interests of her cotenants.
Affirmed.
Carl F. Martillaro, Carson City, for Appellant.
Guild, Hagan & Clark, Ltd., and Thomas J. Hall; and Samuel B. Francovich, Reno, for
Respondents.
Tenancy in Common.
Evidence that adverse claimant had been permitted to live in home on one of three lots by parties who
owned undivided one-tenth interests in the lots and that claimant had paid the taxes thereon in lieu of rent
amply supported finding that claimant's possession was not hostile and adverse to the interests of her
cotenants and thus did not give rise to title by adverse possession.
OPINION
Per Curiam:
Through a 1953 decree of distribution of the Estate of Charles W. Brown, deceased, the
appellant and respondents were each devised an undivided one-tenth interest in three lots in
Gardnerville, Douglas County, Nevada. The appellant, by agreement with respondents, was
permitted to live in the home on one of the three lots and paid the taxes thereon in lieu of
rent. In 1975, the appellant, as plaintiff, filed this action claiming ownership of the three lots
in fee by adverse possession. The district court ruled against her primarily for the reason that
her possession was not shown to be hostile and adverse to the interests of her co-tenants.
Lanigir v. Arden, 82 Nev. 28, 409 P.2d 891 (1966). The record amply supports that
determination.
Affirmed.
1

____________________

1
The Governor commissioned Honorable William P. Beko to sit for Justice Manoukian who was
disqualified.
____________
93 Nev. 419, 419 (1977) Kochendorfer v. Board of Co. Comm'rs
BETTY KOCHENDORFER dba THE WALRUS AND THE CARPENTER, Appellant,
v. BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY, HAROLD
P. DAYTON, Jr., CHARLES C. MENELEY, Jr., GARRY STONE, and DICK CANATSEY,
Sheriff of Douglas County, as the DOUGLAS COUNTY
LIQUOR BOARD, Respondents.
No. 9359
July 27, 1977 566 P.2d 1131
Appeal from order quashing an alternative writ of mandamus and reinstating a Douglas
County Commission order revoking appellant's liquor license; Ninth Judicial District Court,
Douglas County; William P. Beko, Judge.
On appeal by bar owner from an order of the district court quashing an alternative writ of
mandamus and reinstating Douglas County Commission order revoking the owner's liquor
license, the Supreme Court, Mowbray, J., held that: (1) the Board of County Commissioners
had the power to issue a temporary conditional on-sale liquor license and to revoke that
license when the conditions were violated; (2) the owner's due process rights were not
violated; and (3) while the owner alleged that the county code's last, catch-all ground for
revocation, any other good and sufficient reason, was void for vagueness and its application
to her case violated her due process and equal protection rights, it was unnecessary to
determine the constitutionality of that provision, since the owner was clearly wrong in her
contention that her license could have been revoked only on that ground; rather, the transcript
of the hearing indicated that the Board could have refused the license either on the ground
that the bar created a public nuisance or diminished the value of adjoining property.
Affirmed.
Kenneth J. Jordan, Carson City, for Appellant.
Steven D. McMorris, District Attorney, Douglas County, for Respondents.
1. Intoxicating Liquors.
While county commissioners are required to exercise their discretion, according to certain prescribed
standards, in determining whether to grant or maintain liquor licenses, and while mandamus is available to
order the exercise of such discretion, it cannot be used to control that discretion or to
substitute the judgment of the court for that of the governing body.
cannot be used to control that discretion or to substitute the judgment of the court for that of the governing
body. NRS 34.160, 244.350.
Mandamus may properly be employed when the discretion of county commissioners, in respect to the
grant of a liquor license, is exercised arbitrarily or capriciously, but in that case the applicant has the
burden of proof. NRS 34.160, 244.350.
Twenty-first Amendment of the United States Constitution gives the State broad power to regulate the
liquor business, and the State has, in turn, granted this power to the Board of County Commissioners.
NRS 244.350; U.S.C.A.Const. Amend. 21.
Douglas County Board of Commissioners had the power to issue a conditional liquor license and to
revoke that license when the conditions were violated; such power, while not specified in county code, was
inherent in the Board's power to refuse to grant a license or to revoke it on reasonable grounds. NRS
244.350.
Due process presumes a protectible property or liberty interest.
Key elements of due process are notice and hearing appropriate to the case.
Bar owner's due process rights were not violated by reason of the revocation of her temporary conditional
on-sale liquor license, where, though she may have been handicapped at first hearing by Board's failure to
give her timely and specific notice, she was given a second hearing 14 days later, at which time she was
represented by counsel, was fully aware of the reasons for the threatened revocation, and by her own
admission presented all defenses available to her. NRS 244.350.
While bar owner, whose temporary conditional liquor license was revoked, alleged that county code's
last, catch-all ground for revocation, any other good and sufficient reason, was void for vagueness and its
application to her case violated her due process and equal protection rights, it was unnecessary to
determine the constitutionality of that provision, since the owner was clearly wrong in her contention that
her license could have been revoked only on that ground; rather, the transcript of the hearing indicated that
the Board could have refused the license either on the ground that the bar created a public nuisance or
diminished the value of adjoining property.
OPINION
This is an appeal from a order quashing an alternative writ of mandamus and reinstating
a Douglas County Board of County Commissioners order revoking appellant's liquor
license.
writ of mandamus and reinstating a Douglas County Board of County Commissioners order
revoking appellant's liquor license.
1. Facts.
On July 1, 1976, Appellant Betty Kochendorfer appeared before the Douglas County
Liquor Board seeking an on-sale liquor license for a bar to be located at Kingsbury
Commercial Park in Douglas County. Several members of the Board opposed granting the
license, believing the location to be too near a residential area to be suitable for a bar. They
were particularly concerned with potential noise in the parking lot and from live
entertainment inside the bar. At the same time, most members were reluctant to deny the
license because appellant, assuming the license would be simple to obtain, had already spent
considerable money remodeling the building where the bar was to be located. As a
compromise, the Board agreed to give appellant a chance to show she could operate a bar at
the proposed location without disturbing the neighboring residents. They issued a six-months'
temporary license, revocable at any time and specifically conditioned on appellant's posting a
security guard in the parking lot from 8:00 p.m. until closing time and permitting no
amplified music.
On November 4, 1976, the Board reviewed appellant's license in response to complaints of
excessive noise. Testimony indicated that the conditions had been violated, and the Board
decided that appellant's license should be revoked, effective November 22, 1976. At that
hearing, appellant complained that she had not received adequate notice of the proceedings.
She had been notified by letter only two days earlier and had been unable, during that short
time, to secure witnesses in her defense. As a result, a second hearing was held on November
18, 1976, at which time appellant was represented by counsel. Additional witnesses testified
both in support of and in opposition to revocation of appellant's license. After hearing the
testimony, the Board again moved to revoke appellant's license, this time effective December
6, 1976.
On November 26, 1976, appellant petitioned for a writ of mandamus ordering the Board to
reinstate and continue her license on a permanent basis. The petition was denied, and this
appeal followed.
2. Mandamus.
Section 34.160 of the Nevada Revised Statutes authorizes this court to issue a writ of
mandamus: to compel the performance of an act which the law especially enjoins as a
duty resulting from an office, trust or station; or to compel the admission of a party to the
use and enjoyment of a right or office to which he is entitled and from which he is
unlawfully precluded by such inferior tribunal, corporation, board or person. . . .
to compel the performance of an act which the law especially enjoins as a duty resulting
from an office, trust or station; or to compel the admission of a party to the use and
enjoyment of a right or office to which he is entitled and from which he is unlawfully
precluded by such inferior tribunal, corporation, board or person. . . .
[Headnotes 1, 2]
Section 244.350 of the Nevada Revised Statutes and section 5.08 of the Douglas County
Code require respondents to exercise their discretion, according to certain prescribed
standards, in determining whether to grant or maintain liquor licenses. While mandamus is
available to order the exercise of such discretion, it cannot be used to control that discretion
or to substitute the judgment of the court for that of the governing body. Board of Comm'rs v.
Dayton Dev. Co., 91 Nev. 71, 530 P.2d 1187 (1975); Gragson v. Toco, 90 Nev. 131, 520 P.2d
616 (1974). It may properly be employed when discretion is exercised arbitrarily or
capriciously. In that case, however, the applicant has the burden of proof. Gragson v. Toco,
90 Nev. at 133, 520 P.2d at 617. The propriety of the remedy of mandamus in the instant
case, therefore, depends on whether the respondents acted arbitrarily or capriciously in
exercising their broad discretion in revoking appellant's temporary liquor license.
3. Discretion.
Section 244.350 of the Nevada Revised Statutes authorizes Douglas County Liquor Board
to enact ordinances [p]rescribing the conditions under which liquor may be sold or disposed
of and [p]rohibiting the sale or disposition of liquor in places where, in the judgment of the
board, such sale or disposition may tend to create or constitute a public nuisance, or where by
the sale or disposition of liquor a disorderly house or place is maintained. Section 5.08.040
of the Douglas County Code provides that a liquor license may be refused an applicant on any
of the following grounds:
A. When, in the judgment of the board, the granting of such license may tend to
create or constitute a public nuisance;
B. When, by the granting of such license, a disorderly house or place may be
maintained.
C. When the granting of such license may seriously and adversely affect the
valuation of adjoining and contiguous property; D.
D. When the board is satisfied that the applicant is not a fit and proper person to
operate the business contemplated by his application;
E. When in the judgment of the board there are ample and sufficient licensees and
establishments in the area or place for which the license is to be used to properly serve
such area or place.
F. For any other good and sufficient reason.
Appellant contends that the Board exercised its discretion arbitrarily in granting her a
temporary conditional license and in subsequently revoking it. She does not claim the absence
of substantial evidence to support the revocation based on violation of the conditions; indeed,
at the second hearing, she expressly admitted violating those conditions. Instead, she claims
that the Board abused its discretion in imposing those conditions in the first place. She
contends that, because NRS 244.350 empowers the Board to enact ordinances to regulate
the liquor business, the only conditions which may be imposed are those specified by
ordinance and imposed on all licensees. The Board is alleged to have violated her right to
equal protection by imposing on her ad hoc conditions to which other licensees are not
subject. We do not agree.
[Headnote 3]
The Twenty-first Amendment of the United States Constitution gives the State broad
power to regulate the liquor business. U.S. Const. amend. XXI; Joseph E. Seagram & Sons,
Inc. v. Hostetter, 384 U.S. 35 (1966). The State has, in turn, granted this power to the Board.
NRS 244.350, for instance, authorizes the Board to revoke such licenses whenever there is,
in the judgment of a majority of the board, sufficient reason for such revocation. See also
Gragson v. Toco, 90 Nev. at 133, 520 P.2d at 617.
[Headnote 4]
Additionally, as noted by the court below, the Board clearly had the authority to deny
appellant a license rather than to issue her a conditional one. If the Board exceeded its
authority in issuing her a license, the revocation cured that error.
4. Due Process.
Appellant complains that her due process rights were violated by the hearing held on
November 4, 1976, because she did not receive notice of the hearing until November 1. She
notes that section 5.0S.070 of the Douglas County Code requires 10 days' notice and
hearing prior to revocation of a liquor license.
notes that section 5.08.070 of the Douglas County Code requires 10 days' notice and hearing
prior to revocation of a liquor license. She also objects to the form of the notice, which she
claims should have been a formal complaint or order to show cause specifying the grounds on
which the revocation was to be based. She cites Misurelli v. City of Racine, 346 F.Supp. 43
(E.D. Wis. 1972), in which it was held that a licensee was entitled to notice of the basis on
which denial was urged in time to investigate the charges and prepare a defense.
[Headnote 5]
The court below rejected the rationale in Misurelli and concluded that appellant had no
due process rights under the Federal Constitution. It noted that due process presumes a
protectible property or liberty interest. See Board of Regents v. Roth, 408 U.S. 564 (1972).
This court and the majority of others have held that a liquor licensee has no such interest. See
Gragson v. Toco, 90 Nev. 131, 520 P.2d 616 (1974). Accord, Smith v. Iowa Liquor Control
Comm'n, 169 N.W. 2d 803 (Iowa 1969); State ex rel. Garrett v. Randall, 527 S.W.2d 366
(Mo. 1975).
[Headnotes 6, 7]
Actually, it is unnecessary to reach this issue in the instant case, since the record
establishes that any due process rights appellant might have had were satisfied. The key
elements of due process are notice and hearing appropriate to the case. Bell v. Burson, 402
U.S. 535 (1971). Appellant may have been handicapped at the November 4 hearing by the
Board's failure to give her timely and specific notice. She was, however, given a second
hearing 14 days later. At that time, she was represented by counsel; she was fully aware of the
reasons for the threatened revocation and by her own admission presented all the defenses
available to her. Her objection to the Board's considering testimony given at the earlier
hearing is frivolous. The key witnesses urging revocation at the first hearing were present at
the second. There, appellant's counsel had the opportunity to question them thoroughly.
While the proceedings may have deviated somewhat from the forms specified by the local
ordinance, these deviations do not appear to be of constitutional dimension or to have caused
any prejudice to appellant.
Appellant also objects to the court's consideration of the findings of the Board.
findings of the Board. She contends that the revocation of her license was based solely on the
finding that she had violated the conditions imposed on her temporary license and that the
additional grounds cited in the findings were an afterthought. The record contradicts this
contention. Testimony was taken at the two hearings clearly addressed to these additional
grounds, i.e., public nuisance, diminution of the value of adjoining property.
5. Equal Protection.
[Headnote 8]
Section 5.08.040 of the Douglas County Code, the text of which has been cited above,
specifies several grounds upon which the Board may refuse to grant a liquor license.
Appellant notes that these grounds do not include a refusal to maintain security guards or to
refrain from playing amplified music. She concludes that the denial must, therefore, have
been based on the last, catch-all ground, [f]or any other good and sufficient reason. This
ground, she contends, is void for vagueness, and its application to her case violates her due
process and equal protection rights.
It is unnecessary to determine the constitutionality of the last, catch-all ground in section
5.08.040, since appellant is clearly wrong in her contention that the license could have been
refused only on that ground. The transcript of the hearing on the application indicates that the
Board was concerned that the bar would produce too much noise to be compatible with its
residential location, creating a public nuisance and diminishing the value of the adjoining
property. They could, therefore, have refused appellant on either of two grounds specified in
the Code: A. When, in the judgment of the board, the granting of such license may tend to
create or constitute a public nuisance; and C. When the granting of such license may
seriously and adversely affect the valuation of adjoining and contiguous property. These
were, in fact, cited by the Board in its findings as the grounds for its decision. Appellant does
not contend that these provisions are too vague for persons of average intelligence to
comprehend their meaning. In objecting to the absence of any specific reference to security
guards or amplified music, she appears to be arguing that the statute should specify every
factor which might lead the Board to conclude that a bar would create a public nuisance or
diminish property values. She cites no authority for this theory, which is without merit.
for this theory, which is without merit. The transcripts indicate that the Board acted properly,
even generously, in its treatment of the appellant.
1

We conclude, therefore, that the order of the lower court quashing the alternative writ of
mandamus should be affirmed. The Board had the power to issue a conditional license and to
revoke that license when the conditions were violated. Such power, while not specified in the
Code, is inherent in its power to refuse to grant a license or to revoke it on reasonable
grounds. Appellant's due process rights were not violated. The second hearing, at which
appellant presented all the evidence available in her favor and at which she was represented
by counsel, eliminated any prejudice which might have resulted from the brief notice period
for the earlier hearing. Finally, section 5.08.040, stating the grounds for refusal of a liquor
license, is not void for vagueness. The grounds on which the revocation was basednuisance
and diminution of property valuesare sufficiently clear and comprehensible. For these
reasons, we affirm.
Batjer, C. J., and Thompson and Gunderson, JJ., and Torvinen, D. J.,
2
concur.
____________________

1
As summarized by the court below:
[A]t the initial meeting of the Board where the application of the petitioner was first discussed and
considered, there was a genuine concern by the protestants, shared by members of the respondent board, that the
location of an on-sale liquor establishment would generally depreciate the surrounding neighborhood, materially
lessen the quiet enjoyment of the properties by those already situated there, attract persons who were noisy and
otherwise undesirable and lead to littering and vandalism. The temporary, conditional license was at best an
attempt to provide the petitioner with a method of recovering her substantial investment in preparing the bar
property for business, but only under conditions reasonably calculated to prevent the prejudice or damage
anticipated by the protestants. . . .

2
The Governor, pursuant to article 6, section 4, of the Nevada Constitution, designated the Honorable Roy L.
Torvinen. Judge of the Second Judicial District, to sit in place of the Honorable Noel E. Manoukian, Associate
Justice, who voluntarily disqualified himself in this case.
____________
93 Nev. 427, 427 (1977) Johnstone v. State
ROBERT GORDON JOHNSTONE, Appellant, v.
No. 9381
July 27, 1977 566 P.2d 1130
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Joseph
S. Pavlikowski, Judge.
Following remand, 92 Nev. 241, 548 P.2d 1362 (1976), defendant was convicted before
the district court of first degree murder, and he appealed. The Supreme Court held that: (1)
although defendant was a nonresident alien the district court did not lack jurisdiction to try
him and (2) proffered testimony as to jailhouse conversation between defendant and
co-defendant, gist of which conversation was that defendant was not involved in the crime,
was properly excluded as not falling within the co-conspirator exception to the hearsay rule.
Affirmed.
Michael Schaefer, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; and George E. Holt, District Attorney, Clark
1. Criminal Law.
Proffered testimony as to jailhouse conversation between defendant and co-defendant, gist of which
conversation was that defendant was not involved in the crime, was properly excluded as not falling within
the co-conspirator exception to the hearsay rule since the statements were being offered for, not against,
defendant and the conspiracy, if it existed at all, had terminated prior to time the alleged conversation took
place. NRS 51.035, subd. 3(e).
2. Aliens.
Although defendant was a nonresident alien, district court did not lack jurisdiction to try him on first
degree murder charges. NRS 200.010.
3. Criminal Law.
Where challenged instructions were not included in the record, Supreme Court could not resolve
contention that trial court erred in giving certain instructions.
OPINION
Per Curiam:
Following our decision in Johnstone v. State, 92 Nev. 241, 548 P.2d 1362 (1976),
appellant was retried and again stands convicted, by jury verdict, of two counts of first degree
murder {NRS 200.010).
93 Nev. 427, 428 (1977) Johnstone v. State
(NRS 200.010). Here, he contends (1) the district court erred by excluding hearsay testimony,
(2) there was no jurisdiction to try him, and (3) certain instructions should not have been
given to the jury. We disagree.
[Headnote 1]
1. Appellant contends that William Nading should have been allowed to testify to a
conversation he overheard in jail between appellant and his co-defendants, Theriault and
Paulette. The gist of the conversation was that appellant was not involved in the crime. The
trial court properly excluded the testimony on the grounds that it did not fall within the
co-conspirator exception to the hearsay rule because the statements were being offered for,
not against, appellant and the conspiracy, if it existed at all, had terminated prior to the time
the alleged conversation took place. NRS 51.035(3)(e).
1
Furthermore, we have not been
directed to any other exception to the hearsay rule under which such evidence might be
admissible. Cf. Jacobs v. State, 91 Nev. 155, 532 P.2d 1034 (1975).
[Headnote 2]
2. Because he was a non-resident alien, appellant contends the district court lacked
jurisdiction to try him. We considered and rejected the same argument in Theriault v. State,
92 Nev. 185, 547 P.2d 668 (1976), and Paulette v. State, 92 Nev. 71, 545 P.2d 205 (1976).
[Headnote 3]
3. Finally, appellant contends the district court erred in giving certain instructions to the
jury. However, the instructions are not included in the record, and, thus, we are unable to
consider and resolve his contention. Jacobs v. State, cited above. Cf. Coffman v. State, 93
Nev. 32, 559 P.2d 828 (1977); Powers v. Johnson, 92 Nev. 609, 555 P.2d 1235 (1976).
Affirmed.
____________________

1
NRS 51.035(3)(e) provides:
Hearsay' means a statement offered in evidence to prove the truth of the matter asserted unless:
. . .
3. The statement is offered against a party and is:
. . .
(e) A statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
____________
93 Nev. 429, 429 (1977) Luckett v. Sheriff
LEON LUCKETT, Appellant, v. SHERIFF, CLARK
No. 9282
July 27, 1977 566 P.2d 1129
Appeal from order denying petition for writ of habeas corpus; Eighth Judicial District
Court, Clark County; Michael J. Wendell, Judge.
Petitioner sought habeas relief contending that State, which in previous habeas proceeding
had failed to show good cause for continuance of preliminary examination before the justice
court, was barred from refiling identical charges. The district court entered order denying the
petition and petitioner appealed. The Supreme Court held that refiling of charges was
permissible where there was no willful failure on part of prosecutor to comply with important
procedural rules or a conscious indifference to them.
Affirmed.
Morgan D. Harris, Public Defender, and Peter J. Christiansen, Deputy Public Defender,
J. Cremen, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Where complaint is dismissed for failure of prosecutor to show good cause for continuance before the
justice court, and there is either a willful failure on part of prosecutor to comply with important procedural
rules or a conscious indifference to them, a second prosecution is barred.
2. Habeas Corpus.
Where district court's order granting petition for habeas relief asserting that State failed to show good
cause for continuance before justice court, was ambiguous and prosecutor had complied with procedural
requirements, State was not barred from refiling identical charges.
OPINION
Per Curiam:
The State moved to continue a scheduled preliminary examination since an essential
witness was not available. The motion was properly supported by affidavit. DCR 21; Hill v.
Sheriff, 85 Nev. 234, 452 P.2d 218 (1964). A continuance was granted.
93 Nev. 429, 430 (1977) Luckett v. Sheriff
Luckett petitioned for habeas relief in the district court asserting that the State had failed to
show good cause for continuance before the justice court. The district court granted his
petition but without prejudice to the right of the State to refile identical charges.
The State did refile. Luckett once more filed a petition for habeas corpus contending that
the State was barred from refiling identical charges. His petition was denied, and he has
appealed to this Court. We affirm.
[Headnote 1]
The district court ruling on the first petition for habeas corpus is ambiguous. By ruling that
the justice of the peace should not have continued the preliminary hearing, that court
impliedly found either a willful failure on the part of the prosecutor to comply with important
procedural rules (Maes v. Sheriff, 86 Nev. 317, 468 P.2d 332 (1970)), or a conscious
indifference to them (State v. Austin, 87 Nev. 81, 482 P.2d 284 (1971)). When this occurs, a
second prosecution is barred. McNair v. Sheriff, 89 Nev. 434, 514 P.2d 1175 (1973). On the
other hand, when the court granted the State the right to refile identical charges, it impliedly
found that the prosecutor had not been guilty of either a willful disregard of important
procedural rules or a conscious indifference to them. In such circumstance, a second
prosecution is not barred. Stockton v. Sheriff, 87 Nev. 94, 482 P.2d 285 (1971).
[Headnote 2]
Although the district court's order concerning the first petition for habeas corpus is
ambiguous, and it is suggested that the only means of insuring justice to the accused is to
preclude a refiling of the charges, we hold that, in these circumstances, such refiling is
permissible where the prosecutor's conduct does not rise to the aggravated level contemplated
by Maes, Id., and Austin, Id. The prosecutor had complied with procedural requirements.
Consequently, the State may proceed with the charges against Luckett.
Affirmed.
____________
93 Nev. 431, 431 (1977) Smith v. Hutchins
LAWRENCE SMITH, Appellant, v. BEN
RICHARD HUTCHINS, Respondent.
No. 8745
July 27, 1977 566 P.2d 1136
Appeal from summary judgment, Second Judicial District Court, Washoe County; William
N. Forman, Judge.
Motorist commenced district court action to recover damages for personal injury, medical
and hospital expense, and property loss sustained in vehicle collision with another individual.
While that action was pending, another action was filed in justice court in motorist's name by
his insurance carrier to recover for property loss sustained in same collision. A judgment was
there obtained, and, in the first action, the district court applied rule which precludes a
plaintiff from splitting his cause of action and granted summary judgment for defendant, and
motorist appealed. The Supreme Court, Thompson, J., held that where motorist had no
control over his insurance carrier's exercise of subrogation rights under policy, motorist did
not split his cause of action, and therefore did not lose his right to proceed with district court
action to recover damages for personal injuries.
Reversed.
Paul A. Richards, of Reno, for Appellant.
Vargas, Bartlett & Dixon, and James S. Beasley, of Reno, for Respondent.
1. Action.
As general proposition, single cause of action may not be split and separate actions maintained.
2. Action.
Where motorist commenced action to recover damages for personal injury, medical and hospital expense,
and property loss sustained in vehicle collision with another individual, and while that action was pending,
another action was filed by insurer in justice court in motorist's name to recover the property loss sustained
in same collision, and where motorist had no control over his insurance carrier's exercise of subrogation
rights under policy, motorist did not split his cause of action and therefore did not lose his right to
proceed with district court action to recover damages for personal injuries.
lose his right to proceed with district court action to recover damages for personal injuries.
OPINION
This appeal from summary judgment for defendant places before us the propriety of
applying the rule which precludes a plaintiff from splitting his cause of action for personal
injury and property damage occurring simultaneously and traceable on a single tort to a case
where one element of the plaintiff's damage (usually property) is the subject of insurance.
The plaintiff commenced a district court action to recover damages in excess of $10,000
for personal injury, medical and hospital expense, and property loss sustained in a vehicle
collision with defendant. While that action was pending, another action was filed in the
justice court in the plaintiff's name to recover for property loss sustained in the same
collision. A judgment was there obtained for the sum of $274.35, costs, and attorney's fee.
This prompted the defendant to move for summary judgment in the district court case.
It was the defendant's contention that the plaintiff had a single cause of action for personal
injury and property damage arising from a single tort which could not be split and thereby
become the subject of separate actions. Moreover, that by doing so, his justice court judgment
for one element of damage (property loss) barred him from proceeding in a separate action to
recover for the other element of damage (personal injury). The district court agreed with that
contention and entered summary judgment in his favor. For reasons hereinafter expressed, we
set aside that judgment and remand for further proceedings.
[Headnote 1]
1. As a general proposition, a single cause of action may not be split and separate actions
maintained. Reno Club v. Harrah Et Al., 70 Nev. 125, 260 P.2d 304 (1953). The wrongful act
of the defendant creates the plaintiff's cause of action. Policy demands that all forms of injury
or damage sustained by the plaintiff as a consequence of the defendant's wrongful act be
recovered in one action rather than in multiple actions. Concomitantly, the single cause of
action rule bars one who has sustained personal injury and property loss from the same cause
and who has prosecuted to judgment a suit for either of his two elements of damage from
thereafter suing to recover the remaining element.
suing to recover the remaining element. The great weight of authority supports the single
cause of action rule when the plaintiff in each case is the same person. Cases collected Annot.
62 ALR2d 977 (1958).
In the case at hand, however, the real party in interest in the justice court litigation was
Leader Insurance Company, the plaintiff's insurance carrier. It was a subrogation case.
1
This
is disclosed by affidavit filed in opposition to the defendant's motion for summary judgment.
[Headnote 2]
The plaintiff had no control over his insurance carrier's exercise of subrogation rights
under the policy. The plaintiff did not split his cause of action. If splitting occurred, it was the
result of the unilateral action of his insurance company. In these circumstances, to rule that
the plaintiff lost his right to proceed with his district court action to recover damages for
personal injuries, is, in our view, plainly wrong. Reardon v. Allen, 213 A.2d 26 (N.J.Super.
1965); Hoosier Casualty Co. v. Davis, 173 N.E.2d 349 (Ohio, 1961).
Accordingly, we reverse the summary judgment entered below and remand this cause for
further proceedings.
Batjer, C. J., and Mowbray and Manoukian, JJ., concur.
Gunderson, J., concurring:
I concur in the result, but desire to add a comment.
As my brethren perceive, the basic right of action remained with the injured party and, of
course, his insurance carrier had no right to pursue its subrogation claim in a way which
would prejudice the insured's basic right. It follows that filing an action in Justice Court,
without the insured injured party's informed consent, was wrongful and inconsistent with the
carrier's obligations to him. This, of course, would have given rise to a defense against the
subrogation claim in Justice Court. Not having been affirmatively pleaded in avoidance, such
defense was waived. NJRCP 8(c).
____________________

1
The justice court action should have been filed in the name of the insurance company if, indeed, it had paid
the plaintiff's property loss in full. Valley Power Co. v. Toiyabe Supply, 80 Nev. 458, 396 P.2d 137 (1964). The
insurance company error in not properly reflecting the real party in interest should not prejudice the plaintiff in
the prosecution of his district court case.
____________
93 Nev. 434, 434 (1977) Brimmage v. State
DANIEL RAY BRIMMAGE, Appellant, v. THE
No. 8573
July 27, 1977 567 P.2d 54
Appeal from judgment of conviction, Seventh Judicial District Court, Lincoln County;
Merlyn H. Hoyt, Judge.
Defendant was convicted before the district court of first degree murder, robbery and third
degree arson, and he appealed. The Supreme Court, Batjer, C. J., held that: (1) district court's
finding that State satisfied its burden of proving defendant's waiver of his Fifth Amendment
rights with respect to tape recorded statement was supported by substantial evidence and
would not be disturbed on appeal; (2) district court's failure to instruct jury that it should
make determination whether statements were freely and voluntarily given was error, but such
error was harmless; (3) under circumstances, deputy district attorney from Clark County had
authority to prosecute defendant in Lincoln County; (4) no substantial rights of defendant
were affected by admitting evidence of taking of victim's wallet and ring; (5) the Supreme
Court would not consider defendant's contention that district court erred by failing to give
cautionary instruction concerning taking of victim's personal property because none was
requested; (6) defendant could not have been misled as to his defense or otherwise prejudiced
by lack of a more specific statement in indictment; (7) defendant was not prejudiced by
amendment of indictments to correct minor clerical errors; (8) district court more than
complied with statutory mandates with respect to inquiry into defendant's insanity; (9) burned
taxicab would be deemed to have had value of more than $25 so as to support defendant's
conviction of third degree arson; (10) trial court did not abuse its discretion in failing to
re-instruct jury on felony murder rule; (11) jury instruction given in language of statutory
definition of reasonable doubt was proper; (12) even assuming issue was cognizable, there
was no error resulting from trial court's failure to instruct on definition of malice
aforethought; and (13) defendant's conviction of felony murder and robbery do not place him
twice in jeopardy for same conduct.
Affirmed.
Robert List, Attorney General, Carson City; and John McGimsey, District Attorney,
Lincoln County, for Respondent.
1. Criminal Law.
State need prove only that defendant waived his Fifth Amendment rights against self-incrimination by
preponderance of evidence. U.S.C.A.Const. Amend. 5.
2. Criminal Law.
District court's finding that State had satisfied its burden of proving defendant's waiver of his Fifth
Amendment rights, with respect to tape recorded statement containing inculpatory remarks made by
defendant during interrogation by detectives while in custody in another state on unrelated charges, where
supported by substantial evidence and would not be disturbed on appeal from defendant's conviction of
first degree murder, robbery and third degree arson. U.S.C.A.Const. Amend. 5; NRS 200.030,
200.380. 205.020.
3. Criminal Law.
District court's failure to instruct jury, in prosecution for first degree murder, robbery and third degree
arson, that jury should make determination whether inculpatory statements made by defendant during
interrogation by detectives while in custody in another state on unrelated charges were freely and
voluntarily given was error, but, since error was not one of constitutional dimension and question of
defendant's guilt or innocence was not close, error was harmless. NRS 200.030, 200.380, 205.020.
Where deputy district attorney from Clark County was appointed Lincoln County deputy district attorney
by that county's district attorney, took oath of office of deputy district attorney for Lincoln County which
was filed with recorder, and represented Lincoln County, not Clark County, in defendant's trial for first
degree murder, robbery and third degree arson, deputy district attorney had authority to prosecute
defendant in Lincoln County. NRS 200.030, 200.380, 205.020, 252.070, subds. 1, 3; Const. art.
4, 32.
District attorney possesses all powers given him by statute.
6. Criminal Law.
Irrespective of speculation on part of defendant that jury might have based its verdict of murder on
conclusion that victim was killed during robbery of his personal effects, no substantial rights of defendant
were affected by admitting evidence of taking of murder victim's wallet and ring, in prosecution for first
degree murder, robbery and third degree arson, especially in light of fact that jury convicted defendant of
robbery of taxicab victim which was sufficient to establish felony murder. NRS 47.040, subd. 1,
200.030, 200.030, subd. 2, 200.380, 205.020.
7. Criminal Law.
The Supreme Court would not consider defendant's contention, on appeal from conviction of first degree
murder, robbery and third degree arson, that district court erred by failing to give cautionary
instruction concerning taking of victim's personal property, because none was
requested.
cautionary instruction concerning taking of victim's personal property, because none was requested. NRS
200.030, 200.380, 205.020.
Indictment is sufficient if offense is clearly and distinctly set forth in ordinary and concise language in
such a manner as to enable a person of common understanding to know what is intended.
Because counts of indictment charging defendant with murder and robbery on their face stated violations
State intended to prove and basic facts upon which it relied, defendant could not have been misled as to his
defense or otherwise prejudiced by lack of a more specific statement. NRS 200.030, 200.380.
10. Criminal Law.
Amendment of indictments, under which defendant was charged with murder and robbery of taxicab
driver and setting fire to his cab, by changing January 2, 1974, to January 2, 1975, the taxicab model
1970 to 1973, and word nukes to miles, constituted minor corrections which were clerical, not
substantive, and there being no suggestion that changes materially altered indictments, defendant was not
prejudiced thereby. NRS 200.030, 200.380, 205.020.
11. Mental Health.
Where district court, upon defendant's attempted suicide on day before trial on murder and other charges
was scheduled to commence, suspended trial and appointed two physicians to examine him, parties,
because defendant's competency had been established at prior hearing and confirmed by numerous doctors'
reports, stipulated that if two physicians found defendant competent, matter could be submitted on
physicians' written report, physicians answered various inquiries by court and reported they found
defendant competent in telephone call to court with defendant's counsel listening in, physicians'
examination results were disclosed during hearing in open court, parties stipulated that neither decided to
call doctors to witness stand for cross-examination, and defendant was additionally examined by doctor on
day-to-day basis during trial, district court more than complied with statutory mandates pertaining to
inquiry into insanity of defendant. NRS 178.400 et seq., 178.405, 178.415, subd. 1.
12. Arson.
In third degree arson prosecution, State had burden to establish that victim's burned cab had value of $25
or more. NRS 205.020.
13. Arson.
Burned taxicab which was approximately one-year-old and was not in dilapidated condition and which
also contained jack and spare tire would be deemed as having value of $25.00 or more prior to being
burned with result that evidence was sufficient to support defendant's conviction of third degree arson.
NRS 205.020.
14. Criminal Law.
Trial court did not abuse its discretion, in prosecution for first degree murder, robbery and third
degree arson, in failing to re-instruct jury on felony murder rule when jury, during its
deliberations, asked court to explain how robbery was connected with first degree
murder, in light of facts that jury had been properly and fully instructed on issue of
felony murder and that trial court, as well as parties, apparently concluded that
further instruction was unnecessary for no argument concerning matter appeared in
record.
first degree murder, robbery and third degree arson, in failing to re-instruct jury on felony murder rule
when jury, during its deliberations, asked court to explain how robbery was connected with first degree
murder, in light of facts that jury had been properly and fully instructed on issue of felony murder and that
trial court, as well as parties, apparently concluded that further instruction was unnecessary for no
argument concerning matter appeared in record. NRS 200.030, 200.380, 205.020.
15. Criminal Law.
Instruction on definition of term reasonable doubt given in language of statutory definition, to effect
that reasonable doubt was one based on reason, that it was not mere possible doubt but was such doubt as
would govern or control person in more weighty affairs of life, that if jurors, after consideration of all
evidence, felt abiding conviction of truth of charge, there was not reasonable doubt, and that doubt to be
reasonable must be actual and substantial, not mere possibility or speculation, was proper, in prosecution
for first degree murder, robbery and third degree arson. NRS 175.211, subd. 1, 200.030, 200.380,
205.020.
16. Homicide.
Even assuming that issue of trial court's failure to give instruction defining term malice aforethought
was cognizable, said instruction not having been requested by defendant, there was no error because
defendant's guilt was based on theory of felony murder where malice was implied and jury was extensively
instructed on that subject, in prosecution for first degree murder, robbery and third degree arson. NRS
200.030, 200.380, 205.020.
17. Criminal Law.
Defendant's conviction of robbery and felony murder did not place defendant in jeopardy for same
conduct, robbery and murder being separate and distinct offenses. NRS 200.030, 200.380.
18. Criminal Law.
Notwithstanding defendant's contention to contrary, record disclosed district court did instruct jury on
specific intent required for crimes of robbery and arson, in prosecution for first degree murder, robbery and
third degree arson. NRS 200.030, 200.380, 205.020.
OPINION
Appellant stands convicted by jury of first degree murder (NRS 200.030), robbery (NRS
200.380), and third degree arson (NRS 205.020). Here, he asserts numerous grounds for
reversal, none of which has merit.
On December 17, 1974, a burned Whittlesea taxicab was found eight miles north of
Pioche, Lincoln County, Nevada. A few days later, the body of the cab's driver, John
Mangeris, was found along side a road in Lincoln County. The body had one gunshot wound
to the head and eight lacerations of the face and neck.
face and neck. Mangeris was last seen on December 17, 1974, with his passenger, appellant
Daniel Brimmage.
At approximately 10:00 p.m. on December 16, 1974, Mangeris picked up appellant at the
Velvet Touch Massage Parlor in Las Vegas. Appellant requested to be taken to a brothel in
Lincoln County, and, before departing Las Vegas, the two went to the Whittlesea dispatch
yard, refueled, and appellant made a $50.00 deposit for the trip. They arrived at Betty's
Coyote Springs Ranch early in the morning on December 17, 1974. Appellant had a pistol in
his possession which he temporarily deposited with the proprietor, Betty Armstrong. Upon
leaving the brothel, appellant's gun was returned and he then offered Mangeris $10.00 to
drive north. Betty Armstrong testified the cab remained in the ranch's driveway for an
unusually long time before it turned north on Highway 93. Mangeris was never seen alive
again.
[Headnotes 1, 2]
1. On December 21, 1974, after the disappearance of Mangeris, but before the discovery
of his body, appellant was interviewed by two Las Vegas detectives in Bakersfield,
California, where he was in custody on other unrelated charges. During this interrogation,
appellant gave a tape recorded statement containing inculpatory remarks about the crime.
Appellant contends these statements should have been suppressed because they were
involuntary and obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966).
The State need prove only that [Brimmage] waived his Fifth Amendment rights against
self-incrimination by a preponderance of the evidence. Scott v. State, 92 Nev. 552, 554, 554
P.2d 735, 736-37 (1976). The detectives testified appellant was given the Miranda warnings
three times and indicated he understood his rights, no promises or inducements were made to
appellant, and he did not ask for an attorney. In light of this testimony and after listening to
the tape recorded waiver by appellant of his rights, the district court found the State had
satisfied its burden of proving appellant's waiver. This finding is supported by substantial
evidence and will not be disturbed on appeal. Scott v. State, id.
[Headnote 3]
2. With regard to these same statements, appellant also argues the district court erred by
not instructing the jury that it should make a determination whether the statements were
freely and voluntarily given.
freely and voluntarily given. We agree that the failure to so instruct the jury was error.
Carlson v. State, 84 Nev. 534, 445 P.2d 157 (1968). However, because the error is not one of
constitutional dimension and the question of appellant's guilt or innocence is not close, we
conclude the error to be harmless. Grimaldi v. State, 90 Nev. 83, 518 P.2d 615 (1974).
[Headnotes 4, 5]
3. We reject appellant's contention that it was prejudicial error for Raymond D. Jeffers, a
deputy district attorney from Clark County, to prosecute this case in Lincoln County. Our
constitution gives the legislature the power to fix the duties of district attorneys.
1
A district
attorney possesses all the powers given him by statute. Southwest Gas v. District Court, 85
Nev. 40, 449 P.2d 259 (1969). Pursuant to NRS 252.070(1), [a]ll district attorneys are
authorized to appoint deputies, who shall have power to transact all official business
appertaining to the offices, to the same extent as their principals. Here, Jeffers had been
appointed a Lincoln County deputy district attorney by that county's district attorney, had
taken the oath of office of deputy district attorney for Lincoln County which was filed with
the recorder (NRS 252.070(3)), and represented Lincoln County, not Clark, in the trial of this
case. Under these circumstances, Jeffers had the authority to prosecute appellant. NRS
252.070(1).
[Headnote 6]
4. Speculating that the jury might have based its verdict of murder on the conclusion that
the victim was killed during a robbery of his personal effects, appellant asserts the district
court erred by admitting evidence of the taking of the victim's wallet and ring. No substantial
rights of appellant were affected by admitting such evidence, especially in light of the fact the
jury convicted him of the robbery of a taxicab from Mangeris, which is sufficient to establish
felony murder under NRS 200.030(2).
2
[E]rror may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the party is affected, . . ."
____________________

1
Nev. Const. art. 4, 32 provides:
The Legislature shall have power to increase, diminish, consolidate or abolish the following county officers:
. . . District Attorneys. . . . The Legislature shall provide for their election by the people, and fix by law their
duties and compensation. . . .

2
NRS 200.030(2)(b) provides in pertinent part:
2. Murder of the first degree is murder which is:
(b) Committed in the perpetration or attempted perpetration of . . . robbery, . . .
admits or excludes evidence unless a substantial right of the party is affected, . . . NRS
47.040(1). See also, Cosey v. State, 93 Nev. 352, 566 P.2d 83 (1977).
[Headnote 7]
Further, we will not consider appellant's contention that the district court erred by failing
to give a cautionary instruction concerning the taking of the victim's personal property
because none was requested. See Larsen v. State, 93 Nev. 397, 566 P.2d 413 (1977); Gebert
v. State, 85 Nev. 331, 454 P.2d 897 (1969).
[Headnotes 8, 9]
5. Appellant's next challenge is directed at the sufficiency of his indictment. He contends
counts II and III are fatally defective because they failed to apprise him of the charges against
him.
3
An indictment is sufficient if the offense is clearly and distinctly set forth in ordinary
and concise language . . . in such a manner as to enable a person of common understanding to
know what is intended.' State v. Switzer, 38 Nev. 108, 110, 145 P. 925, 926 (1914). Because
the counts on their face stated the violations the State intended to prove and the basic facts
upon which it relied, appellant could not have been misled as to his defense or otherwise
prejudiced by a lack of a more specific statement. See Logan v. Warden, 86 Nev. 511, 471
P.2d 249 (1970).
[Headnote 10]
6. Appellant also argues the district court erred by allowing the indictments to be
amended by changing: (1) January 2, 1974 to January 2, 1975; (2) the taxicab model 1970
to 1973; and, {3) the word "nukes" to miles.
____________________

3
Count II provides:
That the Defendant, DANIEL RAY BRIMMAGE, on or about the 17th day of December, 1974, at and
within the County of Lincoln, State of Nevada, did then and there wilfully and feloniously, without authority of
law, and with malice aforethought, kill and murder JOHN MANGERIS by shooting at and into the body of said
JOHN MANGERIS, with a firearm of less than 12 inches in length during the perpetration of robbery. That the
said, JOHN MANGERIS, did on or about the 17th day of December, 1974, as a direct and proximate result of
said shooting, die, a violation of NRS 200.030, a Felony.
Count III of the indictment provides:
That the Defendant, DANIEL RAY BRIMMAGE, did on or about the 17th day of December, 1974, at and
within the County of Lincoln, State of Nevada, commit the crime of Robbery by taking and removing by force
from the care, custody, and control of JOHN MANGERIS one (1) 1973 Checker Automobile and then and there
take and carry away said automobile, a violation of NRS 200.380, a Felony.
1973; and, (3) the word nukes to miles. These minor corrections were clerical, not
substantive. There is no suggestion that they materially altered the indictments; thus, under
such circumstances, we perceive no prejudice to appellant. See In re Hironymous, 38 Nev.
194, 147 P. 453 (1915); cf. Collins v. State, 88 Nev. 9, 492 P.2d 991 (1972).
[Headnote 11]
7. Appellant's contention he was not given an adequate hearing on his competency to
stand trial is without merit. Due to appellant's attempted suicide the day before his trial was
scheduled to commence, the district court suspended the trial and appointed two physicians to
examine him. NRS 178.405 and 178.415(1).
4
Because appellant's competency had been
established at a prior hearing and confirmed by numerous doctors' reports, the parties
stipulated that if the two physicians found appellant competent, the matter could be submitted
on the physicians' written reports. By a telephone call to the court with appellant's counsel
listening in, the physicians answered various inquiries by the court and reported they found
appellant competent. During a hearing in open court, the results of the physicians'
examinations were disclosed, and the parties stipulated that neither desired to call the doctors
to the witness stand for cross examination. In addition to these findings, appellant was
examined by a doctor on a day to day basis during his trial. In light of these facts, we
conclude the district court more than complied with the statutory mandates of NRS 178.400
et seq.
[Headnotes 12, 13]
8. Appellant next challenges the sufficiency of the evidence to support his conviction of
third degree arson. As he correctly notes, the State has the burden to establish the cab had a
value of $25.00 or more. NRS 205.020.
5
Here, the cab, which also contained a jack and
spare tire, was approximately one-year-old, and it is apparent from the record that it was
not in a delapidated condition.
____________________

4
NRS 178.405 provides in pertinent part:
When an indictment or information is called for trial, . . . if doubt shall arise as to the sanity of the
defendant, the court shall suspend the trial of the indictment or information . . . until the question of insanity is
determined.
1. The court shall appoint two physicians, at least one of whom is a psychiatrist or otherwise especially
qualified, to examine the defendant.

5
Any person who willfully and maliciously sets fire to or burns or causes to be burned, or who aids, counsels
or procures the burning of any unoccupied personal property of the value of $25 or more and
which also contained a jack and spare tire, was approximately one-year-old, and it is apparent
from the record that it was not in a delapidated condition. In the unique factual context of this
case, we elect to apply the reasoning enunciated in Parham v. Commonwealth, 520 S.W.2d
327 (Ky. 1975), which is factually analogous, where that court said:
This court will not presume to be more ignorant of the value of automobiles than other
laymen. It unquestionably appears that the burned automobile had a value prior to its
burning much in excess of $25 and, by its verdict, the jury also found its value to be in
excess of $25. Appellant's position in this respect is not well taken. Id. at 328.
[Headnote 14]
9. During their deliberations, the jury asked the court to explain how robbery is
connected with first degree murder. Because of this question, appellant contends the court
should have re-instructed the jury on the felony murder rule. The question of reinstructing
the jury is a matter that rests within the sound discretion of the court. Scott v. State, supra at
555, 554 P.2d at 737. Here, the jury had been properly and fully instructed on the issue of
felony murder, and the trial court as well as the parties apparently concluded that further
instruction was unnecessary for no argument concerning the matter appears in the record. In
light of these facts, we perceive no abuse of discretion. See Scott v. State, supra.
[Headnote 15]
10. Appellant contends the jury instruction given in the language of NRS 175.211(1) on
the definition of the term reasonable doubt violated his right to fair trial and due process.
6
Ever since the legislature first enacted Ch. 21, Stats. 1889, which has been carried forward
into NRS 175.211(1), this court has approved the giving of that statute as an instruction
to the jury in a criminal case."
____________________
the property of another person is guilty of arson in the third degree and, upon conviction thereof, shall be
sentenced to imprisonment for not less than 1 year nor more than 6 years.

6
1. A reasonable doubt is one based on reason. It is not mere possible doubt, but is such a doubt as would
govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the entire
comparison and consideration of all the evidence, are in such a condition that they can say they feel an abiding
conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable must be actual and
substantial, not mere possibility or speculation.
this court has approved the giving of that statute as an instruction to the jury in a criminal
case. Cutler v. State, 93 Nev. 329, 336, 566 P.2d 809, 813 (1977).
[Headnote 16]
11. Although appellant did not request an instruction defining the term malice
aforethought, he now complains of the court's failure to give such an instruction. Even if we
assume the issue is cognizable (Gebert v. State, supra), we perceive no error because
appellant's guilt was based on the theory of felony murder where malice is implied, and the
jury was extensively instructed on that subject. See Theriault v. State, 92 Nev. 185, 547 P.2d
668 (1976); State v. Mangana, 33 Nev. 511, 112 P. 693 (1910).
[Headnote 17]
12. Although appellant argues his robbery conviction constitutes a conviction of a lesser
included offense of felony murder and thus places him twice in jeopardy for the same
conduct, in Carmody v. District Court, 81 Nev. 83, 398 P.2d 706 (1965), we held that robbery
and murder are separate and distinct offenses, there is no merger of those crimes, and the
defense of double jeopardy is inapplicable.
[Headnote 18]
13. Notwithstanding appellant's contentions to the contrary, the record discloses the
district court did instruct the jury on the specific intent required for the crimes of robbery and
arson.
Appellant's judgment of conviction is affirmed.
____________
93 Nev. 443, 443 (1977) Wills v. State
EDWARD FRANCIS WILLS, Jr., Appellant, v.
No. 9023
July 28, 1977 566 P.2d 1138
Appeal from jury verdict finding appellant guilty of two counts of first-degree murder;
First Judicial District Court, Carson City; Frank B. Gregory, Judge.
The Supreme Court, Mowbray, J., held that the evidence supported defendant's conviction.
Affirmed.
93 Nev. 443, 444 (1977) Wills v. State
Michael C. Farris, Incline Village, for Appellant.
Robert List, Attorney General, Carson City; David Small, District Attorney, and Louis R.
Doescher, Deputy District Attorney, Carson City, for Respondent.
Homicide.
Evidence was sufficient to support defendant's conviction of participating in first-degree murder of two
girls, even though it showed that defendant did not perform physical act of killing either victim. NRS
172.155, subd. 2.
OPINION
This is an appeal from a jury verdict finding appellant, Edward Francis Wills, Jr., guilty of
two counts of first-degree murder. The only issues presented are whether sufficient evidence
was presented to the grand jury to support the indictment and whether sufficient evidence was
adduced at trial to sustain the conviction.
1. The Facts.
The bodies of two girls were found on the morning of August 15, 1974, on Duck Hill near
the intersection of Manzanita and Garnet Way in Carson City. It was established that death
had occurred a week to ten days before, in each case, as the result of gunshot wounds to the
head. A sleeping bag, later discovered to have bullet holes, blood stains, and powder marks,
was also found at the crime scene.
On October 3, 1975, the grand jury of Carson City issued indictments charging Julius
Neuschafer, Jr., and Appellant Edward Francis Wills, Jr., with the murder of the two girls.
The indictment followed a hearing at which evidence was presented of the above facts. In
addition, the grand jury was presented the following evidence tending to implicate the two
parties charged: Wills' car, a 1963 blue Ford Falcon had been observed in Carson City on
August 6, 1974, the last night on which the girls had been seen alive. Witnesses testified that
the two girls had been seen at 11 o'clock that evening in the back seat of Wills' car in the
company of two men. The man not driving was identified from mug shots as Neuschafer.
Neuschafer's mother testified that the sleeping bag found at the crime scene resembled one
removed from her front porch shortly before the murders. In addition, witnesses testified as to
admissions of guilt made by both defendants.
93 Nev. 443, 445 (1977) Wills v. State
The case was tried before a jury, and Wills was sentenced to two consecutive terms of life
without possibility of parole. On appeal, Wills challenges the sufficiency of the evidence to
support the grand jury indictment and further challenges its sufficiency to support the two
convictions for first-degree murder.
2. The Indictment.
Appellant challenged, before entering his plea below, the sufficiency of the evidence to
sustain the indictment. He did so by filing a motion to quash the indictment, which the court
denied. NRS 172.155(2) states unequivocally, in part: The defendant may object to the
sufficiency of the evidence to sustain the indictment only by application for a writ of habeas
corpus.
1
In Wehrheim v. State, 84 Nev. 477, 443 P.2d 607 (1968), we held that habeas must
be pursued and resolved prior to trial. Thus, appellant cannot at this juncture challenge the
sufficiency of the evidence presented to the grand jury.
3. The Jury Verdict.
The facts establish that Wills did not perform the physical act of killing either of the
victims. Nevertheless, he may be charged with commission of the crime if he aided or abetted
its commission in any way. State v. Cushing, 61 Nev. 132, 120 P.2d 208 (1941); State v.
Watts, 53 Nev. 200, 296 P. 26 (1931). Wills claims that the evidence is insufficient to
establish that he did so, but the record does not support this claim. Although there is
conflicting evidence as to the extent of Wills' participation or cooperation in the murders, the
jury verdict is adequately supported by the facts presented.
Neuschafer, the person physically responsible for the deaths, testified that he had proposed
to Wills their seeking out the victims, whom they had met earlier, and raping them. While
Neuschafer was not sure Wills had expressed approval of the plan, he was sure Wills made no
objection. Wills' subsequent cooperation, as driver of the car, certainly indicated approval.
Neuschafer testified that later, on Duck Hill, when taking the first victim away to be shot, he
had handed Wills a knife and told him to get rid of the other one. While Wills had not done
so by the time Neuschafer returned, neither had he made any attempt to stop Neuschafer or to
escape with the other girl. When Neuschafer took the second victim out to be shot, Wills
accompanied them.
____________________

1
NRS 172.155(2):
2. The defendant may object to the sufficiency of the evidence to sustain the indictment only by application
for a writ of habeas corpus. If no such application is made before the plea is entered, unless the court permits it
to be made within a reasonable time thereafter, the objection is waived.
93 Nev. 443, 446 (1977) Wills v. State
accompanied them. Thereafter, he remained in Neuschafer's company for several days,
cooperating fully in destroying evidence of the crime. Later he told friends, We killed some
people.
The preceding evidence, apparently believed by the jury, gives a clear picture of Wills as a
participant in the crimes committed.
It is the province of the jury to weigh the evidence and determine the credibility of the
witnesses. This court will not overturn a jury verdict supported by substantial evidence, as in
the instant case. Sanders v. State, 90 Nev. 433, 529 P.2d 206 (1974). Affirmed.
____________
93 Nev. 446, 446 (1977) State Comm'n, Equal Rights v. City N.L.V.
STATE OF NEVADA COMMISSION FOR EQUAL RIGHTS OF CITIZENS,
Appellant, v. CITY OF NORTH LAS VEGAS, Respondent.
No. 8999
July 28, 1977 566 P.2d 1139
Appeal from final order dismissing action; Eighth Judicial District Court, Clark County;
Paul S. Goldman, Judge.
Nevada equal rights commission brought suit to compel a city to obey a commission order
regarding an unlawful employment practice. The district court dismissed on the ground that
the action was barred by limitations and commission appealed. The Supreme Court,
Thompson, J., held that the 60-day limitation period in the employment discrimination law
applied only to actions filed in the first instance in the district court and did not apply to
judicial review and enforcement sought by the commission of its administrative
determinations.
Reversed.
Pat J. Fitzgibbons and M. Douglas Whitney, of Las Vegas, for Appellant.
Cromer, Barker & Michaelson, of Las Vegas, for Respondent.
Although plea of limitations is not unconscionable defense, neither is it such meritorious defense that
either law or fact should be strained in aid of it, nor should court indulge in any presumption in its favor.
2. Civil Rights.
Sixty-day limitation period in employment discrimination law applied only to actions filed in first
instance in district court and did not apply to judicial review and enforcement sought by equal rights
commission of its administrative determinations. NRS 613.420, 613.430.
OPINION
The Nevada equal rights commission commenced this action to compel the City of North
Las Vegas to obey a commission order regarding an unlawful employment practice. The
district court found the action to be barred by limitations and dismissed it. For reasons
hereafter stated we reverse and remand for the limited court review contemplated by statute.
1

Sarah Lee Johnson, a black woman, was not promoted to an available senior legal
secretary position on January 15, 1973, although in first place on the existing eligibility list
for that position. She timely filed a complaint with the Nevada equal rights commission
alleging that she was denied promotion because she is black.
The hearing officer found that the City of North Las Vegas had engaged in an unlawful
employment practice contrary to the mandate of NRS 613.330(1)(a) which bars
discrimination on account of race. He recommended that complainant be promoted to senior
legal secretary as of January 15, 1973, and be paid the difference between what she would
have earned in that position and what she did earn in her lesser capacity.
The Commission upheld the recommendation of the hearing officer. The City received the
Commission's decision and order on October 30, 1975, but refused to comply therewith.
____________________

1
NRS 613.410(3) then in effect confines court review to evidence introduced at a hearing before the
commission for the purpose of determining whether the commission's findings were arbitrary, capricious, or
without foundation. This statute since has been repealed. See 1977 Nev. Stats., ch. 595 at 1610.
Further proceedings should be in accordance with 1977 Nev. Stats., ch. 595 at 1605, which has been codified
as an amendment to NRS 233.070.
on October 30, 1975, but refused to comply therewith. The Commission commenced this
action on December 31, 1975.
[Headnote 1]
Although the plea of limitations is not an unconscionable defense, neither is it such a
meritorious defense that either the law or the fact should be strained in aid of it, nor should a
court indulge in any presumption in its favor. Howard v. Waale-C. & Tiberti, 67 Nev. 304,
312, 217 P.2d 872, 876 (1950). We mention this simply because NRS 613.430 upon which
the court dismissed this action, when read in conjunction with NRS 613.410 and 613.430, is
confusing at best.
2

[Headnote 2]
The district court apparently believed that an application for an injunction by the
commission was limited by the 60-day provision of NRS 613.430. This is a possible
construction of the statutes involved, but one which we deem unreasonable and a strain in aid
of limitations. The 60-day limitation therein
____________________

2
NRS 613.410: When any complaint is filed with the Nevada equal rights commission alleging any unfair
employment practice within the scope of NRS 613.310 to 613.400, inclusive, or when the commission initiates
its own investigation of any such practice, the commission may, but only after holding a public hearing:
1. Make appropriate findings of fact;
2. Serve a copy of such findings upon any person found to have engaged in any such practice within 20
days after any such finding of unfair practice is made; and
3. If such person does not cease and desist from the unfair practice so found within 20 days after service is
so made, apply to the appropriate district court for an injunction against such continued unfair practice.
In hearing and deciding on the application for an injunction, the court may consider only evidence
introduced at a hearing before the commission for the purpose of determining whether the commission's findings
were arbitrary, capricious or without foundation.
NRS 613.420: Any person injured by an unfair employment practice within the scope of NRS 613.310 to
613.400, inclusive, or the Nevada equal rights commission, may apply to the district court for an runs from
the date "of order granting or restoring to such person the rights to which he is entitled under such sections.
NRS 613.430: No action authorized by NRS 613.420 may be brought after the expiration of 60 days from
the date of the act complained of. When a complaint is filed with the Nevada equal rights commission pursuant
to NRS 613.410, or with the labor commissioner pursuant to NRS 613.415, the limitation provided by this
section is tolled as to any action authorized by NRS 613.420 during the pendency of such complaint before the
commission or the labor commissioner.
These sections have since been amended. See 1977 Nev. Stats., ch. 595 at 1609.
runs from the date of the act complained of. In this case that date would be January 15,
1973, when the City failed to promote Sarah Lee Johnson to the position of senior legal
secretary. To apply that limitation to an enforcement action by the commission following its
administrative hearings could lead to absurd consequences. For example, if the complainant
had filed with the commission on the sixtieth day after the act, the commission could
investigate the matter, but could never bring an action against the recalcitrant employer to
enforce its order because the 60-day limitation would necessarily pass before suit could be
filed, notwithstanding the tolling provision of the statute. We are unwilling to attribute such
an intention to the legislature.
In our opinion the limitation of NRS 613.430 should not be read to apply to judicial
review and enforcement sought by the commission of its administrative determination under
NRS 613.410. Indeed, NRS 613.410, empowering the commission to enforce its orders, does
not itself contain a limitation period within which court action must be commenced.
The limitation period of NRS 613.430 should be confined to actions filed in the first
instance in the district court pursuant to the authorization of NRS 613.420.
Accordingly, we reverse and remand for the limited judicial review contemplated by
statute.
____________
93 Nev. 449, 449 (1977) Morrell v. State
GERALD MORRELL, Appellant, v. THE STATE
No. 9403
August 2, 1977 567 P.2d 60
Appeal from judgment of conviction, Ninth Judicial District Court, Lyon County; Noel E.
Manoukian, Judge.
Defendant was convicted in the district court of four counts of robbery and one crime of
infamous crime against nature, and he appealed. The Supreme Court held that: (1) defendant
could not bootstrap himself into avoidance of additional penalties by claiming that series of
divisible acts, each of which had been committed with separate identifiable intent and
objective, composed an indivisible transaction, and {2) under circumstances, search
warrant was properly issued.
objective, composed an indivisible transaction, and (2) under circumstances, search warrant
was properly issued.
Affirmed.
Robert List, Attorney General, Carson City; and Ronald T. Banta, District Attorney, Lyon
1. Criminal Law.
Where defendant initially entered a brothel to rob it of the house money and upon discovering there
was little house money, began a room to room search for other victims, robbing them as they were
discovered, and following the robberies, he took one victim to a separate part of premises and committed
the infamous crime against nature, defendant could not bootstrap himself into avoidance of additional
penalties imposed upon conviction of using firearm in commission of the crimes by claiming that series of
divisible acts, each of which had been committed with separate identifiable intent and objective, composed
an indivisible transaction. NRS 193.165, 193.165, subd. 1, 200.380, 201.190.
2. Searches and Seizures.
Even if those portions of affidavit in support of search warrant which defendant contends were
objectionable were expunged, where remaining assertions in affidavit established identification of
defendant as perpetrator of robbery and infamous crime against nature, described places to be searched and
items to be seized, and named informants and set forth detailed information furnished by them, search
warrant was properly issued.
OPINION
Per Curiam:
Convicted by jury of four counts of robbery (NRS 200.380) and one count of infamous
crime against nature (NRS 201.190), appellant contends (1) he was improperly sentenced and
(2) certain items of evidence should have been suppressed. We disagree.
[Headnote 1]
1. Because appellant used a firearm in the commission of the crimes, the trial court
imposed an additional consecutive sentence for each count pursuant to NRS 193.165.
1
Appellant contends his offenses comprise an indivisible transaction and, thus, NRS
193.165 may be invoked only once instead of being applied to each count.
____________________

1
by imprisonment in the state prison for a term equal to and in addition to the term of imprisonment
contends his offenses comprise an indivisible transaction and, thus, NRS 193.165 may be
invoked only once instead of being applied to each count. However, the record establishes his
offenses constituted a series of divisible acts. He initially entered a brothel to rob it of the
house money. Upon discovering there was little house money, appellant began a room to
room search for other victims, robbing them as they were discovered. Following the
robberies, he took one victim to a separate part of the premises and committed the infamous
crime against nature. As noted in In re Culbreth, 551 P.2d 23, 25 (Cal. 1976): [A] defendant
may not bootstrap himself into avoidance of additional penalties by claiming that the series of
divisible acts, each of which had been committed with a separate identifiable intent and
objective, composed an indivisible transaction.''
[Headnote 2]
2. Appellant next contends that evidence seized pursuant to a search warrant should have
been suppressed because the affidavit in support of the warrant was insufficient. Even if we
expunge those portions which appellant contends are objectionable, the remaining assertions
in the affidavit are sufficient to constitute probable cause to issue a warrant. See Stevens v.
State, 540 P.2d 1199 (Okla.Crim.App. 1975). Among other things, the remainder of the
affidavit establishes the identification of appellant as the perpetrator, describes the places to
be searched and items to be seized, and names informants and sets forth detailed information
furnished by them. Under these circumstances, the warrant was properly issued. See Wyatt v.
State, 86 Nev. 294, 468 P.2d 338 (1970); Stamps v. State, 83 Nev. 232, 428 P.2d 188 (1967).
Affirmed.
2

____________________
prescribed by statute for such crime. The sentence prescribed by this section shall run consecutively with the
sentence prescribed by statute for such crime.

2
Mr. Justice Manoukian voluntarily disqualified himself and took no part in this decision. The Governor,
pursuant to Art. VI, 4 of the Constitution, designated District Judge William P. Beko to sit in his stead.
____________
93 Nev. 452, 452 (1977) In re Kaufman
IN THE MATTER OF JERRY J. KAUFMAN,
Attorney At Law.
No. 9343
August 10, 1977 567 P.2d 957
Petition for review of the Recommendation of the Board of Governors for the State Bar of
Nevada for a public reprimand.
The Supreme Court held that withdrawal without formal notification and retention of
client's property for purposes of obtaining part of fee paid to successor attorney warrants
public reprimand.
Public reprimand ordered in accordance with recommendation.
Beckley, Singleton, DeLanoy, and Jemison, Chartered, Las Vegas, for Petitioner.
Maurice J. Sullivan, Executive Secretary, State Bar of Nevada, Reno, and Thorndal and
Liles, Ltd., Las Vegas, for Respondent.
On application filed pursuant to Supreme Court Rule for review of recommendation of Board of
Governors of State Bar that petitioner be publicly reprimanded and assessed the costs of his hearing before
local administrative committee, responsibility of reviewing court approaches that of de novo review of
record. SCR 111.
Higher degree of proof is required in disciplinary matters than is required to determine questions of fact
in ordinary civil proceedings.
Failure to give formal notice concerning court proceedings on attorney's motion to withdraw constitutes
violation of disciplinary rule. ABA Code of Professional Responsibility, DR2-110, subd. A, par. 2.
While a party may discharge his attorney with or without cause, with few limitations, attorney should not
withdraw from case except for good cause. ABA Code of Professional Responsibility, DR2-110, subd. A,
par. 2.
Attorney has right to retain clients' papers, documents, and files as a passive lien for payment of fees
owing as of attorney's withdrawal. SCR 173, 176; ABA Code of Professional Responsibility, DR2-110,
subd. A, par. 2.
93 Nev. 452, 453 (1977) In re Kaufman
Question of whether lien is a retaining lien or a special or charging lien as well as the fact of a lawyer's
voluntary withdrawal from a case will affect ability of lawyer to keep property belonging to his client. SCR
173, 176; ABA Code of Professional Responsibility, DR2-110, subd. A, par. 2.
Retention of discovery file by withdrawing attorney as means of inducing successor attorney to agree to
division of contingent fee constitutes violation of disciplinary rule regarding prompt accounting of client's
property in withdrawing attorney's possession. ABA Code of Professional Responsibility, DR2-110, subd.
A, par. 2.
Even if withdrawing attorney might be entitled to retaining lien in contingency fee setting, such
entitlement would be lost with his voluntary withdrawal. ABA Code of Professional Responsibility,
DR2-110, subd. A, par. 2.
Although client may have been uncooperative with withdrawing attorney, attorney's withdrawal without
formal notification to client and his retention of client's property for purpose of obtaining a share in fee
paid to successor attorney warrants public reprimand. SCR 163-204, 173, 176; ABA Code of Professional
Responsibility, DR2-110, subd. A, par. 2.
OPINION
Per Curiam:
This matter is before the Court on an application filed pursuant to Supreme Court Rule
111 for review of a recommendation of the Board of Governors of the State Bar of Nevada,
that the applicant, Jerry J. Kaufman, be publicly reprimanded and assessed the costs of his
hearing before the Local Administrative Committee, District No. 1, Clark County.
In 1969, Richard L. Longmire retained Petitioner, Jerry J. Kaufman, as his attorney to file
suit on behalf of himself, and Custom Catering, a corporation, in which he was a principal,
against Local Union 226, Culinary and Hotel Service Workers Union and others. Petitioner
received a retainer fee of $1,000, together with $4,000 as an advance on the costs of said
action, of which $1,567.57 remained at the time of Petitioner's withdrawal from the case in
February of 1973. The case was pursued by Petitioner for approximately three years with
extensive discovery activity, most of which occurred during the earlier stages of the
proceedings. On February 12, 1973, three days prior to a court-ordered deadline for the filing
by his clients of answers to interrogatories, Petitioner, having had no success in obtaining
Longmire's consent, filed a motion to withdraw as counsel, alleging as justification
therefor, "a difference of philosophy with his client as to preparation and trial . . . ; and
that he finds their personalities to be incompatible."
93 Nev. 452, 454 (1977) In re Kaufman
answers to interrogatories, Petitioner, having had no success in obtaining Longmire's consent,
filed a motion to withdraw as counsel, alleging as justification therefor, a difference of
philosophy with his client as to preparation and trial . . . ; and that he finds their personalities
to be incompatible. The motion was neither noticed nor served on Longmire and was
granted the next day, February 13, 1973.
Following this, Petitioner refused to relinquish the file materials, which included
numerous depositions and refused to return the balance of the prepaid costs, stating that they
would be given to the successor attorney on designation of the latter by Longmire.
Thereafter, Longmire attempted to engage the services of various lawyers, but it was not
until as late as August, 1973, that attorney Kermitt Waters informally accepted representation.
Prior thereto, and for a period thereafter, during Waters' informal extrajudicial representation,
Longmire filed pro per motions for extensions regarding the interrogatories. The trial court
granted extensions to September 12, 1973, when, in the face of continuing discovery
defalcations, it again entered and order compelling discovery. On February 22, 1974,
following a hearing on an NRCP 41(e) motion, the action was dismissed for want of
prosecution, in part, as a result of Longmire's failure to comply with the discovery orders. The
order of dismissal was affirmed on appeal to this Court. See Custom Catering, Inc. v. Local
Union No. 226, 91 Nev. 334, 536 P.2d 488 (1975).
Following numerous unsuccessful efforts to obtain the file materials, in November of
1973, Waters filed a motion to associate as counsel with Petitioner. Several letters between
Petitioner and Waters attempting to reach an accord as to the contingent fee allocation should
a judgment in Longmire's favor be obtained, evidence the fact that Petitioner was retaining
the unexpended advance of costs and the file conditioned upon Longmire's agreeing that
Petitioner was entitled to one-half of attorney Waters' fee. The files were not tendered to
Waters until after the case had been dismissed because, although Waters had reluctantly
agreed to the new contingent fee division with Petitioner, Longmire did not concur with
Petitioner's prospective fee participation. The unexpended funds were not accounted for until
an accounting was requested by the Administrative Committee.
The Administrative Committee's factual findings are essentially contained in the above
case history. Relevant parts of the Committee's conclusions of law are as follows: 2.
93 Nev. 452, 455 (1977) In re Kaufman
2. A lawyer who files a motion to withdraw from employment without the consent
of his client shall give due notice to his client of any hearing on said motion.
3. A lawyer shall not withdraw from employment until he has taken reasonable
steps to avoid foreseeable prejudice to the rights of his client.
4. A lawyer who withdraws from employment shall render a prompt accounting of
all his client's funds and other property in his possession.
5. A lawyer who withdraws from employment shall promptly deliver to the client all
papers and property to which his client is entitled.
6. JERRY J. KAUFMAN is guilty of violating the standards of professional ethics
set forth in No. 2-5 of these conclusions of Law.
Petitioner's contentions are directed to the sufficiency of the Committee's findings of fact
and conclusions of law, as adopted by the Board of Governors. More specifically, Petitioner
argues that there are insufficient findings of fact from which to determine whether the
withdrawal caused any foreseeable prejudice to the client; that there are insufficient findings
to determine whether Petitioner was justified in withdrawing from the case and was properly
enforcing an attorney's lien right; and that further findings of fact should have been made in
mitigation of the recommendation of a public reprimand.
[Headnote 1]
Here, our responsibility approaches that of a de novo review of the record. In re Scott, 53
Nev. 24, 292 P. 291 (1930). This Court in In re Miller, 87 Nev. 65, 482 P.2d 326 (1971),
stated:
It is the obligation of this court, in reviewing a case of this nature, to examine the
entire record anew to determine whether any charge meriting discipline has been
proven. In such a review we are not bound by the findings or recommendations of the
local administrative committee, nor by the findings or recommendations by the board of
governors. In re Scott, 53 Nev. 24, 292 P. 291 (1930); In re Wright, 68 Nev. 324, 232
P.2d 398 (1951). On the other hand the findings and the recommendations of the
committee and board are persuasive, and a petitioner must affirmatively reveal wherein
the findings and recommendations are erroneous and unlawful.
Id. at 68-69, 482 P.2d at 328.
93 Nev. 452, 456 (1977) In re Kaufman
[Headnote 2]
Recognizing that a higher degree of proof is required in disciplinary matters than is
required to determine questions of fact in ordinary civil proceedings, id., we find that
Petitioner has failed to carry his burden on review. There does exist persuasive evidence to
support the findings and conclusions of the Committee, as well as the recommendation of the
Board of Governors.
[Headnote 3]
The Withdrawal: It is undisputed that Longmire received no formal notice concerning the
court proceedings on the motion to withdraw and had no opportunity to be heard. Petitioner
admits that there was no notice of the motion, although there was verbal notice that [i]f you
have an objection, come down to the court then, but I am getting out', this occurring prior to
the actual filing of the motion to withdraw. The informal notice afforded Longmire, in reality,
constituted no notice in contemplation of law, and clearly violated Supreme Court Rule 173
1
and A.B.A. Disciplinary Rule 2.110 A-2.
2

[Headnote 4]
While a party may discharge his attorney with or without cause, Morse v. District Court,
65 Nev. 275, 195 P.2d 199 (1948), with few limitations, the attorney should not withdraw
from a case except for good cause. Page v. Walser, 46 Nev. 390, 213 P. 107 (1923);
Eisenberg v. Brand, et al., 259 N.Y.S. 57, 144 Misc. 878 (1932). The justification for this is
not difficult to see when we consider the perils a client may suffer if he attempts to conduct
his own litigation. Here, Petitioner made no additional request for extensions and made no
attempt whatsoever to aid Longmire in obtaining other counsel, and this is particularly
significant in view of the impending expiration date and weight of these civil proceedings.
The attorney is versed in substantive as well as procedural law and thus knows how to
avoid pitfalls which otherwise may befall his client.
____________________

1
Supreme Court Rule 173 provides in part: After acceptance of employment, a member of the state bar,
unless discharged, should diligently conduct the cause to an expeditious conclusion. He may withdraw at any
time with the consent of the client but if the consent of the client cannot be obtained then he should obtain the
approval of the court for his withdrawal. . . . When he withdraws he should render a prompt accounting of all his
client's funds and other property in his possession.

2
A.B.A. Disciplinary Rule 2.110 A-2 provides: In any event, a lawyer shall not withdraw from employment
until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, allowing time for
employment of other counsel, delivering to the client all papers and property to which the client is entitled, and
complying with applicable laws and rules.
93 Nev. 452, 457 (1977) In re Kaufman
attorney is versed in substantive as well as procedural law and thus knows how to avoid
pitfalls which otherwise may befall his client. Here, the trial court had seasonably cautioned
Petitioner and his clients that the prosecution of the case was dilatory and inadequate. It
should have been foreseeable to Petitioner that prejudice to his clients in the form of
sanctions, including dismissal, may reasonably have resulted from his withdrawal and his
refusal to tender the file materials. This is so, although the dismissal was partially the result
of Longmire's incomplete and uninformative answers given during discovery. Irrespective of
this fact, Petitioner's manner of withdrawal was indefensible.
The Lien: The funds retained by Petitioner were the remainder of monies advanced to
satisfy various costs of litigation which might be incurred. Supreme Court Rule 173 requires
a prompt accounting of all . . . client's funds and other property in his possession. Supreme
Court Rule 176
3
and A.B.A. Disciplinary Rule 2.110 A-3
4
require a similar accountability.
Although requested by Longmire, the accounting in this instance was not made until after
disciplinary proceedings had been instituted. Petitioner defends his actions as an exercise of
his attorney's lien right.
[Headnotes 5-8]
It is settled in this State that an attorney has the right to retain clients' papers, documents,
and files as a passive lien for the payment of fees owing as of the attorney's withdrawal.
Morse v. District Court, 65 Nev. 275, 195 P.2d 199 (1948). The question of whether or not
the lien in question is a retaining lien or a special or charging lien, as well as the fact of a
lawyer's voluntary withdrawal from a case, greatly affects the ability of a lawyer to keep
property belonging to the client. Morse defines a special or charging lien as the right to be
paid out of a fund or judgment which he has been instrumental in recovering for his client.
Id. at 284, 195 P.2d at 203. As excess money was available to Petitioner to pay the costs of
litigation, the retention of the file could not have been for that purpose. It was for the purpose
evidenced throughout the correspondence between Waters and Petitioner, namely, to arrange
a proportionate distribution of the contingent fee agreement struck between Waters and
Longmire.
____________________

3
Supreme Court Rule 176 provides: A member of the state bar shall promptly account to the client for all
money or other property received by him and account for money and other property belonging to such client.

4
A.B.A. Disciplinary Rule 2.110 A-3 provides: A lawyer who withdraws from employment shall refund
promptly any part of a fee paid in advance that has not been earned.
93 Nev. 452, 458 (1977) In re Kaufman
a proportionate distribution of the contingent fee agreement struck between Waters and
Longmire. Other than using the retention of the file as a means of inducing Longmire to agree
to a division of a contingent fee, the retention of the file served no purpose and violated
Supreme Court Rules 173, 176, and A.B.A. Disciplinary Rule 2.110 A-2 regarding the
prompt accounting of the client's property in his possession. Assuming arguendo, that
Petitioner was entitled to the claimed retaining lien in this contingent fee setting, it was lost
with his voluntary withdrawal, particularly in light of these facts.
The above provisions of the Canons of Professional Ethics of the American Bar
Association were adopted by reference and made additional rules of professional conduct of
the State Bar of Nevada by Supreme Court Rule 203.
Supreme Court Rule 163 provides, inter alia, the willful breach of any Rules 163 to 204,
inclusive, shall be punished by reprimand, public or private, or by suspension from practice,
or by disbarment. A member of the State Bar who knowingly and consciously engages in
conduct which is proscribed by Supreme Court Rules 163 to 204, inclusive, is subject to the
sanctions of Supreme Court Rule 163. It is not necessary that his conduct be accompanied
by malice or an evil intent. Good faith may, however, be considered in mitigation of
punishment. In re Kellar, 88 Nev. 63, 66, 493 P.2d 1039, 1041 (1972). Although there was
some evidence in the record to indicate that Longmire was uncooperative with Petitioner,
these and other suggested mitigating circumstances do not excuse Petitioner's conduct, nor do
they cause us to find that the penalty is not concomitant with the misconduct. The findings of
fact, conclusions of law, and recommendation will not be disturbed.
[Headnote 9]
It is, therefore, ordered that Jerry J. Kaufman be given a public reprimand for his conduct
in violating the Supreme Court Rules referred to in this opinion and is hereby cautioned to
refrain from such conduct in the future.
It is further ordered that he pay to the State Bar of Nevada the costs and fees incurred in
connection with his hearing before the Local Administrative Committee in the total amount
of $741.25.
5

____________________

5
pursuant to Art. VI, 4 of the Constitution, designated District Judge Michael E. Fondi to sit in his stead.
____________
93 Nev. 459, 459 (1977) Canul v. Canul
ROBERTA LYNNE CANUL, Appellant, v.
FRANCISCO A. CANUL, Respondent.
No. 8509
August 17, 1977 567 P.2d 476
Appeal from decree of divorce, Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
From judgment of the district court dissolving marriage and distributing community
property, wife appealed. The Supreme Court held that: (1) refusal to compel husband to
answer interrogatories was not error; (2) wife was not entitled to relief on theory that
admission of certain evidence was error; but (3) trial court erred in classifying certain
property as community property and erred in failing to classify or distribute two insurance
policies.
Douglas R. Pike, Las Vegas, for Appellant.
Roy A. Woofter, Las Vegas, for Respondent.
1. Divorce.
Refusal to compel husband to answer interrogatories was not error in marriage dissolution proceeding
where parties stipulated that answering interrogatories would be unnecessary if husband would testify that
he had disclosed all his property interests in a previous deposition and where husband satisfied such
requirement. NRCP 33.
2. Divorce.
Wife, who appealed from judgment dissolving marriage and distributing community property, was not
entitled to relief on theory that admission of certain evidence was error where she did not suggest or
demonstrate that she was prejudiced by such evidence. NRS 47.040, subd. 1.
3. Divorce.
In proceeding in which marriage was dissolved and community property was distributed, trial court erred
in classifying property, which was merely held for benefit of a third party, as community property and erred
in failing to classify or distribute two insurance policies. NRS 125.150.
OPINION
Per Curiam:
After the trial court entered judgment dissolving the parties' marriage and distributing their
community property, Roberta Lynne Canul appealed contending the trial court erred (1) by
refusing to compel pre-trial discovery, {2) by admitting certain evidence, and {3) in
distributing the property.
93 Nev. 459, 460 (1977) Canul v. Canul
refusing to compel pre-trial discovery, (2) by admitting certain evidence, and (3) in
distributing the property. Appellant's last contention has merit and necessitates further
proceedings.
[Headnote 1]
1. Appellant asserts the trial court erred by not compelling respondent to answer
interrogatories served upon him pursuant to NRCP 33. During a hearing on this matter, the
parties stipulated that answering the interrogatories would be unnecessary if respondent
would testify he had disclosed all his property interests in a previous deposition. At trial,
respondent satisfied this requirement, and appellant now cannot complain of error. Second
Bapt. Ch. v. Mt. Zion Bapt. Ch., 86 Nev. 164, 466 P.2d 212 (1970).
[Headnote 2]
2. We also reject appellant's contention the trial court erred in admitting certain evidence.
Appellant has neither suggested nor demonstrated that she was in any way prejudiced by the
evidence. [E]rror may not be predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected, . . . NRS 47.040(1).
[Headnote 3]
3. Finally, appellant attacks the trial court's distribution of the property. We agree that a
portion of the distribution was erroneous. The residence, located at 1132 15th Street, in Las
Vegas, was classified as community property; however, it was merely held for the benefit of a
third party. Also, there are two insurance policies which the court failed to classify or
distribute. Otherwise, the distribution is equitable and we perceive no abuse of discretion.
NRS 125.150; Armour v. Armour, 93 Nev. 63, 560 P.2d 148 (1977); Benavidez v.
Benavidez, 92 Nev. 539, 554 P.2d 256 (1976).
The judgment is affirmed except that portion dealing with the residence and insurance
policies, which is reversed and remanded for further proceedings.
____________
93 Nev. 461, 461 (1977) Riley v. State
BILLY RAY RILEY, Appellant, v. THE
No. 9288
August 17, 1977 567 P.2d 475
Appeal from order denying new trial following conviction of attempted murder; Eighth
Judicial District Court, Clark County; James A. Brennan, Judge.
Defendant was convicted in district court of attempted murder, and he appealed. The
Supreme Court, Thompson, J., held that defendant did not receive a fair trial where extensive
perjury by the witnesses who appeared against him was apparent to the trial judge and
acknowledged by the prosecutor after trial.
Jeffrey D. Sobel, of Las Vegas, for Appellant.
George E. Holt, District Attorney, H. Leon Simon and Howard Douglas Clark, Deputy
District Attorneys, Clark County, for Respondent.
1. Criminal Law.
Conviction obtained by knowing use of perjured testimony is fundamentally unfair and must be set aside
if there is any reasonable likelihood that false testimony could have affected judgment of jury.
Defendant was denied due process when he was convicted of attempted murder in trial during which
extensive perjury was engaged in by witnesses, which perjury was apparent to trial judge and
acknowledged by prosecutor after trial. U.S.C.A.Const. Amend. 5; Const. art. 6, 4.
OPINION
The Fifth Amendment to the Federal Constitution and art. 6, 4 of our State Constitution
each command that no person shall be deprived of his liberty without due process of law.
The appellant was convicted by a jury of the crime of attempted murder. The district court
denied his motion for a new trial. In doing so, the court stated that the testimony against the
defendant was fraught with perjury. Indeed, the court previously had ordered the prosecutor's
office to investigate apparent perjury. At a post-trial hearing, and in response to that order, a
deputy prosecutor advised the court that "it appears that about ninety percent of the
witnesses lied, including defense witnesses," and that the investigation was continuing.
93 Nev. 461, 462 (1977) Riley v. State
to that order, a deputy prosecutor advised the court that it appears that about ninety percent
of the witnesses lied, including defense witnesses, and that the investigation was continuing.
A vital issue before the jury and concerning which perjury may have occurred was whether
the shooting was accidental or intentional. In this setting the appeal from the order denying a
new trial presents a question of fundamental due process. For reasons hereafter stated, we
reverse the judgment of conviction and sentence imposed thereon.
[Headnote 1]
It is established that a conviction obtained by the knowing use of perjured testimony is
fundamentally unfair and must be set aside if there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury. Pyle v. Kansas, 317 U.S. 213 (1942);
Alcorta v. Texas, 355 U.S. 28 (1957); Napue v. Illinois, 360 U.S. 264 (1959); Miller v. Pate,
386 U.S. 1 (1967); Giglio v. United States, 405 U.S. 150 (1972).
[Headnote 2]
There is no suggestion in this case that the prosecutor knowingly used perjured testimony.
Prosecutorial misconduct is not involved. To this extent, the case at hand is different from
those cited above. Notwithstanding this distinguishing feature, the truth seeking function of
the trial is corrupted by such perjury whether encouraged by the prosecutor or occurring
without his knowledge. It seems to us that if the character of material evidence is false, due
process inevitably is denied the accused.
Here, the perjury was apparent to the judge and acknowledged by the prosecutor after trial.
Some of the perjured testimony concerned the critical issuewhether the shooting was
accidental or intentional. In these circumstances we cannot rule that the accused received a
fair trial. Accordingly, we set aside the conviction and remand for such further proceedings
deemed warranted by the prosecutor.
____________
93 Nev. 463, 463 (1977) Travelers Insurance Co. v. Lopez
TRAVELERS INSURANCE COMPANY, Appellant,
v. RAMIRO LOPEZ, Respondent.
No. 9398
August 17, 1977 567 P.2d 471
Appeal from order granting summary judgment, Eighth Judicial District, Clark County;
In an action for declaratory relief, insurer appealed from an order of the district court
holding that the insured was entitled to coverage under the basic reparation benefits clause in
a no-fault insurance policy. The Supreme Court, Manoukian, J., held that: (1) the Motor
Vehicle Insurance Act did not preclude stacking of two or more obligations to pay basic
reparation benefits, but only precluded double recovery for the same items of damage, and (2)
an other insurance clause contained in the basic reparation benefits endorsement was null
and void where it conflicted with a similar clause contained in another policy of insurance.
Affirmed.
[Rehearing denied September 14, 1977]
Thorndal & Liles, Ltd., and Leland Eugene Backus, Las Vegas, for Appellant.
Patrick J. Fitzgibbons and M. Douglas Whitney, Las Vegas, for Respondent.
1. Insurance.
Motor Vehicle Insurance Act did not preclude stacking of two or more obligations to pay basic reparation
benefits where policies were on same level of priority, but Act merely precluded double recovery for same
items of damage. NRS 698.260, subd. 4.
2. Insurance.
Other insurance clause contained in basic reparation benefits endorsement was null and void where it
conflicted with similar clause contained in another policy of insurance. NRS 698.010 et seq.
OPINION
This is an appeal from an order granting summary judgment in an action for declaratory
relief. Following judgment in the court below, appellant, Travelers Insurance Company, was
ordered to pay to respondent, Ramiro Lopez, $10,000 under the basic reparation benefits
clause contained in the policy of insurance issued by Travelers to Lopez.
the basic reparation benefits clause contained in the policy of insurance issued by Travelers to
Lopez.
The facts are undisputed. On July 12, 1974, respondent insured was seriously injured when
his automobile collided with that of an uninsured motorist. His personal automobile being
operated by him at the time of the accident was insured by both Ambassador Insurance
Company and Travelers. Both policies of insurance contained the standard reparation benefits
endorsement as mandated by Chapter 698 of the Nevada Revised Statutes. Both basic
reparation benefits endorsements contained other insurance clauses stating that the
maximum amount recoverable by Lopez under both policies is the amount that would have
been payable under the provisions of the insurance policy providing the highest dollar limit.
In this case, neither insurance carrier provided a higher limit or added reparation benefits, but
both companies provided a limit of $10,000. The Ambassador policy was issued on the
accident vehicle. The Travelers policy insured three of respondent's vehicles under a
commercial policy and also covered all owned vehicles. The parties have stipulated that the
various medical expenses incurred by respondent exceeded $20,000. Ambassador has paid to
respondent the $10,000 limit on its policy under the basic reparation benefits provision and is
not a party to these proceedings. Travelers has consistently maintained that it has no
obligation to pay the insured under the basic reparation benefits endorsement of its
comprehensive policy, due to the $10,000 payment by Ambassador.
Appellant has raised the following issues for our determination. (1) Whether the
provisions of the Nevada Motor Vehicle Insurance Act, Nevada Revised Statutes Chapter
698, preclude the stacking of two or more obligations to pay basic reparation benefits; and (2)
What is the effect to be given the other insurance clause contained in Travelers' basic
reparation benefits endorsement? We turn to resolve these questions.
[Headnote 1]
1. Resolution of the first issue involves the interpretation of Chapter 698 of the Nevada
Revised Statutes known as the Nevada Motor Vehicle Insurance Act, adopted by the Nevada
Legislature in 1973 to implement Nevada's no-fault insurance scheme. The Act reveals that
the Legislature intended to provide for the payment of certain benefits referred to as basic
reparation benefits, excluding harm to property (NRS 698.040), in an amount not to exceed
$10,000 per person per accident for such damages as loss of income, funeral benefits, medical
costs and survivor benefits (NRS 698.070). Every policy of insurance issued in this State,
except for those policies which provide coverage only for liability in excess of required
minimum tort liability coverages, includes basic reparation benefits coverage {NRS
69S.200), and these benefits are payable without regard to fault {NRS 69S.250).
policy of insurance issued in this State, except for those policies which provide coverage only
for liability in excess of required minimum tort liability coverages, includes basic reparation
benefits coverage (NRS 698.200), and these benefits are payable without regard to fault (NRS
698.250).
Appellant contends that NRS 698.070 read in conjunction with the definition of the basic
reparation benefits contained in NRS 698.040 and the provisions of NRS 698.260(4) limit the
recovery of basic reparation benefits under all applicable policies of insurance to $10,000.
NRS 698.260 is the section of the Motor Vehicle Insurance Act which provides basic
reparation insureds with guidance as to which obligor he must look to for recovery of his first
party benefits. Since both Ambassador and Travelers are considered respondent's insurer
under our statutory scheme, a question arises as to what the respective obligations of each
insurer are when multiple coverages are available. Generally, when there are two or more
obligations to pay basic reparation benefits to a person injured while operating or occupying a
motor vehicle, the insurers will fall into different categories set forth in NRS 698.260(1), and
that subsection specifically designates which insurer must be looked to in order to seek
recovery. Subsection (1) indicates that the injured person's claim is to be made to his
insurer, and if he does not have his own insurance to the insurer of the owner of the motor
vehicle, and if neither of the above are insured to the insurer of the operator of the motor
vehicle. It is apparent that conflicts arise under this priority scheme when two or more
insurers can be considered as primary obligors under these categories. Appellant posits how
this conflict can be resolved, contending that the Nevada Legislature anticipated this dilemma
and resolved it by adding subsection (4) to NRS 698.260. NRS 698.260(4) provides:
If two or more obligations to pay basic reparation benefits are applicable to any
injury under the priorities set out in this section, benefits are payable only once and the
reparation obligor against whom a claim is asserted shall process and pay the claim as if
wholly responsible. (Court's emphasis.)
It is Travelers' contention that the payable only once language precludes a basic
reparation insured from receiving any payments above the $10,000 figure mentioned in NRS
698.070. Respondent contends that NRS 698.260(4) only precludes double recovery for the
same items of damage. We are constrained to agree with respondent.
Appellant admits that both it and Ambassador can be considered to be respondent's
insurer, and, therefore, are first in order of priority pursuant to NRS 698.260(1)(a).
Subsection (4) of NRS 698.260 refers specifically to our type factual setting arising when
two or more obligations to pay basic reparation benefits are applicable to an injury under the
priorities set out in this section. (Court's emphasis.) A reasonable interpretation of this
language, when read in light of the provisions of subsection (1) of NRS 698.260, is that the
Legislature intended to limit the payment of basic reparation benefits to a single level of
priority rather than to preclude the stacking or pyramiding of insurance policies.
Additionally, recognizing that all policies of insurance issued in the State of Nevada must
provide for basic reparation benefits (NRS 698.200) and accepting our interpretation of NRS
698.260(4), we perceive NRS 698.460 as supporting the proposition that an insurer must pay
basic reparation benefits without regard to payments made from other sources of insurance of
the same priority.
Legislative intent supportive of our determination is further reflected in that provision is
made to the end that insurers can provide additional optional coverage for added reparation
benefits. NRS 698.360. This section has a chilling effect on Travelers' contention that it was
the intent of the Legislature to limit the recovery of basic reparation damages to $10,000 per
accident. Although arguendo, the additional reparation benefits contemplated by NRS
698.360 are to be provided only upon the payment of higher corresponding premiums, there
is nothing preventing the securing of additional reparation benefits through the purchase of a
separate policy of insurance providing for the same basic reparation benefits. Nowhere in our
legislation is there evidence that the $10,000 minimum basic reparation benefits need be
purchased from the same insurer. Had the Legislature intended a different result, it would
have so provided.
We conclude by holding that there exists no legislative prohibition against the stacking
of insurance policies when both insurers are at the same level of priority, as is the case here.
There are public policy and other considerations which support this conclusion. For example,
the insured Lopez paid premiums on two policies of insurance covering the same vehicle.
Both policies of insurance provided for the payment of basic reparation benefits. Injuries and
expenses sustained by the insured are in excess of $20,000. Requiring the payment by
Travelers of the policy limit would not result in a windfall to Lopez, nor would it result in
any prejudice to the insurance company, in that the insurance company has accepted the
payment of premiums and has, in effect, assumed the risk that injury to the insured may
occur.
Lopez, nor would it result in any prejudice to the insurance company, in that the insurance
company has accepted the payment of premiums and has, in effect, assumed the risk that
injury to the insured may occur. The premiums collected by Travelers are deemed to have
comprehended this potential.
[Headnote 2]
2. We now turn to the second question, specifically, the effect to be given the other
insurance clause of the Travelers insurance policy.
The Travelers' Basic Reparation Benefits EndorsementNevada, Symbol FF388, part I,
E(6), p. 5, provides:
Non-duplication of BenefitsOther InsuranceNo eligible insured person shall
recover duplicate benefits for the same elements of loss under this or any similar
automobile insurance, including self-insurance. In the event the eligible insured person
has other similar automobile insurance including self-insurance available and
applicable to the accident, the maximum recovery under all such insurance shall not
exceed the amount which would have been payable under the provisions of the
insurance providing the highest dollar limit, and The Travelers shall not be liable for
the greater proportion of any loss to which this coverage bears to the sum of the
applicable limits of liability of this coverage and such other insurance.
The trial court interpreted this language and similar language contained in the policy of
insurance issued by Ambassador to mean that the insured shall not collect twice for the same
medical bills, noting that such was not the case here since the damages incurred by
respondent exceeded the limitations of the combined limits of both policies. Appellant asserts
the policy defense that, considering the other insurance available and paid to respondent, it
has no duty to pay him. If correct, the clause would constitute a complete defense to the
action.
In United Services Auto. Ass'n. v. Dokter, 86 Nev. 917, 478 P.2d 583 (1970), we dealt
with the interpretation of an other insurance clause contained in two policies issued by the
same insurance company. There, this Court held that the purpose of the other insurance
clause was twofold, to prorate the loss and to fix the limit thereof. Id. at 920, 478 P.2d at
584. This Court then referred to the cases concerned with multiple policies written by
different insurers, stating that they were significantly distinguished from the Dokter facts. We
went on to find the language to be ambiguous and concluded that it was inappropriate to
apply the "other insurance" clause to limit recovery when the same insurance company
issued both policies because the insured would not reasonably anticipate the construction
urged in light of the purpose of the "other insurance" clause.
the language to be ambiguous and concluded that it was inappropriate to apply the other
insurance clause to limit recovery when the same insurance company issued both policies
because the insured would not reasonably anticipate the construction urged in light of the
purpose of the other insurance clause. Here, the clause is not ambiguous, and although the
facts in Dokter and the instant fact distinctions are significant, id. at 919, 478 P.2d at 584,
we are not inclined to depart from the result reached therein.
The case now before us is one of first impression in Nevada. Travelers, by its other
insurance clause, sought to defer or limit its liability if other insurance is available to pay
part or all of its insured's loss. In Werley v. United Services Auto. Ass'n., 498 P.2d 112
(Alaska 1972), the court relied heavily on the Oregon decision in Lamb-Weston, Inc. v.
Oregon Auto. Ins. Co., 341 P.2d 110 (Or. 1959), and held that the other insurance clause
contained in one policy of insurance was null and void when it conflicts with a similar clause
contained in another policy of insurance. We adopt the Oregon or Lamb-Weston rule of
insurance law concerning conflicting other insurance clauses.
Appellant contends that the Werley decision should not be applied to the other insurance
clause contained in the Travelers policy because it was almost identical to the clause
contained in the Ambassador policy. If, however, both clauses were held to apply, the
situation could arise where both companies disclaimed liability, relying on the provisions of
the other insurance clause, thus resulting in inevitable unnecessary litigation. Circularity
was one of the major concerns of both the Werley and Lamb-Weston courts.
We additionally find the Lamb-Weston rule to be more valid for the reasons that it
avoids arbitrariness in the selection of conflicting clauses and giving effect to it, it
discourages litigation between insurers, and it does provide a basis for a uniformity of result.
Werley v. United Services Auto. Ass'n., 498 P.2d 112 (Alaska 1972).
Accordingly, the better view favors respondent's position that an insured is entitled to
payment in full up to the policy limit, with respect to each policy under which coverage is
afforded, and that other insurance clauses and similar clauses which purport to limit
liability are void. Geyer v. Reserve Insurance Company, 447 P.2d 556 (Ariz. 1968); Sparling
v. Allstate Insurance Company, 439 P.2d 616 (Or. 1968); Sellers v. United States Fidelity and
Guaranty Company, 185 So.2d 6S9 {Fla.
689 (Fla. 1966); Bryant v. State Farm Mutual Auto. Ins. Co., 140 S.E.2d 817 (Va. 1965).
The original reason for other insurance' clauses was to prevent overinsurance and double
recovery under property and fire insurance policies. But since there is a greatly diminished
risk of fraudulent claims under an automobile liability insurance policy, this original purpose
of other insurance' clauses is of only limited importance. Werley v. United Services Auto.
Ass'n., 498 P.2d 112, 116-117 (Alaska 1972). Other insurance clauses function solely to
reduce or eliminate the insurer's loss in the event of concurrent coverage of the same risk.
1
If there ever was a strong rationale for the use of other insurance clauses it has, on facts
such as those presently before us, substantially evaporated.
We affirm the summary judgment and hold that the actual damages sustained by
respondent are recoverable to the full extent of the combined limits of both policies.
____________________

1
Note, Concurrent Coverage in Automobile Liability Insurance, 65 Colum.L.Rev. 319, 320 (1965).
____________
LAWRENCE ARVEY, Appellant, v. SHERIFF,
No. 9925
August 17, 1977 567 P.2d 470
Defendant, charged with failure to report campaign expenditures, petitioned for habeas
corpus. The district court denied relief and defendant appealed. The Supreme Court held that
state election law provision requiring reporting of campaign expenditures is not
unconstitutional, although it requires disclosure only after election.
Affirmed.
Oscar B. Goodman and William B. Terry, Las Vegas, for Appellant.
Elections.
State election law provision requiring reporting of campaign expenditures is not unconstitutional,
although it requires disclosure only after election. NRS 218.032-218.038, 294A.010-294A.080,
294A.020; Federal Election Campaign Act of 1971, 301-406 as amended 2 U.S.C.A. 431-455;
OPINION
Per Curiam:
Pursuant to a True Bill returned by the Clark County Grand Jury, Lawrence Arvey was
indicted on one count of failure to report campaign expenditures, a gross misdemeanor under
NRS 294A.020. Contending the statute is unconstitutional, Arvey filed a pretrial petition for a
writ of habeas corpus which was denied. He reasserts the same contention in this appeal.
Arvey claims that the High Court decision in Buckley v. Valeo, 424 U.S. 1 (1976),
compels us to reverse. We do not agree. Buckley considered the constitutionality of the
Federal Election Campaign Act of 1971, 86 Stat. 3, and the Federal Election Campaign Act
Amendments of 1974, 88 Stat. 1263.
1

In 1973 and 1975 the Nevada Legislature enacted NRS 218.032-.038 and NRS
294A.010-.080. These statutes constitute the parallel state election laws and apply to
candidates for state, district, county, city or township offices. Although both the federal and
state laws have additional and differing provisions, they are similar in that they both purport
to: (a) limit or prohibit independent expenditures by individuals or groups for the benefit of a
candidate other than by direct contribution to the candidate or to his campaign committee; (b)
place overall limits on campaign expenditures, the amounts being specified for each
particular office sought; and, (c) establish procedures requiring the disclosure of campaign
contributions and campaign expenditures.
In Buckley, the High Court ruled that the portions of the federal enactment which placed
limitations on overall campaign expenditures and on independent expenditures by individuals
or groups were invalid, as being in contravention of the First Amendment freedom of
expression.
____________________

1
These statutes are codified as 2 USC 431-55.
Arvey concludes that since Buckley necessarily invalidates Nevada's campaign expenditure
limit that, in logical sequence, the disclosure provisions are also invalid. The argument is not
persuasive. In fact, Buckley rejected a similar challenge and ruled that federal disclosure
provisions had the independent functions of insuring that the voters are fully informed and to
achieve through publicity the maximum deterrence to corruption and undue influence
possible. 424 U.S. at 76. Nevertheless, Arvey attempts to distinguish the state disclosure
statutes from the federal by pointing out that, while the federal laws require disclosure before
an election, the state laws require such disclosure after the election. Therefore, be argues, the
statutes do not inform the voters in any meaningful way and their purpose is solely to police
the unconstitutional attempt to limit spending.
Whether a pre-election disclosure requirement would be more effective is not, in this
proceeding, an issue within the scope of proper judicial review. Suffice it to say that the law
as written serves important informative and deterrent functions (Buckley, cited above);
furthermore, it is clear to us the legislature intended the disclosure provisions to stand or fall
on their own merit. Accordingly, we reject Arvey's challenge to the constitutionality of NRS
294A.020.
Affirmed.
____________
93 Nev. 471, 471 (1977) Supera v. Hindley
JOHN SUPERA, Appellant, v. JAMES A. HINDLEY
and REVA HINDLEY, Respondents.
No. 8467
September 1, 1977 567 P.2d 964
Appeal from judgment entered upon jury verdict; First Judicial District Court, Carson
City; Llewellyn A. Young, Judge.
Home owners commenced action against defendant to recover damages for defective
construction of their home. The district court entered judgment on jury verdict awarding
owners $4,000, and defendant appealed. The Supreme Court held that: (1) evidence supported
award; (2) evidence supported finding that defects for which damages were assessed existed
at time of completion of home; and (3) even if instruction complained of by defendant was
erroneously given, error, if any, was harmless, where it was not shown that different result
would probably obtain at new trial free of that instruction.
93 Nev. 471, 472 (1977) Supera v. Hindley
any, was harmless, where it was not shown that different result would probably obtain at new
trial free of that instruction.
Affirmed.
Michael R. Griffin, of Carson City, for Appellant.
Stokes & Eck, Ltd., and William Jac Shaw, of Carson City, for Respondents.
1. Damages.
In action by home owners to recover damages for defective construction of home, evidence supported
jury award of $4,000 damages.
2. Damages.
In action by home owners to recover damages for defective construction of home, evidence supported
finding that defects for which damages were assessed existed at time of completion of home; damages did
not include defects beyond warranty period.
In action by home owners to recover damages for defective construction of home, even if instruction
complained of by defendant was erroneously given, error, if any, was harmless, where it was not shown that
different result would probably obtain at new trial free of that instruction. NRCP 61.
OPINION
Per Curiam:
James and Reva Hindley commenced this action against John Supera to recover damages
for the defective construction of their home. A jury awarded them $4,000. On this appeal,
Supera contends that the award is excessive, includes damages for defects beyond the
warranty period, and that the jury was improperly instructed.
[Headnotes 1-3]
Each contention is without merit. The evidence fully supports the amount of damages, and
that the defects for which damages were assessed existed at the time of the completion of the
home. Moreover, if the instruction complained of was erroneously given (a point which we
do not decide), it is not shown that a different result would probably obtain at a new trial free
of that instruction. Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev. 662, 448 P.2d 46 (1968).
Thus, the error, if any, was harmless. NRCP 61.
Affirmed.
____________
93 Nev. 473, 473 (1977) Noel v. State
LEE NOEL, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 10053
September 1, 1977 568 P.2d 188
Appeal from order denying motion for withdrawal of guilty plea, Eighth Judicial District
Defendant entered guilty plea to crime of attempted grand larceny. After being sentenced
to three-year term in State Prison, defendant filed motion asking trial judge to permit her to
withdraw guilty plea or alternatively that sentence be stayed, pending resolution of
application to State Board of Pardons Commissioners for remission of sentence. The district
court denied her motions, and she appealed. The Supreme Court held that: (1) defendant's
contention that her guilty plea was not voluntarily and freely entered was without merit; and
(2) trial court did not commit error in denying her application for stay of sentence.
Affirmed.
[Rehearing denied October 5, 1977]
Joan Buckley, Las Vegas, for Appellant.
1. Criminal Law.
Where trial judge's canvass of defendant, when her guilty plea was accepted, fully comported with
enunciated guidelines and claimed error did not manifest itself until after district judge declined to place
defendant on probation and, through successful negotiations by defendant's counsel, it was agreed that in
exchange for guilty plea to attempted grand larceny, the more severe charge of grand larceny would be
dismissed, defendant's contention that her guilty plea was not voluntarily and freely entered was without
merit. NRS 205.220, 208.070.
2. Criminal Law.
Statutory guidelines for staying of sentence vest wide discretion in district court judge and they
contemplate that stay should be considered only when, in court's opinion clemency should be exercised.
NRS 176.375.
3. Criminal Law.
Record contained nothing to support claim that clemency may have been warranted or that there
was abuse of discretion in denying defendant's motion for stay of sentence pending
resolution of application to State Board of pardons Commissioners for remission of
sentence.
93 Nev. 473, 474 (1977) Noel v. State
have been warranted or that there was abuse of discretion in denying defendant's motion for stay of
sentence pending resolution of application to State Board of pardons Commissioners for remission of
sentence. NRS 176.375.
OPINION
Per Curiam:
Lee Noel entered a guilty plea to the crime of attempted grand larceny (NRS 205.220,
NRS 208.070). After being sentenced to a three year term in the Nevada State Prison, Noel
filed a motion asking the trial judge to permit her to withdraw the guilty plea. Alternatively,
she asked that the sentence be stayed, pending resolution of an application to the State Board
of Pardons Commissioners, for remission of the sentence. The motions were denied and in
this appeal Noel contends that her guilty plea was not entered voluntarily and with
understanding of the probable consequences of the plea. She also claims it was error not to
stay the sentence.
[Headnote 1]
1. The contention that the guilty plea was not voluntarily and freely entered is totally
without merit. The record of the trial judge's canvass of Noel, when the guilty plea was
accepted, fully comports with the guidelines enunciated in Heffley v. Warden, 89 Nev. 573,
516 P.2d 1403 (1973). Cf. Hagenios v. Warden, 91 Nev. 328, 535 P.2d 790 (1975); Reed v.
State, 91 Nev. 497, 538 P.2d 161 (1975). The now claimed error did not manifest itself until
after the district judge declined to place appellant on probation.
The record also reflects that through successful negotiations by appellant's counsel, it was
agreed that in exchange for a guilty plea to attempted grand larceny, the more severe charge
of grand larceny would be dismissed. Thus, it is apparent that Noel knowingly entered her
guilty plea to the reduced charge to escape probable conviction for grand larceny and greater
punishment. See Brady v. United States, 397 U.S. 742 (1970).
[Headnotes 2, 3]
2. The claim that it was error to deny the application for stay of sentence is also rejected.
The statutory guidelines for staying of sentence vest a wide discretion in the judge of the
district court. They contemplate that a stay should be considered only when, in the court's
opinion clemency should be exercised."
93 Nev. 473, 475 (1977) Noel v. State
exercised. NRS 176.375. Here, the record contains nothing to support a claim on appeal that
there was an abuse of discretion or that clemency may have been warranted. Accordingly,
neither briefing nor hearing is warranted. The order of the trial court is affirmed.
____________
93 Nev. 475, 475 (1977) Downs v. Warden
DENNIS JAMES DOWNS, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 9652
September 6, 1977 568 P.2d 575
Appeal from an order denying post-conviction relief; Eighth Judicial District Court, Clark
County; Michael J. Wendell, Judge.
The Supreme Court, Manoukian, J., held that defense counsel's claimed failure to preserve
petitioner statutory right to appeal did not result in a deprivation of assistance of effective
counsel and, hence, was not a basis for obtaining post-conviction relief where petitioner never
requested advice on his right to appeal or for court-appointed counsel on appeal and never
informed his counsel, anyone representing the State, or district court of his desire to appeal.
Affirmed.
Morgan D. Harris, Clark County Public Defender, and James L. Gubler, Deputy Public
Robert R. List, Attorney General, Carson City; George E. Holt, District Attorney, and H.
Leon Simon, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Statute providing that when a court imposes sentence upon a defendant who has not pleaded guilty and is
without counsel, court shall advise defendant of his right to appeal and, it defendant so requests, clerk must
prepare and file forthwith a notice of appeal is not applicable in situation where defendant is represented by
counsel. NRS 177.075, subd. 2.
2. Criminal Law.
Defense counsel had no obligation to represent defendant on appeal where it was clear from record that
defendant never requested advice on his right to appeal or for court-appointed counsel
on appeal and never informed his counsel, anyone representing the State, or district
court of his desire to appeal.
requested advice on his right to appeal or for court-appointed counsel on appeal and never informed his
counsel, anyone representing the State, or district court of his desire to appeal. U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Although record was silent as to anyone informing defendant that he could pursue an appeal in forma
pauperis with counsel furnished to him at public expense, where it was shown, and trial court so found, that
defendant was content with outcome of initial sentencing proceedings, and it was not until well over a year
following entry of judgment and granting of probation, and four months after probation revocation
proceedings, that defendant decided to claim appeals deprivation, delay tended to repel that claim and to
support position of State that there was no deprivation. NRS 177.315, subd. 3; U.S.C.A.Const. Amend.
6.
4. Criminal Law.
Defense counsel's claimed failure to preserve defendant's statutory right to appeal did not result in a
deprivation of assistance of effective counsel and, hence, was not a basis for obtaining post conviction
relief where defendant never requested advice on his right to appeal or for court-appointed counsel on
appeal and never informed his counsel, anyone representing the State, or district court of his desire to
appeal. NRS 177.315, subd. 3; U.S.C.A.Const. Amend. 6.
OPINION
On October 27, 1973, the appellant was arrested and charged with larceny from the person
(NRS 205.270), a felony. Until December 14, 1973, the date the criminal information was
filed in district court, appellant was represented by the Clark County Public Defender's
Office. Thereafter, private counsel was retained in his behalf, following which, on January
24, 1974, he entered a plea of not guilty, was later tried by jury, and on October 1, 1974, a
guilty verdict was returned on the larceny from the person charge.
Subsequently, on October 20, 1974, appellant was sentenced to 8 years in the Nevada State
Prison. The sentence was suspended and appellant placed on probation for a period of three
years. Appellant was indigent in the court below, and although he was of the age of majority,
his parents retained counsel for him. The attorney-client relationship was terminated
following sentencing. The record is silent both as to whether appellant intended to appeal his
conviction or whether anyone informed appellant of his right to appeal. NRS 177.015, et seq.
Douglas v. California, 372 U.S. 353 (1963).
On July 31, 1975, the district court revoked appellant's probation and ordered that the
original sentence imposed be executed. Several months later appellant filed his petition for
post-conviction relief which was denied.
Appellant raises the following primary questions for our determination: was his counsel's
failure to advise him of his right to appeal a denial of his right to the effective assistance of
counsel. If so, would this deprivation now entitle him to the right to appeal from the
conviction. Since we answer the Sixth Amendment question in the negative, the deprivation
question becomes moot.
Appellant contends that his counsel had a duty to advise him of his right to appeal, and
that the failure to so advise him was a violation of his Sixth Amendment right to the effective
assistance of counsel. Gideon v. Wainwright, 372 U.S. 335 (1963).
[Headnote 1]
There are no statutory or case authorities in Nevada that require defense counsel or the
trial judge to advise the convicted criminal defendant in a contested case of his right to
appeal. NRS 177.075(2) does provide that when a court imposes sentence upon a defendant
who has not pleaded guilty and is without counsel the court shall advise the defendant of his
right to appeal and if the defendant so requests, the clerk must prepare and file forthwith
notice of appeal. However, NRS 177.075(2) has no application to the present case since the
appellant was represented by counsel.
In Hagenios v. Warden, 91 Nev. 328, 535 P.2d 790 (1975), the defendant was represented
by counsel during his arraignment, guilty plea, and sentencing. He did not appeal his
conviction nor challenge its validity by a writ of habeas corpus. More than fifteen years after
his conviction, the defendant filed a petition for post-conviction relief which was denied by
the district court and affirmed on appeal. In the appeal which raised an issue similar to that
now before the Court, we stated: We presume that counsel would have perfected an appeal
had an appeal been warranted. Id. at 330, 535 P.2d at 791. Hagenios is materially
distinguished from this case, since there the defendant, represented by counsel, had pled
guilty, the relevant transcripts and records were not available for judicial review, and, as
mentioned in the dissenting opinion, an evidentiary hearing had been repeatedly demanded,
id. at 331, 535 P.2d at 792, but not afforded the appellant. Here the appellant, represented by
counsel, was tried by jury and was afforded a habeas hearing.
Several state courts have held that the failure of counsel to advise the defendant of the
right to appeal is not a basis for post-conviction relief. See, Buxton v. Brown, 150 S.E.2d 636
(Ga. 1966); In re Graham's Petition, 215 A.2d 697 (N.H. 1965); Richardson v. Williard, 406
P.2d 156 (Ore. 1965). The federal district courts have reached similar conclusions in cases
where, the court believed, the defendant had seemed satisfied at the time with the outcome of
the litigation in the state trial court. Callahan v. Commonwealth of Virginia, 262 F.Supp. 31
(W.D.Va. 1967); Gibson v. Peyton, 262 F.Supp. 574 (W.D.Va. 1966); Godlock v. Ross, 259
F.Supp. 659 (E.D.N.C. 1966).
[Headnotes 2, 3]
Here, it is clear that appellant never requested advice on his right to appeal or for court
appointed counsel on appeal and never informed his counsel, anyone representing the State,
or the district court of his desire to appeal. Although the record is silent as to anyone
informing appellant that he could pursue an appeal in forma pauperis, with counsel furnished
to him at public expense, cf. Gairson v. Cupp, 415 F.2d 352 (9th Cir. 1969), it was shown,
and the trial court so found, that he was content with the outcome of the initial sentencing
proceedings. It was not until well over a year following entry of judgment and the granting of
probation, and four months after the probation revocation proceedings, that appellant decided
to claim the appeals deprivation. This delay tends to repel appellant's contention and to
support respondent's position. See, NRS 177.315(3). In this factual setting, a trial attorney has
no obligation to represent his client on appeal. In accord, United States v. LaVallee, 364 F.2d
489 (2nd Cir. 1966).
[Headnote 4]
Following our review of the authorities from the various jurisdictions, we conclude, on
these facts, that trial counsel's claimed failure to preserve his client's statutory right to appeal
did not result in a deprivation of the assistance of effective counsel, Gairson v. Cupp, 415
F.2d 352, 353-354 (9th Cir. 1969); in accord, United States ex rel. Maselli v. Reincke, 383
F.2d 129 (2nd Cir. 1967); Wynn v. Page, 369 F.2d 930 (10th Cir. 1966); Doyle v. United
States, 366 F.2d 394 (9th Cir. 1966).
Appellant's other contention, being without merit, is rejected.
The order of the district court denying appellant's petition for post-conviction relief is
affirmed.
____________
93 Nev. 479, 479 (1977) Korby v. State
THOMAS OLIVER KORBY, Appellant, v. THE
No. 9413
September 6, 1977 567 P.2d 961
Appeal from conviction for possession of a controlled substance; Fourth Judicial District
Court, Elko County; Joseph O. McDaniel, Judge.
The Supreme Court, Mowbray, J., held that where search warrant for buildings including
defendant's house, which was located near defendant's store, was issued partly on basis of
information that defendant had left presence of undercover agent for two minutes and
returned to store with marijuana, warrant was not overbroad for lack of probable cause to
believe that marijuana would be found in house, in that it was more reasonable than not to
infer from defendant's casual use of marijuana with mere strangers that he kept marijuana in
his residence rather than hidden in some less easily discoverable place on property.
Affirmed.
Gregory D. Corn, Reno, for Appellant.
Robert List, Attorney General, Carson City; and Robert C. Manley, District Attorney, Elko
Where search warrant for buildings including defendant's house, which was located near defendant's
store, was issued partly on basis of information that defendant had left presence of undercover agents for
two minutes and returned to store with marijuana, warrant was not overbroad for lack of probable cause to
believe that marijuana would be found in house, in that it was more reasonable than not to infer from
defendant's casual use of marijuana with mere strangers that he kept marijuana in his
residence rather than hidden in some less easily discoverable place on property.
93 Nev. 479, 480 (1977) Korby v. State
with mere strangers that he kept marijuana in his residence rather than hidden in some less easily
discoverable place on property. NRS 453.336.
OPINION
Appellant Thomas Oliver Korby was convicted of possession of a controlled substance,
marijuana, in violation of NRS 453.336. He seeks reversal on the ground that the court erred
in admitting the marijuana in evidence.
1. The Facts.
Two narcotics agents accompanied by an informant went to Currie, Nevada, to investigate
a narcotics lead. They entered the Currie Store, a general store and bar, and had a
conversation with its proprietor, Thomas Korby, and his wife, Donna. The informant bought
Korby a drink, and Korby responded by inviting the visitors to smoke marijuana with him.
The four men left the store and entered a detached building designated as the women's
restroom. Korby produced some marijuana and a corncob pipe and passed them to the others.
One of the officers asked if he could buy some marijuana, but Korby refused, claiming he had
only a small amount, but offering him instead a joint for the road. After further
conversation, the agents and the informant left the store.
About a month later, after determining that the joint was marijuana, the agents returned to
the Currie Store. They bought Korby a drink, and again he offered marijuana in return. On
this occasion, he left through the back door, returning in about two minutes with the
marijuana. Korby and the agents then stepped outside and smoked the marijuana.
The agents returned to Elko and executed an affidavit describing the foregoing events. On
the basis of the affidavit and an affidavit containing information supplied by a former tenant
of the Korbys', a search warrant was issued. The search warrant authorized the search of the
store, the women's restroom, another detached building near the store, and the Korbys'
residence, also nearby.
The following day, the agents executed the warrant, placing Korby under arrest. Korby
took the agents to the bedroom of his residence and handed over some marijuana and hash oil
to them. Further search revealed additional marijuana and smoking paraphernalia, which the
agents seized.
Korby filed a pretrial motion to suppress the seized evidence on the ground that there
was no probable cause to support the search warrant and that the warrant was
insufficient on its face.
93 Nev. 479, 481 (1977) Korby v. State
on the ground that there was no probable cause to support the search warrant and that the
warrant was insufficient on its face. The motion was denied, as was a similar motion made
during trial. Korby claims that the denial was error and that the evidence should have been
suppressed.
2. Probable Cause.
Korby suggests that the warrant was overbroad in authorizing a search of his residence,
there being no probable cause to believe any marijuana would be found there. He argues that
the only link with the house in the agents' affidavit is the statement that when Korby left the
store to get the marijuana Mr. Korby would have had time to go to the dwelling house . . .
but would not have had time to go many other places.
The essence of Korby's argument is that the underlying circumstances set forth in the
agents' affidavit were not sufficient to justify a conclusion, by either the affiants or the
magistrate, that marijuana would be found in Korby's residence. It is suggested that, although
Korby could have gone to his residence to obtain the marijuana during his two minutes' recess
from the store, he might also have gone to a number of other places on the property. In
support of his argument, Korby relies upon Spinelli v. United States, 393 U.S. 410 (1969).
In Spinelli, the High Court held that an affidavit based in part on an informant's tip was
insufficient to support a search warrant. That affidavit stated that Spinelli had been seen
frequently visiting a certain apartment which contained two telephones, that Spinelli was a
known bookmaker, and that a reliable informant had stated that Spinelli was operating a
bookmaking operation from the above telephones. As Korby points out, the Court concluded
that the affidavit justified no more than a conclusion that Spinelli could have been using the
telephones for bookmaking purposes, which was insufficient to establish probable cause.
Korby urges that the same result should be reached in the instant case, where the affidavit
established only the possibility, not the probability, that marijuana would be found in the
house.
Korby's argument, however, ignores the reasoning leading up to the Court's conclusion in
Spinelli. There, the Court observed that (1) the informant's reliability had been asserted, rather
than shown, and (2), more important, it had not been stated how the informant had gathered
his information, whether from personal knowledge or hearsay. In light of these omissions, the
Court concluded that it was especially important that the tip establish the criminal activity in
detail, from which one might infer that the information had been secured in a reliable way.
93 Nev. 479, 482 (1977) Korby v. State
reliable way. Bare allegations that Spinelli was using certain phones for bookmaking, coupled
with his access to these phones, were insufficient to support inferences of reliability.
In the instant case, however, the reliability of the affiants, narcotics agents, is not in
question. Neither is the way in which they acquired their information, which was clearly from
personal observation. In such a case, according to Spinelli, probable cause may be supported
by a less detailed showing.
In Houser v. Geary, 465 F.2d 193 (9th Cir. 1972), cert. denied, 409 U.S. 1113 (1973), an
affidavit upon which a search warrant was issued authorized the search of a house, detached
garage with one room converted for occupancy, a small shed converted to sleeping quarters,
and a hothouse-greenhouse, all located on the same property. The affiant, the son of the lessor
of the property, merely stated in his affidavit that he had discovered marijuana in the
hothouse and that he had seen people entering and leaving the living quarters in the garage
and small shed. There was no mention of any direct evidence that there was marijuana in the
house being occupied by the renter of the property.
The Ninth Circuit Court concluded that there was reasonable cause to support a search of
the house, based solely on the observation of marijuana in the hothouse. The court reasoned
that it was logical to conclude that the renter of the premises was occupying the house rather
than either of the smaller quarters and that he had control of the hothouse. Implicit in the
opinion is the further conclusion that one growing marijuana on his property would also keep
marijuana in his living quarters. As noted in Houser: These inferences might be wrong in
fact, but they are, in our judgment, more reasonable than not, and that is enough for probable
cause. Houser v. Geary, 465 F.2d at 196.
The same reasoning can be applied to the instant case. Korby may, during his two minutes'
absence from the store, have gone somewhere other than his residence to obtain the
marijuana. Nevertheless, it is more reasonable than not to infer from Korby's casual use of
marijuana with near strangers that he also kept marijuana in his residence rather than hidden
in some less easily discoverable place on the property. The contents of the affidavit were,
therefore, sufficient to support a warrant authorizing the search of Korby's residence, where
the incriminating evidence was found.
The motion to suppress was properly denied, since the supporting affidavit of the agents
established probable cause that marijuana would be found in Korby's residence.
93 Nev. 479, 483 (1977) Korby v. State
marijuana would be found in Korby's residence. The judgment of conviction is affirmed.
____________
93 Nev. 483, 483 (1977) State ex rel. List v. AAA Auto Leasing
STATE OF NEVADA Ex Rel. Robert List, Attorney General of the State of Nevada; STATE
OF NEVADA Ex Rel. George Holt, District Attorney of Clark County, Nevada;
CONSUMER AFFAIRS DIVISION, DEPARTMENT OF COMMERCE, Ex Rel. REX
LUNDBERG, Commissioner, Appellants, v. AAA AUTO LEASING AND RENTAL, INC.,
A Nevada Corporation d/b/a COURTESY R.V. AUTO AND LEASING, d/b/a COURTESY
R.V. CENTER, d/b/a COURTESY MOTORS, and TYRONE HAVAS, Individually and As
Sole Shareholder, Agent and Operator of AAA AUTO LEASING AND RENTAL, INC. d/b/a
COURTESY R.V. AUTO AND LEASING d/b/a COURTESY R.V. CENTER d/b/a
COURTESY MOTORS and VICTOR HAVAS, Individually and As An Agent of AAA
AUTO LEASING AND RENTAL, INC., d/b/a COURTESY R.V. AUTO AND LEASING,
d/b/a COURTESY R.V. CENTER, d/b/a COURTESY MOTORS, Respondents.
No. 8833
September 9, 1977 568 P.2d 1230
Appeal from order, Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
State commenced action alleging, inter alia, that automobile leasing and renting
corporation engaged in use of deceptive trade practices prohibited by Trade Regulation and
Practices Act. The district court dismissed that portion of complaint which requested that
corporation be preliminarily and permanently enjoined from engaging in business activities
related to sale, lease or repair of motor vehicles within State, and State appealed. The
Supreme Court, Batjer, C. J., held that section of Trade Regulation and Practices Act which
permitted commissioner of consumer affairs to apply for injunction prohibiting person from
continuing deceptive trade practices and section which permitted district attorney to bring
action in State's name for injunction against any person who was using, had used or was
about to use any deceptive trade practices, did not give court absolute discretion to take
any measure, including completely barring individual from engaging in business,
necessary to prevent fraud against public in form of deceptive trade practices.
section which permitted district attorney to bring action in State's name for injunction against
any person who was using, had used or was about to use any deceptive trade practices, did not
give court absolute discretion to take any measure, including completely barring individual
from engaging in business, necessary to prevent fraud against public in form of deceptive
trade practices.
Affirmed.
Robert List, Attorney General, Carson City, and Joshua M. Landish, Deputy Attorney
General, Las Vegas; George Holt, District Attorney, Clark County, for Appellants.
Paul V. Carelli, III, and George Foley, Las Vegas, for Respondents.
Where district court made express determination that there was no just reason for delay and also made
express direction for entry of judgment, appeal could be taken from order dismissing claim where more
than one claim for relief was presented. NRCP 54(b).
Within its police power, legislature may regulate commercial and business affairs in order to promote
health, safety, morals and general welfare of its citizens and to protect its citizens from injurious activities.
Pursuant to its police power, legislature may regulate otherwise legitimate business which, if conducted
improperly, is detrimental to public, or it may prohibit business activity which is essentially injurious to
public welfare, provided such legislation is not prohibited by Constitutions of United States or State.
4. Statutes.
Courts must construe statute to give meaning to all of its parts.
5. Trade Regulation.
Section of Trade Regulation and Practices Act which permitted commissioner of consumer affairs to
apply for injunction prohibiting person from continuing deceptive trade practices and section which
permitted district attorney to bring action in State's name for injunction against any person who was using,
had used or was about to use any deceptive trade practices, did not give court absolute discretion to take
any measure, including completely barring individual from engaging in business, necessary to prevent
fraud against public in form of deceptive trade practices. NRS 598.540, subd. 1, 598.570.
6. Trade Regulation.
Statutes proscribing use of deceptive trade practices clearly contemplate only injunctions against use of
such practices and not injunctions which prohibit individual from engaging in particular business or
occupation. NRS 598.540, subd. 1, 598.570.
OPINION
Appellants commenced an action alleging, inter alia, that respondents engaged in the use
of deceptive trade practices prohibited by the Trade Regulation and Practices Act, NRS Ch.
598. The district court dismissed that portion of appellants' complaint which requested
respondents be preliminarily and permanently enjoined from engaging in business activities
related to the sale, lease or repair of motor vehicles within the State of Nevada. This appeal
follows.
[Headnote 1]
1. Notwithstanding respondents' contention to the contrary, the district court's order is
appealable. NRCP 54(b)
1
requires the district court to make an express determination there
is no just reason for delay and an express direction for entry of judgment before an appeal
may be taken from an order dismissing a claim where more than one claim for relief is
presented. Here, the district court made the determination required by Rule 54(b). Therefore,
this appeal from the district court's order is properly before us. DeLuca Importing Co., Inc. v.
Buckingham Corp., 90 Nev. 158, 520 P.2d 1365 (1974).
____________________

1
NRCP 54(b) provides:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim,
cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final
judgment as to one or more but fewer than all of the claims or parties only upon an express determination that
there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such
determination and direction, any order or other form of decision, however designated, which adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any
of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry
of judgment adjudicating all the claims and rights and liabilities of all the parties.
2. Appellants, relying on NRS 598.540(1)
2
, contend the district court improperly
dismissed that portion of the complaint requesting an injunction. NRS 598.540(1) provides
that the commissioner of consumer affairs may apply for an injunction or temporary
restraining order prohibiting a person from continuing deceptive trade practices as
enumerated in NRS 598.410. The statute further provides: The court may make orders or
judgments necessary to prevent the use by such person of any such deceptive trade practices
or to restore to any other person any money or property which may have been acquired by
such deceptive trade practices. Appellants argue this language is a clear indication of
legislative intent to give the court absolute discretion to take any measure, including
completely barring an individual from engaging in a business, necessary to prevent fraud
against the public in the form of deceptive trade practices.
[Headnotes 2, 3]
Within its police power, the legislature may regulate commercial and business affairs in
order to promote the health, safety, morals and general welfare of its citizens and to protect its
citizens from injurious activities. Viale v. Foley, 76 Nev. 149, 350 P.2d 721 (1960). Pursuant
to this power, the legislature may regulate an otherwise legitimate business which, if
conducted improperly, is detrimental to the public, or it may prohibit a business activity
which is essentially injurious to the public welfare, provided such legislation is not prohibited
by the Constitutions of the United States or Nevada. Breard v. Alexandria, 341 U.S. 622
(1951); Frisbie v. United States, 157 U.S. 160 (1895); State ex rel. Sanborn v. Koscot
Interplanetary, Inc., 512 P.2d 416 (Kan. 1973); Koscot Interplanetary, Inc. v. Draney, 90 Nev.
450, 530 P.2d 108 (1974).
Although the Trade Regulation and Practices Act specifically prohibits the use of pyramid
promotional schemes, the
____________________

2
1. Notwithstanding the requirement of knowledge as an element of any practice enumerated in NRS
598.410 as a deceptive trade practice, when the commissioner has cause to believe that a person has
legislature has nowhere declared business activities engaged or is engaging in any of the practices
enumerated in NRS 598.410, knowingly or otherwise, he may apply for an injunction or temporary restraining
order, as provided in N.R.C.P. 65, prohibiting such person from continuing such practices. The court may make
orders or judgments necessary to prevent the use by such person of any such deceptive trade practice or to
restore to any other person any money or property which may have been acquired by such deceptive trade
practices.
legislature has nowhere declared business activities related to the sale, lease or repair of
motor vehicles to be essentially injurious to the public welfare or injuriously fraudulent. Nor
has it declared contracts and agreements relative to such business activities against public
policy and voidable. See Koscot Interplanetary, Inc. v. Draney, supra.
[Headnotes 4-6]
Courts must construe a statute to give meaning to all of its parts. Nevada State Personnel
Division v. Haskins, 90 Nev. 425, 529 P.2d 795 (1974); Herrick v. Herrick, 55 Nev. 59, 25
P.2d 378 (1933). Upon considering NRS 598.540(1) which permits the commissioner to
apply for an injunction prohibiting a person from continuing deceptive trade practices and
NRS 598.570
3
which permits the district attorney to bring an action in the state's name for an
injunction against any person who is using, has used or is about to use any deceptive trade
practices, we conclude the statutes proscribing the use of deceptive trade practices clearly
contemplate only injunctions against the use of such practices and not injunctions which
prohibit an individual from engaging in a particular business or occupation.
The district court's order dismissing that portion of the complaint requesting respondents
be enjoined from engaging in business activities related to the sale, lease or repair of motor
vehicles is affirmed.
4

Thompson, Gunderson, and Manoukian, JJ., and Hoyt, D. J., concur.
____________________

3
Notwithstanding the requirement of knowledge as an element of any practice enumerated in NRS 598.410
as a deceptive trade practice, and notwithstanding the enforcement powers granted to the commissioner pursuant
to NRS 598.360 to 598.640, inclusive, whenever the district attorney of any county has reason to believe that
any person is using, has used or is about to use any of the practices enumerated in NRS 598.410, knowingly or
otherwise, he may bring an action in the name of the State of Nevada against such person to obtain a temporary
or permanent injunction against such deceptive trade practices.

4
Mr. Justice Mowbray voluntarily disqualified himself and took no part in this decision. The Governor,
pursuant to Art. VI, 4 of the Constitution, designated District Judge Merlyn H. Hoyt to sit in his stead.
____________
93 Nev. 488, 488 (1977) Paradise Palms v. Paradise Homes
PARADISE PALMS COMMUNITY ASSOCIATION, a Nevada Non Stock Cooperative
Association, Appellant, v. PARADISE HOMES, a Nevada Corporation; IRWIN MOLASKY;
HARRY LAHR; MERV ADELSON, Respondents.
No. 8372
September 13, 1977 568 P.2d 577
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Appeal was taken from a decision of the district court entering summary judgment for
defendants on plaintiffs' claims for relief in a civil suit. The Supreme Court held that
summary judgment was properly entered.
Affirmed.
[Rehearing denied December 7, 1977]
Harry J. Mangrum, Jr., Las Vegas, for Appellant.
Lionel Sawyer Collins & Wartman, Las Vegas, for Respondents.
Where notice of appeal was premature, it did not divest trial court of jurisdiction to enter summary
judgment. NRAP 4(a).
Where, after appealing from court's ruling on venue motion, appellant made no demand or motion for
proceedings in trial court to be stayed, trial court was not deprived of jurisdiction to enter summary
judgment. NRAP 3A(b)(4).
3. Corporations.
Nothing in record supported claim that property of insolvent corporation had been transferred contrary to
law. NRS 78.625, subd. 2.
Record refuted contention that trial court in civil action refused to set hearing for plaintiff's motion to
admit out-of-state counsel and to disqualify defendant's counsel for conflict of interest.
5. Pretrial Procedure.
Trial court in civil action did not abuse its discretion in denying further discovery regarding
disqualification of trial judge. Const. art. 6, 4.
OPINION
Per Curiam:
Subsequent to our decision in Paradise Palms v. Paradise Homes, S9 Nev. 27
Homes, 89 Nev. 27, 505 P.2d 596 (1973), the trial court entered summary judgment for
respondents on appellant's remaining two claims for relief. Here, appellant asks us to reverse
because the trial court (1) lacked jurisdiction to enter summary judgment; (2) erred by
granting such judgment; and, (3) violated appellant's right to due process. The contentions are
without merit.
[Headnote 1]
1. Appellant first argues that a notice of appeal it had filed from an order denying a
change of venue divested the district court of jurisdiction to enter summary judgment.
Appellant had filed a notice of appeal on June 27, 1975, but the venue order appealed from
was not signed and entered by the court until July 8, 1975, the day summary judgment was
entered. See NRAP 4(a); NRCP 58(c). See also Fitzharris v. Phillips, 74 Nev. 371, 333 P.2d
721 (1958). Thus, the notice of appeal, being premature, did not divest the trial court of
jurisdiction to enter summary judgment. Cf. Wilmurth v. District Court, 80 Nev. 337, 393
P.2d 302 (1964).
[Headnote 2]
We also reject the argument that, under NRAP 3A(b)(4), the notice of appeal stayed all
proceedings in the trial court. After a ruling on the venue motion, the cited rule does provide
that on demand or motion . . . the judge . . . shall make an order staying the trial. . . . Here,
even if we assume there was a viable notice of appeal, appellant has failed to establish that it
made such a demand or motion.
[Headnote 3]
2. Appellant argues it was error to grant summary judgment because respondents were in
violation of NRS 78.625(2).
1
Other than the subjective statement of appellant's counsel,
there is absolutely nothing of record to support such a claim. See Dimond v. Linnecke, 87
Nev. 464, 469, 489 P.2d 93, 96-97 (1971), where we said: Before a transfer comes within
that subsection the record must show the insolvency of the corporation and the intent to
prefer the particular creditor to whom payment was made."
____________________

1
NRS 78.625(2) provides: 2. No conveyance, assignment or transfer of any property of any such
corporation by it or by any officer, director or stockholder thereof, nor any payment made, judgment suffered,
lien created or security given by it or by any officer, director or stockholder when the corporation is insolvent or
its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of
the corporation, shall be valid. Every person receiving by means of any prohibited act or deed any property of a
corporation shall be bound to account therefor to its creditors or stockholders.
that subsection the record must show the insolvency of the corporation and the intent to prefer
the particular creditor to whom payment was made. Due to the absence of either
circumstance, appellant's reliance on NRS 78.625(2) is misplaced.
[Headnotes 4, 5]
3. Finally, appellant contends the trial court violated its right to due process by (1)
refusing to set a hearing for its motion to admit out-of-state counsel and to disqualify
respondents' counsel for conflict of interest, and (2) not allowing time for discovery regarding
the disqualification of the trial judge. Appellant's first claim is without merit; both motions
were set for, and in fact heard on, June 27, 1975.
2
The only argument appellant makes in
support of its second claim is, in toto: District Court refused to permit adequate discovery
further violating Plaintiff's right to due process. After reviewing the record, we perceive no
abuse of the trial court's discretion in denying further discovery in the matter. See Jones v.
Bank of Nevada, 91 Nev. 368, 535 P.2d 1279 (1975).
Affirmed.
3

____________________

2
The first motion was denied due to the failure to comply with SCR 42. Appellant advanced no argument in
support of its second motion.

3
Mr. Justice Gunderson and Zenoff voluntarily disqualified themselves and took no part in this decision. The
Governor, pursuant to Art. VI, 4 of the Constitution, designated District Court Judges William P. Beko and
Stanley A. Smart to sit in their stead.
____________
93 Nev. 490, 490 (1977) Hayes v. Forman
THE HONORABLE KEITH C. HAYES, Judge, Department IX, of the Eighth Judicial
District Court of the State of Nevada, In and For the County of Clark, Petitioner, v. THE
HONORABLE WILLIAM N. FORMAN, Specially Assigned Judge to the
Eighth Judicial District Court of the State of Nevada, In and For the County
of Clark, Respondent.
No. 10012
September 16, 1977 568 P.2d 579
Original proceeding to compel respondent to restore petitioner as trial judge and to annul
disqualification order.
The Supreme Court held that fact that one attorney in probate proceeding had indicated
that the petitioning judge was extremely favorable towards the attorney's position for
religious reasons did not require disqualification on the basis of an appearance of
impropriety where the statement had been found to be patently false and where the
attorney had conceded the statement to be pure fabrication.
extremely favorable towards the attorney's position for religious reasons did not require
disqualification on the basis of an appearance of impropriety where the statement had been
found to be patently false and where the attorney had conceded the statement to be pure
fabrication.
Peremptory writ issued.
Rose, Edwards, Hunt & Pearson, Ltd., of Las Vegas, for Petitioner.
Oscar B. Goodman and Jerome L. Blut, of Las Vegas, for Will Contestant.
1. Judges.
Fact that attorney had made statement indicating that judge handling probate proceeding was extremely
favorable towards the attorney's position because the church to which the judge belonged would benefit
from probate of the will did not require disqualification of the judge on the basis of appearance of
impropriety where the statement was patently false and the attorney had conceded the statement to be pure
fabrication.
2. Judges.
Judge is not required to be disqualified where his conduct is beyond reproach and recusal is sought for
admittedly false statements of counsel.
OPINION
Per Curiam:
Following an evidentiary hearing conducted on charges of actual and implied bias made
against Judge Keith C. Hayes by Barbara Cameron who contests the purported Last Will of
Howard Robard Hughes, Jr., dated March 19, 1968, Judge William N. Forman disqualified
Judge Hayes from acting further in the matter and directed him to assign the cause to another
judge. This original proceeding was commenced to compel Judge Forman to restore Judge
Hayes as trial judge in that cause, and on August 25, 1977, we entered such an order. This
opinion is in explanation thereof.
[Headnote 1]
Judge Forman found no substance to the charge of actual bias. The charge of implied bias
rested primarily upon remarks by attorney and substitute executor Harold Rhoden. Rhoden
had said: He's a judge extremely friendly towards us and wants that will to be admitted, and
he'd welcome you with open arms . . . like a savior, because the guy's a Mormon . . . to save
this for his church.
save this for his church.
1
Rhoden conceded the statement to be pure fabrication. Judge
Forman found the statement to be patently false. Consequently, the basis for the charge of
implied bias did not exist.
Notwithstanding the absence of actual or implied bias on the part of Judge Hayes, he was
disqualified because an appearance of impropriety has been created even though the conduct
of the judge has been beyond reproach, and this, in the words of Judge Forman, even
though the appearance of impropriety was created by the misconduct of counsel rather than of
the Court.
[Headnote 2]
In Ham v. District Court, 93 Nev. 409, 566 P.2d 420 (1977), we recognized that there may
be circumstances where the appearance of impropriety may require disqualification if the
judge created that appearance. That decision, however, may not be read to countenance
disqualification where the judge's conduct is beyond reproach and recusal is sought for
admittedly false statements of counsel. Indeed, we find no authority supportive of ouster in
these circumstances.
For these reasons we ordered that Judge Hayes be restored as trial judge in case No. 7276
below.
____________________

1
Judge Hayes is a Mormon. The purported Last Will of Howard Robard Hughes dated March 19, 1968,
includes a bequest of one sixteenth to the Mormon Church. Whether that will is a forgery is the central issue of
the will contest.
____________
93 Nev. 492, 492 (1977) Palombo v. Sheriff
JAMES E. PALOMBO and LINDA ANN HOLLER, Appellants, v.
SHERIFF, CLARK COUNTY, NEVADA, Respondent.
No. 10091
September 19, 1977 568 P.2d 580
The Supreme Court held that: (1) transcript of grand jury proceeding, indicating that an
undercover agent allegedly purchased two packets of heroin from one petitioner for a stated
sum while petitioner was seated in driver's seat of automobile parked at a certain time and
place, was sufficient to establish probable cause that crime of selling a controlled
substance was committed and, hence, was sufficient to withstand petition for writ of
habeas corpus, but {2) mere physical presence of other petitioner in automobile during
time driver was allegedly engaged in illicit activity was insufficient to establish probable
cause that other petitioner made a "sale" of contraband.
establish probable cause that crime of selling a controlled substance was committed and,
hence, was sufficient to withstand petition for writ of habeas corpus, but (2) mere physical
presence of other petitioner in automobile during time driver was allegedly engaged in illicit
activity was insufficient to establish probable cause that other petitioner made a sale of
contraband.
Affirmed as to James E. Palombo.
Reversed as to Linda Ann Holler.
Crosby & Stein, Las Vegas, for Appellants.
1. Habeas Corpus.
Transcript of grand jury proceeding, indicating that an undercover agent allegedly purchased two packets
of heroin from defendant for a stated sum while defendant was seated in driver's seat of automobile parked
at a certain time and place, was sufficient to establish probable cause that crime of selling a controlled
substance was committed and, hence, was sufficient to withstand pretrial petition for writ of habeas corpus.
NRS 172.155, 453.161, 453.321.
2. Habeas Corpus.
Transcript of grand jury proceeding establishing that defendant was physically seated in passenger's seat
of automobile during time driver was engaged in selling a controlled substance, was insufficient in itself to
establish probable cause that defendant made a sale of contraband and, hence, was insufficient to
withstand pretrial petition for writ of habeas corpus. NRS 172.155, 453.161, 453.321.
OPINION
Per Curiam:
Pursuant to a True Bill by the Clark County Grand Jury an indictment was filed charging
James E. Palombo and Linda Ann Holler with selling a controlled substance (heroin), a
felony under NRS 453.321 and NRS 453.161.
A pretrial petition for a writ of habeas corpus contended there was insufficient legal and
competent evidence to establish probable cause that the crime was committed. Habeas was
denied and the same contention is reasserted in this appeal.
[Headnote 1]
The transcript of the grand jury proceeding establishes that about S:45 p.m.
about 8:45 p.m. September 9, 1976, an undercover agent employed by the Las Vegas
Metropolitan Police Department paid $70 to James E. Palombo for two (2) packets, which
were represented to contain heroin. Palombo completed the transaction from the driver's seat
of an automobile in the parking lot of a market located at Cambridge and Dumond Avenues
in Las Vegas. This evidence meets the probable cause test delineated in NRS 172.155, as to
Palombo.
The only testimony connecting Ms. Holler with the charged offense was that she was
physically seated in a passenger seat of the automobile during the time Palombo was engaged
in his illicit activity.
[Headnote 2]
The mere physical presence of Ms. Holler may subject her to some criminal charge;
however, we deem such presence, without more, insufficient to establish probable cause that
she made a sale of the contraband. See Egan v. Sheriff, 88 Nev. 611, 503 P.2d 16 (1972);
cf. Oxborrow v. Sheriff, 93 Nev. 321, 565 P.2d 652 (1977), and the cases cited therein.
Affirmed as to James E. Palombo.
Reversed as to Linda Ann Holler.
____________
93 Nev. 494, 494 (1977) Gorden v. Gorden
C. DOUGLAS GORDEN, Appellant, v. JANET
E. GORDEN, Respondent.
No. 8696
September 19, 1977 569 P.2d 397
Appeal from judgment, Ninth Judicial District Court, Churchill County; Noel E.
Manoukian, Judge.
In a divorce proceeding, the district court granted divorce and made an equal distribution
of the property under which wife was awarded a jointly held note and the value of additions
to residence, and husband appealed. The Supreme Court, Breen, D. J., sitting by designation,
held that: (1) case would not be reversed for failure to make necessary findings, but, rather, it
would be implied that such findings, which would not have been contrary to the evidence,
had been made, and (2) requiring husband to pay wife $2,100 for purposes of division of the
property was not error.
Affirmed.
Diehl, Recanzone & Evans and Mario G. Recanzone, Fallon, for Appellant.
Michael F. Mackedon, Fallon, for Respondent.
1. Divorce.
In divorce proceeding in which trial court made equal distribution of property and awarded wife jointly
held note and value of additions to residence, case would not be reversed for failure to make necessary
findings, but, rather, it would be implied that such findings, which were that husband had made gift of his
separate inheritance when he purchased notes and property and placed them in joint tenancy and that such
additions were not conditionally made by husband and which would not have been contrary to evidence,
had been made.
When separate funds of a spouse are used to acquire property in names of spouses as joint tenants, it is
presumed that a gift of one half of the value of a joint tenancy property was intended; such presumption is
overcome only by clear and convincing evidence.
Expenditure of separate funds to make additions or improvements to a spouse's separate property raises
presumption that husband intended to benefit wife's property.
4. Divorce.
Court may, in a divorce proceeding, make use of separate property of a spouse to make an equitable
adjustment of property which belongs to spouses.
5. Divorce.
In divorce proceeding in which equal distribution of property was made, requiring husband to pay wife
$2,100 for purposes of division of the property was not error.
Issue whether alimony statute was unconstitutional could not be considered on appeal from judgment in
divorce proceeding where trial court expressly denied alimony. NRS 125.150.
OPINION
By the Court, Breen, D. J.:
1

In his effort to disentangle Douglas and Janet Gorden from each other following the end of
their marriage, the trial judge granted a divorce, divided the property and made the following
finding: That the parties have various items of property, real and personal, which might
be classified as either community property, joint tenancy property or separate property,
and that whether same is community property or separate property and on the merits of
the case such property should be equitably divided as follows:
____________________

1
The Governor, pursuant to Article 6, Section 4, of the Nevada Constitution, designated the Honorable Peter
I. Breen, Judge of the Second Judicial District, to sit in place of the Honorable David Zenoff, Justice, who
voluntarily disqualified himself in this case.
That the parties have various items of property, real and personal, which might be
classified as either community property, joint tenancy property or separate property, and
that whether same is community property or separate property and on the merits of the
case such property should be equitably divided as follows:
Douglas complains of this finding. He says that he is denied an effective appeal because
the court did not clearly state its decision on what property was and was not found to be
separate property, community property and joint tenancy property.
At the time of the divorce, the parties had a residence, a lot in Fallon, a nine acre parcel
on the river, two secured promissory notes, some small bank accounts, automobiles and
other personal property. Janet had the residence from a prior marriage and title remained in
her name during her marriage to Douglas. Title to the rest of the real property and securities
was placed in joint tenancy. The residence was remodeled and improved with separate funds
Douglas received from an inheritance. The rest of the realty and promissory notes were also
acquired with these funds.
It is clear from the record that the trial judge made an equal distribution of all of the
property, both real and personal, using the increased net value of the home by reason of
mortgage payments and improvements, the joint tenancy property and all contributions by
way of installment payments. There is no other reasonable reading of the record. Janet
received benefits from Douglas's inheritance monies through the house improvements and the
investment purchases. She is not complaining of this method of division. Douglas complains,
primarily, because Janet received one of the jointly held notes and the value of the additions
to the residence as her share.
This court has held that in the absence of express findings, it will imply findings where the
evidence clearly supports the judgment. Hardy v. First Nat'l Bank of Nev., 86 Nev. 921, 478
P.2d 581 (1970); Pease v. Taylor, 86 Nev. 195, 467 P.2d 109 (1970).
[Headnote 1]
Where, as here, the court's decision is clearly supported by the record, we will not reverse
because the necessary findings will be implied. The necessary findings are that Douglas made
a gift of his separate inheritance when he purchased the notes and property and placed them
in joint tenancy; and, that the additions to the house were not conditionally made by Douglas.
There was very little evidence concerning the intent of the parties when entitling the
property in joint tenancy. Janet denied that any discussions took place and Douglas claimed
that there were discussions, the general drift of which was for the protection of his children.
2

[Headnote 2]
When separate funds of a spouse are used to acquire property in the names of the husband
and wife as joint tenants, it is presumed that a gift of one-half of the value of the joint tenancy
property was intended. The presumption is overcome only by clear and convincing evidence.
Giorgi v. Giorgi, 77 Nev. 1, 358 P.2d 115 (1961); Weeks v. Weeks, 72 Nev. 268, 302 P.2d
750 (1956); Peardon v. Peardon, 65 Nev. 717, 201 P.2d 309 (1948). The record before us
does not suggest clear and convincing proof to overcome the presumption. It clearly supports
the judgment of the trial court; therefore, the absent finding will be implied.
[Headnote 3]
The expenditure of separate funds to make additions or improvements to a spouse's
separate property raises the presumption that the husband intended to benefit the wife's
property. Hopper v. Hopper, 80 Nev. 302, 392 P.2d 629 (1964); Lombardi v. Lombardi, 44
Nev. 314, 195 P. 93 (1921).
There is no evidence in the record to rebut that presumption. Thus, while the
apportionment of these funds by the trial judge in his decision may be questionable from
Janet's standpoint, Douglas is in no position to claim reimbursement.
____________________

2
The only testimony from Douglas regarding the reasons for placing the property in joint tenancy was the
following exchange:
Q. Can you explain to me why the title was taken in joint tenancy?
A. At the time the marriage was going good, and my ex-wifeI didn't want her to be able to get control of
any of my property or money or things that I had, and I felt at that time that my children would be looked after if
something happened to me, and I thought the marriage was in good shape at the time, and I thought that this
would be a good way to protect them and me if something happened to me. I felt that she would be in control of
the property and could look after the children, and I knew that she would be through school, and so on.
Q. Did you ever discuss this with your wife?
A. Yes.
Q. And did you explain to her the reason why you were putting this property in joint tenancy?
A. I don't know if I used the term joint tenancy,' but this was the understanding that we had. That term
doesn't mean that much to me.
[Headnotes 4, 5]
The trial court required Douglas to pay Janet $2,100, expressly stating this was by way of
further division of the property of the parties and not by way of alimony. The court may
make use of separate property of a spouse to make an equitable adjustment of property which
does belong to the parties. This court has approved the use of separate funds as a set-off
against an indivisible asset or an asset which is impractical to divide and which the court can
divide. Johnson v. Johnson, 76 Nev. 318, 353 P.2d 449 (1960); Thorne v. Thorne, 74 Nev.
211, 326 P.2d 729 (1958). There is nothing in this portion of the division of which Douglas
may complain.
[Headnote 6]
Douglas has raised the contention that NRS 125.150, the alimony statute, is
unconstitutional. The trial court has expressly denied the award of alimony and we cannot
consider this question.
The judgment is affirmed.
Batjer, C. J., and Mowbray, Gunderson, and Thompson, JJ., concur.
____________
93 Nev. 498, 498 (1977) Lera v. Sheriff
LINDA LEE LERA, Appellant, v. SHERIFF,
No. 9988
September 19, 1977 568 P.2d 581
Defendant, who had been indicted for felonious sale of controlled substance, filed pretrial
petition for writ of habeas corpus. The district court found defendant's contentions to be
without merit, and defendant appealed. The Supreme Court held that: (1) statute relating to
evidentiary presumptions had no relevance to administrative procedure of setting time limit
for return of grand jury questionnaires; (2) fact that clerk's certification of list of prospective
grand jurors lacked oath or seal did not render certification defective; (3) fact that two of
eleven judges of Eighth Judicial District were absent during selection process did not violate
statute; and {4) empanelment of additional grand jury was not illegal.
selection process did not violate statute; and (4) empanelment of additional grand jury was
not illegal.
Appeal dismissed.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and Jerry
T. McGimsey, Deputy District Attorney, Clark County, for Respondent.
1. Grand Jury.
Statute relating to evidentiary presumptions had no relevance to administrative procedure of setting time
limit for return of grand jury questionnaires, and trial judge's practice of presuming that prospective jurors
who failed to return questionnaire within 15 days were unwilling to serve did not contravene statute. NRS
47.240.
2. Grand Jury.
Fact that clerk's certification of list of 100 prospective grand jurors lacked oath or seal did not render
certification defective.
3. Grand Jury.
Purpose of statute providing that each district judge in rotation according to seniority shall select one
name from the venire was to procure random selection from list and to prevent any one judge or fraction
[faction] from controlling selection process, and thus absence of two of the eleven judges of the Eighth
Judicial District during selection process did not violate statute. NRS 6.110, subd. 2.
4. Grand Jury.
Under statute providing that grand jury may be selected as often as public interest may require, county
may empanel as many grand juries as are necessary to deal with volume of criminal activity. NRS 6.110.
OPINION*
Per Curiam:
Indicted for the felonious sale of a controlled substance (heroin), in violation of NRS
453.321 and NRS 453.161, Linda Lee Lera filed a pretrial petition for a writ of habeas
corpus. By an unpublished order in case No. 9874, we dismissed Linda Lee Lera's previous
appeal from the order denying her petition because the petition did not comply with the
requirements imposed by NRS 34.370(2) and NRS 34.370(3).
____________________

*
This opinion was filed, as an unpublished order, September 1, 1977. Because of the paucity of published
authority on the issue we have been requested to publish the order as an opinion.
Thereafter, Ms. Lera filed a second petition for habeas which was compatible with the
statutory provisions and, after hearing, the district court again deemed Lera's contentions to
be without merit. This appeal follows.
Even if we assume the second habeas petition was permissible (see NRS
34.380(1)(c)(2)), this appeal is without merit.
Lera's claims in the district court, which are reasserted here, are that the indictment must
be dismissed because: (1) the grand jury was illegally constituted; and, (2) there was
insufficient evidence presented to the grand jury to establish that the substance she sold was,
in fact, heroin.
[Headnote 1]
1. Lera's attack on the legality of the grand jury is multifaceted. First, she points out the
chief trial judge created a conclusive presumption that prospective jurors who failed to
return the questionnaire, submitted to each of the potential jurors, within fifteen days were
unwilling to serve. The thrust of her claim is that the procedure contravenes NRS 47.240
which, she argues, delineates a complete and exclusive list of conclusive presumptions. We
reject the argument. The cited statute relates to evidentiary presumptions and has no
relevance whatsoever to the administrative procedure of setting a time limit for the return of
grand jury questionnaires.
2. Next, Lera argues the questionnaires sent by the judge went beyond the permissible
scope of inquiry, i.e., information relating to the qualifications of potential jurors. An
examination of the questionnaire indicates that this is simply not true. All the questions
complained of are relevant to the potential juror's competence and ability to serve.
[Headnote 2]
3. Lera also contends the clerk's certification of the list of 100 prospective grand jurors is
defective because it lacks an oath or seal. No authority for such a requirement is offered.
[Headnote 3]
4. Lera argues further that since two of the eleven judges of the Eighth Judicial District
were absent during the selection process, the mandatory language of NRS 6.110(2) has gone
unheeded. The statute provides, in part, that: each district judge in rotation according to
seniority shall select one name from the venire. The obvious purpose of the statute is to
procure a random selection from the list and to prevent any one judge or faction from
controlling the selection process. It is inconceivable to us that the absence of two of eleven
judges could upset this purpose.
inconceivable to us that the absence of two of eleven judges could upset this purpose. To so
hold would be to strain the literal meaning of the statute to the point of preventing its feasible
implementation. Cf. Western Pacific R. R. v. State, 69 Nev. 66, 241 P.2d 846 (1952).
[Headnote 4]
5. Finally, Lera contends the empanelment of a second, or additional, grand jury in Clark
County is illegal. NRS 6.110 provides that a grand jury may be selected as often as the
public interest may require. Policy considerations favor a construction of this phrase that
allows as many grand juries as are necessary to deal with the volume of criminal activity. See
State v. Loveless, 98 S.E.2d 773 (W.Va. 1957); State v. Price, 128 N.E. 173 (Ohio 1920). See
also Fed.R.Crim.P. 6(a) and Advisory Committee Note.
6. Lera's second attack on the indictment is rejected on the basis of NRS 172.135(1). See
Waid v. Sheriff, 88 Nev. 664, 504 P.2d 9 (1972), and cases cited therein. Accordingly, Lera's
contentions are deemed to be without merit and we
ORDER the appeal dismissed.
____________
93 Nev. 501, 501 (1977) Ward v. State
ROY DEAN WARD, Appellant, v. THE STATE
No. 8273
September 22, 1977 569 P.2d 399
Appeal from order denying motion to modify order of revocation, Eighth Judicial District
The Supreme Court held that: (1) defendant was not entitled to credit for the time spent in
county jail awaiting revocation, but (2) ambiguity in sentence would be construed in favor of
defendant so as to give him credit for the 153 days spent in jail as a condition of probation
before he was released on probation.
[Reporter's note: The opinion filed in Ward v. State on August 31, 1976, Advance Opinion
140, was recalled October 10, 1976.] Morgan D.
93 Nev. 501, 502 (1977) Ward v. State
Morgan D. Harris, Public Defender, and Thomas Leen, Deputy Public Defender, Clark
1. Criminal Law.
Following revocation of probation, defendant was not entitled to credit on his sentence for the 14 days he
was incarcerated in county jail awaiting revocation.
2. Criminal Law.
Ambiguity in sentence in which trial court ordered imprisonment for ten years, with that ten years being
suspended on condition that defendant spend one year in the county jail and the balance of the time being
on probation, but which also provided that, if probation were violated, the defendant would be sentenced to
the Nevada State Prison for the balance of the term would be construed in favor of defendant and he would
be given credit for the 153 days he had spent in jail before being released on probation.
OPINION
Per Curiam:
Roy Dean Ward entered a plea of guilty to robbery. When sentence was imposed the
district judge said:
It's the judgment and sentence of this Court, Mr. Ward, that you be sentenced to the
Nevada State Prison for a period of ten years. [NRS 200.380(2).
1
] Execution of that
sentence, however, is suspended.
You will be required to be confined in the Clark County Jail for a period of one year,
without credit for time served. The balance of time will be on probation.
And if you violate that probation during that period of time, you will be sent to the
Nevada State Prison for the balance of your term, nine years.
Ward served 153 days in the Clark County Jail as a condition of probation before the
district judge suspended the remainder of the one year term and ordered Ward released. NRS
176.205.
2
Ward failed to avail himself of the opportunity to reform and was subsequently
arrested for probation violation.
____________________

1
NRS 200.380(2): Every person who shall commit robbery shall be punished by imprisonment in the state
prison for not less than 1 year nor more than 15 years.

2
NRS 176.205: By order duly entered, the court may impose, and may at any time modify, any conditions
of probation or suspension of sentence. The court shall cause a copy of any such order to be delivered to the
parole and probation officer and the probationer.
93 Nev. 501, 503 (1977) Ward v. State
to reform and was subsequently arrested for probation violation. See NRS 176.215(1)-(2).
3
Probation was revoked and the original sentence of ten years reinstated. Ward moved to
amend the order of revocation to allow credit for (1) the fourteen days he was incarcerated
awaiting his revocation hearing and (2) the 153 days served in the county jail. The district
court denied the motion and this appeal was instituted.
[Headnote 1]
1. Ward contends that Anglin v. State, 90 Nev. 287, 525 P.2d 34 (1974), mandates that he
receive credit for the fourteen days he was incarcerated in the county jail awaiting revocation.
The Anglin rule does not apply to time spent in jail awaiting a revocation hearing.
[Headnote 2]
2. The sentence, as articulated by the district judge, was ambiguous. There is a dearth of
authority resolving the problem posed by an ambiguity in the sentence of a criminal
defendant. Here, we need not, and therefore do not, attempt to resolve the ambiguity. Neither
do we specifically decide whether an accused who has spent some time in jail as a condition
of probation may receive credit for that period of incarceration, after probation is revoked and
the original sentence is imposed. Cf. State v. District Court, 85 Nev. 485, 457 P.2d 217
(1969).
Under the unique circumstances of this case, the prisoner was entitled to rely upon a
favorable or advantageous construction of the ambiguous part of the sentence which, he
contends, led him to believe that he would receive credit for the time he has served in county
jail.
____________________

3
NRS 176.215(1)-(2): 1. The period of probation or suspension of sentence may be indeterminate or may
be fixed by the court and may at any time be extended or terminated by the court. Such period with any
extensions thereof shall not exceed 5 years.
2. At any time during probation or suspension of sentence, the court may issue a warrant for violating any
of the conditions of probation or suspension of sentence and cause the defendant to be arrested. Any parole and
probation officer or any peace officer with power to arrest may arrest a probationer without a warrant, or may
deputize any other officer with power to arrest to do so by giving him a written statement setting forth that the
probationer has, in the judgment of the parole and probation officer, violated the conditions of probation. The
parole and probation officer, or the peace officer, after making an arrest shall present to the detaining authorities
a statement of the charges against the probationer. The parole and probation officer shall at once notify the court
which granted probation of the arrest and detention of the probationer and shall submit a report in writing
showing in what manner the probationer has violated the conditions of probation.
93 Nev. 501, 504 (1977) Ward v. State
In resolving a similar problem, another court said:
The question here is not merely one of the intention of the judge imposing the
sentence, and the method of ascertaining it; it is also a question of the adequate
expression of that intent within acceptable standards of certainty in dealing with the
liberty and lives of those charged with violations of the law. Ex parte Parker, 35 S.E.2d
169, 172 (N.C. 1945).
The language in Parker seems particularly appropriate here. A reasonable person in the
shoes of Ward could, as Ward did, justifiably rely upon a favorable construction of the
particular sentence. Basic fairness requires giving the prisoner credit for the 153 days where,
as here, such reliance is coupled with the failure of the prosecutor to suggest that the judge
correct the ambiguity. See NRS 176.565; Singleton v. Sheriff, 86 Nev. 590, 471 P.2d 247
(1970). Accordingly, we reverse and instruct the district court to so modify the order of
revocation.
____________
93 Nev. 504, 504 (1977) Curtis v. State
GERALD M. CURTIS, Appellant, v. THE STATE
No. 9130
September 22, 1977 568 P.2d 583
Appeal from judgment of conviction, Second Judicial District Court, Washoe County,
John W. Barrett, Judge.
Defendant was convicted before the district court of first degree murder for death of
two-year-old child, son of woman with whom defendant was living, and he appealed. The
Supreme Court, Batjer, C. J., held that: (1) jury could reasonably conclude from testimony
presented that death resulted not from natural causes or accident but from blows afflicted
through criminal agency of another; (2) evidence was more than sufficient to support
conclusion that defendant inflicted multiple trauma to child's head after he had, with
deliberation and premeditation, formed specific intent to kill; (3) because no objection was
made to statements and case was free from doubt, the Supreme Court would not consider
defendant's complaint of alleged improper statements made by prosecutor during closing
argument; and {4) the Supreme Court was not directed to anything in record to support
defendant's claim that he was denied effective assistance of trial counsel.
complaint of alleged improper statements made by prosecutor during closing argument; and
(4) the Supreme Court was not directed to anything in record to support defendant's claim that
he was denied effective assistance of trial counsel.
Affirmed.
[Rehearing denied November 21, 1977]
William Dunseath, Public Defender, and Michael B. McDonald, Deputy Public Defender,
Washoe County, for Appellant.
1. Homicide.
In prosecution for first degree murder for death of two-year-old child, son of woman with whom
defendant was living, jury could reasonably conclude from testimony that child's death resulted from
subdural hematoma caused by multiple trauma to head, that multiple trauma consisted of repeatedly and
forcefully beating child's head either with a hand or against a flat surface such as a wall or floor, and that
due to rapid and extensive swelling of brain, trauma occurred shortly before child arrived at hospital, that
child's death resulted not from natural causes or accident, but rather from blows inflicted through criminal
agency of another.
2. Homicide.
In prosecution for first degree murder for death of two-year-old child, son of woman with whom
defendant was living, evidence was more than sufficient to support conclusion that defendant inflicted
multiple trauma to child's head after he had, with deliberation and premeditation, formed specific intent to
kill.
3. Homicide.
Premeditation and deliberation are questions of fact for jury.
4. Homicide.
Premeditation and deliberation may be ascertained or deduced from facts and circumstances of killing;
direct evidence is not required.
5. Criminal Law.
Because no objection was made to statements and case was free from doubt, the Supreme Court would
not consider, on appeal from first degree murder conviction, defendant's complaint of alleged improper
statements made by prosecutor during closing argument to jury.
6. Criminal Law.
The Supreme Court was not directed to anything in record to support defendant's claim that he was
denied effective assistance of trial counsel in first degree murder prosecution.
7. Criminal Law.
It is presumed that attorney has fully discharged his duties and this presumption can be
overcome only by strong and convincing proof to contrary.
this presumption can be overcome only by strong and convincing proof to contrary.
OPINION
A jury convicted Gerald M. Curtis of first degree murder for the death of a two
(2)-year-old child, the son of a woman with whom Curtis was living.
After sentence was imposed, Curtis appealed contending there was insufficient evidence to
establish that the child's injuries resulted from the criminal agency of another. He also argues
the crime lacked the magnitude of first degree murder because there was no evidence to show
a deliberate, premeditated, and willful homicide. Subordinate and omnibus claims of
prosecutorial misconduct and ineffective assistance of counsel are also advanced.
In September, 1975, Curtis commenced living with Maria Linda Butler and her two
children, Richard (age 3) and Kenneth, the deceased child. Shortly thereafter, Curtis assumed
the role of disciplinarian for the boys. The discipline included, among other things:
thumping the boys' heads at meal time; giving them cold showers for up to 20 minutes
when they defecated in their pants; making them stand at attention facing a wall for lengthy
periods of time; severely beating them with a belt; and, picking Kenneth up by the ears.
On October 16, 1975, Curtis had been unable to find employment, was agitated by a letter
from his mother, and had been drinking. At approximately 9:00 p.m., Maria Linda Butler left
the boys with Curtis while she went to the store. Some 15 to 20 minutes later, an ambulance
took Kenneth Todd Butler, unconscious and suffering from what later was established to be
cataclysmic head injuries, to the hospital. The child was immediately placed on
life-sustaining equipment, but never regained consciousness and was declared dead on
October 23, 1975.
[Headnote 1]
1. Appellant first contends there is insufficient evidence to support a finding that the
child's injuries resulted from the criminal agency of another. Medical testimony established,
inter alia, that: Kenneth's death resulted from subdural hematoma (clotting on the brain)
caused by multiple trauma to the head; the multiple trauma consisted of repeatedly and
forcefully beating the child's head either with a hand or against a flat surface such as a wall
or floor; and, due to the rapid and extensive swelling of the brain the trauma occurred
shortly before the child arrived at the hospital.
such as a wall or floor; and, due to the rapid and extensive swelling of the brain the trauma
occurred shortly before the child arrived at the hospital. From this testimony, the jury could,
and did, reasonably conclude that death resulted not from natural causes or accident but from
blows inflicted through the criminal agency of another. Sefton v. State, 72 Nev. 106, 295 P.2d
385 (1956); State of Nevada v. Plunkett, 62 Nev. 265, 149 P.2d 101 (1944).
[Headnotes 2-4]
2. We also reject appellant's argument that there is no evidence of a willful, deliberate,
and premeditated killing. In Payne v. State, 81 Nev. 503, 406 P.2d 922 (1965), we stated:
To make a killing deliberate as well as premeditated, it is unnecessary that the
intention to kill shall have been entertained for any considerable length of time. It is
enough if there is time for the mind to think upon or consider the act, and then
determine to do it. If, therefore, the killing is not the instant effect of impulseif there
is hesitation or doubt to be overcome, a choice made as a result of thought, however
short the struggle between the intention and the actit is sufficient to characterize the
crime as deliberate and premeditated murder. Id. at 508-509, 406 P.2d at 925-26.
Premeditation and deliberation are questions of fact for the jury. See State of Nevada v.
Loveless, 62 Nev. 312, 150 P.2d 1015 (1944). They may be ascertained or deduced from the
facts and circumstances of the killing; direct evidence is not required. See Dearman v. State,
93 Nev. 364, 566 P.2d 407 (1977). Here, the evidence is more than sufficient to support the
conclusion that appellant inflicted the multiple trauma to the child's head after he had, with
deliberation and premeditation, formed a specific intent to kill. See State v. Gee, 498 P.2d
662 (Utah 1972), an analogous factual situation.
[Headnote 5]
3. Appellant next complains of alleged improper statements made by the prosecutor
during closing argument to the jury.
1
Because no objection was made to the statements and
the case is free from doubt, we will not consider appellant's complaint.
____________________

1
In discussing the reliability of Mrs. Butler's testimony, the prosecutor stated:
What kind of woman loves a man who kills her children? The only greater bias, I think, is that of a person
who kills the child. . . . Maria Linda Butler comes into this court and says that although she previously said the
defendant abused her children, she said no,
the case is free from doubt, we will not consider appellant's complaint. Dearman v. State,
supra; Jackson v. State, 93 Nev. 28, 559 P.2d 825 (1977).
[Headnotes 6, 7]
4. Although Curtis concludes, in his in pro per supplemental brief, that he was denied
effective assistance of trial counsel, we have not been directed to anything in the record to
support such a claim. It is presumed an attorney has fully discharged his duties and this
presumption can be overcome only by strong and convincing proof to the contrary. See Cutler
v. State, 93 Nev. 329, 566 P.2d 809 (1977).
Affirmed.
____________________
he didn't abuse my children. . . . A very interesting lady. Brainwashed? I think that was the best description of
the whole relationship. This man was a tyrant. He took over the body, souls and minds of those people, and he
terrified Todd Butler.
The prosecutor also stated:
State's N, ladies and gentlemen, a pair of little shoes, little sneakers, Todd's little sneakers. We sometimes
forget. We talk about Todd Butler, something of a sort of impersonal picture of him. . . . [T]he physical
evidence, ladies and gentlemen, shows that this two-year-old standing there quivering in his shoes received
multiple blunt trauma of extreme force. . . . Little Todd isn't here in these shoes to tell you ladies and gentlemen
what happened. We have to put it together for ourselves. . . . Ladies and gentlemen, you are the conscience of
this community, the guardians of our children. I don't ask you to convict this man because a child is dead. . . . I
ask you to find him guilty, ladies and gentlemen, because of the evidence that is overwhelming that on October
16, 1975, this man is [sic] a foul, filthy, rotten, brooding mood got angry and emptied these shoes forever.
____________
93 Nev. 509, 509 (1977) Sheriff v. Miller
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v. CARL EUGENE
MILLER Jr., and BUFFORD STUBBS, Respondents.
No. 9773
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v. CARL EUGENE
MILLER, Jr., and BUFFORD STUBBS, Respondents.
No. 9775
September 22, 1977 569 P.2d 401
Appeals from orders granting petitions for writs of habeas corpus, Eighth Judicial District
Writs of habeas corpus were granted to defendants charged with cheating at gambling and
possession of a cheating device by the district court and state appealed. The Supreme Court
held that the statute prohibiting, inter alia, cheating at gambling and possession of cheating
devices, as amended by 1973 legislation, concerns only one general subject, which is
indicated by its title, and thus statute did not violate mandate of State Constitution that each
law enacted by Legislature shall embrace but one subject, which shall be briefly expressed in
its title.
Reversed.
Robert List, Attorney General, A. J. Hicks and Jeffrey N. Clontz, Deputy Attorneys
General, Carson City; George E. Holt, District Attorney, and H. Douglas Clark, Deputy
District Attorney, Clark County, for Appellant.
George E. Franklin, Las Vegas, for Respondents.
Statutes.
Statute prohibiting, inter alia, cheating at gambling and possession of cheating devices, as amended by
1973 legislation, concerns only one general subject, which is indicated by its title, and thus does not violate
mandate of section of State Constitution providing that laws enacted by Legislature shall embrace but one
subject, which shall be briefly expressed in its title. NRS 465.080; Const. art. 4, 17.
OPINION
Per Curiam:
In separate cases, which have been consolidated on appeal, respondents Miller and
Stubbs were charged by criminal complaint with cheating at gambling and possession of a
cheating device, felony violations of NRS 465.0S0.1 Preliminary examinations were
waived and informations were filed in the district court.
respondents Miller and Stubbs were charged by criminal complaint with cheating at gambling
and possession of a cheating device, felony violations of NRS 465.080.
1
Preliminary
examinations were waived and informations were filed in the district court.
After their motions to dismiss the charges were denied, respondents petitioned the district
court for writs of habeas corpus alleging Chapter 355 of the 57th (1973) Session of the
Nevada Legislature, which amended NRS 465.080, embraced more than one subject, failed to
state that subject in the title and, thus, violated the mandate of article 4, section 17 of the
Nevada Constitution.
2
The district judge, without stating any reason therefor, granted
respondents' petition and the state has appealed.
In our view, the provisions of NRS 465.080, which were amended by the 1973 legislation,
concern but one general subject, which is indicated by the title. The central content of the title
states that the act contains changes relating to crimes against slot machines and vending
machines; increasing the penalty for certain crimes against slot machines; authorizing gaming
licensees to detain and question persons suspected of swindling; . . ."
____________________

1
1. It is unlawful for any person playing any licensed gambling game:
. . .
(b) To employ or have on his person any cheating device to facilitate cheating in such games.
2. It is unlawful for any person, in playing or using any slot machine designed to receive or be operated by
lawful coin of the United States of America:
. . .
(b) To use any cheating or thieving device, including but not limited to tools, drills, wires, coins attached to
strings or wires or electronic or magnetic devices, to unlawfully facilitate aligning any winning combination or
removing from any slot machine any money or other contents thereof.
3. It is unlawful for any person, not a duly authorized employee, to have on his person or in his possession
while on the premises of a licensed gaming establishment any cheating or thieving device, including, but not
limited to, tools, wires, drills, coins attached to strings or wires, electronic or magnetic devices to facilitate
removing from any slot machine any money or other contents thereof.

2
Nev. Const. art. 4, 17, provides:
Each law enacted by the Legislature shall embrace but one subject, and matter, properly connected
therewith, which subject shall be briefly expressed in the title; and no law shall be revised or amended by
reference to its title only; but, in such case, the act as revised or section as amended, shall be re-enacted and
published at length.
swindling; . . . Those changes were made and they are logically germane to the subjects
expressed in the title; thus, they do not contravene article 4, section 17 of our Constitution.
See State ex rel. Brennan v. Bowman, 89 Nev. 330, 512 P.2d 1321 (1973); In Re Calvo, 50
Nev. 125, 253 P. 671 (1927); State v. Com's Humboldt Co., 21 Nev. 235, 29 P. 974 (1892);
Ex-parte Livingston, 20 Nev. 282, 21 P. 322 (1889).
The district court order is reversed.
____________
93 Nev. 511, 511 (1977) Davis v. Sheriff
DAVID LEWIS DAVIS, Appellant, v. SHERIFF,
No. 10113
September 22, 1977 569 P.2d 402
The Supreme Court held that even though requested, magistrate was not required to
conduct a closed preliminary hearing, absent an abuse of discretion.
Affirmed.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and Jerry
T. McGimsey, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Even though requested, magistrate was not required to conduct a closed preliminary hearing, absent an
abuse of discretion. NRS 171.204.
OPINION
Per Curiam:
After being ordered to stand trial for robbery (NRS 200.380), and attempted robbery (NRS
200.380; NRS 208.070), David Lewis Davis petitioned for habeas corpus, the thrust of which
contended the charges must be dismissed because, although requested, the magistrate
refused to conduct a closed preliminary hearing.
93 Nev. 511, 512 (1977) Davis v. Sheriff
which contended the charges must be dismissed because, although requested, the magistrate
refused to conduct a closed preliminary hearing. Habeas was denied and Davis has appealed.
Davis argues that under our decision in Azbill v. Fisher, 84 Nev. 414, 442 P.2d 916
(1968), a closed hearing was mandatory, if requested, thus we are compelled to reverse.
Indeed, Azbill did so hold; however, the statute under which Azbill was decided (NRS
171.204) was subsequently amended and now provides that a closed hearing is discretionary.
1
See Stats. of Nev. 1969, ch. 364, p. 628. Here, Davis does not suggest that the magistrate's
refusal to exclude the witnesses and conduct a closed hearing constituted an abuse of
discretion; therefore, we affirm.
____________________

1
NRS 171.204 now provides:
The magistrate may, upon the request of the defendant, exclude from the examination every person except
his clerk, the prosecutor and his counsel, the attorney general, the district attorney of the county, the defendant
and his counsel, the witness who is testifying, the officer having the defendant or a witness in his custody, and
any other person whose presence is found by the magistrate to be necessary for the proper conduct of the
examination. (Emphasis added.)
____________
93 Nev. 512, 512 (1977) Damus v. County of Clark
CHARLES M. DAMUS, Appellant, v. THE COUNTY OF CLARK, a Legal Subdivision of
the State of Nevada; THALIA DONDERO, ROBERT BROADBENT, DAVID CANTER,
RICHARD RONZONE, JACK PETITTI, MANUEL CORTEZ, and SAM BOWLER,
Constituting Both the Duly Elected Board of County Commissioners and the Duly
Constituted Board of Hospital Trustees; and the SOUTHERN NEVADA MEMORIAL
HOSPITAL, a County Hospital Duly Created By Law, Respondents.
No. 10054
September 28, 1977 569 P.2d 933
Appeal from declaratory judgment. Eighth Judicial District Court, Clark County; Keith C.
Hayes, Judge.
Plaintiff commenced class action for declaratory relief challenging validity of county
commissioners' enactment of ordinance authorizing, without electoral approval, issuance and
sale of general obligation bonds pursuant to statute providing that any county with
population over 200,000 may issue without voter approval not only special obligation
bonds but also general obligation bonds for benefit of county hospital, payable from taxes
and secured by hospital operating and other revenues.
sale of general obligation bonds pursuant to statute providing that any county with population
over 200,000 may issue without voter approval not only special obligation bonds but also
general obligation bonds for benefit of county hospital, payable from taxes and secured by
hospital operating and other revenues. The district court entered judgment in favor of
commissioners, and plaintiff appealed. The Supreme Court, Manoukian, J., held that: (1)
statute is not special or local law regulating county business in violation of Constitution, and
use of population as qualifying criterion is permissible; (2) statute has rational basis for
classification differentiating between classes as to right to vote on bond issues and thus is not
in violation of equal protection; and (3) general obligation bond commission's waiving
statutory reporting requirement did not invalidate proceedings approving bond issuance.
Affirmed.
[Rehearing denied October 26, 1977]
Franklin, Bixler, & Damus, Las Vegas, for Appellant.
George E. Holt, District Attorney, James M. Bartley, Deputy District Attorney; and Robert
L. Petroni, Las Vegas, for Respondents.
Every act passed by legislature is presumed by judiciary to be constitutional.
2. Statutes.
Use of population as qualifying criterion in statute, providing that any county with population over
200,000 may issue without voter approval not only special obligation bonds but also general obligation
bonds for benefit of county hospital, payable from taxes and secured by hospital operating and other
revenues, was permissible, even though statute might presently apply only to state's largest county, since if
there were other counties with population over 200,000 statute would then also apply, and thus statute is
not in violation of Constitution by being local or special law. NRS 450.290, subd. 2; Const. art. 4,
20, 21, 25.
Claimed right to vote on bond issues was not preserved or retained by people in either State or Federal
Constitutions, and thus only a reasonable basis for statutory classification differentiating between classes as
to right to vote on bond issues was necessary in order to hold statute not in violation of equal protection.
NRS 450.290, subd. 2; U.S.C.A.Const. Amend. 14.
4. Statutes.
Legislature, having once established bond issuance procedure, retains right to subsequently
modify that procedure subject to constitutional limitations.
retains right to subsequently modify that procedure subject to constitutional limitations. NRS 450.290,
subd. 2; U.S.C.A.Const. Amend. 14.
Where provision of law will serve to further welfare of citizens of state, court must make every
intendment in favor of validity of act.
6. Constitutional Law; Counties.
Statute, providing that any county with population over 200,000 may issue without voter approval not
only special obligation bonds but also general obligation bonds for benefit of county hospital, payable from
taxes and secured by hospital operating and other revenues, has rational basis for classification
differentiating between classes as to right to vote on bond issues, and thus voters in those counties now or
hereafter qualifying are not denied equal protection should their county elect to circumvent electoral
authorization, since all members of each county within class have equal rights under statute. NRS
450.290, subd. 2; U.S.C.A.Const. Amend. 14.
7. Counties.
General Obligation Bond Commission's waiving statutory reporting requirement as to current and
contemplated general obligation debt and current and contemplated bond issuance and retirement schedules
did not invalidate proceedings approving bond issue, since bond commission was fully informed
concerning county's fiscal condition and plans. NRS 350.0035.
OPINION
On May 7, 1977, the Nevada Legislature enacted Chapter 403 of the Session Laws which
amended Section 450.290 of the Nevada Revised Statutes pertaining to the issuance of bonds
to benefit county hospitals. Specifically, the new law principally amended subsection 2 of that
statute which, prior to amendment, had provided that any county with a population in excess
of 200,000, could issue, without voter approval, special obligation municipal securities
payable solely from the gross or net revenues derived from the operation of the hospital.
As amended, subsection 2 now not only provides authority for such counties to issue
special obligation bonds but further provides authority for those counties to issue general
obligation bonds payable from taxes with payment being secured by a pledge of revenue
from the operation of the hospital.
93 Nev. 512, 515 (1977) Dumas v. County of Clark
a pledge of revenue from the operation of the hospital. A full reading of the amended
legislation is set forth in the footnote.
1

On June 27, 1977, the General Obligation Bond Commissioners of Clark County approved
the bond issue of $12,400,000.00 for capital expenditures relating to the modernizing of the
Southern Nevada Memorial Hospital, a county and nonproprietary facility. The next day, the
individual respondents, acting in their official capacity as County Commissioners, enacted an
ordinance authorizing, without electoral approval, the issuance and sale of general obligation
bonds pursuant to the amended statute.
Thereafter, appellant Damus commenced a class action for declaratory relief challenging
the validity of respondents' enactment of the ordinance. In the court below, appellant alleged
the ordinance to be invalid, contending Chapter 403 constitutes special and local legislation,
being in derogation of the Nevada Constitution; claiming that the ordinance was invalid
because Chapter 403 violates the principles of equal protection guaranteed by the
Fourteenth Amendment of the United States Constitution; and alleging procedural
deficiencies in the preliminary bonding proceedings.
____________________

1
NRS 450.290. Issuance of general obligation bonds; pledge of gross, net revenues.
1. Subject to the provisions of NRS 450.010 to 450.510, inclusive, for any hospital project stated in a bond
question approved as provided in NRS 350.070, the board of county commissioners, at any time or from time to
time, in the name and on behalf of the county, may issue:
(a) General obligation bonds, payable from taxes, and
(b) General obligation bonds, payable from taxes, which payment is additionally secured by a pledge of gross
or net revenues derived from the operation of the hospital facilities, and, if so determined by the board of county
commissioners, further secured by a pledge of gross or net revenues derived from any other income-producing
project of the county or from any license or other excise taxes levied by the county for revenue, as may be
legally made available for their payment.
2. The board of county commissioners of any county having a population of 200,000 or more, as determined
by the last preceding national census of the Bureau of Census of the United States Department of Commerce, in
the name and on behalf of the county, may issue, for any hospital project, without the securities being authorized
by election:
(a) Special obligation municipal securities payable solely from net revenues or gross revenues derived from
the operation of hospital facilities.
(b) General obligation bonds, payable from taxes, which payment is additionally secured by a pledge of gross
or net revenues derived from the operation of hospital facilities. The board of county commissioners may use for
the payment of principal or interest of such bonds, or both, any other revenue available to the county. Bonds may
be issued under the authority of this paragraph only if their principal amount, plus the principal amount of any
previously so issued, does not exceed 1 percent of the assessed valuation of all taxable property in the county.
invalid because Chapter 403 violates the principles of equal protection guaranteed by the
Fourteenth Amendment of the United States Constitution; and alleging procedural
deficiencies in the preliminary bonding proceedings.
After a trial to the court, without a jury, the district court, having made findings of fact and
conclusions of law, entered judgment in favor of respondents, upholding the challenged
legislation as constitutional in all respects. Damus appeals from that judgment.
1. Whether Chapter 403 constitutes special and local legislation.
Appellant argues that Chapter 403 is special and local legislation violative of the Nevada
Constitution. We disagree. State of Nevada ex rel. Clarke v. Irwin, 5 Nev. 111, 121 (1869),
defined local legislation as operating over a particular locality instead of over the whole
territory of the State and defined special legislation as pertaining to a part of a class as
opposed to all of a class.
[Headnote 1]
It has long been the law of this State that all presumptions by the judiciary are in favor of
legislative enactments. City of Las Vegas v. Ackerman, 85 Nev. 493, 457 P.2d 525 (1969);
Ormsby County v. Kearney, 37 Nev. 314, 142 P. 803 (1914). Additionally, every act passed
by the legislature is presumed to be constitutional. T. & G. R. R. Co. v. Nev. Cal. T. Co., 58
Nev. 234, 75 P.2d 727 (1938). Appellant, in order to successfully assail this legislation, must
make a clear showing of its invalidity. McGowan v. Maryland, 366 U.S. 420 (1961); Turner
v. Fogg, 39 Nev. 406, 159 P. 56 (1916).
[Headnote 2]
Our Constitution forbids the passage of a local or special law regulating county or
township business. Nev. Const. Art. 4, Sec. 20. Such a law must be general and of uniform
operation throughout the state. Nev. Const. Art. 4, Sec. 21. Further, county and township
government shall be uniform throughout the State. Nev. Const. Art. 4, Sec. 25.
Appellant interprets the foregoing constitutional provisions as requiring uniformity in
bond issuance on behalf of county hospitals. Indeed, he argues, subsection 1 of NRS 450.290
is general and uniform legislation, as it requires approval of the bond issuance by electoral
authorization pursuant to NRS 350.070. The only difference between subsections 1 and 2 of
NRS 450.290, as amended, is that in subsection 2 any county with a population over
200,000 may issue without voter approval not only special obligation bonds but also
general obligation bonds payable from taxes and secured by hospital operating and other
revenues.
NRS 450.290, as amended, is that in subsection 2 any county with a population over 200,000
may issue without voter approval not only special obligation bonds but also general
obligation bonds payable from taxes and secured by hospital operating and other revenues.
Appellant contends that because only Clark County currently has the requisite population,
this is patent local and special legislation. He argues that the population requirement is a mere
subterfuge to avoid outright identification of Clark County as the sole beneficiary of the
legislation. It is arguable that respondents have provided substance to appellant's argument by
eliciting testimony below that, in Nevada, only in Clark County does the county hospital have
to compete with private, profit-making facilities. Respondents claim that the benefit of the
subject legislation is needed so that the county hospital can successfully compete for quality
staff and service personnel and accommodate the large population with more facilities and
sophisticated equipment. These facts are just as consistent with respondents' position. We
have long upheld, as constitutional, statutes authorizing bond issues for specific counties for
purposes particular and peculiar to those counties, reasoning that such statutes were not laws
regulating county business and thus not violative of Article 4, Section 20. Cauble v.
Beemer, 64 Nev. 77, 177 P.2d 677 (1947); Conservation District v. Beemer, 56 Nev. 104, 45
P.2d 779 (1935).
That is precisely the case before us.
In the Conservation District case, this Court held that:
It is the general rule, under such provisions as those of sections 20 and 21 of article 4
of the state constitution, that if a statute be either a special or local law, or both, and
comes within any one or more of the cases enumerated in section 20, such statute is
unconstitutional; if the statute be special or local, or both, but does not come within
any of the cases enumerated in section 20, then its constitutionality depends upon
whether a general law can be made applicable. (Court's emphasis.)
Id. at 116, 45 P.2d at 782.
Moreover, the use of population as a qualifying criterion is permissible. Fairbanks v.
Pavlikowski, 83 Nev. 80, 423 P.2d 401 (1967); Viale v. Foley, 76 Nev. 149, 350 P.2d 721
(1960); Compare State v. Donovan, 20 Nev. 75, 15 P. 783 (1887); cf. State v. Boyd, 19 Nev.
43, 5 P. 735 (1885). In the instant case, the classification scheme remains open and any
other county reaching the minimum qualifying figure will be entitled to exercise the
authority granted by the statute.
the instant case, the classification scheme remains open and any other county reaching the
minimum qualifying figure will be entitled to exercise the authority granted by the statute.
Respondents state that the latest reliable population estimate for Washoe County is
approximately 171,000. It appears possible, or even probable, that Washoe County may
qualify under the new law's classification at the time of publication of the 1980 census. In
Fairbanks, supra, this Court relied on the classification of townships according to U.S.
Census figures rather than the more recent, actual statistics. We acknowledge that population
classifications are more easily justified when, for example, the number of elected public
officials, as opposed to the situation presently before us, is to be determined relative to
population minimums and/or maximums (see NRS 4.020 and NRS 244.010 et seq.,
concerning justices of the peace and county commissioners, respectively), nevertheless an act
should not be declared void because there may be a difference of opinion as to its wisdom.
These are questions for the legislature, not the courts. Turner v. Fogg, supra, Fairbanks,
supra. The fact the law might apply only to Clark County is of no consequence, for if there
were others, the statute would then also apply. It therefore conforms to the constitutional
mandates that there shall be no local or special laws, and that general laws shall have uniform
operation. Nev. Const. Art. 4, Secs. 20 and 21; Cauble v. Beemer, 64 Nev. 77, 177 P.2d 677
(1947). Fairbanks, supra, at 83, 423 P.2d at 403.
Here, the basis for the legislation to permit populous counties more flexibility in acquiring
bond approval is rational and will be upheld.
2. Whether Chapter 403 violates equal protection.
[Headnotes 3, 4]
Appellant next argues that the statute as amended withdraws the power of electoral
approval over bond issuance from the voters of Clark County, and as such unconstitutionally
differentiates them from the class of voters in other counties. This argument is not persuasive.
There is no constitutional right to vote on bond issues within this State. Pope v. Williams,
193 U.S. 621 (1904). It was not set forth in either the United States or the Nevada
Constitutions. This claimed right was not preserved or retained by the people. A fortiori, only
a reasonable basis for a classification which might differentiate between certain classes as to
that voting right need be found. Board of Commissioners v. Board of Trustees, 325 N.E.2d
4S2 {Ind.
482 (Ind. 1975). Whatever right obtains is derived through the legislature, NRS 350.020, as
bond elections are creatures of statute. The legislature, having once established the
bond-issuance procedure, retains the right to subsequently modify that procedure subject, of
course, to constitutional limitations.
Here, only the largest county(s) in the State is relieved of holding a bond election. The
findings of fact, matters of common knowledge, and/or facts which may be judicially noticed
cause this Court to determine that Nevada's larger and more populous county(s) faces
demands of rapid growth and encounters diversified kinds of problems and needs in fulfilling
the obligation of county hospital services than a rural county. There exists greater needs for
more sophisticated services and specialized equipment, a need for more emergency treatment
facilities, and the like. Clearly, Clark County must be in a position to attract and retain
competent medical staff, particularly since the Southern Nevada Memorial Hospital is the
county's only non-proprietary institution.
Further, the different authorizations for financing have a rational basis and thus are not
arbitrary or unreasonable. Cf. City of Phoenix v. Kolodziesjki, 399 U.S. 204 (1970) (where
only real property taxpayers were allowed to vote on general obligation bonds); Cipriano v.
City of Houma, 395 U.S. 701 (1969) (only property taxpayers were allowed to vote on
revenue bonds).
[Headnote 5]
Where a provision of law will serve to further the welfare of the citizens of the State, the
court must make every intendment in favor of the validity of the act. State v. Payne, 53 Nev.
193, 295 P. 770 (1931). Furthermore, considering this in conjunction with the facts justifying
the distinguishment cause us to conclude that the legislative objective is valid. See, McGowan
v. Maryland, 366 U.S. 420 (1961).
[Headnote 6]
There is no evidence that the legislature has acted arbitrarily or capriciously in attempting
to permit a class of counties meeting specific, objective population qualifications the option
of not obtaining electoral approval for a proposed bond issuance. The statute in question does
not provide for differential voting rights on the same issue, nor allow voting rights'
discrimination within the class. Appellant ignores the fact that all members of each county(s)
within the class have equal rights under this statute.
under this statute. The voters in those counties now or hereafter qualifying are not denied
equal protection should their county elect to circumvent electoral authorization. Cantwell v.
Hudnut, 419 F.Supp. 1301 (S.D. Ind., 1976); Lindauer v. Oklahoma City Urban Renewal
Auth., 496 P.2d 1174 (Okla. 1972).
[Headnote 7]
Finally, appellant contends that the General Obligation Bond Commission failed to
comply with certain provisions of NRS 350.001 et seq., and its action was therefore void. The
relevant section reads: NRS 350.0035. Each governing body of a political subdivision which
has issued or contemplates issuing general obligation bonds shall submit to the commission,
at least thirty days prior to its annual meeting in July, a complete statement of current and
contemplated general obligation debt and a report of current and contemplated bond issuance
and retirement schedules.
Notwithstanding our Lindauer
2
concerns, because of the exigencies present here, we have
determined to treat this issue. The reporting requirement was waived by the Bond
Commission, and we understand this to have been a general practice followed by the
Commission. Appellant suggests the report is jurisdictional and mandatory and that the
failure invalidates the proceedings; however, in these circumstances, with the Bond
Commission being fully informed concerning Clark County's fiscal condition and plans (this
being the doubtless legislative intent), we determine this contention to be without merit. State
ex rel. Springmeyer v. Brodigan, 35 Nev. 35, 126 P. 680 (1912).
The judgment of the lower court is affirmed.
Batjer, C. J. and Mowbray and Thompson, JJ., concur.
I concur in the result.
____________________

2
Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851 (1969) (holding: This court can only consider the record as
it was made and considered by the court below. . . .).
____________
93 Nev. 521, 521 (1977) Adler v. State
NAT ADLER, Appellant, v. THE STATE
No. 9744
October 5, 1977 569 P.2d 403
Application for stay of judgment pending appeal; Eighth Judicial District Court, Clark
County; Carl J. Christensen, Judge.
Defendant was convicted in the district court of felony offense of attempting to obtain
money under false pretenses and he applied for stay of judgment pending appeal and alleged
that failure to grant stay would precipitate loss of his elective office. The Supreme Court held
that: (1) there was no statute allowing stay under the circumstances, and (2) stay in criminal
proceeding can affect only execution of sentence and not underlying judgment.
Application denied.
Harry E. Claiborne and Annette R. Quintana, Las Vegas, for Appellant.
Robert R. List, Attorney General, Carson City; George E. Holt, District Attorney, and
Elliott Sattler, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
There was no such statutory authority for Supreme Court to grant stay of judgment pending appeal from
conviction of felony offense of attempting to obtain money under false pretenses. NRS 177.095 et seq.,
205.380, 208.070; NRAP 8(a).
2. Criminal Law.
Even in circumstances where stay in criminal proceeding can be granted, stay can affect only executions
of sentence and not underlying judgment. NRS 177.095 et seq., 177.105-177.125.
3. Criminal Law.
Even if defendant could have obtained stay of judgment for felony offense of attempting to obtain money
under false pretenses, the stay would affect only the execution of the sentence and not the underlying
judgment, so that a stay would not entitle defendant to retain elective office. NRS 177.095 et seq.,
205.380, 208.070; NRAP 8(a).
OPINION
Per Curiam:
Following a jury trial, applicant Nat Adler was found guilty of the felony offense of
attempting to obtain money under false pretenses {NRS 205.3S0; NRS 20S.070), resulting
in his being sentenced to imprisonment in the Nevada State Prison for a period of three
years.
93 Nev. 521, 522 (1977) Adler v. State
of the felony offense of attempting to obtain money under false pretenses (NRS 205.380;
NRS 208.070), resulting in his being sentenced to imprisonment in the Nevada State Prison
for a period of three years. The sentence was suspended, and Adler was placed on probation
for an indeterminate period of time not to exceed five years. Applicant now moves this
Court for a stay of judgment pursuant to NRAP 8(a)
1
and NRS 177.095 et seq., infra.
In his Petition for Stay, Adler specifies two issues for our determination: (a) lack of
substantial evidence to support the conviction and (b) it was error for the trial judge to refuse
to instruct the jury with respect to the applicant's reliance on the advice of counsel. He
maintains that if either issue is determined in the affirmative, he is entitled to the stay.
Compare, State v. McFarlin, 41 Nev. 105, 167 P. 1011 (1917). For the reasons hereinafter
expressed, we do not reach these issues.
Adler's intent to retain his public office represents the basic thrust of his application.
Applicant contends that a failure to grant a stay in this matter would precipitate defendant's
loss of the office to which he was elected. He bases his argument on the theory that a stay in
the criminal proceedings affects not only the sentence but the underlying judgment. He
further suggests that [t]here are no limitations whatever on the authority of . . . the Court to
grant a stay. We disagree with both contentions.
[Headnote 1]
Our discretion to grant stays in criminal proceedings is governed by statute, and those
cases in which we may exercise any discretion at all are limited.
____________________

1
NRAP 8(a) provides as follows: Application for a stay of the judgment or order of a district court pending
appeal, or for approval of a supersedeas bond, or for an order suspending, modifying, restoring, or granting an
injunction during the pendency of an appeal must ordinarily be made in the first instance in the district court. A
motion for such relief may be made to the Supreme Court or to a justice thereof, but the motion shall show that
application to the district court for the relief sought is not practicable, or that the district court has denied an
application, or has failed to afford the relief which the applicant requested, with the reasons given by the district
court for its action. The motion shall also show the reasons for the relief requested and the facts relied upon, and
if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies
thereof. With the motion shall be filed such parts of the record as are relevant. Reasonable notice of the motion
shall be given to all parties. The motion shall be filed with the clerk and normally will be considered by the court
or a quorum thereof but in exceptional cases where such procedure would be impracticable due to the
requirements of time, the application may be made to and considered by a single justice of the court.
93 Nev. 521, 523 (1977) Adler v. State
any discretion at all are limited. NRAP 8(c) provides that stays (without specifying stays of
judgment) be had in accordance with the provisions of NRS 177.095 et seq. The relevant
sections provide as follows: NRS 177.095a sentence of death shall be stayed on appeal;
NRS 177.105a sentence of imprisonment shall be stayed on appeal if the defendant is
admitted to bail; NRS 177.115a sentence to pay a fine may be stayed on appeal; and NRS
177.125an order placing a defendant on probation may be stayed on appeal. There is an
absence of any other statute regarding stays in criminal proceedings. Compare, State v. Perry,
516 P.2d 1104 (Wash.App. 1973).
[Headnotes 2, 3]
Here, applicant is without recourse, since even in the above specified circumstances,
designated by statute, a stay in a criminal proceeding can affect only the execution of the
sentence and not the underlying judgment.
Finally, applicant contends that the action taken by the Clark County Clerk and the Board
of Commissioners in declaring his office vacant prior to final appellate review was improper.
This issue is not properly before this Court, Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851
(1969), and is not ripe for our determination.
Applicant has failed to demonstrate to us that he is entitled to any relief incidental to his
Petition for Stay.
The application for stay of judgment and sentence pending appeal is denied.
In support of his motion, appellant has urged that his appeal is not frivolous, but highly
substantial, clearly presenting issues of probable merit. Therefore, appellant argues, this court
should stay the effect of the judgment against him pending appeal, so that ouster from his
public office will not occur prior to our final ruling on the appeal's merit, thereby effectively
depriving him of the benefits of our determination. In my view, this court should address the
issues presented.
I cannot accept the proposition, for which my brethren cite absolutely no authority, that
this court may enter a stay only in instances expressly authorized by our Legislature. From
this legally unsupported declaration of judicial impotence, it would seem to follow that, if the
Legislature saw fit, it might divest this court's power to grant any stay, merely by deleting
mention of such interlocutory remedies from our criminal code entirely. I disagree.
93 Nev. 521, 524 (1977) Adler v. State
By the Nevada Constitution, this court has power to issue all writs and orders necessary or
proper to the complete exercise of its appellate jurisdiction. Nev. Const. art. 6, 4. In my
view, this constitutional authority is not dependent upon the Legislature delineating the writs
and orders which, from time to time, will appear necessary or proper to the effective
exercise of our appellate function. Indeed, we have recognized, in other contexts, that this
court, rather than the Legislature, has the paramount power to regulate the judiciary and
judicial proceedings. See, for example: Young v. Board of County Comm'rs, 91 Nev. 52, 530
P.2d 1203 (1975); Volpert v. Papagna, 85 Nev. 437, 456 P.2d 848 (1969).
____________
93 Nev. 524, 524 (1977) Van Dorn v. Warden
GARY ROGER VAN DORN, Appellant, v. WARDEN,
No. 9286
October 5, 1977 569 P.2d 938
Appeal from order denying petition for post-conviction relief; Second Judicial District
Court, Washoe County; John W. Barrett, Judge.
Upon finding that defendant had violated conditions of probation, the district court
revoked probation of defendant who had been convicted of burglary, and ordered defendant to
serve previously suspended sentence of 10 years' imprisonment, with credit for 90 days which
defendant had spent in county jail for prior violation of conditions of probation, and
defendant filed petition for post-conviction relief. The Supreme Court held that defendant,
who received sentence of 10 years' imprisonment for burglary, which was suspended when
defendant was placed on probation for four years, who was later ordered to spend 90 days in
county jail for violation of conditions of probation, and who later for violating conditions of
probation, was ordered to serve 10-year sentence with credit for 90 days spent in county jail,
was not entitled to credit on prison term for time spent on probation outside of incarceration
prior to revocation of probation.
Affirmed.
Horace R. Goff, State Public Defender, and J. Thomas Susich, Chief Deputy Public
Defender, Carson City, for Appellant.
Robert List, Attorney General, Carson City; and Larry R. Hicks, District Attorney, Washoe
1. Criminal Law.
Power of judiciary to suspend execution of sentence and grant probation requires legislative
authorization; while district courts have been given such authority, such statutory power must be strictly
construed. Const. art. 5, 14; NRS 176.185.
2. Criminal Law.
Defendant, who received sentence of 10 years' imprisonment for burglary, which was suspended when
defendant was placed on probation for four years, who was later ordered to spend 90 days in county jail for
violation of conditions of probation, and who later, for violating conditions of probation, was ordered to
serve 10-year sentence with credit for 90 days spent in county jail, was not entitled to credit on prison term
for time spent on probation outside of incarceration prior to revocation of probation. Const. art. 5, 14;
NRS 176.055, 176.185, 209.280-209.290, 209.285, subd. 4.
OPINION
Per Curiam:
Following a solemn plea of guilty to the crime of burglary, appellant was sentenced to a
10-year term in the Nevada State Prison. The sentence was suspended, and appellant was
placed on probation for four years. As a result of a probation revocation hearing held eight
months later, appellant was ordered to spend 90 days in the Washoe County Jail, and his
probation was extended an additional year. One year later, appellant was again brought before
the court for violating the conditions of his probation. His probation was revoked, and he was
ordered to serve his 10-years initial sentence in the Nevada State Prison, with credit for the 90
days spent in the Washoe County Jail. Appellant filed this petition for post-conviction relief,
seeking credit on his prison term for the time he had spent on probation, even though not
incarcerated, prior to the revocation of that probation.
[Headnote 1]
The power of the judiciary to suspend the execution of a sentence and grant probation
requires legislative authorization.
Nev. Const. art. 5, 14.
1
While district courts have been given such authority in Nevada,
NRS 176.185, this statutory power must be strictly construed. State v. District Court, 85 Nev.
485, 457 P.2d 217 (1969).
[Headnote 2]
The Nevada Legislature has carefully specified those instances in which credit may be
given toward a prison term. NRS 176.055; NRS 209.280-.290. Nowhere has it indicated that
time spent out of confinement shall be included in such credits. Indeed, the Legislature has
specifically mandated that no parolee may earn good time credits while on release from
confinement. NRS 209.285(4). The United States Circuit Court of Appeals for the Ninth
Circuit has observed that a defendant does not . . . serve a part of his sentence outside the
walls of prison. Flint v. Hocker, 462 F.2d 590, 592 (9th Cir. 1972).
The constitutional validity of this policy has often been affirmed. Hall v. Bostic, 529 F.2d
990 (4th Cir. 1975), cert. denied. 425 U.S. 954 (1976). The purpose of probation is to avoid
imprisonment so long as the guilty man gives promise of reform. Clearly, therefore, probation
is not intended to be the equivalent of imprisonment. Kaplan v. Hecht, 24 F.2d 664, 665 (2d
Cir. 1928), in Hall v. Bostic, 529 F.2d at 992.
The order of the district court denying appellant's petition for post-conviction relief is
affirmed.
____________________

1
The legislature is authorized to pass laws conferring upon the district courts authority to suspend the
execution of sentences, fix the conditions for, and to grant probation, and within the minimum and maximum
periods authorized by law, fix the sentence to be served by the person convicted of crime in said courts.
____________
93 Nev. 526, 526 (1977) Rhodes v. Sheriff
DANIEL LEE RHODES, Appellant, v. SHERIFF,
No. 10139
October 5, 1977 569 P.2d 405
A pretrial petition for writ of habeas corpus was filed by defendant charged with
possession of marijuana. The district court denied the petition, and an appeal was taken.
court denied the petition, and an appeal was taken. The Supreme Court held that on claim of
constructive possession of marijuana found in suitcase which police officers, without a
warrant, had removed from closet of residence defendant had been visiting, evidence was
insufficient, absent proof that defendant had exercised dominion and control over the
contraband or proof of facts which might support a theory of joint possession.
Reversed.
Manos & Cherry and Michael Cherry, Las Vegas, for Appellant.
In a prosecution for possession of marijuana on claim of constructive possession of marijuana found in
suitcase which police officers, without a warrant, had removed from closet of residence defendant had been
visiting, evidence was insufficient, absent proof that defendant had exercised dominion and control over
the contraband or proof of facts which might support a theory of joint possession. NRS 453.161,
453.336.
OPINION
Per Curiam:
After being ordered to stand trial for the possession of a controlled substance (marijuana),
in violation of NRS 453.336 and NRS 453.161, Daniel Lee Rhodes petitioned for habeas
corpus. His petition was denied and this appeal has been perfected.
The contraband which appellant is accused of constructively possessing was found in a
suitcase which police officers, without a warrant, had removed from a closet of a residence
appellant was visiting.
In a recent case, involving similar facts, where the officer had a warrant, we wrote that to
support a charge of possession that it was necessary to offer proof that the accused exercised
dominion and control over the contraband. Oxborrow v. Sheriff, 93 Nev. 321, 565 P.2d 652
(1977). This record is barren of such proof.
It is also barren of facts that might support a theory of "joint possession" such as existed
in Maskaly v. State, S5 Nev. 111, 450 P.2d 790 {1969), and Woerner v. State, S5 Nev. 2S1
joint possession such as existed in Maskaly v. State, 85 Nev. 111, 450 P.2d 790 (1969), and
Woerner v. State, 85 Nev. 281, 453 P.2d 1004 (1969).
Accordingly, we reverse.
____________
93 Nev. 528, 528 (1977) Bernier v. Sheriff
HENNY BERNIER, Appellant, v. SHERIFF,
No. 10118
October 5, 1977 569 P.2d 406
Appeal from order denying petition for writ of habeas corpus, Eighth Judicial District
Court, Clark County; J. Charles Thompson, Judge.
Accused who had been ordered to stand trial for possession of stolen property petitioned
for a writ of habeas corpus. The district court denied the petition, and petitioner appealed.
The Supreme Court held that: (1) evidence supported a finding of probable cause to believe
that petitioner knew the property was stolen, and (2) petitioner was not entitled to habeas
corpus relief.
Affirmed.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and Bill C.
Hammer, Deputy District Attorney, Clark County, for Respondent.
1. Receiving Stolen Property.
Though mere possession is insufficient to establish the requisite knowledge for conviction of possessing
stolen property, possession is a fact which may be considered with all other facts by a reasonable person in
formulating a suspicion that an accused knew that certain property was stolen. NRS 205.275.
2. Habeas Corpus.
Evidence at preliminary examination that petitioner was the owner and co-occupant of house where
stolen property was seized, that petitioner had been seen at house from which property was stolen shortly
before the theft was reported and that petitioner's possession of the stolen property was unexplained was
sufficient to give rise to an inference of guilt and support finding of probable cause to
believe that petitioner committed the offense; therefore, petitioner was not entitled
to habeas corpus relief from order that she stand trial on charge of possessing stolen
property.
to give rise to an inference of guilt and support finding of probable cause to believe that petitioner
committed the offense; therefore, petitioner was not entitled to habeas corpus relief from order that she
stand trial on charge of possessing stolen property. NRS 171.206, 205.275.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Henny Bernier was ordered to stand trial
for possession of stolen property, a violation of NRS 205.275.
1
Bernier then petitioned for a
writ of habeas corpus contending the evidence adduced by the prosecution was insufficient to
establish probable cause that she had committed the charged offense. The district court
considered and denied her petition and Bernier here reasserts the same contention.
Bernier does not deny having possessed the property; rather, she argues the proof did not
show that she knew the property was stolen and that such knowledge cannot be inferred from
mere possession.
[Headnote 1]
We agree that mere possession is insufficient to establish the requisite knowledge;
however, possession is a fact which may be considered with all other facts by a reasonable
person in formulating a strong suspicion that Bernier knew the property was stolen. See Staab
v. State, 90 Nev. 347, 526 P.2d 338 (1974); People v. Martin, 511 P.2d 1161 (Cal. 1973);
People v. Schamber, 513 P.2d 205 (Colo. 1973); State v. Tollett, 431 P.2d 168 (Wash. 1967).
[Headnote 2]
Here, the evidence showed (1) Bernier was the owner and co-occupant of the house where
the stolen property was seized and, (2) she had been seen at the house from which the
property was stolen shortly before the theft was reported. We think these facts, coupled with
her unexplained possession, come within our holding in Staab where we wrote that such
"possession of stolen property by an accused person gives rise to an inference of guilt. . .
."
____________________

1
1. Every person who, for his own gain, or to prevent the owner from again possessing his property, shall
buy, receive, possess or withhold stolen goods, or anything the stealing of which is declared to be larceny, or
property obtained by robbery, burglary or embezzlement:
(a) Knowing the same as to have been obtained; or
(b) Under such circumstances as should have caused a reasonable man to know that such goods or property
were so obtained, . . .
within our holding in Staab where we wrote that such possession of stolen property by an
accused person gives rise to an inference of guilt. . . . 90 Nev. at 350, 526 P.2d at 340. A
fortiori, it supports a finding of probable cause. NRS 171.206.
We reject Bernier's ancillary argument on the authority of Cleveland v. State, 85 Nev. 635,
461 P.2d 408 (1969). Cf. NRS 34.370(2).
Affirmed.
____________
93 Nev. 530, 530 (1977) Burns v. Sheriff
WILLIAM BURNS, Appellant, v. SHERIFF,
CARSON CITY, NEVADA, Respondent.
No. 10008
October 5, 1977 569 P.2d 407
District Court, Carson City; Frank B. Gregory, Judge.
Petitioner, who was indicted for murder and attempted murder, petitioned for habeas
corpus. The district court denied the requested relief, and petitioner appealed. The Supreme
Court held that: (1) petitioner was not constitutionally entitled to preliminary examination;
(2) petitioner failed to support allegations concerning manner in which grand jury was chosen
and impaneled; (3) indictment charging murder was adequate, despite indictment's failure to
specify degree of murder; and (4) evidence was sufficient to sustain indictment.
Affirmed.
Charles M. Kilpatrick, Carson City, for Appellant.
City, for Respondent.
Petitioner, who was indicted for murder and attempted murder, was not constitutionally entitled to
preliminary examination nor did grand jury proceeding violate his rights of equal protection and due
process on ground that he was denied preliminary examination.
2. Habeas Corpus.
Habeas corpus petitioner failed to demonstrate facts supporting allegations concerning manner in which
grand jury was chosen and impaneled.
3. Homicide.
Despite fact that indictment failed to specify degree of murder, indictment charging murder was adequate.
NRS 200.010.
Evidence was sufficient to sustain indictment for murder and for attempted murder. NRS 200.010,
208.070.
OPINION
Per Curiam:
Indicted for murder (NRS 200.010), and attempted murder (NRS 200.010; NRS 208.070),
William Burns petitioned for habeas corpus and now appeals from the order denying the
requested relief.
Burns raised several contentions below, and reasserted them here.
[Headnote 1]
1. First, Burns argues he is constitutionally entitled to a preliminary examination; thus, the
grand jury proceeding violated his rights of equal protection and due process. The same
argument has previously been considered and consistently rejected by this court. See Cairns v.
Sheriff, 89 Nev. 113, 508 P.2d 1015 (1973), and its progeny.
[Headnote 2]
2. The thrust of Burns's next challenge is directed to the manner in which the grand jury
was chosen and impaneled. The allegations are not supported by demonstrated facts, a
requirement for consideration below, and for appellate review. Hardison v. Sheriff, 93 Nev.
64, 560 P.2d 148 (1977). Cf. NRS 6.110 and Lera v. Sheriff, 93 Nev. 498, 568 P.2d 581
(1977).
[Headnote 3]
3. Burns's third assignment of error, in his words, is that the indictment fails to inform
defendant as to the nature and cause of the charges against him, in that it is overly broad and
confusing. The thrust of his argument is that the degree of the charged homicides is not
spelled out. The argument is rejected because [i]t is permissible to simply charge murder and
leave the degree to be stated by the jury. Howard v. Sheriff, 83 Nev. 150, 153, 425 P.2d 596,
597 (1967). In Graves v. Young, 82 Nev. 433, 438, 420 P.2d 618, 620 (1966), we said [t]he
words murder in the first degree' are a legal conclusion. The facts alleged in the indictment
and proof at trial determine degree.
[Headnote 4]
4. The final assignment is an omnibus challenge to the quantum of evidence presented to
the grand jury. The district judge ruled there was sufficient evidence to meet the probable
cause test delineated in NRS I72.155 and, in our view, the record amply supports that
determination. Kinsey v. Sheriff, 87 Nev. 361, 487 P.2d 340 (1971).
[W]e are not now concerned with the prospect that the evidence presently in the record
may, by itself, be insufficient to sustain a conviction. McDonald v. Sheriff, 89 Nev. 326,
327, 512 P.2d 774, 775 (1973).
Affirmed.
____________
93 Nev. 532, 532 (1977) Randolph v. Sheriff
ROBERT LOVELL RANDOLPH, Appellant, v. SHERIFF,
No. 10073
October 5, 1977 569 P.2d 408
Petitioner, who had been ordered to stand trial on charges of rape, first degree kidnapping,
larceny from the person and robbery, filed pretrial petition for habeas corpus. The district
court denied habeas, and petitioner appealed. The Supreme Court held that: (1) it would be
permissible to try petitioner for both robbery and larceny from the person, but if the larceny
charge would be deemed to be a lesser included offense of robbery, he could only be
convicted of one of such offenses, and (2) statute which requires a waiver of statutory 60-day
limitation for bringing an accused to trial, as a condition precedent to the right to pursue
pretrial habeas corpus, is not unconstitutional.
Affirmed.
Morgan D. Harris, Public Defender, and George E. Franzen, Deputy Public Defender,
1. Criminal Law.
It would be permissible to try accused for both robbery and larceny from the person, but if the larceny
charge would be deemed to be a lesser included offense of robbery, he could only be convicted of one of
such offenses. NRS 173.125, 200.380, 205.270.
2. Habeas Corpus.
Statute, which requires a waiver of statutory 60-day limitation for bringing an accused to trial, as a
condition precedent to the right to pursue pretrial habeas corpus, is not unconstitutional; such a waiver is
not a waiver of constitutional right to speedy trial. Stats. Nev. 1977, ch. 545, 1; NRS 178.556.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Robert Lovell Randolph was ordered to
stand trial for rape (felony, NRS 200.363); first degree kidnapping (felony, NRS 200.310);
larceny from the person (felony, NRS 205.270); and, robbery (felony, NRS 200.380).
Randolph then filed a pretrial petition for habeas corpus in the district court contending: (1) it
is impermissible to charge both larceny from the person and robbery; and, (2) Chapter 545 of
the 1977 Nevada Statutes, requiring habeas corpus petitioners to waive the 60-day limit for
being brought to trial, is unconstitutional. The district court denied habeas and in this appeal
Randolph asserts the same contentions.
[Headnote 1]
1. It is permissible to try Randolph for both robbery and larceny from the person. NRS
173.125. However, if, under the circumstances of this case the charge of larceny from the
person is deemed to be a lesser included offense of robbery, Randolph can only be convicted
of one of these two offenses. See Keefe v. Sheriff, 93 Nev. 109, 560 P.2d 913 (1977), and
cases cited therein.
[Headnote 2]
2. Chapter 545 of the 1977 Nevada Statutes provides, inter alia, that a pretrial petition for
habeas corpus shall not be considered unless it contains a statement that the accused
waives the 60-day limitation for being brought to trial.1 Randolph's attack upon the
statute's constitutionality is premised upon the theory that the waiver provision forces
him to either surrender {1) the right to petition in habeas proceedings; or, {2) the right to
a speedy trial.
considered unless it contains a statement that the accused waives the 60-day limitation for
being brought to trial.
1
Randolph's attack upon the statute's constitutionality is premised
upon the theory that the waiver provision forces him to either surrender (1) the right to
petition in habeas proceedings; or, (2) the right to a speedy trial. Either way, argues
Randolph, he loses a constitutional guarantee.
Randolph's premise is unsound. The waiver provision makes no mention of a
constitutional right to a speedy trial but speaks merely to the statutory 60-day period in which,
in the absence of dilatory conduct, an accused is entitled to be brought to trial. NRS 178.556.
In Sondergaard v. Sheriff, 91 Nev. 93, 531 P.2d 474 (1975), we held the right to be brought to
trial within 60 days was only one of several factors to be considered in applying the balancing
approach to determine whether there was a violation of the right to a speedy trial. Therefore,
requiring a waiver of the 60-day rule, as a condition precedent of the right to pursue pretrial
habeas corpus, a statutory right, does not equate to a waiver of the constitutional right to a
speedy trial. In fact, almost a dozen years before the legislature saw fit to insert the 60-day
waiver language in the habeas corpus statute, this court had ruled that when, as here, an
accused is responsible for the delay of trial beyond the 60-day limit, he may not complain.
Oberle v. Fogliani, 82 Nev. 428, 430, 420 P.2d 251, 252 (1966). Thus, the legislative will to
insert the restrictive language in the habeas statute is not unconstitutional; rather, it is merely
another application of the statutory provisions we approved and followed in Oberle.
Affirmed.
____________________

1
Section 1 of Chapter 545 reads in pertinent part:
1. Except as provided in subsection 2, a pretrial petition for a writ of habeas corpus based on alleged want
of probable cause or otherwise challenging the court's right or jurisdiction to proceed to the trial of a criminal
charge shall not be considered unless:
(a) The petition and all supporting documents are filed within 21 days after the first appearance of the
accused in the district court; and
(b) The petition contains a statement that the accused:
(1) Waives the 60 day limitation for bringing an accused to trial;
(2) If the petition is not decided within 15 days before the date set for trial, consents that the court may,
without notice or hearing, continue the trial indefinitely or to a date designated by the court;
(3) If any party appeals the court's ruling and the appeal is not determined before the date set for trial,
consents that the trial date is automatically vacated and the trial postponed unless the court otherwise orders.
____________
93 Nev. 535, 535 (1977) Farmer v. Sheriff
BILLY BOB FARMER, Appellant, v. SHERIFF,
No. 10122
October 5, 1977 569 P.2d 939
Defendants charged with murder sought pretrial relief by way of habeas corpus. Relief was
denied by the district court and an appeal was taken. The Supreme Court held that: (1) under
evidence that two witnesses first learned of the homicide after it had been committed, they
were not accomplices whose testimony was required to be corroborated, and (2) grants of
immunity to obtain testimony are permissible until legislatively or otherwise forbidden.
Affirmed.
Oscar B. Goodman, Las Vegas, for Appellant.
Cremen, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Under evidence that two witnesses first learned of homicide after it had been committed, they were not
accomplices whose testimony was required to be corroborated. NRS 175.271, 175.291, subd. 2.
2. Witnesses.
Grants of immunity to obtain testimony are permissible until legislatively or otherwise forbidden.
U.S.C.A.Const. amends. 5, 14.
OPINION
Per Curiam:
At the conclusion of a preliminary examination Billy Bob Farmer, and another person,
were ordered to stand trial for murder (NRS 200.010, NRS 200.030).
A pretrial petition for a writ of habeas corpus contended (1) there was insufficient
competent evidence to establish probable cause to believe Farmer committed the homicide;
and, (2) the granting of immunity to a co-defendant was violative of Farmer's rights under
the Fifth and Fourteenth Amendments of the Federal Constitution.
93 Nev. 535, 536 (1977) Farmer v. Sheriff
The petition, which was filed May 26, 1977, did not comply with the requirements the
legislature imposed on habeas petitioners, effective May 14, 1977, when it enacted Chapter
545 of the 1977 Nevada Statutes. Nevertheless, the district court considered and denied the
petition. Farmer appealed (Case No. 9905, styled: Farmer v. Sheriff); however, we did not
consider the merit of the assigned errors and, on July 27, 1977, dismissed the appeal because
of Farmer's failure to comply with the newly imposed statutory requirements. Sheriff v.
Toston, 93 Nev. 394, 566 P.2d 411 (1977).
Thereafter, on August 16, 1977, Farmer filed an Amended Petition for a Writ of Habeas
Corpus the content of which restated the same contentions set out in the first petition filed
May 26, 1977. The amended petition, which complied with some of the requirements
imposed by the legislative enactment, was considered and denied by the district court and
Farmer perfected this appeal.
Even if we assume the amended petition was timely filed (see Stats. of Nev. 1977, ch.
545 1(1)(a), p. 1350); and, that it was cognizable (see NRS 34.380 (4)(b)), Farmer's claimed
errors are without merit.
[Headnote 1]
1. In support of the probable cause challenge Farmer argues that the only incriminating
testimony was given by two accomplices and their testimony must be excluded because it was
not corroborated, as required by NRS 175.271. Farmer is mistaken. The only evidence of
record is that the two witnesses first learned of the homicide after it had been committed;
thus, under the definition given in NRS 175.291(2), they are not accomplices. Cf. Austin v.
State, 87 Nev. 578, 491 P.2d 724 (1971).
[Headnote 2]
2. The thrust of Farmer's constitutional challenge is that our decision in LaPena v. State,
92 Nev. 1, 544 P.2d 1187 (1976), discredits the practice of reducing charges to obtain
testimony; thus, he argues a grant of immunity to one co-defendant violates the due process
and equal protection rights of the other people charged with the crime. We do not so read
LaPena. At least where the death penalty is not exchanged for testimony, the entire court
there agreed that grants of immunity are permissible [u]ntil legislatively [or otherwise]
forbidden. 92 Nev. at 6, 544 P.2d at 1190. Accordingly, we affirm.
____________
93 Nev. 537, 537 (1977) Alldredge v. Archie
DONALD E. ALLDREDGE, and AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,
AFL-CIO, Appellants, v. ROBERT ARCHIE, Executive Director, NEVADA
EMPLOYMENT SECURITY DEPARTMENT; BOARD OF REVIEW, NEVADA
EMPLOYMENT SECURITY DEPARTMENT and HUGHES AIR CORPORATION, dba
AIR WEST, Respondents.
No. 8621
October 11, 1977 569 P.2d 940
Appeal from order, Eighth Judicial District Court, Clark County; Howard W. Babcock,
Judge.
Members of airline pilot's union appealed from an order of the district court affirming an
administrative decision which denied unemployment compensation benefits to airline pilots
who became unemployed due to a labor dispute between their employer and its airline
mechanics. The Supreme Court, Batjer, C. J., held that: (1) the statute disqualifying claimants
from benefits if their unemployment is caused by a labor dispute at the factory,
establishment or other premises at which they are employed applied to the airline pilots; (2)
where the picket lines were peaceful and no violence occurred, the refusal of jet pilots who
were called to work to cross the picket lines disqualified them for unemployment
compensation benefits; and (3) pilots of turboprop aircraft were in a different grade or class
from jet pilots and thus, the voluntary refusal of jet pilots to cross the picket lines did not
disqualify the turboprop pilots, who were never called to work during the strike.
Douglas G. Crosby, Goodman and Snyder, Las Vegas; Marvin J. Brenner, Burlingame,
California, for Appellants.
Robert List, Attorney General, and Donald Hill, Deputy Attorney General, Carson City;
Morse, Foley & Wadsworth, Las Vegas, and John A. Flangas, Reno, for Respondents.
1. Social Security and Public Welfare.
Airline pilots and airline mechanics worked at same factory, establishment and other premises for
purpose of statute disqualifying claimants from unemployment compensation benefits if unemployment is
due to labor dispute at factory, establishment or other premises at which they were employed. NRS
612.395, subd. 1.
Unemployment compensation claimants whose unemployment is due to labor dispute at factory,
establishment or other premises at which they are employed have burden to show that they meet
requirements of statutory proviso removing their ineligibility for benefits. NRS 612.395, subds. 1, 2.
Where airline mechanics' picket lines were peaceful and no violence occurred, airline pilots who refused
to cross picket lines when called to work were disqualified for unemployment compensation benefits, even
though some anonymous phone calls were made threatening pilots after some of them resumed flying.
NRS 612.395, subd 2(a).
Absent sufficient excuse, nonstriking employee's voluntary failure or refusal to cross picket line
constitutes participation in dispute, thereby disqualifying him from unemployment compensation benefits.
NRS 612.395, subd. 2(a).
One who has reason to fear violence or bodily harm is not required to cross picket line to establish his
eligibility for unemployment compensation benefits. NRS 612.395, subd. 2(a).
Where there is no work available for nonstriker and he has been given every indication that he is laid off,
he is not required to cross picket line in order to show his lack of participation in labor dispute and
establish eligibility for unemployment compensation benefits. NRS 612.395, subd. 2(a).
Fact that jet airline pilots voluntarily honored airline mechanics' picket line, thereby disqualifying them
for unemployment compensation benefits, did not disqualify turboprop pilots, who were not called to cross
picket lines, in that jet pilots and turboprop pilots were in different grade or class. NRS 612.395, subd.
2(b).
OPINION
This is a appeal from an order of the district court affirming an administrative decision,
which denied unemployment compensation benefits to airline pilots who became unemployed
due to a labor dispute between their employer and its airline mechanics. The denial of
benefits was based upon the labor dispute disqualification set forth in NRS 612.395(1), which
provides: An individual shall be disqualified for benefits for any week with respect to which
the executive director finds that his total or partial unemployment is due to a labor dispute in
active progress at the factory, establishment or other premises at which he is or was last
employed."
at which he is or was last employed. Further, it was determined the pilots were not exempted
from disqualification under NRS 612.395(2), which provides:
[NRS 612.395(1)] shall not apply if it is shown to the satisfaction of the executive
director that:
(a) The individual is not participating in or financing or directly interested in the
labor dispute which caused his unemployment; and
(b) The individual does not belong to a grade or class of workers of which,
immediately before the commencement of the labor dispute, there were members
employed at the premises at which the labor dispute occurs, any of whom are
participating in or financing or directly interested in the labor dispute; . . .
The pilots contend NRS 612.395(1) is not applicable to the factual circumstance of their
claims because their unemployment was not due to a labor dispute at the factory,
establishment or other premises at which they were employed. Even if NRS 612.395(1)
applies, they argue all pilots are eligible for benefits pursuant to NRS 612.395(2).
Since we conclude NRS 612.395(1) is applicable and all claimants fail to qualify under
NRS 612.395(2), exclusive of Fairchild pilots, the judgment is affirmed, except that portion
denying them benefits.
The interested employer, Hughes Air West, Inc., is a common carrier by air and authorized
by appropriate governmental agencies to provide service to Canada, Mexico, and several
western states. It has four domiciles, including Las Vegas, at which flight and ground
personnel are based. Hughes utilizes two types of aircraft in its operations; the DC-9, which is
a twin engine pure jet, and the Fairchild F-27, which is a twin engine turboprop. The
claimants are pilots who are classified as DC-9 captains, DC-9 first officers, F-27 captains,
and F-27 first officers. Their wages, hours, and working conditions are governed by a
collective bargaining agreement between the employer and the Air Line Pilots Association
(ALPA).
Several months prior to December 15, 1971, the Aircraft Mechanics Fraternal Association
(AMFA) commenced negotiations with Hughes for a new contract covering the employment
of airline mechanics. This union is independent from ALPA and does not represent airline
pilots in any matter. When these negotiations broke down, the mechanics struck Hughes on
December 15, 1971, and placed picket lines at McCarran International Airport in Las Vegas.
As a result of this strike, Hughes ceased all operations and advised its pilots that no work
was available for them and they were being placed in a "no work" status.
this strike, Hughes ceased all operations and advised its pilots that no work was available for
them and they were being placed in a no work status. The pilots were required to return
their identification badges and pass cards.
Shortly thereafter, Hughes decided to resume its DC-9 operations on a limited basis, using
management personnel to perform the duties of the mechanics and senior DC-9 captains to fly
the aircraft. On December 19, 1971, crew schedulers commenced to recall approximately 40
of the 80 most senior DC-9 captains based at Las Vegas, but the effort was abandoned on
December 22 due to the massive refusal of the pilots to fly. Hughes did not utilize any of its
F-27 equipment during the strike, and thus, no attempt was made to recall F-27 pilots and
work remained unavailable for them.
[Headnote 1]
1. The claimants first contend NRS 612.395(1) does not disqualify them from benefits
because their unemployment was not caused by a labor dispute at the factory, establishment
or other premises at which they were employed. In support of this contention, they argue that
their work is performed in the aircraft as it flys over various air routes, and this constitutes a
different place of employment than the air terminal where the mechanics' dispute occurred.
The phrase factory, establishment or other premises is not defined by the legislature in
NRS Ch. 612 or elsewhere. This language evolved from the provision factory, workshop or
other premises contained in the British Act of 1911 upon which our law is patterned. See
Park v. Appeal Board of Michigan Employ. Sec. Com'n, 94 N.W.2d 407 (Mich. 1959);
Nordling v. Ford Motor Co., 42 N.W.2d 576 (Minn. 1950). While the British have construed
the phrase as referring to single units of employment, American jurisdictions utilize various
criteria as a basis for determining whether two plants or workplaces constitute a single
factory, establishment or other premises for purposes of unemployment benefits. See
Annot., 60 A.L.R.3d 11 (1974) and cases cited therein.
Some jurisdictions rest their determinations solely on the aspect of functional integration,
which relates to the degree of interdependency and synchronization between the operations
and locations involved. See, e.g., Ford Motor Co. v. Abercrombie, 62 S.E.2d 209 (Ga. 1950).
Others rely on the physical proximity between the location of the labor dispute and the place
of employment of those claiming benefits. See, e.g., In re Ferrara's Claim, 176 N.E.2d 43
(N.Y. 1961); Walgreen Co. v. Murphy, 53 N.E.2d 390 (Ill. 1944). Still others reject both of
these approaches as the sole criteria and instead look to a combination of factors,
including functional integration, physical proximity, and unity of employment and
management.
both of these approaches as the sole criteria and instead look to a combination of factors,
including functional integration, physical proximity, and unity of employment and
management. See Liberty Trucking Co. v. Department of Industry, Etc., 204 N.W.2d 457
(Wis. 1973); Park v. Appeal Board of Michigan Employ. Sec. Com'n, supra; Nordling v.
Ford Motor Co., supra.
No absolute rule is available which can be arbitrarily applied to the facts of all cases in
determining whether two work areas are a single factory, establishment or other premises.''
Instead, such determination depends on a variety of factors, including functional integration
and physical proximity, as applied to the factual circumstance of each case.
Here, there is a high degree of functional integration between the pilots and striking
mechanics. The services performed by each intertwine to produce the end result of air
transportation. The pilots cannot perform their services without the mechanics first
performing theirs. The pilots based in Las Vegas reported to work at the air terminal,
performed various functions there, made transportation runs out of the terminal, and returned
there. Under these circumstances, they were employed at the same factory, establishment or
other premises as the mechanics. See Depaoli v. Ernst, 73 Nev. 79, 309 P.2d 363 (1957);
Noblit v. Marmon Group-Midwest Foundry Division, 194 N.W.2d 324 (Mich. 1972). Merely
because the pilots perform various duties in the aircraft as it proceeds over air routes does not
alter this conclusion. Cf. Basso v. News Syndicate Co., Inc., 216 A.2d 597 (N.J. App. 1966).
[Headnotes 2, 3]
2. Although the claimants are included within the purview of NRS 612.395(1), our labor
dispute disqualification contains a proviso (NRS 612.395(2)) that sets forth a two part
conjunctive test which, if satisfied, removes their ineligibility for benefits. The claimants
have the burden to show they meet the requirements of the proviso. F.R. Orr Construction
Co., Inc. v. Industrial Com'n, 534 P.2d 785 (Colo. 1975); Wilson v. Employment Security
Commission, 389 P.2d 855 (N.M. 1963).
The first requirement is contained in NRS 612.395(2)(a), which exempts those who are not
participating in or financing or directly interested in the labor dispute which caused [their]
unemployment. It is conceded that the pilots were not financing or directly interested in the
dispute. However, it was determined that, because the DC-9 captains refused to report for
work, the pilots were honoring AMFA picket lines and, therefore, participating in the
dispute.
work, the pilots were honoring AMFA picket lines and, therefore, participating in the dispute.
[Headnote 4]
The question of eligibility for benefits of a nonstriking worker who has failed or refused to
report to work across picket lines depends on the voluntary-involuntary nature of the
claimant's refusal to cross. Absent a sufficient excuse, a nonstriking employee's voluntary
failure or refusal to cross a picket line constitutes participation in the dispute, thereby
disqualifying him for benefits. See Annot., 62 A.L.R.3d 380 (1975) and cases cited therein.
This is true even though the picket lines are maintained by members of a union to which the
claimant does not belong. Achenbach v. Review Board of Indiana Emp. Sec. Div., 179
N.E.2d 873 (Ind. 1962). The rationale for the rule is that:
[S]uch a refusal [to cross picket lines] does constitute participation, since by so
refusing to work the persons are adding their strength to the cause of the strikers, who
are then put in a better bargaining position when the entire plant is shut down than
when their branch of it has stopped only a portion of the operations. Various Claimants
& Const. U. v. Employment Sec. Com'n, 375 P.2d 380, 382 (Ariz. 1962).
The massive refusal of DC-9 captains to report for flying duty supports the conclusion they
were honoring the AMFA picket lines at McCarran Airport.
1
Nevertheless, they argue their
refusal to cross the picket lines was justified due to their fear of bodily harm.
[Headnote 5]
It is recognized that one who has reason to fear violence or bodily harm is not required to
cross a picket line to establish his eligibility for benefits. See Annot., 62 A.L.R.3d 380 (1975)
and cases cited therein. While it is not necessary that he actually experience bodily harm in
attempting to cross a picket line, a nonstriker's fear must be real and substantial, not nebulous
or imaginary. See Kennecott Copper Corp., Etc. v. Employment Sec. Com'n, 469 P.2d 511
(N.M. 1970); Achenbach v. Review Board of Indiana Emp. Sec. Div., supra.
____________________

1
The record indicates that Las Vegas crew schedulers made between 300 to 500 phone calls to about 40
DC-9 captains. The response, if any, to these calls was that the pilot was sick, out of town, or unwilling to cross
the picket line.
While the record does indicate some anonymous telephone calls were made threatening
DC-9 captains, no such calls were made prior to December 20, 1971. There is no evidence
that any violence occurred or that the picket lines were anything but peaceful. Indeed, others
crossed the picket lines without mishap. In light of these facts and the total absence of
violence, the DC-9 captains' refusal to cross the picket lines disqualifies them for
unemployment compensation benefits.
[Headnote 6]
Although the DC-9 captains were participating in the dispute by honoring picket lines, the
record clearly establishes the remainder of the claimants were not. It is conceded that Hughes
was not offering work for DC-9 first officers. Only the most senior DC-9 captains were being
recalled for limited operations. Further, no F-27 captains or first officers were called because
Hughes did not utilize any of its Fairchild equipment during the strike. So far as these
claimants are concerned, no work was ever made available to them. As noted in Ancheta v.
Daly, 461 P.2d 531 (Wash. 1969), which is applicable here:
[T]he law does not require a futile act in order to collect benefits. If there is no work
available and the employee has been given every indication that he is laid off, he is not
further required to cross a picket line in order to show his lack of participation in the
labor dispute. Id. at 536. See also Kennecott Copper Corp., Etc. v. Employment Sec.
Com'n, supra.
[Headnote 7]
3. Since DC-9 first officers and F-27 pilots were not participating in the strike, they are
eligible for benefits unless they are considered to be in the same grade or class as the DC-9
captains who were participating. Our legislature has seen fit to disqualify a claimant if he
belongs to a grade or class of workers of which . . . there were members employed at the
premises at which the labor dispute occurs, any of whom are participating in or financing or
directly interested in the labor dispute; . . . NRS 612.395(2)(b). Thus, if a claimant falls
within such grade or class, he is disqualified even though he is not involved in the dispute,
has nothing to gain by it, and is involuntarily unemployed.
2
As with the "factory,
establishment or other premises" provision, courts have found it difficult to establish
criteria for the application of the "grade or class" provision.

____________________

2
Due to such a result, provisions similar to NRS 612.395(2)(b) have been criticized as one of the most
remarkable principles of vicarious guilt found in law, thwarting the basic purpose of unemployment
As with the factory, establishment or other premises provision, courts have found it
difficult to establish criteria for the application of the grade or class provision.
Determinations that a claimant does or does not belong to a particular grade or class have
been based upon membership in a union or bargaining unit, whether the work of one group
depends upon the work of another, the community of interest between the groups involved, or
the type of work being performed with respect to the training, skills, and expertise involved.
See Annot., 62 A.L.R.3d 314 (1975) and cases cited therein. No single test can be applied
universally to all labor disputes. See Cameron v. De Board, 370 P.2d 709 (Ore. 1962).
Upon reviewing the record, we conclude that the Fairchild pilots and DC-9 pilots are in
different grades or classes. The functions performed by Fairchild pilots are in no way affected
by those of DC-9 pilots. The training, skills, and expertise of the two classes of pilots differs.
The DC-9 is a more complex piece of equipment than the F-27. Further, Fairchild pilots can
become authorized to fly DC-9 aircraft only after extensive ground training and passing a
stringent F.A.A. examination. While all pilots belong to the same bargaining unit, this is not
determinative under the factual posture of this case. See Members of Iron Workers' Union v.
Industrial Com'n, 139 P.2d 208 (Utah 1943).
Accordingly, the judgment denying benefits to DC-9 pilots is affirmed as those pilots were
participating in a labor dispute at the factory, establishment or other premises at which they
were employed, or were members of a grade or class of workers so participating. However,
since the F-27 pilots satisfy the requirements of NRS 612.395(2), that portion of the judgment
upholding the denial of their benefits is reversed.
Mowbray, Thompson, and Gunderson, JJ., and McDaniel, D. J., Concur.
3

____________________
compensation to provide sustenance to those who are involuntarily unemployed. See, e.g., Reuben and
Schuckers, The Labor Dispute Disqualification of the Pennsylvania Unemployment Compensation Law, 50
Temple L.Q. 211 (1977); Shadur, Unemployment Benefits and the Labor Dispute' Disqualification, 17
U.Chi.L.Rev. 294 (1950).

3
Mr. Justice Zenoff voluntarily disqualified himself and took no part in this decision. The Governor, pursuant
to Art. VI, 4 of the Constitution, designated District Judge Joseph O. McDaniel to sit in his stead.
____________
93 Nev. 545, 545 (1977) Jones v. Jones
REBECCA ANN JONES, now known as REBECCA ANN CHAPMAN,
Appellant, v. CLIFFORD A. JONES, II, Respondent.
No. 8926
November 16, 1977 571 P.2d 103
Appeal from a judgment of the Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
Appeal was taken from an order of the district court finding that a former wife had
cohabited with another man and that, under the terms of the parties' property settlement
agreement, the husband was thereby relieved of his obligation to make monthly alimony
payments. The Supreme Court held that evidence supported the trial court's finding.
Affirmed.
David Abbatangelo, Las Vegas, for Appellant.
Bell, Leavitt & Green, Las Vegas, for Respondent.
Husband and Wife.
Evidence, in proceedings to enforce property settlement agreement contained in divorce decree,
supported finding that former wife had cohabited with another man thereby relieving former husband of
obligation to make alimony payments under terms of settlement agreement.
OPINION
Per Curiam:
Appellant and respondent were divorced. A property settlement agreement, approved by
the court, ordered respondent to pay appellant alimony in monthly installments for a period of
10 years or until death or remarriage of appellant. The agreement further stipulated that,
should appellant cohabit with another man, alimony payments would cease.
Respondent ceased alimony payment to appellant, claiming she was cohabiting with
another man. Appellant commenced this action to enforce the agreement. The district judge
ruled in favor of the defendant-respondent, finding that appellant had in fact cohabited as
alleged in the answer.
The sole issue presented is whether there is sufficient evidence to support that finding. We
have reviewed the record and find that the court's ruling is amply supported by substantial
evidence.
93 Nev. 545, 546 (1977) Jones v. Jones
and find that the court's ruling is amply supported by substantial evidence. Therefore, it may
not be disturbed on appeal. Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355 (1950).
Affirmed.
1

____________________

1
The Chief Justice designated Hon. David Zenoff, Justice (Retired), to sit in this case. Nev. Const. art. 6,
19.
____________
93 Nev. 546, 546 (1977) Sheriff v. Byron
v. BETTY BYRON, Respondent.
No. 9946
November 16, 1977 571 P.2d 103
Appeal from order granting pretrial petition for a writ of habeas corpus, Eighth Judicial
District, Clark County; Paul S. Goldman, Judge.
The district court entered order granting pretrial petition for writ of habeas corpus on
ground that prosecuting attorney neglected to introduce contraband as evidence at preliminary
examination, and state appealed. The Supreme Court held that where undercover narcotic
agent had testified at preliminary examination that the accused had represented that item sold
to agent was a controlled substance, it was not mandatory, in order to establish probable
cause that accused committed offense of selling a controlled substance, to introduce
contraband as physical evidence in the proceedings before the magistrate.
Reversed.
Morgan D. Harris, Public Defender, and Robert B. Amundson, Deputy Public Defender,
Criminal Law.
In order to establish probable cause that accused committed offense of selling a controlled substance, it
was not mandatory to introduce contraband as physical evidence in proceedings before magistrate
where undercover narcotic agent testified at preliminary examination that the
accused had represented that item sold was a controlled substance.
magistrate where undercover narcotic agent testified at preliminary examination that the accused had
represented that item sold was a controlled substance. NRS 50.315, 453.161, 453.321.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Betty Byron was ordered to stand trial for
selling a controlled substance (heroin), in violation of NRS 453.321 and NRS 453.161. A
pretrial petition for a writ of habeas corpus contended there was insufficient evidence to
establish probable cause to believe that Byron committed the charged offense.
The thrust of Byron's argument was that the charge must fail because the prosecuting
attorney neglected to introduce the contraband as evidence at the preliminary examination.
The district judge agreed and granted habeas. The state, contending the district judge
committed error, has appealed.
There is testimony in the transcript of the preliminary examination that Byron represented
to the principal prosecution witness (an undercover narcotic agent), that she could furnish
him with a better grade of heroin than he was getting from another source. Based on that
representation the witness testified, inter alia, that he then gave Byron fifty dollars and [s]he
handed me a red balloon which she stated was . . . three-step heroin. She stated she had tried
it and it was good.
In order to establish probable cause that the accused committed the charged offense, it is
not mandatory to introduce the contraband as physical evidence in the proceedings before the
magistrate when, as here, the accused has represented that the item sold was a controlled
substance. See United States v. Irion, 482 F.2d 1240 (9th Cir. 1973). See also NRS 50.315;
Bolden v. Sheriff, 93 Nev. 8, 558 P.2d 628 (1977), and the cases cited therein; and, Baird v.
Sheriff, 89 Nev. 286, 511 P.2d 1052 (1973). The district court's order granting the petition for
a writ of habeas corpus is reversed.
____________
93 Nev. 548, 548 (1977) Patt v. Nevada State Bd. of Accountancy
SEYMOUR HAROLD PATT, Appellant, v. NEVADA
STATE BOARD OF ACCOUNTANCY, Respondent.
No. 9758
November 16, 1977 571 P.2d 105
Appeal from order dismissing petition for review, Second Judicial District Court, Washoe
County; William N. Forman, Judge.
Appeal was taken from an order of the district court dismissing an accountant's petition
requesting judicial review of the State Board of Accountancy's revocation of his certified
public accountant's certificate based upon his conviction of embezzlement. The Supreme
Court held that the propriety of the disciplinary action stemmed from the adjudication of guilt
constituting the basis of the conviction and as such was not a penalty or disability which
would be released by the accountant's honorable discharge from probation.
Appeal dismissed.
David Dean, Reno, for Appellant.
Laxalt, Berry & Allison, Carson City, for Respondent.
Licenses.
Propriety of proceedings to suspend or revoke business or professional license stems from adjudication of
guilt constituting basis of conviction and as such it is not a penalty or disability which is released by
honorable discharge from probation. NRS 176.225, subd. 1, 628.390, subds. 5, 6.
OPINION
Per Curiam:
Appellant was convicted of embezzlement (NRS 205.300) and placed on probation for a
term of one year. Upon the satisfactory completion of probation, the district court set aside
the verdict of guilty and dismissed the information against him pursuant to NRS 176.225(1).
1
Based on the embezzlement conviction, the Nevada State Board of Accountancy revoked
appellant's certified public accountant's certificate pursuant to NRS 62S.390{5) and {6).2
____________________

1
1. Every defendant who:
(a) Has fulfilled the conditions of his probation for the entire period thereof; or
(b) Is recommended for earlier discharge by the chief parole and probation officer; or
(c) Has demonstrated his fitness for honorable discharge but because of economic hardship, verified by a
parole and probation officer, has been unable to make restitution as ordered by the court, may at any time
thereafter be permitted by the court to withdraw his
93 Nev. 548, 549 (1977) Patt v. Nevada State Bd. of Accountancy
embezzlement conviction, the Nevada State Board of Accountancy revoked appellant's
certified public accountant's certificate pursuant to NRS 628.390(5) and (6).
2

A petition, requesting judicial review of the revocation, was dismissed by the district court
and in this appeal the central contention is that the honorable discharge from probation
released appellant from all penalties and disabilities resulting from the offense and, thus,
the Board is precluded from considering the conviction as grounds for disciplinary action.
Respondent, arguing the disciplinary proceeding and consequences thereof cannot be
construed as a penalty or disability which was released under NRS 176.225(1), has moved to
dismiss.
Although we have not had occasion to so construe NRS 176.225(1), sister state decisions
involving virtually an identical statute are legion. Those cases, which we find to be well
reasoned, hold that proceedings to suspend or revoke business or professional licenses are not
included among the penalties and disabilities that are released by an honorable discharge from
probation. See, e.g., Meyer v. Board of Medical Examiners, 206 P.2d 1085 (Cal. 1949), and
its progeny. See also In re Phillips, 109 P.2d 344 (Cal. 1941).
We elect to adopt, as appropriate and applicable here, that portion of the Meyer opinion
where the court wrote that the propriety [of the disciplinary action] stems from the
adjudication of guilt constituting the basis of the conviction' and, as such, it is not a penalty'
or disability' within the contemplated release of the probation statute. 206 P.2d at 1088.
Accordingly, we grant respondent's motion and
ORDER this appeal dismissed.
____________________
plea of guilty or nolo contendere and enter a plea of not guilty; or, if he has been convicted after a plea of not
guilty, the court may set aside the verdict of guilty; and in either case, the court shall thereupon dismiss the
indictment or information against such defendant, who shall thereafter be released from all penalties and
disabilities resulting from the offense or crime of which he has been convicted. (Emphasis added.)

2
NRS 628.390(5) and (6) provide in pertinent part:
After notice and hearing . . . , the board may revoke . . . any certificate issued . . . for any one or any
combination of the following causes:
. . .
5. Conviction of a felony under the laws of any state or of the United States.
6. Conviction of any crime, an element of which is dishonesty or fraud, under the laws of any state or of the
United States.
____________
93 Nev. 550, 550 (1977) Shields v. State
CONNIE SHIELDS, Appellant, v. THE STATE
No. 9856
November 16, 1977 571 P.2d 106
Gregory, Judge.
The district court entered judgment of conviction and defendant appealed. The Supreme
Court held that sentence was not subject to being disturbed on claim that parole and probation
report contained unsubstantiated information so long as record did not demonstrate prejudice
resulting from consideration of information or accusations founded on facts supported only
by impalpable or highly suspect evidence.
Affirmed.
Horace R. Goff, State Public Defender, and J. Thomas Susich, Chief Deputy Public
Criminal Law.
Sentence was not subject to being disturbed on claim that parole and probation report contained
unsubstantiated information so long as record did not demonstrate prejudice resulting from consideration of
information or accusations founded on facts supported only by impalpable or highly suspect evidence.
OPINION
Per Curiam:
In this appeal, submitted pursuant to the mandate of Anders v. California, 386 U.S. 738
(1967), it is argued that we should reverse because the parole and probation report contained
unsubstantiated information, which was erroneously considered by the trial court when it
sentenced Connie Shields. We disagree.
In Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976), we stated: So long as the
record does not demonstrate prejudice resulting from consideration of information or
accusations founded on facts supported only by impalpable or highly suspect evidence, this
court will refrain from interfering with the sentence imposed."
93 Nev. 550, 551 (1977) Shields v. State
or highly suspect evidence, this court will refrain from interfering with the sentence
imposed. Our review of the record reveals no such prejudice. Accordingly, we affirm.
____________
93 Nev. 551, 551 (1977) Hardison v. State
MICHAEL HARDISON, Appellant, v. THE
No. 9963
November 16, 1977 571 P.2d 107
Appeal from judgment of conviction and sentence, Eighth Judicial District Court, Clark
County; John F. Mendoza, Judge.
Defendant was convicted in the district court of felonious possession of stolen property,
and he appealed. The Supreme Court held that because the delay of 144 days between the
date of defendant's arraignment and the date he was tried was caused by defendant's voluntary
actions, the State could not be charged with responsibility for the delay and there was no
violation of the statutory speedy trial provision.
Affirmed.
Gerald F. Neal, Las Vegas, for Appellant.
Criminal Law.
Despite fact that 144 days elapsed between defendant's arraignment and trial on charge of felonious
possession of stolen property, where delay was caused by fact that defendant voluntarily petitioned for a
pretrial writ of habeas corpus and then appealed from the order denying the writ and made other dilatory
motions, State could not be charged with responsibility for the delay. NRS 178.556, 205.275.
OPINION
Per Curiam:
At the conclusion of a bench trial Michael Hardison was found guilty of the felonious
possession of stolen property (NRS 205.275). After the district judge imposed a five (5) year
sentence, Hardison filed this appeal wherein his only claim of reversible error is that he
was not brought to trial within the sixty {60) day period prescribed by NRS 17S.556.
93 Nev. 551, 552 (1977) Hardison v. State
sentence, Hardison filed this appeal wherein his only claim of reversible error is that he was
not brought to trial within the sixty (60) day period prescribed by NRS 178.556. The claim is
without merit.
Although there was a period of 144 days between the date Hardison was arraigned and the
date he was tried, the delay was caused by Hardison's voluntary actions of pursuing (1) a
pretrial petition for a writ of habeas corpus; (2) an appeal from the order denying that relief;
and, (3) other dilatory motions.
We have consistently held that when, as here, an accused causes the delay in being brought
to trial within sixty (60) days that the State cannot be charged with responsibility for the
delay, . . . Maiorca v. Sheriff, 87 Nev. 63, 65, 482 P.2d 312, 313 (1971). Cf. Sheriff v.
McKinney, 93 Nev. 313, 565 P.2d 649 (1977), and cases cited therein. Accordingly, we
affirm.
____________
93 Nev. 552, 552 (1977) Harmon v. State
JUANITA HARMON, Appellant, v. THE
No. 9945
November 16, 1977 571 P.2d 108
Michael J. Wendell, Judge.
Defendant was convicted in the district court of robbery, and she appealed. The Supreme
Court held that there was substantial evidence to support verdict.
Affirmed.
Morgan D. Harris, Public Defender, and Kirk B. Lenhard, Deputy Public Defender, Clark
Robbery.
There was sufficient evidence to support robbery conviction of defendant, who was identified by
victim as perpetrator of robbery and who indicated in statements to police officers that she had committed
crime. NRS 200.380.
OPINION
Per Curiam:
Convicted by jury verdict of robbery (NRS 200.380), Juanita Harmon claims there is
insufficient evidence to support the verdict.
93 Nev. 552, 553 (1977) Harmon v. State
Harmon claims there is insufficient evidence to support the verdict. We disagree.
The record indicates, inter alia, that (1) Harmon was identified by the victim as the
perpetrator of the robbery, and (2) in statements to police officers, Harmon indicated she had
committed the crime. In light of these facts, we conclude there is substantial evidence to
support the verdict and, thus, it will not be disturbed on appeal. Watkins v. State, 93 Nev.
100, 560 P.2d 921 (1977); Nix v. State, 91 Nev. 613, 541 P.2d 1 (1975), and cases cited
therein.
Affirmed.
____________
93 Nev. 553, 553 (1977) Sheriff v. Johnson
v. MICHAEL JOHNSON, Respondent.
No. 10186
November 16, 1977 570 P.2d 1142
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and L. J.
O'Neale, Deputy District Attorney, Clark County, for Appellant.
Robert Archie, Las Vegas, for Respondent.
OPINION
Per Curiam:
On the authority of, and for the same reasons stated in, Sheriff v. Toston, 93 Nev. 394, 566
P.2d 411 (1977), the district court's order granting Michael Johnson's pretrial petition for a
writ of habeas corpus is reversed, and this proceeding is remanded with instructions to
dismiss the petition.
____________
93 Nev. 554, 554 (1977) Vargo v. State
JAMES EMERY VARGO, Appellant, v. THE
No. 9974
November 16, 1977 570 P.2d 1142
Goldman, Judge.
Affirmed.
Morgan D. Harris, Public Defender, and James B. Gibson, Deputy Public Defender, Clark
OPINION
Per Curiam:
After James Emery Vargo was convicted, by jury verdict, of murder in the first degree and
sentenced to the Nevada State Prison, he perfected this appeal.
Vargo's sole assignment of error claims the evidence was insufficient to warrant a jury
verdict of murder in the first degree. In support of this claim Vargo argues that he was so
intoxicated that he was unable to form the requisite premeditated design to support the
verdict. Earlier this year, in a case involving remarkably similar facts, that same argument
was considered and rejected. See Dearman v. State, 93 Nev. 364, 566 P.2d 407 (1977).
Accordingly, we affirm.
____________
BETTY BYRON, Respondent.
No. 9947
November 16, 1977 571 P.2d 104
Reversed.
Morgan D. Harris, Public Defender, and Robert D. Amundson, Deputy Public Defender,
OPINION
Per Curiam:
On the authority of, and for the same reasons stated in, Sheriff v. Byron, 93 Nev. 546, 571
P.2d 103 (1977), the order of the trial court which granted respondent's petition for a writ of
habeas corpus is reversed.
____________
SHERIFF, CLARK COUNTY, Appellant, v.
BETTY BYRON, Respondent.
No. 9948
November 16, 1977 571 P.2d 105
Reversed.
Morgan D. Harris, Public Defender, and Robert D. Amundson, Deputy Public Defender,
OPINION
Per Curiam:
On the authority of, and for the same reasons stated in, Sheriff v. Byron, 93 Nev. 546, 571
P.2d 103 (1977), the order of the trial court which granted respondent's petition for a writ of
habeas corpus is reversed.
____________
93 Nev. 556, 556 (1977) Gardner v. Sheriff
JOSEPH GARDNER, Appellant and Cross-Respondent, v. SHERIFF,
CLARK COUNTY, NEVADA, Respondent and Cross-Appellant.
No. 10204
November 16, 1977 571 P.2d 108
Appeal from the portion of an order which denied, in part, a petition for a writ of habeas
corpus; cross-appeal from the portion of the order which granted, in part, a petition for a writ
of habeas corpus, Eighth Judicial District Court, Clark County; Paul S. Goldman, Judge.
The Supreme Court held that: (1) record was barren of any evidence to support felony
charge of perjury contained in indictment filed against petitioner, and (2) record was also
barren of any evidence to support misdemeanor charge of failure to report child abuse
contained in indictment.
Reversed, on the appeal.
Affirmed, on the cross-appeal.
Larry C. Johns, Las Vegas, for Appellant and Cross-Respondent.
O'Neale, Deputy District Attorney, Clark County, for Respondent and Cross-Appellant.
Record was barren of any evidence to support felony charge of perjury contained in indictment filed
against petitioner. NRS 199.120.
Record was barren of any evidence to support misdemeanor charge of failure to report child abuse
contained in indictment filed against petitioner. NRS 200.502, 200.507.
OPINION
Per Curiam:
An indictment filed in the Eighth Judicial District Court, Clark County, charged Joseph
Gardner with (1) perjury (a felony under NRS 199.120); and, (2) failure to report child abuse
(a misdemeanor under NRS 200.502 and NRS 200.507). Gardner challenged the indictment
with a pretrial petition for a writ of habeas corpus. At the conclusion of the hearing habeas
was granted on the perjury charge and denied on the failure to report child abuse charge.
93 Nev. 556, 557 (1977) Gardner v. Sheriff
hearing habeas was granted on the perjury charge and denied on the failure to report child
abuse charge. Both sides have appealed.
[Headnote 1]
1. The record is barren of any evidence to support the perjury charge. Therefore, we
perceive no reversible error in the district judge's determination to grant habeas on that
charge. NRS 172.155.
[Headnote 2]
2. The record is also barren of any evidence to support the misdemeanor charge against
Gardner; thus, the district judge should have granted habeas on that count. NRS 34.390.
1

Accordingly, on Gardner's appeal from the order denying the habeas corpus challenge to
the misdemeanor count, we reverse. On the state's cross-appeal from the order granting
habeas corpus on the felony count, we affirm.
____________________

1
In view of our disposition of the case it is unnecessary to either comment on or consider the district court's
failure to forward the misdemeanor indictment to a justice court, as contemplated by NRS 172.285(1)(b). See
NRS 4.370(3)(c), which grants the justice court jurisdiction to try all misdemeanors. Cf. State of Nevada v.
Rising, 10 Nev. 97 (1875).
____________
93 Nev. 557, 557 (1977) Berry v. Sheriff
FRANKLIN FOSTER BERRY, Appellant, v. SHERIFF,
No. 10185
November 16, 1977 571 P.2d 109
Defendant filed pretrial petition for a writ of habeas corpus contending he was immune
from prosecution because information had not been timely filed. The district court denied his
petition and he appealed. The Supreme Court held that trial court did not abuse its discretion
in denying habeas because of four-day delay beyond statutory time in filing information after
preliminary examination was held.
Affirmed.
O'Neale, Deputy District Attorney, Clark County, for Respondent.
Where state neglects to file information within 15 days after holding or waiver of preliminary
examination, mandatory dismissal of charge is not automatic but rather is matter to be determined within
discretion of trial court. NRS 173.035, subd. 3, 178.556.
2. Habeas Corpus.
Trial court did not abuse its discretion in denying defendant's petition for writ of habeas corpus because
of four-day delay beyond statutory time in filing information after preliminary examination was held where
record was barren of any documentation to establish that short delay may have prejudiced defendant and
there was no suggestion of oppression or other constitutional infringement achieving magnitude of
cognizable claim. NRS 173.035, subd. 3, 178.556.
OPINION
Per Curiam:
Following a preliminary examination on August 24, 1977, Franklin Foster Berry was
ordered to stand trial for robbery (NRS 200.380). However, the state neglected to file the
information until September 12, 1977, four days after the expiration of the time period
prescribed by NRS 173.035(3).
1
Berry then filed a pretrial petition for a writ of habeas
corpus contending he was immune from prosecution because the information had not been
timely filed. Habeas was denied and Berry reasserts the same contention in this appeal. The
contention is without merit.
[Headnote 1]
NRS 178.556 provides, in part, and this court has consistently held, that the district court
may within its discretion, dismiss an information or indictment that has not been filed within
15 days after an accused has been held to answer, or, if the accused has not been afforded a
trial within 60 days after the finding of the indictment or filing of the information, . . ."
____________________

1
NRS 173.035(3) provides in pertinent part:
The information shall be filed within 15 days after the holding or waiver of the preliminary examination.
after the finding of the indictment or filing of the information, . . . See, for example, State v.
Craig, 87 Nev. 199, 484 P.2d 719 (1971). Here, Berry does not suggest there was an abuse of
discretion; rather, he argues, mistakenly, that because of the four (4) day delay, mandatory
dismissal of the charge is automatic.
[Headnote 2]
We have previously affirmed a district court order which denied habeas where there had
been a nine-day delay in filing the information. See Thompson v. State, 86 Nev. 682, 475
P.2d 96 (1970). In Thompson appellants made no showing of how or in what manner they had
been prejudiced by the delay. Id. at 683, 475 P.2d at 97. This record is also barren of any
documentation to establish that the short delay may have prejudiced Berry. Furthermore, there
is no suggestion of oppression or other constitutional infringement achieving the magnitude
of a cognizable claim. Cf. Moore v. Arizona, 414 U.S. 25 (1973).
Affirmed.
____________
93 Nev. 559, 559 (1977) Siriani v. Sheriff
JOSEPH EUGENE SIRIANI, Appellant, v. SHERIFF,
No. 10184
November 16, 1977 571 P.2d 111
Defendant, who was charged with embezzlement, filed pre-trial petition for habeas corpus.
The district court denied habeas, and defendant appealed. The Supreme Court held that: (1)
amended information sufficiently charged defendant with embezzlement; (2) evidence
adduced, at preliminary hearing, in regard to appropriation was sufficient to establish
probable cause to believe defendant had committed the charged offense; and (3) gaming
tokens could be the subject of embezzlement.
Affirmed.
Oscar B. Goodman, Las Vegas, for Appellant.
Amended information, which used wording of embezzlement statute and which stated the facts
constituting the offense in such manner as to inform accused of what was intended, sufficiently charged
accused with embezzlement. NRS 205.300.
2. Embezzlement.
Crime of embezzlement is complete whenever an appropriation is made.
3. Criminal Law.
Evidence adduced, at preliminary hearing, in regard to appropriation was sufficient to establish probable
cause to believe accused had committed the charged offense of embezzlement. NRS 205.300.
4. Embezzlement.
Gaming tokens could be the subject of embezzlement; they could be valued at their face amount. NRS
205.300.
OPINION
Per Curiam:
Appellant was employed as a dice table boxman at the Four Queens Hotel. After he was
observed through the eye in the sky removing $25 gaming tokens from the table, casino
officials relieved him of his duties and took him to an office where he was seen discarding
tokens from his clothing into a trash can. Eight $25 tokens and one 50c piece were retrieved
from the trash can.
Siriani was charged with embezzlement (NRS 205.300); and, at the conclusion of a
preliminary examination, be was ordered to stand trial for that offense. He then filed a pretrial
petition for habeas corpus contending: (1) the amended information insufficiently charged the
offense; (2) the evidence adduced at the preliminary examination did not support the charge
of embezzlement; and, (3) gaming tokens cannot be the subject of embezzlement. The district
court denied habeas and in this appeal he again asserts the same contentions, all of which we
reject.
[Headnote 1]
1. The amended information charged the crime using the wording of NRS 205.300 and set
forth, in ordinary and concise language, a statement of the acts constituting the offense in
such a manner as to inform Siriani of what was intended. Our cases have long held such
charge to be sufficient.
cases have long held such charge to be sufficient. State v. Mills, 52 Nev. 10, 279 P. 759
(1929); State v. McFarlin, 41 Nev. 486, 172 P. 371 (1918); State v. Trolson 21 Nev. 419, 32
P. 930 (1893).
[Headnotes 2, 3]
2. In support of his second contention, it is argued that the crime was not completed
because Siriani was immediately apprehended and thus had no opportunity to convert the
tokens to his own use. However, the crime of embezzlement is complete whenever an
appropriation is made. . . . Rose v. State, 86 Nev. 555, 557, 471 P.2d 262, 264 (1970). See
also Livingston v. State, 84 Nev. 403, 441 P.2d 681 (1968). Here, there is sufficient evidence
of appropriation to establish probable cause to believe appellant committed the charged
offense.
[Headnote 4]
3. We also reject the assertion that gaming tokens are not money, goods or property
which can be the subject of embezzlement and that such tokens cannot be valued at their face
amount. Cf. Luckett v. Warden, 91 Nev. 541, 539 P.2d 1219 (1975).
Affirmed.
____________
93 Nev. 561, 561 (1977) Hyler v. Sheriff
ARNOLD HYLER, Appellant, v. SHERIFF, CLARK
No. 9983
November 17, 1977 571 P.2d 114
The Supreme Court held that: (1) the institution of grand jury process, during pendency of
criminal complaint, did not constitute abuse of prosecutorial power; (2) record failed to
establish existence of exculpatory evidence which should have been brought to grand jury's
attention pursuant to statute, in proceedings on charge of sale of a controlled substance; (3) it
was not mandatory for prosecuting attorney to instruct grand jury on the law; and (4) where it
could be concluded from evidence as a whole that act of sale of a controlled substance had
been committed at place alleged, the absence of positive proof that the alleged crime
occurred at a specific place, that is, in particular county, did not render grand jury
proceedings defective for failure to establish probable cause.
proof that the alleged crime occurred at a specific place, that is, in particular county, did not
render grand jury proceedings defective for failure to establish probable cause.
Affirmed.
Morgan D. Harris, Public Defender, and George E. Franzen, Deputy Public Defender,
1. Indictment And Information.
A felony may be prosecuted by indictment or by information.
Absent an abuse of power vested in prosecutor, the State may proceed against an accused by indictment
even though a charge involving the same offense is pending in the justice court.
The institution of grand jury process, during pendency of criminal complaint, did not constitute abuse of
prosecutorial power, notwithstanding assertion that the grand jury proceedings deprived defendant of right
to interrogate a police informant at preliminary examination, absent evidence indicating that grand jury
proceedings had been instituted merely to deprive defendant of meaningful access to witness in question.
4. Grand Jury.
Record failed to establish existence of exculpatory evidence which should have been brought to grand
jury's attention pursuant to statute, in proceedings on charge of sale of a controlled substance. NRS
172.145, 453.171, 453.321.
5. Grand Jury.
It was not mandatory for prosecuting attorney to instruct grand jury on the law.
Where it could be concluded from evidence as a whole that act of sale of a controlled substance had been
committed at place alleged, the absence of positive proof that the alleged crime occurred at a specific
place, that is, in particular county, did not render grand jury proceedings defective for failure to establish
probable cause.
OPINION
Per Curiam:
Arnold Hyler was accused of the sale of a controlled substance (NRS 453.321; NRS
453.171) by a criminal complaint dated February 26, 1975. Due to various delays and
continuances, none of which were initiated by the State, preliminary examination was
ultimately rescheduled for May 24, 1976.
examination was ultimately rescheduled for May 24, 1976. Prior to that date, on April 15,
1976, a True Bill by the Clark County Grand Jury resulted in an indictment charging Hyler
with the exact offense charged in the criminal complaint. As a result of the indictment's filing,
the complaint was dismissed on motion by the district attorney.
Hyler then challenged the indictment with a pretrial petition for writ of habeas corpus
contending: (1) the institution of the grand jury process constituted an abuse of prosecutorial
power; (2) the prosecution failed to present exculpatory evidence to the grand jury; (3) the
prosecution did not instruct the grand jury on the law; and, (4) there was insufficient evidence
to establish probable cause to hold him for trial because there was no positive proof that the
crime charged was committed in Clark County, Nevada. The district judge rejected these
challenges and in this appeal the same contentions are reasserted.
[Headnotes 1, 2]
1. In Nevada a felony may be prosecuted by indictment or by information. Cairns v.
Sheriff, 89 Nev. 113, 508 P.2d 1015 (1973). Absent an abuse of power vested in the
prosecutor, the State may proceed against an accused by indictment even though a charge
involving the same offense is pending in the justice court. State v. Maes, 93 Nev. 49, 559
P.2d 1184 (1977).
[Headnote 3]
Relying on Routhier v. Sheriff, 93 Nev. 149, 560 P.2d 1371 (1977), Hyler contends the
grand jury proceedings constituted prosecutorial abuse because it deprived him of the right to
interrogate a police informant at the preliminary examination.
In our view, Routhier is inapposite. Except for Hyler's unsupported allegation, there is
nothing in the record to indicate that the grand jury proceedings were instituted merely to
deprive him meaningful access to the witness. Under these circumstances, we perceive no
abuse of prosecutorial power. Cf. State v. Maes, supra.
[Headnote 4]
2. Next Hyler argues the prosecutor should have advised the grand jury of the informant's
participation in the transaction and of possible exculpatory evidence. The record discloses the
grand jury was told of the informant's participation. Further, we have not been directed to nor
have we been able to find any demonstrative facts establishing the existence of exculpatory
evidence which should have been brought to the grand jury's attention pursuant to NRS
172.145.1
exculpatory evidence which should have been brought to the grand jury's attention pursuant to
NRS 172.145.
1

[Headnote 5]
3. The third contention is without merit because it is not mandatory for the prosecuting
attorney to instruct the grand jury on the law. Phillips v. Sheriff, 93 Nev. 309, 565 P.2d 330
(1977).
[Headnote 6]
4. The last contention is also rejected. Where, as here, it can be concluded from the
evidence as a whole that the act was committed at the place alleged,' the absence of positive
proof that the alleged crime occurred at a specific place does not render the proceedings
defective. Najarian v. Sheriff, 87 Nev. 495, 496, 489 P.2d 405 (1971). See also Dixon v.
State, 83 Nev. 120, 424 P.2d 100 (1967).
Affirmed.
____________________

1
The grand jury is not bound to hear evidence for the defendant. It is their duty, however, to weigh all
evidence submitted to them, and when they have reason to believe that other evidence within their reach
will explain away the charge, they must order such evidence to be produced, and for that purpose may
require the district attorney to issue process for the witnesses.
____________
93 Nev. 564, 564 (1977) Gaston v. Sheriff
MARVIN CURTIS GASTON, Appellant, v. SHERIFF,
No. 9982
November 17, 1977 570 P.2d 1142
Affirmed.
Robert E. Wolf, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George E.
93 Nev. 564, 565 (1977) Gaston v. Sheriff
Holt, District Attorney, and H. Leon Simon, Deputy District Attorney, Clark County, for
Respondent.
OPINION
Per Curiam:
On the authority of, and for the same reasons stated in, Hyler v. Sheriff, 93 Nev. 561, 571
P.2d 114 (1977), we affirm the district court's order denying appellant's petition for a writ of
habeas corpus.
____________
93 Nev. 565, 565 (1977) Thomas v. State
JOHN THOMAS, Appellant, v. THE STATE
No. 9812
November 17, 1977 571 P.2d 113
Gregory, Judge.
Defendant was convicted before the district court of attempted escape, and he appealed.
The Supreme Court held that: (1) alleged infirmities regarding proof of prior convictions
could not be raised for first time on appeal and (2) requested jury instruction was properly
refused where it did not correctly state the law.
Affirmed.
Horace R. Goff, State Public Defender, and Robert B. Walker, Jr., Deputy Public
1. Criminal Law.
Where validity of prior convictions was not challenged at trial and defendant stipulated that exemplified
copies of such convictions could be taken as evidence of the habitual criminal charge, challenge to alleged
infirmities regarding proof of the prior convictions could not be raised for first time on appeal. NRAP
34(f)(1).
2. Criminal Law.
Requested instructions were properly refused where they did not correctly state the law.
3. Criminal Law.
Where there was no challenge below to alleged erroneous information in probation report, such claim
could not be considered for first time on appeal.
OPINION
Per Curiam:
John Thomas was convicted, by jury verdict, of attempted escape from the Nevada State
Prison where he was serving three consecutive ten-year sentences for burglary, robbery and
escape. A consecutive sentence of twelve (12) years was imposed as enhanced punishment
because Thomas was adjudicated to be an habitual criminal.
[Headnotes 1-3]
In this appeal Thomas asks that we reverse because of (1) infirmities regarding proof of his
prior convictions; (2) the failure of the trial judge to give a requested jury instruction; and, (3)
erroneous information in the parole and probation report.
1. The validity of the two prior convictions was not challenged in the trial court. In fact,
during trial, Thomas stipulated that exemplified copies of those two convictions (entered in
1975 pursuant to guilty pleas on charges of robbery and burglary), shall be taken as evidence
of the charge of Habitual Criminal, as alleged in Count II of the information.
Under these circumstances, and [i]nasmuch as there was no objection by defense counsel
. . . we decline to consider the assigned error, which was raised for the first time on appeal.
Allen v. State, 91 Nev. 78, 81-2, 530 P.2d 1195, 1197 (1975). See Osborne v. United States,
351 F.2d 111, 120 (8th Cir. 1965), where, under analogous facts, the court said: It is
fundamental that issues not raised in the trial court cannot be raised upon appeal.
2. The requested jury instruction did not correctly state the law; thus, the judge's refusal to
give the instruction did not constitute error. See Flynn v. State, 93 Nev. 247, 562 P.2d 1135
(1977), and cases cited therein.
3. Since there was no challenge below to the now-alleged erroneous information in the
probation report, we decline to consider the claim for the first time at this juncture. See
Kershaw v. State, 93 Nev. 290, 564 P.2d 607 {1977). Cf. Silks v. State, 92 Nev. 91
Kershaw v. State, 93 Nev. 290, 564 P.2d 607 (1977). Cf. Silks v. State, 92 Nev. 91, 545 P.2d
1159 (1976).
Having examined the briefs and record, we order this appeal submitted on such briefs and,
finding it without merit, hereby affirm. NRAP 34(f)(1).
____________
93 Nev. 567, 567 (1977) Sheriff v. Cunha
v. ARTHUR CUNHA, Respondent.
No. 10243
November 17, 1977 571 P.2d 112
After preliminary examination, defendant was ordered to stand trial for possession of a
forged instrument, and he petitioned for writ of habeas corpus. The district court granted
petition, and State appealed. The Supreme Court held that: (1) the evidence at the preliminary
hearing was sufficient to establish probable cause, and (2) assuming that it was mandatory to
prove the corporate existence of the bank whose travelers checks were stolen and of the hotel
where defendant allegedly attempted to cash them, this was sufficiently done by general
reputation evidence.
Reversed.
O'Neale, Deputy District Attorney, Clark County, for Appellant.
Jeffrey D. Sobel, Las Vegas, for Respondent.
1. Criminal Law.
To establish probable cause at preliminary hearing, evidence need only support a reasonable inference
that defendant probably committed the charged offense. NRS 171.206.
2. Criminal Law.
Evidence at preliminary examination that blank travelers checks had been stolen, that defendant came
into possession of some of them, and that without authority he completed and filled in the checks and
attempted to cash them established probable cause to believe that defendant committed
charged offense of possession of a forged instrument.
cause to believe that defendant committed charged offense of possession of a forged instrument. NRS
205.160.
3. Corporations.
Assuming that, for purpose of establishing probable cause at preliminary examination on charge of
possession of a forged instrument, it was mandatory to prove the corporate existence of the bank whose
travelers checks were stolen and the hotel where defendant allegedly tried to cash them, this was
sufficiently done by general reputation evidence. NRS 175.241.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Arthur Cunha was ordered to stand trial
for possession of a forged instrument, a violation of NRS 205.160.
1
Cunha then petitioned
for a writ of habeas corpus contending: (1) there was insufficient evidence to establish
probable cause to believe he committed the charged offense; and, (2) there was no proof of
the corporate existence of the victim. The district court granted his petition and the State has
appealed.
1. Evidence adduced at the preliminary examination established, inter alia, that blank
Bank of America travelers checks had been stolen, Cunha came into possession of some of
these checks, and, without authority, he then completed and filled in the checks and attempted
to cash them at the MGM Grand Hotel in Las Vegas.
[Headnotes 1, 2]
In our view, Nevada's probable cause requirement was satisfied. The evidence need only
support a reasonable inference that Cunha probably committed the charged offense. NRS
171.206; State v. von Brincken, 86 Nev. 769, 476 P.2d 733 (1970). We believe the recited
factual circumstances amply support such an inference.
[Headnote 3]
2. Even if we accept Cunha's conclusion that, for the purpose of establishing probable
cause, it was mandatory for the prosecuting attorney to prove the corporate existence of
the MGM Grand Hotel or the Bank of America, this was sufficiently done by general
reputation evidence as permitted by NRS 175.241.2
____________________

1
NRS 205.160 provides in pertinent part:
Every person who . . . has or keeps in his possession any blank or unfinished . . . travelers check, . . . with
intention to fill up and complete such blank and unfinished note or bill, . . . or cause, . . . the same to be filled up
and completed in order to utter or pass the same, . . . or cause, . . . the same to be uttered and passed to defraud
any . . . body politic or corporate, . . . shall, . . . be punished by imprisonment in the state prison for a term of not
less than 1 year or more than 10 years, or by a fine of not more than $5,000, or by both fine and imprisonment.
purpose of establishing probable cause, it was mandatory for the prosecuting attorney to
prove the corporate existence of the MGM Grand Hotel or the Bank of America, this was
sufficiently done by general reputation evidence as permitted by NRS 175.241.
2

Reversed.
____________________

2
If, upon a trial or proceeding in a criminal case, the existence, constitution or powers of any corporation
shall become material, or be in any way drawn in question, it is not necessary to produce a certified copy of the
articles or acts of incorporation, but the same may be proved by general reputation, or by the printed statutes of
the state, or government, or country by which such corporation was created.
____________
93 Nev. 569, 569 (1977) Alper v. Clark County
ARBY W. ALPER and RUTH ALPER, Appellants,
v. CLARK COUNTY, NEVADA, Respondent.
No. 8412
November 17, 1977 571 P.2d 810
Appeal from an order dismissing an action in inverse condemnation; Eighth Judicial
The Supreme Court, Mowbray, J., held that: (1) six months' claims statutes should not be
construed to apply to action for inverse condemnation since to do so would deny due process
of constitutionally guaranteed right and (2) where county promised not to assert any
prescriptive rights in property, owners were not barred from proceeding by other statutes of
limitation.
Reversed and remanded for a trial on the merits.
George Rudiak Chartered, Las Vegas, for Appellants.
Robert List, Attorney General, Carson City; George Holt, District Attorney, and Melvin R.
Whipple, Deputy District Attorney, Clark County, for Respondent.
Guild, Hagen & Clark, Ltd., and Constance L. Howard, Reno, for Amicus Curiae Nevada
Taxpayers' Association.
Lionel Sawyer & Collins and Steve Morris, Las Vegas, for Amicus Curiae MGM Grand
Hotel, Inc.
Constitutional provision for right to just compensation for private property taken for public use, as
prohibitions on state and federal government, are self-executing and thus give rise to cause of action
regardless of whether Legislature has provided any statutory procedure authorizing one. U.S.C.A.Const.
Amend. 5; Const. art. 1, 8.
2. Eminent Domain.
Right to just compensation for private property taken for public use cannot be abridged or impaired by
statute. U.S.C.A. Const. Amend. 5; Const. art. 1, 8.
3. Constitutional Law; Eminent Domain.
Suit for inverse condemnation is action to vindicate right created and guaranteed by the Fifth
Amendment, which states that private property shall not be taken for public use without payment of just
compensation, and is applicable to the states by way of the Fourteenth Amendment. U.S.C.A.Const.
Amends. 5, 14.
Claims statutes, which required persons to give county notice of claim or demand within six months from
time claim or account became due or payable and required compliance with it which, in case of inverse
condemnation, would allow state to impose precondition to sue on federally created and protected right,
did not apply to action for inverse condemnation, since to do so would have denied property owners due
process of their constitutional right to just compensation for private property taken for public use. NRS
244.245, 244.250; U.S.C.A.Const. Amends. 5, 14; Const. art. 1, 8.
5. Counties; Limitation of Actions.
Property owners were not barred from proceeding against county, which had promised not to assert any
prescriptive rights in property, in inverse condemnation action by either one-year limitation period for all
claims against county or by four-year period for all actions otherwise unprovided for. NRS 11.190, subd.
5(b), 11.220.
OPINION
The principal issue presented is whether NRS 244.245
1
and NRS 244.250,
2
the Six
Months' Claims Statutes, apply to a claim for damages in an inverse condemnation
proceeding brought by a property owner against a county.
____________________

1
NRS 244.245(1):
1. No person shall sue a county in any case for any demand, unless he shall first present his claim or demand
to the board of county commissioners and the county auditor for allowance and approval, and if they fail or
refuse to allow the same, or some part thereof, the person feeling aggrieved may sue the county.

2
NRS 244.250:
1. All unaudited claims or accounts against any county shall be presented to the board of county
commissioners within 6 months from the time such claims or accounts become due or payable.
2. No claim or account against any county shall be audited, allowed
claim for damages in an inverse condemnation proceeding brought by a property owner
against a county. The district judge, in dismissing the complaint, held the statutes applicable
and constitutional. The appellants, Arby W. Alper and Ruth Alper, who commenced this
action, have appealed.
1. Appellants acquired in May 1959 a parcel of real property 225 feet wide and 1,000 feet
long, located on the south side of Flamingo Road in Clark County. This case is focused on a
portion of that property, originally fronting on the south side of Flamingo Road, and now part
of that road, measuring about 50 by 1,000 feet. For clarity, this portion shall be referred to as
Parcel 1 and the remainder as Parcel 2.
In November 1966, appellants leased both parcels to Bonanza, a Nevada corporation, to be
used as a parking lot. The lease was for a term ending in May 1972 with an option to extend
for 50 years. Prior to the execution of the lease, respondent, Clark County, requested
appellants to dedicate Parcel 1 to the respondent, so that Flamingo could be widened.
Appellants refused to do so. In March 1967, as a condition to securing building permits,
Bonanza granted a 52-year easement over Parcel 1 to respondent. Construction was begun on
Parcel 1 for widening Flamingo Road in May 1967.
Later, Bonanza filed a voluntary petition in bankruptcy in the federal court. During the
bankruptcy proceedings in 1967, appellants appeared before the board of county
commissioners to protest the improvements on Parcel 1. After a series of conferences, the
county authorities wrote to appellants, acknowledging appellants' ownership of Parcel 1 and
the limited interest conveyed by their lessee, Bonanza, and promising not to assert any
prescriptive rights to the parcel.
3

Appellants filed the present action on July 31, 1972, without having filed a claim with the
county. After a pretrial conference, District Judge J. Charles Thompson dismissed the action.
____________________
or paid by the board of county commissioners, or any other officer of the county, unless the provisions of
subsection 1 are strictly complied with.

3
The June 19, 1968, letter to Alper provided in part:
The County further recognizes that you have an underlying fee to the property and the County will not
contend that because of the continued use of the property as a thoroughfare that [sic] any prescriptive right to a
street easement can be obtained.
Very truly yours,
[signed] James M. Bartley
JAMES M. BARTLEY
Chief Civil Deputy
action. He determined that Parcel 1 was taken by respondent as a matter of law in May
1967, that NRS 244.245 did apply to actions for inverse condemnation, that such application
was constitutional, and that appellants' failure to satisfy the statute barred the present action.
[Headnotes 1, 2]
2. Appellants seek reversal on the principal ground that NRS 244.245 and 244.250, as
applied to actions in inverse condemnation, result in an undue restriction on a federally
created and protected right that private property shall not be taken for a public use without the
payment of just compensation. The right to just compensation for private property taken for
the public use is guaranteed by both the United States and the Nevada Constitutions. U.S.
Const. amend. V; Nev. Const. art. 1, 8. These provisions, as prohibitions on the state and
federal governments, are self-executing. See Wren v. Dixon, 40 Nev. 170, 190-191, 161 P.
722, 728 (1916). The effect of this is that they give rise to a cause of action regardless of
whether the Legislature has provided any statutory procedure authorizing one. As a corollary,
such rights cannot be abridged or impaired by statute.
In Alexander v. State, 381 P.2d 780, 782 (Mont. 1963), the court held that compliance
with a claim filing statute was not a condition precedent to an action in inverse
condemnation, on the ground that such constitutional guaranty needs no legislative support,
and is beyond legislative destruction' (quoting McElroy v. Kansas City, 21 F. 257
(C.C.W.D.Mo. 1884)). Similarly, in Hollenbeck v. City of Seattle, 153 P. 18, 19 (Wash.
1915), the court held that, because inverse condemnation was based on a constitutional right,
no notice of the claim was essential nor could it be required.
In Willis v. Reddin, 418 F.2d 702 (9th Cir. 1969), a claim filing statute established by the
California Tort Claims Act was held to violate due process as applied to a civil rights action.
The United States district court had sustained a motion to dismiss a civil rights complaint
against a county sheriff, on the ground that the notice and time requirements of the California
Tort Claims Act were applicable but had not been followed. The California Tort Claims Act
waived in certain instances the sovereign immunities of certain public entities, and obligated
the public entities to pay judgments rendered against officers and employees acting within
the scope of their employment.
against officers and employees acting within the scope of their employment. Cal. Gov't Code
825 (West 1966) (amended, West Supp. 1977). The Act also required that claims of the
character asserted in that case be presented to the public entity within 100 days after the
accrual of the cause and that the action be commenced within six months after the claim was
acted upon. Cal. Gov't Code 911.2 (West 1966).
In holding that the motion to dismiss should not have been sustained and that there was no
necessity of compliance with 911.2, the Ninth Circuit Court of Appeals noted as follows:
In California[,] statutes or ordinances which condition the right to sue the sovereign
upon timely filing of claims and actions are more than procedural requirements. They
are elements of the plaintiff's cause of action and conditions precedent to the
maintenance of the action. When the action is against the public employee rather than
the public entity such statutes are given the same effect.
While it may be completely appropriate for California to condition rights which
grow out of local law and which are related to waivers of the sovereign immunity of the
state and its public entities, California may not impair federally created rights or impose
conditions upon them. Were the requirements of the Tort Claims Act nothing more than
procedural limitations we would in fashioning the remedial details applicable to the
federally created right involved here, determine whether the California courts would
apply the requirements of the California Tort Claims Act. However[,] since the
requirements of that Act, under the interpretations of the California courts, condition
the right, we think it would be singularly inappropriate to fashion a federal procedural
detail by any reference to it.
Willis v. Reddin, 418 F.2d at 704-705 (footnotes omitted).
Because 911.2 was a condition on the right to sue, an element of the plaintiff's cause of
action and a condition precedent to the maintenance of suit in California law, the Ninth
Circuit Court of Appeals refused to apply that section as a bar to suit on a federally created
and protected right. See also Reed v. Hutto, 486 F.2d 534 (8th Cir. 1973).
[Headnotes 3, 4]
In the instant case it is clear that, if applied to actions of inverse condemnation, NRS
244.245 and 244.250 would be conditions on the right to sue.
inverse condemnation, NRS 244.245 and 244.250 would be conditions on the right to sue.
The Fifth Amendment to the United States Constitution states that private property shall not
be taken for a public use without the payment of just compensation. A suit for inverse
condemnation is an action to vindicate the right created and guaranteed by the Fifth
Amendment and is applicable to the states by way of the Fourteenth Amendment. To impose
a requirement of compliance with our claims statutes would allow a state to impose a
precondition to sue on a federally created and protected right. The imposition of such a
prerequisite to sue is an impairment of a federal right not countenanced by the ruling of the
Ninth Circuit in Willis. Consequently, if we were to assume in the case at hand that the claims
statutes were intended to cover actions for inverse condemnation, such application would, in
our opinion, be unconstitutional.
Therefore, we hold that the claims statutes should not be construed to apply to actions for
inverse condemnation, for to do so would deny due process of a constitutionally guaranteed
right.
[Headnote 5]
3. Respondent contends that, even if the claims statutes are not a bar, this action is
foreclosed by the statute of limitations. The trial judge found that the taking occurred on May
8, 1967, and that the action was not commenced until July 31, 1972, over five years later.
Respondent argues that NRS 11.190 (5)(b), which provides a one-year limitation period for
all claims against a county, bars the action. In the alternative, it is suggested that NRS 11.220,
which provides a four-year period for all actions otherwise unprovided for, should bar it. Cf.
Frustuck v. City of Fairfax, 28 Cal.Rptr. 357 (1963).
Here, however, the record shows an avoidance of the statute. The Respondent County, in
its letter of June 19, 1968, promised not to assert any prescriptive rights in the property. See
footnote 3, supra. As a result, the appellants are not now barred from proceeding in the
instant case.
We reverse and remand the case for a trial on the merits.
4

Batjer, C. J., and Thompson, Gunderson, and Zenoff, JJ., concur.
____________________

4
The Chief Justice designated Hon. David Zenoff, Justice (Retired), to sit in this case. Nev. Const. art. 6,
19.
____________
93 Nev. 575, 575 (1977) State v. Ellison Ranching Co.
STATE OF NEVADA, Appellant, v. ELLISON RANCHING
COMPANY, a Nevada Corporation, Respondent.
No. 9208
November 18, 1977 571 P.2d 394
Appeal from a declaratory judgment of the Fourth Judicial District Court, Elko County;
Joseph 0. McDaniel, Judge.
Action was brought to determine what interest, if any, State had in mineral rights of
properties acquired in state patent by plaintiff's predecessors in interest. The district court
entered judgment for plaintiff and the State appealed. The Supreme Court held that, under
statute declaring that all sales of land selected under 1880 federal grant of land to Nevada by
Congress were subject to a reservation of all mines of gold, silver, copper, lead, cinnabar and
other valuable minerals that may exist in such land, only mines existing at time the patent was
issued were reserved; thus State had no rights to convey by 1921 statute purporting to convey
to all patentees of selected lands title to all minerals discovered therein and had no power to
impose a royalty payment on its patentees and plaintiff had sole right to minerals which might
be discovered in its land and had no obligation to pay royalties to State.
Affirmed.
Robert List, Attorney General, and L. William Paul, Deputy Attorney General, Carson
Vaughan, Hull, Marfisi & Miller, Ltd., Elko, for Respondent.
Mines and Minerals.
Under statute declaring that all sales of land selected under 1880 federal grant of land to Nevada by
Congress were subject to a reservation of all mines of gold, silver, copper, lead, cinnabar and other
valuable minerals that may exist in such land, only mines existing at time patent was issued were reserved;
thus State had no rights to convey by 1921 statute purporting to convey to all patentees of selected lands
title to all minerals discovered and had no power to impose royalty payment on its patentees and patentee's
successor in interest had sole right to minerals which might be discovered in its land and had no obligation
to pay royalties to State. NRS 321.300, 321.332, 321.332, subd. 1; Act March 21, 1S64, 7, 13
Stat.
21, 1864, 7, 13 Stat. 30; Act June 16 3, 21 Stat. 287; Stats. Nev. 1887, ch. 103, 1, 2.
OPINION
Per Curiam:
Ellison Ranching Company, the respondent, brought this action to determine what interest,
if any, the State of Nevada had in the gas, coal, oil, and other mineral rights of properties
acquired in a state patent by Ellison's predecessors in interest. NRS 321.332, subsection 1.
1
The district judge ruled that the State had no such rights in the properties; hence this appeal.
2

In 1864, the Congress granted to Nevada sections 16 and 36 of every township in the State.
Nevada had the right to sell the land, providing the proceeds therefrom were used to support
the public schools. Act of March 21, 1864, ch. 36, 7, 13 Stat. 30, 32 (1864). Because much
of the land proved unmarketable, Congress in 1880 granted, in lieu of the prior grant, two
million acres of land that was to be selected from unappropriated, nonmineral public land.
____________________

1
NRS 321.332(1):
1. Every person, corporation or association, his, her or its heirs, assigns or lawful successors referred to in
NRS 321.331, who is entitled to any lands that may have been purchased by him, her or it, or his, her or its
predecessors in interest, from the State of Nevada subsequent to March 3, 1887, or who has a separate estate in
the minerals, including any gas, coal, oil and oil shales existing in such land, arising from a conveyance or
reservation of mineral rights by such an immediate or remote grantee of the state, may bring an action in the
district court of this state in and for any county where such lands or any part thereof are situate to determine by
declaratory judgment of such court whether or not the State of Nevada has any rights to any minerals therein,
including any oil, gas, coal and oil shales and, if possible, the extent thereof, and the State of Nevada hereby
consents to the bringing of any such action or actions.

2
The properties are located in Elko County and are described as follows:
TOWNSHIP 40 NORTH, RANGE 53 EAST, M.D.B.&M.:
Section 11: SW 1/4 SW 1/4; E 1/2 SE 1/4
Section 12: NE 1/4 NW 1/4
Section 14: NE 1/4 SW 1/4
Section 22: SE 1/4 SE 1/4
Section 23: NW 1/4 NW 1/4; SE 1/4 NW 1/4
TOWNSHIP 40 NORTH, RANGE 54 EAST, M.D.B.&M.:
Section 5: SE 1/4 SW 1/4
Section 6: Lots 7 and 10
Section 7: Lot 2; NW 1/4 NE 1/4
Section 8: SW 1/4 NE 1/4; N 1/2 SW 1/4
Section 3 of the 1880 act provided that Nevada could prescribe laws governing the sale of
the in-lieu lands. Act of June 16, 1880, ch. 245, 3, 21 Stat. 287, 288 (1880). In 1887 Nevada
did enact a statute declaring that all sales of land selected under the 1880 federal grant were
subject to a reservation of all mines of gold, silver, copper, lead, cinnabar and other valuable
minerals that may exist in such land. Act of Mar. 3, 1887, ch. 103, 2, 1887 Nev. Stats. at
103.
3
Nevada, in the Act of 1887, disclaimed any interest in those minerals and required
persons desiring title to them to seek title from the federal government. This provision of the
Act was predicated on Nevada's misconception that the grant had reserved the mineral right to
the federal government.
The patents covering the lands the subject of this action were issued to respondent's
predecessors in interest on August 16, 1916, and contained the following reservation,
pursuant to the Act of 1SS7: "Provided that all mines of gold, silver, copper, lead,
cinnabar and other valuable minerals which may exist in said tract are hereby expressly
reserved."
____________________

3
Act of Mar. 3, 1887, ch. 103, 1887 Nev. Stats. at 102-103 ( 1, later NRS 516.010, was repealed by Act of
March 27, 1969, ch. 175, 2, 1969 Nev. Stats. at 248; 2, later NRS 516.020, was repealed by Act of April 18,
1963, ch. 376, 2, 1963 Nev. Stats. at 823):
SECTION 1. The several grants made by the United States to the State of Nevada reserved the
mineral lands. Sales of such lands made by the State were made subject to such reservation. Any citizen
of the United States, or person having declared his intention to become such, may enter upon any mineral
lands in this State, notwithstanding the State's selection, and explore for gold, silver, copper, lead,
cinnabar, or other valuable mineral, and upon the discovery of such valuable mineral may work and mine
the same in pursuance of the local rules and regulations of the miners and the laws of the United States;
provided, that after a person who has purchased land from the State has made valuable improvements
thereon, such improvements shall not be taken or injured without full compensation. But such
improvement may be condemned for the uses and purposes of mining in like manner as private property
is by law condemned and taken for public use. Mining for gold, silver, copper, lead, cinnabar, and other
valuable mineral, is the paramount interest of this State, and is hereby declared to be a public use.
SEC. 2. Every contract, patent or deed hereafter made by this State, or the authorized agents thereof,
shall contain a provision expressly reserving all mines of gold, silver, copper, lead, cinnabar and other
valuable minerals that may exist in such land, and the State, for itself and its grantees, hereby disclaims
any interest in mineral lands heretofore or hereafter selected by the State . . . on account of any grant
from the United States. All persons desiring titles to mines upon lands which have been selected by the
State, must obtain such title from the United States under the laws of Congress, notwithstanding such
selection. [Ellipsis is for erroneous duplication of words amended out of this section by Act of Mar. 5,
1897, ch. 35, 1897 Nev. Stats. at 36.] [Emphasis added.]
16, 1916, and contained the following reservation, pursuant to the Act of 1887: Provided
that all mines of gold, silver, copper, lead, cinnabar and other valuable minerals which may
exist in said tract are hereby expressly reserved.
In 1921, Nevada enacted a statute purporting to convey to all patentees of selected lands
title to all minerals discovered therein, subject to royalties payable to State of five percent of
the net proceeds of all gas, coal, and oil mined or extracted therefrom.
4

State contends that the reservation in the Act of 1887 and the patents issued pursuant to it
included not only mines existing at the time the patents were issued, but also all minerals
discovered anytime thereafter. State therefore argues that, since it retained those rights, the
1921 statute conscripting them to patentees subject to payment of royalties on the mined or
extracted gas, coal, and oil is valid and binding upon respondent's properties.
The court below held that the reservation in the patents applied only to mines existing at
the time the patents were issued. We agree. In Davis's Adm'r v. Weibbold, 139 U.S. 507, 517
(1891), certain land had been acquired by patent pursuant to a statute declaring that "no
title shall be acquired . . . to any mine of gold, silver, cinnabar or copper; or to any valid
mining claim or possession held under existing laws."
____________________

4
Act of Mar. 22, 1921, ch. 172, 1921 Nev. Stats. at 261 (now NRS 321.300):
SECTION 1. Every person, corporation, or association, his, her, or its heirs, assigns or lawful
successors, who has a subsisting contract with the State of Nevada for the purchase of any lands of the
State of Nevada or who may hereafter contract with the State of Nevada for the purchase of any of its
public lands, and every patentee of lands purchased from the State of Nevada, shall, subject to the royalty
provision hereinafter reserved, be deemed and held to have the right to the exclusive possession of the
lands described in such contract, including all gas, coal, oil and oil shales that may exist in such lands;
and every person, corporation, or association, his, her, or its heirs, assigns, or lawful successors, who has
heretofore received or shall hereafter receive or be entitled to receive any patent or deed from this state
granting to him, her or it any such lands, shall, subject to the royalty provision hereinafter reserved, be
deemed to have the fee-simple title to the lands described in such patent or deed, including all gas, coal,
oil and oil shales which may exist therein; provided, however, that any such contract holder or patentee
shall pay to the State of Nevada for the fund which was the original beneficiary of such lands a royalty of
five (5%) per cent of the net proceeds of all gas, coal, or oil mined or extracted therefrom.
SEC. 2. Nothing in this act contained shall be construed as impairing any rights heretofore acquired
under existing laws to any such lands or rights therein.
SEC. 3. All acts or parts of acts in conflict herewith are hereby repealed.
pursuant to a statute declaring that no title shall be acquired . . . to any mine of gold, silver,
cinnabar or copper; or to any valid mining claim or possession held under existing laws. The
court concluded that the patentee's entry of a mining claim after gaining title to the land did
not deprive him of his title. While conceding that the statutory provision might be read as a
reservation of all mineral rights, it noted that this was not its necessary meaning:
[I]n strictness they import only that the provisions by which the title to the land in such
town sites is transferred shall not be the means of passing a title also to mines of gold,
silver, cinnabar or copper in the land, or to valid mining claims or possessions thereon.
They are to be read in connection with the clause protecting existing rights to mineral
veins; and with the qualification uniformly accompanying exceptions in acts of
Congress of mineral lands from grant or sale. Thus read they must be held, we think,
merely to prohibit the passage of title under the provisions of the town site laws to
mines of gold, silver, cinnabar or copper, which are known to exist, on the issue of the
town-site patent, and to mining claims and mining possessions, in respect to which such
proceedings have been taken under the law or the custom of miners, as to render them
valid, creating a property right in the holder, and not to prohibit the acquisition for all
time of mines which then lay buried unknown in the depths of the earth.
Davis's Adm'r v. Weibbold, 139 U.S. at 518-519.
State attempts to distinguish this case from Weibbold on the basis of language used in the
statutes and patents. The 1887 Act reserved all mines that may exist, while the statute in
Weibbold reserved mines known to exist at the time the patent has issued. State's argument is
not well taken. The statute in Weibbold reserved any mine . . . or . . . any . . . mining claim
held under existing laws. This trivial difference from the language of the 1887 Act is
insufficient to support significantly different interpretations.
We believe that if the Legislature had intended to impose the far-reaching limitation on the
land patented it would have expressed an intention to do so. As noted in Weibbold:
If land, which a party has actually occupied, possessed and peacefully enjoyed for a
long series of years, claiming title under a patent of the United States fifteen years old,
can be entered upon and prospected for a mine by any trespasser who chooses to do
so, and a mine being found, the mine can be located, and taken out of the patent on
the vague and uncertain exception in the patent in question, it can be done fifty, or
a hundred years hence, and the patent instead of being a muniment of title upon
which the patentee, or his grantees can rest in security, would be but a delusion,
and a snare.
old, can be entered upon and prospected for a mine by any trespasser who chooses to do
so, and a mine being found, the mine can be located, and taken out of the patent on the
vague and uncertain exception in the patent in question, it can be done fifty, or a
hundred years hence, and the patent instead of being a muniment of title upon which the
patentee, or his grantees can rest in security, would be but a delusion, and a snare.
Cowell v. Lammers, 10 Sawyer 246, 247, 21 F. 200 (D.C. Cir. 1884), as cited in Davis's
Adm'r v. Weibbold, 139 U.S. at 521.
Since the language of the reservation can be reasonably construed only as reserving any
mines existing at the time the patent was issued, the State had no rights to convey by the 1921
Act and no power to impose a royalty payment on its patentees. Therefore, the lower court
was correct in declaring respondent to have sole rights to any gas, coal, and oil or other
minerals which might be discovered in its land and to have no obligation to pay royalties on
same to the State.
____________
93 Nev. 580, 580 (1977) Elliott v. Mallory Electric Corp.
PAMELA ELLIOTT, Appellant, v. MALLORY ELECTRIC CORPORATION; LAXALT
ASSOCIATES, INC., dba ORMSBY HOUSE, Respondents.
No. 8782
November 18, 1977 571 P.2d 397
Appeal from order granting summary judgment; First Judicial District Court, Carson City;
Frank B. Gregory, Judge.
Action was brought seeking compensation for injuries sustained in car accident. The
district court ruled that there was no legal theory upon which defendants could be held liable
and dismissed complaint, and plaintiff appealed. The Supreme Court, Mowbray, J., held that:
(1) statute prohibiting person driving or in charge of any motor vehicle from permitting it to
stand unattended without first stopping engine, locking ignition and removing key applies
only to public property and did not apply to private driveway in front of casino, and {2)
complaint, which did not suggest that automobile lessee or bailee could reasonably
foresee theft of automobile and its negligent operation resulting in injury to plaintiff, did
not state cause of action under the common law.
apply to private driveway in front of casino, and (2) complaint, which did not suggest that
automobile lessee or bailee could reasonably foresee theft of automobile and its negligent
operation resulting in injury to plaintiff, did not state cause of action under the common law.
Affirmed.
Echeverria & Osborne, Chartered, Brian Davenport, and John W. Hawkins, Reno, for
Appellant.
Erickson, Thorpe & Swainston, Reno, for Respondent Mallory Electric Corporation.
Laxalt, Berry & Allison, and Todd Russell, Carson City, for Respondent Laxalt Associates,
Inc.
1. Automobiles.
Statute providing that person driving or in charge of motor vehicle shall not permit it to stand unattended
without first stopping engine, locking ignition and removing key applies only to public property and did not
apply to private driveway in front of casino, and thus it was not negligence per se for automobile lessee's
president and casino attendant to leave keys in unattended automobile, which was stolen and subsequently
struck automobile driven by plaintiff, injuring her. NRS 484.065, 484.445, 484.777, subd. 1.
Where relevant facts were sworn to in affidavit of defendant automobile lessee's president, which was
included in record on appeal, and special circumstances to which plaintiff referred simply represented
rationale for finding negligence and proximate cause, issues were presented to the trial court in opposition
to motion for summary judgment and could properly be considered on appeal from order granting summary
judgment in action to recover for injuries plaintiff received in a car accident.
3. Automobiles.
Owner or bailee of automobile who leaves keys in ignition of automobile is ordinarily not, as matter of
law, liable for injuries caused by negligent operation of automobile by stranger who steals it.
4. Automobiles.
Allegations that automobile lessee's president left automobile in care of casino attendant, who allegedly
left automobile unattended for maximum period of 45 minutes, with keys in ignition at most did no more
than establish possibility of theft and did not suggest that lessee or bailee could reasonably foresee theft of
automobile and its negligent operation, resulting in injury to plaintiff, and thus, absent allegation
of breach of duty, there was no assertion of negligence on part of automobile lessee
or bailee as matter of law.
plaintiff, and thus, absent allegation of breach of duty, there was no assertion of negligence on part of
automobile lessee or bailee as matter of law.
OPINION
Appellant, Pamela Elliott, commenced this action to recover damages from respondents,
Mallory Electric Corporation and Laxalt Associates, Inc., dba Ormsby House, for injuries she
received in a car accident. A thief stole a car leased by Mallory from where it was parked in
front of the Ormsby House in Carson City. Later, while pursued by the police, the thief
crashed into the Elliott vehicle, inflicting the damages complained of. The district judge
ruled, on a motion for summary judgment, that there was no legal theory upon which the
respondents could be held liable, and dismissed the complaint. Elliott has appealed.
1. The Facts.
On January 17, 1974, at about 10:30 p.m., Marion Mallory, Jr., President of Respondent
Mallory Electric Corporation, drove a 1974 Lincoln Mark lV, leased by respondent, into the
private driveway in front of Respondent Ormsby House in Carson City. Mallory and two
companions went into the casino, leaving the car in the care of a casino attendant, the keys in
the ignition. When they left the casino, 30 to 45 minutes later, the car was gone. The
attendant, who had been briefly distracted, could not explain its absence.
Mallory reported the car as stolen. It was spotted in Reno by the Nevada Highway Patrol
shortly after midnight the same night. The thief attempted to escape, driving at high speeds
and ignoring traffic controls. Finally, at the intersection of Center and Mill Streets, the
Lincoln struck a Volkswagen driven by Appellant Pamela Elliott, injuring her.
Appellant filed this action seeking compensation for her injuries against the car thief and,
by amended complaint, against Respondents Mallory Electric and the Ormsby House. She
contends that respondents were negligent in leaving the stolen vehicle unattended with the
keys in the ignition and that such negligence was the proximate cause of her injuries. She
argues that respondents' conduct constituted both negligence according to the common law
and, as a violation of NRS 484.445, negligence per se.
2. Negligence per se.
[Headnote 1]
Appellant urges that it was negligence per se for the respondents to leave the keys in the
unattended vehicle, because such conduct violated NRS 484.445.
NRS 484.445 states: The person driving or in charge of any motor vehicle, except a
commercial vehicle loading or unloading goods[,] shall not permit it to stand unattended
without first stopping the engine, locking the ignition and removing the key. Respondents
contend that this statute was intended to apply only to vehicles left on public property.
Appellant contends the statute applies as well to vehicles on private property, at least on
private property open to the public, such as the property in question.
On its face, the statute is unqualified and, standing alone, would appear to apply to
vehicles wherever located. Chapter 484 as a whole, however, indicates a more limited intent.
NRS 484.777(1) states: The provisions of this chapter are applicable and uniform throughout
this state on all highways to which the public has a right of access or to which persons have
access as invitees or licensees. NRS 484.065 defines highway as the entire width between
the boundary lines of every way maintained by a public authority when any part of such way
is open to the use of the public for purposes of vehicular traffic. (Emphasis added.)
Appellant argues that NRS 484.777(1) establishes that NRS 484.445 applies to a casino
driveway, since this is property to which persons have access as invitees or licensees. This
argument ignores the word highways in that statute and the definition of highways in
NRS 484.065 as way[s] maintained by a public authority. Regardless of its public character,
the driveway of the Ormsby House is not maintained by a public authority and is not within
the intended scope of NRS 484.445.
Appellant also contends that the purpose of the statute indicates its intended application to
private as well as public property. She cites Watts v. Colonial Sand & Stone, Inc., 316 N.Y.
S.2d 482 (Sup.Ct. 1970), in support of this contention. In Watts, the court found that a statute
prohibiting the leaving of a key in the ignition of an unattended motor vehicle on a highway
applied to vehicles left on marginal streets as well as public city streets. A marginal street was
distinguished from a public street as one which might be used for private commercial
purposes in connection with wharf property. In its conclusion, the court noted that a statute
enacted for the public safety and protection should be interpreted liberally and that the
statute in question should be construed to apply to "any public area be it a parking lot, a
stairway, or a private driveway." Id. at 4S7.
that the statute in question should be construed to apply to any public area be it a parking lot,
a stairway, or a private driveway. Id. at 487. It should be noted, however, that the court
reached this conclusion after carefully examining the precise language of the statute, which
prohibited leaving keys in unattended vehicles on streets or thoroughfares. This additional
word was concluded to indicate an intent to regulate public areas beyond those within the
statutory definition of streets. No such language is contained in the relevant Nevada
statutes.
In Elliott v. Capitol Cadillac-Oldsmobile Co., 245 A.2d 634, 635 (D.C. 1968), the court
held that a key-in-ignition statute did not apply to a vehicle left in the parking lot of a car
dealer. The court reasoned:
If Section 98 were applied to motor vehicles parked on private property, one who parks
his car in a carport away from a public highway or, who puts his car in a closed garage,
would be violating the regulation and subject to a criminal penalty merely because he
left the keys in the car. . . .
. . . The regulation is intended to thwart the nefarious activities of any person
tempted to steal [a car] because of the easy accessibility of the key[.] Myers v. Gaither,
D.C.App., 232 A.2d 577, 582 (1967). When a car is made less accessible to possible
removal by thieves because placed on private property and away from immediate public
contact and visibility, the regulation, which lists a number of operations to be
performed when leaving a car unattended, does not apply.
We conclude that NRS 484.445 applies only to public property and not to a private
driveway in front of a casino. The language of the relevant statutes clearly indicates that such
a limitation was intended.
3. Common Law Negligence.
Appellant contends that, even if respondents did not violate NRS 484.445, their conduct
breached a duty owed to her under the common law. She concedes that leaving one's keys in
the ignition does not in every case constitute negligence. Appellant contends, however, that in
the instant case there were special circumstances creating an enhanced hazard of theft
and that, in light of those circumstances, respondents' actions were negligent. The
circumstances alleged to be special were the type of car {a new Lincoln Mark IV), where it
was left {in front of a casino), and at what time {in the late evening).
were the type of car (a new Lincoln Mark IV), where it was left (in front of a casino), and at
what time (in the late evening). These circumstances are urged to be sufficient to withstand
summary judgment, so that the questions of negligence and proximate cause should have
been left to the jury.
[Headnote 2]
Respondents first object that appellant cannot raise this issue on appeal, having failed to
support by affidavit the relevant allegations of fact as required by Whiston v. McDonald, 85
Nev. 508, 511, 458 P.2d 107, 108-109 (1969). Respondents' contention is without merit. The
relevant facts were sworn to in the affidavit of Marion Mallory, Jr., which is included in the
record on appeal. The special circumstances to which appellant refers simply represent a
rationale for finding negligence and proximate cause. These issues were presented to the trial
court in opposition to the motion for summary judgment and may properly be considered by
this court on appeal.
In determining the issues of negligence and proximate cause, there are two rules presented
for our consideration.
The minority rule, which the appellant urges us to adopt, suggests that the issue of
negligence should be determined in the light of the foreseeability of the theft and the
subsequent negligent operation of the vehicle. Appellant cites Zinck v. Whelan, 294 A.2d 727
(N.J.App. 1972).
[Headnote 3]
On the other hand, the majority rule, which we prefer, is that the owner or bailee of an
automobile who leaves the keys in the ignition of his car is ordinarily not, as a matter of law,
liable for injuries caused by the negligent operation of the vehicle by a stranger who steals the
car. Some courts have ruled that such owners or bailees are not negligent as a matter of law
because they owed no legal duty to those injured by the car thieves. E.g., Richards v. Stanley,
271 P.2d 23 (Cal. 1954); Bennett v. Arctic Insulation, Inc., 253 F.2d 652 (9th Cir. 1958);
Shafer v. Monte Mansfield Motors, 372 P.2d 333 (Ariz. 1962).
1
The weight of authority has
been well expressed by Mr.

____________________

1
Other courts have come to the same result by holding that, as a matter of law, the negligence of the owner or
bailee is not the proximate cause of the injuries suffered by the plaintiffs. E.g., Keefe v. McArdle, 280 A.2d 328
(R.I. 1971); Parker v. Charlie Kittle Pontiac Co., 495 S.W.2d 810 (Tenn. 1973).
The weight of authority has been well expressed by Mr. Justice Traynor in Richards v.
Stanley, 271 P.2d 23, 25 (1954). Stating that the question of liability turned upon whether the
owner of the car had any duty to the person injured, Justice Traynor wrote, quoting Routh v.
Quinn, 127 P.2d 1, 3 (Cal. 1942): It is an elementary principle that an indispensable factor to
liability founded upon negligence is the evidence of a duty of care owed by the alleged
wrongdoer to the person injured, or to a class of which he is a member. The court in
Richards distinguished the cases where a statute prohibited the leaving of keys in an
unattended vehicle, holding that, where there is no applicable statute, there was no duty on
the part of the vehicle owner to the person receiving injuries resulting from the theft of the
vehicle.
As the Ninth Circuit Court of Appeals said in Bennett v. Arctic Insulation, Inc., 253 F.2d
652, 654 (1958):
It is well recognized that where the owner of a motor vehicle entrusts it to another
for the latter's own use, there is no liability upon the owner for the injuries inflicted by
the borrower of the vehicle while he is using it, in the absence of proof that the
borrower was known to be incompetent. When a friend borrows a car, the owner knows
it will certainly be driven. When the owner leaves the key in the car, he does not know
that. All that can be said is that he should anticipate that a thief might take it and drive
it. . . . (Emphasis in the original.)
[Headnote 4]
In the instant case, the allegations are that Mallory left the car in the care of the attendant.
As to Respondent Ormsby House, the pleadings reflect that its agent, the attendant, allegedly
left the car unattended for a maximum period of 45 minutes. At the most, these allegations do
no more than establish the possibility of a theft. There is nothing to suggest that the owner or
bailee could reasonably foresee the theft of the car and its negligent operation resulting in
injury to the appellant. Absent an allegation of a breach of duty, there was no assertion of
negligence as a matter of law under the common law. See George v. Breising, 477 P.2d 983
(Kan. 1970).
We conclude, therefore, that the lower court did not err in granting summary judgment in
favor of respondents. Their conduct did not violate NRS 484.445, because that section, read
together with NRS 484.777(1) and NRS 484.065, is limited to vehicles left unattended on
public property. Nor did the complaint state a cause of action under the common law.
the complaint state a cause of action under the common law. We affirm.
____________
93 Nev. 587, 587 (1977) Keck v. Peckham
GEORGE KECK and JOHN SAVACHECK, Appellants, v. DONALD PECKHAM,
WASHOE COUNTY ASSESSOR; DEPARTMENT OF MOTOR VEHICLES; and
GENEVIEVE PETERSON, Respondents.
No. 8905
December 1, 1977 571 P.2d 813
Appeal from summary judgment, Second Judicial District Court, Washoe County; Roy L.
Torvinen, Judge.
Action was brought to set aside tax sale of jointly owned mobile home. The district court
granted summary judgment. The Supreme Court, Batjer, C. J., held that: (1) notice of appeal
filed nine days after entry of judgment finally adjudicating rights of all parties was timely, and
(2) summary judgment against owners was precluded by existence of genuine issue of
material fact as to whether owners received adequate notice of tax sale.
Affirmed in part; reversed in part and remanded.
William M. O'Mara, Reno, for Appellants.
Larry R. Hicks, District Attorney, and Larry D. Struve, Chief Deputy District Attorney,
Washoe County, for Respondent Donald Peckham, Washoe County Assessor.
Robert List, Attorney General, and Cathy Valenta-Weise, Deputy Attorney General,
Carson City, for Respondent Department of Motor Vehicles.
Gordon W. Rice, Reno, for Respondent Genevieve Peterson.
Where action was brought seeking order setting aside tax sale and order compelling return of mobile
home and where summary judgment motion of Department of Motor Vehicles was granted on February
25, 1976, assessor's summary judgment motion was granted on March 31, 1976, and
summary judgment motion of buyer at tax sale was granted on May 25, 1976, notice
of appeal filed nine days after entry of judgment finally adjudicating rights of all
parties was timely, in view of absence of express determination that there was no
reason for delay following grant of summary judgment in favor of assessor.
on February 25, 1976, assessor's summary judgment motion was granted on March 31, 1976, and summary
judgment motion of buyer at tax sale was granted on May 25, 1976, notice of appeal filed nine days after
entry of judgment finally adjudicating rights of all parties was timely, in view of absence of express
determination that there was no reason for delay following grant of summary judgment in favor of assessor.
NRAP 4(a).
2. Judgment.
In action to set aside tax sale of mobile home, summary judgment against owners was precluded by
existence of genuine issue of material fact as to whether owners received adequate notice of tax sale. NRS
361.535, 361.535, subd. 3.
OPINION
Appellants commenced this action to set aside the tax sale of a mobile home which they
owned jointly. Each of the respondents moved for and was granted summary judgment.
Appellants contend that whether they received adequate notice of the tax sale was a genuine
issue of material fact and, therefore, the district court erred in granting summary judgment.
We agree.
On June 17, 1974, George Keck and John Savacheck purchased a mobile home from Mr.
and Mrs. William Welch. The bill of sale and documents of title were immediately delivered
to the Department of Motor Vehicles, which issued them a certificate of ownership.
On June 3, 1974, the Washoe County Assessor purportedly sent a tax statement to the
Welches in the amount of $36.00. The bill was never paid and several more notices were
alleged to have been sent to the Welches. No tax payment was ever received. Finally, on
January 29, 1975, the Assessor sent the Welches a notice of intention to seize personal
property to satisfy taxes. On February 4, 1975, that notice was returned to the Assessor with a
notation that Mr. Welch had died and that Mrs. Welch was no longer residing at the address
to which the notice had been sent. On March 7, 1975, the Assessor, pursuant to NRS 361.535,
posted a notice of seizure in three public places and published a notice of sale of the mobile
home in a newspaper of general circulation. This was done without attempting to locate Mrs.
Welch or ascertain whether she was still in fact either the legal or registered owner, a
statutory duty imposed on the assessor by NRS 361.535{3).1 At no time was a notice of
taxes due, notice of seizure, or notice of sale given to either Savacheck or Keck.
statutory duty imposed on the assessor by NRS 361.535(3).
1
At no time was a notice of taxes
due, notice of seizure, or notice of sale given to either Savacheck or Keck. Nevertheless, on
March 24, 1975, the Assessor conducted a public auction and sold the mobile home to
respondent Peterson. Appellants then commenced this action seeking an order setting aside
that sale and an order compelling return of their trailer.
1. Before addressing the central issue of notice, we first dispose of an ancillary issue
regarding the timeliness of this appeal.
[Headnote 1]
The three respondents each filed separate motions for summary judgment. The Department
of Motor Vehicle's motion was granted on February 25, 1976; Assessor's motion was granted
on March 31, 1976; and Peterson's was granted on May 25, 1976. Appellants filed their notice
of appeal on June 3, 1976. Assessor contends appellants' notice of appeal was not timely
because it was filed more than 30 days after the order granting his motion for summary
judgment. However, Assessor's summary judgment failed to adjudicate all the claims and the
rights and liabilities of the parties [and] is not appealable, absent the express determination
that there is no just reason for delay, as required by NRCP 54(b). Crescent v. White, 91 Nev.
209, 210, 533 P.2d 159, 160 (1975). Here, there was no such determination; accordingly,
appellants' notice of appeal filed nine days after entry of the judgment finally adjudicating the
rights of all parties was timely. NRAP 4(a).
2. Summary judgment is appropriate only when it is clear what the truth is and there exists
no genuine issue as to any material fact. Potter v. Mutual Benefit Life Ins. Co., 93 Nev. 90,
560 P.2d 914 (1977). In deciding the propriety of the summary judgment, we must review
the evidence most favorable to the party against whom summary judgment was granted
and give that party the benefit of all favorable inferences that may be drawn from the
subsidiary facts.'' Lipshie v. Tracy Investment Co.,
____________________

1
NRS 361.535(3) provides, in pertinent part:
3. If the personal property seized by the county assessor or his deputy, consists of a mobile home, house
trailer or boat, the county assessor shall publish a notice of such seizure once during each of 2 successive weeks
in a newspaper of general circulation in the county. If the legal owner of such property is someone other than the
registered owner and the name and address of the legal owner can be ascertained from the records of the
department of motor vehicles, the county assessor shall, prior to such publication, send a copy of such notice by
registered or certified mail to such legal owner.
summary judgment, we must review the evidence most favorable to the party against whom
summary judgment was granted and give that party the benefit of all favorable inferences that
may be drawn from the subsidiary facts.'' Lipshie v. Tracy Investment Co., 93 Nev. 370, 375,
566 P.2d 819, 822 (1977).
As regards the Department of Motor Vehicles, the record indicates, and appellants have
conceded, that there is no genuine dispute as to any material fact; therefore, summary
judgment was proper as to that respondent.
[Headnote 2]
However, the record manifests a genuine dispute as to whether the Assessor had given
appellants notice of the tax sale which was reasonably calculated, under all the
circumstances, to apprise [appellants] of the pendency of the action and afford them an
opportunity to present their objections. Mullane v. Central Hanover Tr. Co., 339 U.S. 306,
314 (1950). Accord, Swartz v. Adams, 93 Nev. 240, 563 P.2d 74 (1977). Accordingly,
summary judgment in favor of Assessor must be reversed and this cause remanded for further
proceedings.
In addition, since Peterson's rights and liabilities are predicated upon the propriety of the
Assessor's conduct, summary judgment as to her must also be reversed and remanded.
____________
93 Nev. 591, 591 (1977) Doggett v. Warden
De ORVAL DOGGETT, Appellant, v. WARDEN,
No. 9305
December 1, 1977 572 P.2d 207
Appeal from judgment denying post-conviction relief; Sixth Judicial District Court,
Humboldt County; Llewellyn A. Young, Judge.
The Supreme Court, 91 Nev. 768, 542 P.2d 1066 (1975), reversed and remanded with
direction. On remand, a hearing on petition for post-conviction relief was held before the
district court, which denied petition, and petitioner appealed. The Supreme Court held that:
(1) petitioner failed to prove by clear and convincing evidence his allegations of
incompetency to stand trial, and (2) there was no reason for the Supreme Court to reconsider
its prior decision that petitioner was not deprived of due process by trial court's failure to
grant him evidentiary hearing on competency issue at time of trial, nor its holding that
petitioner's due process rights had not been violated because of absence of trial transcript.
Affirmed.
Rodlin Goff, State Public Defender, and J. Thomas Susich, Chief Deputy Public Defender,
Robert List, Attorney General, Carson City; William Macdonald, District Attorney,
Humboldt County, for Respondent.
1. Mental Health.
Constitutional standard for determining a defendant's competency to stand trial is (1) whether he has
sufficient present ability to consult with his lawyer with a reasonable degree of factual understanding, and
(2) whether he has rational as well as factual understanding of proceedings against him.
2. Criminal Law.
Any conflicts and inconsistencies within testimony of individual witnesses are to be resolved by
fact-finding authority.
3. Criminal Law.
Trial court's findings will be sustained on appeal when there is substantial evidence to support them, and
this rule is equally applicable in sanity determinations.
4. Criminal Law.
Petitioner for post-conviction relief failed to prove by clear and convincing evidence his allegations of
incompetency to stand trial.
Two distinct due process rights relating to competency to stand trial include first, traditional
right not to be tried or convicted while legally incompetent and second, right to be
accorded a competency hearing when sufficient evidence of incompetency is adduced
before trial court, and it is only when trial court has failed to follow procedural
requirements of latter that State is required to forego its usual requirement that
defendant establish his incompetency as of date of original trial.
stand trial include first, traditional right not to be tried or convicted while legally incompetent and second,
right to be accorded a competency hearing when sufficient evidence of incompetency is adduced before
trial court, and it is only when trial court has failed to follow procedural requirements of latter that State is
required to forego its usual requirement that defendant establish his incompetency as of date of original
trial.
6. Criminal Law.
The Supreme Court would not reconsider its decision that petitioner for post-conviction relief was not
deprived of due process by trial court's failure to grant him evidentiary hearing at time of trial on issue of
his competency to stand trial, where evidence at trial consisted merely of affidavit by petitioner's attorney
that petitioner had not revealed his mental history until after trial began and letter confirming that petitioner
had been committed six years earlier to state hospital, which he left without permission and which had
cancelled its want for petitioner shortly thereafter.
7. Criminal Law.
While petitioner for post-conviction relief, who claimed that his due process rights were violated because
of absence of trial transcript, need not be blamed for failure to appeal promptly, if that was result of his
mental condition, neither should State be burdened with duty to preserve records indefinitely in absence of
such appeal.
OPINION
Per Curiam:
This is an appeal from an order denying post-conviction relief on the ground that appellant
had failed to establish his mental incompetence to stand trial.
1. The Facts.
In 1958, appellant, DeOrval Doggett, was found guilty of first-degree murder and
sentenced to life in prison without possibility of parole. The trial court denied defense
counsel's motion for a new trial on the basis of newly discovered evidence regarding
defendant's sanity. Appellant had failed to reveal until the trial was underway that he had
previously been committed to a mental institution.
No appeal was taken from that judgment, but in 1973 appellant sought a writ of habeas
corpus on the ground, among others not at issue here, that he had improperly been denied a
hearing as to his competency to stand trial. A hearing on this petition was held before District
Judge Llewellyn A. Young in December 1973. Appellant's original attorney testified that he
had had considerable difficulty communicating with the defendant about his mental history,
and that appellant had adamantly refused to allow an appeal on the issue of insanity,
despite the attorney's advice.
refused to allow an appeal on the issue of insanity, despite the attorney's advice.
Appellant's petition for a writ of habeas corpus was denied. This decision was appealed,
and in 1975 this court ruled that appellant was entitled to an evidentiary hearing to establish
by clear and convincing evidence that he was in fact incompetent to stand trial in 1958.
Doggett v. State, 91 Nev. 768, 542 P.2d 1066 (1975).
Pursuant to this court's decision, a hearing on appellant's petition for post-conviction relief
was held, again before Judge Young, to determine appellant's competency as of 1958. Upon
the basis of the testimony of a psychiatrist and a psychologist, as well as the records extant of
the 1958 and 1973 proceedings, Judge Young found that appellant had not met the burden of
proving that he had been incompetent to stand trial in 1958. Appellant's petition was therefore
denied.
On appeal, appellant challenges the denial of his petition on the grounds (1) that appellant
did show by clear and convincing evidence that he was incompetent to stand trial in 1958 and
(2) that requiring appellant to assume the burden of proving his incompetence to stand trial
violates due process of law.
2. The Issues.
A. The Evidence.
[Headnote 1]
The constitutional standard for determining a defendant's competence to stand trial is set
forth in Dusky v. United States, 362 U.S. 402, 402 (1960), quoting the Solicitor General for
the United States: [T]he test must be [1] whether he has sufficient present ability to consult
with his lawyer with a reasonable degree of factual understandingand [2] whether he has a
rational as well as factual understanding of the proceedings against him.' The Supreme Court
held in Dusky that the evidence was insufficient to support a finding of competency by the
trier of fact, despite ambiguous and conflicting testimony, where the judge had merely found
that the defendant was oriented to time and place' and had some recollection of events,'
again quoting the Solicitor General. 362 U.S. at 402.
The only testimony received at the evidentiary hearing was that of the psychiatrist and that
of the psychologist, called by the appellant. Their testimony was far from conclusive. Both
witnesses testified that appellant was suffering from paranoid schizophrenia. Dr. Robert G.
schizophrenia. Dr. Robert G. Whittemore, the psychologist, testified that he was unable to say
with certainty whether appellant was capable of assisting counsel at the time of his trial. In his
written report to the court, moreover, he had concluded that the psychosis which was
probably present in 1958, did not in and of itself decrease the possibility that he [appellant]
could aid in the conduct of his defense. When questioned by the court, he was unable to state
what effect appellant's mental condition had had in his relations with his attorney.
1

Dr. Thomas R. Stapleton, the psychiatrist, testified that he was 80% certain that the
decisions of appellant not to reveal his history of mental illness to counsel until the trial was
underway and not to pursue an appeal on the ground of incompetence were the result of
appellant's mental illness. On the other hand, he conceded that there could have been a
rational basis for appellant's decisions.
2

[Headnotes 2, 3]
Any conflicts and inconsistencies within the testimony of individual witnesses are to be
resolved by the fact-finding authority. Polito v. State, 71 Nev. 135, 282 P.2d 801 (1955). The
findings will be sustained on appeal when there is substantial evidence to support them. Hunt
v. State, 92 Nev. 536, 554 P.2d 255 (1976). This rule is equally applicable in sanity
determinations. Hollander v. State, 82 Nev. 345, 418 P.2d 802 (1966); Kuk v. State, 80 Nev.
291, 392 P.2d 630 (1964).
____________________

1
THE COURT: Let meare you going to go into it a little bit further? Even if he had of, would that have
affected his ability to work with counsel at that time? Can you say positively one way or the other?
THE WITNESS [Doctor Whittemore]: Well, sir, if I may go back to this continuum. Depending upon where
he was in terms of his feeling about the attorney, in one case it would not have affected his capability at all, in
the other, it would have had a massive effect.
THE COURT: Can you say what it had in this case?
THE WITNESS: I cannot.

2
Doctor Stapleton, when examined by the court, stated that there was a great lack of certainty in this
diagnosis:
THE COURT: Don't you think the evidence concerning the year 1958 is so vague that you really can't arrive
at a really good positive decision?
THE WITNESS: As someone said, this certainly would have been a lot easier in 1958. The only thing we
have is a man who has a long history of a paranoid schizophrenia illness who we seewe have evidence in 1958
was unable to cooperate with his attorney, and made the kind of decisions that we see very frequently being
made by paranoid schizophrenics. That is, decisions where they will choose to maintain a facade of health even
at great detriment to themselves. Certainly there is a great lack of certainty in these.
[Headnote 4]
We conclude, therefore, that appellant has failed to prove by clear and convincing
evidence his allegations of incompetency.
B. The Denial of Due Process.
Appellant does not contend that placing the burden of proof on defendant regarding the
issue of sanity in itself violates due process.
In the recent case of Patterson v. New York, 45 U.S.L.W. 4708 (June 17, 1977), the
Supreme Court reaffirmed its holding in Leland v. Oregon, 343 U.S. 790 (1952), ruling that
states may require defendants to prove the affirmative defense of insanity beyond a
reasonable doubt.
Appellant does contend, however, that the holding in Pate v. Robinson, 383 U.S. 375
(1966), compels a contrary result in this case. In Pate, the Court held that evidence before the
trial court (uncontradicted testimony of defendant's long history of disturbed and violent
episodes, including the slaying of his infant son and an attempted suicide) raised sufficient
doubt as to defendant's competence to stand trial so as to require that the trial court afford him
a competency hearing on its own motion.
[Headnote 5]
What appellant fails to note is that this court in Doggett v. State, 91 Nev. 768, 542 P.2d
1066 (1975), did not hold that defendant had been denied his rights under Pate, but cited
instead the case of Nathaniel v. Estelle, 493 F.2d 794 (5th Cir. 1974), in which the court
pointed out that there are two distinct due process rights related to competency to stand trial.
The first is the traditional right not to be tried or convicted while legally incompetent. Bishop
v. United States, 350 U.S. 961 (1956). The second, established in Pate, is the right to be
accorded a competency hearing when sufficient evidence of incompetency is adduced before
the trial court. Nathaniel v. Estelle, 493 F.2d at 797-798. It is only when the trial court has
failed to follow the procedural requirements of Pate that the State is required to forego its
usual requirement that the defendant establish his incompetence as of the date of the original
trial.
In Doggett, 91 Nev. at 771-772, 542 P.2d at 1068, this court held that, although the
evidence before the trial court in 1958 had not raised sufficient doubt as to appellant's
competency to stand trial to require the application of the rule in Pate, the evidence before
the post-conviction court in 1973 was sufficient to require an evidentiary hearing to
determine whether appellant had in fact been tried while legally incompetent.
Pate, the evidence before the post-conviction court in 1973 was sufficient to require an
evidentiary hearing to determine whether appellant had in fact been tried while legally
incompetent. Appellant was thus granted a full opportunity to prove that his constitutional
rights had been violated.
[Headnote 6]
There is no reason for this court to reconsider its decision that appellant was not deprived
of due process by the trial court's failure to grant him an evidentiary hearing in 1958. The
evidence before the court in 1958 consisted merely of an affidavit by appellant's attorney that
appellant had not revealed his mental history until the trial had begun, and a letter confirming
that appellant had been committed to Stockton State Hospital some six years earlier.
Although the letter revealed that appellant had left the hospital without permission in 1953,
the hospital had canceled its want for him shortly thereafter. This is considerably less
evidence than was before the trial court in those cases in which this court has applied the Pate
doctrine. Williams v. Warden, 91 Nev. 16, 530 P.2d 761 (1975) (history of mental illness and
recent evaluation by court-appointed psychologist); Krause v. Fogliani, 82 Nev. 459, 421
P.2d 949 (1966) (judge had presided over commitment 13 days before escapee committed
crime with which charged). The facts of this case are comparable to those in Hollander v.
State, 82 Nev. 345, 418 P.2d 802 (1966), in which this court found no abuse of discretion in
the trial court's failure to order a competency hearing on the basis of an army discharge for
psychoneurosis.
[Headnote 7]
Neither is there any reason to reconsider the holding in Doggett, 91 Nev. at 771, 542 P.2d
at 1068, that appellant's due process rights have not been violated by the absence of a
transcript of the 1958 trial. While appellant need not be blamed for failing to appeal
promptly, if this was the result of his mental condition, neither should the State be burdened
with the duty to preserve records indefinitely in the absence of such an appeal. No unfairness
results when the burden of proof remains the same as it would have been had appellant been
granted a hearing prior to the existence of any such record in 1958.
The order of the district court denying appellant's application for post-conviction relief is
affirmed.
____________
93 Nev. 597, 597 (1977) Flintkote Co. v. Interstate Equip. Corp.
FLINTKOTE COMPANY; COMMERCE & INDUSTRY INSURANCE CO.;
COMMERCIAL UNION INSURANCE CO. OF AMERICA; EAGLE STAR INSURANCE
COMPANY, LTD.; FIREMAN'S FUND INSURANCE COMPANY; GLENS FALLS
INSURANCE COMPANY; GREAT AMERICAN INSURANCE COMPANY;
INDUSTRIAL INDEMNITY COMPANY; NATIONAL FIRE INSURANCE COMPANY;
NATIONAL UNION FIRE INSURANCE COMPANY; RELIANCE INSURANCE
COMPANY; SOUTH CAROLINA INSURANCE COMPANY; TRAVELERS INDEMNITY
COMPANY; UNITED STATES FIRE INSURANCE CO.; UNDERWRITERS AT
LLOYDS, LONDON AND CERTAIN CO.'S IN ENGLAND; TRANSAMERICAN
INSURANCE COMPANY; all foreign corporations authorized to do business in the State of
Nevada, Appellants, v. INTERSTATE EQUIPMENT CORPORATION, a foreign
corporation authorized to do business in the State of Nevada, Respondent.
No. 8940
December 1, 1977 571 P.2d 815
Appeal from order dismissing complaint for not bringing action to trial within five years;
Eighth Judicial District Court, Clark County; Michael J. Wendell, Judge.
The Supreme Court held that a stipulation striking a paragraph from plaintiff's complaint
did not carry with it the necessary implication that the parties were agreeing to extend the
five-year period within which the action had to be brought to trial.
Affirmed.
Jones, Jones, Bell, LeBaron, Close & Brown, and Gary R. Goodheart, Las Vegas, for
Appellants.
Beckley, Singleton, DeLanoy, Jemison & Reid, Chartered, Las Vegas, for Respondent.
Stipulations.
Stipulation striking paragraph from plaintiff's complaint did not carry with it a necessary implication that
parties were agreeing to extend five-year period within which case had to be brought to
trial.
93 Nev. 597, 598 (1977) Flintkote Co. v. Interstate Equip. Corp.
to extend five-year period within which case had to be brought to trial. NRCP 41(e).
OPINION
Per Curiam:
This is an appeal from an order of the district court dismissing appellants-plaintiffs'
complaint for not bringing the action to trial within five years. Appellants predicate their
appeal on the novel theory that the parties entered into a stipulation, which was approved by
the district judge, striking a paragraph from plaintiffs' complaint, and that such stipulation
carried with it a necessary implication that the parties were agreeing to extend the five-year
period set forth in NRCP 41 (e).
1

We find, as did the lower court, no such implication in the stipulation. Indeed, the
language of the rule provides that a stipulation to continue the five-year period shall be in
writing. Appellants cite no authority except Spiegelman v. Gold Dust Texaco, 91 Nev. 542,
539 P.2d 1216 (1975), which is not supportive of their position, since Spiegelman dealt with
a discretionary dismissal for lack of prosecution, rather than a mandatory dismissal after the
expiration of five years, as in the instant case.
We affirm, with costs to respondent.
____________________

1
NRCP 41 (e) provides, in part:
Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have
been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by
the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed
his action, except where the parties have stipulated in writing that the time may be extended. . . .
____________
93 Nev. 599, 599 (1977) Hagblom v. State Dir. of Motor Vehicles
DONALD M. HAGBLOM, Appellant, v. STATE OF NEVADA DIRECTOR OF MOTOR
VEHICLES, NEVADA HIGHWAY PATROL, PETER J. ZADRA AS
COMMANDER ZONE II, NEVADA HIGHWAY PATROL, and RONALD
FORSHEY, Individually and as a Nevada Highway Patrolman, Respondents.
No. 8968
December 6, 1977 571 P.2d 1172
Appeal from an order dismissing complaint for damages. Second Judicial District Court,
Washoe County; John W. Barrett, Judge.
Highway patrol officer sought a court order to enjoin the highway patrol from compelling
a polygraph examination of the officer to determine the actual circumstances of an event as to
which two highway patrol officers had given conflicting trial testimony. After a preliminary
injunction issued, the officer filed an amended complaint alleging that a new highway patrol
rule regulating the use of patrol vehicles by officers to commute to and from work was
invalid and requesting monetary damages. Defendants moved to dismiss, and the district
court ordered that the validity of the rule be determined in a subsequent declaratory relief
hearing and dismissed claims for monetary damages. The officer appealed, and the Supreme
Court, Manoukian, J., held that because the officer alleged liability based solely on acts which
were discretionary and thus clothed with immunity and in absence of any allegations which
would precipitate a waiver, the officer's claims could not withstand the governmental
immunity defense.
Affirmed.
Lohse and Lohse, Chartered, Reno, for Appellant.
Robert List, Attorney General, and George M. Stout, Deputy Attorney General, Carson
City, for Respondents.
1. States.
The State and its agencies are equally legally incapable of entering into any conspiracy.
2. States.
To remain viable, any allegation that state agencies participated in conspiracy to harass and annoy state
employee into resigning his position must refer to culpable acts of individual respondents committed
outside the scope of duty.
3. States.
Any claim against the State, its agencies or employees resulting from some official act can only be
maintained in the absence of protective governmental immunity. NRS 41.031 et seq., 41.032.
4. States.
Where case presents close question whether asserted conduct falls within statute conditionally waiving
governmental immunity from suit, courts must favor a waiver of immunity. NRS 41.031 et seq., 41.032.
5. Highways.
Under statute prohibiting suit against a government employee based on any act or omission of the
employee, exercising due care, in the execution of a statute or regulation which has not been declared
invalid by a court of competent jurisdiction, where state highway patrol rule restricting use of highway
patrol vehicles to permit only married officers to use the vehicles to commute to and from work had not
been declared invalid by a court of competent jurisdiction, individuals implementing the rule were immune
from liability arising out of such implementation. NRS 41.032, subd. 1.
6. Highways.
Where patrolman was exercising due care in the enforcement of a speed limit law which had not been
declared invalid by a court of competent jurisdiction when he ticketed driver and where driver was
exceeding the speed limit, though she denied that she was traveling in excess of ten miles per hour over the
speed limit, patrolman was clothed with immunity and no action could be maintained against him based on
his enforcement of speed law. NRS 41.032, subd. 1, 481.180.
7. Highways.
Under statute which provides that no action may be brought against a government employee based on the
exercise or performance or failure to exercise or perform a discretionary function or duty, whether or not
the discretion involved is abused, individuals who were involved in formulating new highway patrol
regulation permitting only married officers living with their spouses the use of highway patrol vehicles to
commute to and from work, as well as individuals involved in ordering two highway patrol officers to
submit to polygraph examinations, were immune from suit arising out of their actions. NRS 41.032,
subd. 2.
8. States.
When the State qualifiedly waived its immunity from liability and consented to civil actions, it did so to
provide relief for persons injured through negligence in performing or failing to perform nondiscretionary
or operational actions; State did not intend to give rise to a cause of action sounding in tort whenever a
state official or employee made a discretionary decision injurious to some persons. NRS 41.031 et seq.,
41.032.
OPINION
In early 1975, a new rule was promulgated by the Nevada Highway Patrol, a Nevada
governmental agency, regulating and restricting the use of highway patrol vehicles by
patrol officers commuting to and from work.
restricting the use of highway patrol vehicles by patrol officers commuting to and from work.
The rule permitted only married officers living with their spouses the use of the vehicles
while excluding unmarried officers living with persons of the opposite sex.
Prior to the implementation of the new rule, highway patrol officers were permitted to
drive their patrol vehicles home irrespective of their marital status or living arrangements.
Appellant Hagblom, a highway patrol officer, had for several months prior to the new rule,
without incident, resided unmarried with a Marilyn Newton and was permitted to drive his
patrol vehicle home.
The events preceding this action essentially concern a speeding citation issued to Newton
by Patrolman Ronald Forshey. Although Forshey stated that no other vehicle was proximate
when he cited Newton, appellant Hagblom testified at Newton's trial that he had been
following her in his personal automobile when she was stopped by Forshey. Newton was
acquitted of the charges.
The Nevada Highway Patrol instituted an internal investigation to determine the actual
circumstances of the event which resulted in the conflicting trial testimonies of the two
officers. Both men were ordered to submit to a polygraph examination. Appellant refused and
sought a court order enjoining the respondent Nevada Highway Patrol from compelling the
examination. A preliminary injunction issued on the basis that the matters sought to be
investigated did not pertain to the appellant's official duties.
Thereafter, appellant, having initially sought only injunctive relief, filed an amended
complaint alleging that the new rule was invalid and additionally including a request for
monetary damages. Respondents filed motions to dismiss the action. The trial court ordered
that the validity of the new rule would be determined in a subsequent declaratory relief
hearing but did order dismissal of the monetary damage claims against the several
respondents. Appellant now appeals from the orders of dismissal.
The sole question presented in this appeal is whether the trial court erred in dismissing the
claim for monetary damages against respondents on the basis of governmental immunity.
The court dismissed the claim against all respondents except Forshey on the grounds that
their acts either were pursuant to statutory authorization or were discretionary acts authorized
by statute in implementing regulations not declared invalid by a court of competent
jurisdiction. In so acting, the court relied on State v. Silva, 86 Nev. 911, 478 P.2d 591 (1970)
and NRS +1.032.
41.032. The court dismissed the claim against Forshey stating that the allegations pertaining
to the speeding citation issued to Newton showed that Hagblom was not the real party in
interest as required by NRCP Rule 17(a).
Appellant is here urging that the judgments of dismissal were entered in error and should
be reversed, while the respondents insist that there is no basis whatever for the maintenance
of the damage claim and the judgments of dismissal were properly entered. The thrust of
appellant's allegation regarding the issuance of the speeding ticket to Newton is that it
constituted harassment designed to compel appellant to resign from the Nevada Highway
Patrol. The amended complaint did not attempt to prosecute a claim in behalf of Newton, and
the trial court's characterization of this claim and its consequent dismissal on grounds that
appellant was not the real party in interest is a misinterpretation of the claim. This, however,
does not constitute reversible error, since the claim cannot withstand the governmental
immunity defense.
The amended complaint for monetary damages alleged that respondents entered into a
conspiracy to harass and annoy him into resigning his position as a Nevada Highway Patrol
officer. In an analogous case under the Federal Tort Claims Act, 28 U.S.C. 2680(a) the
court held that the United States is by its nature incapable of entering into a conspiracy to
bring about the discharge of a government employee. Radford v. United States, 264 F.2d 709
(5th Cir. 1959).
[Headnotes 1, 2]
The discretionary exception provision contained in NRS 41.032 is identical to the cited
federal code. The State and its agencies are equally legally incapable of entering into any
conspiracy. It follows that any allegation of conspiracy must, to remain viable, refer to the
culpable actions of the individual respondents, committed outside of the scope of duty.
[Headnotes 3, 4]
Any claim against the State, its agencies, or employees resulting from some official act can
only be maintained in the absence of protective governmental immunity. The legislature has
exposed the State of Nevada to liability by conditionally waiving in certain instances
governmental immunity from suit. NRS 41.031 et seq. In the instant case, for the State, its
agencies, and employees to be liable for official acts or omissions, the allegations of the
amended complaint must fall within the parameter of the waiver. We are mindful that [i]n a
close case we must favor a waiver of immunity and accommodate the legislative scheme."
we must favor a waiver of immunity and accommodate the legislative scheme. Silva, supra,
at 914, 478 P.2d at 593.
The appellant, in his amended complaint alleged that the respondents conspired to
implement the illegal and invalid policy regulation prohibiting the use of patrol vehicles
to commute to and from duty station by unmarried officers cohabiting with members of the
opposite sex. Hagblom did not allege that the regulation was discriminatory on its face or in
its application. The amended complaint further alleged that respondent Zadra acted in
furtherance of the conspiracy by ordering appellant to submit to a polygraph examination to
determine the facts surrounding the conflicting testimony of the two officers at Newton's
speeding trial. Moreover, appellant alleged that incident to the conspiracy, Forshey issued
without probable cause a speeding citation to Newton.
[Headnote 5]
Section 41.031 of the Nevada Revised Statutes waives the governmental immunity,
however, NRS 41.032 conditionally limits this waiver. NRS 41.032 provides:
No action may be brought under NRS 41.031 or against the employee which is:
1. Based upon an act or omission of an employee of the state or any of its agencies
or political subdivisions, exercising due care, in the execution of the statute or
regulation, whether or not such statute or regulation is valid, provided such statute or
regulation has not been declared invalid by a court of competent jurisdiction; or
2. Based upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of the state or any of its agencies or political
subdivisions or any employee of any of these, whether or not the discretion involved is
abused. (Emphasis added.)
Subsection 1 provides immunity to all individuals implementing the new regulation since
that policy, applied with due care and without discrimination, had not been declared invalid
by a court of competent jurisdiction. Appellant's pleading for declaratory relief is still pending
in district court and the validity of the regulation has not been determined.
[Headnote 6]
In addition, subsection 1 provides immunity for Forshey in ticketing Newton. He was
exercising due care in the enforcement of the speed limit law which also had not been
declared invalid. Appellant has conceded that Newton was exceeding the speed limit but
denies that she was traveling in excess of 10 miles per hour over the speed limit.
speed limit but denies that she was traveling in excess of 10 miles per hour over the speed
limit. Exceeding the speed limit at all constitutes probable cause for issuance of a citation.
NRS 481.180. It follows that Forshey is clothed with immunity and that no action can be
maintained against him on this basis.
[Headnote 7]
Subsection 2 provides immunity for acts of discretion even where the discretion is abused.
This subsection protects the State and the individuals involved in formulating the new
regulation and in ordering the polygraph examination. Both are discretionary acts and fall
within the exemption from the waiver.
Appellant contends that even discretionary acts have been subject to liability and cites for
that proposition Silva, supra; State v. Webster, 88 Nev. 690, 504 P.2d 1316 (1972); Harrigan
v. City of Reno, 86 Nev. 678, 475 P.2d 94 (1970); and Chapman v. City of Reno, 85 Nev.
365, 455 P.2d 618 (1969). Those cases are not supportive of appellant's position. In Silva,
Harrigan, and Webster, this Court held that NRS 41.032(2) might not provide immunity from
liability for acts even though they had their origin in discretionary acts. The test, however,
applied in those cases involved the obscure analytical distinction between discretionary and
operational functions. Although a given act involved the exercise of discretion and was thus
immune from liability, negligence in the operational phase of a decision would subject the
State, it agencies, and employees to liability. There is no obscurity present here, for
respondents acts were, from their origin, distinctly discretionary.
Appellant's reliance on Chapman as authority to hold the employees and the State
individually liable is also misplaced. Chapman does not directly stand for that proposition,
but the point is immaterial in that NRS 41.032 itself would permit actions against the
employees individually, proscribed only where the employees are insulated by subsection 1 of
NRS 41.032.
[Headnote 8]
Whether sovereign immunity is invoked is the precise issue before us. When the State
qualifiedly waived its immunity from liability and consented to civil actions, it did so to
provide relief for persons injured through negligence in performing or failing to perform
non-discretionary or operational actions. It did not intend to give rise to a cause of action
sounding in tort whenever a state official or employee made a discretionary decision injurious
to some persons. Appellant alleges liability premised solely upon acts discretionary and
squarely within the protected penumbra of immunity.
penumbra of immunity. His allegations do not state any facts which would precipitate a
waiver. Absent such, we hold that the trial court correctly dismissed that part of the amended
complaint.
The judgments of dismissal are affirmed.
____________
93 Nev. 605, 605 (1977) Dickstein v. Williams
MARTIN DICKSTEIN and RICHARD PALCANIS, Appellants, v. RONALD RAY
WILLIAMS, JOYCE C. WILLIAMS, ROBERT McKEE, KATHRYN McKEE, KEITH
MACY, ALLEN D. BRUNER, JANIS BRUNER, PAT A. TRIPPLE, PEARL A.
PETERSON, RICHARD COTTER, and BARBARA COTTER, Respondents.
No. 8974
December 6, 1977 571 P.2d 1169
Appeal from an order granting an injunction; Second Judicial District Court, Washoe
County; John E. Gabrielli, Judge.
Property owners of subdivision brought action to enjoin homeowners from construction of
addition to their home. The district court granted motion for permanent injunction, and
homeowners appealed. The Supreme Court held that: (1) interpretation by trial court of
restrictive covenant as prohibiting addition being constructed by homeowners was not error;
(2) property owners of subdivision were not guilty of laches; (3) construction of addition was
both violating and threatening a continued violation of restrictive covenant, and thus damages
was not only appropriate remedy and (4) action did not become moot as to certain property
owners when those property owners sold their home and left subdivision.
Affirmed.
William K. Lohse and Hale & Belford, Reno, for Appellants.
Cunningham & Williams, Reno, for Respondents.
1. Covenants.
Restrictive covenant, embodied in deed, stating that no structure was to be erected other than one
detached single family dwelling not exceeding one story from ground level in height" was
not ambiguous and would not be strictly construed against those enforcing it.
dwelling not exceeding one story from ground level in height was not ambiguous and would not be strictly
construed against those enforcing it.
2. Covenants.
Restrictive covenants are strictly construed, but if they are to have meaning they must be enforced.
3. Trial.
Any conflicts in testimony are to be resolved by trier of fact.
Where trial court, sitting without a jury, makes determination predicated upon conflicting evidence, that
determination will not be disturbed on appeal where supported by substantial evidence.
5. Covenants.
Trial court's finding that addition to home consisting of music room above a sunken garage violated
restrictive covenant stating that no structure was to be erected other than one detached single family
dwelling not exceeding one story from ground level in height was supported by substantial evidence.
6. Injunction.
Property owners of subdivision, two of whom discussed with homeowner their objections to homeowners'
planned addition to their home the month after they learned of it, whose attorney informed homeowner two
weeks later that if construction of room above garage commenced in violation of restrictive covenant,
property owners would take appropriate legal action, and who filed complaint one week later to enjoin
construction of addition, were not guilty of laches precluding injunctive relief with respect to matter of
homeowners' addition.
7. Injunction.
Where construction of addition to home in subdivision subject to restrictive covenant prohibiting such
addition was both violating and threatening a continued violation of covenant at time action to enjoin
construction was instituted, damages was not only appropriate remedy.
8. Injunction.
Action to enjoin construction of addition to home that violated restrictive covenant, did not become moot
as to certain property owners of subdivision who brought action when those property owners sold their
home and left subdivision; even if it had, granting of permanent injunction would be affirmed for benefit of
remaining property owners who brought action.
OPINION
Per Curiam:
This is an appeal from an injunction restraining the appellants, who were the defendants
below, from continuing construction of an addition to their home and ordering removal of the
completed construction, which the court found violated the deed restrictions covering the
property.
1. The Facts.
Appellants, Martin Dickstein and Richard Palcanis, and all the respondents were residents
and property owners in the Prospect Hill Subdivision north of Reno. Each lot in the
subdivision was subject to the following deed restriction:
ARTICLE III: USE
1. No portion of said property shall be used except for private residential purposes,
nor shall any structure be erected or maintained on any lot other than one detached
single family dwelling not, [sic] exceeding one story from ground level in height. . . .
In December 1974, appellants informed their friend and neighbor, Respondent Joyce C.
Williams, of their intention to build an addition to their home. The addition was described as
a split level, with a music room over a sunken garage. Construction began January 15,
1975. When the walls for the garage were erected, Mr. and Mrs. Williams became concerned
over the height of the structure and the potential interference with their view. They invited
Mr. Palcanis over to discuss their objections. At the Williamses' request, an architect visited
the site and developed several alternative methods of construction, all of which were rejected
by appellants.
On January 31, the Williamses' attorney called Mr. Palcanis and informed him that if
construction on the room over the garage commenced the Williamses would take appropriate
legal action. Nevertheless, construction proceeded, and a complaint was filed on February 7,
1975, by the Williamses, joined by a number of other property owners in the subdivision,
alleging threatened and actual violation of the one-story height restriction.
On February 12, 1975, the first day of hearings on respondents' motion for a preliminary
injunction, construction on the second level was still in progress. By February 17, the second
day of the hearings, appellants' contractor testified that he had completed the work he was to
do on the second level, with finishing work to be done by appellants themselves.
A preliminary injunction was issued on February 24, 1975, restraining appellants from
continuing work on the second level, pending a hearing on the merits.
A subsequent hearing on respondents' motion for a permanent injunction was held in
March 1976, and the motion was granted on May 26, 1976. Appellants were permanently
restrained from further construction on the addition above the ceiling of the garage, except for
the building of an adequate roof, and were further ordered to remove the walls and roof of
the room constructed above the garage.
roof, and were further ordered to remove the walls and roof of the room constructed above
the garage. They were also ordered to pay respondents' cost of suit.
Appellants seek reversal, contending that (1) the trial court erred in its interpretation of the
restrictive covenant, (2) respondents were guilty of laches, and (3) damages would have been
the only appropriate remedy.
2. The Issues.
A. The Restrictive Covenant.
[Headnote 1]
Appellants contend that the phrase one story from ground level used in the deed
restriction is ambiguous and therefore should be strictly construed against those enforcing the
provision. The trial judge found no ambiguity in the phrase one story. He construed the
term ground level in the light most favorable to appellants that was consistent with
common sense, and still found that they had violated the covenant.
There is no basis in the record for overturning the determinations of the trial court.
Upholding a similar injunction restraining the building of a second level over a garage, a
California appellate court found nothing vague, ambiguous or uncertain in the meaning of
the restrictive phrase one story in height.' See King v. Kugler, 17 Cal.Rptr. 504, 507
(Cal.App. 1961).
[Headnotes 2-5]
Restrictive covenants are strictly construed, but if they are to have meaning they must be
enforced. Firth v. Marovich, 116 P. 729, 731 (Cal. 1911). While there was conflicting
testimony whether appellants' structure violated the covenant, the trial court's finding was
supported by substantial evidence, including the testimony of the author of the covenants
himself. Additionally, the trial judge personally visited the site before he made his final
determination. Any conflicts in testimony are to be resolved by the trier of fact. L. M.
Enterprises, Inc. v. Kenny, 92 Nev. 653, 556 P.2d 547 (1976). Furthermore, where a trial
court, sitting without a jury, makes a determination predicated upon conflicting evidence, that
determination will not be disturbed on appeal where supported by substantial evidence. J & J
Bldg. Contractors, Inc. v. Savage Constr., Inc.,92 Nev. 590, 555 P.2d 488 (1976).
B. The Laches.
[Headnote 6]
While citing no authority in support of their argument, appellants urge that respondents
were guilty of laches. The court below rejected this suggestion and specifically found that
respondents had acted diligently.
below rejected this suggestion and specifically found that respondents had acted diligently.
We agree.
It is difficult to fathom just how respondents should or could have acted more promptly in
the instant case. They had a right to assume that appellants would respect and abide by the
covenants. See Archambault v. Sprouse, 63 S.E.2d 459 (S.C. 1951). Appellants, who were
fully aware of the restrictions, chose to rely on the mistaken assumption that they were acting
legally and properly. They did so at their own risk. Smith v. Nelson, 368 P.2d 566 (Colo.
1962).
C. The Damages.
[Headnote 7]
Appellants contend that, since the violation was not merely threatened, but had already
occurred, respondents were limited to damages. They rely on the language of the enforcement
clause of the subdivision restrictions, which states, in pertinent part:
ARTICLE VIII: VIOLATION AND ENFORCEMENT
1. . . . [I]t shall be lawful . . . for the owner or owners of any lot or lots delineated
upon said [subdivision] map, to institute and prosecute any proceeding at law or in
equity against Declarant or any person, firm or corporation violating or threatening to
violate any of the conditions, restrictions or covenants herein contained and such action
may be maintained for the purpose of preventing the violation or to recover damages
for a violation, or for both of such purposes. . . .
This contention is meritless. Even if appellants' interpretation of the clause is accepted,
appellants were both violating and threatening a continued violation of the covenant at the
time the suit was instituted. Courts have commonly ordered removal of structures erected in
violation of restrictive covenants. E.g., Smith v. Nelson, 368 P.2d 566 (Colo. 1962); Hanson
v. Hanly, 383 P.2d 494 (Wash. 1963); McDonough v. W.W. Snow Constr. Co., 306 A.2d 119
(Vt. 1973).
[Headnote 8]
Finally, the appellants urge that the case has become moot as to the respondent
Williamses, who have sold their home and left the subdivision. This is not so, and even if it
were, the decision of the district court must be affirmed for the benefit of the remaining
respondents, who are all property owners and residents of the subdivision.
Article VIII, 1, of the subdivision restrictions specifically provides: The conditions,
restrictions or covenants herein contained shall bind and inure to the benefit of and be
enforceable by . . . the owner or owners of any lot contained within said property. . . .
Several of the respondent residents testified that they were concerned about the detrimental
effect of appellants' violation of the restriction on the future character of the subdivision.
Furthermore, the effect on the Williamses' former property remains the same. The beneficial
results of private-land-use restrictions have previously been recognized by this court.
Meredith v. Washoe Co. School Dist., 84 Nev. 15, 435 P.2d 750 (1968). The covenant must
be enforced, whether or not the Williamses remain parties to the suit.
For this reason, we affirm.
1

____________________

1
The Governor designated Howard W. Babcock, Judge of the Eighth Judicial District, to sit in place of Hon.
Gordon Thompson, Justice, who was disabled. Nev. Const. art. 6. 4.
____________
93 Nev. 610, 610 (1977) L&H Bldrs. Supply v. Boyd Co.
L & H BUILDERS SUPPLY, Appellant, v. THE BOYD COMPANY, a Nevada Corporation;
UNITED STATES FIDELITY AND GUARANTY COMPANY;
PAUL W. LOWDEN; and BOB CRAIG & ASSOCIATES, INC., a Nevada
Corporation, Respondents.
No. 8933
December 6, 1977 571 P.2d 1167
Appeal from an order granting summary judgment; Eighth Judicial District Court, Clark
County; Paul S. Goldman, Judge.
Cases were consolidated, including an action brought to collect upon claims for fringe
benefits under terms of a collective bargaining agreement. A summary judgment in favor of a
plaintiff for collection of the fringe benefit funds was granted by the district court and
defendant appealed. The Supreme Court held that plaintiff which failed to show express trust
or even that it was an authorized agent for purposes of suit to collect funds allegedly owed to
union funds failed to show that it was the real party in interest, and accordingly could not
maintain suit for collection.
Reversed.
Robert K. Dorsey, Las Vegas, for Appellant.
Lionel Sawyer & Collins and Lenard E. Schwartzer, Las Vegas, for Respondent The Boyd
Company.
Cromer, Barker & Michaelson, Las Vegas, for Respondent United States Fidelity and
Guaranty Company.
Wiener, Goldwater & Waldman, Las Vegas, for Respondent Lowden.
James L. Buchanan, II, Las Vegas, for Respondent Bob Craig & Associates, Inc.
Labor Relations.
Plaintiff which failed to show express trust or even that it was authorized agent for purposes of suit to
collect funds allegedly owed, as fringe benefit payments under terms of collective bargaining agreement, to
union funds failed to show that it was real party in interest and accordingly could not maintain suit for
collection. NRCP 17(a); F.R.C.P. 17(a), 28 U.S.C.A.
OPINION
Per Curiam:
This is an appeal from an order granting summary judgment in favor of Respondent The
Boyd Company in an action brought by Boyd to collect fringe benefit funds owed the
Building and Construction Trades Council.
The background of the instant case arose when appellant, L & H Builders Supply, filed
suit against Bob Craig & Associates, Inc. (hereafter Craig); its surety, United States Fidelity
and Guaranty Company (hereafter Surety); and others, for moneys due and owing for goods
sold and delivered. A default judgment against Craig was entered. Summary judgment against
Surety was entered, but execution was stayed until determination of Surety's counterclaim and
third-party complaint in interpleader, described below.
Boyd, administrator of various union trust funds, had also filed suit against Craig and
Surety, alleging failure to make certain payments to the funds, in violation of a collective
bargaining agreement. Surety answered, alleging multiple claims in excess of its $5,000
contractor's licensing bond. Surety's counterclaim and third-party complaint in interpleader
sought a determination of its liability under the bond to various claimants, including: L & H,
with a claim of $1,825.75; Boyd, with a claim for the full $5,000; and various other
suppliers with aggregate claims amounting to some $2,600.
a claim for the full $5,000; and various other suppliers with aggregate claims amounting to
some $2,600.
The two cases were consolidated. Boyd then moved for summary judgment for the full
amount of its claim, on the ground that claims for fringe benefits were entitled to priority over
claims of materialmen, relying on NRS 624.270 and citing Genix Supply Co. v. Board of
Trustees, 84 Nev. 246, 438 P.2d 816 (1968).
Boyd's motion was supported by an affidavit of Max Welling, administrative assistant of
Boyd, who stated that it was the function of the Boyd Company as administrator of the Joint
Trust Funds to oversee the collection of payment of fringe benefit contributions to the Joint
Trust Funds. According to Mr. Welling, Craig had bound itself to make certain payments to
the Joint Trust Funds under articles of agreement with the Building and Construction Trades
Council of Clark, Lincoln, Nye, and Esmeralda Counties. No copy of the collective
bargaining agreement or of any agreement between Boyd and the Trades Council or trustees
of any of the trust funds was submitted by Boyd. Copies of monthly remittance reports
submitted by Craig for the period in question indicate that checks were to be made out to the
trust funds directly and that the forms were to be sent to various savings and loan institutions.
Boyd was not mentioned.
L & H, in opposition to Boyd's motion for summary judgment, urged that Boyd was not a
real party in interest as required by NRCP 17(a), and that Genix should no longer apply,
because of subsequent amendments to the relevant statutes.
Summary judgment in favor of Boyd was granted. Boyd was found entitled to judgment
from Surety in the amount of $4,616.89, and from Craig in the amount of $461.68 plus costs.
The remainder of the bond, $383.11, was ordered paid to L & H.
L & H contends that Boyd is not a real party in interest, since it has claimed only to be an
administrator authorized to collect the funds which are the subject of this action. L & H's
contention is correct; neither the allegations of Boyd's complaint nor the affidavit and
documents submitted by Boyd have established that Boyd is a real party in interest.
The real-party-in-interest requirement of NRCP 17(a) specifies: An executor,
administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose
name a contract has been made for the benefit of another, or a party authorized by statute may
sue in his own name. . . .
The language of NRCP 17(a) duplicates the language of F.R.C.P. 17(a), of which it has
been said: The meaning and object of the real party in interest provision would be more
accurately expressed if it read: An action shall be prosecuted in the name of the party who, by
the substantive law, has the right to be enforced. 3A Moore's Federal Practice

17.02, at
17-13 (2d ed. 1948, 1977) (emphasis in the original).
Boyd contends that it is either an assignee for purposes of collection or the trustee of an
express trust and therefore is a real party in interest. Neither of these contentions is supported
by the record.
While the affidavit submitted by Boyd alleges that it was to oversee the collection of
payment of fringe benefit contributions to the Joint Trust Funds, nowhere does the affidavit
allege that Boyd was the assignee of the claims or debts of the funds. Nor has Boyd alleged or
supported by affidavit any other specific facts which would show the creation or existence of
an express trust. Therefore, this argument must fail. School Dist. No. 42 v. Peninsular Trust
Co., 75 P. 281 (Okla. 1904).
Boyd's supporting affidavit does not establish even that it was an authorized agent for
purposes of suit to collect the funds owed the trust funds. According to the Second
Restatement of Agency, 72, comment d (1958): Authority to receive payments does not
include authority to institute legal proceedings. . . . Even had Boyd established such
authority, a mere power of attorney, without interest in the subject matter, would not entitle it
to the status of a real party in interest. Peck v. Dodds, 10 Nev. 204 (1875); Restatement (2d),
Agency, 363-365 (1958).
Since Boyd has not established that it is a real party in interest, we reverse.
1

____________________

1
The Governor designated Hon. Stanley A. Smart, Judge of the Third Judicial District, to sit in place of Hon.
Gordon Thompson, Justice, who was disabled. Nev. Const. art. 6, 4.
____________
93 Nev. 614, 614 (1977) Goldberg v. District Court
AUBREY GOLDBERG, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA IN AND FOR THE COUNTY OF CLARK AND THE
HONORABLE JUDGES THEREOF, Respondents.
No. 10070
December 13, 1977 572 P.2d 521
Original proceeding in prohibition.
In an original proceeding, petitioner sought to prohibit the Eighth Judicial District Court
from closing its rule-making meeting to the public. The Supreme Court, Batjer, C. J., held
that statute providing that all meetings of public bodies shall be open and public, as applied to
judicial bodies, is an unconstitutional infringement on inherent powers of judiciary which
violates doctrine of separation of powers, and thus Eighth Judicial District Court had
authority to close its rule-making meeting to the public.
Writ denied.
Aubrey Goldberg, Las Vegas, for Petitioner.
Dickerson, Miles & Pico, Las Vegas, for Respondents.
1. Constitutional Law; Courts.
Statute providing that all meetings of public bodies shall be open and public, as applied to judicial
bodies, is an unconstitutional infringement on inherent powers of judiciary which violates doctrine of
separation of powers, and thus Eighth Judicial District Court had authority to close its rule-making meeting
to the public. NRS 241.020, subd. 1, 241.030, subd. 3; Const. art. 3, 1; art. 4, 1 et seq.
2. Constitutional Law; Courts.
The judiciary, as a coequal branch of government, has inherent powers to administer its affairs which
include rule-making and other incidental powers reasonable and necessary to carry out the duties required
for the administration of justice, and any infringement by Legislature upon such power is in degradation of
our tripartite system of government and strictly prohibited. NRS 241.020, subd 1, 241.030, subd. 3;
Const. art. 3, 1; art. 4, 1 et seq.
OPINION
In this original proceeding in prohibition, petitioner seeks to prohibit the Eighth Judicial
District Court from closing its rule-making meeting to the public.
rule-making meeting to the public. Respondent court scheduled a meeting for September 1,
1977, to consider, inter alia, proposed rules regarding the selection and duties of trial jurors
. . . and . . . administrative orders in respect thereto. On August 30, 1977, petitioner obtained
an agenda of the scheduled meeting and indicated his desire to attend. Respondent court,
through its court administrator, advised petitioner that the meeting was closed to the public.
On September 1, 1977, petitioner sought a writ of prohibition, and we stayed all rule-making
meetings of the Eighth Judicial District Court pending disposition of his petition.
[Headnote 1]
Petitioner contends NRS ch. 241, as amended by 1977 Nev. Stats. ch. 527, requires the
courts of Nevada, when considering rules or administrative orders, to hold open meetings and
allow all persons to attend.
1
Therefore, he argues respondent court had no authority to close
its rule-making meeting to the public. We disagree. In our view, NRS ch. 241, as applied to
judicial bodies, is an unconstitutional infringement on the inherent powers of the judiciary
which violates the doctrine of separation of powers.
2

It is fundamental to our system of government that the separate powers granted the
executive, legislative and judicial departments be exercised without intrusion. City of No.
Las Vegas v. Daines, 92 Nev. 292, 294, 550 P.2d 399, 400 (1976).
[Headnote 2]
Pursuant to this doctrine, it is clear that the judiciary, as a coequal branch of government,
has inherent powers to administer its affairs, see City of No. Las Vegas v. Daines, cited
above; Dunphy v. Sheehan, 92 Nev. 259, 549 P.2d 332 {1976); Sun Realty v. District
Court, 91 Nev. 774, 542 P.2d 1072 {1975); Young v. Board of County Comm'rs, 91 Nev.
52, 530 P.2d 1203 {1975); State v. Davis, 26 Nev. 373
____________________

1
NRS 241.020 (1) provides:
Except as otherwise specifically provided by statute, all meetings of public bodies shall be open and public,
and all persons shall be permitted to attend any meeting of these bodies.
NRS 241.030(3) provides, in pertinent part:
3. This chapter does not:
(a) Apply to judicial proceedings, except those at which consideration of rules or deliberation upon the
issuance of administrative orders are conducted.

2
Nev. Const. art. 3, 1 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.
above; Dunphy v. Sheehan, 92 Nev. 259, 549 P.2d 332 (1976); Sun Realty v. District Court,
91 Nev. 774, 542 P.2d 1072 (1975); Young v. Board of County Comm'rs, 91 Nev. 52, 530
P.2d 1203 (1975); State v. Davis, 26 Nev. 373, 68 P. 689 (1902), which include rule-making
and other incidental powers reasonable and necessary to carry out the duties required for the
administration of justice.
3
Any infringement by the legislature upon such power is in
degradation of our tripartite system of government and strictly prohibited. See Dunphy v.
Sheehan, cited above.
Although these inherent powers exist independent of constitutional or statutory grant, see
State v. Becker, 174 S.W.2d 181 (Mo. 1943); State v. Superior Court of Maricopa County, 5
P.2d 192 (Ariz. 1931), we have recognized that [t]he legislature may, by statute, sanction the
exercise of inherent powers by the courts, and the courts may acquiesce in such
pronouncements by the legislature, . . . Lindauer v. Allen, 85 Nev. 430, 434, 456 P.2d 851,
854 (1969).
4
Cf. Burney v. Lee, 129 P.2d 308 (Ariz. 1942). Even so, we remain ever mindful
that such statutes are merely legislative sanctions of independent rights already belonging to
the courts, Lindauer v. Allen, cited above, and where, as here, those statutes attempt to limit
or destroy an inherent power of the courts, [such statutes] must fail."
____________________

3
See McDonald v. Pless, 238 U.S. 264 (1915); Dunphy v. Sheehan, cited above; Matter of Salary of Juvenile
Director, 552 P.2d 163 (Wash. 1976); State Ex Rel. Lynch v. Dancey, 238 N.W.2d 81 (Wis. 1976); O'Coin's,
Inc. v. Treasurer of County of Worcester, 287 N.E.2d 608 (Mass. 1972); Nassif Rlty. Corp. v. National Fire Ins.
Co. of Hartford, 220 A.2d 748 (N.H. 1966); Schavey v. Roylston, 448 P.2d 418 (Ariz.App. 1968); Burton v.
Mayer, 118 S.W.2d 547 (Ky.App. 1938). See generally, Commentary, Inherent Power and Administrative Court
Reform, 58 Marquette L. Rev. 133 (1975); Mallard, Inherent Power of the Courts of North Carolina, 10 Wake
Forest L. Rev. 1 (1974); Dowling, The Inherent Power of the Judiciary, 21 A.B.A.J. 635 (1935).

4
See, for example, the following statutes which codify our inherent rule-making powers:
NRS 2.120(1), which provides, in pertinent part:
The supreme court may make rules not inconsistent with the constitution and laws of the state for its own
government, the government of the district courts, and the government of the State Bar of Nevada.
NRS 3.025(2), which provides, in pertinent part:
The chief judge [of the district court] shall:
. . .
(c) Adopt such rules and regulations as are necessary for the orderly conduct of court business.
[such statutes] must fail. Lindauer v. Allen, 85 Nev. at 434, 456 P.2d at 854.
5

Petitioner, in an attempt to circumvent this precept, contends NRS ch. 241, as amended,
neither limits nor destroys the inherent powers of the court, but merely represents a
permissible overlapping of the powers granted to the separate branches of government.
We have previously acknowledged the legislature's power to exercise overlapping
ministerial functions, provided those functions could be logically and legitimately traced to a
basic source of power. See Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237 (1967).
However, judicial rule-making powers cannot logically and legitimately be traced to the
source of legislative power (Article 4 of the Nevada Constitution). Indeed, the only logical
and legitimate source of such power is Article 6.
6
Cf. Galloway v. Truesdell, cited above;
State v. Fields, 530 P.2d 284 (Wash. 1975).
In summary, the inherent power of the judicial department to make rules is not only
reasonable and necessary, but absolutely essential to the effective and efficient administration
of our judicial system, and it is our obligation to insure that such power is in no manner
diminished or compromised by the legislature. Eminent legal scholars long ago propounded
cogent arguments against relying upon legislative management of judicial affairs.
[L]egislatures are not held responsible in the public eye for the efficient
administration of the courts and hence do not feel pressed to constant reexamination of
procedural methods. . . . Court rules, on the other hand, are flexible in application, easy
of clarification, and rapid of amendment should amendment be required. They are the
work of an agency whose whole business is court business and for whom court
efficiency can become a
____________________

5
Cf. Volpert v. Papagna, 85 Nev. 437, 456 P.2d 848 (1969); St. Ex Rel. Watson v. Merialdo, 70 Nev. 322,
268 P.2d 922 (1954); State v. Smith, 527 P.2d 674 (Wash. 1974); Sharood v. Hatfield, 210 N.W. 2d major
interest, an agency keenly 275 (Minn. 1973); Sams v. Olah, 169 S.E.2d 790 (Ga. 1969); Holm v. State,
404 P.2d 740 (Wyo. 1965); Burney v. Lee, cited above. Arnett v. Meade, 462 S.W.2d 960 (Ky.App. 1971). See
generally, Wigmore, Legislature Has No Power in Procedural Field, 20 J.Am. Jud. Soc'y 159 (1936).

6
Nev. Const. art. 6, 1, provides, in pertinent part:
The Judicial power of this State shall be vested in a court system, comprising a Supreme Court, District
Courts, and Justices of the Peace.
major interest, an agency keenly aware of the latest problems and fully capable of
bringing to bear in their early solution a long and solid experience.
Levin and Amsterdam, Legislative Control Over Judicial Rule-Making: A Problem in
Constitutional Revision, 107 U. Penn. L. Rev. 1, 10 ( 1958). See generally, Pound, The
Rule-Making Power of the Courts, 12 A.B.A.J. 599 (1926).
Accordingly, the petition for prohibition must be, and is hereby, denied, and the stay order
is dissolved.
Mowbray, Thompson, and Manoukian, JJ., concur.
Although I do not disagree with the reasoning articulated by our brother Batjer, and agree
with the result reached thereby, I desire to add two observations.
First, some may question whether this proceeding presents an actual controversy between
petitioner and the judges of the Eighth Judicial District Court. See Muskrat v. United States,
219 U.S. 346 (1911). However, even if it does not, in this instance I perceive no obstacle to
our issuing an opinion, since its subject concerns court administration. At the general election
held in November of 1976, the people expressly assigned this Court and its Chief Justice the
power and duty to supervise administration of Nevada's court system. See Nev. Const. art. 6,
as amended. Thus, it appears proper to issue an opinion required for that purpose, even absent
any true legal controversy, although our advice might not be justified as an exercise of our
judicial function.
Second, theories of inherent powers aside, it appears from the express grant of
constitutional authority to administer Nevada's court system that the public intended this
Court, not the Legislature, to see that rules and administrative orders are promulgated in ways
consistent with the public interest and with the judiciary's needs. Under procedures this court
established years ago, standing rules of practice suggested by district court judges, and
tentatively approved by us, do not become binding until published and until 60 days have
elapsed.
1
Thus, long before our Legislature's recent concern for open government, this
Court established an orderly means to allow lawyers and the public an opportunity to
provide input and to offer objections concerning district court rules.
____________________

1
NRCP 83 provides:
RULE 83. RULES BY DISTRICT COURTS
Each district court by action of a majority of the judges thereof may from time to time make and amend
rules governing its practice not inconsistent with these rules. Copies of rules and amendments so made by any
district court shall upon their promulgation be furnished to the Supreme Court, but shall not become effective
until sixty days
long before our Legislature's recent concern for open government, this Court established an
orderly means to allow lawyers and the public an opportunity to provide input and to offer
objections concerning district court rules. The means is, so far as I can see, well conceived. It
permits district judges in multi-judge districts fundamentally the same opportunity as those in
single-judge districts to seek rule changes from this court, in an expeditious manner. It
provides the public in multi-judge districts the same right to raise objections to this court.
In summary, then, without any legislative mandate, standing rules for district courts
currently are promulgated in a manner which is orderly and open, but tailored to the peculiar
needs of the court system. Administrative ordersif this term be applied to orders
governing day-to-day administrationare left, as they must be, to the good judgment of the
district court judges. Therefore, if the Legislature has indeed sought to govern the judiciary by
the statute in question, it has structured a solution for which there is no problem.
Of course, our court system suffers other problems, many of which derive from the
excessive press of business. None of the real problems the district courts face would be
alleviated by imposing additional strictures upon judges in multi-judge districts, thereby
limiting their ability to meet freely, whenever judicial business permits, to discuss possible
solutions to administrative problems.
____________________
after approval by the Supreme Court and publication. In all cases not provided for by rule, the district courts may
regulate their practice in any manner not inconsistent with these rules.
____________
93 Nev. 619, 619 (1977) Beddow v. State
HARRY WELCOME BEDDOW, Appellant, v. THE
No. 9552
December 21, 1977 572 P.2d 526
Appeal from judgment of felony conviction for attempted resisting of a public officer.
Eighth Judicial District Court, Clark County; James A. Brennan, Judge.
The Supreme Court, Manoukian, J., held that: (1) elements of attempt to commit a crime
are: an intent to commit a crime, performance of some act toward its commission, failure to
consummate its commission; (2) evidence sustained the conviction; {3) officers' testimony
concerning neighbors' statements was properly admitted as an exception to hearsay rule;
{4) requested instruction as to effect of evidence regarding defendant's reputation of
being a peaceful and law-abiding citizen was properly refused, and {5) the sentence of
one year in jail with sentence suspended and placing defendant on probation was
erroneous since defendant was convicted of a felony.
conviction; (3) officers' testimony concerning neighbors' statements was properly admitted as
an exception to hearsay rule; (4) requested instruction as to effect of evidence regarding
defendant's reputation of being a peaceful and law-abiding citizen was properly refused, and
(5) the sentence of one year in jail with sentence suspended and placing defendant on
probation was erroneous since defendant was convicted of a felony.
Affirmed; remanded for modification of sentencing.
Morgan D. Harris, Clark County Public Defender, and George Franzen, Deputy Public
Robert List, Attorney General, Carson City; George E. Holt, Clark County District
Attorney, H. Leon Simon and Thomas Beatty, Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Elements of an attempt to commit a crime are: an intent to commit a crime; (2) performance of some act
toward its commission, and (3) failure to consummate its commission.
2. Obstructing Justice.
Substantial evidence supported conviction of attempted resisting of a public officer. NRS 199.280.
3. Criminal Law.
In prosecution for attempted resisting of a public officer, as officers' response to defendant's behavior in
refusing to remove his arm from his sides and away from his weapon as commanded was an issue, officers'
testimony concerning the neighbors' statements that defendant was intoxicated and possibly carrying a
revolver was, as an exception to hearsay rule, relevant to evidence their then existing states of mind, and
hence such testimony was properly admitted from both an evidentiary as well as a constitutional point of
view. NRS 51.035; U.S.C.A.Const. Amend. 6.
4. Criminal Law.
An accused is permitted a jury instruction on the legal effect of good character evidence produced at trial.
5. Criminal Law.
In prosecution for attempted resisting of a public officer, refusal to give requested instruction that
defendant's evidence of his reputation of being a peaceful and law-abiding citizen may be sufficient when
considered with other evidence in the case to raise a reasonable doubt of defendant's guilt, but if from all
the evidence in this case you are satisfied beyond a reasonable doubt of the defendant's guilt, then it is your
duty to find him guilty, even though he may have a good reputation for being a peaceful and law-abiding
citizen was properly refused for inclusion of the quoted language.
6. Criminal Law.
Upon defendant's conviction of attempted resisting of a public officer, a sentence to jail for term of one
year with sentence to be suspended and defendant placed on probation was erroneous since defendant was
convicted of a felony. NRS 199.280, 208.070.
OPINION
Two officers of the Las Vegas Metropolitan Police Department were dispatched to a civil
disturbance at a trailer park. After discussing the matter with the neighbor who initiated the
complaint, the officers, informed that appellant was intoxicated and possibly carrying a
revolver, approached the mobile home of the appellant.
Although it was in the early morning hours, the area was adequately lighted and the
officers could see a male and a female inside appellant's residence. The officers testified that
the appellant was drinking a beer and got up slowly from the table to answer the door. As
Beddow approached, a gun was visible inside his right rear pant pocket. An officer
commanded Beddow to take his hands away from his side and not touch the weapon. Beddow
stepped toward the door and as he did the gun was momentarily hidden from the officers'
view. Simultaneously, the appellant moved his right hand around his back.
The officers, fearing for their safety and for the safety of appellant should they have been
forced to draw their own service weapons, immediately entered the trailer and disarmed
appellant who resisted. The officers next attempted to remove Beddow to a neutral area
outside the residence. A struggle ensued and both appellant and an officer fell down some
steps. The appellant hit the side of his head on a concrete patio, suffered a laceration over his
eye, and was knocked unconscious. The officers further testified that the appellant appeared
to be intoxicated and that he had defecated in his pants. The officers applied cold compresses
to appellant's injury and transported him by ambulance to a hospital where he refused
treatment of his injury.
The jury rendered a verdict of guilty of attempted resisting of a public officer, and the trial
court entered judgment of conviction. Thereafter, appellant was sentenced to serve one year
in the Clark County Jail; the sentence was suspended with appellant placed on probation.
with appellant placed on probation. Appellant appeals from that conviction.
Appellant asserts three specifications of error for our determination: (1) the evidence is
insufficient to support the conviction; (2) the trial court erred in admitting claimed hearsay
testimony, over objection; and (3) the trial court erred in refusing appellant's proposed jury
instruction.
1. Sufficiency of Evidence.
[Headnote 1]
Appellant contends that the State did not present sufficient evidence upon which to base
his conviction. NRS 199.280 reads in part:
Every person who, in any case or under any circumstances not otherwise specially
provided for, shall willfully resist, delay or obstruct a public officer in discharging or
attempting to discharge any legal duty of his office shall be punished:
1. Where a dangerous weapon is used in the course of such resistance, obstruction
or delay, by imprisonment in the state prison for not less than 1 year nor more than 6
years.
To be guilty of an attempted crime, however, the acts of the accused must be sufficient to
satisfy the test recognized by this court in Vincze v. Sheriff, 86 Nev. 474, 470 P.2d 427
(1970).
The elements of an attempt to commit a crime in this state are: (1) an intent to
commit a crime, (2) performance of some act toward its commission, and (3) failure to
consummate its commission.
86 Nev. at 477, 470 P.2d at 429.
[Headnote 2]
Appellant argues that the mere fact that his hand reached back toward his rear pocket is
legally insufficient evidence upon which to base his felony conviction. He asserts that an
alternative explanation to this behavior is that Beddow reached behind him to determine
whether he in fact had defecated in his pants. Both officers testified that as the appellant lay
unconscious, they had observed that he defecated in his pants. One officer testified that he
thought this occurred during the struggle as he had heard a noise indicative of someone
breaking wind. Thus, appellant urges the explanation that be was reaching behind because
he had defecated in his pants. This interpretation of the events is totally inconsistent with
appellant's trial strategy.
appellant's trial strategy. There, to rebut the implication that appellant had defecated because
of intoxication, appellant's counsel produced expert medical testimony that defecation could
have occurred during appellant's period of unconsciousness. As well, on direct examination
the appellant himself testified that he had defecated in his pants while unconscious during
another incident. Appellant's belated argument that he was reaching behind him because he
had defecated is unavailing.
The jury found that the State had proven every element of the crime charged, see,
Mullaney v. Wilbur, 421 U.S. 684 (1975), which was within its prerogative. Harris v. State,
88 Nev. 385, 498 P.2d 373 (1972); McGuire v. State, 86 Nev. 262, 468 P.2d 12 (1970). There
is substantial evidence to support the verdict, and we will not disturb it. Hankins v. State, 91
Nev. 477, 538 P.2d 167 (1975); Sanders v. State, 90 Nev. 433, 529 P.2d 206 (1974).
2. Admissibility of Claimed Hearsay Testimony.
[Headnote 3]
At trial, appellant attempted to have excluded allegedly hearsay evidence, but his motion
in limine was denied as was, at trial, his objection to the offending testimony. The evidence
offered through the testimony of the police officers consisted of the statements appellant's
neighbors made to the officers pertaining to appellant's purported intoxication and the fact
that he was known to carry a gun.
Nevada has adopted the rather standardized definition of hearsay as any out of court
statement offered to prove the truth of the matter asserted. NRS 51.035. Were the statements
related by the officers offered as truth of those assertions, the testimony would have been
unquestionably hearsay and equally as offending to appellant's Fifth Amendment
confrontation rights. Dutton v. Evans, 400 U.S. 74 (1970). An issue in the prosecution of this
matter concerned the reactions of the police officers to appellant's refusal to move his arms
from his sides and away from his weapon as commanded, and his reaching behind his back
toward the weapon.
Whenever an utterance is offered to evidence the state of mind which ensued in
another person in consequence of the utterance, it is obvious that no assertive or
testimonial use is sought to be made of it, and the utterance is therefore admissible, so
far as the hearsay rule is concerned. (Emphasis in original.)
6 Wigmore, Evidence 314 (Chadbourn Rev. 1976).
As the officers' response to this behavior was an issue, the testimony of the officers
concerning the neighbors' statements was, as an exception to the hearsay rule, relevant to
evidence their then existing states of mind. NRS 51.105. Further, the trial court instructed the
jury that [t]he police officers' testimony as to what the occupants of trailer space 164 told
them is not being offered as proof that the Defendant, Mr. Harry W. Beddow, was doing what
those occupants said he was doing. The officers' testimony as to what the occupants of space
164 said, may be considered only for the purpose of evaluating the police officers' state of
mind at the time that they went to the Defendant's home. This added precaution minimized
the possibility of prejudice.
Appellant cites State v. Emery, 480 P.2d 445 (Ore.App. 1971), as being parallel to the case
before us and therefore supportive of his argument. Emery is inapposite, as there the
extrajudicial statements were corroborative of the victim's testimony as to the acts
constituting the charged offense.
The evidence was properly admitted from both an evidentiary as well as a constitutional
point of view.
3. Refusal of Jury Instruction.
Appellant next asserts as error the trial court's refusal to give the following jury
instruction:
The defendant has introduced evidence of his reputation for being a peaceful and
law-abiding citizen. This evidence may be sufficient when considered with the other
evidence in the case to raise a reasonable doubt of the defendant's guilt. However, if
from all the evidence in this case you are satisfied beyond a reasonable doubt of the
defendant's guilt, then it is your duty to find him guilty, even though he may have a
good reputation for being a peaceful and law-abiding citizen.
[Headnote 4]
Appellant is correct in his contention that an accused is permitted a jury instruction on the
legal effect of good character evidence produced at trial. In State v. Kaiser 508 P.2d 74 (Ariz.
1973), the court stated:
It is well established that the accused when presenting his case, may offer evidence
of his good character as substantive evidence from which the jury may infer that he did
not commit the crime charged.
Id. at 75.
In United States v. Frischling, 160 F.2d 370 (3rd Cir. 1947), the defendant requested an
instruction which read:
Good character, when considered in connection with the other evidence in the case,
may generate a reasonable doubt sufficient to justify you in acquitting the defendant.
Id. at 370.
The trial court refused that instruction, substituting in lieu thereof a charge that the jury
give the character evidence such weight as the jury should deem it entitled to under all the
evidence in the case. Id. The circuit court reversed, stating:
It has long been the rule that it is the duty of the trial judge to instruct the jury in
substance that reputation of the defendant's good character, when put in evidence, is a
fact which they should consider with the other facts in the case and which, when so
considered, may, like other facts, generate a reasonable doubt which would justify
acquittal.
Id.
[Headnote 5]
Although in the instant case the requested instruction paralleled significantly the requested
instruction in Frischling, the apparent similarity was disrupted by the following additional
language in the subject instruction now before this Court.
However, if from all the evidence in the case you are satisfied beyond a reasonable
doubt of the defendant's guilt, then it is your duty to find him guilty, even though he
may have a good reputation for being a peaceful and law-abiding citizen.
This additional language, unfortunately for appellant, parallels the language which caused
a reversal of the federal district court in United States v. Leigh, 513 F.2d 784 (5th Cir. 1975).
There, the offending language in the jury instruction read in part:
The circumstances may be such that evidence of good reputation as to truth,
veracity, sobriety and being a peaceable and law-abiding citizen, may alone create a
reasonable doubt of the defendant's guilt, although without it the other evidence would
be convincing. However, evidence of good reputation should not constitute an excuse to
acquit the defendant if you, the jury, after weighing all of the evidence in the case, is
[sic] convinced beyond a reasonable doubt that the defendant is guilty of the
offenses charged in the indictment.
beyond a reasonable doubt that the defendant is guilty of the offenses charged in the
indictment. (Circuit Court emphasis.)
Id. at 785.
The rationale of the Leigh court for reversal was principally premised upon the effect to be
given character evidence. In reviewing the jury instruction, the court held that:
Unfortunately, the final sentence of the charge is so fatally defective that it negates
the entire instruction, and requires reversal of appellant's conviction. First, of course,
the sentence is an erroneous statement of the law. At least since Edgington v. United
States, 164 U.S. 361, 17 S.Ct. 72, 41 L.Ed. 467 (1896), the rule has been that the jury
must consider reputation evidence in the same manner as it considers all other
evidence, not, as this instruction suggests, after weighing all of the evidence in the
case. . . . Seizing on this sentence, the jury could easily have formed the impression
that reputation evidence could only be used to tip the scales in defendant's favor if the
case was [sic] otherwise close; this is precisely the contention rejected by the Supreme
Court in Edgington, supra.
Id. at 786.
Our review of the proffered jury instruction equally suggests that the jury may have
considered the legal effect of character evidence to be a balancing factor. Thus, the trial
court was justified in refusing to give that instruction. See, Porterie v. Peters, 532 P.2d 514
(Ariz. 1975).
[Headnote 6]
We note that appellant was sentenced to the Clark County Jail for a term of one year and
that that sentence was suspended and appellant placed on probation. The sentence is
erroneous, since appellant was convicted of a felony. See, NRS 199.280 and 208.070.
Accordingly, this case must be remanded for modification of sentence consistent with law.
The conviction is affirmed and the matter remanded for purposes of a felony sentencing in
conformity with law.
Batjer, C. J., and Mowbray, Gunderson, and Zenoff,
1
JJ., concur.
____________________

1
The Chief Justice designated the Honorable David Zenoff, Chief Justice (Retired), to sit in this case. Nev.
Const. art. 6, 19; SCR 244.
____________
93 Nev. 627, 627 (1977) Wagner v. Carex Investigations & Sec.
PAUL ALBERT WAGNER, Appellant, v. CAREX INVESTIGATIONS & SECURITY
INC., a Nevada Corporation; HERITAGE SQUARE ASSOCIATION, INC., a Nevada
Corporation; ALLAN C. KRIENKE; and ANTOINE PAVAO, Respondents.
No. 9056
December 21, 1977 572 P.2d 921
Appeal from summary judgment of the Eighth Judicial District Court, Clark County; J.
Action was brought to recover damages for false arrest. The district court granted
summary judgment in favor of defendants and plaintiff appealed. The Supreme Court held
that: (1) trial court did not abuse its discretion in refusing to accept tardily-filed responses to
defendants' requests for admissions on basis of attorney's affidavit declaring that responses to
request for admissions had been dictated, but were not transcribed by his secretary and that he
had not noticed failure to serve responses until on or just before date on which defendants
moved for summary judgment; (2) matters requested were properly deemed admitted, and (3)
where, by failing to serve timely response, plaintiff admitted that he and his guests assaulted
defendant without any justification prior to plaintiff's arrest and that defendant had probable
cause and was justified in arresting plaintiff for incidents alleged in plaintiff's complaint,
summary judgment for defendants was not inappropriate on basis that the admissions were
contradicted by previously filed answers to interrogatories, resulting in genuine issues of
material fact.
Affirmed.
Raymond E. Sutton, George Foley,
1
Las Vegas, for Appellant.
Cromer, Barker & Michaelson and James R. Olson; and Lorin D. Parraguirre, Las Vegas,
for Respondents.
Matters deemed admitted as result of failure to serve timely answers or objections to requests for
admissions may properly serve as basis for summary judgment against party who has failed to serve timely
response and relief from motion to vacate summary judgment is discretionary with district court. NRCP
36(a), (b).
____________________

1
Mr. Foley's representation of appellant was limited to oral argument before this court.
District courts are allowed considerable discretion in determining whether to accept tardily filed
responses to requests for admissions. NRCP 36(a), (b).
Trial court did not abuse its discretion in refusing to accept tardily-filed responses to defendants' requests
for admissions on basis of attorney's affidavit declaring that responses had been dictated, but were not
transcribed by his secretary, and that he had not noticed failure to serve responses until on or just before
date on which defendants moved for summary judgment. NRCP 36(a), (b).
In absence of showing of abuse of discretion in refusal to accept tardily-filed responses to requests for
admissions, matters requested were properly deemed admitted. NRCP 36.
5. Judgment; Pretrial Procedure.
Where by failing to serve timely response to defendants' request for admissions in false arrest case,
plaintiff admitted that he and his guests assaulted one defendant without any justification prior to plaintiff's
arrest and that defendant had probable cause and was justified in arresting plaintiff for incidents alleged in
plaintiff's complaint, such admissions left no room for conflicting inferences and were dispositive of case;
thus summary judgment for defendants was not inappropriate on basis that admissions were contradicted by
previously filed answers to interrogatories, resulting in genuine issues of material fact. NRS 171.126,
171.126, subd. 1; NRCP 36(b); F.R.C.P. 36(b), 28 U.S.C.A.
6. Judgment.
Where plaintiff had adequate notice of hearing on motion for summary judgment by virtue of timely
motion served by two defendants and plaintiff submitted affidavit in opposition dealing with response to
request for admissions, the issue dispositive of case against all four defendants, but rather than appearing or
requesting continuance of hearing, plaintiff chose to rely upon affidavit and it was not shown that plaintiff
had any additional evidence to offer regarding his late response to request for admissions, granting of
summary judgment in favor of the defendants who did not move for it was appropriate. NRS 171.126,
171.126, subd. 1; NRCP 36(a); Const. art. 6, 4.
OPINION
Per Curiam:
The appellant, Paul Albert Wagner, filed this action against the respondents-defendants to
recover damages for a false arrest. The district judge granted summary judgment in favor of
respondents, which was predicated on appellant's failure to answer respondents' request for
certain admissions, as provided under NRCP 36{a).2 Appellant seeks reversal of the order
below, and the principal issue presented is whether the district judge abused his
discretion in granting the order in the instant case.
answer respondents' request for certain admissions, as provided under NRCP 36(a).
2
Appellant seeks reversal of the order below, and the principal issue presented is whether the
district judge abused his discretion in granting the order in the instant case.
1. The Facts.
The case is focused on a false arrest complaint wherein appellant seeks damages resulting
therefrom. The subject of the pleadings is narrowed to a series of interrogations and requests
for admissions that respondents Pavao and Heritage Square Association, Inc. (hereafter
Heritage) sent appellant on April 16, 1976. The request was not honored within the 30 days
permitted by the Rule, and on May 28, 1976, Pavao and Heritage moved for summary
judgment against appellant, on the ground that the admissions requested were deemed
admitted. Respondents Carex Investigations & Security Inc. (hereafter Carex) and Allan C.
Krienke filed on June 8, 1976, points and authorities in support of the motion.
Appellant's then attorney filed an affidavit in opposition to the motion for summary
judgment, in which he admitted receiving the request for admissions on April 19, 1976, but
declared that he did not discover until May 27 or 28 that the answers dictated to his secretary
had not been served. Statements in response to the request for admissions were filed on June
4, 1976.
Neither appellant nor his counsel appeared at the hearing on June 10, 1976. Summary
judgment was entered by the district court in favor of all four defendants on June 22, 1976.
Appellant contends that in the circumstances of this case the motion for summary
judgment should not have been granted, because (a) a liberal construction of NRCP 36 should
have been applied to allow his untimely response to avoid the admissions, and (b), even if the
admissions requested by respondents are deemed made, the matters therein are contradicted
by previously submitted answers to respondents' interrogatories. In addition, appellant
challenges the granting of summary judgment in favor of respondents Krienke and Carex, on
the ground that they had not filed a formal written motion for summary judgment 10 days
prior to the hearing.
____________________

2
NRCP 36(a), in pertinent part:
Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless,
within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party
to whom the request is directed serves upon the party requesting the admission a written answer or objection
addressed to the matter, signed by the party or by his attorney. . . .
2. The Issues.
A. The Late Response to the Request for Admissions.
Appellant contends that the court below erred in granting summary judgment for
respondents in light of the affidavit of counsel and the submission of a late response to the
request for admissions prior to the hearing on respondents' motion. This contention is without
merit.
[Headnote I]
The sanction for failure to serve timely answers or objections to requests for admissions is
that all matters in the request are deemed admitted. NRCP 36(a), supra, f. 2. It is settled in
this jurisdiction that such admissions may properly serve as the basis for summary judgment
against the party who has failed to serve a timely response. Graham v. Carson-Tahoe Hosp.,
91 Nev. 609, 540 P.2d 105 (1975). Relief is discretionary with the district court. Western
Mercury, Inc. v. Rix Co., 84 Nev. 218, 222, 438 P.2d 792, 794 (1968).
[Headnote 2]
Appellant has cited two federal cases which he contends support his position that the court
below was required to accept his tardily filed responses. However, neither case supports this
novel contention. In Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686 (2d Cir. 1966), the court
upheld the lower court's refusal to grant summary judgment for plaintiff on the basis of
defendant's late reply to requests for admissions, while specifically noting: The District
Court could have granted summary judgment on the claim, as the request to admit is
comprehensive. 358 F.2d at 688. The action was upheld because: Under compelling
circumstances the District Court may allow untimely replies to avoid the admission. Id.
(emphasis added). The district court in Jackson v. Kotzebue Oil Sales, 17 F.R.D. 204, 206
(D.C. Alas. 1955), also noted that it had the power to grant summary judgment, but chose to
exercise its discretion to grant a request for a brief extension of time until the attorney had
returned from service in the state legislature. These cases are simply illustrative of the general
rule that district courts are allowed considerable discretion in determining whether to grant
such relief.
[Headnote 3]
Appellant has failed to show any abuse of discretion by the district court under the
circumstances of the case at hand. The affidavit of appellant's attorney declared that responses
to the request for admissions had been dictated, but were not transcribed by his secretary, and
that he had not noticed the failure to serve the responses until May 27 or 2S, 1976, on or
just before the date on which Respondents Heritage and Pavao filed their motion for
summary judgment.
to serve the responses until May 27 or 28, 1976, on or just before the date on which
Respondents Heritage and Pavao filed their motion for summary judgment. In similar
contexts, this court has upheld lower court rulings which rejected law office oversights as
acceptable excuses. See, for example, Intermountain Lumber & Builders Supply, Inc. v. Glens
Falls, 83 Nev. 126, 424 P.2d 884 (1967) (refusal to set aside default).
[Headnote 4]
Since appellant has failed to show any abuse of discretion by the court below, the matters
requested by respondents were properly deemed admitted by operation of NRCP 36.
B. The Prior Responses to the Interrogatories.
Appellant next contends that even if the matters in the request for admissions are deemed
admitted, summary judgment was improperly granted because the admissions were
contradicted by previously filed answers to interrogatories, resulting in genuine issues of
material fact. This contention is also without merit.
[Headnote 5]
The cases cited by appellant, Cameron v. Vancouver Plywood Corp., 266 F.2d 535 (9th
Cir. 1959), and United States v. Perry, 431 F.2d 1020 (9th Cir. 1970), holding that summary
judgment is inappropriate where conflicting inferences may be drawn from undisputed
evidence, are inapplicable here. By his failure to serve a timely response, appellant admitted
that Plaintiff and his guests assaulted Defendant, Allan Krienke, without any justification
prior to Plaintiff's arrest, and that Defendant, Allan Krienke, had probable cause and was
justified in arresting Plaintiff on September 9, 1972, for the incidents alleged in Plaintiff's
Complaint. These admissions leave no room for conflicting inferences, and they are
dispositive of the case. NRS 171.126,
3
and see Lerner Shops v. Marin, 83 Nev. 75, 423 P.2d
398 (1967).
According to NRCP 36(b): Any matter admitted under this rule is conclusively
established unless the court on motion permits withdrawal or amendment of the admission.
This provision adopts the language of F.R.C.P. 36(b), approved by the United States Supreme
Court on March 30, 1970. According to the federal Advisory Committee Notes, the rule was
intended to clarify that [i]n form and substance a Rule 36 admission is comparable to an
admission in pleadings or a stipulation drafted by counsel for use at trial, rather than to an
evidentiary admission of a party," and therefore is not rebuttable by contradictory
testimony of the admitting party.
____________________

3
NRS 171.126(1): A private person may arrest another:
1. For a public offense committed or attempted in his presence.
drafted by counsel for use at trial, rather than to an evidentiary admission of a party, and
therefore is not rebuttable by contradictory testimony of the admitting party. 4A Moore's Fed.
Prac.
36.01[7], at 36-13 (1974).

Summary judgment was properly granted, predicated on the matters deemed admitted by
appellant's failure to respond to the request within 30 days.
C. The Motion for Summary Judgment.
[Headnote 6]
Appellant, relying on NRCP 7(b)(1)
4
and NRCP 56(c),
5
contends that, since
Respondents Krienke and Carex did not file a formal written motion for summary judgment
or serve such motion at least 10 days before the date set for hearing the court below was
precluded from granting summary judgment in their favor.
This court has ruled that, where no timely objection is offered, codefendants may join, by
oral motion at hearing, in a written motion for summary judgment timely submitted by
another codefendant. Exber, Inc. v. Sletten Constr. Co., 92 Nev. 721, 558 P.2d 517 (1976).
Appellant had adequate notice of the hearing by virtue of the timely motion served by
Heritage and Pavao. Indeed, he submitted an affidavit in opposition to the motion which dealt
with the response to admissions, the issue dispositive of the case against all four defendants.
Rather than appear or request a continuance at the hearing, appellant chose to rely upon the
affidavit. Nowhere does appellant suggest that he had any additional evidence to offer
regarding his late response to the request for admissions.
In Exber, this court laid down the guidelines for upholding a summary judgment without a
formal motion by codefendants:
(1) Exber failed to timely object, (2) the court had before it a proper motion
submitted by one of the codefendants and merely granted the motion as to all
defendants, and (3) Exber was afforded an opportunity to present arguments on the
merits of consolidated arbitration [the dispositive issue], which issue was resolved
against Exber.
. . .
____________________

4
NRCP 7(b)(1): An application to the court for an order shall be by motion which, unless made during a
hearing or trial, shall be in writing. . . .

5
NRCP 56(c): The motion [for summary judgment] shall be served at least 10 days before the time fixed
for the hearing. . . .
Exber, Inc. v. Sletten Constr. Co., 92 Nev. at 734, 558 P.2d at 525.
For the same three reasons, the granting of summary judgment in favor of Respondents
Krienke and Carex must be upheld in this case.
We conclude, therefore, that summary judgment in favor of all four defendants was
appropriately entered. The district court properly exercised its discretion in refusing to permit
appellant to avoid the admissions deemed made by operation of NRCP 36(a). Such
admissions were conclusive and dispositive of appellant's case against all the codefendants.
Finally, the court did not err in granting summary judgment in favor of Respondents Krienke
and Carex on the basis of the timely motion by their codefendants Heritage and Pavao.
Affirmed.
6

____________________

6
The Governor designated Merlyn H. Hoyt, Judge of the Seventh Judicial District, to sit in place of Hon.
____________
93 Nev. 633, 633 (1977) Diotallevi v. District Court
PIETRO DIOTALLEVI, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA and HONORABLE JOHN W. BARRETT, Judge
Thereof, Respondents.
No. 9672
December 21, 1977 572 P.2d 214
Petitioner sought writ of prohibition to prevent district court from confirming
lease-purchase agreement of real property held in testamentary trust. The Supreme Court held
that petitioner was not entitled to writ of prohibition in right of availability of remedy of
appeal from district court order confirming lease-sale to third party subject to receipt of
additional bids and refusing to confirm lease-sale to petitioner and fact that petitioner's rights
in property would not be further prejudiced by court action which he sought to prevent.
Writ denied.
Swanson, Swanson & Capurro, Reno, for Petitioner.
Thornton, Stephens, Atkins & Kellison, Reno; and Sinai, Ohlson & Schroeder, Reno, for
Respondents.
1. Prohibition.
General rule is that if order or judgment is appealable, writ of prohibition will not lie to prevent its
enforcement. NRS 34.330.
2. Prohibition.
Petitioner was not entitled to extraordinary remedy of writ of prohibition in light of availability of remedy
of appeal from district court order confirming lease-sale of real property held in testamentary trust to third
party subject to receipt of additional bids and refusing to confirm lease-sale to petitioner and fact that
petitioner's rights in property would not be further prejudiced by court action which he sought to prevent.
NRS 34.330, 155.190, subds. 6, 13.
OPINION
Per Curiam:
Pietro Diotallevi seeks a writ of prohibition to prevent the district court from confirming a
lease-purchase agreement of real property held in a testamentary trust.
1. The First National Bank of Nevada (hereafter Bank) and Rae Zetoony Kahan, as
cotrustees of a testamentary trust established by the will of Abe Zetoony, petitioned the
district court for authority to sell or enter into a long-term lease for certain real property
known as the Zetoony Building, a major asset of the trust.
The court entered an order predicated on the petition, authorizing the trustees to
commence negotiation for the sale of the property, or its long-term lease, any sale or lease of
said property [to] be reported to the Court for approval and confirmation. The trustees
accordingly invited the public to submit sealed bids for the property.
When the sealed bids were opened, petitioner's high bid of $51,000 annual rental, with
provision for purchase of the property one year after termination of the trust, was accepted by
the trustees. A formal lease was drawn and signed by petitioner, and the cotrustees petitioned
the court for confirmation of the lease-purchase agreement. Sierra Development Company,
doing business as Club Cal Neva (hereafter Cal Neva) objected to confirmation of petitioner's
offer and submitted a bid of $72,000 annual rental with the same terms offered by petitioners.
1
At the hearing, the court ordered confirmation of the bid of Cal Neva, subject, however, to
the receipt of any higher bid made at a hearing for that purpose to be conducted on a fixed
date after appropriate public notice and announcement thereof.
____________________

1
Officers of Cal Neva represented that in a meeting with Bank officials they were led to believe that
additional bids would be considered at the confirmation hearings. The Bank officials denied making any such
statements.
on a fixed date after appropriate public notice and announcement thereof.
Petitioner then filed this petition for a writ of prohibition, contesting the jurisdiction of the
court to confirm Cal Neva's bid and seeking to prevent the hearing to receive a higher bid or
to conduct any further proceedings in the case.
[Headnote 1]
2. A writ of prohibition may be issued by this court only in cases where there is not a
plain, speedy and adequate remedy in the ordinary course of law. NRS 34.330. The general
rule is that if an order or judgment is appealable, a writ of prohibition will not lie to prevent
its enforcement. Heilig v. Christensen, 91 Nev. 120, 532 P.2d 267 (1975), cert. denied, 423
U.S. 1055 (1976). The order which petitioner contends the court below should be prevented
from carrying out is appealable by virtue of NRS 155.190, subsections 6 and 13.
2
Under
those provisions, petitioner could have appealed the confirmation of the lease-sale to Cal
Neva and the refusal of the court to confirm the lease-sale to him.
Petitioner contends that in this case an exception should be made to the general rule,
because appeal would not be a plain, speedy, and adequate remedy. However, the cases cited
by petitioner in support of his position are not analogous to this case.
Two of the cases cited by petitioner, Providence Baptist Church v. Superior Court, 251
P.2d 10 (Cal. 1952), and Oldroyd v. McCrea, 235 P. 580 (Utah 1925), dealt with orders
which were not appealable until final judgment. The courts held that petitioners were not
required to undergo protracted litigation before courts which were clearly without
jurisdiction, when petitioners had shown the strong likelihood of prejudice to their underlying
rights during the course of the trial. Similarly, the court in Berg v. Superior Court, 5 Cal.Rptr.
324 (Cal.App. 1960), issued a writ of prohibition to prevent hearings on a petition for a writ
of execution based upon a clearly invalid prior judgment, which had attempted to bind
parties not before the court.
____________________

2
NRS 155.190, subsections 6 and 13:
In addition to any order or decree from which an appeal is expressly permitted by this Title, an appeal may
be taken to the supreme court from an order or decree:
. . . .
6. Directing or authorizing the sale or conveyance or confirming the sale of property.
. . . .
13. Refusing to make any order heretofore mentioned in this section or any decision wherein the amount in
controversy equals or exceeds, exclusive of costs, $1,000.
prevent hearings on a petition for a writ of execution based upon a clearly invalid prior
judgment, which had attempted to bind parties not before the court. The court found that no
purpose would be served by obligating petitioner to incur the expense and delay of hearings
before a court which was without jurisdiction to issue a valid order against him.
[Headnote 2]
Unlike the petitioners in the cases cited above, petitioner here cannot claim that his rights
in the property would be further prejudiced by the action of the court, which he seeks to
prevent. The court has already confirmed the lease-sale of the property to Cal Neva, subject to
the receipt of additional bids. Whether petitioner or another were to outbid Cal Neva at the
hearing, petitioner's position would be no worse than it was at the point when the court below
refused to confirm the lease-sale to him.
A writ of prohibition is not a writ of right, but one of sound judicial discretion, to be
issued or refused according to the facts and circumstances of each particular case. Walcott v.
Wells, 21 Nev. 47, 51, 24 P. 367, 368 (1890). The circumstances of this case do not indicate
that petitioner is entitled to the extraordinary remedy of a writ of prohibition, in light of the
availability of the remedy of appeal from the order of the court.
The petition for the writ is denied.
3

____________________

3
The Governor designated Merlyn H. Hoyt, Judge of the Seventh Judicial District, to sit in place of Hon.
____________
93 Nev. 636, 636 (1977) Windish v. State
STEVE FRANK WINDISH, Appellant, v. THE
No. 9242
December 21, 1977 572 P.2d 210
Appeal from judgment, Eighth Judicial District Court, Clark County; Paul S. Goldman,
Judge.
Judicial review was sought of administrative determination that motorist had violated
implied consent law by refusing to submit to a chemical test to determine alcohol content of
his blood. The district court affirmed, and appeal was taken. The Supreme Court held that in
reviewing hearing officer's decision, both the district court and the Supreme Court were
limited to a review of the evidence presented at the hearing to determine if the decision
was supported by the evidence.
Supreme Court held that in reviewing hearing officer's decision, both the district court and the
Supreme Court were limited to a review of the evidence presented at the hearing to determine
if the decision was supported by the evidence.
Affirmed.
James L. Buchanan II, Las Vegas, for Appellant.
Robert List, Attorney General, and Cathy Valenta-Weise, Deputy Attorney General,
Automobiles.
In reviewing hearing officer's determination that motorist violated implied consent law by refusing to
submit to chemical test to determine alcohol content of his blood the Supreme Court was limited, as was
the district court, to a review of the evidence presented at the hearing to determine if the decision was
supported by the evidence. NRS 233B.140, 484.383.
OPINION
Per Curiam:
Appellant sought judicial review of the decision of the Nevada Department of Motor
Vehicles' hearing officer which concluded appellant had violated NRS 484.383 by refusing to
submit to a chemical test to determine the alcohol content of his blood.
1
Appellant
contended in the district court that the evidence adduced at the hearing was insufficient to
identify him as the person charged with the offense. The district court rejected appellant's
assignment of error and here appellant reasserts the same contention.
In reviewing the hearing officer's decision, this court is limited, as is the district court, to
a review of the evidence presented at the hearing to determine if the decision was
supported by the evidence.
____________________

1
1. Except as provided in subsections 4 and 5, any person who drives a vehicle upon a highway in this state
shall be deemed to have given his consent to a chemical test of his blood, urine, breath or other bodily substance
for the purpose of determining the alcoholic content of his blood or the presence of a controlled substance when
such test is administered at the direction of a police officer having reasonable grounds to believe that such
person was driving a vehicle while under the influence of intoxicating liquor or a controlled substance and after
such person was arrested for any offense allegedly committed while such person was driving a vehicle under the
influence of intoxicating liquor or a controlled substance.
2. Such person shall be informed that his failure to submit to such test will result in the suspension of his
privilege to drive a vehicle for a period of 6 months.
limited, as is the district court, to a review of the evidence presented at the hearing to
determine if the decision was supported by the evidence. See Miller v. West, 88 Nev. 105,
493 P.2d 1332 (1972); cf. Nevada Industrial Comm'n v. Williams, 91 Nev. 686, 541 P.2d 905
(1975). In our view, there is substantial evidence to support that decision. See NRS
233B.140; cf. People v. Tunstall, 161 N.E.2d 300 (Ill. 1959); State v. Johnson, 527 P.2d 1324
(Wash.App. 1974).
Affirmed.
____________
93 Nev. 638, 638 (1977) Lewis v. State
FRANK ERNEST LEWIS, Appellant, v.
No. 9420
December 21, 1977 572 P.2d 211
Howard W. Babcock, Judge.
Defendant was convicted in the district court of robbery, and received an enhanced
sentence for use of a deadly weapon in commission of that crime, and he appealed. The
Supreme Court held that where juror testified at inquiry outside presence of other jurors that
unknown telephone caller had said she had best make the right decision or she was in
trouble, but juror stated she could continue as a juror and render a fair and just decision,
defendant had burden of showing that he was prejudiced by the threatening telephone call,
and where he failed to do so, his motion for mistrial was properly denied.
Affirmed.
Morgan D. Harris, Public Defender, and John H. Howard, Deputy Public Defender, Clark
Leon Simon, Chief Appellate Deputy, Clark County, for Respondent.
1. Criminal Law.
Where juror testified at inquiry outside presence of other jurors that unknown telephone caller had said
she had best make the right decision or she was in trouble, but juror stated that she could continue as a
juror and render a fair and just decision, defendant had burden of showing that he was prejudiced by the
threatening telephone call, and where he failed to do so, his motion for mistrial was properly denied.
93 Nev. 638, 639 (1977) Lewis v. State
2. Criminal Law.
Contention with respect to alleged improper statements in prosecutor's closing argument could not be
considered on appeal where the statements were not included in the record.
OPINION
Per Curiam:
Appellant was convicted by jury of robbery, a violation of NRS 200.380, and, pursuant to
NRS 193.165, received an enhanced sentence for use of a deadly weapon in commission of
that crime.
1
See Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975). Appellant's
principal contentions are the district court erred in denying his motions for a mistrial, and for
a new trial. We disagree.
1. Appellant contends his motion for a mistrial should have been granted because an
unknown third party had attempted to influence the verdict of a juror.
[Headnote 1]
After both the prosecution and defense rested their cases, but before jury instructions or
closing arguments, a woman juror reported to the bailiff she had received a threatening
telephone call from a person unknown to her. At an inquiry held outside the presence of the
other jurors, the woman juror testified the caller had told her she had best make the right
decision or she was in trouble. Asked by the court if she could continue as a juror and render
a fair and just decision, she replied that she could.
____________________

1
1. Robbery is the unlawful taking of personal property from the person of another, or in his presence,
against his will, by means of force or violence or fear of injury, immediate or future, to his person or property, or
the person or property of a member of his family, or of anyone in his company at the time of the robbery. Such
force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to
the taking, in either of which cases the degree of force is immaterial. If used merely as a means of escape, it does
not constitute robbery. Such taking constitutes robbery whenever it appears that, although the taking was fully
completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of
force or fear.
by imprisonment in the state prison for a term equal to and in addition to the term of imprisonment prescribed by
statute for such crime. The sentence prescribed by this section shall run consecutively with the sentence
prescribed by statute for such crime.
93 Nev. 638, 640 (1977) Lewis v. State
she replied that she could. The court then stated its satisfaction that the incident would not
contaminate either the verdict or the jury deliberations.
Under these circumstances, appellant carries the burden of showing he has been prejudiced
by the threatening telephone call. State v. Jordan, 320 P.2d 446 (Ariz. 1958); cf. Parks v.
State, 457 P.2d 818 (Okla.Crim.App. 1969). This he has totally failed to do and, accordingly,
his motion for a mistrial was properly denied. See State v. Jordan, cited above.
[Headnote 2]
2. Appellant also contends his motion for a new trial should have been granted on the
grounds that improper and prejudicial statements made in the prosecutor's closing argument
deprived him of a fair trial. However, the purported improper statements are not included in
the record, and, thus, we are unable to consider and resolve his contention. See Johnstone v.
State, 93 Nev. 427, 566 P.2d 1130 (1977).
Other issues raised by appellant are without merit.
Affirmed.
____________
93 Nev. 640, 640 (1977) Fields v. Sheriff
FRANK BAILEY FIELDS, Appellant, v. SHERIFF,
No. 10319
December 21, 1977 572 P.2d 213
The Supreme Court held that: (1) definition of sexual penetration contained in sexual
assault statute clearly delineated proscribed course of conduct for which a perpetrator may be
punished, and was sufficiently definite to comport with due process requirements; (2) court
did not abuse its discretion in determining that a six-year-old victim was competent to testify.
Affirmed.
John P. Fadgen, Las Vegas, for Appellant.
1. Criminal Law.
Definition of sexual penetration contained in the sexual assault statute clearly delineates the proscribed
course of conduct for which a perpetrator may be punished and is sufficiently definite to comport with due
process. NRS 200.364, subd. 2.
2. Witnesses.
Court did not abuse its discretion in determining that six-year-old victim of alleged sexual assault was
competent to testify where the victim was examined by defense counsel, prosecuting attorney, and the
magistrate, and court determined that the victim possessed necessary qualifications to testify truthfully and
to relate his impressions of the events as they occurred.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Frank Bailey Fields was ordered to stand
trial for two counts of sexual assault, felonies under NRS 200.364 and NRS 200.366. A
pretrial petition for a writ of habeas corpus contended: (1) the sexual assault statute is
unconstitutional; and, (2) the six-year-old victim was incompetent to testify at the preliminary
examination. The district court denied habeas, and, in this appeal, Fields reasserts the same
contentions.
[Headnote 1]
1. In support of his first contention Fields claims that the definition of sexual
penetration contained in the sexual assault statute is unconstitutionally vague. We do not
agree. NRS 200.364(2) defines that term as cunnilingus, fellatio or any intrusion, however
slight, of any part of a person's body or any object manipulated or inserted by a person into
the genital or anal openings of the body of another, including sexual intercourse in its
ordinary meaning. This language clearly delineates the proscribed course of conduct for
which a perpetrator may be punished and, in our view, comports with due process
requirements. See Rose v. Locke, 423 U.S. 48 (1975); Woofter v. O'Donnell, 91 Nev. 756,
542 P.2d 1396 (1975).
[Headnote 2]
2. Fields' argument that the six-year-old victim was incompetent to testify is also without
merit. See Mirin v. State, 93 Nev. 57, 59, 560 P.2d 145 (1977), where we wrote: When the
competency of any witness has been questioned, it is within the discretion of the [magistrate]
to consider factors relative to qualification and to determine if such person is competent to
testify.'"
to qualification and to determine if such person is competent to testify.'
Here, we perceive no abuse of discretion because the six-year-old was examined by (1)
defense counsel; (2) the prosecuting attorney; and, (3) the magistrate. Thereafter, the
magistrate determined the young victim possessed the necessary qualifications to testify
truthfully and to relate [his] impressions of the events as they occurred. Shuff v. State, 86
Nev. 736, 738, 476 P.2d 22, 23-24 (1970). Accordingly, we affirm.
____________
93 Nev. 642, 642 (1977) Faber v. Sheriff
DARSON FABER, Appellant, v. SHERIFF, DOUGLAS
No. 10315
December 21, 1977 572 P.2d 524
District Court, Douglas County; Howard D. McKibben, Judge.
Accused charged with felonious possession of cocaine filed a pretrial petition for writ of
habeas corpus. The district court denied relief and accused appealed. The Supreme Court held
that where a chemist's report was admitted in evidence at the preliminary examination
indicating that the substance found in accused's possession was cocaine, it was not mandatory
for the actual contraband to be admitted as physical evidence at the preliminary examination.
Affirmed.
Horace R. Goff, State Public Defender, and John J. Kadlic, Jr., Deputy Public Defender,
Robert List, Attorney General, Carson City; Steven D. McMorris, District Attorney, and
William J. Crowell, Jr., Deputy District Attorney, Douglas County, for Respondent.
Criminal Law.
Where chemist's report was admitted in evidence at preliminary examination indicating that substance
seized from defendant was cocaine, for purpose of establishing probable cause it was not mandatory for
actual contraband to be admitted as physical evidence at preliminary examination.
93 Nev. 642, 643 (1977) Faber v. Sheriff
evidence at preliminary examination. NRS 50.315, 453.171, 453.336.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Darson Faber was ordered to stand trial
for the felonious possession of a controlled substance, cocaine. (NRS 453.336 and NRS
453.171). Faber then filed a pretrial petition for habeas corpus which was considered and
denied by the district court.
In this appeal the only issue which warrants discussion is that the charge must fail because
the prosecuting attorney neglected to have the contraband admitted as evidence at the
preliminary examination. The contention is without merit.
At the preliminary examination, a chemist's report was admitted in evidence pursuant to
NRS 50.315.
1
That report indicated the substance was cocaine. When such a report is in
evidence, we hold that, for the purpose of establishing probable cause, it is not mandatory for
the actual contraband to be admitted as physical evidence at the preliminary examination. See
Commonwealth v. Rick, 366 A.2d 302 (Pa. Super. 1976). Cf. Sheriff v. Byron, 93 Nev. 546,
571 P.2d 103 (1977).
Faber's other claim of error is rejected on the authority of Doyle v. State, 82 Nev. 242, 415
P.2d 323 (1966), and its progeny. Accordingly, we affirm.
____________________

1
Whenever any person has qualified . . . as an expert witness for the purpose of testifying regarding . . . a
controlled substance . . . the affidavit of such person is admissible in evidence in . . . a preliminary examination
. . . for the purpose of proving the . . . presence or absence of [a] controlled substance, . . .
____________
93 Nev. 643, 643 (1977) Plankinton v. District Court
WALTER R. PLANKINTON, Petitioner, v. THE FIFTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, IN AND FOR THE COUNTY OF NYE, Respondent.
No. 10260
December 21, 1977 572 P.2d 525
Original proceeding in mandamus was instituted to compel Fifth Judicial District Court to
vacate order dismissing appeal from misdemeanor conviction in justice court. The Supreme
Court held that word "shall" as used in statute providing that appeal from justice court
shall be dismissed by the district court unless perfected within 60 days after appeal is
filed is mandatory.
Court held that word shall as used in statute providing that appeal from justice court shall
be dismissed by the district court unless perfected within 60 days after appeal is filed is
mandatory.
Writ denied.
Smith & Maurer, Las Vegas, for Petitioner.
Robert List, Attorney General, Carson City; and Peter L. Knight, District Attorney, Nye
Criminal Law.
Word shall as used in statute providing that appeal from justice's court to the district court shall be
dismissed unless perfected within 60 days after the appeal is filed is mandatory; hence, dismissal of appeal
to district court from misdemeanor conviction before justice's court was required where defendant failed to
have the matter set in the district court within 60 days after filing appeal. NRS 189.065; Const. art. 6,
8.
OPINION
Per Curiam:
After being convicted of a misdemeanor in justice's court, Walter R. Plankinton filed a
notice of appeal, but failed to have the matter set in the district court within 60 days. The
district court dismissed the appeal on the authority of NRS 189.065, which provides: An
appeal shall be dismissed by the district court unless perfected by application of the
defendant, within 60 days after the appeal is filed in the justice's court, by having it set for
trial. (Emphasis added.)
Here, Plankinton seeks the extraordinary writ of mandamus to compel respondent to
vacate its order of dismissal because, he argues, the provisions of NRS 189.065 are not
mandatory. We disagree.
Article 6, section 8 of the Nevada Constitution confers upon the legislature the power to
prescribe by law the manner, . . . in which appeals may be taken from Justices and other
courts. See also Cavanaugh v. Wright, 2 Nev. 166 (1866). By enacting NRS 189.065, the
legislature saw fit to prescribe that a defendant must perfect his appeal from Justice's court by
having it set for trial within 60 days or suffer dismissal. See Woofter v. O'Donnell, 91 Nev.
756, 762, 542 P.2d 1396, 1400 (1975), where we said: [T]he word shall' embodied within
[a statute] operates to make its use mandatory. Cf.
Thran v. District Court, 79 Nev. 176, 380 P.2d 297 (1963); Ex Rel. Williams v. District
Court, 48 Nev. 459, 233 P. 843 (1925). The provisions of NRS 189.065 are mandatory.
Therefore, the district court did not err in dismissing Plankinton's appeal.
Writ denied.
____________
93 Nev. 645, 645 (1977) Moore v. State
RUEBEN MARK MOORE and MICHAEL EUGENE PAPPAS, Appellants,
v. THE STATE OF NEVADA, Respondent.
No. 9561
December 22, 1977 572 P.2d 216
Appeal from judgment of conviction, Fourth Judicial District Court, Elko County; Joseph
O. McDaniel, Judge.
The district court convicted defendants of selling a controlled substance, and defendants
appealed. The Supreme Court held that where trial court correctly instructed jury on
procuring agent defense but refused to instruct on law of entrapment as set forth in Supreme
Court decision but gave entrapment instruction of unidentified origin as requested by
prosecutor, where prosecutor, on appeal, offered no argument, legal or logical, to support
position that giving of requested instruction was not error, and where no authority was cited
to justify refusal to instruct according to Supreme Court decision, Supreme Court would treat
prosecutor's failure to brief issue of entrapment as a confession of error.
Horace R. Goff, Public Defender, and J. Thomas Susich, Chief Deputy, Carson City, for
Appellants.
Robert List, Attorney General, Carson City, and Robert C. Manley, District Attorney,
Elko, for Respondent.
Criminal Law.
Where it was arguable from evidence that defendants were unlawfully entrapped, where trial court
correctly instructed jury on procuring agent defense but refused to instruct on law of entrapment as set forth
in Supreme Court decision and instead gave entrapment instruction of unidentified origin as requested by
prosecutor, where prosecutor, on appeal of convictions, offered no argument, legal or logical, to support
position that giving of requested instruction was not error, and where prosecutor failed to
cite any authority to justify trial court's refusal to instruct according to Supreme
Court decision, Supreme Court would treat prosecutor's failure to brief issue of
entrapment as a confession of error.
93 Nev. 645, 646 (1977) Moore v. State
requested instruction was not error, and where prosecutor failed to cite any authority to justify trial court's
refusal to instruct according to Supreme Court decision, Supreme Court would treat prosecutor's failure to
brief issue of entrapment as a confession of error. NRAP 31(c).
OPINION
Per Curiam:
Convicted of selling a controlled substance, appellants contend the trial court erroneously
instructed the jury concerning their defense of entrapment.
Although the evidence indicates appellants procured a small quantity of marijuana, and
delivered it to a narcotics officer in exchange for $205, on the facts it is arguable that they did
so as the officer's agent. See Roy v. State, 87 Nev. 517, 489 P.2d 1158 (1971). It also is
arguable that appellants were unlawfully entrapped. See In re Wright, 68 Nev. 324, 232 P.2d
398 (1951). The trial court correctly instructed the jury on the procuring agent defense
recognized by our Roy opinion and numerous federal decisions cited therein. However, the
court refused to instruct on the law of entrapment, as set forth in our Wright decision. Instead,
the court gave an entrapment instruction of unidentified origin, requested by the prosecutor.
Appellants' proposed instruction, offered in accord with Wright, would have advised the jury:
Entrapment is the seduction or improper inducement to commit a crime for the
purpose of instituting a criminal prosecution, but if a person in good faith and for the
purpose of detecting or discovering a crime or offense, furnishes the opportunity for the
commission thereof by one who has the requisite criminal intent, it is not entrapment.
See In re Wright, 68 Nev. at 329, 232 P.2d at 400.
As appellants' counsel notes, in State v. Busscher, 81 Nev. 587, 407 P.2d 715 (1965), this
court approved the Wright definition and went on to say: . . . if the criminal intent originates
in the mind of the defendant, without urging or persuasion by the decoy, entrapment does not
exist. (Citations omitted). 81 Nev. at 590, 407 P.2d at 716; emphasis supplied.
Notwithstanding this, however, the prosecutor induced the trial judge to give an instruction
containing language emphasizing that an officer may encourage the commission of crime
to detect or discover it.1
93 Nev. 645, 647 (1977) Moore v. State
emphasizing that an officer may encourage the commission of crime to detect or discover it.
1

In his answering brief, the prosecutor acknowledges that the entrapment instruction
proffered by appellant comported with this court's prior decisions. The prosecutor also seems
to acknowledge that the instruction he induced the trial court to give did not comport with
those decisions, but was somewhat longer and more detailed.
Although the prosecutor urges that giving the longer and more detailed instruction was
not error, he offers absolutely no argument, legal or logical, to support this position. No
authority whatever has been cited to justify refusal to instruct according to the declared law of
this state, and the giving of a different instruction. On this critical point, the prosecutor in
effect filed no brief at all. Thus, in these circumstances, we treat the prosecutor's failure to
brief the issue of entrapment as a confession of error. See NRAP 31(c); Holland Livestock v.
B & C Enterprises, 92 Nev. 473, 553 P.2d 950 (1976); Fitzpatrick v. Floriano, 92 Nev. 18,
544 P.2d 895 (1976).
We therefore reverse and remand for a new trial, at which the entrapment issues shall be
decided on instructions consistent with this court's prior decisions, heretofore mentioned.
Inasmuch as other claimed errors will not necessarily recur, we do not reach those issues.
____________________

1
The given instruction number 13 reads as follows:
Entrapment is seduction or improper inducement to commit a crime for purpose of instituting criminal
prosecution. If from the evidence you believe that the criminal design originated with the officers or their agent,
and by enticement either Defendant or both Defendants were persuaded to commit a crime or crimes of this
nature which otherwise he or they would not have done, then either Defendant or both Defendants are entitled to
a verdict of not guilty, even though you should believe that either Defendant or both Defendants did in fact
commit the acts as alleged by the State. However, if you believe that the officers and their agent, in good faith
and solely for the purpose of detecting or discovering crime or offenses, furnished an opportunity (or aided or
encouraged its commission by either Defendant or both Defendants,) and that either Defendant or both
Defendants had the requisite criminal intent to commit the crime, then there is no entrapment. Emphasis added.
From our independent research, we note similar language appears, but in a different context, in a recognized
California Jury Instruction. See CALJIC 4.61 (1974 Edition).
____________
93 Nev. 648, 648 (1977) Palmer v. Sheriff
FRANCIS CLAYTON PALMER, Appellant, v. SHERIFF,
WHITE PINE COUNTY, NEVADA, Respondent.
No. 10309
December 22, 1977 572 P.2d 218
Appeal from order denying pretrial petition for a writ of habeas corpus, Seventh Judicial
District Court, White Pine County; Merlyn H. Hoyt, Judge.
Proceeding on a pretrial petition for habeas corpus challenging validity of an information.
The district court entered an order denying the petition and an appeal was taken. The
Supreme Court held that the petition for habeas corpus was not subject to dismissal as
untimely under statute requiring that a writ of habeas corpus be filed within 21 days after first
appearance of accused in the district court, although petition was not filed until more than 21
days after information had been filed, in view of fact that phrase first appearance of the
accused in the district court as used in such statute had to be interpreted as appearance of
accused for arraignment.
E. R. Miller, Jr., Ely, for Appellant.
Robert List, Attorney General, Carson City; Rupert C. Schneider, District Attorney, White
Pine County, for Respondent.
Habeas Corpus.
A pretrial petition for habeas corpus challenging validity of an information was not subject to dismissal as
untimely under statute requiring that a writ of habeas corpus be filed within 21 days after first appearance
of accused in the district court, although petition was not filed until more than 21 days after information
had been filed, in view of fact that phrase first appearance of the accused in the district court as used in
such statute had to be interpreted as appearance of accused for arraignment. NRS 34.375, subd. 1(a).
OPINION
Per Curiam:
An information, filed in the district court on September 9, 1977, charged Francis Clayton
Palmer, and others, with aiding and abetting in a burglary. The court minutes reflect that on
that date the district judge scheduled Palmer's arraignment for Tuesday, October 4, 1977, at
the hour of 2:30 p.m.
93 Nev. 648, 649 (1977) Palmer v. Sheriff
On October 3, 1977, the day prior to the scheduled arraignment, counsel for Palmer filed a
pretrial petition for habeas corpus which challenged the validity of the information. At the
hearing on the habeas petition the district judge did not resolve the habeas challenge to the
information; instead, he denied the requested relief because the petition had not been filed
within the 21 days required under the Nevada statutes. In this appeal Palmer contends the
district judge committed reversible error. We agree.
NRS 34.375(1)(a) requires that a pretrial petition for a writ of habeas corpus be filed
within 21 days after the first appearance of the accused in the district court; . . . [Emphasis
added.]
We have previously held that an arraignment refers to the initial appearance of a
defendant in the district court after an . . . information has been filed. Pinana v. State, 76
Nev. 274, 286, 352 P.2d 824, 831 (1960). [Emphasis added.] Thus, the phrase first
appearance of the accused in the district court as used in NRS 34.375(1)(a), must be
interpreted to be the appearance of the accused for arraignment.
Accordingly, we reverse the district court's order and instruct that court to consider and
resolve the merit of Palmer's habeas petition.
____________
93 Nev. 649, 649 (1977) Redeford v. State
EARL LENON REDEFORD, Appellant, v. THE
No. 9478
December 22, 1977 572 P.2d 219
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; James
A. Brennan, Judge.
Defendant was convicted in the district court of attempted burglary, and he appealed. The
Supreme Court, Gunderson, J., held that: (1) the district court erred in giving a coercive jury
instruction; (2) giving of such instruction was prejudicial error; (3) statutory presumption of
criminal intent applicable in regard to unlawful breaking or entering is not violative of due
process or the right against self-incrimination, and (4) admission of evidence of a prior felony
conviction was discretionary.
Reversed.
Morgan Harris, Public Defender, and Terrence M. Jackson, Deputy Public Defender,
Robert List, Attorney General, Carson City; George Holt, District Attorney, and H. Leon
Simon, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
A trial judge may not coerce a jury to the extent of demanding that they return a verdict.
2. Criminal Law.
A defendant on trial for a criminal offense has a guaranteed right to have the judgment of a jury
uninfluenced by matters foreign to the evidence admitted at the trial.
3. Criminal Law.
Instruction given a jury which had become deadlocked that jury should continue its deliberations, put its
collective minds together, and reach a verdict in this case, was an erroneous instruction which could not
be regarded as harmless error in view of fact that a short time after such coercive instruction was given jury
unanimously returned what might well have been a compromise verdict.
4. Burglary; Constitutional Law.
Statute providing that a person who shall unlawfully break or enter shall be deemed to have broken and
entered with intent to commit grand or petit larceny or a felony unless such breaking and entering shall be
explained does not create a presumption violative of due process or the right against self-discrimination,
such statute requiring only that defendant produce some evidence to dispute presumed fact of criminal
intent with ultimate burden of persuasion remaining with the prosecution.
5. Criminal Law.
Determination of whether to admit or exclude a prior conviction rests in sound discretion of the trial court
and will not be disturbed unless manifestly wrong.
OPINION
Earl Lenon Redeford appeals from a conviction by jury for attempted burglary contending:
(1) the district court erred in giving a coercive jury instruction; (2) a statutory presumption
created by the legislature for burglary prosecutions is unconstitutional; and (3) the district
court erred by admitting evidence of a prior felony conviction. Appellant's initial contention
has merit, and we must reverse.
1. At the close of evidence the trial court read a standard jury instruction which discussed
the deliberation process.1 The jury then retired, deliberated during the evening, but
became deadlocked.
jury instruction which discussed the deliberation process.
1
The jury then retired, deliberated
during the evening, but became deadlocked. The following morning, the court, without
request of either party, orally instructed the jury as follows:
Ladies and gentlemen of the jury, you are now into your second day of deliberation. I
don't have to tell you that, you're well aware of it. You've heard all the evidence in this
case for approximately two and half (sic) to three days. Really, there is nothing decided
unless the jury comes in with a verdict. You're an intelligent jury, and if this case had to
be tried over because of your failure to reach a verdict, another jury of twelve people
no more intelligent would hear the same evidence and attempt to reach a verdict. So you
don't accomplish anything by not reaching a verdict in this case. So would you
continue your deliberations, please, and put your collective minds together, and reach a
verdict in this case. (Emphasis added.)
2

Less than two hours later, the jury returned with a verdict
____________________

1
The Court instructs the Jury that although the verdict to which each Juror agrees must, of course, be his
own conclusion, and not a mere acquiescence in the conclusion of his fellows, yet, in order to bring twelve
minds to a unanimous result the Jurors should examine with candor the questions submitted to them, with due
regard and deference to the opinions of each other. A dissenting Juror should consider whether the doubt in his
mind is a reasonable one, when it makes no impression on the minds of so many Jurors equally honest, equally
intelligent with him, who have heard the same evidence, with an equal desire to arrive at the truth, under the
sanction of the same oath. You are not to give up a conscientious conclusion after you have reached such a
conclusion finally, but it is your duty to confer with your fellow Jurors carefully and earnestly, and with a desire
to do absolute justice both to the State and to the Defendant.''
This form of instruction, often called a dynamite charge, has been reluctantly approved by this court, either
as an initial instruction or in supplement. See Hudson v. State, 92 Nev. 84, 545 P.2d 1163 (1976); Azbill v.
State, 88 Nev. 240, 495 P.2d 1064 (1972); Basurto v. State, 86 Nev. 567, 472 P.2d 339 (1970).

2
NRS 175.161(1) provides in relevant part:
. . . in no case shall any charge or instructions be given to the jury otherwise than in writing, unless by
mutual consent of the parties.
We need not decide whether the trial court's actions violated this rule, since we conclude the form of the
instruction itself was erroneous.
Furthermore, it was not necessary for the defendant to object to the jury charge, because the record does not
affirmatively show consent by the parties to the giving of any oral instruction. Harvey v. State, 78 Nev. 417, 375
P.2d 225 (1962).
convicting appellant of attempted burglary, but acquitting on a separate burglary count.
[Headnotes 1, 2]
Appellant challenges the italicized portions of the above charge as denying him an
opportunity to have a fair trial by coercing the jury's verdict. Viewing the instruction in light
of all the surrounding circumstances of this case, we are compelled to agree.
[I]t is a cardinal principle of the law that a trial judge may not coerce a jury to the extent
of demanding that they return a verdict. United States v. Fioravanti, 412 F.2d 407, 416 (3rd
Cir. 1969). Furthermore, [i]t is a right guaranteed to a defendant on trial for a criminal
offense that he shall have the judgment of twelve men uninfluenced by matters foreign to the
evidence admitted at the trial. State v. Clark, 38 Nev. 304, 310, 149 Pac. 185, 187 (1915). In
Jenkins v. United States, 380 U.S. 445 (1965), the Supreme Court held it prejudicial error
under the circumstances of that trial to demand of the jury: You have got to reach a decision
in this case. Ibid. at 446.
The instruction used in the case at bar is tantamount to the demand made in Jenkins. It
lacks the qualifying language which we have found so vital in the past. In every instance
where we approved dynamite or Allen charges,
3
we noted that the instruction given
reminded the individual jurors not to surrender conscientiously held opinions for the sake of
judicial economy. See Hudson v. State, 92 Nev. 84, 545 P.2d 1163 (1976); Azbill v. State, 88
Nev. 240, 495 P.2d 1064 (1972); Basurto v. State, 86 Nev. 567, 472 P.2d 339 (1970); State v.
Hall, 54 Nev. 213, 13 P.2d 624 (1932); cf. Hoskins v. State, 552 P.2d 342 (Wyo. 1976). A
trial judge must never for a moment let them forget that [a] verdict must reflect the views of
all,' Ibid. at 348, and that each member has a duty to . . . adhere to his own honest opinion.
Azbill v. State, 88 Nev. at 248, 495 P.2d at 1069; see also A.B.A. Suggested Jury Instructions
Standards, 5.4 Length of Deliberations, Deadlocked Jury, cited fn. 2, Basurto v. State, 86
Nev. at 571, 472 P.2d at 341.
[Headnote 3]
We must therefore conclude that it was error to give the instruction in the form used.
____________________

3
The term Allen charge is derived from Allen v. United States, 164 U.S. 492 (1896), wherein the Supreme
Court approved a jury charge which informed minority jurors to carefully consider their convictions when
compared to the opinions of the majority.
instruction in the form used. We are also constrained to find the error prejudicial, and not
merely harmless, when viewed in the context of all the facts and circumstances surrounding
the case.
Appellant stood trial for attempted burglary, and burglary, allegedly occurring at the
Flowers Motel in Las Vegas. Testimony reveals that the motel manager saw appellant coming
out of an unoccupied room, from which all furniture previously had been stolen by another.
After calling the police, the manager continued to observe appellant, who went to an
adjoining room and tapped on its window with a screwdriver. Responding to the manager's
call, police arrested appellant in the street as he walked from the motel. Following his arrest
for burglary, appellant later voluntarily stated: Why didn't you arrest me for what I did? The
screwdriver won't work and the door knob (sic), and I was getting ready to break the glass.''
The jury, after hearing this evidence and deliberating for some time, apparently could not
conclude that appellant had committed any of the crimes charged. Inferably, at least some of
the jurors may not have been convinced that appellant's conduct went beyond simple
prowling, malicious mischief, or trespass.
A short time after the coercive instruction was given, however, the jury unanimously
returned what may well have been a compromise verdict convicting on the attempted burglary
count. Thus, in these circumstances, it appears the erroneous instruction may not be regarded
as harmless error. Cf. Driscoll v. Erreguible, 87 Nev. 97, 482 P.2d 291 (1971).
[Headnote 4]
2. Appellant urges that the statutory presumption of intent as set forth in NRS 205.065
4
is violative of due process and the right against self-incrimination. We have previously
considered such contentions and have rejected them. See Tucker v. State, 92 Nev. 486, 553
P.2d 951 (1976) and the numerous cases cited therein. Nevertheless, appellant insists we must
declare the presumption unconstitutional in light of the Supreme Court's decision in
Mullaney v. Wilbur, 421 U.S. 6S4 {1975).
____________________

4
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.
declare the presumption unconstitutional in light of the Supreme Court's decision in Mullaney
v. Wilbur, 421 U.S. 684 (1975).
In Mullaney, the Court has held it to be constitutionally impermissible to place on a
defendant a burden heavier than that of raising reasonable doubt (as to circumstances of
mitigation in a homicide prosecution). See People v. Tewksbury, 544 P.2d 1335, 1343 (Cal.
1976). However, we are indisposed to extend Mullaney to logical presumptions of fact which
may be legitimately established by the legislature. See St. Pierre v. State, 92 Nev. 546, 554
P.2d 1126 (1976); White v. State, 83 Nev. 292, 429 P.2d 55 (1967); cf. Evans v. State, 349
A.2d 300, 338-39 (Md.Ct.Spec.App. 1975).
We believe an inference of criminal intent logically flows from the fact of showing
unlawful entry, White v. State, 83 Nev. at 296, 429 P.2d at 57; cf. People v. Tewksbury, 544
P.2d at 1343; and neither the Due Process Clause nor Mullaney prohibits the use of
presumptions or inferences as procedural devices to shift to the accused the burden of
producing some evidence contesting an otherwise presumed or inferred fact. Hodge v.
Commonwealth, 228 S.E.2d 692, 695 (Va. 1976). NRS 205.065 requires only that the
defendant produce some evidence to dispute the presumed fact of criminal intent. The
ultimate burden of persuasion remains with the prosecution and due process is not offended.
[Headnote 5]
3. Appellant also contends the district court erred by denying his motion in limine to
exclude a prior robbery conviction. The determination of whether to admit or exclude such
evidence rests in the sound discretion of the trial court and will not be disturbed unless
manifestly wrong. Anderson v. State, 92 Nev. 21, 23, 544 P.2d 1200, 1201 (1976). Here, we
decline to review the district court's exercise of discretion, so that the district court on retrial
may consider the issue in the light of facts then made to appear. See NRS 50.095.
Reversed and remanded for new trial.
Batjer, C. J., and Mowbray, Thompson, and Manoukian, JJ., concur.
____________
93 Nev. 655, 655 (1977) Johnson v. Johnson
ROBERT G. JOHNSON, Appellant, v. PATRICIA
JANE JOHNSON, Respondent.
No. 8934
December 22, 1977 572 P.2d 925
Appeal from order declaring null and void a conveyance of real estate, Eighth Judicial
District Court, Clark County; Keith C. Hayes, Judge.
Action was brought concerning arrearages in former husband's alimony and child support
obligations. The district court entered order setting aside conveyance by former husband of
his residence to his present wife, and husband appealed. The Supreme Court, Zenoff, C. J.
(Retired), held that current wife of husband was indispensable party to action between
husband and former wife resulting in order setting aside conveyance of husband's residence to
current wife, and in absence of husband's current wife as party to action, order of
reconveyance of residence would be vacated.
Neil J. Beller, Las Vegas, for Appellant.
Rose, Edwards & Hunt, and Niels L. Pearson, Las Vegas, for Respondent.
Failure to join an indispensable party may be raised by appellate court sua sponte, as well as by party
who, by reason of non-joinder, may be subjected to inconsistent or double liability.
Objection that indispensable party was not joined is not waived by its nonassertion at trial level.
Rule that in absence of transcript or agreed statement of proceedings below, it is assumed that record
supports lower court's findings, was not designed to operate in automatic fashion, mandating per se the
affirmance of district court decision whenever transcript is not provided for appellate review. NRAP
10(c).
4. Parties.
To enter order of reconveyance setting aside conveyance by party without joining transferee would
constitute taking of property from one person and giving it to another without a hearing; non-joined
transferee of property which has been ordered reconveyed could validly force relitigation of issue of
propriety of conveyance before coming under any legal duty to reconvey property. NRCP 19(a), 70;
FRCP 19(a), 28 U.S.C.A.
5. Divorce.
Current wife of husband was indispensable party to action between husband and former wife
resulting in order setting aside conveyance of husband's residence to current wife,
and in absence of husband's current wife as party to action, order of reconveyance of
residence would be vacated.
between husband and former wife resulting in order setting aside conveyance of husband's residence to
current wife, and in absence of husband's current wife as party to action, order of reconveyance of
residence would be vacated. FRCP 19(a), 28 U.S.C.A.; NRCP 19(a), 70.
OPINION
By the Court, Zenoff, C. J. (Retired):
1

This appeal marks the second time that these formerly married parties have brought their
post-marital strife before the Nevada Supreme Court. See Johnson v. Johnson, 90 Nev. 270,
524 P.2d 544 (1974). This time, Robert Johnson appeals from that part of the district court's
May 6, 1976, order, primarily addressed to the payment of substantial arrearages in his
alimony and child-support obligations, which sets aside the conveyance of his Las Vegas
residence to his present wife Renee. Robert asserts that the order cannot stand for the reason
that Renee is the transferee and therefore an indispensable party who should have been joined
in the action. We agree.
To counter Robert's appellate contention, Patricia argues that Robert is without standing to
raise the issue of Renee's non-joinder, and that even if he has standing, the objection of
non-joinder was waived by its non-assertion at the trial level. She argues further that the
absence from the record on appeal of the transcript of the third and final day of the hearing
below compels us to presume that the trial court acted properly, either by finding Renee not to
be an indispensable party or by, in fact, joining her.
[Headnotes 1, 2]
None of her assertions have merit. The failure to join an indispensable party may be raised
by the appellate court sua sponte, Kimball v. Florida Bar, 537 F.2d 1305 (5th Cir. 1976);
State Farm Mut. Auto Ins. Co. v. Mid-Continent Cas. Co., 518 F.2d 292 (10th Cir. 1975);
Boles v. Greeneville Housing Authority, 468 F.2d 476 (6th Cir. 1972), as well as by a party
who, by reason of the non-joinder, may be subjected to inconsistent or double liability. Cf.
Dredge Corp. v. Penny, 338 F.2d 456 (9th Cir. 1964). Similarly, the objection that an
indispensable party was not joined is not waived by its non-assertion at the trial level.
Provident Bank v. Patterson, 390 U.S. 102 {196S); Riley v. County of Cochise, 455 P.2d
1005 {Ariz.App.
____________________

1
The Chief Justice designated Hon. David Zenoff, Chief Justice (Retired), to sit in this case. Nev. Const. art.
6, 19; SCR 244.
390 U.S. 102 (1968); Riley v. County of Cochise, 455 P.2d 1005 (Ariz.App. 1969).
In support of her final argument, Patricia relies on the line of cases decided following the
adoption of NRAP 10(c) in which we held that in the absence of a transcript or agreed
statement of the proceedings below it is assumed that the record supports the lower court's
findings. Kockos v. Bank of Nevada, 90 Nev. 140, 143, 520 P.2d 1359, 1361 (1974),
quoting the decision in City of Las Vegas v. Bolden, 89 Nev. 526, 516 P.2d 110 (1973). See
also, F.P.D., Inc. v. Long, 90 Nev. 27, 518 P.2d 155 (1974); Ute, Inc. v. Apfel, 90 Nev. 25,
518 P.2d 156 (1974); Alexander v. Simmons, 90 Nev. 23, 518 P.2d 160 (1974); Turner v.
Staggs, 89 Nev. 230, 510 P.2d 879 (1973).
[Headnote 3]
However, the rule enunciated in Turner v. Staggs, supra, was not designed to operate in an
automatic fashion, mandating per se the affirmance of a district court decision whenever a
transcript is not provided for appellate review. In contrast with the cases cited above, the
record before us in this case contains the information necessary to assess Robert's appellate
contention. Driscoll v. Erreguible, 87 Nev. 97, 482 P.2d 291 (1971). From the record before
us we can determine Renee's relationship to the residence and whether she was joined in the
action below.
The record on appeal consists of every pleading filed in the long history of this case since
the initiation of the divorce action in 1970, as well as the transcript of two of the three days of
hearing devoted to the trial of the matter presently on appeal. Sufficient evidence appears to
establish that Renee is the transferee of the residence, which transfer was declared null and
void by the trial court. In the record is a motion to set aside the conveyance filed by Patricia.
The accompanying memorandum of points and authorities admits that Renee is the transferee.
Testimony of the first two days of trial establishes that Renee was the transferee of property.
Finally, the trial court's dispositional order of May 6, 1976, includes as a finding of fact and
law Renee's status as the transferee. Thus, contrary to Patricia's contention, the transcript of
the final day of trial is in no way essential to the determination of Renee's status.
[Headnotes 4, 5]
Cases decided prior to the adoption of FRCP 19(a) hold that a transferee is an
indispensable party in an action to set aside the conveyance of the transferred property.
that a transferee is an indispensable party in an action to set aside the conveyance of the
transferred property. See TWM Homes, Inc. v. Atherwood Realty and Investment Co., 29
Cal.Rptr. 887 (Cal. App. 1963); Heffernan v. Bennett & Armour, 243 P.2d 846 (Cal.App.
1952); Liuzza v. Bell, 104 P.2d 1095 (Cal.App. 1940). To enter an order of reconveyance
without joining the transferee would constitute the taking of property from one person and
giving it to another without a hearing. Liuzza v. Bell, supra, at 1101.
NRCP 19(a) mandates a like conclusion.
2
A non-joined transferee of property which has
been ordered reconveyed could validly force relitigation of the issue of the propriety of the
conveyance before coming under any legal duty to reconvey the property. Ranger Ins. Co. v.
United Housing of New Mexico, Inc., 488 F.2d 682 (5th Cir. 1974); Tankersley v. Albright,
514 F.2d 956 (7th Cir. 1975); Kamhi v. Cohen, 512 F.2d 1051 (2nd Cir. 1975). Additionally,
NRCP 70 also contemplates that the person from whom title is divested be a party to the
proceeding.
3

In a case involving a similar issue, this court said: that whether or not the second spouse
of one of the divorced parties is a necessary party to a proceeding to vacate the decree, he is
entitled to notice and without such notice an order vacating the decree will be set aside.
Moore v. Moore, 75 Nev. 189, 194, 336 P.2d 1073, 1074-5 (1959).
Finally, the record does not affirmatively show that Renee was ever joined in this action.
In fact, the record contains substantial evidence that she was not joined. Neither the motion to
set aside the conveyance, the trial court's preliminary order, the trial court's recitation of
parties on the first two days of trial nor the trial court's final order list Renee as a party.
____________________

2
NRCP 19(a) provides:
A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction
over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief
cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action
and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede
his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not
been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so,
he may be made a defendant, or, in a proper case, an involuntary plaintiff.

3
NRCP 70 provides, in pertinent part:
If real or personal property is within the State, the court in lieu of directing a conveyance thereof may enter
a judgment divesting the title of any party and vesting it in others. . . . (Emphasis supplied.) Cf. Paradise Palms
v. Paradise Homes, 89 Nev. 27, 505 P.2d 596 (1973).
to set aside the conveyance, the trial court's preliminary order, the trial court's recitation of
parties on the first two days of trial nor the trial court's final order list Renee as a party. Since
Renee was unquestionably an indispensable party, and since the relief granted in her absence
is essentially nugatory, the order of reconveyance must be and hereby is vacated. Moore,
supra; Boles, supra. The matter is remanded to the trial court for further proceedings
consistent with this opinion.
____________
93 Nev. 659, 659 (1977) Frank v. Frank
ADOLPH FRANK, Appellant, v. IRENE
FRANK, Respondent.
No. 8975
December 22, 1977 572 P.2d 530
Appeal from judgment of the Eighth Judicial District Court, Clark County; Michael J.
Wendell, Judge.
Brother-in-law sued his sister-in-law to recover one half of proceeds remaining in bank
account in name of plaintiff, defendant and plaintiff's deceased brother. The district court
rendered judgment for defendant, and plaintiff appealed. The Supreme Court, Zenoff, C. J.
(Retired), sitting by designation, held that conclusive presumption that in making a deposit in
joint tenancy the intent is that the deposit pass to the survivor or survivors applies in an action
between two surviving non-contributing codepositors and, hence, where decedent was the
sole contributing depositor, the funds passed to plaintiff and defendant on his death,
notwithstanding defendant's contention that her husband's intent was that funds go to the
brother only if the spouses died simultaneously.
Reversed.
Wiener, Goldwater & Waldman and Gerald M. Gordon, of Las Vegas, for Appellant.
John Peter Lee, of Las Vegas, for Respondent.
Joint Tenancy.
Conclusive presumption that intent in making a bank deposit in joint tenancy form is to vest the
deposit in the survivor or survivors applies in an action between two surviving
noncontributing codepositors; hence, on death of tenant who made the sole deposit
into the joint account it was conclusively presumed that the two surviving
nondepositors possessed a one half interest in the proceeds; one of the survivors,
who was wife of deceased depositor, could not overcome presumption by testimony
that it was husband's intention that funds go to the other survivor only in event the
spouses died simultaneously.
93 Nev. 659, 660 (1977) Frank v. Frank
in joint tenancy form is to vest the deposit in the survivor or survivors applies in an action between two
surviving noncontributing codepositors; hence, on death of tenant who made the sole deposit into the joint
account it was conclusively presumed that the two surviving nondepositors possessed a one half interest in
the proceeds; one of the survivors, who was wife of deceased depositor, could not overcome presumption
by testimony that it was husband's intention that funds go to the other survivor only in event the spouses
died simultaneously. NRS 663.015, Stats. Nev. 1971, p. 991.
OPINION
By the Court, Zenoff, C. J. (Retired):
1

Adolph Frank has appealed from a judgment in favor of Irene Frank, his sister-in-law, in
an action initiated by Adolph to recover one half of the proceeds remaining in a bank account
in the name of Irene, Adolph and Joseph Frank, Irene's deceased husband.
In 1971 the decedent Joseph Frank opened an account with Valley Bank of Nevada in Las
Vegas with funds transferred from an account in Los Angeles in the names of Joseph and his
brother, Adolph. The source of the funds for the original Los Angeles account was the
proceeds from the sale of an apartment complex in Las Vegas. This complex had been the
sole property of Joseph.
Sometime after the opening of the Las Vegas account Adolph was added as a codepositor.
At a later date, subsequent to his marriage, Joseph added Irene as a third codepositor.
On March 1, 1974, Joseph died, leaving Adolph and Irene as the sole surviving depositors
on the account. Neither had ever contributed any money. Also, on March 1, 1974, Irene
withdrew all of the money in the account, claiming that it had been Joseph's intent that it
should go to her at his death. Adolph then filed the instant action seeking one half of the
funds in the account at the time of Joseph's death. His contention is that under NRS 663.015
2
an irrebuttable presumption arose upon Joseph's death that a joint tenancy in the account had
been created and, that he therefore possessed a one-half interest in the proceeds.
____________________

1
The Chief Justice designated Hon. David Zenoff, Chief Justice (Retired), to sit in this case. Nev. Const. art.
6, 19; SCR 244.

2
NRS 663.015 provided:
1. When a deposit has been made . . . by any person, in any bank or other depository transacting business in
this state, in the name of such depositor and one, two or more persons, and in form to be
93 Nev. 659, 661 (1977) Frank v. Frank
account had been created and, that he therefore possessed a one-half interest in the proceeds.
At the trial Irene offered her own testimony and that of three other witnesses to prove that
Joseph's intention was that the funds go to her at his death and to Adolph only in the event
that Irene and Joseph died simultaneously. She contended that the conclusive presumption of
intent to create a joint tenancy contained in NRS 663.015 does not apply in an action between
two surviving codepositors.
Adolph's appellate contentions are that NRS 663.015 mandates a decision in his favor and
further that the trial court erred in admitting the testimony of Irene and her three witnesses.
Because we agree that the conclusive presumption of NRS 663.015 applies, we do not reach
Adolph's other allegations of error.
This court has ruled that when one of two signatories to a joint account dies, NRS
663.015(2) prevents the executor of the decedent codepositor's estate from attempting to
establish that there had been no intent to create a joint tenancy, in short, that the plain
language of NRS 663.015 creates in such case a conclusive presumption of intent. Weinstein
v. Sodaro, 91 Nev. 638, 541 P.2d 531 (1975). This ruling is in accord with the results reached
under identical but now-repealed statutes in California and New York. See Paterson v.
Comastri, 244 P.2d 902 (Cal. 1952); Moskowitz v. Marrow, 167 N.E. 506 (N.Y. 1929).
Those cases held that during the lifetime of the depositors the form of deposit gives rise to a
presumption, which becomes conclusive as to the title of the survivor when a depositor
dies.
____________________
paid to the survivor or survivors of them, such deposit and any additions thereto made by any of such persons,
after the making thereof, shall become the property of such persons as joint tenants, and such deposits, together
with all dividends thereon, shall be held for the exclusive use of such persons and may be paid to any of them
during the lifetime of all or to the survivor or survivors after the death of any of them. Such payments and
receipts or acquittances of the person or persons to whom such payment is made shall be a valid and sufficient
release and discharge to such bank or other depository for all payments made on account of such deposit.
2. The making of the deposit in such form shall, in the absence of fraud or undue influence, be conclusive
evidence, in any action or proceeding to which either such bank or other depository, or a surviving depositor, is
a party, of the intention of the depositors to vest such deposit and the additions thereto in such survivor or
survivors. (Emphasis supplied.)
NRS 663.015 was repealed by Stats. of Nev. 1977, ch. 422, p. 806, effective July 1, 1977. A virtually
identical provision was reenacted by Stats. of Nev. 1977, ch. 422, p. 805 et seq., and is now codified as NRS
100.085.
93 Nev. 659, 662 (1977) Frank v. Frank
presumption, which becomes conclusive as to the title of the survivor when a depositor dies.
Whatever their true agreement may have been, the door to controversy was open while they
lived, but closed upon the death of either. Moskowitz v. Marrow, supra.
But Irene challenges the applicability of the conclusive presumption in a case such as this
where there are two surviving codepositors to a three-party joint account. She points to
Comastri v. Burke, 290 P.2d 663 (Cal.App. 1955), where the court held that the conclusive
presumption did not apply in an action between two surviving depositors to a three-party joint
account. However, the court in Comastri v. Burke, supra, was motivated by a desire to avoid
a construction of the statute which would limit the surviving sole contributor's free right of
disposition merely through the fortuitous death of one of her intended beneficiaries. The
distinguishing feature in this case in that Joseph, the sole contributing depositor, is the one
who has died. The court's concern in Comastri with an interpretation of the statute which
would limit the sole contributor's free right of disposition is therefore inapplicable in a
situation where that sole contributor is dead. The dispute being between the surviving
non-contributor signatories, all rationale for disregarding the plain language of NRS
663.015(2) disappears. Therefore, the conclusive presumption of intent contained in that
section applies in an action between two surviving non-contributing codepositors.
Reversed.
____________
93 Nev. 662, 662 (1977) Mello v. State
RICHARD EDWARD MELLO, Appellant, v.
No. 9512
December 27, 1977 572 P.2d 533
Gregory, Judge.
Defendant was convicted before the district court of possession of a controlled substance
and the attempt to supply a controlled substance, and he appealed. The Supreme Court held
that statute permitting trial court to dismiss indictment if defendant is not brought to trial
within 60 days after finding of indictment is discretionary and not mandatory, and trial
court did not err in denying motion to dismiss filed by defendant who was already serving
two sentences of life imprisonment, whose trial was set as soon as circumstances
permitted, and who showed no prejudice as result of delay.
93 Nev. 662, 663 (1977) Mello v. State
that statute permitting trial court to dismiss indictment if defendant is not brought to trial
within 60 days after finding of indictment is discretionary and not mandatory, and trial court
did not err in denying motion to dismiss filed by defendant who was already serving two
sentences of life imprisonment, whose trial was set as soon as circumstances permitted, and
who showed no prejudice as result of delay.
Affirmed.
Rodlin Goff, State Public Defender, and John Kadlic, Deputy Public Defender, Carson
Robert List, Attorney General, and Shirley Smith, Deputy Attorney General, Carson City,
and David B. Small, District Attorney, Carson City, for Respondent.
Criminal Law.
Statute permitting trial court to dismiss indictment if defendant is not brought to trial within 60 days after
finding of indictment is discretionary and not mandatory, and trial court did not err in denying motion to
dismiss filed by defendant who was already serving two sentences of life imprisonment, whose trial was set
as soon as circumstances permitted, and who showed no prejudice as result of delay. NRS 178.556.
OPINION
Per Curiam:
While incarcerated in the Nevada State Prison, appellant was charged with possession of a
controlled substance and the attempt to supply a controlled substance, in violation of NRS
453.336, 453.321 and 208.070.
On June 21, 1976, he entered a plea of not guilty to the charge. His trial was originally set
for August 26, 1976. However, due to conflicting assignments of the deputy attorney general
prosecuting the case and the district judge's vacation, trial was postponed until October 13,
1976. Appellant notified the court he would not waive any applicable time limits.
At trial, the evidence revealed that appellant had attempted to supply a fellow prisoner
with ten marijuana cigarettes by asking a guard to deliver an eight-track tape in which
marijuana was concealed. Appellant was convicted on both counts found in the information
and received maximum sentences. In this appeal, he alleges that NRS 17S.5561 has been
violated and because of that violation his conviction should be overturned.
93 Nev. 659, 664 (1977) Mello v. State
this appeal, he alleges that NRS 178.556
1
has been violated and because of that violation his
conviction should be overturned. We disagree.
In pertinent part, NRS 178.556 provides that if a criminal case is not brought to trial
within 60 days after the finding of the indictment or filing of the information, the court may
dismiss the indictment, information, or complaint. [Emphasis added.] Appellant requests
that we read this discretionary statute to be mandatory.
Appellant's reliance on Ex Parte Morris, 78 Nev. 123, 369 P.2d 456 (1962) and Adams v.
Sheriff, 91 Nev. 575, 540 P.2d 118 (1975) to support his position is misplaced. In Morris the
holding was based upon specific mandatory language of a statute
2
which was repealed and
replaced by NRS 178.556. Nor is Adams, supra, supportive of appellant's case. There,
although we emphasized the flexibility of the statutory time limit, we reversed because there
was an unexplained 138 day delay after the finding of an indictment and because the record
was barren of any legal cause for the state's failure to timely arrest, arraign or try Adams.
Id. at 576, 540 P.2d at 119.
Here the appellant was already serving two sentences of life imprisonment, one without
possibility of parole. His trial was set as soon as circumstances permitted. He has shown no
prejudice and the record reveals none. He does not claim his right to a speedy trial has been
violated, nor could he. See Barker v. Wingo, 407 U.S. 514 (1972); Sheriff v. McKinney, 93
Nev. 313, 565 P.2d 649 (1977). His entire claim of error is based upon the mistaken
assumption that dismissal under NRS 178.556 is mandatory.
Affirmed.
3

____________________

1
NRS 178.556: If no indictment is found or information filed against a person within fifteen days after he
has been held to answer for a public offense, or if a defendant whose trial has not been postponed upon his
application is not brought to trial within sixty days after the finding of the indictment or filing of the information,
the court may dismiss the indictment, information, or complaint. [Emphasis added.]

2
NRS 178.495, repealed by 1967 Nev. Stats. ch. 523, 447 provided:
If a defendant whose trial has not been postponed upon his application is not brought to trial within 60 days
after the finding of the indictment or filing of the information, the court shall order the indictment or information
to be dismissed, . . . [Emphasis added.]

3
The Governor designated Paul S. Goldman, Judge of the Eighth Judicial District, to sit in place of Hon.
____________
93 Nev. 665, 665 (1977) American Elevator Co. v. Briscoe
AMERICAN ELEVATOR COMPANY, a Copartnership; GERALD J. MONAGHAN,
dba American Elevator Company and JOHN M. DOYLE, as Special Administrator
of the Estate of Patrick Monaghan, Deceased, Appellants, v. DEL L.
BRISCOE, Respondent.
No. 9069
December 27, 1977 572 P.2d 534
Appeal from a judgment in favor of plaintiff. Second Judicial District Court, Washoe
County; Roy L. Torvinen, Judge.
Action was brought against copartnership, which was under exclusive contractual duty to
service and maintain elevators at hotel, for injuries suffered by hotel employee when,
allegedly as a result of negligent maintenance by defendant, an elevator suddenly began a
descent ending with a series of jarring stops. The district court entered judgment for plaintiff
and defendants appealed. The Supreme Court, Manoukian, J., held that: (1) there was
reasonable showing by plaintiff of variances from recognized standards of maintenance and
that they could have possibly proximately caused his injuries so that res ipsa loquitur
instruction was properly given; and (2) polygraph examination administered to plaintiff was
not admissible to impeach him.
Affirmed.
Wait, Shamberger, Georgeson, and McQuaid, Reno, for Appellants.
Peter Chase Neumann, Reno, for Respondent.
1. Negligence.
Res ipsa loquitur is balancing doctrine and, while plaintiff need not show exact cause of injury, he must at
least show that it is more probable than not that injury resulted from defendant's breach of duty and, if that
is shown, inference of negligence on part of defendant arises and it is then incumbent on defendant to come
forward with rebuttal evidence.
2. Negligence.
Plaintiff is not required to establish exclusive control in defendant with respect to any possible cause of
accident before res ipsa loquitur applies and he is required only to produce sufficient evidence from which
it can be said that it was more likely than not that it was negligence on part of his adversary.
3. Negligence.
In action against copartnership, which had exclusive contractual duty to service and maintain elevators in
hotel, to recover for injuries suffered by hotel employee when elevator descended with
series of jarring stops allegedly as result of negligent maintenance, there was
reasonable showing by plaintiff of variances from recognized standards of
maintenance and that they could have possibly proximately caused his injuries; thus
res ipsa loquitur instruction was properly given.
for injuries suffered by hotel employee when elevator descended with series of jarring stops allegedly as
result of negligent maintenance, there was reasonable showing by plaintiff of variances from recognized
standards of maintenance and that they could have possibly proximately caused his injuries; thus res ipsa
loquitur instruction was properly given.
4. Negligence.
Once prima facie res ipsa case was established by injured hotel employee suing copartnership which had
contractual duty to maintain elevator, burden shifted to defendants to exculpate themselves by showing that
negligence of another was equally plausible cause of elevator's descent ending with series of jarring stops
or that no failure of duty on their part was the cause.
5. Witnesses.
Polygraph examiner is not within testimony-by-experts statute, inasmuch as it has not been established
that such type evidence has received general scientific acceptance. NRS 50.275.
6. Witnesses.
Results of polygraph examination of injured plaintiff were not admissible to impeach plaintiff under the
normal standard of admissibility which simply weighs probative value of proffered evidence against
traditional policy considerations, such as possibilities of misleading, confusing, or prejudicing jury or of
unduly consuming judicial time. NRS 48.035.
OPINION
This case involves the claimed negligent maintenance of an elevator in the Holiday Hotel
in Reno. On February 22, 1974, respondent Briscoe, an employee of the hotel, entered the
elevator at the fifth floor intending to go to the sixth floor. Although Briscoe pressed the
correct button, the elevator suddenly began a descent ending with a series of jarring stops at
or near the first floor and finally settling to the basement level.
Several other hotel employees were in the vicinity when Briscoe exited the elevator and
observed him in a somewhat shaken state, suffering apparent back pain. Immediately
thereafter, two of the employees transported Briscoe to the Washoe Medical Center hospital
in Reno where he was diagnosed as having sustained serious spinal injury. Briscoe
subsequently underwent two spinal surgeries, and the medical prognosis is that, despite
constant medication, his injuries are permanent.
Appellants proffer two major claims of error for our determination: (1) the trial court's
instruction to the jury on the doctrine of res ipsa loquitur; and (2) the trial court's refusal to
admit into evidence respondent's polygraph results offered by appellants.
to admit into evidence respondent's polygraph results offered by appellants.
In his complaint, respondent alleged that American negligently and carelessly maintained
the elevator which resulted in his injuries. He additionally pleaded the liability of American
under the doctrine of res ipsa loquitur.
Commencing in 1970, except for inconsequential housekeeping maintenance, American
was under an exclusive contractual duty to service and maintain all the elevators in the
Holiday Hotel. On the same day, but just prior to the time that Briscoe suffered his injury, an
employee of American had serviced the subject elevator. It was shortly thereafter that Briscoe
suffered injury.
Later that day, two employees of American and an elevator inspector from the Nevada
Industrial Commission examined the elevator and could find no apparent reason for the
reported trouble. The following day, however, the elevator malfunctioned and become
[became] inoperative. When examined, electrical contact elements in the elevator's operating
system were found to be dirty and greasy. An employee of American, cleansing these
elements, discovered a cracked electrical contact housing. He testified that this condition
would be one explanation why the elevator stopped midshaft unexpectedly. Expert testimony
corroborated that failure of these electrical contacts could cause an unexpected stoppage of
the elevator. The record further shows that there was a dramatic reduction in American's
maintenance at the Holiday from a relatively standard fifty hours of maintenance per month in
December, 1973, to a rather abnormally deficient twelve hours in January of 1974, the month
before the Briscoe accident.
Expert testimony indicated the amount of force to which an occupant of a jerking elevator
would be subjected, and appellant's medical expert conceded the possibility of spinal injury
from relatively insignificant pressures on the spinal column. He further conceded that
respondent may have received some injury in the elevator.
On the request of his counsel, Briscoe submitted to a polygraph examination to determine
whether he was pursuing a fraudulent claim. The polygraph examiner was hired by Briscoe's
counsel and was to report only to him. Appellants' counsel, through an unusual set of
circumstances incidental to discovery motions, obtained a copy of the test results.
During trial a motion in limine was made by respondent and an order issued precluding
any mention during the trial of the polygraph test.
After rendition of the verdict in favor of respondent, judgment was entered in the sum of
$150,000.00 from which appellants appeal.
1. The Res Ipsa Loquitur Instruction.
Appellants contend that the giving of the res ipsa loquitur instruction
1
to the jury
constituted reversible error. Appellants do not quarrel with the substance of that instruction,
doubtlessly acknowledging it as a correct statement of the standard announced in Bialer v. St.
Mary's Hospital, 83 Nev. 241, 427 P.2d 957 (1967).
Appellants premise this allegation of error on the fact that no evidence was introduced at
trial to indicate that it ever had exclusive control over the instrumentality causing harm.
Appellants focus on respondent Briscoe's remark during cross-examination that the elevator
fell rapidly and then argue that no evidence was ever offered to connect this overspeeding
to any alleged misfeasance or non-feasance of appellants. In summary, appellants argue that
any overspeeding was a design defect and that Otis Elevator, the manufacturer previously
dismissed from the suit, must assume liability. American Elevator, it contends, was only
involved through a service maintenance agreement and cannot be held accountable absent any
showing of negligent maintenance. There is an abundance of evidence demonstrating
appellants' exclusive control. Otis installed the elevator approximately twenty years prior to
this accident, with appellants' assuming maintenance in the early 1970's.
____________________

1
Instruction number 16 reads as follows:
Plaintiff claims that there was an accidental occurrence; defendant denies it. If you should find that as
claimed by the plaintiff there was an accidental occurrence and the plaintiff was injured thereby, then you are
instructed as follows:
It is a rule of law that negligence may be established without proof of specific acts or omissions. This is
based on a special doctrine of the law which may be applied if you find from the evidence the following:
First: The fact that some certain instrumentality by which injury to the plaintiff was proximately caused, was
in the possession and under the exclusive control of a defendant at the time the cause of injury was set in motion;
it appearing on the face of the event that the injury was caused by some act or omission incident to defendant's
management.
Second: The fact that the accident was one of such nature as does not happen in the ordinary course of
things, if those who have control of the instrumentality use ordinary care.
Third: The fact that the circumstances surrounding the causing of the accident was such that the plaintiff is
not in a position to know what specific conduct was the cause, whereas the one in charge of the instrumentality
may reasonably be expected to know and be able to explain how the accident was caused, or at least be able to
show that no failure of duty on his part was a cause.
1970's. Sufficient evidence was proffered to avoid any inference that Otis or any other party
except the appellants embarked upon even the slightest attempt at maintenance. Neither was
any evidence presented demonstrating possible manufacturer defects.
[Headnote 1]
Res ipsa loquitur is a balancing doctrine, and while the plaintiff need not show the exact
cause of an injury, he must at least show that it is more probable than not that the injury
resulted from the defendant's breach of duty. If that is shown, an inference of negligence on
the part of defendant arises, and it is then incumbent on the defendant to come forward with
rebuttal evidence.
Appellants contend that respondent, to benefit from res ipsa, must demonstrate that it is
not equally probable that other causes might have effected the same result. To this end,
appellants rely heavily upon Bias v. Montgomery Elevator Co. of Kansas, Inc., 532 P.2d 1053
(Kan. 1975). Appellants' reliance is misplaced. The salient language in Bias, in rejecting a res
ipsa loquitur theory of relief in an elevator fall case, reads:
Plaintiff has introduced no evidence which would indicate it is probable the accident
was caused by negligent servicing rather than by negligent manufacturing or
installation.
Id. at 1058.
Nor do appellants' other authorities aid them. They generally hold that reliance upon the
doctrine is precluded whenever plaintiff fails to prove the exclusive control by defendant over
the instrumentality causing harm. Oil Building Corporation v. Hermann, 488 P.2d 1126
(Colo.App. 1971); Koch v. Otis Elevator Company, 200 N.Y.S.2d 700 (1960).
In appellants' cited cases, the plaintiff failed to meet his minimal burden in order to
establish a prima facie case for the application of res ipsa loquitur. To the contrary,
respondent here has presented facts to the jury which would indicate that some negligent
maintenance had occurred. The Briscoe incident was not an isolated phenomenon. Evidence
was adduced through several hotel employees which showed anomalies in the elevator's
operation on many occasions prior to the Briscoe accident. Several hotel employees had
actually fallen in the elevator as a consequence of its abrupt stops and jerks, and it was
adequately shown that stoppage of the elevator may have been attributable to negligent
maintenance.
[Headnotes 2, 3]
To require a plaintiff to establish exclusive control in the defendant with respect to any
possible cause of the accident before permitting the application of res ipsa loquitur would
emasculate the doctrine. He was required, as was done, only to produce sufficient evidence
from which it could be said that it was more likely than not that it was negligence on the part
of his adversary. There was a reasonable showing by respondent of variances from the
recognized standards of maintenance and that the same could have possibly proximately
caused his injuries.
[Headnote 4]
Had appellants established possible design defect, a contrary verdict may have been
rendered. However, there was no evidence of design defect, and the jury found that appellants
failed to discharge their burden of explanation. Newing v. Cheatham, 540 P.2d 33 (Cal.
1975). See also, Shoshone Coca-Cola v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966). Once
the prima facie res ipsa case had been established, the burden shifted to the appellants to
exculpate themselves by showing that the negligence of another was an equally plausible
cause or that no failure of duty on their parts was a cause. On this record, the jury was not
constrained to find that appellants had satisfied the burden that had shifted to them.
2. The Polygraph Examination.
The results of the polygraph examination administered to respondent were purportedly
unfavorable, and appellants doubtlessly intended to impeach him with that evidence. The trial
court precluded appellants' use of the examination results, relying on NRS 49.085 and NRS
49.095 pertaining to the attorney-client privilege. The trial court further rejected the offer of
evidence, determining that the foundation was inadequate and the evidence scientifically
unreliable. This Court elects to follow its holding in Warden v. Lischko, 90 Nev. 221, 523
P.2d 6 (1974). In Lischko, we stated:
Although the results of those tests may weigh in favor of the petitioner's truthfulness,
neither narco-interrogation nor the lie detector method has received court recognition as
possessing the trustworthiness and reliability needed to accord the results the status of
competent evidence. Vol. 3A, Wigmore, Chadbourn Revision, 998, 999 (1970).
Id. at 224, 523 P.2d at 8.
[Headnotes 5, 6]
We decide, in these circumstances, that a polygraph examiner is not within our
testimony-by-experts statute, NRS 50.275, since we are not satisfied that this type evidence
has received general scientific acceptance. Nor are we here disposed to apply the normal
standard of admissibility, which simply weighs the probative value of the proffered evidence
against traditional policy considerations, such as the possibilities of misleading, confusing, or
prejudicing the jury or of unduly consuming judicial time. See, NRS 48.035.
Appellants' remaining contentions and respondent's requested sanctions for frivolity,
(NRAP 38), being without merit, are rejected.
2

Batjer, C. J., and Mowbray and Gunderson, JJ., and Hoyt, D. J., concur.
____________________

2
The Governor designated Merlyn Hoyt, Judge of the Seventh Judicial District, to sit in the place of the
Honorable Gordon Thompson, Justice, who was disqualified. Nev. Const. art. 6, 4.
____________
93 Nev. 671, 671 (1977) Arndt v. State
DWAYNE P. ARNDT, Appellant, v. THE STATE
No. 9679
December 28, 1977 572 P.2d 538
Appeal from a judgment of first degree murder. Second Judicial District Court, Washoe
County; John W. Barrett, Judge.
The Supreme Court, Manoukian, J., held that: (1) defendant failed to present an adequate
record for appellate review of his claim of error with respect to the trial court's denial of his
request that the jury be voir dired to determine whether any jurors had read a newspaper
article concerning the case, and (2) even if the trial court's refusal to voir dire the jury was
error, such error would be deemed harmless in view of the overwhelming evidence of guilt.
Affirmed.
Sinai, Ohlson, and Schroeder, Reno, for Appellant.
93 Nev. 671, 672 (1977) Arndt v. State
1. Criminal Law.
Ordinarily, as precondition to appellate review of claim that trial court erred by refusing to voir dire jury
to determine whether any juror had read allegedly prejudicial newspaper article, there must be showing in
record that member of jury had been exposed to news media matter and had been influenced by it.
2. Criminal Law.
Polling of jury generally remains within sound discretion of trial court.
3. Criminal Law.
It cannot be said in every case that, absent indications of violations of court's admonishments not to read
any newspaper article or listen to or view any radio or television newscast concerning case, refusal to voir
dire impaneled jury remains within sound discretion of trial court; primary question is whether there has
been effect on substantial rights of accused. NRS 177.255.
4. Criminal Law.
In determining whether trial court's refusal to voir dire impaneled jury to determine whether any juror
read allegedly prejudicial newspaper article concerning case has had effect on substantial rights of accused,
examination of facts must be made in order to determine whether prejudice resulted and prejudice must be
such that customary polling procedures, admonitions, and instructions are unavailing to insure fair trial.
NRS 177.255.
5. Criminal Law.
Where defendant charged with murder failed not only to move for mistrial but additionally failed to move
for new trial, though he had opportunity to do so, after trial court refused his request to voir dire jury to
determine whether any juror had read newspaper article concerning case, where defendant failed to request
additional admonitions or instructions, and where there was not scintilla of evidence offered in support of
request other than article itself, defendant failed to meet burden of presenting adequate record for appellate
review.
6. Criminal Law.
Even if trial court, in homicide prosecution, erred by refusing defendant's request to voir dire jury to
determine whether any jurors had read newspaper article concerning case in morning edition, such error
would have been harmless in light of overwhelming evidence of guilt.
OPINION
Appellant, charged by indictment with murder, pursuant to plea negotiations, entered a
plea of guilty to second degree murder.
93 Nev. 671, 673 (1977) Arndt v. State
murder. During the sentencing proceedings, he was permitted to withdraw his plea of guilty,
after which he entered a plea of not guilty by reason of insanity. On January 3, 1977, the first
day of trial, following empanelment of the jury, the court recessed with the evidentiary
portion of the trial to begin the next day. After the jury had been excused, however, the
appellant and counsel remained in court at which time the appellant withdrew his plea of not
guilty by reason of insanity and entered a plea of not guilty.
The following morning, on appellant's motion, the court convened out of the presence of
the jury to consider his request that the trial judge voir dire the jury to determine whether any
juror had read the Nevada State Journal newspaper article appearing in that morning's
edition. The article indicated that the appellant had previously entered a plea of guilty which
he subsequently withdrew. The court determined that a voir dire examination would only call
unnecessary attention to the news article. In addition, the court noted that after the jury had
been empaneled the previous day, but before it was excused, it had, in comporting with NRS
175.401(2),
1
admonished the jurors that they were, inter alia, not to read any newspaper
article or listen to or view any radio or television newscasts concerning this case. The trial
court denied the request.
Here, the appellant asserts only one claim of error. Did the trial court's refusal to voir dire
the jury violate appellant's due process rights and thereby deprive him of his right to an
impartial jury? If it did, we would be constrained to reverse.
The Sixth Amendment to the United States Constitution, reads in relevant part: In all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury. (Emphasis added.) The Nevada Constitution Article I, Section 3, further
guarantees this basic right.
In response to the constitutional challenge made by appellant, the respondent argues that
the court was at liberty to exercise its sound discretion in this matter and that the error, if
indeed any, was harmless. In support of this harmless error contention, respondent points to
the overwhelming evidence produced at trial which demonstrated appellant's guilt.
____________________

1
NRS 175.401(2). Jury to be admonished at each adjournment. The jury must also, at each adjournment of
the court, whether they be permitted to separate or be kept in charge of officers, be admonished by the court that
it is their duty not to:
. . .
(2) Read, watch or listen to any report of or commentary on the trial or any person connected with the trial by
any medium of information, including without limitation newspapers, television and radio;. . . .
93 Nev. 671, 674 (1977) Arndt v. State
contention, respondent points to the overwhelming evidence produced at trial which
demonstrated appellant's guilt. For example, the victim was murdered by multiple gunshot
and stab wounds to vital parts of the anatomy. Eyewitnesses placed the appellant a few feet
from the victim at the time of the murder with a gun and knife in his hand. Both eyewitnesses
testified that appellant repeatedly struck the victim in the chest, one testifying to the
appellant's use of a knife, while the other, appellant's mother, had no recollection of a knife
being in appellant's hand during the striking. All three individuals present at the time of the
homicide were examined for gunshot residue, with considerable amounts of this inculpatory
evidence found on the palm and backside of appellant's hands. A state's expert testified
without contradiction that traces of residue on the backside of the hand are of the greatest
significance in determining who handled and fired the weapon.
The state presented persuasive evidence indicating motives for the killing, which included
evidence of possible financial gain and repeated beatings, coupled with forced homosexual
activity by decedent against appellant.
Moreover, evidence was presented which showed that on several different occasions the
appellant expressed an interest in killing the victim and in having the victim killed by others.
Witnesses testified as to appellant's direct and indirect admissions of guilt. Finally, the
appellant's explanation of the incident was remarkably inconsistent with the physical
evidence of the crime scene.
It is within the foregoing factual context that the respondent opposes the appellant's sole
assignment of error.
In Marshall v. United States, 360 U.S. 310, 313 (1959), the Supreme Court stated that the
prejudicial news items must be tempered by protective measures. This Court, in Pacheco v.
State, 82 Nev. 172, 414 P.2d 100 (1966), suggested to the trial courts in this state that the
then existing statutory admonishments be supplemented with a further admonishment that
jurors exercise restraint in not exposing themselves to media accounts concerning the case in
which they are empaneled. The Legislature subsequently amended the statute to clothe this
suggestion with the status of law. NRS 175.401(2).
Appellant's principal reliance is on Crowe v. State, 84 Nev. 358, 441 P.2d 90 (1968).
Although Crowe on its face has some similarity to the case before us, it is in fact inapposite
and of no assistance to appellant. In Crowe, supra, not only did the trial court refuse to poll
the jurors pertaining to their possible exposure to a prejudicial news article appearing after
enpanelment but prior to the evidentiary portion of the trial, but the court failed to
admonish the jurors at all.
93 Nev. 671, 675 (1977) Arndt v. State
enpanelment but prior to the evidentiary portion of the trial, but the court failed to admonish
the jurors at all. Further, both appellant and respondent there agreed that the news article was
prejudicial.
Here, the trial court determined that because the article was not prominent, compare,
Crowe, supra, more harm would inure to the appellant by calling unwarranted attention to it.
2
The court commendably applied protective measures to temper any possible publicity by
properly admonishing the jurors after empanelment and prior to the publication of the news
article, by giving the jurors the statutory admonishment at every recess and prior to
deliberation, and additionally by giving a jury instruction which included a directive that the
jury was to be governed solely by the evidence introduced at trial and the law as stated to
you by me. Cf. Layton v. State, 91 Nev. 363, 536 P.2d 85 (1975). We query whether the
foregoing is in all cases sufficient and conclude that it is not.
[Headnotes 1, 2]
Ordinarily, as a pre-condition to appellate review, there must be a showing in the record
that a member of the jury has been exposed to news media matter and has been influenced by
it. United States v. Heffler, 270 F.Supp. 79 (E.D. Pa. 1967); United States v. Heffler, 402
F.2d 924 (3rd Cir. 1968); cert. denied, 394 U.S. 946. A polling of the jury, however,
generally remains within the sound discretion of the trial court. Crowe, supra; Marshall,
supra; People v. Lambright, 393 P.2d 409 (Cal. 1964).
[Headnotes 3, 4]
It cannot be said in every case, however, that absent indications of violations of the court's
admonishments refusal to voir dire the empaneled jury remains within the sound discretion of
the trial court. The primary question is whether there has been an effect on the substantial
rights of the accused. NRS 177.255. The prejudice must be such that the customary polling
procedures, admonitions, and instructions are unavailing to insure a fair trial. An examination
of the facts must be made in order to determine whether prejudice resulted. Crowe, supra;
Irvin v. Dowd, 366 U.S. 717 (1961). In some instances, of course, prejudice is inherent,
Rideau v. Louisiana, 373 U.S. 723 (1963); Turner v. Louisiana, 379 U.S. 466 (1965), and
probability that prejudice will result is deemed inherently lacking in due process.
____________________

2
Although appellant has not favored this Court with a copy of the news article, the record reflects that it was
not prominent.
93 Nev. 671, 676 (1977) Arndt v. State
probability that prejudice will result is deemed inherently lacking in due process.
We perceive the difficulty in the trial courts' measuring of prejudice, and the issue is not
whether the trial judge himself views an article as prejudicial as it is to determine whether the
article tends to have a prejudicial effect on the jurors' minds. Accordingly, such
determinations should not always be made in chambers with counsel, but in instances of
doubt, the jury should be examined. Crowe, supra. This was, because of the nature of the
article, arguably a case in which an instance of doubt existed, but, for reasons hereinafter
expressed, we do not reach that issue nor need we conjecture as to whether prejudice
occurred.
[Headnote 5]
In the instant case, appellant had an opportunity to move for mistrial and press the issue or,
in the alternative, to move for a new trial and renew his voir dire request. Appellant went no
further than to request that the trial court voir dire the jury. Thereafter, he failed not only to
move for mistrial but additionally failed to move for a new trial. Moreover, appellant failed to
request additional admonitions or instructions. Pacheco, supra. Finally, there was not a
scintilla of evidence offered in support of the request other than the article itself. On appeal
appellant now seeks to demonstrate that the trial judge's refusal caused him prejudice.
However, we have no means of determining whether a juror read the Nevada State Journal
article or had been exposed to the harmful portion of the publication and whether it did
interfere with appellant's right to a fair trial. More must be demonstrated for meaningful
appellate review. Having failed to meet his burden of presenting an adequate record, appellant
cannot now complain. See, Wangrow v. United States, 399 F.2d 106 (8th Cir. 1968), cert.
denied, 393 U.S. 933; Black v. United States, 353 F.2d 885 (D.C. Cir. 1965), cert. denied,
384 U.S. 927.
[Headnote 6]
Neither can we here say that the issue of guilt or innocence is close, Pacheco, supra, at
179, 414 P.2d at 103-04. Even were we to determine that error occurred pertaining to the
publicity, although the record before us would not permit such a conclusion, the evidence of
guilt is so overwhelming that the assigned error would be deemed harmless. Passarelli v.
State, 93 Nev. 292, 564 P.2d 608 (1977); Hendee v. State, 92 Nev. 669
93 Nev. 671, 677 (1977) Arndt v. State
92 Nev. 669, 557 P.2d 275 (1976). Cf. Chapman v. California, 386 U.S. 18 (1967).
Batjer, C. J., and Thompson, Mowbray, and Gunderson, JJ., concur.
____________
RAYMOE JACKSON, Appellant, v. THE STATE
No. 9581
December 29, 1977 572 P.2d 927
Appeal from judgment of conviction for burglary. Eighth Judicial District Court, Clark
County; Paul S. Goldman, Judge.
The Supreme Court, Manoukian, J., held that: (1) statute making it a crime to tamper with
vehicle did not supersede burglary statute with respect to motor vehicles; (2) defendant was
not entitled to jury instruction on tampering; (3) trial court did not err in not giving proposed
jury instruction pertaining to crime of attempted unlawful taking of a vehicle and (4) while
practice was not to be condoned, trial court did not commit error in giving jury instruction
which elaborated on statutory reasonable doubt instruction.
Affirmed.
Morgan D. Harris, Public Defender, and Herbert F. Ahlswede, Deputy, Clark County, for
Appellant.
1. Burglary.
Statute making it a crime to tamper with a vehicle did not supersede burglary statute with respect to
motor vehicles. NRS 205.060, 205.274.
2. Criminal Law.
Defendant was not entitled to instruction on tampering with a vehicle in prosecution for burglary of
automobile where defendant's conduct went beyond that contemplated by tampering statute. NRS
205.060, 205.274.
3. Criminal Law.
Trial court did not err, in prosecution for burglary of automobile, in not giving proposed jury instruction
pertaining to crime of attempted unlawful taking of a vehicle, where record was devoid of any indication
that defendant could have been convicted of that crime as a lesser included offense. NRS 175.501,
205.060.
Test to determine whether a crime is necessarily included in offense charged is whether offense charged
cannot be committed without committing lesser offense.
5. Criminal Law.
Crime of attempted unlawful taking of vehicle and burglary of vehicle are separate and distinct crimes.
NRS 205.060.
6. Criminal Law.
Although trial court's giving of jury instruction which elaborated on statutory reasonable doubt
instruction was not to be condoned, instruction given by trial court, to effect that it was not necessary that
guilt be established beyond reasonable doubt or to an absolute certainty, but instead that guilt be
established beyond reasonable doubt as hereinafter defined, went no further than to define reasonable doubt
within legislative confines and was, in fact, in harmony with statute, and consequently trial court did not
commit error. NRS 175.211.
OPINION
Appellant was convicted of the crime of burglary of an automobile and sentenced to
confinement in the Nevada State Prison for a term of four years. The vehicle was parked in a
commercial parking lot. Two eyewitnesses, the owner of the lot and his daughter, who both
knew the owner of the vehicle, observed the appellant standing next to the car bending a coat
hanger, acting and looking around suspiciously. The owner of the lot summoned the police
after the appellant had broken into the vehicle and was lying on the seat.
A motorcycle officer arrived immediately and as he approached the vehicle, the appellant
got out, closed the car door, threw away the coat hanger, and attempted to leave the scene.
The officer ordered the appellant to halt, but he continued walking and, as he did so,
discarded a screwdriver. The officer then pinned the appellant against another vehicle with
his nightstick, while the appellant continued to resist until a back-up squad car arrived with
assistance.
The appellant was searched and some loose change together with a Showboat Hotel
gaming chip was retrieved from his person.
with a Showboat Hotel gaming chip was retrieved from his person. The owner of the vehicle
stated both at the time of the burglary and in her testimony given at trial that she had locked
the vehicle and that there was missing some change and a Showboat Hotel gaming chip. She
further testified that she had not given anyone, including appellant, permission to enter the
vehicle.
The owner of the parking lot, the police officer, and the owner of the vehicle all testified
that the ignition switch had been removed from the steering column. The owner of the vehicle
testified that the ignition switch was intact and operative at the time she parked the vehicle.
On the basis of the physical evidence removed from appellant's person, and upon the
testimony of the eyewitnesses, who maintained a vigil of appellant from the time he was
furtively standing outside the vehicle bending the coat hanger until the time of his arrest, the
jury rendered a verdict of guilty as charged.
Premised solely on alleged error in jury instructions, the appellant seeks annulment of the
judgment of conviction, contending error in the trial court's refusal: (1) to further instruct the
jury as to the crime of tampering with a vehicle; (2) to instruct the jury regarding an
attempted unlawful taking of a vehicle; and (3) in giving a further instruction pertaining to
reasonable doubt. We find each claim to be without merit.
1. Instruction re: Tampering with a Motor Vehicle.
The crux of the first two issues presented on this appeal involves the identification of the
crimes which are by nature arguably lesser included offenses in the charge of burglary of a
motor vehicle. Concerning these first issues, both appellant and respondent objected to two of
the trial court's instructions given the jury. The lower court's instructions concerning lesser
included crimes were as follows:
Jury Instruction No. 9:
If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the
offense charged he may, however, be found guilty of any other offense, the commission
of which is necessarily included in the offense charged, if the evidence is sufficient to
establish his guilt of such other offense beyond a reasonable doubt.
The offense of Burglary with which the defendant is charged may, given the facts of
this case included the offense of Tampering with a Motor Vehicle.
Jury Instruction No. 10:
Any person who without the consent of the owner, while a vehicle is at rest and
unattended, shall attempt to manipulate the starting device shall be guilty of tampering
with a vehicle.
The State strenuously objected to both these instructions on the basis that tampering with a
vehicle (NRS 205.274)
1
is not a lesser included offense to a charge of burglary of a vehicle.
The State argued that the misdemeanor tampering offense is separate and distinct from the
crime of burglary and that the State had the option of charging appellant with both crimes but
elected to proceed only on the burglary offense.
The appellant, on the other hand, objects to instruction number 10, stating that it
insufficiently reproduces the language of NRS 205.274 by omitting the phrase: shall climb
into or upon such vehicle with intent to commit any crime. . . . Appellant argues that the
climb into and the intent to commit any crime language of the tampering statute (NRS
205.274) is virtually synonymous with the enters and the intent to commit grand or petit
larceny or any felony language of the burglary statute (NRS 205.060).
2
Tampering is a
misdemeanor while burglary is a felony.
[Headnote 1]
Appellant is not content to simply argue that because of the similarity in language but
disparity in punishments of the statutes, an instruction for tampering should have been
given, but he goes further and contends that the tampering statute itself supersedes the
burglary statute with respect to motor vehicles.
____________________

1
NRS 205.274 provides in relevant part:
1. Any person who shall . . . willfully break, injure, tamper with or remove any part or parts of any vehicle
for the purpose of injuring, defacing or destroying such vehicle, or temporarily or permanently preventing its
useful operation, or for any purpose against the will or without the consent of the owner of such vehicle, or who
shall in any manner willfully or maliciously interfere with or prevent the running or operation of such vehicle,
shall be guilty of a public offense proportionate to the value of the loss resulting therefrom.
2. Any person who shall without the consent of the owner or person in charge of a vehicle climb into or
upon such vehicle with the intent to commit any crime, malicious mischief, or injury thereto, or who while a
vehicle is at rest and unattended shall attempt to manipulate any of the levers, starting crank or other starting
device, brakes or other mechanism thereof, or to set such vehicle in motion, shall be guilty of a misdemeanor. . .
.

2
NRS 205.060 provides in relevant part:
1. Every person who, either by day or night, enters any . . . vehicle . . . with intent to commit grand or petit
larceny, or any felony, is guilty of burglary.
2. Any person convicted of burglary shall be punished by imprisonment in the state prison for not less than 1
year nor more than 10 years.
similarity in language but disparity in punishments of the statutes, an instruction for
tampering should have been given, but he goes further and contends that the tampering statute
itself supersedes the burglary statute with respect to motor vehicles. Neither contention has
merit.
Appellant contends that the burglary statute is repealed by implication and cites at length
authority establishing that the rules for statutory construction are that newer provisions of law
supplant older ones, and that specific provisions supersede general. Although there is no
showing that the two statutes cover the same subject matter and that they are inconsistent,
appellant's own logic is disserving. The burglary is more specific than the tampering statute in
that it requires intent to commit grand or petit larceny or any felony as opposed to the
general language of an intent to commit any crime. In addition, the tampering statute was
last amended in 1967, whereas the burglary statute was last amended in 1971, the latter
expanding the definition of burglary. Further, in reviewing NRS 205.060 and 205.274, it is
apparent from the penalty scheme and the class of crimes that the Legislature did not intend
for the tampering provisions to comprehend the classic circumstances generally characteristic
of a burglary. Unlike in Lapinski v. State, 84 Nev. 611, 446 P.2d 645 (1968), here, it is clear
that the elements of the crimes significantly vary, the conduct prohibited is well defined, and
the concomitant punishment is also well defined. In short, the Legislature in enacting both
statutes has promulgated the laws which will apply to what must be a clearly designated
state of facts, id. at 614, 446 P.2d at 646, and appropriate penalties for the violations of
same.
[Headnote 2]
Appellant's claim that he was entitled to a jury instruction on tampering is more reasonable
but remains nonetheless unpersuasive. In Holbrook v. State, 90 Nev. 95, 518 P.2d 1242
(1974), this Court held that while it is arguable that tampering is a necessarily included
offense within the crime of grand larceny, the evidence clearly showed appellant's conduct
had gone beyond that encompassed by the tampering' statute. 90 Nev. at 97, 518 P.2d at
1243.
Likewise in the instant case, appellant's conduct had gone beyond that contemplated by the
tampering statute and he would have been entitled to no jury instruction. The trial court,
however, liberally instructed the jury as to the lesser offense but appellant was
nevertheless convicted of burglary.
court, however, liberally instructed the jury as to the lesser offense but appellant was
nevertheless convicted of burglary.
This assignment of error is without merit.
2. Instruction re: Attempted Unlawful Taking.
[Headnotes 3-5]
Appellant next contends that the trial court erred in not giving the following proposed jury
instruction pertaining to the crime of attempted unlawful taking of a vehicle.
Every person who shall attempt to take or drive away the vehicle of another without
the intent to permanently deprive the owner thereof but without the consent of the
owner shall be guilty of attempted unlawful taking of the vehicle.
The record is devoid of any indication that appellant could have been convicted of this
crime as a lesser included offense. NRS 175.501. The test announced by this Court to
determine whether a crime is necessarily included in the offense charged is whether the
offense charged cannot be committed without committing the lesser offense. Lisby v. State,
82 Nev. 183, 187, 414 P.2d 592, 594 (1966); accord, Holland v. State, 82 Nev. 191, 474 P.2d
590 (1966). Nothing has been presented to show that burglary of the vehicle could not have
been committed without committing an attempted unlawful taking of the vehicle.
The crimes are separate and distinct, and the trial court properly refused to instruct on that
subject.
3. Instruction re: Reasonable Doubt.
[Headnote 6]
Appellant next asserts that the trial court erred in giving a jury instruction which
elaborated on the statutory reasonable doubt instruction.
3
The challenged instruction
stated:
It is not necessary that the Defendant's guilt should be established beyond any doubt
or to an absolute certainty, but instead thereof that the Defendant's guilt must be
established beyond a reasonable doubt as hereinafter defined.
____________________

3
NRS 175.211 Reasonable doubt defined; no other definition to be given to juries.
1. A reasonable doubt is one based on reason. It is not mere possible doubt, but is such a doubt as would
govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the entire
comparison and consideration of all the evidence, are in such a condition that they can say they feel an abiding
conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable must be actual and
substantial, not mere possibility or speculation.
2. No other definition of reasonable doubt shall be given by the court to juries in criminal actions in this
state.
but instead thereof that the Defendant's guilt must be established beyond a reasonable
doubt as hereinafter defined.
Although NRS 175.211(2) forbids any definition of reasonable doubt other than that
contained in the statute given as a jury instruction, this Court in Tucker v. State, 92 Nev. 486,
553 P.2d 951 (1976), while disapproving of the lower courts' giving of the additional
instruction, nevertheless permitted an instruction clarifying the statutory reasonable doubt
definition.
The instruction in Tucker read:
The law does not require demonstration or that degree of proof which, excluding all
possibility of error, produces absolute certainty, for such degree of proof is rarely
possible. Proof beyond a reasonable doubt only is required, which is that degree of
proof which produces conviction in an unprejudiced mind.
Id. at 490 n. 6, 553 P.2d at 953 n. 6.
Although we again refuse to condone this practice, finding NRS 175.211(1) to be
adequate, a comparison of the Tucker instruction with the instruction in the instant case
readily demonstrates that the latter is much more innocuous. The instruction here goes no
further than to define reasonable doubt within the legislative confines and is, in fact, in
harmony with NRS 175.211(1). The trial court did not commit error.
Batjer, C. J., and Mowbray and Thompson, JJ., concur.
I concur in the result. With all due deference to my brethren, I cannot approve the language
in which the above opinion is couched.
____________
93 Nev. 683, 683 (1977) Mangerich v. State
ERIC LEO MANGERICH, Appellant, v. THE
No. 9247
December 30, 1977 572 P.2d 542
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; J.
Defendant was convicted in the district court of robbery, and he appealed. The Supreme
Court, Gunderson, J., held that: (1) defendant could be found to have committed robbery,
despite his claim that clerk's fear was unreasonable, and (2) where one uses force or
intimidation to prevent an immediate retaking, this is all one transaction and constitutes
robbery and it is irrelevant whether defendant intends threat to effectuate his escape or to
prevent money from being retaken.
Affirmed.
Morgan Harris, Public Defender, and Terrence M. Jackson, Deputy Public Defender,
Robert List, Attorney General, Carson City; George Holt, District Attorney, and H. Leon
Simon, Deputy District Attorney, Clark County, for Respondent.
1. Robbery.
The courageousness or timidity of victim of robbery is irrelevant; it is the acts of the accused which
constitute an intimidation. NRS 200.380, subd. 1.
2. Robbery.
Where defendant entered a store, said, good morning to the female clerk, placed a ski mask over his
head, and stated: Give me all the money., defendant could be convicted of robbery, despite his claim that
the clerk's fear was unreasonable in the circumstances. NRS 200.380, subd. 1.
3. Robbery.
Where defendant uses force or intimidation to prevent an immediate retaking, this is all one transaction
and constitutes robbery and it is irrelevant whether defendant intended force or fear to effectuate his escape
or to prevent the money from being retaken. NRS 200.380, subd. 1.
OPINION
Appellant stands convicted by jury of robbery. NRS 200.380(1).
1
His primary contention
is no robbery occurred because force, violence, or fear was not utilized to obtain or retain
possession of personal property of another.
____________________

1
NRS 200.380(1) provides in part:
Robbery is the unlawful taking of personal property from the person of another, or in his presence, against
his will, by means of force or violence or fear of injury, immediate or future, to his person or property, or the
person or property of a member of his family, or of anyone in this company at the time of the robbery. Such
force or fear must be used to obtain or retain possession of the property, or to prevent or
because force, violence, or fear was not utilized to obtain or retain possession of personal
property of another. We disagree.
Appellant entered a 7-11 store in Las Vegas, said good morning to the female clerk,
placed a ski mask over his head, and stated: Give me all the money. The clerk testified she
was very frightened, gave appellant the money, and afterwards was told she would not be hurt
if she locked herself in the back room.
[Headnotes 1, 2]
1. Appellant first argues his conduct was not robbery because the clerk's fear was
unreasonable in the circumstances. Of course, [t]he courageousness or timidity of the victim
is irrelevant; it is the acts of the accused which constitute intimidation. United States v.
Alsop, 479 F.2d 65, 67 (9th Cir. 1973). The standard is objective. If the fact be attended with
circumstances of terror, such threatening word or gesture as in common experience is likely
to create an apprehension of danger and induce a man to part with his property for the safety
of his person, it is robbery. Hayden v. State, 91 Nev. 474, 476, 538 P.2d 583, 584 (1975).
Certainly, the appearance of a strange man in a ski mask demanding money could cause a
reasonable clerk to fear for her safety and relinquish property. Cf. United States v. Robinson,
527 F.2d 1170 (6th Cir. 1975); State v. Stephens, 186 P.2d 346 (Ariz. 1947); and Flagler v.
State, 198 So.2d 313 (Fla. 1967).
[Headnote 3]
2. We also reject appellant's argument that force or fear was used to perfect his escape
rather than to retain possession of the stolen property. Where one uses force or intimidation
to prevent an immediate retaking . . . this is all one transaction and constitutes robbery. . . .
[I]t is irrelevant whether [Mangerich] intended the [threat] to effectuate his escape or to
prevent the [money] from being retaken, since the latter purpose was in fact served.
Patterson v. Sheriff, 93 Nev. 238, 239, 562 P.2d 1134, 1135 (1977).
Appellant's other contentions are without merit.
Affirmed.
Batjer, C. J., and Mowbray, Thompson, and Manoukian, JJ., concur.
____________________
overcome resistance to the taking, in either of which cases the degree of force is immaterial. If used merely as a
means of escape, it does not constitute robbery.
____________
93 Nev. 686, 686 (1977) Muller v. Sheriff
PIERRE ANDREE MULLER, Appellant, v. SHERIFF,
No. 10363
December 30, 1977 572 P.2d 1245
Defendant appealed from portion of order of the district court which denied habeas
challenge to one count of selling heroin and one count of selling cocaine. The Supreme Court
held that defendant's conduct constituted two separate offenses for which he could be
charged, notwithstanding the sale of two different controlled substances, heroin and cocaine,
had been consummated simultaneously in one transaction.
Affirmed.
The sale of heroin and the sale of cocaine are distinct offenses requiring separate and different proof.
NRS 453.161, 453.171.
Defendant's conduct constituted two separate offenses for which he could be charged, notwithstanding
that sale of the different controlled substances, heroin and cocaine, had been consummated simultaneously
in one transaction. NRS 453.161, 453.171.
OPINION
Per Curiam:
An indictment charged Pierre Andree Muller with two counts of selling heroin (NRS
453.321; NRS 453.161) and one count of selling cocaine (NRS 453.321; NRS 453.171). In a
pretrial habeas corpus proceeding, one of the heroin counts was dismissed. Muller has
appealed from that portion of the district judge's order which denied the habeas challenge to
the other two counts.
93 Nev. 686, 687 (1977) Muller v. Sheriff
There is evidence in the transcript of the grand jury proceeding to establish probable cause
to believe that on September 28, 1977, Muller sold heroin, a schedule I controlled substance
(NRS 453.161), and cocaine, a schedule II controlled substance (NRS 453.171), to an
undercover narcotics agent. Both drugs were delivered, and payment for each was received,
simultaneously.
Appellant contends that, since the sale of the different controlled substances was
consummated simultaneously in one transaction, his conduct does not constitute two separate
offenses for which he may be charged. We disagree.
[Headnotes 1, 2]
The sale of heroin and the sale of cocaine are distinct offenses requiring separate and
different proof. See People v. Edwards, 362 N.E.2d 439 (Ill.App. 1977); People v. Lopez, 337
P.2d 570 (Cal.App. 1959). Here the record shows that two distinct offenses were [probably]
committed since the sale of each controlled substance requires proof of an additional fact
which the other does not,' viz., the particular . . . identity of the controlled substance sold.
State v. Campbell, 549 S.W.2d 952, 955 (Tenn. 1977). See also, State v. Adams, 364 A.2d
1237 (Del.Super.Ct. 1976).
Affirmed.
____________
93 Nev. 687, 687 (1977) Laird v. Laird
EARL TRUMAN LAIRD, Jr., Appellant, v. NINA
FAYE LAIRD, Respondent.
No. 9127
December 30, 1977 572 P.2d 543
Appeal from order modifying decree of divorce, First Judicial District Court, Carson City;
Frank B. Gregory, Judge.
Father brought action to modify divorce decree. The district court refused to consider
request to have mother contribute to the support of the children, and the father appealed
contending that, as a matter of law, it is mandatory for the mother to contribute to the
children's support if they are not in her custody. The Supreme Court held that it is not
mandatory for a mother to contribute to the children's support if they are not in her custody.
Affirmed.
93 Nev. 687, 688 (1977) Laird v. Laird
Michael R. Griffin, Carson City, for Appellant.
Stokes & Shaw and Scott J. Heaton, Carson City, for Respondent.
1. Parent and Child.
It is not mandatory for a mother to contribute to the children's support if they are not in her custody.
The trial court has discretionary powers in providing for child support.
The trial court's award of support for a minor child will not be disturbed unless there is a clear case of
abuse of discretion.
OPINION
Per Curiam:
[Headnote 1]
In a proceeding to modify a divorce decree, custody of the parties' two minor children was
awarded to the father; however, the court refused to consider his request to have the mother
contribute to the support of the children. In this appeal the father contends that, as a matter of
law, it is mandatory for the mother to contribute to the children's support if they are not in her
custody. We disagree.
[Headnotes 2, 3]
We have not been directed to nor have we been able to find any authority in support of
appellant's contention. On the contrary, [t]he trial court in providing for child support, [does]
so in exercise of discretionary powers conferred upon it by NRS 125.140(1). Buchanan v.
Buchanan, 90 Nev. 209, 211, 523 P.2d 1, 2 (1974). The exercise of discretion, by the trial
court, in awarding support for a minor child, will not be disturbed unless there is a clear case
of abuse. Fenkell v. Fenkell, 86 Nev. 397, 400, 469 P.2d 701, 703 (1970). After reviewing
the record, we perceive no abuse of discretion by the trial court in concluding no special
circumstances were shown which would justify a consideration of [the husband's] request.
. . . Accordingly, we affirm.
____________
93 Nev. 689, 689 (1977) Streitenberger v. Sheriff
MONIQUE RENEE STREITENBERGER, Appellant, v. SHERIFF,
No. 10361
December 30, 1977 572 P.2d 931
Defendant charged with leaving the scene of an accident filed pretrial petition for writ of
habeas corpus. The district court denied petition, and defendant appealed. The Supreme Court
held that continuance of preliminary examination was improperly granted where prosecution
failed to offer legal reasons for its failure to subpoena a necessary witness and rested its case
without having presented sufficient evidence to establish that defendant had probably
committed the crime charged.
[Rehearing denied January 25, 1978]
Mills, Galliher & Lukens, Las Vegas, for Appellant.
Criminal Law.
Continuance of preliminary examination was improperly granted where prosecution failed to offer legal
reasons for its failure to subpoena a necessary witness and rested its case without having presented
sufficient evidence to establish that defendant had probably committed the crime charged.
OPINION
Per Curiam:
Appellant duly and timely appeared in a magistrate's court in Las Vegas for a scheduled
preliminary examination. The prosecution did not subpoena a necessary witness and rested its
case without having presented sufficient evidence to establish that appellant had probably
committed the charged offense (leaving the scene of an accident, NRS 484.219).
The magistrate denied appellant's motion to dismiss the charge and, sua sponte, gave the
deputy district attorney a several hour continuance to come up with a "Hill" affidavit {Hill
v. Sheriff, S5 Nev. 234, 452 P.2d 91S {1969)), or to offer a "Bustos" declaration {Bustos v.
Sheriff, S7 Nev. 622
93 Nev. 689, 690 (1977) Streitenberger v. Sheriff
charge and, sua sponte, gave the deputy district attorney a several hour continuance to come
up with a Hill affidavit (Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918 (1969)), or to offer a
Bustos declaration (Bustos v. Sheriff, 87 Nev. 622, 491 P.2d 1279 (1971)). The prosecuting
attorney did neither. Nevertheless, the magistrate declined to dismiss the case and granted a
continuance. Appellant sought habeas and has appealed from the order denying the requested
relief.
In a case involving remarkably similar facts, we said that where, as here, the prosecutor
offered no legal reason for his failure to arrange for the appearance of the necessary witness
and to have been prepared to go forward with the preliminary examination[,] that [t]he
magistrate should not have granted the continuance; . . . Salas v. Sheriff, 91 Nev. 802, 804,
543 P.2d 1343, 1344 (1975). Accordingly, we reverse and remand this case to the district
court with instructions to grant the petition for the writ of habeas corpus.
____________
93 Nev. 691, 691 (1977) Special Session
A SPECIAL SESSION
of the
SUPREME COURT
of the
STATE OF NEVADA
Monday, May 2, 1977
SPECIAL SESSION OF SUPREME COURT
Monday, May 2, 1977
A special session of the Supreme Court of the State of Nevada, commencing at 2:15 p.m.,
Monday, May 2, 1977.
Present: Justice Mowbray (presiding), Justices Thompson and Gunderson; Governor Mike
O'Callaghan; Members of the State Judiciary; Representatives of Nevada's Congressional
Delegation; Members of the State Bar of Nevada, Officers of the Court; Relatives and Friends
of Justice Manoukian.
Chief Justice Batjer was unavoidably absent due to the serious illness of his sister, and he
had requested Justice Mowbray to preside at this ceremony.
____________
Mowbray, J.:
Please be seated.
Good afternoon, Ladies and Gentlemen. We are gathered here to witness the admission of
Judge Noel Manoukian as an Associate Justice of the Supreme Court of Nevada. Regrettably,
I must announce that our Chief Justice, Cameron Batjer, cannot be present. His unavoidable
absence is due to the serious illness of his sister, and he was called to her bedside Friday
afternoon last. He asked me to preside at this ceremony and to convey to Judge Manoukian
his congratulations and to extend to him a warm personal welcome to this bench.
This afternoon, we have to my right Mr. Justice Thompson and Mr. Justice Gunderson
and, of course, the designate, Mr. Justice Manoukian, and his mother, Mrs. Rose Manoukian,
who made all this possible. As I saw them in there and they were taking some pictures, I
didn't know whether I was going to swear in Mrs. Manoukian this afternoon or her son.
We are especially honored this afternoon by the presence of His Excellency the Governor
of Nevada and our First Lady. Governor Mike O'Callaghan, will you please extend to Justice
Manoukian the greetings of the People of Nevada.
Governor Mike O'Callaghan:
Judge Manoukian and your beautiful mother, I believe that there is no doubt that the
greatest responsibility and the highest honor that the Governor has is to appoint a member of
the Supreme Court of this StateI know of no other office.
You take for granted when you make such an appointment that the person being appointed
has a great knowledge of the law, you take for granted that because he has sat on the
bench that he has high integrity, but there are a few things that you must look at when
selecting a person for this high honor and that is does that person have leadership ability
and does he know, or does she know, what hard work is, do they understand the work
ethic.
law, you take for granted that because he has sat on the bench that he has high integrity, but
there are a few things that you must look at when selecting a person for this high honor and
that is does that person have leadership ability and does he know, or does she know, what
hard work is, do they understand the work ethic. And I have to ask these questions. There is
no doubt that Noel Manoukian understands had work and he has demonstrated leadership for
many years here in the State as a public servant. He went through the tragedy of working with
me directly, and that is a tragedy believe me, a few sessions ago at the legislature. I am not
easy to work for, but long hours and hard work didn't bother Judge Manoukian. Later when
going on the bench, he has become known throughout the State for his hard work, and not
only his hard work, but the ability to make decisions that lead the field in law, the courage to
make decisions which are leadership decisions, something that is necessary in any branch of
government and often forgotten when we look at the judiciary, but really, ladies and
gentlemen, that's where leadership is needed, and that's where hard work is. So, representing
the people of this State, Judge Manoukian, I feel honored to be here with you and your
mother and the entire family. Perhaps it is the same family unit which is the source of your
strength, your integrity and your intellectual honesty, perhaps it is the strong bond that shaped
your personality and made you an ideal symbol of excellence as a practitioner of law, perhaps
it is the same family unity that will make you a faithful guardian of the public interest and the
public trust. So, I not only welcome you to the Supreme Court of this great State, but I
welcome with you a fine family as an example for the rest of the State.
Thank you very much.
[Governor Mike O'Callaghan concludes.]
Mowbray, J.:
Thank you, Governor O'Callaghan.
Also present this afternoon is a friend of the Manoukian family, the Honorable Jon
Collins. Judge Collins has served as a district judge and later he was appointed to this court
where he eventually became a chief justice. He has moved on now to greener pastures, and is
a member of a law firm of Lionel Sawyer and Collins. Justice Collins.
Mr. Jon R. Collins:
Mr. Justice Mowbray, Governor O'Callaghan, Members of the Court and soon-to-be Mr.
Justice Manoukian.
It is indeed with great honor and pleasure I appear before this court on this solemn, but
happy occasion. On May 5th, 1966, I sat where Noel Manoukian sits today being sworn in as
a member of the Supreme Court of Nevada. At that time, there were but three members of
this court, Mr. Justice Thompson, who was then the chief justice; Mr. Justice Zenoff from
Clark County and myself constituted the three members of this court. Later, of course, the
legislature increased the court to five members. We were jointed by Chief Justice Batjer and
by Mr. Justice Mowbray, both excellent additions to the court. I had the pleasure of serving
with those gentlemen for nearly five years. And, I also note with affection, Mr. Justice
Gunderson, successor to my seat on this court. I bring greetings to all of you from one who
formerly gave orders and now one who gets orders. The change is soul-shaking.
Mr. Justice Manoukian is a young man who comes to this court with an excellent personal
and legal background. He graduated from the local schools in Reno and later from College of
the Pacific and from Santa Clara Law School. Following the physical and humanistic prowess
of the other members of his family, he played football and excelled in academic and student
affairs at his various schools. He immediately launched into a fine legal career by serving as
law clerk to my long-time, dear friend and now deceased, Judge Thomas Craven of Reno, and
also for Judge John Barrett, who still sits on that court. Judge Craven spoke before this very
court on my behalf in May of 1966. I could do no less to honor his law clerk, who has risen so
high.
Noel Manoukian later served as deputy district attorney for Douglas County and practiced
law with his brother, Milton, and by himself in Carson City and in Douglas County. He has
served the people of his community well as Chairman of the Nevada Division of the
American Cancer Society. He learned the politics of our State by personal participation in
many rough and tough political events, ending up with more friends than he ever lost. He has
served on several local, state and national advisory commissions.
On December 19, 1973, when but 35 years of age, he was appointed by Governor Mike
O'Callaghan as a district judge to succeed my old friend, Richard L. Waters, who died. He
then served with another of my friends, Judge Frank Gregory, who is here today, until that
judicial district was divided, when he became a single judge in a multi-district court for the
Counties of Douglas and Lyon. He participated in many civil and criminal trials during his
career as a trial lawyer, and since becoming a trial judge has written several opinions,
which have been upheld by this very court of which he is now about to become a member.
since becoming a trial judge has written several opinions, which have been upheld by this
very court of which he is now about to become a member.
I note in the courtroom today his dear mother, Rose, and I know how happy his deceased
father, Hagop (Jack), would have been had he been able to be here to see his youngest son
become a member of this august body. I note the presence of his wife, Louise, and several
other members of his family in the court, all of whose hearts are busting with pride and joy to
see their young husband and brother ascend to the highest court in the State of Nevada.
Needless to say, the people of the State of Nevada need men of the caliber of Noel
Manoukian. I remember the words of Charles Evans Hughes, Chief Justice of the United
States, who said, You cannot maintain democratic institutions by mere forms of words or by
occasional patriotic bows. You maintain them by making the institutions of a republic work
as they are intended to work. This is the type of fervor, ability, loyalty and devotion Noel
Manoukian will bring to this court. I note by recent constitutional amendments the judicial
system of Nevada has been revised. I am sure that such revisions will allow the people of this
State to gain additional confidence in their courts. I am reminded of the words of Chief
Justice Warren Burger when he stated to a meeting of the American Bar Association in St.
Louis, which I attended, as follows: A sense of confidence in the courts is essential to
maintain the fabric of ordered liberty for a free people, three things could destroy that
confidence and do incalculable damage to society: First, that people come to believe that an
inefficiency and a delay will drain every just judgment of its value; that people who have long
been exploited in the smaller transactions of daily life come to believe that courts cannot
vindicate their legal rights from fraud and overreaching, and that people come to believe the
lawin the larger sensecannot fulfill its primary function to protect them and their families
and their homes, at their work and on the public streets. Justice Burger said, I have great
confidence in our basic system in its foundations, in the dedicated judges and others of the
judicial system, and in the lawyers of America. Continuity with change is the genius of the
American system, and both are essential to fulfill the promise of equal justice under law.
I know that this court, with the able and dedicated services of Noel Manoukian, will
achieve on behalf of the people of Nevada those noble and lofty ideals expressed by Chief
Justice Burger.
Mr. Justice Manoukian, on behalf of the people and the lawyers of this State, I
congratulate you and welcome you as a member of the Supreme Court of Nevada.
[Mr. Jon R. Collins concludes.]
Mowbray, J.:
Thank you, Judge Collins.
Speaking for the district judges is another dear friend of the Manoukian family, District
Judge Peter Breen. Judge Breen enjoys the distinction of being a third-generation district
judge, following in the footsteps of his father and grandfather who served well the people of
Nevada during their tenures on the bench. We welcome Judge Breen.
Peter I. Breen, D. J.:
Mrs. Manoukian, Louise, Governor O'Callaghan, Members of the Supreme Court, and
friends and loved ones of Judge Noel Manoukian.
I am grateful to have had the opportunity to address this gathering today, partly because
Noel is my friend, and I am happy to share in his pleasure, and partly because he and I have
done many things together. He and I were in law school together at the University of Santa
Clara, and on the day that I was sworn in as a district judge in the Second Judicial District, he
was sworn in as a district judge in the Ninth Judicial District of this State. So, I have known
him for a long time. I have known him personally and I've known how he acts and how he
thinks when other people aren't looking. And I think it is worthwhile that I might share this
with some of you who perhaps have only known him as a judge and as an attorney, so that
you may understand your justice better.
As Justice Collins, the former Justice Collins, has told you Noel attended high school in
Nevada, in Reno, Nevada, graduating from Reno in 1956, the same year that I graduated from
Tonopah High School, and he distinguished himself as an excellent football player. He won
some kind of special honors as a football player and a scholarship to go to college. It sort of
reminds you of other famous people who have also, before achieving notoriety and fame,
distinguished themselves as football players. The example of former President Ford comes to
mind, but before you have any concern I want to assure you that unlike what you may have
heard, Noel did not play any of his games without a football helmethe might have played a
few without a face mask.
He went on to the College of Pacific and studied philosophy. Now, I didn't know Noel at
the time he was in college, and I don't know too many people who did know him while he
was attending college, but it was said by sort of a philosopher himself named Earl
Nightingale, "Let me know what a man does in his free time and I'll tell you what kind of
a man he is.
Now, I didn't know Noel at the time he was in college, and I don't know too many people who
did know him while he was attending college, but it was said by sort of a philosopher himself
named Earl Nightingale, Let me know what a man does in his free time and I'll tell you what
kind of a man he is. You worry about what he does at work and I'll examine him in his spare
time. Well, as I said, I didn't know him while he was attending the University of the Pacific,
but I did know him when he was in law school, and if he did the same things at the University
of Pacific that he did in law school, I wouldn't tell you anyway. There may even be some
self-incrimination involved.
I'll tell you what kind of a student he was though. I never saw a person who attacked the
law so diligently, who studied so hard, not just to pass the test to get his license to practice
law, but to know the law and to understand it for a lifetime and the, of course, the rest of the
story is well known to most of you in this room and he now becomes a member of the
Supreme Court and particularly under the unified court system, becomes my superior in a
sense. So what can you expect of him, what kind of a man will he be like? Well, as I was
preparing for this speech, I ran across a quotation from the classics while I was reading a
Supreme Court decision. It wasn't a Nevada Supreme Court decision either, but it was a
quotation from Shakespeare's Macbeth. If you remember the story, Macbeth had murdered the
king and then had murdered some of the king's helpers, his grooms, to cover up the crime,
and he was being asked by Macduff, Why did you do this, why did you kill these attendants
to the king? And he said plausibly, Who can be wise, amazed, temperate, curious, loyal,
and neutral in a moment? No man. Of course, he was talking about the good qualities in us
ordinary men and how they sometimes cannot suppress other characteristics, but I can tell you
this about your justice: he is disciplined, yet he is garrulous; he is aggressive and
compassionate; he is intelligent, but he has humility; he is honest and he is virtuous and,
unlike our poor character Macbeth, he is all of these things all the time.
I can't miss this opportunity to close with a bit of philosophy myself, and I have made a
composition of my own which I, without apology, recite alongside of the Shakespeare I have
just quoted to you: My friend, Noel, I wish you well as you ascend to the supreme court, may
your term be long, may your heart stay strong and may justice be your forte, but from your
friend who remains I cry out this refrain that your opinions be wise but short.
friend who remains I cry out this refrain that your opinions be wise but short.
[Peter I. Breen, D. J., concludes.]
Mowbray, J.:
Thank you, Judge Breen. Excellent.
Next, we shall call on the distinguished President of the State Bar, and one of Nevada's
most esteemed attorneys, a gentleman who enjoys not only the respect of the bar, as
exemplified by his presidency of the association, but of the courts as well, Mr. Leo Puccinelli.
Mr. Puccinelli.
Mr. Leo Puccinelli:
Mr. Justice Mowbray, other members of this distinguished court, Governor O'Callaghan,
Mrs. Manoukian and, of course, Judge Manoukian, friends and family. I have noted that all
the previous speakers here all came prepared with a written speech, and I am going a cappella
with mine, if you don't mind. But before getting into anything a little more serious, I would
like to say that a funny thing happened to me on the way to the Supreme Court this afternoon.
I ran into Governor O'Callaghan and he wanted to know what the situation was with the water
up in Elko and I told him that it was very serious, we are very dry over there and he said,
Well, do you realize how dry it is down here? and I said, No, I haven't the slightest idea.
He said, Well, yesterday morning I observed two trees fighting over a dog.
You know before extending congratulations to you, Judge Manoukian, I think we should
extend a few congratulations to the State Bar of Nevada, because I thing fundamentally you'll
find that the State Bar of Nevada is in a great deal responsible for this occasion today. I speak
first of all with the idea that a few years ago in conjunction with the American Judicature
Society the State Bar of Nevada sponsored meetings throughout the State in which, at that
time, we were trying to install the so-called Missouri System of the appointment of judges.
The voters of our State in their infinite wisdom did not go along with us, but the State Bar of
Nevada did not give up at that point. They said if we can't have a whole loaf, then a half a loaf
will do, and you'll find that the State Bar of Nevada was behind the recent constitutional
changes that found the creation of the Judicial Selection Commission, and the fact that the
end product of the first use of that system should result in the man of the caliber of Noel
Manoukian justifies the expense, the time and the effort that the State Bar of Nevada put
into getting that system enacted and made a part of our constitution, and certainly it
speaks well of that same system when his replacement on the district bench is a man of
the caliber of Howard McKibben.
justifies the expense, the time and the effort that the State Bar of Nevada put into getting that
system enacted and made a part of our constitution, and certainly it speaks well of that same
system when his replacement on the district bench is a man of the caliber of Howard
McKibben. So, I think that the Supreme Court is the beneficiary of the hard work and the
effort of the State Bar of Nevada.
Now, speaking a little more on a personal basis, in addition to being the current president
of the State Bar of Nevada I am also a member of the Crime Commission and am the
chairman of the Small County Allocation Committee which is a part of that commission.
Judge Manoukian, until last Friday, because that's when your resignation was accepted, had
been the vice chairman of the Small County Allocation Committee. We served together on
that committee for over a year, we met from time to time and, of course, I had known Judge
Manoukian for many years before, but I got to know him infinitely better at that time. And, as
you know, whenever there is federal monies or state monies available, everybody has his
hand out and everybody is clamoring to get it. Judge Manoukian had some pet projects of his
own, and being in on the ground floor, in effect, he could have grabbed it all, or at least the
lion's share, but that is not the character of this man. This man is always motivated by a sense
of fair play and compassion. So even though he could have grabbed off a lot of the monies for
projects of his own, or in Douglas County, he would not do so. And, this is the caliber of the
man you are now seeing going on to the highest court of this State.
From the State Bar of Nevada, Judge Manoukian, I extend to you our sincere
congratulations, and certainly you are deserving of the honor which is being extended to you
today. I know that if you will retain the sense of fair play and compassion that you have
shown throughout the years, that you will have a long and distinguished career on this bench.
The people of Nevada are the recipients of one of the men of the highest caliber that
anywhere could be found. And once again, Judge Manoukian, my sincere congratulations, not
only from myself but from the entire State Bar of Nevada. Thank you.
[Mr. Puccinelli concludes.]
Mowbray, J.:
Thank you, Mr. Puccinelli.
Judge-designate, Howard McKibben, who succeeds Judge Manoukian on the district court
bench, will speak on behalf of the citizenry of Douglas County.
of the citizenry of Douglas County. Judge McKibben has been a prominent member of the
State Bar of Nevada and has served his people well in his office as District Attorney of
Douglas County. We welcome you, Judge McKibben, to the trial bench, and we wish you a
very long and successful tenure as a judge.
Mr. Howard D. McKibben:
Thank you very much, Justice Mowbray, all Justices, Governor O'Callaghan, Judge
Manoukian, Mrs. Manoukian, the Manoukian family and all the friends that are here. I think
it's a great testimonial to you, Judge Manoukian, to see all the people that are here today, out
in the halls, here, packed in every corridor. It's a great reflection on what you have done over
the years here in the State of Nevada.
I am very pleased to have been asked by Judge Manoukian to come here today and say a
few remarks, and he underscored the word few, and as his good friend, Pete Breen, reminded
us here today, I reminded him that in looking at some of his opinions, that he is perhaps not
the foremost expert on how to say things in a capsule form.
Indeed though, I am very pleased to be here, Judge Manoukian, and to honor you on behalf
of the bar association of the Ninth Judicial District. This, I think, is a particularly memorable
day for the people in the Ninth Judicial District and in Douglas County. Justice Zenoff, who
served so well the State Bar in Nevada and as a justice of this high court, came from Douglas
County. Judge Manoukian who succeeds him also comes from Douglas County, and we are
particularly proud of both of these individuals. We are all keenly aware of the fact that the
effective and efficient administration of justice depends upon the quality of our judges and
particularly those who sit on this high court in these distinguished chambers. We, in our
State, are very fortunate to have had such an exceptionally qualified man as Justice Zenoff
contribute to our judicial system as a Justice of the Nevada Supreme Court. We are equally
fortunate today to be honoring his replacement, Judge Noel Manoukian. As all of his friends
and associates and colleagues know, Noel will bring to this court a unique capacity for giving
untiring and unselfish service to the advancement of our judicial system. During his years as a
district judge in Douglas County and Lyon County, he earned and commanded the respect and
admiration of the members of the bar, of the bench and of all of the people he served in our
communities.
He commanded that respect because of his well-reasoned opinions and his dedication to the
fair administration of justice and that's what our system is all about. And over these years
those of us who have worked with and know Noel know that he was never too busy to
provide advice and counsel to those of us who were frequently asking for his advice. I can
remember when I came to Nevada in 1967, and knew Milt, his brother, and Noel, and both of
them were always very willing to sit down with me as a new member of the bar and give me
advice and counsel when I would ask for it and that means a lot to the young attorneys, and
when you have people that are dedicated like that and willing to assist, your young attorneys
are going to come on and do a fine job in the State Bar.
I have personally observed the long hours which Noel worked, and it was nothing for him
to work sixteen hours a day or more in his office working on an opinion, preparing the district
court rules or preparing for a trial. I would leave my office sometime at the courthouse in
Douglas County at ten o'clock at night and his light would still be on. I'd get to my office at a
quarter to seven or six-thirty in the morning and he'd already be there. It was a race to see
which one of us could be first and which one of us could be last and he usually won.
In his deliberations, Judge Manoukian demonstrated the courage and scholarly competence
so essential to the members of the judiciary. And when we reflect on these attributes we
realize how fortunate the people of this great State are to have your presence, Judge
Manoukian, on this Supreme Court.
We, in the Ninth Judicial District, wish you much happiness in your role as a Justice of the
Nevada Supreme Court, and we know without fail that the residents of this great State of
Nevada will always be well served by your commitment to excellence in public service.
Congratulations, good luck and Godspeed. Thank you.
[Mr. McKibben concludes.]
Mowbray, J.:
Thank you, Judge McKibben.
Finally, we welcome Mr. Clayton Phillips of Reno, who will speak to us. Mr. Phillips is a
graduate of the University of Nevada, he was a special agent of the Federal Bureau of
Investigation and later served with distinction as Chief of Police of the City of Reno. He has
served his State well in many capacities, including the chairmanship of the State Parole
Board. We welcome you, Mr. Phillips.
Mr. Clayton Phillips:
Governor O'Callaghan, may it please this Honorable Court, ladies and gentlemen, and
particularly those members of the family with whom Judge Manoukian is sharing this, I think
his most shining hour.
I was asked to contribute today as a layman, and as a layman I certainly have no intention
of going into the technical aspects of the practice of law or the courts themselves. My old
friend, Judge Badt, once said, I think I can safely say there are few, if any, laymen who,
unless they have made a study of the bar and a study of the matter, have any conception of an
appellate court of last resort. Quite naturally ruling that out and knowing myself, I began to
wonder what I might say. I have learned in the past that sometimes the letters in a man's name
reflect his personality and aptly describe him in many ways, and so I have taken the name,
Noel Manoukian, and in support of what I have just said these are the results:
NHe is new, and I know that he will add a freshness to this court.
OHe is outgoing, he is friendly and concerned.
EHe is experiencedjust recently one of our district judges.
LHe is learned in the law, and also in the human problems of life.
MHe is manly, and we all know that his moral values are most high.
AHe's able, and time and time again we know he has proven that.
NHe is noble in purpose.
OHe is original. He is also independent in both personal and professional life.
UHe is understanding.
KHe is kind, and again knowledgeable in the law.
IIntegrityone of his greatest assets.
AHe is alive, action is the word for Noel. His very actions, I am sure, will instill in
the public a respect for our courts.
Last but not least,
NHe is a Nevadan. He is a dyed-in-the-wool true Nevadan, and I know that he is
going to give the state a full measure of his dedication.
As a wrap-up, as a judge, or justice, I know that he will be
JJust.
UUnbiased.
DDistinguished.
GA gentleman.
EExceptional.
All of these letters if you will notice are on the plus side, and now I want to offer my
congratulations, Nono, I am proud of you, your friends are proud of you, your family is proud
of you and may God bless you and may you enjoy a long and illustrious career on this court.
[Mr. Phillips concludes.]
Mowbray, J.:
Thank you, Mr. Phillips, for those excellent remarks. They are very fine.
We have may dignitaries with us this afternoon and we would like just briefly to
acknowledge their presence.
[The assemblage acknowledged each dignitary by applause as there were respectively
introduced.]
Lt. Governor Rose, will you stand. Speaker Dini. Attorney General List. Secretary of State
Swackhamer. Controller McGowan. Treasurer Mirabelli. Representing Carson City the
Mayor, Harold Jacobsen. Representing Santa Clara School of Law, Dean Alexander.
Representing McGeorge Law School is Dean Schaber. Representing the National Judicial
College is Dean Ernst John Watts. We have a number of the Board of Governors here, but
they are represented through their President, Mr. Puccinelli, so we will move on. We have the
Federal Bankruptcy Judge, Bert Goldwater here with us. On the national level we have
Senator Bible. And representing the congressional delegation, Miss Betty Beyer, representing
Senator Cannon; Bill Sinnott, representing Senator Laxalt; Lynn Atcheson, representing
Congressman Santini. In that connection, Betty Beyer gave me a wire that she asked me to
read from Senator Cannon which I shall read into the record: Honorable Cameron M. Batjer,
Chief Justice, Supreme Court. I am delighted with the well deserved and professionally
justified appointment of my good friend, Noel Manoukian, to the high court in Nevada. I
know that his service will bring great satisfaction and personal fulfillment to him, to his
family and to the host of Nevada friends who join in applauding this very merited
recognition.
merited recognition. Howard W. Cannon, United States Senator. We have Keith Hayes here,
district judge, representing the southern judiciary. And we have other district judges: Frank
Gregory, representing this district; District Judge Stan Smart: District Judge Grant Bowen
and District Judge John Barrett from Washoe County. Where is John, is he here?
Thompson, J.:
He is in the other room.
Mowbray, J.:
I see. Thank you.
That takes care of that. NowI really didn't mean that D.Js. We love you. The district
judges are really the judges that serve at the grass roots, and I was one of them for many years
and I respect them tremendously. They are close to the people.
Chief Justice Batjer asked that I remind our gathering that we celebrate law day. May 1 is
the traditional day for honoring the rule of law, which we hold so sacred throughout America.
Since the date fell on Sunday, yesterday, the day is recognized today. May 1 is also celebrated
as May Day in the totalitarian countries behind the Iron Curtain. There, the day is celebrated
with a great showing of armed strength in the form of parades and other spectacles focusing
on the might of the state over the individual citizen. What a contrast to our way of life, where
the individual is supreme!
Just above this bench, inscribed in the wall, is the second paragraph of the Declaration of
Independence. It reads: We hold these truths to be self-evident; that all men are created
equal; that they are endowed by their Creator with certain inalienable rights; that among these
are life, liberty, and the pursuit of happiness. This paragraph is the very predicate upon
which our government was founded. There, our founding fathers acknowledged that there are
self-evident truths that need not be proved; that all men are created and that they are created
equal; not necessarily the same; we're all different with different qualities of mind and body.
If we were all equal, we'd starve to death. The sum of our differences into the trades and the
crafts and our businesses and professions adds up to civilization; that is actually how we are
fed and clothed. Me are endowed by their Creator with certain rights, human rights, of life
and liberty. God gave us life and, as Jefferson said, he gave us liberty at the same time, and
the important thing to remember, is that government has not a thing to do with these
rights except to preserve them.
thing to remember, is that government has not a thing to do with these rights except to
preserve them. And this is the anti-thesis of the philosophy of the totalitarian governments.
Mankind is found with these rights, as Jefferson said, when he is born. You might say that
government is man's agent for the protection of these gifts. This court is part of government,
so it is fitting that the installation today of Mr. Justice Manoukian on this court has coincided
with Law Day.
It shall now be my pleasure to administer the oath of office to the new justice. Judge
Manoukian will you rise, please. [Whereupon Judge Noel E. Manoukian rises and Justice
Mowbray administers the Oath of Office.]
Mowbray, J.:
Congratulations.
Manoukian, J.:
Thank you, Justice Mowbray.
Mowbray, J.:
Mr. Justice Manoukian, speaking for the court, I congratulate you and extend a very warm
welcome. We all are honored and delighted to be associated with you. The courts' work is
difficult and important, and the responsibility is great. Together, it shall be our sincere
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 the
court that this proceeding be transcribed, spread upon the minutes of the court, published in
the 1977 volume of the Nevada Reports, and certified copies delivered to the family of Mr.
Justice Manoukian.
I have been asked to announce that immediately following this ceremony Milton
Manoukian and his wife, Lorraine, and Justice Gunderson and his wife, Lupe, are hosting a
reception in honor of Justice Manoukian at the Leisure Hour Club, 109 North Division Street.
Everyone is invited to attend the reception.
There being no further business this afternoon, the court is adjourned. Thank you all for
coming.
[Whereupon the Special Session of the Supreme Court was adjourned at 3 p.m.]
Joan Mariani, Court Reporter
____________
93 Nev. 707, 707 (1977) Opening Ceremony, Las Vegas, Nevada
OPENING CEREMONY
NEVADA SUPREME
COURT
November 7, 19779:15 a.m.
CITY COMMISSION
CHAMBER
Las Vegas City Hall
Las Vegas, Nevada
Bailiff:
The Supreme Court of the State of Nevada is now in session.
Mr. Chief Justice Batjer:
Good morning, Ladies and Gentlemen. As a result of the amendment to Section 7 of
Article 6 of the Constitution of the State of Nevada, the Supreme Court of the State of
Nevada is hearing oral arguments here in the City of Las Vegas, Clark County, Nevada. This
is certainly a historical occasion; the first time that the Supreme Court has been authorized to
hear oral arguments outside of the capital city.
At this time I would like to welcome the district judges who are present, the municipal
judges as well as the justices of the peace from Southern Nevada. Also the state officials and
officers of Clark County, Nevada, and the officers of the City of Las Vegas.
Now I would like to introduce the members of the court: The Honorable Justice Gordon
Thompson recently had surgery and was not able to sit with us, and by reason of a
constitutional amendment, we are able to recall retired justices of this court, and so it is my
privilege to introduce Justice David Zenoff, a Senior Justice, who is on my immediate left.
court, and so it is my privilege to introduce Justice David Zenoff, a Senior Justice, who is on
my immediate left. Sitting left of Justice Zenoff is Justice Noel Manoukian. On my
immediate right is Justice John Mowbray and sitting to his right is Justice E. M. (Al)
Gunderson.
We appreciate the fact that the people here in Southern Nevada have taken their time to be
here this morning, and also certain officials to make some presentations. And at this time, it is
my pleasure to call upon Mayor William H. Briare of the City of Las Vegas to say a few
words.
Mayor William H. Briare:
Thank you very much, Mr. Chief Justice. Honorable members of the Supreme Court,
Ladies and Gentlemen: On behalf of the members of the Las Vegas City Commission, I
would like to first of all turn on my microphone. I think I know how to work this. At least I
hope that it's working.
Our plaque to be presented to you Mr. Chief Justice reads: City of Las Vegas presented to
The Nevada Supreme Court by the Citizens of the City of Las Vegas in recognition of the
historical event whereby the Supreme Court heard its first oral argument at a place other than
the Sate Capital and for this purpose chose the City Commission Chambers of the City of Las
Vegas. Presented to the Chief Justice and the distinguished Members of the Supreme Court of
the sovereign State of Nevada this 7th day of November, 1977. And it is signed by myself as
Mayor of the City, Paul J. Christensen, Commissioner, Ron Lurie, Commissioner, Myron
Leavitte, Commissioner, and Roy Woofter, Commissioner. So, Mr. Chief Justice I present
that to you, and while you are standing I would like to also present something to the Supreme
Court which not only because we recently celebrated the 113th birthday of the State of
Nevada, and we certainly qualify as being certainly one of the most prominent of western
states, and furthermore, because we feel that no self-respecting court in one of those western
states should be without one, we are happy to present to you and to the members for their use
something that every court should have. (A brass spittoon.) Of course, Mr. Chief Justice it is
suitably inscribed, and it is inscribed salus populi suprema lex esto. Now, for all of the
attorneys that understand Latin, it simply means that the safety of the people is above the law,
therefore, we admonish everyone that appears before your Honorable Court to not spit on the
floor, we don't want anybody to slip or fall. So, Mr. Chief Justice we are delighted you are
here.
Thank you, Mayor Briare. Ladies and gentlemen, we will find an appropriate place for
both of these trophies.
It is now my privilege to call upon Thalia Dondero, Chairperson of the Clark County
Commission, to make a presentation. Ms. Dondero.
Ms. Thalia M. Dondero:
Good morning, and from the Clark County residents we truly appreciate the Supreme
Court meeting in Southern Nevada, and we have a proclamation of the Clark County
Commissioners for you and it states: Whereas, on November 7, 1977 the Nevada Supreme
Court will begin its first session in Clark County; and
Whereas, this will be the first time the State Supreme Court has met outside of the seat of
government since its first meeting as a State Supreme Court on January 1, 1865; and
Whereas, this session will make cases involving Clark County more accessible to those
involved; and
Whereas, this is a welcome recognition of the need to provide Clark County residents
with direct access to their state government.
Now, Therefore, I, Thalia M. Dondero, do hereby proclaim November 7, 1977 as Nevada
Supreme Court Day in Clark County and do extend the best wishes of the residents of Clark
County to the Justices and staff of the Nevada State Supreme Court on this historic occasion.
And we have one of these for each of the Justices. And I thank you very much.
Thank you, Ms. Dondero, and thank you ladies and gentlemen of Clark County for having
such a wonderful and lovely chairperson to present this to us.
Now at this time it is my pleasure to call upon George A. Cromer, President of the Clark
County Bar Association, to make a presentation. Mr. Cromer.
Mr. George A. Cromer:
Thank you, Chief Justice Batjer. On behalf of the judges, the lawyers of the County of
Clark and on behalf of the Clark County Bar Association, I would like to present to the
Supreme Court this pen set in commemoration of the first oral argument by the Nevada
Supreme Court in Clark County, Nevada. For the lawyers of this community it is indeed a
historic event, and we welcome you here, and we hope to see you here many times in the
future.
the lawyers of this community it is indeed a historic event, and we welcome you here, and we
hope to see you here many times in the future. Thank you very much.
Thank you, Mr. Cromer and thank you members of the Bar Association of Clark County,
Nevada, for this lovely pen set. I have never had so many presents.
It is not my pleasure to call upon Loyal Robert Hibbs, President of the Nevada State Bar
Association, to make a presentation. Mr. Hibbs.
Mr. Loyal Robert Hibbs:
May it pleas the court, members of the judiciary, fellow attorneys and guests: I speak on
behalf of the State Bar of Nevada, and I also rise to speak for Mr. McClinton, who could not
be with us today. In the 1863-64 debates about the Nevada Constitution there was a
movement to have a section in the constitution which would provide that the Supreme Court
would sit alternately in the county seats of the various counties. At that time, in 1864, the
following remarks were made by Mr. McClinton. He said of the proposed constitution: I
hope this section will not be referred to a special committee, with the instructions proposed
by the gentleman from Storey (Mr. Chapin), for the reasons which have been urged by the
gentleman from Ormsby (Mr. Johnson) and for another reason, which is, that the lawyers and
the litigants who may have business to come before the Supreme Court, are parties whom we
certainly ought to require to wait upon the Supreme Court, rather than make the Supreme
Court wait upon them, at their own doors. That would be an infringement upon the dignity of
the court. I do not want to see so dignified a body as the Supreme Court of the State of
Nevada made by a constitutional provision nothing better than a band of Gypsies or nomads,
wandering about to every county seat in the State, and in some of which the population may
not exceed two or three hundred persons. I say if party litigants have cases to try, let them
bring those cases to the court and have them there tried, and do not let them ask that the court
shall be brought to them. Mr. McClinton is resting uneasily in his grave today, cursing the
fate which took him from us about 100 years ago so that he could not be here to present his
argument. The Nevada State Bar believes it only fair that Mr. McClinton's argument be
presented to the court as well as the State Bar's argument.
However, the State Bar respectfully disagrees with Mr.
McClinton. We are delighted that the Supreme Court has brought itself to the people. The
State Bar, in fact, appropriated and spent $5,000 to be certain that the constitutional
amendment would pass. That constitutional amendment makes this historic day possible. To
memorialize the occasion on behalf of the State Bar of Nevada I present to the Supreme Court
a specially engraved gavel to be used on this historic day. Thank you.
Thank you, Mr. Hibbs. And thanks to all of the members of the State Bar of Nevada for
their work, their efforts on behalf of the constitutional amendment and also for their fine
work. They are the real actors who will be performing here during the week that we are sitting
in Las Vegas.
And now I would like to call Assemblyman Tom Hickey forward to make a presentation to
him. Mr. Hickey was the assemblyman who introduced the resolution before the Nevada State
Legislature that eventually became an amendment to Section 7 of Article 6 of the
Constitution of the State of Nevada. Mr. Hickey, if you can find which way to get here. This
is quite a maze, I can see that we are well protected.
Tom, thank you very much for your efforts at the Legislature of the State of Nevada on
behalf of this particular constitutional amendment, and it is with great pleasure that I present
to you from the Supreme Court of the State of Nevada this gavel.
Mr. Thomas J. Hickey:
Just a few comments and maybe not original but you never know what knocking on a few
doors where it might lead you, and I have a particular place where I am going to place this so
that I can look at it every day, and it is one of the proudest moments of my life. Thank you
again.
Thank you, Mr. Hickey.
Because this is an extremely historical event, and certainly for the court and the court
system of the State of Nevada, I would like to at this time recognize Gary Roberts of the
Nevada Historical Society. Mr. Roberts, will you stand. Thank you and thank you for being
present.
We have another historical event taking place today, not only the filming of this opening
ceremony and these opening presentations being made to the Nevada Supreme Court, but
today we are also going to have filmed the argument in the first case commencing at
10:15 this morning, and so at this time I would like to recognize Bob Stoldal and his crew
from Channel S here in Las Vegas, Nevada.
today we are also going to have filmed the argument in the first case commencing at 10:15
this morning, and so at this time I would like to recognize Bob Stoldal and his crew from
Channel 8 here in Las Vegas, Nevada. Thank you very much.
I have been asked on a number of occasions what I thought, at least as Chief Justice of the
Supreme Court, about this particular amendment and this holding of our oral argument here
in Southern Nevada at least in a place away from the state capital, and I feel that probably at
the end of the week I'll be in a better position to answer that.
We'll be doing the same type of work here that we do in Carson City. We'll be hearing the
oral arguments of the lawyers presenting the case for their clients, and about the best thing
that I can think it will do for us, as members of the Supreme Court, is give us an opportunity
to come here to Southern Nevada and to meet with the people. In the past, we have not had
that opportunity, and I think we have been thought of as those old men in those black robes
up there in that ivory tower, and we hope we can get down here and meet some of you folks
on the various occasions we will now and in the future to be here.
And so at this time I will declare closed the opening ceremony of this very historical event
for the Nevada Supreme Court.
Bailiff:
The court will be in recess until 10:15.
Joan Mariani, Court Reporter
____________

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